GEORGE AYITTEY vs. THE REPUBLIC [2021]DLCA10031

Date	2021-01-21
Suit No.	SUIT NO H2/1/2018
Citation No.	[2021]DLCA10031

ADJEI J.A

SUURBAAREH J.A

MENSAH J.A

K. ADJEI-LARTEY FOR THE APPELLANT

STELLA OHENE APPIAH(CSA) FOR THE REPUBLIC

[2021]DLCA10031
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													<main id="main" class="content" style="min-height: 60rem" >GEORGE AYITTEY<o:p></o:p>(APPELLANT)<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO H2/1/2018&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
21ST JANUARY, 2021<o:p></o:p>

</div>COUNSEL<o:p></o:p>K. ADJEI-LARTEY FOR THE APPELLANT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">STELLA OHENE
APPIAH(CSA)&nbsp; FOR THE REPUBLIC<o:p></o:p>

</div>CORAM&nbsp; <o:p></o:p>ADJEI J.A, SUURBAAREH J.A, MENSAH J.A<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGEMENT<o:p></o:p>

</div>&nbsp;ADJEI,J.A:<o:p></o:p>The
appellant herein was the third accused person who was jointly charged with the
first and second accused persons before the trial High Court Accra on 4th
February, 2010 on two counts of conspiracy to commit robbery contrary to
section 23 (1) of the Criminal Offences Act, 1960 (Act 29) and robbery contrary
to section 149 of the Criminal Offences Act, 1960 ( Act 29) . All the three
accused persons were jointly convicted of both counts and each was sentenced to
40 years imprisonment on each count after the trial Court has gone through a
full trial.<o:p></o:p>The
third accused person sought leave from the Court of Appeal to file an appeal
against both conviction and sentence and same was granted on 11th April, 2017.
The first and second accused persons have not appealed and this appeal relates
to the third accused person . For the purposes of this appeal , the appellant
shall be referred to his designation before the trial High Court ; the third
accused person for ease of reference.<o:p></o:p>The
brief facts of the matter before the trial High Court which are before this
Court on appeal were that on 24th March, 2009; the Police received a distress
call from one Stephen Boafo at East Legon Accra that five armed men had
attacked his house and taken away his Toyota Previa Van with registration
number CR 3T . The Police Headquarters which received the distress call relayed
the information to all the police patrol teams in Accra. The Stopper 3 Patrol
Team spotted the Toyota Previa Van No. CR 3T and gave it a chase. The driver
sped up and was chased by the police. On realizing that he could not outwit
them drove into the bush, got down and hid himself. He was arrested by the
police and taken to the Madina Police Station and subsequently volunteered a
statement.<o:p></o:p>The
driver who was the arrested by the police was charged as the first accused person
before the trial High Court. The second accused person was arrested based on
the information given by the first accused person to the police. According to
the police the second accused person mentioned the third accused person and the
other two persons at large. All the three accused persons denied at anytime
engaging in robbery. The High Court after the trial convicted the three accused
persons of a count each of conspiracy to commit robbery and robbery.<o:p></o:p>The
third accused person who is challenging both convictions and sentences filed
four grounds of appeal on his grounds of appeal filed on 13th April, 2017
pursuant to the leave by the Court of Appeal to file an appeal out of time. The
four grounds of appeal filed are:<o:p></o:p>“(a)
&nbsp;&nbsp;&nbsp; That the verdict and or conviction of
the Appellant&nbsp;&nbsp;&nbsp; ought to be set aside on
the grounds that it is unreasonable or cannot be supported having regard to the
evidence.<o:p></o:p>(b) &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the sentence of the Appellant to 40
years is harsh and excessive.<o:p></o:p>(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the conviction and sentence of the
Appellant to 40 years IHL has occasioned a miscarriage of justice.<o:p></o:p>(d)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In the alternative the appellant prays
for mitigation of sentence.”<o:p></o:p>From
the above grounds of appeal, it is ground (a) alone which is against
conviction. The grounds (b) (c) and (d) of the appeal are on mitigation and
shall be discussed together.<o:p></o:p>We
discuss ground of the appeal which is to the effect that conviction of the
third accused is unreasonable and cannot be supported having regard to the
evidence on record. The ground of appeal requires this Court to evaluate the
evidence on record and correct all the errors committed by the trial High
Court. The errors to be corrected are errors emanated from improper evaluation
of evidence , inappropriate application of standard burden of proof, and
material and relevance evidence on record which were not considered at all and
if corrected are likely to overturn the conviction. Section 31 (1) &amp; (2) of
the Courts Act, 1993 (Act 459) provides for the three grounds upon which
criminal appeal may succeed . It provides as follows:<o:p></o:p>“(1) &nbsp;&nbsp;&nbsp; Subject
to subsection (2), an appellate court on hearing an appeal in a criminal case
shall allow the appeal if the appellate courts considers<o:p></o:p>