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FAISAL MOHAMMED AKILU

CIVIL APPEAL NO. J3/8/2013 DATE: 5TH JULY, 2017

COUNSEL:
NII AKWEI BRUCE-THOMPSON FOR THE 2ND ACCUSED /APPELLANT /
APPELLANT.
YVONNE ATAKORA OBUOBISA (MRS), ACTING DIRECTOR OF PUBLIC
PROSECUTION FOR THE RESPONDENT/RESPONDENT/RESPONDENT.
CORAM:
ADINYIRA (MRS), JSC PRESIDING YEBOAH, JSC AKOTO-BAMFO (MRS), JSC
BENIN, JSC APPAU, JSC

JUDGEMENT
APPAU, JSC:-

The appellant is before us on a second appeal against the majority decision of the first
appellate court which affirmed his conviction and sentence by the trial High court.
The brief facts of this case are that the appellant and three other friends chartered a
taxi-cab to Nyaho Clinic area for one of them to collect money from someone. On the
way, it was alleged an attempt was made by the appellant and his friends to snatch
the taxi-cab in which they were, from the driver. In the process, they took an amount
of GHc40.00 from the driver but could not drive away the car. A military officer, who
ventured onto the scene, assisted the driver of the taxi cab to arrest one of the accused
persons while the others, including the appellant who was the 2nd defendant at the
trial, managed to escape. They were later arrested with the exception of one person
who was tried in absentia with the others on charges of conspiracy to rob and robbery
contrary to sections 23 (1) and 149 of Act 29/60.

Appellant and the others were convicted by the trial High court and each sentenced
to 15 years IHL on each of the counts to run concurrently. The appellant appealed
against his conviction and sentence to the Court of Appeal but the court dismissed the
appeal and affirmed the judgment of the trial court. The only eye witness account of
the alleged attempted robbery that the prosecution gave at the trial was the testimony
of the victim who testified as P.W.1. The appellant consistently denied his
involvement in the crime. He denied the charges against him in his investigation
caution statements and in his evidence in court. The question for determination was
therefore to be settled on the oath of the victim as against that of the appellant.

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Though the appellant lined up as many as eight (8) grounds of appeal for
determination by this Court, the main contention in this appeal was that both the trial
court and the first appellate court did not give any consideration at all to the defence
of the appellant before finding him guilty on the two counts of conspiracy and
attempted robbery. The appellant’s case is that both the trial court and the Court of
Appeal did not comply with the principles laid down by this Court in the Amartey case
(infra) before convicting him on the charges.

In the celebrated case of AMARTEY V THE STATE [1964] GLR 256, this Court held
that; “where a question boils down to oath against oath, especially in a criminal case, the trial
judge should first consider the version of the prosecution, applying to it all the tests and
principles governing credibility of witnesses; when satisfied that the prosecution’s witnesses
are worthy of belief, consideration should then be given to the credibility of the accused’s story,
and if the accused’s case is disbelieved, the judge should consider whether, short of believing it,
the accused’s story is reasonably probable”.

The decision in the Amartey case quoted supra, re-stated the principle laid down by
the West African Court of Appeal in the case of R v ABISA GRUNSHIE [1955] 1
WALR 36- WACA. The principle is that; in a criminal trial, where a court does not
believe the story or an explanation of an accused person, the court should nevertheless
go ahead to consider whether that explanation is reasonably probable when
considered together with the evidence on record as a whole before deciding on the
guilt of the accused. This principle has been applied in several cases including; R v
ANSERE [1958] 3 WALR 385– CA; DARKO v THE REPUBLIC [1968] GLR 203- CA;
KWESI v THE REPUBLIC [1977] 1 GLR 448- CA and LUTTERODT v C.O.P. [1963]
GLR 429– SC.

In the Lutterodt case supra, this Court settled on three stages that every court had to go
through in determining the guilt of an accused at the close of a criminal trial. The
Court held that:

“Where the determination of a case depends upon facts and the court forms an opinion that
a prima facie case has been made, the court should proceed to examine the case for the
defence in three stages;

i. Firstly, it should consider whether the explanation of the defendant is

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iii. Finally, quite apart from the defendant’s explanation or the defence taken by
itself, the court should consider the defence such as it is together with the whole
case; i.e. the prosecution and defence together, and be satisfied of the guilt of the
defendant beyond reasonable doubt before it should convict, if not, it should
acquit.”

The question is; did the trial court and later the first appellate court, which was obliged
to determine the appeal as if it was hearing the case afresh, subject the evidence from
both the prosecution and the defence, to the ‘Oath against Oath’ test or the test laid
down in the Lutterodt case supra?

On the first count of conspiracy to commit crime to wit; robbery, the particulars were
that appellant and the three others did act together to rob P.W.1, whilst on the
substantive charge under count two, they were said to have robbed the said driver of
cash the sum of GHc40.00 and his car. The trial court, as affirmed by the Court of
Appeal, found the appellant and the others guilty of conspiracy to rob and attempted
robbery but not robbery.

From the definition of conspiracy as provided under section 23(1) of Act 29/60, a
person could be charged with the offence even if he did not partake in the
accomplishment of the said crime, where it is found that prior to the actual committal
of the crime, he agreed with another or others with a common purpose for or in
committing or abetting that crime. In such a situation, the particulars of the charge
normally read: “he agreed together with another or others with a common purpose for or in
committing or abetting the crime”. However, where there is evidence that the person did
in fact, take part in committing the crime, the particulars of the conspiracy charge
would read; “he acted together with another or others with a common purpose for or in
committing or abetting the crime”. This double-edged definition of conspiracy arises
from the undeniable fact that it is almost always difficult if not impossible, to prove
previous agreement or concert in conspiracy cases. Conspiracy could therefore be
inferred from the mere act of having taken part in the crime where the crime was
actually committed. Where the conspiracy charge is hinged on an alleged acting
together or in concert, the prosecution is tasked with the duty to prove or establish the
role each of the alleged conspirators played in accomplishing the crime.

In the instant case before us, the only evidence against the appellant in the alleged
attempted robbery was that he was in the taxi-cab at the time the attempt was made
to rob P.W.1 of the car. The primary witness called by the prosecution was the victim
(P.W.1). He gave an account of the role played by each of the accused persons. He said
it was the 1st accused who snatched the ignition key from him when he stopped the
vehicle while the 3rd accused pointed a gun at the back of his head. When asked what
the appellant did, his answer in sum was that; he did nothing…however; he was among

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the others in the car. This was the only evidence of the part appellant was alleged to
have played in the attempted robbery claim.

In his statement to the police and testimony in court, the appellant had been consistent
all along as to how he came to be in the car with the others. He denied strongly that
he had knowledge of any plan by his friends to rob P.W.1 of his car. The victim himself
corroborated the testimony of the appellant that when the others struggled with him
over his ignition key, the appellant did nothing. The appellant got out of the car and
ran away. On why he had to run away, appellant said he was afraid that was why he
ran away. He said further that on the following day in the morning, he confronted one
of his friends as to why they did not tell him of their plan to rob P.W.1 of his taxi. This
testimony was not challenged by the prosecution.

Some of the questions that should necessarily have come to the mind of the trial court
in determining appellant’s involvement are;

(i) which were the subsequent acts done in concert with the other accused persons to
suggest that appellant planned with the others to steal the taxi-cab?
(ii) Is it not possible that the only agenda the appellant knew of on the night in question
was that they were going to Nyaho Clinic area for the 4th accused to collect money
from a friend as he was told when he was requested to join them in the taxi?

As was held by this Court in LOGAN v THE REPUBLIC [2007-2008] SCGLR 76 @ 78,
in conspiracy charges where there is no direct evidence, “the conspiracy is a matter
of inference, deduced from the certain criminal acts of the persons accused, done in
pursuance of an apparent criminal purpose in common between them”.

Though it could be said that sitting together with the others in the taxi-cab when the
incident happened was an element of acting in concert, that alone is not conclusive on
the point. There must be further proof that, being in the taxi-cab with the others was
for a common purpose; i.e. to rob the driver of the car in which they were being
conveyed or simply to rob. This could be inferred from the conduct or the acts of the
appellant at the time he joined the others in the taxi-cab up to the time of the attempted
robbery. However, the testimony of the victim of the crime P.W.1 was that appellant
did nothing apart from his mere presence in the car. This evidence corroborates the
testimony of the appellant throughout the trial that he knew nothing about the
conspiracy and that he was unfortunate to be in the car at the time. It also corroborates
that of the other accused persons that the appellant did nothing to support what they
were doing.

This Court held further in the Logan case (supra) that mere presence at the scene of a
crime without more is not proof of guilt. As the appellant rightly contended in his
written statement of case, the trial judge and the learned majority justices of the first

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appellate court should have asked themselves whether it was not possible for an
innocent person to be among evil doers, be in their company and yet have no
knowledge of their intentions. Clearly, the record before us suggests overwhelmingly
that both the trial judge and the first appellate justices in the majority did not give any
consideration at all to the evidence of and for the appellant. The two lower courts
completely failed to subject the explanation or story of the appellant to the three-stage
test propounded by this Court in the Lutterodt and Amartey cases supra, which every
court is obliged to do before pronouncing the guilt of an accused person. We want to
lay emphasis on the principle in criminal trials that; all reasonable doubts that make
the mind of the court uncertain about the guilt of the accused are always resolved in
favour of the accused. By reasonable doubt is not meant mere shadow of doubt.
Where, from the totality of the evidence before a trial court, a soliloquy of; ‘should I
convict’, or ‘should I acquit’ takes control of the mind of the court, then a reasonable
doubt has been raised about the guilt of the accused. The appropriate thing to do, in
such a situation, is to acquit, as required by law.

We agree with the minority decision of the Court of Appeal that the trial judge and
the majority in the first appellate court did not adequately consider the defence of the
appellant before finding him guilty on the two counts. The appellant’s explanation
that he knew nothing about the plan of the other accused persons and that he did not
take part in what they did, was not only reasonably probable but was, in our view,
more probable than not, judging from the totality of the evidence on record.

Having failed to attract adequate consideration at the trial level, the Court of Appeal,
from the grounds of appeal before it, was obliged to give the defence that adequate
consideration as spelt out by the authorities. Unfortunately, the Court of Appeal failed
to do this. The court, per its majority decision, lumped up all the accused persons
together instead of considering the role each played in the alleged committal of the
offences, thereby making wrong deductions from the evidence on record as to the guilt
of each of them to the charges. Nowhere in the judgment did the majority in the first
appeal, just like the trial court, give a thought to the case of the appellant. The Court
of Appeal was under an obligation to consider separately the defence put up by each
of the accused persons to determine how they coordinated each other in the
commission of the offences as alleged by the prosecution. The minority decision was
that the majority did not do this. Her view was that even if the defence of the appellant
was not believable, it was reasonably probable judging from the particular
circumstances of the case, which she enumerated. We fully share this view. We admit
that the evidence led by the prosecution in proof of the charges against the appellant
did not meet the requisite standard of proof, which is; proof beyond reasonable doubt.
We therefore quash the conviction and sentence of the appellant on the two charges
of conspiracy to rob and attempted robbery.

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With regard to the other leg of the appeal that the appellant was a juvenile so the trial
court should have referred him to the Juvenile Court for the imposition of sentence,
we think it would be superfluous to waste time on that ground. Having admitted that
the trial High Court had the authority to try him in the circumstances he found
himself, his conviction by the trial court whether rightly or wrongly done, was proper.
There would therefore be no need to go into the sentence when the conviction, which
is the foundation of the sentence, has crumbled. We therefore refrain from discussing
that issue.

Y. APPAU
(JUSTICE OF THE SUPREME COURT)

S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)

ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)

V. AKOTO-BAMFO (MRS)
(JUSTICE OF THE SUPREME COURT)

A. A. BENIN
(JUSTICE OF THE SUPREME COURT)