ABDULAI SHAIBU GAFARU v. REPUBLIC
2021
COURT OF APPEAL
GHANA
CORAM
- JUSTICE AMADU TANKO JSC (PRESIDING)
- JUSTICE HENRY KWOFIE JA
- JUSTICE ANTHONY OPPONG JA
Areas of Law
- Criminal Law and Procedure
- Evidence Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal judgment, authored by Justice Henry Kwofie JA with Justice Amadu Tanko JSC (Presiding) and Justice Anthony Oppong JA concurring, reviews the conviction of the appellant (A2). Initially, at the Circuit Court, Juaso, A1, A3, and A4 were acquitted, while A2 was convicted of unlawful entry, causing unlawful damage, and robbery, and given concurrent custodial sentences. On appeal, the High Court, Kumasi, acquitted A2 of the charged counts but substituted a conviction for dishonestly receiving under sections 146 and 148 of Act 29, invoking section 154(2) of Act 30, and imposed 15 years. The Court of Appeal held that section 148 is evidentiary (not offence-creating) and applies only when charged under section 146; moreover, dishonest receiving requires proof of guilty knowledge, which the record lacked. The appellant’s explanation and A3’s corroboration rendered his defence reasonably plausible. Substituting an unrelated offence under section 154(2) was improper and prejudicial. The appeal succeeded; the dishonest receiving conviction and sentence were set aside, and the appellant was acquitted and discharged.
HENRY KWOFIE JA:
The appellant and 3 others were arraigned before the Circuit Court, Juaso in the Ashsnti Region on charges of Conspiracy to commit crime to wit robbery contrary to Section 23(1) and 149 of the Criminal Offences Act 1960 (Act 29) Abetment of crime contrary to Section 20 of Act 29, Unlawful Entry contrary to section 152, Unlawful damage contrary to Section 149 of the Criminal Offences Act 1960 (Act 29) and Robbery contrary to section 149 of Act 29. The appellant was the second accused at the trial and all the accused persons pleaded not guilty to all the charges preferred against them. The appellant was charged on five counts to wit:
i) Conspiracy to commit robbery contrary to Section 23(1) and 149 of Act 29/60,
ii) Unlawful entry contrary to Section 152 of Act 29;
iii) Causing unlawful damage contrary to Section 172 of Act 29
iv) Robbery contrary to Section 149 of Act 29
After the close of the case of the prosecution the first accused (A1) was acquitted and discharged. At the end of the full trial, the 3rd and 4th accused persons were also acquitted and discharged. The appellant was convicted for the offences of unlawful entry, causing unlawful damage and robbery being counts 3,4 and 5 respectively. He was sentenced to 5 years I.H.L on count 3, three (3) years I.H.L on count 4 and 18 years I.H.L on count 5 with the sentences to run concurrently. He appealed against his conviction and sentence. The appellate High Court judge acquitted and discharged the appellant on all the three (3) counts but substituted the offence of dishonestly receiving contrary to sections 146 and 148 for the offence of robbery. He found the appellant guilty of dishonestly receiving and sentenced him to fifteen (15) years I.H.L. It is against this judgment that the appellant has filed this appeal on the ground that:
i) The Court below grossly erred in finding the appellant/appellant guilty of dishonestly receiving after acquitting and discharging him on the charges of unlawful entry, causing unlawful damage and robbery.
ii) The court below grossly erred in convicting the appellant/appellant of the offence of dishonestly receiving when there is no scintilla of evidence on the record leading to the inexorable conclusion that the appellant knew that the vehicle had been obtained or appropriated by an offence
iii) There is no evidence on record that the appellant/appellant had guilty knowledge that the vehicle had been obtained through crime
iv) Additional groun