THE REPUBLIC v. STEPHEN EISE & JOHN AYORIGO
2019
COURT OF APPEAL
GHANA
CORAM
- P.K. GYAESAYOR, JA (PRESIDING)
- A. LOVELACE-JOHNSON, JA
- N. C. A. AGBEVOR, JA
Areas of Law
- Criminal Law and Procedure
- Evidence Law
- Constitutional Law
2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Ghana Court of Appeal, per Agbevor JA, reviewed the convictions of two appellants for robbery under Section 149 of Act 29 after the High Court sentenced each to 45 years’ imprisonment with hard labour. The appellate record lacked a compiled statement of facts, but the court summarized from the record and reaffirmed the appellate role in rehearing. Central to the appeal was PW1’s failure to return for further cross-examination after a court-ordered recall, compounded by the trial judge’s refusal to adjourn despite defence counsel’s documented governmental assignment. Invoking Section 79 of the Evidence Decree and common law authorities, the Court of Appeal held that evidence from a recalled witness who does not reappear should be excluded or expunged. The trial court’s reliance on PW1’s untested testimony caused a serious miscarriage of justice. Consequently, the Court of Appeal set aside the convictions and acquitted and discharged both appellants, noting the omission in the record did not itself cause injustice.
AGBEVOR, J.A.
This appeal is from the conviction of the two appellants by the High Court, Accra on the 18 day of September 2008 for Robbery Contrary to Section 149 of Act 29, 1960.
The trial court found both accused persons guilty after a trial, convicted each of the accused and sentenced them to a term of 45 years Imprisonment with Hard Labour each.
Dissatisfied with their conviction and sentence they have lodged the instant appeal to this court on the grounds that:-
a) The High Court erred when it relied on the evidence of the complainant to convict the appellants even though the complainant failed to appear for cross examination by Counsel for the Appellants despite the court order recalling him thereby occasioning gross miscarriage of justice.
b) That the High Court erred when it ruled that the appellants had been sufficiently identified by the complainant thereby occasioning gross miscarriage of justice.
c) That the trial judge erred when he ruled that the prosecution had proved its case beyond doubt.
d) That the sentence is too harsh.
The facts upon which the accused were tried and convicted are not stated in the record (see the effect of this omission below) but this court will summarise this from the records.
The complainant (PW1) is a Chartered Accountant and worked with KPMG. On the 17th November 2006 at about 8.30pm he closed from work and was on his way home driving his Mercedes Benz ‘C’ class registered as GT 619 V to his home at Sakumono. A few meters to his house he noticed that he was being followed by a yellow and white Astra taxi cab full of passengers. The taxi cab pulled up towards him and he was ordered to stop by the occupants of the taxi. He attempted to drive off when he was shot by the occupants of the taxi. He was shot through the front door of his driver’s seat and the bullet hit his right calf. One of the occupants of the taxi asked PW1 to get out of the car and at that stage he saw that the 1st and 2nd appellants had a pistol each with the 3rd person acting as the ring leader. They pushed the complainant into the car with the 2nd appellant seated behind the driver. They drove through several places in Tema flanked by the others from the taxi and ended up at the cemetary.
At the cemetary he was ordered to lie on one of the tombs with face down. He was later escorted from the cemetary into the boot of the car with his hands tied. All along the boot was well ventilated when the car was in motion but warm when at a stands