IN THE SUPERIOR COURT OF IUDICATURE
IN THE COURT OF APPEAL
CRIMINAL DIVISION
ACCRA, A.D. 2011
CORAM: S.E. KANYOKE, J.A (PRESIDING)
K.N. ADIJAMA OSEI, J.A	CRIMINAL APPEAL N0.1-12/16/2010
DENNIS D. ADJEI, J.A	DATE: 28TH JULY 2011
KOFI ASIEDU	APPELLANT
VRS
THE REPUBLIC	RESPONDENT
Criminal Law— Robbery— Appellant convicted for robbery— Proof of ingredients of robbery— Whether explanation offered by appellant sufficient to negate robbery charge— Whether failure to prove ingredients of robbery constitute serious miscarriage ofjustice— Criminal Offences Act, ss. 149& 150
Jurisdiction— Appellate Court— Power to set aside a higher offence and substitute with a lesser one— Criminal and Other Offences (Procedure) Act, £
154— Courts Act, 1993,s. 11(9)
JUDGMENT DENNIS D. ADJEI (IA)
On 280 February 2011, this Court granted an extension of time to the Appellant herein to file an appeal against both conviction and sentence imposed on him by the High Court, Koforidua on 1111, March 2011. The Appellant filed a petition of appeal against both conviction and sentence. The Appellant filed five (5) grounds of appeal namely:-
1) The trial Court erred in entering a plea of guilty on both counts against the Appellant.
 
2)	The trial Court erred in its assessment of the explanation given
by the Appellant as nothing but a plea in mitigation of
sentence.
3)	The trial Court erred in not entering a plea of not guilty on both counts in the case of the Appellant upon the explanation
offered by him.
4)	The conviction of the Appellant was wrong in law on account of the explanation he gave in relation to the offences charged.
5)	The sentence passed against the Appellant based on the wrong conviction was consequently wrong in law.
The brief facts of this appeal are that the Appellant and three (3) other persons were charged with the offences of:
1)	Conspiracy to Commit Crime to wit robbery contrary to Section 23 and 149(1) of the Criminal Offences Act 29/60 and
2)	Robbery contrary to Section 149 of the Criminal Offences Act, Act 29/60.
The Appellant was the 3r1 Accused person in the Court below. The 4th Accused person was also at large. The pleas of the lst, 2nd and 3rd Accused persons were taken and all of them pleaded guilty with explanation. The trial Court came to the conclusion that the explanations offered by the three accused persons amounted to plea of guilty and therefore convicted and sentenced them. The 1st accused person was sentenced to twenty-five (25) years I.H.L. on each count and were to run concurrently.
 
2
 
The 1s1 and 2" accused persons did not appeal against the decision of the trial High Court. In the course of this judgment, the legal effect of this appeal on the is" and 2" accused persons would be discussed.
The facts of the case as given by the prosecution at the trial Court were that the complainant is a businessman living at Koforidua. The 1st accused person was his personal driver. The 2" accused person is a driver and at the time of the incident, he was the driver in charge of a taxi cab which was used by the 2", 31d and the accused persons to rob the complainant. The 3"1 accused person, the Appellant herein is a Carpenter. All the four accused persons live at Okrase, a suburb of Koforidua. On 8111 July 2009„ the 1st accused person who was the personal driver of the complainant and was on business trip conspired with the other accused persons to meet them at Berekusu where he would slow down for robbeiy operations to be carried out against the complainant. On reaching Berekusu, the 1s1 accused slowed down the Hyundai Mighty KIA Truck with Registration No. GT 523 F which the complainant was on board and they were Crossed by a taxi cab, which was being driven by the 2" accused person. They used cutlasses to attack the complainant and made away with GitS6,000.00, a mobile phone worth GH0300.00 and sonic personal effects of the complainant.
A report was Made to the Police and the 1st, 2" and 3fd accused
persons were arrested and an amount of G1-14,700.00 was retrieved
from them.	The 411, accused person could not be arrested.
3
 
According to the prosecution, the 1st, 21 and 316 accused persons admitted the offences of conspiracy to commit robbery and robbery in their caution statement.
We will discuss grounds 1, 2 and 3 of the appeal together as they raise a common question of law. The effect of [lie three grounds of the appeal is that the explanation offered by the Appellant negates the charge of robbery and the trial Judge should have entered a plea of not guilty and failing to do that has occasioned serious miscarriage of justice to the Appellant. Robbery which is a first degree felony is defined in Section 150 of the Criminal Offences Act, 1960, Act 29 as follows: -
"A person who steals a thing commits robbery.
a) If in, and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or
l) If that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of other person to the stealing of the thing."
From the above definitions, a charge of robbery could he proved where one uses force or causes harm to any other person in his effort to steal something or the person who is stealing must have used threat or criminal assault or harm to any person with intent to prevent or overcome the resistance of the other person to the stealing. Where a person steals and none of the ingredients of robbery as listed above is proved, the charge of robbery will Ihil but a charge of stealing would be sustained.
rd
 
From the facts given by the prosecution, the appellant and the other accused persons used cutlass in their operations. The use of cutlasses by the accused persons will constitute a threat and the conduct of the accused persons will come under the definition of robbery - See Section 150(b) of Act 29/60.
The appellant's explanation to the offence of conspiracy lo commit robbery and robbery were as follows:
"EXPLANATION OF 3R), ACCUSED PERSON - We did not use any cutlass in the operation. It was the 1st accused who was driving the
complainant. He had no harmful implement. We plead for leniency.
This is our first time of doing such a thing."
The first accused person also offered his explanation as follows:
"I did not see any cutlass being used in the operation. The total sum has been recovered as our family members have since made put the difference."
The 2nd accused person explained why he was not guilty as follows:
"We did not carry along any cutlass for the operation as the
complainant is an elderly man."
Apart from the allegation of use of cutlasses by the accused person, which would have grounded the charge of robbery, the accused persons were not said to have either used force or caused harm nor committed criminal assault or harm to any other person, with intent

 
to prevent or overcome the resistance of the other person to the stealing of the thing. The trial Judge was therefore mandated by law to satisfy himself that the explanation given by the accused persons if proved at the trial would constitute a defence and the charge of robbery will fail. The issue of belief or disbelief of the explanations will not arise because it is not an evidence which the Court may have the discretion to believe or disbelieve. Instead of critically examining the explanations by the accused persons, the trial Judge erroneously concluded that their explanations constitute an admission of their guilt and convicted and sentenced them accordingly. Had the trial High Court Judge properly analysed the explanation by the appellant he would have been confronted with two legal positions being:
(1)	To enter a plea of not guilty for the appellant and proceed to try the case for conspiracy to commit robbery and robbery and
(2)	To convict him for conspiracy to steal and stealing.
The trial Judge's neglect to consider the explanation offered by the appellant has occasioned serious miscarriage of justice and the conviction for robbery should be set aside. Grounds (a), (b) and (c) of the appeal succeeds. Grounds (d) and (e) of the appeal also succeeds.
Counsel for the Appellant discussed extensively the cases of Gundaa vs. Republic [1989 -901 GLR 55 - 57 and Ofei vs The State t19651
6
 
GLR 680 -687 and concluded that if the explanation was not. consistent with guilt, a plea of not guilty must he entered by the trial Court for normal trial to take place. I do agree with Counsel for the appellant and the ratio in the authorities quoted by him and I would like to add that where the accused person could be convicted on a lesser offence based on his explanation, the Court may either, change his plea from guilty to not guilty and proceed to try him or convict him for the lesser offence. It is a discretion given to the Court and should be exercised judiciously.
We are further fortified by Section 154 of the Criminal and other ollenees (Procedure) Act, 1960 which clothes the Court with jurisdiction to convict an accused person for a lesser offence although not charged with it where it becomes clear that the facts di not support conviction for the higher offence preferred against him but rather supports the lesser offence. Section 154(2) of Act 30 provides thus:
"Where a person is charged with an offence and facts and proved which reduce it to a lesser offence, that person may he convicted of the lesser offence although not charged with it."
Is it trite learning that the facts in a case include the facts by the prosecution the pica of the accused persons and other explanations that would he offered by them and we are satisfied that the facts have proved the offence of stealing against the appellant. The explanation offered discloses that the appellant was guilty of conspiracy to steal and stealing.
7
 
Appeal is by way of rehearing and this Court has the Powers of the trial High Court and we will therefore proceed to rehear the matter. We are fortified by Section 11(9) of the Court Act, 1993 Act 459, which provides thus:
"For the purposes of hearing and determining an appeal within its jurisdiction and the amendment, execution or enforcement of a judgment or an order made on an appeal, and for the purpose of any other authority expressly or by necessary implication given to the Court of Appeal by the constitution,
this Act or any other law, the Court of Appeal has the powers, authority and jurisdiction vested in the Court from which the
appeal is brought."
By the powers vested in this Court by Section 11 (9) of the Court Act, 1993, We will set aside the conviction for robbery and substitute stealing. This Court could have ordered for retrial but it is our considered opinion that once the appellant's explanation constitutes guilty of stealing we will opt for that one and retrial having taken into consideration the number of years spent by him in custody as a prisoner.
The 1st and 2nd accused persons even though did not appeal would suffer injustice if their erroneous conviction for robbery which has conic to the notice of this Court is not addressed. The explanation offered by the two of them is also the same as that of the appellant herein and that negates the offence of conspiracy to commit robbery and robbery.
8
 
Section 31 (1) of the Courts Act 1993, Act 459 permits an Appellate Court to allow air in a criminal matter if it considers that the verdict or conviction or acquittal ought to be set aside inter alia, on the ground that there was a wrong decision of any question of law and has occasioned miscarriage of justice. The variation of the judgment is to the benefit of the two accused persons and even though they were not joined to the appeal audi alteriin partem rule will not be breached.
Section 31 (1) of the Court Act, Act 459 provides thus "subject to Sub Section (2) of this section, an Appellate Court on hearing any appeal before it in a criminal case shall allow the appeal if it considers that the verdict or conviction or acquittal ought to he set aside on the ground that it is unreasonable having regard to the evidence of that the judgment in question, ought to he set aside on the ground of a wrong decision of any question of law or fact or that on any grounds there was a miscarriage of justice and in any other case shall dismiss the appeal."
The Court erred by convicting the accused persons on the offences of conspiracy to commit robbery and robbery and it is a wrong decision and that should inure to the benefit of all the accused persons including those who appealed against the decision and those who did not appeal. Justice demands that the wrong decision which is being set aside must cover all those who are affected by that wrong decision.
 
9
 
We will set aside the conviction for conspiracy to commit robbery and robbery and substitute conspiracy to commit stealing and stealing. The appeal succeeds. in part. The Appellant together with the lst and 2nd accused persons are convicted for conspiracy to steal which is contrary to Sections 23 and 124 of Act 29/60 and stealing contrary to Section 124 of Act 29/60.
The sentences imposed on the accused persons by the trial High Court are hereby set aside and in its place, we will substitute ten (10) years .	. for each count and are to run cipneurrently.
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S E KANYOKE	I agree	If-A- NV 0 K1,	
[JUSTICE OF APPEAL]
 
K N ADUAMA OSEI
COUNSEL
 
I also agree	• UAMA OSEI [JUSTICE OF APPEAL]
 
MR. SOMUAH ASAMOAH FOR THE APPELLANT
MRS VALARIE EDUSEI POKU (CSA) FOR TIIE RESPONDENT
