ASAMOAH AND OTHERS vs. THE REPUPLIC [2001-2002] 1 GLR 123

CASES REFERRED TO

(1) Forson v The Republic [1976] 1 GLR 138.

(2) Prempeh v Commissioner of Police, Court of Appeal, Cyclostyled Judgments, July–December 1958, p 87

(3) Commissioner of Police v Sencherey [1959] GLR 225, CA.

(4) Boateng v The State [1964] GLR 602, SC.

PRELIMINARY OBJECTION by each of the three appellants who were convicted and sentenced at one trial by the High Court to their separate appeals from that judgment which they had filed independently of each other and on separate dates, being lumped together on the same docket to be heard together by the Court of Appeal. The facts are sufficiently stated in the ruling of Ansah JA.

Nelson Cofie for the first appellant.

E VA Adjetey for the fourth appellant.

A Gyambiby, Principal State Attorney, for the respondent.

Ansah JA. On 13 July 2001 Philip Asamoah alias Agingo, No 28473 Gen/CpI James Doli, Alhaji Seikh Seidu Mohammed Bebli alias RSM Jack Bebli and four others were found guilty by a jury of several offences. They were convicted by the High Court, Accra and sentenced according to law.

Thereafter, the first accused at the trial filed a notice of appeal against the verdict, conviction and sentence seeking an order from this court to quash same. So did the sixth and fourth accused at the trial though on different dates and independently of each other. When the appeals came to be heard by this court, all three were lumped together on the same docket. This evoked an objection from counsel for the first accused. The gravamen of his submission was that by consolidating the three appeals for hearing on the same

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docket prejudice would be caused his client for in the event of he succeeding in convincing the appellate court in his submission in support of his appeal, his client would be denied the benefit of an acquittal and the restoration of his liberty and he would rather have to wait for the appeal of the others to be completed. In the event of an unforeseen circumstance, his client would have to suffer all the more. Counsel deprecated the idea of consolidating all the three appeals for hearing when they were not filed on the same date but rather independently of each other. Counsel for the fourth and sixth accused persons readily associated themselves with the above submission. Counsel for the respondent took a contrary view and rather urged upon this court to hear all the appeals together on the same docket.

The issue raised by this objection is of a far-reaching consequence and may simply be formulated as follows: Where separate appeals are filed against a conviction and sentence in one trial should they be heard pari passu and should they be made to appear on the same docket for that purpose? There is a dearth of authority on this issue from the appellate courts and I have to rely on a case or two not emanating from this court in particular. The general statement of the criminal law and procedure on appeals is that separate appeals could not be included in one petition of appeal. It was held by Taylor J (as he then was) in Forson v The Republic [1976] 1 GLR 138 at 143 that this view was supported by the case of Prempeh v Commissioner of Police, Court of Appeal, Cyclostyled Judgments, July–December 1958, p 87 and Commissioner of Police v Sencherey [1959] GLR 225, CA. This applies fully well in the case where a convict in two cases files an appeal against each case but brings them in one petition.

In a case such as the present where there was just a trial of two or more persons upon one or more offences with each of them having been convicted and sentenced according to law, some or all of them may decide to exercise their undoubted right of appeal. Apparently, their appeal may be separate but in effect it is only one appeal against the one judgment emanating from one trial on one charge sheet. In those circumstances, at the hearing, it cannot be right that the appeal of each appellant should be taken separately.

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The simple reason is that if the several accused persons were tried jointly on the same indictment, No 12231/2000, conveniently so can their separate appeals also be heard jointly without any prejudice, unfairness or injustice being sprung on them or any of them, ie collectively or individually.

To hear the appeals together or separately is not legislated upon and this is all a matter of discretion by the appellate court and the need to exercise the discretion judicially must be borne in mind. What must be borne in mind is that the courts at the trial or appellate levels do exist to do justice to the parties appearing before them. In exercising their power to administer justice to all manner of persons appearing before them, the courts would not shut their eyes to the dictates of the necessity to avoid multiplicity of actions and trials of all kinds and speaking in judicial double tongues, all because the courts change from one panel to the other. Above all, the courts in dispending justice would strive to save its precious but limited time and avoid unnecessary delays bearing the interest of all parties before them in mind. Each case would be determined on the facts and circumstances peculiar to the person involved and same would be evaluated with the utmost detachment. In this appeal, the evidence and the law applicable and the grounds of appeal of each appellant would be given the consideration it deserves: see Boateng v The State [1964] GLR 602 at 610, SC.

In this case, there was a single trial involving several accused persons. Where they decide to appeal against conviction and sentence there can be no harm being done to them if they are heard together on their separate appeals. It would have been otherwise if they had been tried separately, ie on different charge sheets but they had chosen to come to this court on one petition of appeal. The danger of transpositioning one piece of evidence in a particular case into another would have been clear. It is not so in this case and I think it is fair and proper that they be heard jointly in this appeal. After all when it comes to the judgment, this court would consider the fate of each appellant in accordance with the totality of the evidence led for or against him and the law applicable and the grounds of appeal for each of them.

For these reasons, the objection is overruled and the appeals

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should be heard together. Philip Asamoah alias Agingo, No 28473 Gen CpI James Doli and Alhaji Sheikh Seidu Mohammed Bebli alias RSM Jack Bebli shall be called the first, second and third appellants respectively. Let the appeals proceed to hearing now.

Aninakwah JA. I also agree.

Asiamah JA. I also agree. Preliminary objection overruled. DRKS