HIGH COURT, HO
Date: 18 APRIL 1975
ANDOH J
CASES REFERRED TO
(1) Sharp v. Wakefield [1891] AC. 173; 60 L.J.M.C. 73; 64 L.T. 180; 55 J.P. 197; 39 W.R. 561; 7 T.L.R. 389, H.L.
(2) Boateng v. The State [1964] G.L.R. 602, S.C.
[p.171] of [1975] 2 GLR 170
NATURE OF PRECEEDINGS
APPEAL against sentence of two years’ imprisonment imposed by a trial circuit judge on conviction of the appellants for the offences of (a) making an unseemly noise and (b) causing unlawful damage contrary to sections 296 (7) and 172 (1) of Act 29 respectively. The facts are sufficiently stated in the judgment.
COUNSEL
Dr. A. K. P. Kludze for the appellants.
J.C. Amonoo-Monney, Senior State Attorney, for the respondent.
JUDGMENT OF ANDOH J.
The three appellants herein together with one Bitrim Zebaot alias Gattah, who has not appealed, were convicted on their own plea of “guilty” on counts (1) and (2). The third appellant who was the only one charged on count (3) was again convicted on his own plea of “guilty.” All the three appellants were sentenced by his honour Judge A. Gogo sitting at the Circuit Court, Hohoe, to two years’ imprisonment with hard labour on counts (1) and (2) to run concurrently. The third appellant was again sentenced to two years’ imprisonment with hard labour on count (3) to run concurrently with counts (1) and (2). The sentences were passed on 14 January 1975. The charges upon which the appellants were tried were as follows:
“COUNT ONE
Statement of Offence
Making unseemly noise contrary to section 296 (7) of the Criminal Code, 1960 (Act 29).
Particulars of Offence
(1) Bitrim Zebaot alias Gattah, carpenter apprentice, (2) George Komla Komegbe, farmer, (3) Kwesi Agbebo, trader and (4) Johannes Kwami Atafi, mate: For that you on 1 January 1975 at Alavanyo-Wudidi in the Volta Circuit, did wilfully or wantonly agree to make bonfire and made loud and unseemly noise to the annoyance or disturbance of the public between 8 o’clock at night and 6 o’clock in the morning without authority or pass from the police.
COUNT TWO
Statement of Offence
Causing unlawful damage contrary to section 172 (1) of Act 29.
Particulars of Offence
(1) Bitrim Zebaot alias Gattah, carpenter apprentice, (2) George Komla Komegbe, farmer, (3) Kwesi Agbebo, trader and (4) Johannes Kwami Atafi, mate: For that you on the same day, time and place aforesaid in the Volta Circuit, did unlawfully cause to Alavanyo-Wudidi market stalls value 025.00 the property of Alavanyo-Wudidi citizens.
[p.172] of [1975] 2 GLR 170
COUNT THREE
Statement of Offence
Causing unlawful damage contrary to section 172 (1) of Act 29.
Particulars of Offence
(1) Kwesi Agbebo: For that you on 3 January 1975 at Alavanyo Kpeme police cells in the Volta Circuit did unlawfully cause damage to the cells padlock value 02.00 the property of Ghana Police Service.”
In this appeal Dr. Kludze has not sought to question the propriety of the convictions of the appellants. His arguments were directed to showing that the sentences of the appellants were manifestly excessive. Mr. Amonoo-Monney, the learned senior state attorney, who appeared for the Republic, commendably associated himself with the submissions of defence counsel. The simple issue raised in this appeal therefore is whether the sentences passed by the learned circuit judge were well merited.
On the first two counts, it is clear from the charges that the offences were committed on the first day of the year. The first day of the year is usually declared a public holiday and it is celebrated in Ghana with many festivities such as the holding of parties, excursions, dances and of course drinking. I think it is a notorious fact that a reasonable proportion of the community indulge in excessive drinking in the course of their merriment on the first day of the year. This aspect of the matter should have been borne in mind by the trial circuit judge. Again it is clear from the extent of the damage caused as stated in the two charges, namely, counts (2) and (3) that it was not substantial. The damage caused (as stated) in count (2) to the market stall amounted to 025.00 and that to the padlock in count (3) was only 02.00. The appellants are all of youthful age and until that fateful date, they had hitherto been of clean record. I think that these are all mitigating factors which a court should bear in mind in passing sentence not overlooking the penalty prescribed by law upon conviction.
The sentence to be passed in any given case must in addition to the above depend upon the discretion of the court and also the jurisdiction of the court. What then is meant by discretion? In the case of Sharp v. Wakefield [1891] A.C. 173 at p. 179, H.L. Lord Halsbury L.C. defines discretion as follows:
“and ‘discretion’ means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion:… according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.”
[p.173] of [1975] 2 GLR 170
Undoubtedly the discretion to be exercised by the tribunal must be in relation to the nature of the crime; its gravity or triviality, the frequency with which such crimes are committed and all the other surrounding circumstances.
Now on count (1), the charge preferred against the three appellants was that they made an unseemly noise after they had agreed wilfully or wantonly to make a bonfire. Without touching on the point whether the charge itself is bad for duplicity, it is quite clear that this was a trivial offence. The triviality of the offence is such that the court is not free to pass any fanciful sentence which it may consider appropriate to award. Thus section 296 (1) of Act 29 lists a number of offences about 26 in all and prescribes the penalty upon conviction of any of the crimes mentioned. A glance at section 296 (7) and (8) will probably show as I have stated that the charge itself was duplicitous as it appears to be a mixture or a combination of the two sections, grouped together to form the charge in count (1). The point has not been raised in this appeal and so I do not deem it necessary to elaborate further on the point. However section 296 (1) provides that whoever is found guilty and is convicted of any of the crimes listed under the section shall be sentenced to a fine not exceeding 100.00.
Under such circumstances, was the learned trial circuit judge justified in imposing a term of imprisonment without the option of a fine? It is respectfully submitted, with all due respect, that he was not justified. In fact the sentences of two years’ imprisonment with hard labour having regard to the nature of the crime, the youthful age of the appellants and the fact that they had hitherto been of clean record were clearly and manifestly excessive. In fact I think that if this order had stood alone, it could have been quashed by an order of certiorari as the sentences passed were clearly ultra vires. The appellants were illegally sentenced to two years’ imprisonment with hard labour without the option of a fine. They have already served sentences of more than two months. I would substitute therefore for the two years’ imprisonment with hard labour a fine of 25.00 on count (1) or in default two months’ imprisonment with hard labour. Since the appellants have already served prison sentences of more than two months, I shall and do hereby order their release forthwith.
Now on counts (2) and (3), it is quite clear that apart from section 172 (1) of Act 29 under which the charges were laid describing the offences as misdemeanours, no penalty is prescribed for a prisoner convicted of a crime under section 172 (1) of Act 29. What then is the limitation on a court as to its sentencing capacity when a crime is generally described as a misdemeanour and no sentence is prescribed by law? Section 296 (4) of Act 30 as amended by Act 261., s. 5 provides an answer. It reads:
“Where a crime, not being a crime mentioned in subsection (5), is declared by any enactment to be a misdemeanour, and the punishment for the crime is not specified, a person convicted thereof shall be liable to imprisonment for a term not exceeding three, years.”
Since no penalty is prescribed for an offence under section 172 (1) of Act 29, it would seem to appear that the learned trial judge prima facie acted
[p.174] of [1975] 2 GLR 170
within his jurisdiction by imposing the sentence of two years’ imprisonment with hard labour on counts
(2) and (3). But the question is whether the learned trial circuit judge adverted to the trivial nature of the offence and also the youthful age of the appellants and the fact that they had hitherto been of clean record? I am inclined to think that he did not take these mitigating factors into consideration. There is a strong suspicion that he was unduly influenced by the illegal sentences which he passed on count (1) into passing the sentences on counts (2) and (3). I consider the sentences on those two counts to be highly excessive and I would vary them to conform with the sentences passed on count (1) that is to say, in lieu of the two years’ imprisonment with hard labour passed on counts (2) and (3), I shall and hereby reduce the sentences of the appellants by substituting a fine of 025.00 or two months’ imprisonment with hard labour on count (2). The same order applies to the third appellant on count (3).
Now it is clear from the proceedings that Bitrim Zebaot alias Gattah has not appealed against his sentence of two years’ imprisonment with hard labour on counts (1) and (2). The substantial legal point raised in this appeal is whether he not having appealed against his sentence, could have the benefit or success of the appeal of the three appellants against their sentences. I do not overlook the fact that his case is closely interlocked with that of the three appellants. He was charged jointly with them on counts (1) and (2). I do not see how the third appellant who faced a third count should get away while he who faced two counts should be kept for two years’ imprisonment with hard labour merely on ground that he has not appealed. I think that that would be a gross injustice and the omission to appeal should be treated as a mere technicality. Thus in the case of Boateng v. The State [1964] G.L.R. 602 where a similar issue arose the Supreme Court held (as stated in the headnote at p. 603 that):
“Although the first defendant did not appeal, her case was interlocked with that of the appellant, particularly since the appeal was allowed because in the judgment of the court the offence of abortion was not proved. The fact that the first defendant had not appealed was in these circumstances a mere technicality and justice made it incumbent to quash her conviction and the order binding her over.”
I think that in this case justice makes it incumbent on me to award the same sentence as I have done in the case of the three appellants. I substitute for two years’ imprisonment with hard labour a fine of 025.00 or two months’ imprisonment with hard labour on counts (1) and (2). I therefore order his immediate release. Fines and sentences not cumulative but concurrent. Court below to carry out.
DECISION
Appeal against sentence allowed.
S.Y.B.-B.
