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HIGH COURT, TAMALE |
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| Date: | 17 SEPTEMBER 1975 |
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HAYFRON AG J |
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| Criminal law and procedure—Sentencing—Convict on licence—Convict on licence convicted anal sentenced for another offence whilst on licence—Trial magistrate ordering service of unexpired term of previous conviction—Pre-requisites to such an order—Criminal Procedure Code, I960 (Act 30), s. 396. | |
| COUNSEL | |
| Appellant in person. | |
| J. O. Amui, Principal State Attorney, for the respondent. | |
| [p.448] of [1975] 2 GLR 447 | |
JUDGMENT OF HAYFRON AG. J.
The appellant was a convict on licence. Whilst on release on licence he was convicted for receiving and sentenced to a term of twenty months imprisonment. The magistrate then revoked the convict’s licence and ordered the appellant to serve the residue of the unexpired term of the previous sentence. It is against this order that the appellant complains.
Section 396 of the Criminal Procedure Code, 1960 (Act 30), which the magistrate purported to revoke provides that the magistrate should recommit the convict on licence to serve the residue of the unexpired term only if from facts proved before him it appears that the convict on licence was getting his livelihood by dishonest means or was habitually associating with thieves or persons of notoriously bad character. It does not appear to me that the power can be invoked when there has been an isolated case of receiving from a person who is himself a first offender. Neither of the two pre-conditions was satisfied and therefore the order made was ultra vires the magistrate and ought to be set aside.
DECISION
I therefore allow the appeal and set aside the order appealed from.
D. R. K. S.
