BAIDEN AND ANOTHER v. THE REPUBLIC [1972] 2 GLR 174
HIGH COURT, SEKONDI
Date: 26 JUNE 1972
BEFORE: COUSSEY J.
CASES REFERRED TO
(1) Fynn v. The Republic [1971] 2 G.L.R. 433. (2) State v. Halm, Court of Appeal (Full Bench) 7 August 1969, unreported; digested in (1969) C.C. 155.
(3) State v. Hawa Banda, High Court, Kumasi, 26 July 1965, unreported. [p.175] of [1972] 2 GLR 174
(4) R. v. Gregory (1928) 20 Cr.App.R. 185, C.C.A.
(5) R. v. Gott (1921) 16 Cr.App.R. 86, C.C.A.
(6) R. v. Mensah and Abutakyi (1957) 2 W.A.L.R. 129, W.A.C.A.
NATURE OF PROCEEDINGS
APPLICATIONS for bail pending appeal. The facts are fully stated in the ruling.
COUNSEL
Forson with him Annancy for the applicants.
Ahlijah, Senior State Attorney, for the respondent.
JUDGMENT OF COUSSEY J.
The application is for bail pending appeal. The applicants were convicted for perjury contrary to section 152 (1) of the Criminal Procedure Code, 1960 (Act 30), on 14 June 1972 by me sitting at the High Court, Sekondi. The circumstances leading to their conviction were that Moses K. Baiden procured Kwame Essel and both agreed to fabricate evidence with the intent to pervert the cause of justice in Civil Suit No. 44/71 between John Lefred Ansah and Moses K. Baiden. It is worthy of note that if the applicants had succeeded in their fabrication, and if Moses K. Baiden had won in that civil case, he would have been entitled to a total sum of about ¢42,000.00 in damages. This amount would have been obtained by fraud on the court.
The High Court is vested with jurisdiction to grant bail. The exercise of the jurisdiction is governed by certain considerations which I shall refer to later. It is necessary to state that bail pending appeal is not granted as a matter of course. It is material that before such an application is filed and argued worthy consideration is given to the request; because on the application succeeding, a convicted prisoner is allowed to stay out of prison until his appeal is heard. If the appeal fails, as pointed out by my brother Taylor J. in Fynn v. The Republic [1971] 2 G.L.R. 433 at p. 437, it has become the practice that the prisoner is not sent back to prison, but perhaps his sentence is reduced or he is fined: see State v. Halm, Court of Appeal (Full Bench) 7 August 1969, unreported; digested in (1969) C.C. 155 and State v. Hawa Banda, High Court, Kumasi, 26 July 1965, unreported. I have personally held the view that fines as punishments in certain cases entitle the rich man to buy the right to break the law. Where the offence of which a person is convicted is one unbecoming of the person, I have maintained that a short term of imprisonment in the circumstances could be an adequate deterrent punishment. I do not support the legislature in providing an alternative of a fine for the offence of perjury, I am more inclined to prefer the provision in section 440 (1) of the Criminal Procedure Code of Ceylon which in effect provides that if any person gives false evidence in any judicial proceedings he shall lawfully be sentenced summarily to imprisonment either simple or rigorous, for any period not exceeding three months. It is against such background that I am chary in readily granting bail pending appeal unless as expressed by the English Court [p.176] of [1972] 2 GLR 174 of Criminal Appeal when granting bail in the case of R. v. Gregory (1928) 20 Cr.App.R. 185, C.C.A. “There are special and peculiar circumstances in [the] case, and it is not to be regarded as a precedent.” The Lord Chief Justice in R. v. Gott (1921) 16 Cr.App.R. 86 at p. 87, C.C.A. said that it was dangerous for convicts to be on bail. However, there are certain known principles in Ghana on which the application for bail will be considered. In passing I would like to state that half of counsel’s submission turned on granting bail on humanitarian grounds. Perjury is immoral. Considering that the haul of ¢42,000.00 is enormous, I would say that the situation is not venial.
The present application is founded on the Courts Act, 1971 (Act 372), s. 26 (5) and (6). When my brother Taylor J. ruled in the case of Fynn v. The Republic (supra) the application then was brought under section 332 (1) of the Criminal Procedure Code, 1960 (Act 30), which is now obsolete. I will, therefore, consider the propriety of this application under section 26 (5) and (6) of Act 372, and if I find it desirable I will apply the conditions for bail. Section 26 (5) and (6) are as follows: “(5) The Court before which a person is convicted or the Court to which an appeal is made may if it thinks fit on the application of an appellant admit the appellant to bail pending the determination of his appeal. (6) Where an appeal has been lodged by a person entitled to appeal, the Court to which the appeal is made may, pending the hearing and for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended”. Upon the conviction of the appellants on 14 June 1972, Mr. Gaisie made a passionate appeal for an order for an alternative of a fine to be imposed. This was refused by me. Then Mr. Hughes asked for bail for the applicants pending appeal. The court intimated that if papers were filed the application would be considered. The applicants, therefore, filed an appeal against their convictions to the Court of Appeal and have brought this application before me for bail. I would say that on my indicating that papers should be filed for the consideration of the application for bail pending appeal, the ball was thrown back for counsel to consider the form of the application and the choice of forum. It is my submission that once appeal papers have been lodged by the appellants who are entitled to appeal, the court to which the appeal is made may, if it thinks fit, admit the appellant to bail pending the determination of his appeal, and, for reasons to be recorded, order that the execution of the sentence be suspended: see R. v. Mensah and Abutakyi (1957) 2 W.A.L.R. 129, W.A.C.A. My court is not the appellate court. The court before which a person is convicted, it is my submission, may admit an appellant to bail when he is convicted by it and decides to appeal against conviction but the appellant has not lodged his appeal. I am also of the view that where a district or circuit court convicts and [p.177] of [1972] 2 GLR 174 commits to the High Court for sentencing, the High Court in the circumstances may admit to bail pending appeal against conviction. It is, therefore, my considered opinion that once the appellants have lodged their appeal, I have no mandate to entertain the application for bail. It will be of some academic interest to consider whether once a person is convicted and sentenced by a court that same court can admit to bail pending appeal before the appeal is lodged. Section 26 (5) of Act 372 does not make reference to what should happen to a person when he is sentenced. A leaf from Archbold, Pleading, Evidence and Practice in Criminal Cases (35th ed.) at p. 299 may be a guiding factor.
It is there stated that “where sentence of imprisonment has been passed at quarter sessions, there is no power in that Court to admit to bail pending an appeal to the Court of Criminal Appeal.” I will implicitly support this view and apply it to the interpretation of section 26 (5) of Act 372 and state that inasmuch as the legislature uses the word “convicted” only without mention of “sentenced,” I will hold that once a person is convicted and sentenced, he cannot apply to the court which sentenced him to grant him bail pending appeal against his conviction only. It will be farcical to do so.
In any case, I think this application for bail before me failed from its inception and it ought not to have been brought. The application for bail is refused.
DECISION
Application refused.
S. O.
