Division: HIGH COURT, SUNYANI
Date: 16 JANUARY 1973
Before: OSEI-HWERE J
CASES REFERRED TO
(1) Fulani v. The Republic, High Court, Sekondi, 12 September 1968, unreported; digested in (1969) C.C. 4.
(2) Etienne alias Christiana v. The Republic, High Court, Accra, 7 March 1969, unreported; digested in (1969) C.C. 92.
(3) Republic v. District Magistrate, Asamankese; Ex parte Ide Zabramah [1972] 1 G.LR. 398.
(4) Doe v. The Republic [1971] 1 G.L.R. 235.
(5) R. v. Irving [1920] 15 Cr.App.R. 61, C.C.A.
(6) R. v. Rogoff [1924] 18 Cr.App.R. 1, C.C.A.
(7) R. v. Gilbert [1921] 16 Cr.App.R. 34, C.C.A.
(8) R. v. Josephson (1914) 110 L.T. 512; 30 T.L.R. 243; 24 Cox C.C. 128, C.C.A.
(9) R. v. Campbell; Ex parte Moussa (1921) 2 K.B. 473; 26 Cox C.C. 747.
NATURE OF PROCEEDING
APPEAL against an order made by a district court recommending the deportation of the appellants being aliens after conviction and sentence to a term of imprisonment. The facts are sufficiently stated in the judgment.
COUNSEL
Dr. Ankamah for the appellants.
R. Kyei, Assistant State Attorney, for the respondent.
JUDGMENT OF OSEI-HWERE J
The appellants were arraigned before the District Court Grade I, Wenchi, on a charge of “Breach of Aliens Compliance Order” [sic.] contrary to sections 2 (2) and 25 (1) (d) of the Aliens Act, 1963 (Act 160). Section 2 subsection (2) of the Aliens Act, 1963 (Act 160), provides that, “Where a person enters Ghana at a place to which an immigration officer is assigned, he shall, on his arrival, appear before the immigration officer at that place. Whilst section 25 subsection (1) (d)
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of the same Act also stipulates that, “(1) Any person who does any of the following— . . . (d) disobeys or disregards any obligation or direction imposed by or under the provisions of this Act . . . shall be guilty of an offence . . .” The appellants pleaded guilty to the charge and they were convicted and sentenced to a term of one month’s imprisonment with hard labour each. In addition the magistrate recommended that the appellants be deported from Ghana after serving the sentence.
The recorded facts in support o the charge are that the police, upon information, visited Nkonsia (a village within the Wenchi district) where they found the appellants loitering about. They were interrogated but they could not give any reasonable explanation for their presence there. They could not produce their residence permits as they said they had none. All the appellants admitted before the trial court that they were aliens from Mali. The first appellant said that he had been in Ghana for about six months at the time of his arrest and that even though he had no passport he had travel documents at Kumasi. Both the second and the third appellants had no documents whatsoever. Before this court it was urged on their behalf that they all have now obtained their residence permits. I had occasion to examine the documents they now produced and I found out that they were identity cards issued by their embassy to them on which the residence permits had been endorsed. It became clear to me that as they had no travel documents whatsoever when they entered Ghana they could not have entered legally and they are only lucky that they were not charged under section 2A of Act 160, inserted by the Aliens (Amendment) Act, 1965 (Act 265), for illegal entry with its minimum punishment of ten years’ imprisonment with hard labour.
The appellants appeal against the order of the trial magistrate and the only ground filed is that the magistrate erred in ordering their deportation. In supporting this ground counsel for the appellants took the not quite unfamiliar stand that by section 25 (2) of Act 160, the punishment for the offence with which the appellants were charged is “a fine of fifty pounds (0100.00) or to imprisonment for six months, or to both.”. Inasmuch as there is an option of a fine, so argued counsel, the court cannot recommend deportation. Counsel arrived at this conclusion by seeking umbrage under section 12 (1) (a) and (2) of Act 160. The relevant provisions are as follows:
“12. (1) An alien is liable to deportation –
(a). if a Court recommendation for his deportation is effective under the following subsection; or . . .
(2) A court recommendation for the deportation of alien shall be effective for the purposes of paragraph (a) of the preceding subsection if it was made by a court on conviction of an offence for which the court had power to impose a sentence of imprisonment
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without the option of a fine, and—
(a) on appeal against conviction or sentence the appellate court concurred in the recommendation, or
(b) no such appeal was brought within the time allowed for appeals, but –
(i) the recommendation was made by the High Court, or
(ii) the recommendation was made by an inferior court and was concurred in by the Chief Justice.”
Neatly put, learned counsel for the appellants was saying that the only occasion the court can recommend deportation is where the penalty imposed by law for the particular offence is imprisonment alone. This is because of the magic of the expression “power to impose a sentence of imprisonment without the option of a fine” contained in section 12 (2) above. If the liability imposed in respect of an offence is imprisonment or a fine then the court will, as here, be fettered in recommending deportation.
This brings into perspective the outstanding matter for determination, namely the proper interpretation of section 12 (2) of Act 160. Can the court make a recommendation for the deportation of a convicted alien only when the punishment provided by the law is imprisonment alone or is it when the court, in exercising its power of punishment imposes a sentence of imprisonment even though it could have imposed the sentence of a fine? It is a matter of great regret that in spite of the simplicity of language of section 12 (2) of Act 160, its interpretation has not only proved delusive but it has disarrayed the judicial ranks in recent times to the point of dissension. In Fulani v. The Republic, High Court, Sekondi, 12 September 1968, unreported; digested in (1969) C.C. 4, Edusei J. laid the seed of his interpretation of section 12 (2) of Act 160 when he held that the correct interpretation to be given to that subsection is that if the court on convicting an alien sentences him to a term of imprisonment but does not give the convicted person an option to pay a fine, even though the court has power to do so, a recommendation for deportation is valid. In Etienne alias Christiana v. The Republic, High Court, Accra, 7 March 1969, unreported; digested in (1969) C.C. 92, Edward Wiredu J. took the contrary view where he said:
“I am of the view therefore that any order for deportation of a person found guilty of an offence where the court’s power is limited by an option of a fine will be wrong … I think this is the true spirit of the sections [i.e. 12 (2) and 25 (2)] for it will be ridiculous to see that an alien who is found guilty of such a minor offence of common assault where the court has an option of a fine, to choose to imprison the offender in order to justify an order for his deportation.”
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Edward Wiredu J. has not been the lone voice in the wilderness for he has found another protagonist in his school of thought in the person of Quashie-Sam J. In Republic v. District Magistrate, Asamankese; Ex parte Ide Zabramah [1972] 1 G.L.R. 398 Quashie-Sam J. held as stated in the headnote at p. 400 that:
“(3) Where a prerequisite for the exercise of the court’s jurisdiction is wanting, any purported exercise of jurisdiction is an act in excess of jurisdiction against which certiorari would lie. Under section 12 (2) of Act 160, a court can recommend an alien for deportation only where the court has convicted the alien for an offence under which the court has power to impose a sentence of imprisonment without the option of a fine. The ‘power to impose a sentence of imprisonment without the option of a fine’ within the context of section 12 (2) of Act 160, means that the court has power to impose a sentence of imprisonment only.”
Quashie-Sam J. categorically refused to follow Fulani v. The Republic (supra). It is quite obvious, in reading the judgment in Ide Zabramah’s case, that the learned judge was not referred to the later decision of Edusei J. In Doe v. The Republic [1971] 1 G.L.R. 235 which might have been of some persuasive effect on him. In applying Fulani v. The Republic in this later decision Edusei J. seized the opportunity to give “careful and analytical consideration” to the interpretation of the word “option” within the context of section 12 (2) of Act 160. I find myself in complete harmony with the lucidity of his reasoning which compelled him to adopt the interpretation he put on section 12 (2) of Act 160 in Fulani v. The Republic.
It seems clear to me that what is to be considered is the quality of the word “option” within the context of the subsection under reference. The word “option” here is not employed as a term of art and it must therefore be given its widest interpretation which, as defined in The Shorter Oxford Dictionary (3rd ed.), means ‘The action of choosing; choice …. Power or liberty of choosing; freedom of choice …’ should the word “option” here be applied to the exercise of the power of the court in inflicting the punishment or must it be related to the penalty imposed by law for that particular offence? I think that the word “option” clearly relates to the exercise of the court’s power to punish for the particular offence. When section 25 (2) of Act 160 lays down that “any person guilty of an offence against this Act shall be liable to a fine of fifty pounds (or 0100.00) or to imprisonment for six months, or to both” it does not appear to me that the subsection is laying down “optional” punishments but that it is laying down alternative punishments. It is in the exercise of the power where the element of “option” is resorted to. It will, therefore, be illusive to suppose that because the law imposes the punishment of imprisonment and at the same time imposes the alternative punishment of a fine then the punishments become “optional.” But what then would be the answer if the trial magistrate in
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addition to the imprisonment had also fined the appellants as he was entitled so to do? Section 25 (2) clearly sets out the cognate punishments of imprisonment, a fine and ‘imprisonment and a fine”. Clearly if the magistrate had inflicted the third cognate punishment of imprisonment together with the fine then it can not surely be said that there has been any “option” between the sentence of imprisonment and the fine.
If the expression ‘power to impose a sentence of imprisonment without the option of a fine’ were interpreted to mean power to impose the sentence of imprisonment where the penalty imposed by law for that offence is limited to imprisonment only then it will lead to absurd results. The offences for which the law provides the penalty of imprisonment only are very isolated. Barring capital offences for which the penalty is death the whole gamut of our criminal law categorises criminal offences into first and second degree felonies and misdemeanours. Even though felonies and misdemeanours are punishable under section 296 of the Criminal Procedure Code, 1960 (Act 30), by imprisonment yet the severity of these provisions have been tempered by section 297 which gives the court discretion to sentence to a fine in addition to or in lieu of the punishment of imprisonment except where the sentence for the offence is fixed by law. If the power to recommend deportation were limited to offences where the penalty provided is imprisonment only then it means that whatever be the proclivities of an alien’s recidivism, the courts will be fettered in recommending his deportation as almost all the grave crimes known to our law can carry the alternative punishment of a fine.
A look at the British practice may, perhaps, help resolve any lingering doubts as to the proper interpretation of our section 12 (2) of Act 160. Paragraph 12 (6) (a), s. 3 of the British Aliens Order, 1920, made the analogous provision that the Secretary of State may make a deportation order if any court (including a court of summary jurisdiction) certifies that the alien has been convicted of any “offence for which the Court has power to impose imprisonment without the option of a fine.” In none of the cases brought up before the Court of Criminal Appeal challenging the recommendation for deportation was the point taken that because the offences with which the appellants were charged could also entail a fine the recommendation was therefore irregular. For instance in R. v. Irving (1920) 15 Cr.App.R. 61, C.C.A. the appellant was convicted and sentenced to three months’ imprisonment with hard labour for larceny from a dwelling-house and recommended for expulsion, she being an alien. The court allowed her appeal against the recommendation for deportation purely on the humanitarian ground that it would be an aggravation of her sentence to send her back to Germany with the prevailing war conditions in Germany. In R. v. Rogoff (1924) 18 Cr.App.R. 1, C.C.A. the appellant was convicted and sentenced to fifteen months’
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imprisonment with hard labour for obtaining money by false pretences and he was recommended for expulsion. His recommendation for expulsion was set aside on the grounds, inter alia, that his family was domiciled in Britain and that he had volunteered for the British Army. In R. v. Gilbert (1921) 16 Cr.App.R. 34, C.C.A. the appellant was also sentenced to twelve months imprisonment with hard labour and recommended for deportation. His recommendation for deportation was quashed on the grounds that he had lived many years in Britain and that three of his sons had served in the war. All the offences above with which the appellants were charged were offences where the court had discretion to impose a fine.
Similar provisions, as in paragraph 12 (6) (a), s. 3 of the Aliens Order, 1920, are contained in section 3 of the Aliens Act, 1905 (5 Edw. 7, c. 13). That section provides that the Secretary of State may make an expulsion order in respect of an alien if it is certified to him by any court (including a court of summary jurisdiction) that the alien has been convicted by that court of any felony or misdemeanour, or other offence for which the court has power to impose imprisonment without the option of a fine, or of an offence under paragraph 22 or 23 of section 381 of the Burgh Police (Scotland) Act, 1892, or of an offence as a prostitute under section 72 of the Towns Improvement (Ireland) Act, 1854, or paragraph 11 of section 54 of the Metropolitan Police Act, 1839, and that the court recommended that an expulsion order should be made in his case either in addition to or in lieu of his sentence. The relevant provisions under the 1892 Act, the 1854 Act and the 1839 Act impose fines only. In R. v. Josephson (1914) 24 Cox C.C. 128, C.C.A. the appellant was arraigned before the court on an indictment containing counts charging indecent and also common assault. The appellant pleaded guilty to the common assault which the judge accepted and passed a sentence of twelve months’ imprisonment with hard labour and recommended his expulsion. On appeal, it was held that the question of recommendation for expulsion was a matter for the Home Secretary’s discretion under section 3 of the Aliens Act, 1905, which, on the facts, ought not to be disturbed. The sentence of twelve months’ imprisonment with hard labour being the maximum sentence which could be imposed for a common assault, to which the appellant had pleaded guilty, was, however, found too severe and reduced to three months’ imprisonment with hard labour. It is, therefore, not without high judicial precedent that the court would choose to imprison an alien for common assault in order to justify the recommendation of expulsion. Edward Wiredu J.’s lament in Etienne alias Christiana v. The Republic (supra), with all due respect, must be set at rest. An appellate court, if resorted to, may, in its beneficence and in deserving cases refuse to concur in the recommendation.
Lastly, in R. v. Campbell; Ex parte Moussa [1921] 2 K.B. 473, the applicant was charged under paragraph 6 (1) (c) of the Aliens Order,
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1920, for that being an alien he had failed to notify to the registration officer an intended change of residence. He was convicted and sentenced to a month’s imprisonment, and recommended for deportation. The question that came to be decided by the King’s Bench Division, on a rule nisi obtained for mandamus, was whether or not the appellant had a right to appeal to quarter sessions against his conviction where his plea of guilty was ambiguous. This case, to my mind, is pertinent to the determination of this appeal because of the penalty for contravening paragraph 6(1) (c) of he Aliens Order, 1920, which is a fine not exceeding £100 or imprisonment for a term not exceeding six months. Even though the penalty did not impose imprisonment only the trial court inflicted a sentence of imprisonment and recommended expulsion obviously in accordance with the provisions of paragraph 12(6)(a), s.3 of the Aliens Order, 1920. There was no question here of the court having acted in excess of its jurisdiction by making the recommendation. I am satisfied, from all the foregoing reasons, that the expression “power to impose a sentence of imprisonment without the option of a fine,” within the context of section 12(2) of Act 160 means the exercise of the power of the court to impose a term of imprisonment without choosing to exercise its power of imposing a fine. The appellants were therefore properly recommended for expulsion and I concur in that recommendation.
It only remains for me to remark that there is the urgent hope that the confusion unleashed by these conflicting decisions will be settled by the Court of Appeal in the foreseeable future. In our system of jurisprudence where the hierarchy of the courts is shackled by the domineering role of precedent the conflicting interpretation of the simple words of an “active” statute is bound to cause great havoc in the “inferior” courts.
DECISION
Appeal dismissed.
S.Y.B.-B.
