HIGH COURT, HO
Date: 28 MAY 1974
ANDOH J
CASES REFERRED TO
(1) Aikins alias Mensah v. The State [1966] G.L.R. 170, S.C.
(2) R. v. Ingleson [1915] 1 K.B. 512; 84 L.J.K.B. 280; 112 L.T. 313; 78 J.P.J. 521; 24 Cox C.C. 527; 11 Cr.App.R. 21, C.C.A.
(3) R. v. Hussey (1924) 18 Cr.App.R. 121, C.C.A.
(4) R. v. Baker (1912) 76 J.P.J. 184; 28 T.L.R. 363; 7 Cr.App.R. 217, C.C.A.
(5) R. v. Brennan (1941) 28 Cr.App.R. 41, C.C.A.
(6) Ofei v. The State [1965] G.L.R. 680, S.C.
(7) R. v. Muambo (1941) 7 W.A.C.A. 27.
(8) R. v. Golathan (1915) 84 L.J.K.B. 758; 112 L.T. 1048; 79 J.P. 270; 31 T.L.R. 117; 24 Cox C.C. 704; 11 Cr.App.R. 79, C.C.A.
(9) R. v. Field (1943) 29 Cr.App.R. 151, C.C.A.
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(10) R. v. Sbarra (1918) 87 L.J.K.B. 1003; 119 L.T. 89; 82 J.P. 171; 34 T.L.R. 321; 26 Cox C.C. 305; 13 Cr.App.R. 118, C.C.A.
(11) R. v. Fuschillo [1940] 2 All E.R. 489; 27 Cr.App.R. 193, C.C.A.
(12) R. v. Amissah (1946) 12 W.A.C.A. 28.
(13) State v. Andoh (Practice Note) [1962] 2 G.L.R. 106, S.C.
(14) R. v. Abisa Grunshie (1955) 1 W.A.L.R. 36, W.A.C.A.
(15) R. v. Wunuah (1957) 3 W.A.L.R. 303, C.A.
(16) R. v. Ansere (1958) 3 W.A.L.R. 385, C.A.
(17) State v. Dogbe, High Court, 27 November 1964, unreported; digested in (1965) C.C. 18.
(18) R. v. Yamba, Criminal Appeal, No. 62/59, unreported.
(19) R. v. Murtagh and kennedy [1955] Crim.L.R. 315; 39 Cr.App.R. 72, C.C.A.
(20) Akakpo v. The Republic (Practice Note) [1974] 1 G.L.R. 65.
(21) Republic v. Watara [1974] 1 G.L.R. 195, C.A.
(22) Amoah v. The State, Court of Appeal, 14 November 1966, unreported; digested in (1967) C.C. 29.
(23) Armstrong v. Strain [1951] 1 T.L.R. 856.
(24) Akpawey v. The State [1965] G.L.R. 661, S.C.
(25) Commissioner of Police v. Banson, Supreme Court, 10 October 1964, unreported.
(26) Commissioner of Police v. Asante, Supreme Court, 26 October 1964, unreported.
(27) Asamoah v. The State, Supreme Court, 10 November 1964, unreported.
(28) Cobbina v. The State, Supreme Court, 24 November 1965, unreported.
NATURE OF PROCEEDINGS
RULING on jurisdiction and duties of a sentencing court to which an accused has been committed by an inferior court for sentencing under either section 178 (2) of Act 30 or section 3 (2) of Act 192. The facts are sufficiently set out in the ruling.
COUNSEL
N. A. Kotey, Assistant State Attorney, for the Republic.
Accused in person.
JUDGMENT OF ANDOH J
The accused in this case was arraigned before the District Court Grade I, Keta, on a charge of dishonestly receiving. He pleaded guilty to the charge. The accused then gave some explanation which had the effect either expressly or by necessary implication of neutralising or negativing the commission of the crime for which he was charged. Instead of the learned trial magistrate entering a plea of “not guilty” on his behalf as he was in duty bound so to do as the explanation made the plea ambiguous or otherwise inconsistent with the plea of “guilty,” he accepted the plea of guilty” and convicted the accused allegedly on his own plea. Thereafter, on learning of his shocking past, the learned magistrate then committed the accused for sentence to the High Court under sections 1 and 3 of the Punishment of Habitual Criminals Act, 1963 (Act 192). Under such
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circumstances what are the duties of the sentencing court? The questions which come to mind are:
(i) Whether the magistrate was right in accepting the plea of “guilty” and convicting the accused thereon despite the explanation which the accused offered and which the magistrate recorded in the proceedings? In other words was the magistrate under a legal obligation to enter a plea of “not guilty” on behalf of the accused in view of his explanation?
(ii) Secondly whether this court should also ignore the explanation on record given by the accused without reviewing the case and accept the plea and conviction as they stand and pass sentence after conducting an independent inquiry as to whether the accused is a suitable person to undergo a sentence of preventive or productive hard labour for the protection of the public as prescribed by the Act 192? See Aikins alias Mensah v. The State [1966] G.L.R. 170, S.C.
(iii) The third question which arises is whether assuming that the court is not bound to pass sentence, but that it has an inherent jurisdiction to review the case as a whole, can it either acquit the accused even though the case is not on appeal before the sentencing court? Or enter a plea of “not guilty” by curing the fundamental defect on the face of the record?
(iv) The last question is whether in the particular circumstances of this case assuming that the court has the power to review the whole of the evidence before it as posed under (iii) above, ought it to send the case back to be tried de novo by entering a plea of “not guilty” or acquit and discharge the accused and if the former is the better course to take, whether the case should be heard by the same magistrate or court differently constituted?
In attempting to answer the problem posed in the first issue above, I must state this from the outset. I take it to be clearly settled that where an accused person pleads “guilty” to a crime but adds words in explanation thereto, which expressly or by necessary implication negative the commission of the crime charged or any of the elements collectively constituting the crime, the tribunal, be it the High Court or an inferior court is under a legal obligation to enter a plea of “not guilty” on behalf of the accused to enable the case to be contested on its merits. It makes no difference whether or not the accused is even represented by an advocate before the tribunal: see section 199 (4) of the Criminal Procedure Code, 1960 (Act 30), which provides as follows:
“(4) Where the accused pleads guilty but adds words indicating that he may have a defence or so indicates in answer to the Court, the Court shall enter a plea of not guilty and record it as having been entered by order of the Court.”
Any contravention of this principle would lead to an order being made by an appellate or a sentencing court to which the accused is committed for a trial de novo or in some cases the appellate or sentencing court may
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even quash the conviction and order an acquittal and discharge of the accused without ordering a new trial at all: see R. v. Ingleson [1915] 1 K.B. 512, C.C.A., R. v. Hussey (1924) 18 Cr.App.R. 121, C.C.A., R. v. Baker (1912) 7 Cr.App.R. 217, C.C.A., R. v. Brennan (1941) 28 Cr.App.R. 41, C.C.A., Ofei v. The State [1965] G.L.R. 680, S.C., R. v. Muambo (1941) 7 W.A.C.A. 27. R. v. Golathan (1915) 11 Cr.App.R. 79, C.C.A. and R. v. Field (1943) 29 Cr.App.R. 151, C.C.A.
For this reason, to avoid delay in the administration of the criminal law and procedure which delay invariably leads to a denial of justice, it is imperative that ample care should be taken by the trial court to see that there should be no ambiguity in the plea of “guilty.” The trial court is to make sure that the plea is not imperfect or unfinished; for in law, a court ought not to take the accused to have admitted his guilt unless he does so in unmistakable terms: see sections 171 and 199 (4) of Act 30 and R. v. Muambo (supra), R. v. Golathan (supra), R. v. Field (supra) and Ofei v. The State (supra).
When the accused in this case pleaded “guilty” to the charge of dishonestly receiving with an explanation, the learned district magistrate commendably recorded the explanation in the record of proceedings as follows:
“On 24 January 1974 at 6.45 a.m. I was at Aflao border beat 4 when a young girl carrying a basketful of articles came. When she arrived at the spot where I was, she asked me to help her put the articles on a table, and said she was going to call the owner to come. I was there when the girl left. And the border guards challenged me. I explained that the girl who brought the things had just left but the border guards did not believe me and held me responsible for the articles. The border guards held me and went in search of the girl but could not get her. I was brought to the border police station where I was transferred to the border regular police who took me to the spot but the owner could not be seen. I was charged before the court.”
After this explanation quoted supra, the magistrate unfortunately entered into an unwarranted dialogue with the accused as follows:
“By court: Had you seen the girl before?
Accused: No.
By court: What did the girl tell you?
Accused: She said I should help her put the things on the table and that she was going to bring the owner of the things.
By court: And that you were to watch the things for her?
Accused: She did not ask me to watch the things for her. The border guards did not see the girl.”
From the explanation given coupled with this dialogue, the learned magistrate arrived at a conclusion as follows:
“By court: Accused’s explanation is not true because the alleged girl could not have left the articles as the accused states, without
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anyone to take charge of same knowing that the articles were expensive including a sewing machine. If the accused on the other hand was left in charge, it would be a strange incident that he was trusted by a stranger. Assuming that the accused’s story is true and that the girl left the articles without anyone in charge, it is hard to believe how the accused was connected with the articles and arrested. The accused has pleaded ‘guilty’ and his explanation is unreasonable. He is convicted on the charge.”
After the conviction, the prosecutor gave the antecedents of the accused as follows:
“Record: The accused has ten convictions for stealing, one conviction for unlawful possession, one conviction for escaping from lawful custody, two convictions for being on premises for unlawful purpose, one conviction for house breaking, one conviction for failing to report as a convict on licence, one conviction for conspiracy to steal last sentence ten years’ imprisonment with hard labour in Accra on 19 January 1968 for conspiracy to steal and stealing.”
The events which followed thereafter can best be quoted hereunder:
“By court: What does the accused say to his record as read to the court?
Accused: I cannot challenge the law and the record but some of the sentences were concurrent.”
Now with such an outrageous record to the credit of the accused, the learned magistrate comfortably committed the accused under the Punishment of Habitual Criminals Act, 1963 (Act 192), ss. 1 and 3 to the High Court for sentence. But there is no doubt that if the conviction itself is bad in law then the basis for his committal on ground of his antencedents would equally be bad. It is trite learning that where an accused person is charged with the crime of dishonestly receiving unless the doctrine of recent possession can be invoked, the burden lies on the prosecution throughout to prove beyond all reasonable doubt the following elements:
(i) That the subject-matter of the prosecution was stolen. Unless the prosecution lays the property in a particular person, there is no need to prove that the property was stolen from a particular person. The fact that the property had been stolen can be inferred from the particular circumstances of the case: see R. v. Sbarra (1918) 82 J.P. 171, C.C.A. and R.v. Fuschillo [1940] 2 All E.R. 489, C.C.A.
(ii) Again it is the duty of the prosecution to prove affirmatively that the accused was either in physical or constructive possession of the subject-matter of the prosecution. (For the definition of constructive possession: see R. v. Amissah (1946) 12 W.A.C.A. 28.)
(iii) it must also be proved by the prosecution that the accused knew or ought to have known from the particular circumstances of the case that the goods had been stolen. The intent or guilty knowledge must be existing at the time the accused came to be in possession of the goods but not subsequently: see State v. Andoh (Practice Note) [1962] 2 G.L.R. 106, S.C.
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If these three essential elements, are the ingredients constituting the crime of dishonestly receiving, then can it be said in the light of the explanation stated hereinbefore by the accused together with his answers to the questions put to him by the learned district magistrate that the accused had unreservedly and in unmistakable terms pleaded guilty to the crime charged or could he be taken to have admitted or confessed to the crime of dishonestly receiving? From the explanation given by the accused together with his answers as a whole, it is not unreasonable to conclude that the accused was not at any point of time in physical or constructive possession of the goods. It cannot be said either that assuming that he was even found in physical possession of the goods, he knew or ought to have known from the surrounding circumstances of the case that the goods were stolen.
In my humble opinion, the learned trial magistrate erred when he held, in the absence of evidence, that the accused’s explanation as quoted above was not true or reasonable. It is common knowledge that it is not enough for a trial court to reject the defence raised as untrue and to found a conviction thereon. The law is that even if the defence is rejected as untrue, the trial court should further consider whether short of believing the story of the accused, it could nevertheless be reasonably probable: see R. v. Abisa Grunshie (1955) 1 W.A.L.R. 36, W.A.C.A., R. v. Wunuah (1957) 3 W.A.L.R. 303, C.A., R. v. Ansere (1958) 3 W.A.L.R. 385, C.A., State v. Dogbe, High Court, 27 November 1964, unreported; digested in (1965) C.C. 18, R. v. Yamba, Criminal Appeal No. 62/59, unreported and R. v. Murtagh and Kennedy (1955) 59 Cr.App.R. 72, C.C.A.
I am firmly of the opinion that in view of the explanation offered by the accused, the learned trial magistrate erred in accepting the plea of “guilty” with its resultant conviction. He was bound especially so as the accused was not represented by an advocate to have entered a plea of “not guilty” on his behalf to enable the case to be contested on its merits: see section 199 (4) of Act 30. Admittedly Keta District is heavy with many summary criminal cases and magistrates are urged to clear their cases with expedition but that cannot be an excuse for the magistrate in construing the explanation offered by the accused as an unqualified plea of “guilty” and convicting him on it.
Now on the next issue posed, I do not think that I am bound in the face of the explanation given by the accused to accept the plea of “guilty” and the conviction thereon recorded by the learned magistrate against the accused. On the contrary not only is it in the interest of justice that I should ignore and reject the conviction but also common sense dictates that this should be the case. By section 199 (4) of Act 30 the magistrate was enjoined by law to have entered a plea of “not guilty.” It is conceded that this case is not before me on appeal. It has been committed to this court by the learned magistrate in pursuance of the Punishment of Habitual Criminals Act, 1963 (Act 192), to pass sentence. But does it mean that this court should assume that the conviction of the learned magistrate is right and therefore the court is incompetent to test and or review on the whole evidence, the legality of the conviction in the exercise of its inherent jurisdiction? Seriously, I hold the view that even as the sentencing court and not as an appellate court, it is the responsibility of any sentencing court be it an inferior court or a superior court as a condition precedent in passing sentence when a case has been committed to it on conviction by a district magistrate to make sure of the legality of the conviction first before awarding an enhanced sentence. It is this firm conviction that I hold which urged me to issue the practice note in Akakpo v. The Republic [1974] 1 G.L.R. 65 at p. 66. In that case I said:
“Again when the previous convictions are proved strictly or admitted, it is the duty of the learned circuit judge to ascertain whether the judgment of the district magistrate is supported by the evidence adduced before the court. If not, he should acquit the accused himself. It is not the duty of the learned judge to pass sentence without making sure that the conviction is right according to the facts and evidence before the court. The committal by the district court to the circuit court for sentence does not per se, mean that the judgment of the court below is right and therefore the learned circuit judge should endorse it by awarding an enhanced sentence. The learned circuit judge is not bound to award any sentence if the conviction itself is not supported by evidence. He has the power to acquit if there is no evidence.”
At the time when this court issued the above practice note which has been published as indicated above, this court was not aware of the existence of the Court of Appeal decision in Republic v. Watara [1974] 1 G.L.R. 195, C.A. dated 16 March 1973. In that case the Court of Appeal comprising Jiagge (presiding), Sowah and Kingsley-Nyinah JJ.A. posed at p. 195 this question:
“(a) Does the circuit court, being the sentencing court, have power to endorse or decline to endorse the conviction by the district court before passing sentence, or does this court have to regard the conviction as sacrosanct and proceed to pass sentence?”
In answering this question, the court after referring to section 178 (1) and (2) under which the district court committed the accused for sentence upon conviction to the circuit court said at p. 197 as follows:
“We do not see the difficulties of the learned circuit judge if he would only interpret section 178 (2) in its ordinary meaning without pendantry or embellishment. It means simply that the learned circuit judge should assume that he had convicted the accused person; in other words, the conviction should be taken as the circuit court’s conviction, the only power remaining thereafter, was to pass sentence. It is not for the circuit court to endorse or refuse to endorse the conviction; that is the function of an appellate court to which the accused if he were so disposed, would appeal.”
Incidentally section 178 (2) of Act 30 is worded almost the same as section 3 (2) of Act 192 and for ease of reference I reproduce hereunder the two provisions. Section 178 (2) of Act 30 provides as follows:
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“(2) The Circuit Court shall have power to deal with the offender as if he had been convicted on indictment by that Court of the offence, and the conviction and sentence shall be subject to appeal as if he had been so convicted.”
Section 3 (2) of Act 192 also provides as follows:
“(2) Following such committal the High Court shall have power to deal with the offender as if he had been convicted by that Court of the offence (and, if the offence is an indictable one, as if he had been convicted on indictment) and the conviction and sentence shall be subject to appeal as if he had been so convicted.”
(The emphasis is mine.) The opinion expressed by the Court of Appeal is in complete contradiction to the practice note in Akakpo v. The Republic cited (supra). In so far as the practice note is in conflict with the opinion of the Court of Appeal, this court is bound by the opinion expressed by the Court of Appeal. This court would therefore bow to it wholeheartedly but the court’s difficulty is how to reconcile the opinion as expressed with the natural and more attractive reasoning underlying the case of Amoah v. The State, Court of Appeal, 14 November 1966, unreported; digested in (1967) C.C. 29 also a decision of the Court of Appeal comprising Ollennu, Azu Crabbe and Lassey JJ.A. dated 14 November 1966 which dealt with section 3 (2) of Act 192 which is also worded in like terms as section 178 (2) of Act 30?
In Amoah v. The State (supra) the appellant was convicted by a district court of the offence of being on premises for an unlawful purpose, i.e. to steal contrary to section 155 of Act 29. His defence was an alibi which collapsed. Because of his previous convictions, he was committed to the High Court for sentence under section 3 of the Punishment of Habitual Criminals Act, 1963 (Act 192). After holding a full scale inquiry precedent to sentencing under section 2 of Act 192, the learned High Court judge (Baidoo J.) came to a conclusion that the conviction was bad and there was no evidence whatsoever to support it. But the learned judge like the learned Appeal Justices in Watara’s case took the view that he was powerless to interfere with the conviction, the accused having been committed to him by the magistrate only for sentence; the proceedings were not an appeal. He stated as quoted in Amoah v. The State (supra).
“It is rather unfortunate that the matter is not on appeal before me. The accused has been convicted already by the learned district magistrate and I am required under section 1 (c) of Act 192 to hold an inquiry to find out whether by reason of the accused’s criminal habits or tendencies or of his association with persons of bad character, it is expedient for the protection of the public that he should be detained in custody for a substantial period.”
The learned judge sentenced the accused for the simple reason that he had no power to refuse to endorse the conviction. The accused appealed to the Court of Appeal which held as digested in (1967) C.C. 29 that:
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“(1) there is no doubt whatever that the conviction of the accused is wrong and cannot be supported having regard to the evidence on record;
(2) the jurisdiction of a court to pass sentence upon a person, i.e. to punish him, can only be exercised where a person has been lawfully convicted. If the conviction is bad, any sentence passed, no matter by which court, will be illegal;
(3) when a person is committed to the High Court for sentence under section 3/ Act 192, the High Court assumes jurisdiction over the whole case. The judgment and conviction of the lower court become the judgment and conviction of the High Court, appealable only to the Court of Appeal. Therefore the High Court has jurisdiction to set aside the conviction if of the opinion that it is bad, and to refuse to pass sentence. The learned High Court judge in the instant case misconstrued section 3 Act 192 and misconceived his powers thereunder.”
(The emphasis is mine.)
The court further stated that:
“The jurisdiction of a court to pass sentence upon a person, i.e. to punish, can only be exercised where a person has been lawfully convicted; lawful conviction is therefore a condition precedent to a sentence. A sentence which has been passed when there has been no lawful conviction is illegal. Therefore, a court vested with jurisdiction to pass a sentence at first instance, or confirm, quash or vary a sentence on appeal, is under a legal duty to satisfy itself first of all as to the lawfulness of the conviction before it should exercise its jurisdiction to pass, confirm, or vary it.”
(The emphasis is mine.)
In the case of Republic v. Watara [1974] 1 G.L.R. 195, the Court of Appeal comprising Jiagge (presiding), Sowah and Kingsley-Nyinah JJ.A. as can be seen above has expressed the view that upon conviction by a district magistrate and committal to the circuit court under section 178 (2) of Act 30 for sentence, the circuit court should regard the magistrate’s conviction as sacrosanct and proceed to pass sentence. In other words, the sentencing court is disabled from questioning the legality of the conviction. The court says that the sentencing court should regard the conviction as that of its own and yet at the same time says that the court has no mandate to endorse or refuse to endorse the conviction, that exercise being reserved to the Court of Appeal to which the accused, if he were so disposed, would appeal. And supposing the accused does not appeal to the Court of Appeal? It is respectfully submitted that if the construction put on section 178 (2) of Act 30 is right, then it would not be in the interests of justice and fair play where the circuit court as a sentencing court is convinced that the conviction of the district court is erroneous in law or in point of fact to condone the illegal conviction and furthermore or worse still to pass sentence in flagrant disregard to the court’s own conscience as to the illegality of the conviction. In my view such conduct
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of a circuit court would amount to a substantial miscarriage of justice. In fact it would be a travesty of justice. I make bold to submit that if the construction put on section 178 (2) of Act 30 in Watara’s case is correct then there is need for revolution in the legislature to revise and to clothe the circuit court also as a sentencing court under section 178 (2) of Act 30 with jurisdiction to either endorse or refuse to endorse the conviction of a district magistrate, according as the conviction is sound or illegal and notwithstanding that the circuit court is neither an appellate court nor has a supervisory jurisdiction over district courts. This would be in accord with justice and common sense as it is the sentence of that court and not that of the district court against which an appeal lies to the Court of Appeal.
For my part, like the learned Justices of the Appeal Court in Amoah’s case, I think that no matter by which court the accused is committed for sentence by a district court upon conviction whether under section 178 (2) of Act 30 to the circuit court or under section 3 (2) of the Punishment of Habitual Criminals Act, 1963 (Act 192), to the High Court, so long as appeals from both courts lie to the Court of Appeal as if the judgments and convictions of the district courts are those of the circuit and High Courts, the sentencing courts as a condition precedent to passing sentence must satisfy themselves as to the legality of the convictions by the district magistrate. If Watara’s case is inconsistent with Amoah’s case both of which are decisions of the highest court of the land what then is to be their effect on the lower courts which are bound by the decisions of the highest court in Ghana? The answer is simple.
It is a sound proposition of law that in case of inconsistent decisions by the highest court of the land, a lower court may in its discretion elect to follow the one or other of the conflicting decisions or may take quite a different line: see Armstrong v. Strain [1951] 1 T.L.R. 856 and also Akpawey v. The State [1965] G.L.R. 661, S.C. The case of Amoah v. The State (supra) leaves no room for doubt that even though the case is not before this court on appeal, as the High Court and the sentencing court, the court has a duty to satisfy itself first as to the legality of the conviction. If the conviction is bad any sentence passed no matter by which court, will be illegal. Looking at the proceedings in that lower court especially the charge itself together with the plea and explanation given, not overlooking the dialogue between the trial magistrate and the accused, I have come to the conclusion that the conviction is illegal because the explanation of the accused which was neatly recorded by the magistrate was inconsistent with the plea of “guilty.” The conviction consequently based upon it is incurably bad and illegal in law and I refuse to pass sentence on the accused. I would rather enter a plea of “not guilty” on behalf of the accused. This mandatory course of action should have been taken by the magistrate (see section 199 (4) of Act 30).
The last issue, is whether in view of the conclusion which I have arrived at, this case should be sent. back with directions to be heard de novo or acquit and discharge the accused here and now. It would appear that the explanation given by the accused was not consistent with a plea of guilty.
It is my duty therefore to enter a plea of “not guilty” on his behalf in this court and I do so now. However in view of the fact that the antecedents of the accused are no longer a secret to the learned trial magistrate, the ends of justice would better be served if the case is heard by the same court but differently constituted. I therefore in the exercise of my supervisory jurisdiction as the High Court judge direct that the Registrar of the High Court should notify the district magistrate grade I, Sogakofe, to arrange and sit at Keta and hear this case without delay. I am not unaware that with the conclusion reached, some expense would be incurred by the Republic. I am also not unaware that the accused has been in custody for some time. I am also seised with the fact that by this order, the trial would entail some delay, hardship and inconvenience to all participants of the trial, namely, the prosecution, accused, witnesses, the magistrate, etc. However as to the fact that the accused has been in custody for some time I think that the trial court or sentencing court would do justice to that. In case there is proper conviction, the court would take the period served in the prisons during the abortive trial into account in assessing sentence. As for the expenses to be incurred by the Republic, I think that the justice of the case demands it. For cases where the accused pleaded “guilty” simpliciter or with explanation and subsequently there was found to be some fundamental defect in the charge, e.g. such as failure to obtain the Attorney-General’s fiat or where the explanation amounted to a plea of “not guilty” and the court quashed the conviction being of the view that there had been a substantial miscarriage of justice or for some other reasons did not order a trial de novo see the following cases: Commissioner of Police v. Banson, Supreme Court, 10 October 1964, unreported, Commissioner of Police v. Asante, Supreme Court, 26 October 1964, unreported, Asamoah v. The State, Supreme Court, 10 November 1964, unreported, Cobbina v. The State, Supreme Court, 24 November 1965, unreported and Ofei v. The State [1965] G.L.R. 680, S.C.
In conclusion the ruling of this court shall be as follows: For the reasons given, I refuse to pass sentence on the accused having reviewed the whole case and arrived at a conclusion that the conviction cannot stand having regard to the words used in explanation to the plea of “guilty” entered by the accused. I would rather set aside the conviction which I hereby do and enter a plea of “not guilty” on behalf of the accused to enable the case to be contested on its merits in the court below.
The question of acquitting and discharging the accused does not arise. The case is therefore sent back to be heard by the District Court Grade I, Keta, but differently constituted.
Court below to carry out.
DECISION
Order accordingly.
K.T.
