HIGH COURT, CAPE COAST
DATE: 15 JANUARY 1971
EDWARD WIREDU J.
CASES REFERRED TO
(1) Quaye v. Mariamu [1961] G.L.R. 93, S.C.
(2) Essandoh v. The Republic, Court of Appeal, 4 April 1969, unreported; digested in (1969) C.C. 63, C.A.
[p.192] of [1971] 1 GLR 191
NATURE OF PROCEEDINGS
APPEAL against a conviction for threatening contrary to section 74 of Act 29. The facts are fully set out in the judgment of the court.
COUNSEL
The appellant in person.
A. Forster, State Attorney, for the respondent.
JUDGMENT OF EDWARD WIREDU J.
This appeal involves considerations of (a) the irregular and wrong admission into the proceedings of matters relating to the previous criminal conduct and character of the appellant; (b) the failure of the trial magistrate in making any findings on the primary issues joined between the appellant and the respondent and lastly (c) the legal position where the accused has been charged under a section which creates a lesser offence when the evidence adduced by the prosecution supports an offence of a higher degree under another section. See section 154 (2) of the Criminal Procedure Code, 1960 (Act 30).
The appellant in this case was tried and convicted in the District Court Grade II at Ofuase on 14 May 1970 of the offence of threatening contrary to section 74 of the Criminal Code, 1960 (Act 29), and was sentenced to a term of twelve months’ imprisonment with hard labour against which conviction and sentence he has appealed to this court. Although the appeal itself is straightforward and far from any complexity, it raises a number of interesting points for consideration as a result of which on 18 December 1960 when the appeal was heard, I allowed the appeal, quashed the conviction and set aside the sentence of the trial court and acquitted and discharged the accused with the intimation to give reasons later which I now proceed to do.
At the hearing of the appeal, I called on the respondent to support the conviction and directed the learned state attorney’s attention to the three points raised for consideration in this appeal. Mr. Forster, rightly in my view, declined to support the conviction.
In order to appreciate therefore the force behind these points it will be necessary to recite in a nutshell the prosecution’s case as presented against the appellant which was as follows: The appellant, who describes himself as a farmer of Kotokuom, is alleged to have approached the complainant in this case on or about 5 May 1970 and demanded the refund of an amount of N¢4.00 which, according to the appellant, the complainant demanded as a fee for an invitation by the appellant to have sexual intercourse with her. When the complainant failed to honour this invitation and denied having taken any said sum or any sum at all from the appellant, he threatened to kill her. According to the prosecution this threat by the appellant to kill the complainant was repeated on other occasions with such seriousness that one of the prosecution witnesses took the complainant to his house where he offered his room to her to sleep for the night with a view to reporting the matter to the police the following morning and which the complainant did as advised. The appellant of course denied this threat and joined issue with the prosecution on this crucial point. After the evidence of the defence the prosecution had this to say before the judgment:
[p.193] of [1971] 1 GLR 191
“By prosecution – before judgment is pronounced I beg to inform the court that the accused is known to the police for having the following convictions: (1) 1967—assaulted P. & T. workers at Kotokuom and was fined N¢60.00 or three months’ imprisonment with hard labour, (b) 1968—assaulted teacher Ababio at Kotokuom and was sentenced to four months’ imprisonment with hard labour, (3) 1969—assaulted Ama Kom and caused damage to her things and was sentenced to six months’ imprisonment with hard labour and (4) 1970-caused harm to police Inspector Fynn and police constable Asante and was sentenced to twelve months’ imprisonment with hard labour on each charge.”
The material part of the trial magistrate’s judgment which has been the subject of the first and second criticisms in this appeal reads as follows:
“After giving his evidence told court that he had no witness and thus closed his case. When accused stated that he had no witness I made him to sign the record and seeing that his signature was very obscure I made him to thumbprint it also and he did it in the presence of one of the warders who brought him down from Winneba Prison. Prosecution has informed court that the accused is known to police … I have personally convicted the accused on three of the above convictions. De facto the character and demeanour of the accused in this area is too bad and if I had the power I would have sentenced him for life to enable the people of Kotokuom to live in peace and happiness. I shall therefore take a serious view of this case. I find accused guilty and convict. Accused sentenced to twelve months’ imprisonment with hard labour.”
A cursory glance through the judgment apparently reveals that each of the points raised for consideration in this appeal is fatal to the conviction of the appellant.
The first is the introduction into the proceedings of matters relating to the previous convictions of the appellant. The general rule of criminal law excludes the admission of evidence of prior offences and although this rule is subject to a number of exceptions, which for purposes of this appeal are irrelevant and therefore will receive no discussion other than just to mention that the law permits the receipt of such evidence in certain circumstances, the cardinal principle underlying both the general rule and the exceptions created under this general rule is the attainment of justice in each case. Where therefore the introduction of such evidence postulates no other purpose than to prejudice a fair trial, a conviction secured under such a circumstance should not be allowed to stand since its objective is to defeat the ends of justice. I cannot in principle make any distinction between the legal effect of the matter of previous criminal convictions or character being received into proceedings in the manner in which they were introduced in the instant case and cases where they are
[p.194] of [1971] 1 GLR 191
introduced either in examination-in-chief or cross-examination. The legal position is the same irrespective of how they were introduced if their purpose had the effect of prejudicing the mind of the trial court. it is apparent from the passage in the trial magistrate’s judgment (supra) that he was influenced by the alleged notorious criminal character of the appellant which was brought to his notice by the prosecution prior to the delivery of his judgment and in which he either rightly or wrongly took judicial notice of his personal condemnation of the appellant in previous cases dealt with by him involving the appellant. In this regard he erred, especially when his decision was not based on any findings on the evidence against the appellant. A conviction based therefore on such a wrong principle of legal rules cannot be sustained and on this ground alone the appeal must succeed but there remain the two other points for consideration.
The second is the failure of the trial magistrate in making any definite findings on the issue joined between the appellant and the respondent. It is now settled law that such a judgment falls short of the judicial duty required of a trial court. See the case of Quaye v. Mariamu [1961] G.L.R. 93, S.C. In civil cases the tendency has been to remit such cases for a trial de novo but I am doubtful whether it will be advisable to extend this to criminal trials. The only circumstances where a retrial in a criminal case have been held to be justifiable and of which I am aware are where the whole trial was considered a nullity due to a mistrial or due to want of jurisdiction on the part of the trial court. See the case of Essandoh v. The Republic, Court of Appeal, 4 April 1969, unreported; digested in (1969) C.C. 63. Although there may be other circumstances, my research has not carried me beyond these and I am personally reluctant to see an extension of this view beyond the circumstances mentioned above. In view of the stand which I have taken on this principle I think it will be safe not to extend it to cover cases which will afford the prosecution a second opportunity of rebuilding its case against the appellant. This is especially so in view of the special facts involved in this case. I will therefore hold that the failure by the trial magistrate to resolve the issues between the appellant and the respondent is fatal to the conviction of the appellant and that in view of my earlier observations above, I am not inclined to remitting the case for a rehearing de novo but to allowing the appeal simpliciter on this ground also.
The third and the last point for consideration is whether it would be right for an appellate court to sustain a conviction where the appellant has been charged under a section which creates a lesser offence than that disclosed in the evidence. In other words where the evidence adduced to support the prosecution’s case supports a higher offence than the one charged. Section 74 of Act 29 under which the appellant was charged, tried and convicted reads as follows: “Whoever threatens any other person with unlawful harm, with intent to put that person in fear of unlawful harm, shall be guilty of a misdemeanour.” The particulars of the
[p.195] of [1971] 1 GLR 191
offence read as follows:
“Abudulai Mohammed: For that you on the 5th day of May, 1970 at Kotokuom in the Ofuase Magisterial District and within the jurisdiction of this Court did threaten one Magret Sah with the following words, ‘I will kill you if you don’t give me my N¢4.00,’ with intent to put such person into fear of unlawful harm.”
It is clear that the particulars are in line with the section under which the appellant was charged. If therefore the prosecution led evidence which was at variance with both the section and the particulars, in the absence of any statutory provision providing for a possible conviction for an alternative offence for which the appellant could lawfully be convicted on the evidence adduced even though he was not charged with that offence, or an earlier amendment which could have cured the defect of the variation between the evidence and the charge without any prejudice to the accused, it would be wrong to convict the accused on the original charge. I hold further that it is not open to an appellate court and for that matter any other court to strain the meanings of words used in a section under which an accused person is charged in order to sustain a conviction under that section since such an attempt will defeat the ordinary rules of construction. I therefore hold that where, as is in this case, an appellant has been charged under a section which creates a lesser offence (as under section 74 of Act 29) and the evidence adduced supports a section which creates a higher offence (as under section 75 of Act 29) it will be wrong for the court to sustain a conviction under section 74 by stretching the meaning of the words used in the section. For even though the two sections deal with the same offence of threatening, each deals with a different type, one being higher than the other. Had the appellant of course been charged under section 75 and the evidence supported a conviction under section 74 then under section 154 (2) of Act 30 the conviction would have been justifiable, but not otherwise. It follows therefore that the conviction of the appellant under the
particular circumstances of this case cannot stand.
I therefore allowed the appeal, quashed the conviction and set aside the sentence imposed on the appellant who was acquitted and discharged.
DECISION
Appeal allowed.
Conviction quashed.
T. G. K.
