HIGH COURT, CAPE COAST
Date: 15 MARCH 1974
EDWARD WIREDU J
CASES REFERRED TO
(1) R. v. Tunwashe (1935) 2 W.A.C.A. 236.
(2) State v. Owusu, Court of Appeal, 22 June 1967, unreported; digested in (1967) C.C. 111.
(3) Hassan v. The State [1962] 2 G.L.R. 150, S.C.
(4) Andoh v. The Republic, Court of Appeal, 23 January 1970, unreported; digested in (1970) C.C. 42.
(5) Akowuah v. Commissioner of Police [1964] G.L.R. 475, S.C.
(6) Boahene v. The State [1965] G.L.R. 279, S.C.
(7) Republic v. Essien, High Court, Sekondi, 22 November 1968, unreported; digested in (1969) C.C. 23.
NATURE OF PROCEEDINGS
APPEAL against conviction and sentence on the grounds inter alia (1) that the charge against the appellant was bad and incurable and (2) that the sentence imposed on the appellant by the trial magistrate was unauthorised by law. The facts are fully stated in the judgment.
COUNSEL
G. Acquaah for the appellant.
Turkson, State Attorney, for the Republic.
JUDGMENT OF EDWARD WIREDU J
The points for consideration in this appeal involved two aspects of criminal practice and procedure namely: (a) the circumstances under which bad, defective or imperfect charges or both can be cured by subsequent evidence led and (b) the circumstances under which a court can competently ignore a statutory punishment prescribed for a particular offence charged.
The brief facts of this case show that on 1 May 1973 the appellant was arraigned before the Agona Swedru District Court Grade II charged with an offence under section 296 (2) of the Criminal Code, 1960 (Act 29). He was tried, convicted and sentenced to a prison term of three months’ imprisonment with hard labour on 3 May 1973. This appeal is against the said conviction and sentence.
Before the appeal itself came up for hearing, an application for bail was brought on behalf of the appellant. This was supported by a ten paragraphed affidavit, paragraph (7) of which reads as follows: “That since the sentence is only three months the appellant might definitely serve the whole term before the appeal is heard.” I have singled out paragraph (7) because a cursory glance through the supporting affidavit reveals that as the only point of some legal significance. Otherwise there was nothing impressive in the other remaining paragraphs which would, on the face of the application, have justified the propriety of the application for bail. I was however attracted by the sentence imposed in relation to the section under which the appellant
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was charged in the court below. That section provides a statutory maximum punishment of a 0100 fine for any of the offences created under it. It does not authorise the imposition of a prison term as an option. This was ignored by the trial magistrate who instead, imposed a prison term of three months’ imprisonment with hard labour on the appellant. This violation of the statutory penalty prescribed by the law in my view provided a prima facie case to justify the granting of bail. I therefore invited Mr. Agudetse, the state attorney who appeared for the Republic, to state whether he could resist the application. Learned state attorney frankly conceded that a case had been made to justify the appellant being admitted to bail both on the grounds raised in paragraph (7) as stated above and on the sentence imposed. I therefore without hesitation admitted the appellant to bail upon his depositing 050, half the maximum fine prescribed by law: see R. v. Tunwashe (1935) 2 W.A.C.A. 236 and State v. Owusu, Court of Appeal, 22 June 1967, unreported; digested in (1967) C.C. 111.
The judgment of the trial court was appealed against on four main grounds which are:
(a) the judgment is bad and cannot be supported by the evidence,
(b) the indictment is bad as the particulars do not support the charge,
(c) the judgment is bad as the lay magistrate was influenced by outside information,
(d) the sentence is harsh and oppressive.
When the substantive appeal itself came before me for hearing on 22 November 1973, about six months after the appellant had been admitted to bail, I invited Mr. Turkson, the state attorney who this time appeared for the Republic, to support the conviction as I observed certain procedural and practice irregularities on the face of the record which merited an invitation to him to clear the air. I also drew learned state attorney’s attention to the section under which the appellant was charged and asked whether the conviction could be supported on the face of the plaint.
Learned state attorney conceded that the charge was bad but contended that the defect was not fatal because it was subsequently cured by the evidence led by the prosecution. He therefore invited me to invoke the proviso to section 26 (12) of the Courts Act, 1971 (Act 372). Founding himself on the authority of Hassan v. The State [1962] 2 G.L.R. 150, S.C., learned state attorney argued that even though the charge was bad, since the evidence led disclosed that the appellant had committed the offence of nuisance, the fourth holding of the headnote to that case should apply. Learned state attorney then reviewed the evidence of the prosecution witnesses and submitted that the evidence led and accepted by the trial court was sufficient to justify the conviction of the appellant. He therefore invited me not to disturb the conviction of the appellant. On the question of sentence learned state attorney
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conceded that the trial court had no power to impose a prison term under section 296 of Act 29.
In order to appreciate the real significance of the points raised for consideration in this appeal it will be necessary to have a look at the plaint upon which the appellant was brought before the trial court which reads as follows:
“Statement of Offence
Human excrement in an opened chamber pot: Section 296 (2) of Act 29/60.
Particulars of Offence
G. F. K. Addo, Driver: For that you on 1 May 1973 at Agona Swedru in the Central Magisterial District and within the jurisdiction of this court, did allow or permit offensive matter to wit: — Accumulation of human excrement in an opened chamber pot on your premises.”
A careful examination of the plaint shows that not only is the charge as laid bad but that it also discloses no triable offence in law or to be precise known to our laws. Section 296 (2) upon which the charge as laid was founded reads as follows:
“Whoever does any of the following acts shall be liable to a fine not exceeding fifty pounds, namely— . . .
(2) in any town commits a nuisance in any public place or open space, or in any place being an appurtenance of or adjoining a dwelling-house.”
The relevant subsection lays down in clear and unambiguous language that the offence envisaged under it is one of “nuisance” and specifies the relevant places where the said offence can be committed in exhaustive language. There is no offence of “human excrement in an opened chamber pot,” as stated in the charge, known to section 296 (2) nor indeed is there any such offence triable under the Criminal Code, 1960 (Act 29). The particulars which were expected to give the appellant in ordinary language sufficient information of the offence against him were not only unsatisfactorily drafted but also they do not in any way throw light on the offence charged.
I have had the opportunity of studying the case of Hassan v. The State (supra) relied on by the learned state attorney and hold the view that the ratio in that case does not support the respondent’s stand in the instant case. The facts of this case as stated in the headnote are as follows:
“The appellant was found in possession of Indian hemp on the 28th October, 1961. He was convicted by the Circuit Court, Accra, on a charge of possessing Indian hemp, contrary to the Pharmacy and Drugs Act, 1961, ss. 47 (1) and 57. The particulars of the offence read: ‘Fatayi Hassan on the 20th day of January, 1961, in Accra in the Eastern Region was in possession of 800 grammes of Indian
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hemp.’ The Pharmacy and Drugs Act, 1961, came into force on the 13th June, 1961, and by section 47 (1) it provided that: ‘47 (1) No person shall have in his possession without lawful excuse (proof of which shall be on him) any opium or Indian hemp which is prepared for smoking or any residue from the smoking of opium or Indian hemp.’
It was conceded by the State that the wrong date was included in the particulars, and that on the 28th October, 1961, mere possession of Indian hemp was not an offence. Counsel therefore submitted that the court should declare the trial null and void and, on the authority of Okoro v. Inspector-General of Police (1953) 14 W.A.C.A. 370, order a re-trial.”
The main issue which called for consideration in that case was whether it was competent to order a retrial upon a charge which was bad and disclosed no triable offence. In a unanimous decision their lordships made a distinction between a defective charge and one properly laid and a case in which the proceedings following thereafter were rendered void because of want of jurisdiction in the court that purported to try the case. Holdings (2), (3) and (4) of the headnote which deal with this aspect of the law respectively read:
“(2) A declaration that criminal proceedings are null and void means that the charge is good but the court that purported to try it was void of jurisdiction. In such a case a re-trial can be ordered but upon the original unamended charge. R. v. Abaley (1958) 3 W.A.L.R. 463, C.A. approved.
(3) Where the charge discloses no offence but there is no material irregularity in the proceedings which would render the trial a mis-trial, the sentence, if not quashed on appeal, is a good return to a writ of habeas corpus.
(4) Where the charge discloses no offence and the evidence does not show that the appellant has committed any offence, the Courts Act, 1960, s. 15 (1) and (2) must be applied; the conviction must be quashed and a verdict of acquittal be entered. The appellant should not be put in double jeopardy upon the same facts. Commissioner of Police v. Wenyonu (1958) 3 W.A.L.R. 459, C.A. approved.”
It is apparent therefore from the Hassan case (supra) that if anything at all it is against the stand taken by learned state attorney. For nowhere in that decision did their lordships direct that where the charge discloses no triable offence resort should be had to the evidence adduced to support it and invoke the aid of the proviso to section 26 (12) of the Courts Act, 1971 (Act 372).
Section 26 (12) of Act 372 provides as follows:
“The appellate Court on hearing any appeal before it in a criminal case shall allow the appeal if it considers that the verdict
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or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment in question ought to be set aside on the ground of a wrong decision of any question of law or fact or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal:
Provided that the said Court shall notwithstanding anything to the contrary in this subsection dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the change or indictment or any other offence of which the accused could have been convicted upon that charge or indictment.”
(The emphasis is mine.) In such situations where the charge together with its particulars is bad and discloses no triable offence it would not only be an insult to the administration of criminal justice but also contrary to reason to found a conviction based on evidence brought to support the charge. In the first place there is no proper charge before the court for adjudication and in the second place whatever plea is taken from the accused on such a charge becomes void. It follows in my judgment that the plea of the appellant in this case was void ab initio and all subsequent proceedings thereafter were a nullity. I therefore reject as untenable the submissions by learned state attorney that in such a situation resort should be had to the evidence adduced and the proviso to section 26 (12) of Act 372 invoked to save the situation.
In the case of Andoh v. The Republic, Court of Appeal, 23 January 1970, unreported; digested in (1970) C.C. 42, the Court of Appeal had the occasion to discuss defective indictments and circumstances and situations which call for the use of the proviso to the Courts Act, 1960 (C.A. 9), 5. 15 which was repealed and replaced by the Courts Decree, 1966 (N.L.C.D. 84), para. 13 (1), the provisions of which are in identical language to section 26 (12) of Act 372 on which the learned state attorney now relies. In that case it was held that where a statement of offence has been properly laid but the particulars fail to contain any of the essential requirements of the offence but that the defect apparent on the face of the particulars is cured by the evidence adduced at the trial the courts are bound to apply the above proviso provided that the omission did not cause any embarrassment or prejudice the appellant’s case. In the Andoh case (supra) the Court of Appeal was emphatic and excluded bad indictments and charges which are unknown to the law. The court considered the former defect as “a statement of offence with incomplete or defective particulars and not a bad indictment or one that is unknown to the law”: see also the cases of Akowuah v. Commissioner of Police [1964] G.L.R. 475, S.C. and Boahene v. The State [1965] G.L.R. 279, S.C.
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It follows from the Andoh case (supra) that for evidence led to cure a defective charge so as to call in aid the proviso to section 26 (12) of Act 372 the following requirements must be satisfied:
(a) The statement of offence itself must be properly laid, i.e. the offence charged must be one recognised by the law,
(b) The missing particulars must be supplied by the evidence subsequently adduced to support the charge, and
(c) The omission should not cause any embarrassment or prejudice the case of the appellant and it must not have occasioned a substantial miscarriage of justice.
Since the offence charged in the instant case is one unknown to the law, the plea of the appellant taken in respect of it and the subsequent proceedings thereafter became a nullity so that the proviso to section 26 (12) of Act 372 does not apply. It follows therefore that the conviction of the appellant is wrong in law and the same will be quashed.
This brings me now to the question of sentence. The portion of the trial magistrate’s judgment which has provoked a consideration of the question whether a court is competent to ignore a penalty statutorily, prescribed by law for a particular offence reads:
“The charge against the accused has been proved and accused is found guilty of the offence and convicted accordingly.
The maximum penalty for such an offence is 0100.00 or six months’ imprisonment with hard labour. Some irresponsible relatives of the accused have been casting insinuations in the court’s precincts this morning that the accused’s relatives have got money and the consequence will only be a fine and how much it is, will be paid and the accused released. The relatives have these insinuations to say because the accused was arraigned before this court on Tuesday, 1 May 1973 and the accused was remanded in custody, not because he pleaded not guilty to the charge but because of the insolent behaviour of the accused to the members of the Red Cross Society, the health officers and the police and was further remanded on 2 May 1973 to today, 3 May 1973, as no time to continue.
Wrongdoers are punished not to penalise them or cause them to suffer, but for the purpose of reformation and if the youth of today are allowed to take their own way and become lawless because of their wealthy relatives who are ready to pay any fine inflicted on such stubborn youths then where are we drifting to and what would happen in Ghana and what is the necessity for punishment?
I inflict no fine on the accused but sentence him to three months’ imprisonment with hard labour.”
It is apparent from the above that the trial magistrate failed to appreciate his powers under section 296 of Act 29. It is not clear where he quoted the penalty prescribed from. Be that as it may the one thing
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clear is that he allowed irrelevant outside influences to weigh with him in imposing an otherwise unauthorised sentence on the appellant who did nothing himself to deserve this deviation from the authorised sanction. It is trite law that where a statute creating an offence lays down in no uncertain terms the sort of punishment to be meted out to offenders against that statute it is incumbent on the court called upon to enforce the law to act within the strict language of that statute.
In Republic v. Essien, High Court, Sekondi, 22 November 1968, unreported; digested in (1969) C.C. 23, the respondent was sentenced to four years’ imprisonment after being convicted of possessing 52,215.16 grammes of Indian hemp without lawful authority contrary to sections 47 (1) and 57 (1) of the Pharmacy and Drugs Act, 1961 (Act 64). The State appealed against the sentence on the ground that it infringed section 57 (3) of Act 64 which prescribed a minimum of five years for the offence. According to the digest, it was held per Aboagye J. that:
“When a person is convicted of the offence of possessing Indian hemp the court by which he is convicted must sentence him to a term of five years’ imprisonment or more ‘unless the court finds either that the offence committed is trivial or that there are special circumstances which justify recession from the fixed minimum sentence. ’ The trial circuit judge should have stated whether he found the offence trivial or whether there was evidence to justify the imposition of a sentence below the minimum fixed by section 57 (3) of Act 64.”
The Essien case supports the general view that a court is incompetent to impose a punishment which violates the one prescribed by law. I have not been successful in my endeavour to find any authority for the contrary view. I hold in my judgment that the sentence imposed by the trial magistrate was ultra vires the language of section 296 under which the appellant was charged. It follows also therefore that under no circumstance is a court entitled to reject the statutory punishment prescribed for an offence unless the same statute gives that power to the court in which case that power should be exercised within the strict language of the statute giving the power: see Essien’s case (supra).
The appeal therefore succeeds. The appellant like Hassan (supra) should not be put in double jeopardy upon the same facts. He is therefore hereby acquitted and discharged. The 050 paid pursuant to the order of this court dated 15 May 1973, is ordered to be refunded forthwith to him.
DECISION
Appeal allowed.
Appellant acquitted and Discharged.
S.E.K.
