AMADU FULANI v. THE REPUBLIC [1968] GLR 66

DIVISION: HIGH COURT, ACCRA

DATE: 19 JANUARY 1968

BEFORE: AMISSAH J.A.

NATURE OF PROCEEDINGS

APPEAL against sentence of seven years’ imprisonment imposed by a circuit court upon summary trial of the appellant for the offences of conspiracy to steal, unlawful entry and stealing property valued at ¢3,462.00. The facts are fully set out in the judgment of Amissah J.A. sitting as an additional judge of the High Court.

COUNSEL

Appellant in person.

Mrs. J. Amankwah, State Attorney, for the respondent.

JUDGMENT OF AMISSAH J. A.

In its drive for simplicity and economy of expression the criminal legislation of 1960 embodied in the Criminal Code, 1960 (Act 29), and the Criminal Procedure Code, 1960 (Act 30), has posed a fundamental question in the administration of criminal justice. It arises in connection with the modes of trial and the attendant powers of punishment. The question put simply is this: is there no more correlation between the gravity of an offence and its mode of trial and punishment? Up till 1960 such inquiry could have been disposed of in a few words. Our criminal legislation recognised that the more serious offences should be trial on indictment and the less serious ones, summarily. Thus the Criminal Code, Cap. 9 (1951 Rev.), then in operation created in Book 2 of its provisions, summary offences and in Book 3, indictable offences. This led in some cases to a duplication of offences. Stealing and fraud by false pretences, for example appeared twice in the Code, in Book 2 as summary offences and in Book 3 as indictable offences. The penalties provided for the summary offences were quite small when compared with those for the indictable offences. The summary offence of defrauding by false pretences, being punishable by three months’ imprisonment whilst its indictable counterpart was liable to a five year term. The summary trial which as its name indicates was a trial which proceeded without much formality and with some dispatch could be held by a magistrate or a judge of the superior courts. If held by the magistrate the offender faced the possibility of no greater punishment than the maximum that the magistrate by general limitation on his powers, had jurisdiction to impose. In ordinary circumstances this was a fine not exceeding £G100 or imprisonment for twelve months or both. In certain situations where the offender had previous convictions the maximum could be doubled. The judge could also try a [p.69] of [1968] GLR 66 case summarily. In his case, section 159 of the Criminal Procedure Code, Cap. 10 (1951 Rev.), provided that he should do so only if the offence appeared to him to be of such a nature that if proved it would be adequately punished by fine, or by imprisonment not exceeding two years or both.

The magistrate was empowered to try a number of offences appearing in the Book of Indictable Offences. But he could do so only after deciding that having regard to any representation made in the presence of the accused by or on behalf of the prosecutor, the character and antecedents of the accused, the nature of the offence, the absence of circumstances which would render the offence one of grave or serious character, and other circumstances of the case, the case would be adequately dealt with by imprisonment not exceeding twelve months or with a fine not exceeding £G100 or both. Trials upon indictment could be held only in the High Court. They were attended by the formality of the indictment, the preliminary hearing before the magistrate, the committal and the trial either by the judge and jury or by the judge with assessors. The person found guilty after this formal and more deliberate trial was liable to any punishment up to the maximum laid down by the provision of the law creating the offence.

One thing was quite clear from the arrangement which existed up till 1960. Whether an accused was tried by a magistrate or a judge, once his trial was summary, the maximum sentence he faced was by law set at a lower level than what he would otherwise have faced if the trial for the same offence had been on indictment. As a consequence the prosecution would only present the less serious of the offences which could be tried by either mode for trial summarily. The more serious offences they had to reserve for the more majestic mode of trial which carried the more serious consequences. I have been disturbed of late by the fact that quite stiff sentences, out of all proportion to the sentencing power of the magistrate, are being imposed after summary trials by circuit judges. One such case is the instant one in which the appellant was sentenced to a term of seven years’ imprisonment after a summary trial before a circuit judge. He was convicted on charges of conspiracy to steal, unlawful entry and stealing. Admittedly, the value of the property stolen was not inconsiderable. It was ¢3,462.00. But then it is a matter for consideration whether the case should not have properly been taken on indictment. It is also true that the appellant turned out to have previous convictions. But that does not alter the fact that a very heavy sentence was imposed after a case which was summarily disposed of. I therefore wanted to hear the considered view of the Republic on the subject and having granted the appellant leave to [p.70] of [1968] GLR 66 appeal against his sentence, invited argument from the Attorney-General on the sentencing powers of circuit and High Court judges trying cases summarily under the new order. I have been assisted considerably by the arguments of Mrs. Amankwah who appeared for the Attorney-General.

She has argued forcefully that upon conviction after a summary trial by a circuit or a High Court judge, nothing prevents the judge from imposing any sentence up to the maximum that the provision creating the offence imposes. In other words whether an offence is tried summarily or upon indictment by the judge is irrelevant in so far as sentencing is concerned. He can impose the same sentence in either event. This of course does away with any distinction between the summary trial as the machinery for the less serious offence and the trial on indictment for the more serious. Apart from the few capital cases and cases punishable by life imprisonment which have been expressly designated indictable offences, every offence, however serious the circumstances, may now be tried summarily by the High Court or a circuit court and result in the maximum sentence being imposed. If that is so, then we are faced with a most serious situation indeed. Fraud by an agent, corruption and many other offences involving dishonesty even though they are mere misdemeanours are now punishable by imprisonment for 25 years. So are second degree felonies like stealing and fraud by false pretences. Is the citizen to be liable to such vicious penalties after a trial which is only summary? Then what decides the Attorney-General nowadays in taking some of these cases on indictment and the others summarily? If the seriousness of the case is a major consideration, it contradicts the argument put forward by learned counsel. That leaves expedition in the disposal of the case as the only factor worth consideration. The cynicism involved in the acceptance of speed as the sole criterion for embarking upon summary trials is almost frightening to contemplate. It is true that more speed is required in summary trials. But surely this can only be because in the main the offences being tried are comparatively minor and on balance nothing would be lost by meting out speedier and more informal justice than otherwise on them. In comparison with the old, we find that the magistrate under our present criminal legislation still has the same limited power of sentencing. The judge of the High Court or of a circuit court on the other hand has no limit other than the maximum the offence itself calls for, imposed on his powers. The circuit judge is prevented from taking capital cases and those which might result in a sentence of life imprisonment upon conviction but they are not the type of cases in question here. That part of section 159 of Cap. 10 which required the judge to take a ease summarily only if from the nature of the offence [p.71] of [1968] GLR 66 it would in his opinion be adequately punished by a fine or imprisonment not exceeding two years or both has not been re-enacted in the present Codes. In its rationalising crusade the Criminal Code no more states the offences according to whether they are summary or indictable. Each type of offence is stated once and is given a designation as to its nature, misdemeanour or felony and of what degree. Whether an offence may be tried on indictment or summarily is determined by section 2 (1)-(3) of the Criminal Procedure Code, 1960 (Act 30), as amended by the Criminal Procedure Code (Amendment) (No. 2) Act, 1965 (Act 272), s. 1 in the following terms: “2. (1)An offence shall be tried summarily if—

(a) the enactment creating the offence provides that it is to be punishable on summary conviction, and provides for no other mode of trial; or

(b) the enactment creating the offence makes no provision for mode of trial and the maximum penalty for the offence on first conviction is a term of imprisonment not exceeding six months, whether with or without a fine.

(2) An offence shall be tried on indictment if—

(a) it is punishable by death or it is an offence declared by any enactment to be a first degree felony; or

(b) the enactment creating the offence provides that it shall be triable on indictment, and provides for no other mode of trial.

(3) Every other offence shall be triable on indictment or summarily.”

Subsections (1) and (2) lay down the offences which must definitely be tried by the one mode or the other. About them nothing more need be said at the moment except that they seem to suggest that some respect is still paid by the new Code to the old-fashioned belief in the distinction between the more serious offences which were appropriated to the trial on indictment and the less serious which were triable summarily. It is on the simplicity of subsection (3) that the problem is lodged. The appellant could have had the benefit of a trial by a judge and assessors with all the attendant safeguards, including the advantage of knowing the prosecution’s case against him long before hand. If such a court had found him guilty, it could, according to the Republic, have imposed no higher sentence than he got after his summary trial. He did not have a trial with assessors not because his case was not serious enough to justify such a trial, not because if he were found guilty on a trial on indictment he could have had a severer sentence [p.72] of [1968] GLR 66 but just because the prosecution decided that his case should be decided more quickly than it would otherwise be if he were tried on indictment. It is relatively easy to determine how grave a case is from its nature and circumstances. But there is nothing particular about this case which makes it deserving of a quicker trial than any other. In any case one of the fundamental principles of the administration of justice is that it should not be delayed. If speed were the sole factor in determining whether a case falling under subsection (3) should be prosecuted summarily or on indictment then all such cases ought to be prosecuted summarily, and the law which makes it possible for such a case to be protracted, must offend against this rule of justice. Section 178 of the Criminal Procedure Code, 1960, is not without significance in this discussion. For it enables the district magistrate who, upon conviction of an accused after a summary trial, finds from the circumstances that his powers of sentencing are inadequate to meet the case to commit the convicted person to a circuit court for sentence. This does suggest that in the same situation, namely, after a summary trial, a circuit court, and a fortiori, the High Court would have a more ample power of sentencing than a district court. But then follows a provision contradictory to that to the effect that “any enactment relating to the powers of any court upon committal for trial shall apply so far as relevant to such committal for sentence.” Does this not mean that the convicted person has to be served with a copy of the proceedings of the court which tried him and that the Attorney-General ought similarly to be served just as is done in trials on indictment? Does it not mean that advance notice of the circumstance which make the maximum punishment of the district court insufficient ought to be given to the convicted person so that he may dispute them if he wants to before a circuit court? That the sentencing aspect at least is treated as proceedings upon indictment is emphasised by subsection (2) which provides that: “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.”

It is difficult to find a convincing reason for this provision if the circuit court is otherwise able after trying a case summarily to award the same penalty that it may award after trying that same case on indictment. The Republic says that the circuit court may impose any sentence up to the maximum upon a person convicted after a summary trial. Why then was it necessary for the legislature to give that court power to deal with the offender as if he had been convicted on [p.73] of [1968] GLR 66 indictment? The reason assigned by learned counsel that the idea behind the provision was to limit the number of courts that the case should go through by way of appeal is totally unacceptable. When the case comes up to the circuit court for sentence, it is not on appeal; the original trial itself remains to be completed. Thus there is no reason why the sentence imposed upon the convict by the circuit court should not be in exercise of its summary jurisdiction which is ample enough to deal with the matter and be appealable to the same court which deals with its appeals from summary convictions. I am unable to understand, in terms of the Republic’s argument, why any material distinction should be drawn between a second degree felony liable to ten years’ imprisonment tried, on the one hand, summarily from the beginning by a circuit court which awards the maximum penalty and tried, on the other hand, by a district court which convicts and commits to the circuit court for sentence where the maximum is imposed. The appellate court would be dealing in either case with a conviction from a trial which was summary. The severity of the sentence would be the same. But the distinction is made by the law. In the former case the appeal must be to the High Court and in the latter, sentence must be taken as having been imposed after a trial upon indictment and the appeal shall lie to the Court of Appeal. I think the only reason for the distinction is that the legislature accepted the basic distinction between the modes of trial for the varying degrees of offences, namely, the serious offences should be tried on indictment and less serious ones tried summarily. I am fortified in this view by the fact that the original section 337 of the Criminal Procedure Code, 1960, which was enacted at the same time as this section 178 made all appeals from circuit courts, whatever the mode of trial, lie direct to the Supreme Court. It was wholly unnecessary at the time the 1960 Codes were passed to provide that a circuit court to which a convicted person had been committed for sentence should have power to deal with the matter as if the conviction was on indictment merely to enable an appeal to lie direct to the highest court. Because it went there directly anyway. There was therefore no question of limiting the possible number of appeals by this provision. A number of other provisions of our laws support the view I have taken. Reference has already been made to section 2 of the Criminal Procedure Code, 1960, which provides for the mode of trial for offences. It will be noticed from that section that the crimes which are undisputably recognised as the most grave are appropriated without qualification for trial on indictment. At the other extreme, crimes which are undoubtedly trivial are made triable summarily. Only the crimes between these two extremes, which may or may not be serious, are left with an option as to the mode of trial. [p.74] of [1968] GLR 66

It is difficult to believe that in the same section of the Code, such basic thinking on the gravity of the offence in relation to its mode of trial should be so suddenly abandoned as to divorce the mode of trial completely from the gravity of the offence. When the new criminal legislation abandoned the distinction between the indictable offence and the summary offence with a differentiated maximum penalty for each, it adopted a system of providing one maximum for each particular kind of offence. But the adoption of a single maximum for convenience does not do away with the fact that within each type of offence are some which are more serious cases than others. And the punishment for each case must depend on its seriousness. It seems to have been forgotten by the Republic that originally the trial by jury was the norm and that the summary trial was invented to take up the numerous small offences which it would be inconvenient to delay by being committed for trial. It also seems to have been forgotten that summary when it refers to procedures means proceedings which are short and simple in comparison with the proceedings which alone should have been applicable, either in the same or analogous cases, if summary proceedings had not been available: see Jowitt’s Dictionary of English Law (1st ed.), p. 1698 on “summary.” Then there is section 179 (1) and (2) of the Criminal Procedure Code, 1960, which state:

179. (1) If it appears to the Court at any stage of a summary trial of an offence which is also punishable on indictment that the case is unsuitable for summary trial the Court may inform the Attorney-General of its opinion and adjourn the proceedings for not more than fifteen days to await his reply.

(2) If, within that time, the Court is notified by or on behalf of the Attorney-General that it is proposed to prosecute the accused on indictment the Court shall follow the procedure laid down in Part IV, and, in the case of a trial by the High Court or a Circuit Court, shall have the powers of a District Court under that Part.”

This affects only those offences which may be tried either on indictment or summarily. Bearing in mind that the court trying such an offence summarily may be a circuit court or the High Court with, according to the Republic, as full a power of punishment on such trials as on trials on indictment one may well ask what possible reason could determine the court that the case is not suitable for a summary trial. It will certainly come as a surprise to some to find that the trial court would come to this conclusion if it thought that [p.75] of [1968] GLR 66 the summary trial was advancing too rapidly in its course and therefore ought to be made to proceed at the more deliberate speed of the trial on indictment. Yet the only reason advanced for prosecuting the same offence according to the one mode rather than the other is that speed may be required in the one case. If, on the other hand, the reason for the court’s conclusion is that it has discovered in the course of the case that it is more serious than one which should be tried and therefore punished summarily, this would make some sense. But then according to the argument of learned counsel, a circuit court and the High Court would have full power to punish the most serious case if tried summarily anyway by imposing the maximum penalty. Why then should the court want the case it had started summarily to be tried on indictment? No reasonable reply can be found for this. A look at the Table showing the Scale of Increased Punishments for Repetition of Crime in section 300 of the Criminal Procedure Code, 1960, shows that the Code assumes that only the least serious of crimes would be taken summarily: “Summary conviction for crime” is taken separately from “Conviction for misdemeanour” and “Conviction for second degree felony.”

The Criminal Procedure Code was passed in 1960. Subsequently legislation has continued to show the intention of the legislature that graver offences should be taken on indictment and the less grave, summarily. I make mention of two. In section 57(2) of the Pharmacy and Drugs Act, 1961 (Act 64), it is provided that a person found guilty of an offence under the Act relating to narcotic drugs shall be liable upon conviction on indictment to a fine not exceeding £G1,000 or to imprisonment not exceeding ten years. If the conviction is summary the fine must not exceed £G250 and the term of imprisonment not exceed twelve months. The combined effect of paragraphs 7 and 8 of the Fourth Schedule to the Exchange Control Act, 1961 (Act 71), is that a person who commits an offence punishable under that part of the Schedule is liable on summary conviction to imprisonment for not more that three months or a fine (except in the case of a body corporate) not exceeding £G500 or both. If the conviction is on indictment then the liability is to a term of imprisonment not exceeding two years or to a fine (except in the case of a body corporate) not exceeding, £G1,000 or both. In each case the mode of trial determines the maximum limit of the penalty. Yet the same court may have the jurisdiction to adopt one or the other form of trial. To me this is an acceptance by the legislature of the continuing validity of the distinction between the nature of offences which should be tried summarily and those triable on indictment.

[p.76] of [1968] GLR 66

In the present scheme of things appeals from a circuit court in the exercise of its summary jurisdiction lie to the High Court whereas appeals from the same court from convictions on indictment lie to the Court of Appeal. As I remarked earlier when the Code was enacted in 1960 all appeals from the circuit court irrespective of the mode of trial lay to the equivalent of the present Court of Appeal, namely, the Supreme Court. The legislature in its wisdom chose to differentiate between the exercise of the two types of jurisdiction directing the appeals from summary convictions to the High Court while retaining the Supreme Court for the appeals from convictions on indictment. The manner of the differentiation in itself indicates the legislature’s view of the type of offence tried summarily as compared with those tried on indictment by a circuit court. But further, originally all appeals had to be lodged within ten days from the date of conviction. When the legislature thought this inadequate, the period was lengthened to one month. Only trials on indictment benefited from this dispensation. Nothing could sound more unjust than to have offences of the same gravity treated so differently in respect to rights of appeal depending on how they are tried even though the punishment resulting from either mode of trial may be exactly the same. It is significant that there is no provision in the Criminal Procedure Code, 1960, for the institution of cases before the circuit or High Court. The only available provisions are in connection with the institution of proceedings before district courts. As far as I am aware section 60 of the Code is the only one which deals with the institution of criminal proceedings. It provides in subsection (1) as follows:

“60. (1) Criminal proceedings may be instituted before a District Court in either of the following ways—

(a) by making a complaint and applying for the issue of either a warrant or a summons in a manner hereinafter mentioned; or

(b) by bringing a person arrested without a warrant before the court upon a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against him, and the time when and the place where the offence is alleged to have been committed. The charge sheet shall be signed by the police officer or public prosecutor in charge of the case.”

In the case where process is issued upon a complaint it is for the purpose of apprehending and producing the person affected or for

[p.77] of [1968] GLR 66 his appearance before the district court issuing the process or some other competent court for the charge laid therein to be inquired into or tried. The inquiry or trial follows automatically from the production of the accused who is brought before the district court upon a charge sheet. Where the case is for trial on indictment section 181 of the Code provides that:

“Where a person is before a District Court charged with an offence which is not being tried summarily there shall be a preliminary hearing of the case by the Court, at which the procedure laid down in this Part [namely Part IV on Committal for Trial on Indictment] shall be followed.”

If on the other hand the case is for summary trial, then the competent district court proceeds with the actual trial. And in general the primary consideration for determining the mode of trial must be the gravity of the offence. From this it would appear that criminal cases come before the circuit and the High Court whether for summary trial or for trial on indictment after they have been instituted before a district court. his is borne out clearly by section 44 of the Code which provides that: “44. Subject to the provisions of any enactment a criminal case shall not be brought before the High Court or a Circuit Court, unless it has been previously brought before a District Court and the accused person has been committed for trial to the High Court or Circuit Court, as the case may be.”

After the institution of the case before the district court it could be transferred or committed to a circuit court or the High Court for trial. But in view of this provision, the only way in which a circuit court or the High Court could become seised of a criminal case for summary trial without first passing through the district court is to claim to be acting under paragraph 56 of the Courts Decree, 1966 (N.L.C.D. 84), which says that:

“No jurisdiction conferred upon any District Court shall in any way restrict or affect the jurisdiction of the High Court or a Circuit Court and each of those Courts shall have in all causes and matters, civil and criminal, an original jurisdiction concurrent with the jurisdiction of a District Court.”

Should the circuit or High Court be trying a criminal case summarily by virtue of its concurrent jurisdiction with the district court, I would find it difficult to see why either court should be able to impose a sentence higher than what the district court could without express provision to that effect. Such is section 178 of the Code [p.78] of [1968] GLR 66 which enables a circuit court to deal with a convicted person committed for sentence as if he had been convicted on indictment. In this conclusion I may mention that I am unable to accept the argument of counsel which equates the original jurisdiction conferred on the High Court and circuit courts with unlimited jurisdiction. Original jurisdiction in those provisions may be contrasted with appellate jurisdiction. All it means is that the cases in which those courts have original jurisdiction may be tried at first instance by them as distinct from those coming before them by way of appeal where the original trial would have been held by some inferior court. Of course I appreciate that the view that I hold is not absolutely free from one consequential problem.

What happens if after a trial the circuit or High Court finds that the character of the accused makes the power of sentence vested in a district court inadequate? Had the trial been by the district court, that court could have committed to the circuit court for an enhanced sentence. But there is no equivalent provision in respect of these higher courts. It may be possible for a circuit court to go through the notional exercise of committing a convicted person to itself for sentence, though this suggestion has its weakness in logic and practicability. It certainly would be incongruous for the High Court to commit to the circuit court for sentence. I think, however, that this is a question which was overlooked by the legislature and may be left to that body for rectification. In short I think it abhorrent to our principles of criminal justice that an accused should suffer the same maximum penalty whether he goes through the elaborate procedures of the trial on indictment with its mutiny safeguards in his favour or he goes through the summary procedures of the trial going by that name with its limited rights of address, and the possibility of the court proceeding in his absence if he fails to turn up after an adjournment amongst other disabilities. If the argument of the Republic is sound then our criminal legislation must present an acute case of split personality. I do not think it does. In the event 1 reduce the sentence imposed on this appellant to the maximum that would have been legitimate on a summary trial, where previous convictions are disclosed, namely, two year’s imprisonment.

The deportation order is to stand.

DECISION

Appeal against sentence allowed.

Sentence reduced to two years’ imprisonment.

S. K. T