AMOAH v. THE STATE [1966] GLR 737

Division: COURT OF APPEAL

Date: 14 NOVEMBER 1966

Before: OLLENNU, AZU CRABBE AND LASSEY JJ.A.

CASES REFERRED TO

(1) Benson v. Commissioner of Police, Supreme Court, 10 October 1964, unreported.

(2) Asante v. Commissioner of Police, Supreme Court, 26 October 1964, unreported.

(3) Asamoah v. The State, Supreme Court, 10 November 1964, unreported.

(4) Cobbina v. The State, Supreme Court, 24 November 1965, unreported.

(5) Ofei v. The State [1965] G.L.R. 680, S.C.

(6) Bediako v. The State [1963] 1 G.L.R. 48, S.C.

(7) R. v. Ahenkora and Badu [1960] G.L.R. 160, C.A.

NATURE OF PROCEEDINGS

APPEAL against conviction and sentence where following conviction in the district court the appellant was committed to the High Court under Act 192 where a substantial period of detention was imposed despite the fact that the court held the conviction to be bad. The facts are fully stated in the judgment.

COUNSEL

Appellant in person.

S. M. Boison, Principal State Attorney (Aikins, State Attorney, with him), for the respondent. [p.739] of [1966] GLR 737

JUDGMENT OF OLLENNU J.A.

Ollennu J.A. delivered the judgment of the court. This appeal was argued on 25 October 1966, and was allowed, and we now give reasons for the decision therein. The appellant was convicted by the District Court, Effiduase, of the offence of being on premises for an unlawful purpose, contrary to section 155 of the Criminal Code, 19601; the alleged unlawful purpose is “to steal.” He was then committed to the High Court, Kumasi, under section 3 (1) of the Punishment of Habitual Criminals Act, 1963,2 for sentence. The learned judge of the High Court, Baidoo J., after holding full and proper inquiries as should be held under section 2 of the Act came to the conclusion that the conviction was bad, that the verdict was not warranted by law, and cannot be supported having regard to the evidence. With that view we are in entire agreement. But instead of quashing the conviction, and acquitting and discharging the appellant as we think he is in law entitled to do, the learned judge took the view that he had no jurisdiction in a case committed to him under Act 192 to interfere with the conviction or the merits of the case, and addressed himself as follows:

“It is rather unfortunate that the matter is not on appeal before me. The accused has been already convicted 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.” We are of the opinion that this view of the law held by the learned judge is erroneous. The duty of a court is to do justice, a court therefore should not shut its eyes at obvious injustice.

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.

In each of the following three cases: Benson v. Commissioner of Police,3 Asante v. Commissioner of Police,4 and Asamoah v. The

[p.740] of [1966] GLR 737

State,5 the appellant pleaded guilty to a charge of possessing Indian hemp, contrary to section 47 (1) of the Pharmacy and Drugs Act, 1961,6 and was convicted and sentenced to a term of imprisonment with hard labour. By virtue of section 324 (3) of the Criminal Procedure Code, 1960,7 he could only appeal against sentence and not against conviction; he appealed unsuccessfully to the High Court, and finally to the Supreme Court, where it was discovered that the Attorney-General’s fiat was not obtained as required by section 57 (5) of Act 64 before the proceedings were instituted; it was conceded for the State that in those circumstances the proceedings including the conviction were null and void. The Supreme Court therefore quashed the conviction.

Again in Cobbina v. The State,8 an accused person charged with possessing Indian hemp pleaded guilty with explanation, and gave an explanation which amounted to a positive plea of not guilty; he was convicted and sentenced; he appealed to the High Court against both conviction and sentence, but when it was brought to his notice that he had no right of appeal, he withdrew his appeal against conviction and proceeded with appeal against sentence, which was dismissed. He then appealed to the Supreme Court against his sentence. When attention was called to the case of Ofei v. The State,9 it was conceded on behalf of the State, that the court cannot overlook the explanation given by the appellant as recorded by the trial district court, which amounts to a plea of not guilty pure and simple, and that to overlook it would be a glaring case of miscarriage of justice. Upon those facts the Supreme Court held that it was bound to take notice of the fact that the conviction was wrong, and so declared it. It therefore quashed the conviction, and acquitted and discharged the appellant.

Now section 3 (2) of the Punishment of Habitual Criminals Act, 1963 provides as follows: “Following such committal [i.e. committal of a convicted person to the High Court under section 2 of the Act] 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.” [p.741] of [1966] GLR 737

Our view is that this section vests the High Court with jurisdiction over the whole case, to pass sentence as it would pass in a case tried by it, that is, upon proper conviction; and makes the conviction a conviction by the High Court, no longer a judgment of the district or circuit court, appealable only to the Court of Appeal. Therefore, if the High Court, in the exercise of its jurisdiction over the case, comes to the conclusion that the conviction is bad, it is in duty bound to quash the conviction, and not indulge in illegality by passing sentence upon a person where the condition precedent to sentence, i.e. lawful or proper conviction, does not exist. Therefore by declining to interfere with the conviction which he knew was obviously wrong, the learned judge brought about a miscarriage of justice. Now to the merits of the appeal. The case against the appellant is that he had been seen entering into the house of the complainant at about 11 a.m. on 17 May 1965 and coming out of it shortly after with a bundle under his armpit; that when questioned by a little school boy, the appellant had said that the parcel contained washing. There was no specific evidence that the appellant did not have a parcel on him when entering the house. The complainant was not in the house at the time but returned almost immediately thereafter; on her return she raised the alarm that some articles were missing from her room, and was told that the appellant had been seen coming and going out of the house. According to her, she reported the matter to the police who accompanied her to her house, and later to the house of the appellant but they did not meet him there. The appellant reported himself at the police station in the afternoon, he was cautioned as a suspect, and made a statement which is the same in substance as the evidence he gave at his trial. The essential parts of his case are: that he went to the house of the complainant on 16 May and not on 17 May 1965; that the complainant and some people including a young school boy came to his house between 11 and 11.30 a.m. on the day in question while he was having his bath, and searched his room in his absence but found nothing belonging to them, and when he was informed of what was happening he came out of the bath and questioned their authority for entering into his room and threatened to sue them; he then dressed hurriedly and left the house at about 11.40 a.m. to a local court to institute an action against the complainant. Though the complainant denied going to the appellant’s house, searching it and finding nothing of hers, that evidence by the appellant was corroborated by a witness for the prosecution and a witness for the defence.

The story as related by the complainant and her star witnesses, including a school boy of ten years, is on the face of it most doubtful;

[p.742] of [1966] GLR 737 it is not surprising therefore that the appellant was not charged with stealing, but was charged only with being on premises for an unlawful purpose. The essence of a charge of being on premises for an unlawful purpose under section 155 of Act 29, is the purpose for which the entry is made; if the purpose is lawful, no offence is committed. A prosecution under the section cannot succeed if it fails to prove the purpose. Apart from the vague evidence led by the complainant that she lost some articles which she did not specify, no evidence was led from which it could be inferred that even if the appellant did enter the house as alleged it was for the purpose of stealing.

On the whole, the evidence led by the prosecution is most unsatisfactory, and some of the material allegations are fantastic. To take just one, the fourth prosecution witness, a school boy of ten years, giving unsworn evidence, said that he saw the appellant come out of the house with a bundle under his armpit so he asked him what he was carrying to which the appellant replied that “he was a washman and had collected washing from one Manu’s house.” This is very strange; in this country little children don’t go about challenging their elders in the streets like that; it is just not done, particularly in a village. Indeed the learned district magistrate appreciated the strangeness of that piece of evidence and tried to justify it by saying; “I am satisfied that the accused is well known to the fourth prosecution witness, which explains the reason for his questioning the accused about the bundle.” But in the attempt at explaining away this unusual piece of evidence the learned district magistrate committed a serious misdirection on the evidence, for far from showing that the fourth prosecution witness knew the appellant very well, the evidence proved, in the words of the fourth prosecution witness, that he had “once seen him in my father’s house.”

Faced with the unsatisfactory case for the prosecution the learned district magistrate found refuge in the weakness of the case for the defence, and convicted the appellant on the ground that an implied alibi he relied upon had failed. He directed himself as follows: “In view of the fact that the accused’s evidence remains unsupported that he was on the way to the police station between 10.40 and 11 a.m., during which time the prosecution witnesses claimed to have seen him in the vicinity of the first prosecution witness’ house, I accept the case for the prosecution to be the truth. I reject the case for the defence to be untrue and not reasonably probable, satisfied beyond all reasonable doubt that the accused was the person seen coming from the first prosecution witness’s house with the bundle under his armpit. For these reasons I find the accused guilty of the offence charged, and convict him accordingly of same.”

[p.743] of [1966] GLR 737

This is a glaring misdirection. The failure of a defence of alibi, does not relieve the prosecution of the onus to prove the guilt of an accused person beyond reasonable doubt, and it is not necessarily fatal to the defence. The law on the point is stated in Bediako v. The State10 briefly as follows: “If an accused puts forward an alibi as an answer to an accusation against him, he does not thereby assume the burden of proving the defence, but the burden of proving his guilt rests throughout on the prosecution: R. v. Johnson ([1961] 3 All E.R. 969, C.C.A.).” See also R. v. Ahenkora and Badu.11 There are other grounds upon which the conviction cannot stand, but we need not go into them all since what have been stated above are enough to dispose of the appeal.

DECISION

Appeal allowed.

Conviction quashed, appellant acquitted and discharged.

T. G. K.