DIVISION: IN THE SUPREME COURT
DATE: 10TH JULY, 1963
BEFORE: ADUMUA-BOSSMAN, OLLENNU AND BLAY JJ.S.C.
NATURE OF PROCEEDINGS
APPEAL against the conviction of the appellants delivered by his honour Judge Siriboe (as he then was)
at the Central Circuit Court, Cape Coast, on charges of unlawful entry and stealing. The facts are fully set
out in the judgment of Adumua-Bossman J.S.C.
COUNSEL
Hayfron-Benjamin for the first appellant.
Abban for the second appellant.
Annan, Senior State Attorney, for the respondent.
[p.299] of [1963] 2 GLR 297
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
Adumua-Bossman J.S.C. delivered the judgment of the court. This appeal is against the conviction of
the two appellants by his honour Judge Siriboe (as he then was) at the Central Circuit Court, Cape Coast
on two charges: (1) unlawful entry, contrary to section 152 of the Criminal Code, 1960,1. and (2) stealing
goods to the value of £G1,630 17s. 8d. the property of the United Africa Company (Ghana) Ltd., contrary
to section 124 of the Criminal Code, 1960.2 The first appellant was sentenced to five years, and the
second appellant to three years imprisonment with hard labour on each charge, the sentences in each case,
to run concurrently.
Learned counsel for the first appellant commenced his arguments on ground 2 of the grounds filed which
reads: “The learned judge was wrong in convicting the first appellant without giving reasons.” This complaint arises from the manner in which the trial was finally concluded. What happened, as disclosed by the record was that on the 10th April, 1962, when the court was constituted by the judge sitting with the assessors, he duly “summed up” to them, then took their individual opinions on the two charges against the appellants. Each of the assessors gave it as his opinion that each accused was guilty on each of
the two charges preferred against him. The learned judge accepted their unanimous opinions, and
proceeded to find each accused guilty, and duly convicted him. He stated as follows: “I agree with the
opinions of the gentlemen assessors and find each accused guilty on both counts and convict them
accordingly. Reasons for my decision to be given and sentences to be passed on the 17th April, 1962.”
There was no formal order discharging the assessors, but on the other hand there was nothing on the
record to indicate that they were requested to attend on the adjourned date, the 17th April, 1962. Be that
as it may, on the adjourned date the 17th April, 1962, the learned judge sat alone without the assessors
and adjourned to the morrow, the 18th April, 1962, “for reasons for judgment and sentences.” On the 18th
April, 1962, be again sat alone, without any of the assessors present, and then read or delivered his
reasons for convicting the appellants which reasons he called “judgment” then proceeded to sentence the
appellants as already stated. In this state of the record, Mr. Hayfron-Benjamin for the first appellant
referred the court to section 287, subsections (1) and (2) of the Criminal Procedure Code, 19603 which
provides that:
“(1) When, in a case tried with assessors, the case on both sides is closed, the Judge may sum up the
evidence for the prosecution and the defence, and shall then require each of the assessors to state his
opinion orally, and shall record their opinions.
(2) The Judge shall then give judgment, and in so doing shall not be bound to conform with the opinions
of the assessors, but he shall record his judgment in writing and in every case the judgment shall
contain the point or points for determination, the decision thereon and the reasons for the decision,
and shall be dated and signed by the Judge at the time of pronouncing it.”
[p.300] of [1963] 2 GLR 297
Learned counsel then submitted that without doubt the judgment is the learned judge’s determination on
the 10th April, 1962, when he recorded “I agree with the opinions of gentlemen assessors and so find
each accused guilty on both counts and convict them accordingly”; that in the form in which it is given,
however, it does not comply with the requirements of section 287 (2) of the Criminal Procedure Code,
1960, namely, that it “shall contain the point or points for determination, the decision thereon and the
reasons for the decision, and shall be dated and signed by the Judge at the time of pronouncing it.” In
counsel’s further submission, the “judgment” or reasons, which the learned judge delivered on the 17th
April, was coram non judice in that in the absence of the assessors, the judge sitting alone was not a
properly constituted court; and that this view of the matter is supported by section 264 (2) of the Criminal
Procedure Code, 1960 which provides that: “Any assessor dissenting from any decision of the Court may
have his dissent and the grounds thereof recorded in the minutes.” Learned counsel finally referred the
court to section 291 of the above-mentioned Code which provides that “The Court before which any
person is tried for an offence may reserve the giving of its final decision on questions raised at the trial,
and its decision whenever given shall be considered as given at the time of trial.”
He concluded by submitting that the proper course which the learned judge should have followed was to
have adjourned the case after taking the assessors’ opinions, and to have requested them to attend at the
adjourned date for the delivery of his judgment in which he could at one and the same time indicate his
acceptance of their unanimous opinions, and his conviction and sentence of the appellants. This latter
observation may well be true, but that course was not followed, and the court must decide what is the
correct legal position resulting from the course which was actually followed.
At the conclusion of Mr. Hayfron-Benjamin’s arguments on this point, Mr. Abban for the second
appellant associated himself with and adopted Mr. Benjamin’s argument and asked that they might be
considered in favour of his client also.
Learned senior state attorney, Mr. Annan, replying, stated that he conceded that the session by the learned
judge alone without the assessors on the 18th April, 1962, was irregular, and that the assessors should
have sat with the judge. His contention, however, was that as they gave their opinion, on the 10th April,
1962, if the learned judge did not then express acceptance of their unanimous opinion but adjourned to
write a judgment contrary to their view and then failed to see that they were in attendance on the occasion
of his judgment, it could then be argued that they were deprived of the opportunity of perhaps having the
reasons for their opinion, recorded in the minutes, and that a grave irregularity had occurred. But they
gave their unanimous opinion and the judge agreed with them and accepted it, as there was nothing
further which they could
[p.301] of [1963] 2 GLR 297
have done on the occasion of the judgment on the 18th April, 1962, except be in formal attendance. In
those circumstances their absence on the 18th April, 1962, was a trivial irregularity which the court
should hold as not having occasioned any miscarriage of justice. With regard to the argument that the
proceedings on the 18th April, 1962, should be regarded as coram non judice because the court was not
properly constituted in the absence of the assessors, wherefore the said proceedings could not form part of
the proceedings of the 10th April, 1962, learned state attorney contended that at that stage when all that
remained to be done was within the special province of the judge alone and the attendance of the
assessors was a mere formality, the proceedings cannot be regarded as coram non judice and an absolute
nullity, but rather as valid legal proceedings merely tainted with a trivial procedural irregularity. Learned
state attorney finally concluded with the submission that the proceedings of the 18th April constituted an
effective and valid continuation of the 10th April, 1962, and the two together clearly satisfy the
requirements of section 287(2) of the Criminal Procedure Code, 1960.
In this state of the contentions of the parties, what is the correct or true legal position? In order to
determine that major question it seems to be necessary to examine and consider, firstly, the contention
that it is necessary that the assessors should sit with the trial judge even after they have pronounced their
opinions, or else the constitution of the court is defective in limine. In embarking upon that consideration,
it is to be observed that as the system of criminal trial with the aid of assessors is said to be of Indian
origin and since the Indian legal literature, text-books as well as reports of cases, are by no means easy to
come by locally, there is some difficulty in obtaining full, ample, and complete information about every
important aspect of the working of this system of criminal trial with assessors. Indeed it is to Hayes
Redwar J. that we have been greatly indebted, since the publication of his invaluable Comments on Some
Ordinances of the Gold Coast Colony, in 1909 until recent years, for such learning as can be obtained
locally concerning the details of the working of this unique system of criminal trial with assessors in the
country of its origin, namely, India. In recent years a book such as Sohoni’s Commentaries on the Code of
Criminal Procedure (13th ed.) has become available in the Supreme Court Library and is extremely
helpful when information is sought in respect of criminal procedure of Indian origin, but there is still the
difficulty of the absence of the Indian Law Reports. Coming back to Hayes Redwar J., however, in
Chapter V, p. 88 of his invaluable book referred to above, dealing with trial with assessors in criminal
cases as provided by the Criminal Procedure Ordinance, 1876, he points out that when trial with assessors
was first introduced by the Criminal Procedure Ordinance, 18764 aforementioned, express provision was
made for assessors to form part of the court as from the commencement of the trial right up to the
conclusion of the trial by sentence. He refers to the relevant
[p.302] of [1963] 2 GLR 297
Section 129 of the said Ordinance of 1876 aforementioned and observes at p.94 of his book (supra) as
follows:
“Upon a careful consideration of the provisions of sect. 129 of the Criminal Procedure Ordinance, it is clear
that, although the ‘decision’ is ‘vested exclusively in the Judge,’ the Assessors are entitled not only to share
in the discussion of the evidence on the issue of ‘guilty’ or ‘not guilty,’ but also as to the ‘punishment’ to be
‘awarded’ by the Judge in the event of the prisoner being convicted. The Judge, therefore, cannot discharge
the Assessors before passing sentence on the prisoner, and consequently, if the Judge postpones sentence to a
later day, the Assessors should not be discharged from the case, but should be notified to attend on the day
upon which he proposes to pronounce sentence, when the Judge should inform them of the ‘punishment’ he
proposes to inflict, so as to give them an opportunity, if they be so minded, to cause their ‘dissent and the
grounds thereof’ to be duly recorded in the minutes of the Court.”
The terms of section 129 on which the foregoing observations were made are these:
“The opinion of each assessor shall be given orally, and shall be recorded in writing by the Court, but the
decision shall be vested exclusively in the Judge. Any assessor dissenting from any decision of the Court, or
from any punishment awarded, may require the Judge to record in the minutes his dissent and the grounds
thereof.”
He puts forward the explanation that (see p. 94 supra):
“Doubtless the provision entitling an Assessor to require that his dissent … to the ‘punishment awarded’
should be recorded in the minutes was inserted in sect. 129 as a matter which the Governor in Council would
take into consideration, if a petition should be presented for the exercise of the prerogative of mercy . . .”
He goes on at p. 105 to set out the terms of section 261 of the Indian Criminal Code, 1872,5
corresponding to section 129 of the Gold Coast Criminal Procedure Ordinance 1876, as follows:
“In cases tried with Assessors, the Court shall proceed to pass judgment of acquittal or conviction, having
considered the opinions of the Assessors, but not being bound to conform to them. If the accused person is
convicted, the Court shall proceed to pass sentence on him according to law.”
He then comments at p. 105 of his book (supra) on the difference between the provisions of section 261
of the Indian Code as above, and those of section 129 of the Gold Coast Ordinance of 1876, as follows:
“It will be observed that not only is there no provision made in the Indian Code of 1872 authorising the
Assessors to record their dissent from the punishment awarded by the Court, but that (as in the Code of
1861) [an earlier Code which the 1872 Code replaced] it would seem that, having recorded their opinions as
to the ‘decision’ of the Judge acquitting or convicting the accused, they are then functus officio, as the Court
is thereupon to proceed to pass sentence ‘according to law.’ This is very different from the enactment in sect.
129 of the [Gold Coast] Ordinance [of 1876].”
[p.303] of [1963] 2 GLR 297
Here then appears to be the key to the solution of our problem, namely, that when assessors were
expressly empowered to have their views about the “punishment” recorded, then the necessity arose that
they should sit with the judge to constitute the court right from the commencement of the trial to the
conclusion by the imposition of sentence.
The subsequent history of the aforesaid provision of the Gold Coast Criminal Procedure Code whereby
assessors were entitled to express their dissent from not only the decision of the judge but the punishment
awarded by him was that by section 9 of the Criminal Procedure Ordinance,6 the whole provision was
deleted and the situation left exactly as under the Indian enactment referred to above where the assessors
are not entitled to express any dissent at all either in respect of the judge’s decision or the punishment he
awarded. This state of affairs where assessors were not entitled to express dissent from the decision of and
or punishment awarded by the judge remained from 1916 till 1936; and it was during this period that it became the recognized and usual practice to discharge the assessors as soon as they had pronounced their respective opinions. By section 264 of the Criminal Procedure Code, 1936,77 however the position was again altered when this further provision was re-introduced, namely, that: “Any assessor dissenting from any decision of the Court may have his dissent and the grounds thereof recorded in the minutes.” It was
reenacted in section 277 of the Criminal Procedure Code.8 This provision is retained and preserved in the
currently operative Criminal Procedure Code, 1960,9 section 264 (2) which is applicable to the instant
case. It will be observed that this new provision is significantly different from that of the original
Ordinance of 1876 in that the right to dissent is limited only to “any decision of the Court” — without
anything being said about the punishment awarded. One would have thought that the words: “any
decision” in the 1876 Ordinance were wide enough to embrace the decision as to sentence, but apparently
that was not considered to be so, and one is therefore obliged to entertain and hold the same view,
namely, that “any decision” does not include the decision as to punishment. In that state of the matter, it
would seem to be necessary for the assessors to be in attendance when the decision as to whether or not
the accused be guilty is given by the judge, but not at a subsequent adjournment for sentence. If that be
the true legal position then it does not appear that any irregularity occurred in the instant case where the
assessors were present when the judge gave his decision finding the appellants guilty as charged and
convicting them accordingly.
In respect of an infringement of the right to dissent from the punishment, Redwar has observed at pp.
94-95 of his book (supra) as follows:
“Should he [the Judge) pronounce sentence in the absence of the Assessors, it is submitted that this omission
to give the Assessors an opportunity of
[p.304] of [1963] 2 GLR 297
becoming aware of the sentence and for recording their dissent from it, amounts to such an error in law on
the part of the Judge, as to afford ground for setting aside such sentence.”
It would seem to follow that for an infringement of the right to dissent from the decision, the conviction
must be set aside, and depending on the circumstances, the appellant discharged altogether or committed
for re-trial. As already indicated, however, in the instant case the assessors were present when the learned
judge gave his decision and no question of dissent arose, and it seems to us therefore that part of the
submission is untenable.
There then arises the question which was more directly and specifically raised by counsel for the
appellants, namely, whether in the form in which the decision was given, it does not constitute an
infringement of section 287 (2) of the Criminal Procedure Code.10 We do not think there is any
infringement. The form of the judgment given on the 10th April, 1962, conforms to all the requirements
of section 287 (2) of the said Act, except one, namely, that of embodying the reasons, for it contains “the
point or points for determination [which are whether or not each accused of the offences charged], the
decision thereon … [which was that each accused is guilty on both charges], and shall be dated and signed
by the Judge. . .” With regard to the reasons, it is to be observed that the section does not provide,
contrary to the established and recognised practice of centuries in almost all systems of judicial
administration, that the reasons must be given contemporaneously with the judgment. More often than
not, the reasons for the decision or judgment are given sometimes after the pronouncement of the decision
or judgment, but it is recognised as part of the judgment. In the result, therefore, we are unable to uphold
the arguments and contentions of both learned counsel for the appellants that the judgment on the 10th
April, 1962, is not in conformity with section 287 (2) of the Criminal Procedure Code, 1960.
The further contentions of the two appellants have now to be considered separately. On behalf of the first
appellant his learned counsel argued the ground of appeal that the conviction cannot be supported. He
made an exhaustive examination of the prosecution’s evidence on record and pointed out certain conflicts,
as well as to urge the incredibility of some portions of the said evidence. It is sufficient to say that,
undoubtedly, there was evidence which amply supports the first appellant’s conviction on both charges
and his conviction cannot therefore be interfered with. His appeal is accordingly dismissed.
With regard to the second appellant, counsel on his behalf raised and argued a ground of appeal which we
are obliged to acknowledge and concede to be well-founded. That ground was this: “the learned judge
misdirected himself on the evidence and made unwarranted findings against the second accused.” In
arguing this ground, learned counsel called attention to a passage in the learned judge’s judgment (or
reasons)
[p.305] of [1963] 2 GLR 297
in which he stated: “for reasons given by learned counsel for the State in connection with the alibi set up
by the second accused I did not believe that defence too.” It seems sufficiently obvious that it is a
decidedly reprehensible method of evaluating evidence. The learned judge was to evaluate and determine
the credibility of the evidence, by reference to other evidence on record, mainly from that adduced by the
prosecution and in a lesser degree that adduced by the defence. He was not to test the credibility of the
second appellant’s defence by reference to statements made by counsel for the prosecution. Now as it
turned out, learned state attorney’s statements as to why the second appellant should be disbelieved were
all erroneous and unfounded statements. In his address to the court, learned state attorney admitted that
the evidence of the first and second witnesses for the second appellant, if believed, substantially destroys
the prosecution’s case against the second appellant, but went on to submit that they (first and second
defence witnesses) should not be believed because of the following:
“(a) The second accused under cross-examination said he remembered the 1st July, 1961, very well; so the
second accused could not have made a mistake about his movements on that day.
(b) When second accused was contacted by police and he made a statement (exhibit H) in which he
referred to some dates 1st and 2nd July, 1961, the police had not mentioned any dates to him, having
regard to the cautioning words. Submit second accused tried to change his movements on 1st and 2nd
July, as stated in exhibit H, after realising that the fourteenth witness for the prosecution was not
going to support him.
(c) That in the second accused’s alibi, he gave no particulars as to the times he was seen by witnesses he
intended to call in support of his alibi. He waited for time as the trial progressed before starting to
give some evidence about time and his movements.”
Taking these reasons given by learned state attorney as the grounds on which the second appellant’s alibi
should be disbelieved in reverse order, reason (c) was completely destroyed by the fact that in the
appellant’s statement before the committing magistrate contained in exhibit O, he gave details of his
movements; and that even before he came before the magistrate, in his statement to the police, exhibit H,
he gave particulars of his movements. He also clearly gave names of his witnesses as appeared in his
statement to the magistrate, see exhibit O. With regard to learned state attorney’s suggestion under reason
(b) that because of the statement, the police could not have mentioned dates to the second appellant, his
counsel has pointed to the fact that the very terms of the words of caution discredited the suggestion;
because the police could not have told the accused that a case of unlawful entry and stealing was under
investigation without mentioning the time and place of the incidents to make it intelligible to the second
accused. More important still as learned counsel for the second appellant pointed out, the police did not
while giving evidence in connection with the statement, exhibit H, testify that they said nothing about
time and place of the crimes which they told the second appellant that they
[p.305] of [1963] 2 GLR 297
were investigating. These seem to us to be cogent and unanswerable arguments which tend to destroy any
substance that may have been in the state attorney’s statement under head (b) (supra). Finally with regard
to the statement under head (c), as appellant’s counsel pointed out, the second, appellant’s admission at
the time of the trial and whilst under cross-examination, that he remembered the 1st July, 1961, very well
does not necessarily mean that he remembered the date quite well at the time when he was suddenly
arrested and questioned about his movements. In any event there is no serious discrepancy in his pre-trial
statements to the police and to the committing magistrate as compared with his evidence at his trial,
which was decisively confirmed by his two witnesses who appear to have been very little shaken under
cross-examination, and we can find no foundation for or veracity, or substance in any of the
considerations which the state attorney put forward as discrediting factors and which the learned judge
accepted so completely. Learned state attorney before us has conceded that the second appellant’s
counsel’s criticism of the learned judge is justifiable, but submits that there is abundant evidence which
the learned judge must have considered, and that in any case in the face of that evidence of the
prosecution which was available there has been no miscarriage of justice.
As we indicated to him, we are unable to agree that the misdirection of the learned judge in the manner
indicated has not occasioned a miscarriage of justice. We accordingly allow the appeal of the second
appellant set his conviction and sentence aside, and order that he shall be and is hereby acquitted and
discharged.
DECISION
Appeal allowed in the case
of the second appellant.
K.T.
