HIGH COURT, HO
Date: 19 NOVEMBER 1973
ANDOH J
CASES REFERRED TO
(1) Amoabimaa v. Badu (1957) 2 W.A.L.R. 214, W.A.C.A.
(2) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.
(3) Craig v. Kanssen [1943] K.B. 256; [1943] 1 All E.R. 108; 112 L.J.K.B. 228; 168 L.T. 38; 87 S.J. 48, C.A.
(4) R. v. Lynch [1966] 1 W.L.R. 92; 130 J.P. 108; [1965] 3 All E.R. 925; 50 Cr.App.R. 59, C.C.A.
NATURE OF PROCEEDINGS
RULING on jurisdiction in an appeal by the accused to the High Court against a sentence imposed by the circuit court upon committal for sentence by a district court. The facts are set out fully in the ruling.
COUNSEL
Appellant in person.
E. Akwei-Addo, State Attorney, for the Republic.
JUDGMENT OF ANDOH J
This appeal raises a small but very important technical point of law and it can be posed thus: Where an accused person is tried before a district magistrate and he is found guilty and convicted but he is committed to a circuit court under section 178 (1) of the Criminal Procedure Code, 1960 (Act 30), for a sentence does an appeal from the sentence or conviction of the circuit judge lie to the High Court or the Court of Appeal?
There were four persons committed by the district court magistrate, his worship Mr. W. K. Anderson after trial and conviction of certain crimes to the Circuit Court, Ho, presided over by his honour Judge E. K. Jones-Mensah (as he then was) for sentence. The learned circuit court judge passed various sentences on the four prisoners as follows: the first accused was sentenced to five years’ imprisonment with hard labour concurrently; the second accused was sentenced to four years’ imprisonment with hard labour concurrently; the third accused was sentenced to nine months’ imprisonment with hard labour concurrently and the fourth accused was sentenced to four months’ imprisonment with hard labour concurrently. The appellant herein was the second accused sentenced to four years’ imprisonment with hard labour. His appeal to this court has not been dealt with unlike his comrade whose sentence, the learned High Court judge, Francois J. conceiving himself as seised with jurisdiction reduced same from five years to four years’ imprisonment with hard labour. It is true that the other appellant has had his sentence of five years reduced to four years by the learned High Court judge.
[p.69] of [1974] 1 GLR 67
What seems to flow from this order is that the learned High Court judge had jurisdiction to entertain the appeal from the sentence or conviction of the learned circuit court judge upon committal for sentence by a district magistrate under section 178 (1) and (2) of Act 30. If the learned High Court judge indeed had jurisdiction, then it follows that since this is a court of concurrent jurisdiction this court also has jurisdiction to hear the appeal. But the question is whether the High Court has jurisdiction to hear appeals of this nature from a circuit court. I think that upon a proper construction of section 178 (2) of Act 30, the High Court has no jurisdiction to entertain such an appeal. In my humble opinion, the appeal lies to the Court of Appeal. It is most unfortunate that I am unable for the first time, to follow the footsteps of Francois J., an eminent judge for whom I have nothing but great admiration for his profound knowledge and exposition of the law.
Section 178 (2) of Act 30 is quite clear and unambiguous in its construction. This was not a case tried summarily by the learned circuit court judge himself. It was a case in which the accused upon conviction by a district court was committed to him for sentence. The section makes provision for appealing against such sentence and conviction of the circuit court before which the accused is committed. The appeal shall lie as if the accused had been tried on indictment by the circuit court. Appeals in civil cases and in criminal cases where the trial is on indictment lie to the Court of Appeal from the circuit court and not to the High Court. Accordingly even though my brother Francois J. conceived himself as properly seised with jurisdiction to entertain the appeal, I am afraid, I must differ from his view on this matter for by the very section under which the appellant was dealt with in the court below, an appellate court is clearly and distinctly spelt out. That court is the Court of Appeal. I decline to assume jurisdiction in this case. Accordingly the appeal is struck out for want of jurisdiction.
The third and fourth prisoners did not appeal against their sentences and or convictions and so I am less concerned about them. The first accused, however, appealed against his sentence of five years’ imprisonment with hard labour (to run concurrently) to the High Court presided over by Francois J. The first appellant was granted leave to appeal and on 6 April 1973 the learned High Court judge reduced the sentence of five years to four years’ imprisonment with hard labour to run concurrently. In his ruling the learned judge stated as follows:
“There is no merit whatsoever in this appeal against conviction and it is consequently dismissed. As to the sentence I see no reason why there should be disparity between the appellant’s sentence and that of the second accused in the court below. I shall accordingly vary the appellant’s sentence to imprisonment for four years’ imprisonment with hard labour. Save for this variation, the appeal is dismissed. Court below to carry out.”
[p.70] of [1974] 1 GLR 67
Agorsu Dasu is the one who was sentenced to four years’ imprisonment with hard labour by the learned circuit judge. He is the appellant in this case before this court. Obviously the reduction of the sentence of the first accused from five years to four years’ imprisonment with hard labour is incurably bad in law. It is a nullity but whether the reduction of the sentence can be recognised by the prison authorities is another matter which I would not like to discuss here. Suffice it to say that a court has an inherent jurisdiction on its own motion to set aside its own judgment obtained by a step not sanctioned or warranted by law, for instance where the judgment or order was given without jurisdiction: see Amoabimaa v. Badu (1957) 2 W.A.L.R. 214 at p. 216, W.A.C.A., Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C. and Craig v. Kanssen [1943] K.B. 256, C.A. An appeal is not even necessary to set aside such a judgment given without jurisdiction but as a matter of formality an application is normally brought to court for pronouncement on it to set it aside. In fact no time limit is stipulated as to time within which such an application can be made.
The circumstances of this case are such that I think a special order should be made. No doubt the appellant thought that he had a right to appeal to this court. He had not. Since he was awarded a sentence of four years’ imprisonment with hard labour I think it would be quite wrong in those circumstances that he should lose time. Accordingly an order will be made in this case that he should lose no time: see R. v. Lynch (1966) 50 Cr.App.R. 59, C.C.A. Section 178 (2) of Act 30 itself reads as follows:
“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.”
Cases tried on indictment by the circuit court are appealable to the Court of Appeal and not to the High Court. It is for this reason that I decline to entertain jurisdiction.
DECISION
Appeal struck out for want of Jurisdiction.
S.E.K.
