HIGH COURT, SEKONDI
DATE: 3 FEBRUARY 1971
EDUSEI J.
CASE REFERRED TO
Fulani v. The Republic, High Court, 12 September 1968, unreported; digested in (1969) C.C. 4.
NATURE OF PROCEEDINGS
APPEAL from a decision of the District Court Grade II, Takoradi, in which the appellant’s sentence of a fine of N¢50.00 or three months’ imprisonment was accompanied by a deportation recommendation.
COUNSEL
Mercer for the appellant.
Tagoe for S. G. Baddoo, State Attorney, for the respondent.
JUDGMENT OF EDUSEI J.
The appellant pleaded guilty to a charge of assault under section 48 of the Criminal Code, 1960 (Act 29), before the District Court Grade II, Takoradi, and was convicted and sentenced to a fine of N¢50.00 or three months’ imprisonment with hard labour on 15 December 1970. She has appealed against her sentence and the order recommending her
[p.236] of [1971] 1 GLR 235
deportation. The grounds of appeal filed by her counsel are as follows:
(1) The sentence is harsh and unconscionable.
(2) The recommendation for deportation is unjustified in law.
The arguments of counsel for the appellant centred mainly around ground (2). Section 12 (1) (a) and (2) of the Aliens Act, 1963 (Act 160), read as follows:
“12. (1) An alien is liable to deportation—
(a) if a Court recommendation for his deportation is effective under the following subsection; or …
(2) A court recommendation for the deportation of alien shall be effective for the purposes of paragraph (a) of the preceding subsection if it was made by a court on conviction of an offence for which the court had power to impose a sentence of imprisonment without the option of a fine, and—
(a) on appeal against conviction or sentence the appellate court concurred in the recommendation, or
(b) no such appeal was brought within the time allowed for appeals, but— (i) the recommendation was made by the High Court, or
(ii) the recommendation was made by an inferior court and was concurred in by the Chief Justice.”
Counsel referred to section 12 (2) of Act 160 and his chief contention was that if the offence with which the accused was charged attracted a fine or a term of imprisonment then the recommendation for deportation was out. Counsel is in effect saying that the only occasion that a court can recommend deportation is where the offence is punishable by a term of imprisonment only. This is the substance of Mr. Mercer’s arguments. I do not subscribe to this interpretation for if it were so the draftsman would have employed words to that effect. He could have said something like this:
“A court recommendation for deportation of an alien shall be effective for the purposes of paragraph (a) of the preceding subsection if it was made by a court on conviction of an offence punishable by a term of imprisonment only.”
The learned state attorney, Mr. Baddoo, held the contrary view and said, “Where the court has the power to sentence an accused person to a term of imprisonment or a fine, the court can recommend deportation.” He contended that the emphasis was on the word “power” in section 12 (2) of Act 160 and went on to illustrate this point by referring to section 28 (1) of the Currency Act, 1964 (Act 242), where the sentence prescribed is a fine only. He contrasted this section with section 84 of the Criminal Code, 1960, where the court could sentence the accused person to a term of imprisonment or a fine, and in the latter case the trial court, the state attorney said, could recommend deportation whether the accused went to prison or was fined.
[p.237] of [1971] 1 GLR 235
I have given careful and analytical consideration to the arguments from both sides and I must confess I have not been persuaded by these arguments. I, however, agree with the state attorney, Mr. Baddoo, that the emphasis is on the word “power.” My view of the section 12 (2) of Act 160 is that where an alien is charged with an offence and a trial court has the power either to sentence the accused to a term of imprisonment or to a fine and it chooses to impose a term of imprisonment without the option of a fine, then the court can recommend deportation. According to The Concise Oxford Dictionary the word “option” in this context means “liberty of choosing” and “freedom of choice,” and an example of the use of the word “option” is given in the same dictionary as “imprisonment without the option of a fine.” The significance of this expression is that there is a freedom of choice between imprisonment and a fine. This means that a term of imprisonment can be imposed by the trial court even though it has power to sentence the accused person to a fine, but where it chooses to impose a term of imprisonment without the option of a fine (even though the court has power to impose a fine) then the recommendation for deportation will be in order. On the other hand if the court gives the accused the option of a fine its power to recommend deportation is out. The wording of section 12 (2) presupposes that the court has the power to impose a term of imprisonment or a fine but if it chooses the former sentence (imprisonment) without the option of the latter (fine) then it can recommend deportation. I, therefore, maintain that the proper interpretation to be put on section 12 (2) of Act 160 is what I said in Fulani v. The Republic, High Court, 12 September 1968, unreported; digested in (1969) C.C. 4. If the court on convicting an alien sentences him to a term of imprisonment but does not give the convicted person an option to pay a fine even though the court has the power to do so, a recommendation for deportation is valid. The appellant herein was convicted for assault which is punishable by a term of imprisonment or a fine, but the court gave her the option of a fine and in fact imposed a fine of N¢50.00. In the circumstances, the recommendation for deportation cannot stand.
Even if the recommendation for deportation had been a valid one, i.e made after sentencing the appellant to a term of imprisonment, I would not have been prepared to concur in that recommendation. A recommendation for deportation must not be taken lightly by trial courts. I am of the view that consideration must be given to the offence in respect of which the alien accused is charged and his character and antecedents including previous convictions, if any, must be taken into account. The circumstances surrounding the commission of the offence must also be taken into consideration. I do not think that the power to recommend deportation will be a proper exercise of discretion if the offence with which the accused alien is charged is an ordinary assault and there are no aggravating circumstances. From the facts of this case the assault committed by the appellant against the complainant is not of any serious nature, and it is one of those assaults common among women and persons of low intelligence.
[p.238] of [1971] 1 GLR 235
I wish to reiterate, for the guidance of all inferior courts, what I said in the Fulani case (supra): “It is my considered opinion that when a court recommends the deportation of an alien after conviction and sentence it is absolutely essential that information about his country be sought from both the prosecutor and the convicted person himself so that a record of his citizenship may appear on the record of proceedings, and his non-Ghanaian citizenship may not be in doubt.”
I hope that compliance with this view will save many appeals being allowed for it is only an alien who can be deported. Mere mention by the prosecuting officer that the accused is an alien simpliciter is not enough. His country must be ascertained and a record made of it, for after all he will have to be deported to his home country if such a recommendation is made and concurred in by the appropriate authority.
For the above reasons I allow the appeal in respect of the order as to the recommendation for deportation, and set it aside. Subject to this the appeal against sentence is dismissed.
DECISION
Appeal allowed in part. T. G. K.
