DORVLO vs. THE REPUBLIC [2001-2002] 1 GLR 679

CASES REFERRED TO:

(1) MacFoy v United Africa Co Ltd [1962] AC 152; [1961] 3 WLR 1405; [1961] 3 All ER 1169, PC.

(2) Ewudzi v Dadson (1958) 3 WALR 82.

(3) Frafra (Atinga) v The Republic [1968] GLR 85.

(4) Kwaku v The Republic [1978] 1 GLR 279.

(5) Ofei v The State [1965] GLR 680, SC.

(6) Watara v The Republic [1974] 2 GLR 24.

(7) Forson v The Republic [1976] 1 GLR 138.

(8) Hassan v The State [1962] 2 GLR 150.

APPEAL from a judgment of the Circuit Court, Ho convicting the appellant, inter alia, of the offence of stealing following his plea of “guilty with explanation” to the charges for which he had been arraigned. The facts are sufficiently set out in the ruling of the court.

Nudo for the appellant.

J Asafo for the Republic.

Acquah J. The appellant was arraigned, together with one other, before the Circuit Court, Ho on charges of stealing contrary to section 124(1) of the Criminal Code, 1960 (Act 29) and possessing firearm at a proclaimed area contrary to section 1 of the Public Order (Prohibition of Arms and Ammunition) (Awudome and Peki

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Traditional Areas) Instrument, 1986 (EI 10 of 1986). He pleaded guilty with explanation to both charges and was convicted and sentenced to 24 months’ imprisonment with hard labour on each count.

The facts as presented by the prosecution are that the appellant and the other accused stole two live sheep on 16 July 1989 from Dededo and brought the two animals to Anum Asikuma for sale. The local committee for the defence of the revolution arrested them but the appellant later managed to escape. The other accused person mentioned the appellant as the owner of the animals. The appellant was later arrested and a cap gun was found in his possession. He was accordingly charged, and he pleaded guilty with explanation on both counts. The only recorded explanation of the appellant is: “The second accused — I thought the sheep was for my mother.” He was accordingly convicted and he now appeals to this court against his conviction and sentence on the following grounds: “(1) the conviction was wrong in law and cannot be supported having regard to the evidence; and (2) the sentence is harsh.”

Counsel for the appellant, Mr Nudo, argued that the recorded explanation does not amount to an admission of guilt and that the trial circuit court judge ought to have entered a plea of “not guilty” in respect of both counts. He pointed out that the explanation has no relevance at all to the charge of “possessing fire arms in a proclaimed area”, and that since the appellant was unrepresented the trial judge ought to have satisfied himself that the appellant really meant to plead guilty on both counts. Mr James Asafo, counsel for the Republic readily conceded that the recorded explanation did not amount to an admission of guilt and that the circuit judge erred in not entering a plea of not guilty.

I agree entirely with both counsel on this submission that on a proper assessment of the recorded explanation offered by the appellant, a plea of not guilty should have been entered. Consequently, the failure of the trial judge to enter the said plea renders the trial a nullity, and the conviction and sentence ought to be set aside.

I must say that although there is no plea statutorily known as “guilty with explanation”, yet I can take judicial notice of the fact

[p.683] of [2001-2002] 1 GLR 679 that this form of plea is perhaps the commonest form of plea offered by very many accused persons who for one reason or the other believe that they have some excuse for committing the offence levelled against them. There are others who plead “guilty with explanation”, not because they are guilty but principally to short-circuit the trial and save themselves the onerous task of going through the full trial. Now, because a plea of “guilty with explanation” is not known to our law, a trial court cannot convict an accused person on this plea unless the court has fully satisfied itself that such a plea amounts to an admission of guilt, otherwise any conviction on such a plea will be quashed on appeal. And it is for this reason that the provisions of sections 171 and 199 of the Criminal Procedure Code, 1960 (Act 30) impose a mandatory duty on trial courts to ensure that the plea of the accused persons amount to that of “guilty” or “not guilty.” And Section 171(4) of Act 30 even goes on to provide that where the accused refuses to plead to the charge, a plea of “not guilty” should be entered for him. The said subsection reads:

“(4) If the accused or his advocate, as the case may be, refuses to plead, or if he does not appear and the Court decides to hear the case in his absence under the provisions of section 170 a plea of not guilty shall be entered and the plea so entered shall have the same force and effect as if the same had been actually pleaded.”

It is therefore clear that a plea of guilty should be entered only in circumstances where the accused consciously and with full knowledge of the implications of the plea, offers such a plea; or if he offers the plea of “guilty with explanation”, makes such an explanation thereafter which upon a proper assessment of the said explanation undoubtedly shows that the accused admits committing the offence and thereby accepts his guilt.

The appellate courts are burdened with numerous appeals from convictions on pleas of “guilty with explanation” and as a way of practice direction to the trial magistrate courts, I propose the following guidelines in situations where an accused pleads “guilty with explanation.” After the charge has been read over, interpreted and fully explained to the accused who thereafter offers the plea of

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“guilty with explanation”, the court should:

(1) Record the plea.

(2) Record word for word, whatever explanation is offered.

(3) Put down in writing, to form part of the record, the court’s assessment of that explanation as to whether in the court’s opinion such an explanation amounts to an admission of guilt or not; ie whether by that explanation the accused admits having committed the offence.

(4) If the court’s conclusion from the assessment is that the explanation amounts to an admission of guilt, he should make such a recording, and proceed to convict. If the court’s conclusion is that the explanation does not amount to an admission of his guilt, the court should make such a recording and enter a plea of “not guilty”, and direct the prosecution to open their case.

(5) If the accused after pleading “guilty with explanation” fails to offer an explanation, the court should demand an explanation, and if he still refuses to offer one, the court should enter a plea of “not guilty” and proceed to take evidence. For in this situation, a plea of “guilty with explanation” without any explanation offered, does not amount to a plea of guilty. The court should assume that the accused has offered no plea.

I am confident that if trial magistrates follow the direction above by spending a little time in putting down in writing their assessment of explanations, most of them will not falter in arriving at the proper plea to enter for the accused.

In this instant appeal, once I have held that the trial circuit judge ought to have entered a plea of “not guilty” for the appellant, and that his failure to do so had rendered the trial a nullity and thereby vitiated the conviction and sentence, the problem now is in respect of the appropriate order to make in the circumstances. Mr Nudo, counsel for the appellant, submits that his client has spent seven months in prison, and therefore it would be unjust for a retrial to be ordered. He therefore pleads for acquittal. He is supported in this view by Mr Asafo, counsel for the Republic. Thus the question is: When an appellate court declares a trial to be a nullity, should the court order a retrial or an acquittal?

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Normally when a trial is declared a nullity, it means in effect, that what purported to be a trial was no trial, and therefore there has to be a new trial. And if what purported to be a trial, was no trial, then one cannot properly be acquitted in a situation where he had not been tried in respect of the charges he was facing. That trial having been declared a nullity, nothing can emanate therefrom. As Lord Denning said in MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 at 1172, PC:

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

Strictly speaking, therefore, where proceedings have been declared a nullity, a retrial ought to be ordered. But it appears that our legislation on criminal law and procedure does not mandatorily direct that whenever proceedings are found to be a nullity, a retrial should be ordered. However, section 199(6) of Act 30 provides that where the Supreme Court is of the opinion in an appeal against conviction, that a plea of not guilty should have been entered by the trial court, the Supreme Court shall have the right to order a retrial. The said section 199(6) of Act 30 reads:

“(6) If the Court decides not to alter the plea the Supreme Court shall have the right, on appeal against conviction, to order a re-trial if the Supreme Court is of opinion that a plea of not guilty should have been entered by the trial Court”.

Section 199 of Act 30 deals with the plea of guilty by an accused person in a trial on indictment. And the primary object of the section is to ensure that an accused who offers a plea of guilty really understands the nature and consequences of pleading guilty and further that the said accused did really mean to plead guilty. In my view, section 199(6) of Act 30 only gives the Supreme Court the right to order a retrial if the trial court ought to have entered a

[p.686] of [2001-2002] 1 GLR 679 plea of not guilty. The subsection does not make it imperative for the Supreme Court to order a retrial. Otherwise the power of the Supreme Court in this subsection will conflict with the powers of the Supreme Court and the other appellate courts below it in section 26(13)(a)(i) of the Courts Act, 1971 (Act 372). In fact, one can rightly say that this section 199(6) of Act 30 has impliedly been repealed by section 26(13)(a)(i) of Act 372 which gives the Supreme Court and the other appellate courts the discretion to order a retrial or to order an acquittal. Section 26(13)(a)(i) of Act 372 reads:

“(13) subject to the provisions of this section, an appellate court may in a criminal case—

(a) on an appeal from a conviction or acquittal,—.

(i) reverse the finding and sentence and acquit and discharge or convict the accused as the case may be or order him to be retried by a Court of competent jurisdiction, or commit him for trial.”

Thus where an appellate court holds that a conviction is bad because the trial is a nullity, the appellate court, by the above provision, is not mandatorily directed to order a retrial, neither is the court bound to acquit the appellant. The appellate court is given a discretion to make the appropriate order. And also under section 12(6) of Act 372, the Court of Appeal is given a discretion to order a retrial where the proceedings of the trial court had been found to be a nullity either through want of jurisdiction or otherwise. Finally, section 330(1)(a)(i) of Act 30 which deals with the powers of the High Court in criminal appeals is in the same vein as section 26(13)(a)(i) of Act 372.

None of these sections makes it imperative for an appellate court to order a retrial in a situation where the proceedings have been found to be a nullity. Thus the decision to order a retrial or acquittal depends largely on the particular facts and circumstances of the case. And from the decided cases, the courts have acted on the principle whether the appellant had already suffered such substantial injustice arising at the hands of the trial court that it would be patently unfair and unjust to order a retrial; where there is no substantial injustice, a retrial has been ordered. Thus in

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Ewudzi v Dadson (1958) 3 WALR 82 the trial magistrate after an accused had pleaded not guilty, dismissed and acquitted him on a submission made on his behalf that the charge was not properly laid, at a time when the prosecution’s case had not been heard. The High Court allowed the appeal and ordered a retrial. Again in Atinga Frafra v The Republic [1968] GLR 85, where the appellant was convicted on his own plea of guilty and sentenced to six months imprisonment with hard labour, the High Court allowed the appeal against conviction and ordered a retrial at a time when the appellant had served part of the six months’ prison term. In Kwaku v The Republic [1978] GLR 279, Roger Korsah J went as far as holding that a retrial must be ordered only if the appellant suffered no punishment between the date of the conviction and the determination of his appeal, and that where the appellant had suffered punishment by serving a portion of the sentence imposed by the trial court, it would be unjust in the circumstances to order a retrial. At p 282 of the report, he says:

“It seems to me, however, that a re-trial must be ordered if the appellant suffers no punishment between the date of conviction and the determination of his appeal, but where the appellant has suffered punishment by serving a portion of the sentence imposed by the trial court, the appellate court in making an order, after upholding the appeal, must consider whether sending the appellant back to face trial afresh, would not, in the circumstances, be unjust.”

Does it mean that the period spent by an appellant as a remand prisoner before judgment was delivered by the trial court, ought to be disregarded? What portion of the sentence would entitle an appellant not to be retried? An appellant who has served a week of a two year sentence, has certainly served a portion of the sentence, and is thereby entitled, according to his lordship’s holding, not to be retried. I respectfully think that his lordship’s holding is such as to lead to some injustice or pave the way for a number of criminals to be set free. The decided cases show that the matters taken into consideration in arriving at the appropriate order go beyond the space between the date of conviction and the determination of the appeal. Thus in Ofei v The State [1965] GLR 680 at 687, SC

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Ollennu JSC speaking for the Supreme Court which had declared a trial a nullity said: “We are aware of the powers in us vested by section 16(5) of the Courts Act, 1960, (CA 9) to order the appellant to be re-tried if justice would thereby be done. But having regard to the treatment the appellant received at the hands of the circuit court judge, the length of time he has wrongly been in custody and all the other circumstances of the case, we think, in the interest of justice, that this is not a case in which that power can justly be exercised.”

This was a case in which the appellant who had pleaded “not guilty” to 75 counts of stealing various sums of money and the prosecution had already called 45 witnesses, was induced by the trial circuit judge, in the middle of the proceedings, to change his plea to that of “guilty.” He sentenced him to three years’ imprisonment with hard labour and the Supreme Court refused an invitation to order the appellant to be retried. Next, in Watara v The Republic [1974] 2 GLR 24 at 36, Osei-Hwere J (as he then was) after declaring the proceedings a nullity and observing that the appellant had already served some nine months of the sentence, stated as an additional reason for refusing to order or retrial:

“I have also indicated that the particulars of the charge, as they stand, are hopelessly bad and it is not unlikely that all sorts of manoeuvres will be adopted by the prosecution to get the appellant to stand his trial on a proper charge. It is for all these reasons that I hold that justice will not be served in ordering a retrial.”

And finally, in Forson v The Republic [1976] 1 GLR 138 at 150 Taylor J (as he then was), after declaring the trial to be a nullity, said:

“Normally this calls for a new trial so that the appellant goes back to the court below to take his trial since in such cases it means he has had no trial at all. The appellant however has already served fifteen months, twelve months of which are clearly unlawful Before trial he was remanded

[p.689] of [2001-2002] 1 GLR 679 in custody and he would seem to have spent about seven months in custody as a remand prisoner before conviction. He was not represented by counsel and he had no way of knowing that the state apparatus for justice has been inadvertently operated in an oppressive manner to his great disadvantage. To order a new trial in such a situation is clearly outrageously unfair and unjust and I do not propose to do so. I think courts of justice must endeavour to do justice.”

It is therefore clear that other factors, apart from the mere serving of part of the sentence, are taken into consideration in determining whether it will be just or unjust to order a retrial. As pointed out by Osei-Hwere J (as he then was) in Watara v The Republic (supra) if the appellant cannot be retried on the original charge, it would be unjust to order a retrial. In fact, in Hassan v The State [1962] 2 GLR 150, SC Ollennu JSC held, as stated in the headnote, that:

“A declaration that criminal proceedings are null and void means that the charge is good but the court that purported to try it was void of jurisdiction. In such a case a re-trial can be ordered but upon the original unamended charge.”

(The emphasis is mine.)

Also, where the retrial would give the prosecution an unfair advantage over the appellant, or where it would amount to judicial persecution, the courts have held that it would be unfair and unjust to make such an order. The guiding principle therefore, as stated earlier on is, taking all the circumstances of the case into consideration, would it amount to grave injustice on the part of the appellant to order a retrial?

In the instant appeal, the appellant had served seven out of the 24-month sentence imposed on him. Looking at the nature and gravity of the charges he faced, I am of the view that the seven- month sentence he had served, is an adequate punishment if he were properly found guilty. He cannot be compensated for the unlawful sentence he had served, and I therefore agree with both

[p.690] of [2001-2002] 1 GLR 679 counsel that this is a proper case where it would be unjust to order a retrial.

Accordingly, I allow the appeal, set aside the conviction and sentence, and acquit and discharge the appellant.

Appeal allowed.

Appellant acquitted and discharged.

AD