KOFI ALIAS FIOZO v. THE STATE [1965] GLR 28

Division: HIGH COURT, CAPE COAST

Date: 29 JANUARY 1965

Before: LASSEY J.

CASE REFERRED TO

Mensah v. Commissioner of Police [1963] 2 G.L.R. 536, S.C.

NATURE OF PROCEEDINGS

APPEAL from a conviction by the Cape Coast Circuit Court on 9 November 1964, for smoking Indian hemp contrary to sections 48 (a) and 57 of Act 64. The facts are as set out in the judgment.

COUNSEL

T. D. Brodie-Mends for the appellant.

F. K. Sarkodee, State Attorney, for the respondent.

JUDGMENT OF LASSEY J.

This appeal which has been brought against the conviction of the appellant raised a question of law. The appellant was convicted at the Circuit Court, Cape Coast, on 9 November 1964 for smoking Indian hemp, contrary to sections 48 (a) and 57 of the Pharmacy and Drugs Act, 1961,1 and was sentenced to three years’ imprisonment. The appellant who was eighteen years old pleaded guilty to the offence.

Leave was at first granted to the appellant to appeal against the sentence of three years imposed on him by the trial court, but learned counsel for the appellant later conceded that the sentence imposed was duly authorised by law and accordingly abandoned the appeal on that ground. The question of law raised and argued on behalf of the appellant was that the entire proceedings before the trial circuit court were a nullity on the ground that the personal consent of the Attorney-General was not sought and given before prosecution of the appellant was begun under the relevant section of Act 64.

At the hearing of the application for leave to appeal learned counsel for the appellant argued that the proceedings before the circuit court were illegal because the Attorney-General’s fiat was never obtained.

It was then not suggested that the personal consent of the Attorney-General was never obtained; it was never the case of the appellant that although the fiat was available before the trial court, yet the personal consent of the Attorney-General was not given as required by the relevant section. However, at the hearing of the appeal learned counsel submitted that as the personal consent of the Attorney-General was not obtained before proceedings

[p.30] of [1965] GLR 28 started the summary conviction by the learned circuit judge was wrong.

Learned counsel seemed to have found support for his contention in the judgment of the Supreme Court in the case of Mensah v. Commissioner of Police.2

Before I examine this important controversial point of law I must first consider whether this appeal was properly brought before me; in other words, whether the appellant has a right of appeal in view of his conviction after a plea of guilty. Section 324 (3) of the Criminal Procedure Code, 1960,3 provides, “No appeal shall be entertained against conviction by an accused person who has pleaded guilty and has been convicted on his plea.” The section is mandatory and contains no proviso making exceptions for the exercise of the right of appeal in cases where, for example, the charge is bad in law or where the plea of guilty is no plea at all because the particulars do not constitute any offence known to the law for the time being in force.

Notwithstanding the mandatory provision of the section just referred to I am of the view that in cases where a plea of guilty has been recorded, the appellate tribunal can entertain and hear an appeal against conviction if it appears on the face of the record that:

(a) the appellant who was not represented at the trial did not understand or appreciate the nature of the charge or charges, or did not intend to admit that he was guilty; or

(b) upon the admitted facts he could not in law have been convicted of the offence charged, especially as in the instant case where some statutory condition which has to be performed before the charge was laid had not been compiled with.

I do not myself think that it was the intention of the legislators when enacting that section to deprive an appellant who has been convicted upon a plea of guilty of the right to appeal against his conviction in the special circumstances I have just mentioned. If it were so, great injustice would be caused to an illiterate prisoner who pleads in ignorance to an obviously bad charge and who is not represented by counsel.

If, however, I am right in my view as to how section 324 (3) must be construed and applied, then where an appellant who has been convicted after a plea of guilty to an offence preferred under section 48 of Act

64, and it should transpire after the trial that the statutory

[p.31] of [1965] GLR 28 condition imposed by obtaining the personal consent of the Attorney-General before initiating proceedings under the section had not been fulfilled, he would appear to have a right to appeal against any such conviction. In that respect the charge preferred under the section without first complying with the statutory condition would constitute no proper or valid charge according to law, and the entire trial, together with the conviction based upon the plea of guilty, would be null and void altogether. It is for this reason that I feel in the present case I have the power to entertain the appeal and examine the legal questions raised in the arguments of counsel.

There is no doubt that the fiat which was signed by the state attorney was available at the trial court before the prosecution began. I do not think learned counsel for the appellant does quarrel with that fact.

His submissions, if I understand him right, are that the proceedings were illegally instituted in contravention of section 54 (5) of Act 64, because the personal consent in writing of the Attorney-General was not obtained. The relevant provision of section 57 (5) of Act 64 reads, “No proceedings shall be instituted for an offence under this Act without the consent in writing of the Attorney-General.” Learned counsel for the appellant contended that the written consent of the Attorney-General was never proved or produced.

Learned state attorney for the respondent met this submission by arguing that by virtue of sections 2 and 4 of the Law Officers Ordinance,4 any note, instrument or writing signed by a law officer above the rank of assistant state attorney constitutes a valid consent given by the Attorney-General as required by section 57

(5) of Act 64. He contended that on the facts of this case it has not been disputed that the bill of indictment or the charge sheet was signed by the state attorney on behalf of the Attorney-General in accordance with the requirements of sections 2 and 4 of the Law Officers Ordinance, 1952. Learned state attorney has therefore concluded that that was sufficient consent and that the trial was regular and the conviction good. After examining the relevant sections referred to in the arguments of counsel and the ratio decidendi of the case cited to me by learned counsel for the appellant, I am inclined to the view that it was not the intention of the legislators when enacting section 57 (5) that before proceedings under the Act were begun the Attorney-General must himself personally sign the charge sheet or the bill of indictment. The Act itself does not specify that the written consent should be in

[p.32] of [1965] GLR 28 any particular form before it should constitute a valid written consent of the Attorney-General. In my opinion the combined effect of section 4 of the Law Officers Ordinance and section 57 (5) of Act 64 if read together is that where proceedings are intended to be taken under the section notice of the intended prosecution should be brought to the personal attention or knowledge of the Attorney-General, and after that, a fiat signed by the state attorney on his behalf and made available to the trial court would constitute a sufficient consent within the meaning of the subsection. In expressing this opinion I am not in any way attempting to suggest that the case cited to me has been wrongly decided. There cannot be any criticism of that judgment in a court like my own whose jurisdiction is inferior to that of the Supreme Court whose decision I have carefully considered before reaching my own conclusion on the particular facts of this case.

In this case it has not been suggested that notice of the intended prosecution was never given to the

Attorney-General; that could have been done either by a telephone conversation or by written correspondence or even verbally in view, of the fact that no specified form has been prescribed under the section. It follows, in my view, that as the charge sheet was signed by the state attorney, there was nothing to show that before that had been done the matter was never brought to the personal notice of the

Attorney-General. The onus which lay on the appellant that that was never done had not been challenged, for the legal presumption that all official acts have been regularly performed which is applicable in the present circumstances has not been refuted. It must be presumed that the matter was regularly brought to the notice of the Attorney-General for his consent as evidenced by the signature of the state attorney on the indictment or charge sheet unless the contrary has been alleged and established to the satisfaction of the court. It cannot be presumed that the matter was never brought to the notice of the Attorney-General before the prosecution was begun under this section.

For these reasons, I am of the opinion that the proceedings in this case were legally instituted and were not in contravention of subsection (5) of section 57 of Act 64. The conviction after plea of guilty was right and should be upheld.

DECISION

Appeal dismissed.

E. A.-A.