MAMA FULANI v. THE REPUBLIC [1968] GLR 777

DIVISION: HIGH COURT, SEKONDI

DATE: 12 SEPTEMBER 1968

BEFORE: EDUSEI J

NATURE OF PROCEEDINGS

Appeal against recommendation of deportation by the district court grade II. The facts are set out in the judgment.

COUNSEL

E. Bentsi-Enchill for the appellant.

Anson for the respondent.

JUDGMENT OF EDUSEI J.

The appellant was charged with stealing various articles to the value of N¢245.00, the property of one Afua Donkor and was convicted and sentenced to twelve months’ imprisonment with hard labour by the district magistrate grade II sitting at Dompim. The district magistrate recommended the deportation of the appellant after serving his sentence. Against this sentence and particularly the order of deportation the appellant has appealed to this court. [p.778] of [1968] GLR 777

It would appear that the district magistrate exercised his powers under the Aliens Act, 1963 (Act 160), in recommending the deportation of the appellant. Section 12 (1) of Act 160 says: “An alien is liable to deportation-(a) if a Court recommendation for his deportation is effective under the following subsection”; and subsection (2) of section 12 also states: “(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,…”

Counsel for the appellant argued that the conviction of the appellant was founded on a charge of stealing under section 124 of the Criminal Code, 1960 (Act 29), and the said offence is a second degree felony; therefore the appellant could not be the subject of recommendation for deportation, and counsel’s contention was that since the court could impose a sentence of a fine for such an offence the district magistrate could not recommend deportation and the court was referred to section 297 (1) of the Criminal Procedure Code, 1960 (Act 30), which is in the following terms: “Where a person is convicted of any felony or misdemeanour or any offence punishable by imprisonment (other than an offence for which the sentence is fixed by law) the Court may, in its discretion, sentence him to a fine in addition to or in lieu of any other punishment to which he is liable”. The learned state attorney also contended that the order for deportation made by the district magistrate was in order and referred the court to section 296 (2) of the Criminal Procedure Code, 1960 (Act 30), as amended by the Criminal Procedure Code (Amendment) Act, 1965 (Act 261), s. 5 which states that: “(2) Where a crime, not being a crime mentioned in subsection 5), is declared by any enactment to be a second degree felony and the punishment for the crime is not specified, a person convicted thereof shall be liable to imprisonment for a term not exceeding ten years”.

Subsection (5)states:

“(5) A person convicted of a crime under any of the following sections of the Criminal Code, 1960 (Act 29) that is to say, sections 124, 128, 131, 138, 140, 145, 151, 152, 154, 158, 160, 165, [p.779] of [1968] GLR 777

239, 252, 253 and 260 shall be liable to imprisonment for a term not exceeding twenty-five years”.

It does seem to me that by this subsection there are increased punishments for certain offences of which stealing is one, but does that preclude the court from imposing a fine for any of such offences in subsection (5) of section 296 of Act 30? I think not.

My interpretation for section 12 (2) of the Aliens Act, 1963, is that if the court on convicting an alien sentences him to a term of imprisonment which the court has power to do but does not give the convicted person an option to pay a fine even though the court has power to do so, a recommendation for deportation is valid. For instance if the district magistrate in the instant case had said, “I sentence the accused to a fine of N¢200.00 or in default twelve months’ imprisonment with hard labour,” he would, in my opinion, have been precluded from making a recommendation for deportation. In such a case the convicted person having been given the option to pay a fine will not be caught by the provisions of section 12 (2) of the Aliens Act, 1963. But in the case before me the district magistrate never gave him an option to pay a fine for his sentence reads: “I sentence the accused to twelve months’ imprisonment with hard labour and in view of his character and conduct I recommend that he be deported after his sentence.”.

My view is that if any other interpretation is put on section 12 (2) of the Aliens Act, 1963, the intention of the magistrate will be defeated and the courts will almost become impotent to recommend deportation of aliens in appropriate cases. If the interpretation sought to be put on the section by learned counsel for the appellant is accepted the impotence of the courts to make recommendation for deportation of aliens becomes very pronounced because most of the offences under the Criminal Code, 1960, are punishable by imprisonment with an option for an imposition of a fine. Such an interpretation will run contrary to the intendment and purpose of the section. There is another matter to which I wish to refer since I consider it to be of some importance. Section 29 of the Aliens Act, 1963, defines an alien as follows:

“‘alien’ means any person who is not a citizen of Ghana.” 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. [p.780] of [1968] GLR 777

In these circumstances I am in doubt as to the nationality of the appellant, and for this reason alone I allow the appeal against the order for deportation. Subject to this the appeal against the sentence is dismissed.

DECISION

Appeal dismissed.

Order for deportation set aside.

S.K.T.