MENDS-BUAH vs. THE REPUBLIC [1995-96] 1 GLR 26

CASES REFERRED TO

Abbey v The Republic, Court of Appeal, Accra, 15 June 1994, unreported.

[p.28] of [1995-96] 1 GLR 26

NATURE OF PROCEEDINGS

APPEAL against the decision of the public tribunal which sentenced the appellant on conviction of fraud by false pretences to an eighteen months’ imprisonment with hard labour and to pay ¢9 million to the victim of the offence or in default ten years’ imprisonment. The facts are sufficiently stated in the judgment of Wood JA.

COUNSEL

Kenneth Mainoo for the appellant.

Anthony Gyambiby (Senior State Attorney) for the Republic.

JUDGMENT OF BROBBEY JA

Brobbey JA read the first judgment at the invitation of Wood JA. The second leg of the appeal relates to the sentence of imprisonment imposed on him. He was sentenced to eighteen months’ imprisonment after his conviction. Having regard to the nature of the offence and the circumstances surrounding the conviction for that offence, I am of the opinion that that sentence is rather on the low side.

The Courts Act, 1993 (Act 459), s 30(a)(i) and (b) empowers this court to amend the sentence of the trial tribunal. At the trial, the tribunal in sentencing the appellant stated that: “What the accused is proved to have done is most treacherous and must be fought against in no uncertain terms.” It is significant to observe that there is no appeal against the conviction. I would therefore enhance the prison sentence of eighteen months from the date of his conviction by the trial court.

The appellant having been sentenced to eighteen. months’ imprisonment was in addition ordered to refund ¢9 million to the complainant. It was further ordered that he should go to prison for ten years if he is unable to refund that amount.

There is no doubt that the order for alternative imprisonment for the non-compliance with the refund order was illegal because of section 31 of the Public Tribunals Law, 1984 (PNDCL 78) which permits such an order of refund further provides in section 31(2) that such court order is enforceable as a civil process. The provisions in section 31 of PNDCL 78 are similar to the provisions in the Criminal Procedure Code, 1960 (Act 30), s 147(l) and (2). There is no statutory provision empowering a court or tribunal to impose a sentence as alternative to non-compliance with such order of refund. The ten-year alternative sentence tagged on to the order for refund is indefensible and is therefore struck out. The appeal is therefore allowed on the ground concerning that order of refund.”

[p.29] of [1995-96] 1 GLR 26

JUDGMENT OF WOOD JA.

On 15 December 1992 the appellant was found guilty and convicted by the National Public Tribunal presided over by Mr K B Anning. He was given a custodial sentence of eighteen months’ imprisonment with hard labour on each of the counts and ordered also to “refund ¢9 million to the first prosecution witness, Alhaji Adams, or in default ten years’ imprisonment with hard labour.”

Being dissatisfied with the conviction and sentence, he appealed against both on a number of grounds. At the hearing, however, the appeal against conviction was abandoned. The appeal therefore turned on the sentence only on the ground that it was “harsh and excessive having regard to the circumstances of the case.”

The appellant’s counsel based his argument partly on some of the all too familiar matters urged in appeals of this kind. First, that the appellant is a first offender. Secondly, that as the appellant was kept in custody for some two years from the date of his arrest, in passing sentence, the tribunal ought to have taken this period of detention into consideration. But perhaps the more serious point argued on this question of the excessiveness of the sentence is this: that having regard to the decision of this court in the unreported case of Abbey v The Republic, Court of Appeal, Accra, 15 June 1994, unreported, the consequential sentence of ten years’ imprisonment in default of the refund of the ¢9 million, be set aside in its entirety. Alternatively, it was argued that the sentence ought to be reduced to meet the requirements of section 297 of the Criminal Procedure Code, 1960 (Act 30) particularly since the amount that actually changed hands was ¢7,125,000.

In prevailing upon us to dismiss the appeal, counsel for the Republic urged us not to overlook the following. First, that the offence in respect of which the appellant was convicted involved dishonesty, ie fraud by false pretences, for which by law the maximum sentence is 25 years. Even so it was argued, the Public Tribunals Law, 1984 (PNDCL 78), the statute under which the appellant was tried and convicted, sets the minimum sentence for such offences at three years though for stated reasons it has power to impose a lesser term. The argument of counsel then is that the term of eighteen months’ imprisonment not only breached PNDCL 78 but was most “unreasonably lenient.”

On the more important issue of whether or not the tribunal had

[p.30] of [1995-96] 1 GLR 26 power to impose the sentence of ten years should the appellant fail to refund the ¢9 million, counsel’s answer is that the tribunal had power under sections 18(2)(a), 30 and 32 of PNDCL 78 to order the refund so as to put the victim to the status quo ante. Counsel’s view was that section 297 of Act 30 is wholly inapplicable to this case as the order was not in the nature of a fine but a compensation. Nonetheless, his invitation to us is that even if we were minded to set aside this custodial sentence, we should, having regard to the circumstance of this case, enhance the sentence of eighteen months’ imprisonment.

I am satisfied that section 297 of Act 30 is inapplicable to this case. That section deals with those cases where in addition to or apart from the imposition of a term of imprisonment, the court in its discretion sentences an accused to a fine either in “addition to or in lieu of any other punishment to which he is liable.” Section 297(3) of Act 30 lays down the term of imprisonment the convicted person shall suffer if he defaults in paying the fine. The situation that we have in this case is different. No fine was imposed on the appellant. The order simply was that he refunds the amount of ¢9 million to the person named. We have been told it was in the nature of compensation. But the question is, was it ultra vires the powers of the tribunal to have imposed the imprisonment of ten years?

That the tribunal had power to order compensation in favour of the victim is unquestionable: see section 31(1) of PNDCL 78 which reads:

“31. (1) Where a person is convicted of an offence under this Law and is sentenced by a Public Tribunal the Tribunal may, in addition to the sentence, on application by the victim of the offence or his representative or on the Tribunal’s own motion—

(a) make an order requiring the offender to pay to the victim of the offence compensation for any personal injury, loss or damage resulting from that offence or any other offence which was taken into consideration by the Public Tribunal in determining the sentence.”

It is plain however from the statute that the court has no power to impose a custodial sentence in default of the payment of the compensation. It seems to me the Law intended such a compensation to retain a civil rather than criminal character hence the only mode for

[p.31] of [1995-96] 1 GLR 26 enforcement of such orders under the statute is that provided under section 31(2) of PNDCL 78 which provides as follows:

“(2) Where a person fails or refuses to pay compensation as ordered under subsection (1) of this section, as much of his property as is equivalent to the compensation so ordered shall be confiscated to the State, and disposed of, and the proceeds shall be paid to the victim of the offence.”

Having regard to these clear provisions, the custodial sentence of ten years imposed by the tribunal is not merely harsh and excessive but undoubtedly illegal and it ought not to stand. I would set it aside in its entirety. However, having regard to the offences with which the appellant is charged, the circumstances leading thereto, the mandatory minimum sentence which such offences attract, the fact that the tribunal though enjoined by law to, stated no reasons for going below the minimum requirements of the law, I think the sentence of eighteen months is extraordinarily lenient and we ought in the exercise of our powers to enhance it.

JUDGMENT OF ESSILFIE-BONDZIE JA.

I agree.

DECISION

Appeal allowed in part.

JNNO