HIGH COURT, KOFORIDUA
Date: 27 MARCH 1975
JONES-MENSAH J
CASES REFERRED TO
(1) Dasu v. The Republic [1974] 1 G.L.R. 67.
(2) Fulani v. The State, High Court, Accra, 19 January 1968, unreported; digested in (1968) C.C. 67.
(3) Kwadu v. The Republic [1971] 1 G.L.R. 272.
NATURE OF PROCEEDINGS
RULING on jurisdiction in an appeal by the appellant to the High Court against conviction and sentence imposed by the circuit court upon committal for sentence by a district court. The facts are set out fully in the ruling.
COUNSEL
Asante-Tannor for the appellant.
Awuku Yeboah, State Attorney (with him Nkansah, Assistant State Attorney), for the Republic.
JUDGMENT OF JONES-MENSAH J.
The accused, James Avanyoh Mensah, was charged before the District Court Grade II, Asamankese, with fraud by false pretences under section 131 of the Criminal Code, 1960 (Act 29). The particulars of offence read as follows:
“For that you on 23 November 1971, at Asamankese in the Eastern Magisterial District and within the jurisdiction of this court with intent to defraud did approach one Kwasi Anyane and collected (108) one hundred and eight shirts value 053.00, and a trunk box value 025.00 all to the total value of 078.00 with pretext of selling same and bring the proceeds but failed to return.”
The accused pleaded guilty to the offence and was convicted on his own plea. On being informed of the previous convictions of the accused which embraced eight convictions for stealing, one for housebreaking, one for failing to report on licence and one for being on premises for an unlawful purpose, the presiding magistrate Mr. S.O. Acheampong committed the accused to the circuit court for sentence under section 178 (1) and (2) of the Criminal Procedure Code, 1960 (Act 30), in view of the criminal record of the accused.
When the accused appeared before the circuit court on commitment the accused admitted the previous convictions and the circuit judge, Judge E. F. Adadevoh, somewhat strangely, recorded a second conviction over the admitted convictions and then handed down a sentence of five years. It is against the conviction and sentence that the accused has appealed to this court. The applicant’s original appeal was against the
[p.195] of [1975] 2 GLR 193
sentence of five years imposed by the circuit judge but Mr. Asante-Tannor who represented the accused at the hearing of the appeal filed three additional grounds of appeal with leave of this court. The grounds were:
“(1) That the conviction is wrong in law.
(2) That the conviction cannot be supported having regard to the facts.
(3) That the accused gave an explanation which was not fully recorded by the trial magistrate.”
Prosecuting the appeal Mr. Asante-Tannor argued only the three additional grounds of appeal and abandoned the original ground filed by the appellant. At the end of Mr. Asante-Tannor’s argument, Mr. Nkansah, assistant state attorney, who was led by Mr. Yeboah, state attorney, raised objection against the appeal being heard by this court on the ground that under section 178 (2) of Act 30 on committal to the circuit court, the conviction seasoned into a conviction on indictment and therefore the competent court to appeal to was the Court of Appeal. He cited the case of Dasu v. The Republic [1974] 1 G.L.R. 67 as authority for this argument. I dismissed the objection, heard and allowed the appeal and reserved my written reasons but orally indicated to counsel for the Republic as clearly as I could my reasons for assuming jurisdiction in the matter. I allowed the appeal on the grounds that the representation made by the accused, being a promise of a future conduct, could not in law amount to an offence under section 131 of Act 29.
I now give my reasons for rejecting the prosecution’s argument and for my assumption of jurisdiction in the matter. I have read the case of Dasu v. The Republic cited by the attorneys for the Republic. In that case, my brother the learned Andoh J. took the view that only one course of action was open to a circuit judge on a committal from a magistrate under section 178 of Act 30. I respectfully think differently. Section 178 strikes me otherwise and in my view, two courses of action are open to the circuit judge under section 178, namely, to sentence the committed person as if he had been convicted summarily (s. 178 (1)); or to sentence the committed person as if he had been convicted on Indictment (s. 178 (2)). It is obvious that section 178 has not been altogether helpful in not creating problems of interpretation. My brother Amissah J.A. sitting as an additional judge alluded to this section in the case of Fulani v. The State, High Court, Accra, 19 January 1968, unreported; digested in (1968) C.C. 67. Although the precise point in this case was not before the court, the learned judge thought obiter, and in my view rightly, that subsection (2) of section 178 of Act 30 was provided to reflect a difference between a summary trial and trial on indictment. That case was not a committal for sentence under section 178 as is the case here but a straight summary trial by a circuit judge. Although the learned judge’s restriction of a circuit judge’s sentencing power when trying a case summarily was held on appeal to be wrong, in my view rightly, I find his observations on section 178 helpful.
In the course of argument, the state attorney also made reference to the case of Kwadu v. The Republic [1971] 1 G.L.R. 272 in which my learned
[p.196] of [1975] 2 GLR 193
brother Taylor J. also discussed the Fulani case with some reference to section 178. But whatever the merits of the learned judge’s exploration in that case are, it seems to me that the incisive question whether or not it is open to a circuit judge acting under section 178 to treat a committal for sentence under subsection (1) or subsection (2) has not yet been taxed upon the Court of Appeal.
In the absence therefore of any authority binding on me it seems to me that section 178 of Act 30 stands the circuit judge astride two powers and that it is open to him at his option to treat a committal for sentence either as a summary conviction before him in which case he is at liberty to bring the full extent of the sentencing powers conferred on him by the Courts Act, 1971 (Act 372), on the committed person subject only to the penalty prescribed for the offence or to treat the committed person as if he had been convicted on indictment, in which case, again subject to the sentence attached to the offence he can similarly burden on the accused the full effect of his sentencing powers, although in the latter case, the court will be enjoined to follow the procedure spelt out in section 288 of Act 30, namely, for the registrar or other officer of the court to ask the accused whether he has anything to say why sentence should not be passed on him according to law before he proceeds to hand down the sentence. As is the case in trial on indictment, it will also be open to the convicted person to arrest judgment before sentence under section 289 in appropriate circumstances if the second course of action is adopted by the circuit judge. The first course is, in my view, open to the circuit judge under subsection (1) and the second course under subsection (2) of section 178 of Act 30.
Upon a careful examination of section 178, it seems to me that unless a second power was intended by the legislature, subsection (1) itself needed no supplementary provision because subsection (1) sufficiently provides that the accused may be committed “for sentence” and this vests enough power in the circuit judge to sentence in a committed case. If subsection (1) is sufficient, as I think it is, then the addition of subsection (2) as I have already pointed out, could only have been intended to avail to the circuit judge an alternative in treating such a committed person. And indeed this is what subsection (2) appears to say. Subsection (2) says that the circuit court shall have power to deal with the offender as if he had been convicted by that court on indictment. This seems to me to have no other connotation than the conferment of power which may or may not be exercised by the circuit judge. If the contrary was intended, the section would have said in a straight way that the court shall deal with the offender as if he had been convicted on indictment by that court, in which case no alternative power could be argued to be open to the circuit judge.
It may be said that the view I have taken is a distinction without a. difference because whether the circuit judge proceeds under subsection (1) or under subsection (2) the end result may be the same since the one subsection gives the circuit judge no more compass of sentence than the other—the only restrictive factor being the sentence attached to the offence. But this could be answered. Admittedly the circuit judge may technically hand down the same sentence in either case (e.g. the maximum
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sentence prescribed for the offence) but in my view the circuit judge deciding to hand down the maximum sentence prescribed for the offence is more likely to meet endorsement on appeal against sentence if he decided to put the committal on the pedestal of a conviction on indictment in a fitting case before imposing sentence than if he proceeds under subsection (1) treating the conviction as a summary one and then imposes the maximum sentence. Except in so far as inferior courts in this country have been given power, indictable offences are triable on indictment by the High Court and are generally considered the more serious offences (felonies and misdemeanours) and generally attract stiffer penalties than summary offences which are generally triable by inferior courts. On committal therefore, the circuit judge, in my view, will be expected to take into account the nature of the offence, which itself should be an indictable one in the first place and the criminal history of the accused before making up his mind whether to proceed to sentence as a conviction on indictment under subsection (2), else justification for imposing a very stiff sentence may not be immediately obvious on an objective assessment.
In my view it would also be expected of the circuit judge to indicate in the record the subsection under which he is proceeding before sentencing the committed person but where, as in this case he does not, it will be the duty of the appropriate appeal court, as I have done in this case, to find out from the circuit court proceedings which of the two powers the circuit judge was exercising; for that purpose the procedure adopted by the circuit judge between reception of the committal and sentence will be particularly helpful; if he proceeded under subsection (2) the fact that the accused was called upon as required by section 288 to say why sentence passed on him according to law will clearly support a finding that the circuit judge was treating the conviction as a conviction on indictment under subsection (2). Ascertainment of this fact from the circuit judge’s record will settle the question of appellate jurisdiction; if the circuit judge treats the conviction under subsection (1) the competent court to appeal to is the High Court but if the conviction can be said to have been treated by the circuit judge under subsection (2) the competent court to appeal to is the Court of Appeal.
In this case there is nothing on the record which suggests in the least that the circuit judge intended to treat the conviction as one on indictment. On the contrary everything on the record indicates that subsection (1) was intended. Therefore this court, the High Court of Justice and not the Court of Appeal, is the appropriate court to hear this appeal. It was within the compass of that process of reasoning that I conceived myself as having jurisdiction to hear the appeal in this matter and accordingly heard and determined the appeal.
DECISION
Objection dismissed.
Appeal allowed on other grounds.
S. E. K.
