COURT OF APPEAL
DATE: 4 DECEMBER 1967
BEFORE: AKUFO-ADDO C.J., AZU CRABBE AND LASSEY JJ.A.
CASES REFERRED TO
(1) Chief Superintendent of Police v. Michalski (1956)2 W.A.L.R. 74.
(2) R. v. Olagbaiye (1936)3 W.A.C.A. 81.
(3) R.v. Adebesin (1940)6 W.A.C.A. 197.
NATURE OF PROCEEDINGS
APPEAL against confirmation of conviction for unlawfully and intentionally causing harm and
enhancement of sentence by the High Court. The facts are sufficiently stated in the judgment of the court.
COUNSELS.H. Ananncy for the appellant.
Kisseih Senior State Attorney, for the respondent.
JUDGMENT OF AZU CRABBE J.A.
Azu Crabbe J. A. delivered the judgment of the court. On 27 July 1967, we dismissed the appellant’s appeal against that part of the judgment of the High Court confirming his conviction for unlawfully and intentionally causing harm, but allowed his appeal against that part of the judgment whereby the learned judge of the High Court enhanced the sentence passed on the appellant by the learned trial circuit judge.
We now proceed to give our reasons. The appellant was tried summarily in the Circuit Court, Accra, on a charge of causing harm contrary to section 69 of the Criminal Code, 1960 (Act 29). The facts found by the learned circuit judge are as follows:
“The accused and the complainant are employees of Lennards Shoe Company of Accra. On 5 September 1965, there was a party at the residence of the manager of the company, and the complainant who is employed as a driver drove employees of the company including the accused from the company’s yard to the party. At the close of the party the complainant drove the employees back including the second and third prosecution witnesses (two ladies not employed by the company) to the company’s yard. The employees desired that they might be taken to their respective homes, but the driver refused to do so. At the company’s yard all the employees except the accused alighted and went away. The accused refused to go and asked the driver to drive him home as he was living at Achimota, about six miles away, and as the driver had originally promised to take the employees home. The two ladies (the second and third prosecution witnesses) were at the scene. The second prosecution witness, a cousin to the complainant, intervened while the accused and the complainant were exchanging words by saying that in her school if the students were on excursion
[p.692] of [1967] GLR 690
they were driven to the school for each student to arrange her own transport home, and so he should fetch a taxi and go home. When she said this the accused was offended and warned her to keep out of it. The accused attempted to assault this girl (the second prosecution witness) and so the complainant went to get the girl out of the hands of the accused. After he had succeeded in doing so, the accused rushed on the complainant held him and bit off part of his nose.”
After stating the above facts, the learned circuit judge examined fully the evidence of the complainant and the other principal witnesses for the prosecution alongside the plea of self-defence put forward by the appellant. He rejected the appellant’s case, and therefore found him guilty of the charge and convicted him accordingly, and sentenced the appellant to a day’s imprisonment and a fine of £G100 or twelve months’ imprisonment with hard labour. He further ordered that the sum of £G75 out of the fine should be paid to the complainant as compensation. Before passing sentence the learned circuit judge recorded that the appellant was 25 years of age. In an affidavit in support of an application for bail to this court the appellant has stated that he is now 27 years of age.
The appellant appealed against his conviction to the High Court on a number of grounds, and there the arguments of counsel for the appellant were directed only to the merit of the appeal. Not a word was said by counsel about sentence. Counsel for the Republic was not called upon, and he made no representations to the court. Delivering an unreserved judgment in which the evidence for both the prosecution and defence was fully examined, the learned judge expressed himself as having found “that the infliction of the harm by the appellant on the first prosecution witness by biting his nose was unjustifiable in the circumstances.” The learned judge then concluded his judgment as follows: “I dismiss the appeal and while maintaining the conviction I vary the sentence of a fine of £G100 and substitute for it a sentence of two years’ imprisonment with hard labour, for I consider the circumstances too serious and disgraceful.” The appeal to this court was against both the conviction and sentence of two years’ imprisonment with hard labour passed by the High Court judge. We wish to state straightaway that we found no substance whatsoever in the argument in support of the appeal against conviction, and this we dismissed accordingly. In our view it is in effect an appeal against a concurrent finding of facts by the two lower courts, and we did not feel that there were sufficient grounds for interfering with that finding. We do not think, however,
[p.693] of [1967] GLR 690a
that it is necessary to elaborate our reasons for dismissing the appeal against conviction. The appeal against sentence, however, raises very important points of principle. The grounds upon which this appeal was founded were:
“(1) That the increased sentence of two years meted out by the learned judge was excessive.
(2) That even though the learned judge has power to alter sentence on appeal it would be contended that that discretionary power must be exercised with caution and judiciously and that there must be compelling reasons and sufficient evidence on record to justify any such increase.”Although by virtue of section 330 (1) (a) (ii) of the Criminal Procedure Code, 1960 (Act 30), the High Court has the undoubted jurisdiction to substitute a more severe sentence than that passed by an inferior court, we think that the principles upon which an appellant court will act in exercising this jurisdiction to review sentences are well-settled. The court does not alter a sentence merely on the ground that if the appellate had been tried there, it might itself have passed a somewhat different sentence. The High Court will not in ordinary circumstances interfere with the discretion exercised by the trial court, unless the trial court has acted upon a wrong principle or overlooked some material facts or factors, or unless the sentence is so manifestly excessive in view of the circumstances of the case as to be unjust. We think that a fine or prison sentence may be so inadequate or so lenient, having regard to the gravity of the offence or the manner of its perpetration, as to be wrong in principle: see Chief Superintendent of Police v. Michalski (1956) 2 W.A.L.R. 74; R. v. Olagbaiye (1936) 3 W.A.C.A. 81 and R. v. Adebesin (1940) 6 W.A.C.A. 197.
There is nothing in the record of the proceedings in the circuit court showing the reasons for the sentence in that court, and therefore the High Court could be entitled to look into the facts in the record and to determine whether or not the sentence ought to stand or be varied. But the infliction of punishment being pre-eminently a matter within the discretion of the trial court, the High Court would only interfere if any of the conditions we have stated above existed in the case. In this case we are unable to discover from the record any reason why the learned judge of the High Court should consider the facts more serious than the learned circuit judge. The medical report (exhibit A) states that the harm caused to the complainant’s nose
[p.694] of [1967] GLR 690
was superficial, and our own oscular observation of the nose convinced us that what was described as harm could not be anything more than a scratch on top of the nose.
Another matter of fundamental importance, we think, arises in this case. The Republic did not complain of the inadequacy of the sentence, neither had any intimation been given by the court that it wascontemplating enhancement of the sentence. As we have said earlier in this judgment the High Court has power to reduce or enhance sentences as the justice of the case may require. In our view, however, where the appellate court is minded to increase a sentence, especially where counsel appearing for the Republic has not asked for enhancement, it should not do so without first giving the appellant an opportunity to show cause against enhancement. The maxim audi alteram partem is so fundamental to the administration of justice that it can only be ignored in exceptional cases. In our opinion this case is not one of such exceptions, and consequently we think that the learned judge of the High Court erred against this vital principle by failing to give the appellant the opportunity to be heard on sentence.
The appellant is a youth of only 27 years of age, and the evidence shows that the appellant and the complainant and their friends had over-indulged themselves with alcohol at a party. We ourselves considered the evidence most carefully, as well as the age of the appellant, and we did not think that there were any circumstances of aggravation which could justify the learned judge’s review of the sentence passed by the trial court. It was for this reason that we allowed the appeal against sentence, set aside the sentence of two years’ imprisonment with hard labour passed by the learned judge of the High Court, and restored the sentence by the trial court.
DECISION
Appeal against conviction dismissed.
Appeal against sentence allowed.
S.Y.B.B.
