PETER AND ANOTHER vs. THE REPUBLIC [2001-2002] 1 GLR 1

CASE REFERRED TO

(1) Hausa v Commissioner of Police [1962] 2 GLR 116.

[p.3] of [2001-2002] 1 GLR 1

APPEAL by the juvenile appellants from the decision of the Community Tribunal, Hohoe against their conviction and sentence for gaming in a public place contrary to the Lotteries and Betting Act, 1960 (Act 31), s 17. The facts are fully set out in the judgment.

Oscar Vulor for the appellants.

E M Gli for the respondent.

Dzakpasu J. This appeal arose from the trial, conviction and sentence of the appellants on 24 July 2000 by the Community Tribunal, Hohoe chaired by His Worship Mr Agbenyegah. The appellants were sentenced three years each to the Borstal Institute, Accra for the offence of gambling, contrary to section 17 of the Lotteries and Betting Act, 1960 (Act 31). The initial ground of appeal filed on 7 August 2000 was: “that the facts did not disclose a triable offence under the Lotteries and Betting Act, 1960 (Act 31).”

Subsequently, two additional grounds of appeal were filed on 12 October 2000, namely:

“(i) that the trial tribunal was improperly constituted as a juvenile court as to render the decision of the tribunal null and void; and

(ii) that the trial tribunal erred in law by not calling for a probation officer’s report before sentencing as to render the orders of the tribunal null and void.”

The appellants and two others were charged with the offence of gambling, contrary to section 17 of the Lotteries and Betting Act, 1960 (Act 31). The particulars of offence stated that they were on 19 July 2000 found at Atabu in the Volta Community and within the jurisdiction of the court, playing cards by way of gaming in a public place without authority. The record shows that the charge was read and explained to them in Ewe after which their pleas were taken. The first, second and third accused pleaded guilty to the charge.

The brief facts of the case were also given as follows:

“The complainant is a trader and the accused persons are

[p.4] of [2001-2002] 1 GLR 1 pupils and are residing at Gbi Atabu. On 19 July 2000 at about 2.00 pm, the complainant rushed to the premises of the court and informed the policemen on duty that someone had informed her that somebody was in her room. The police accompanied her to the house and found that the door to the complainant’s room was opened. The first accused was found in the room and he was arrested and he mentioned the names of the second, third and fourth accused persons. He stated that they were gambling and when the elders wanted to arrest them they took to their heels and he found his way into the complainant’s room by climbing the wall through the ceiling and took refuge there to avoid arrest. The second and third accused persons were arrested and they admitted that they were playing cards with money, ie betting. The accused persons were therefore charged with the offence on the charge sheet. The fourth accused is at large. The first accused is twelve years. The second and third accused persons are aged thirteen and are twins.”

Upon receipt of the facts, the trial tribunal ordered as follows:

“By Tribunal:

The accused persons are convicted on their own pleas and because the accused persons are juveniles they are each sentenced to spend three years at the Borstal Institute in Accra in order to be reformed. Let bench warrant issue against the fourth accused person.”

The provision of section 17 of Act 31 states that:

“17. Every person playing or betting by way of wagering or gaming in any public place at or with any table or instrument of gaming, or any coin, card, token, or other article used as an instrument or means of such wagering or gaming at any game or pretended game of chance, is guilty of a misdemeanour and shall be liable to a fine in addition to, but not in lieu of, imprisonment.”

Under the first ground of appeal that the facts did not disclose a triable offence under Act 31 the learned counsel for the appellants

[p.5] of [2001-2002] 1 GLR 1 submitted that an essential ingredient of section 17 of Act 31 is that the alleged gambling shall take place at a public place. Counsel argued that from the facts given, the exact place where the alleged gambling or gaming was supposed to have taken place was not disclosed and the omission by itself is fatal to the success of the charge as merely mentioning “public place” is not enough. Counsel further contended that from the facts it was quite clear that the appellants were convicted based on the supposed admissions or confessions made by the first accused, Opare Seth, who is not an appellant; that the first accused simply stated that they were gambling and when the elders wanted to arrest them, they took to their heels; but that it was nevertheless incumbent on the prosecution to state where exactly the alleged act took place. Counsel therefore submitted on that ground that the appeal be allowed and the appellants be acquitted and discharged.

Replying, learned counsel for the Republic-respondent submitted that the first ground of the petition of appeal had no merit and should be dismissed as such. He referred to the fact that the charge had been read and explained in Ewe to the accused persons as appeared in the record of proceedings; that the appellants appreciated the nature of the charge before they pleaded guilty; that the first accused stated clearly that they were actually gambling when the elders wanted to arrest them and that the appellants admitted that they were betting. Counsel for the respondent therefore submitted that the words “public place” appeared in the charge sheet and was read and explained to the appellants before they made their pleas.

Whilst appreciating the arguments and submissions of counsel on both sides, it seems that what section 17 of Act 31 refers to as a “public place” would be more fully appreciated when it is read and contrasted with section 18 of Act 31 which prohibits the use of private houses or buildings for gambling. It provides that:

“18. (1) Any person being the owner or occupier, or having the use of, any house, room or place, who opens, keeps or uses it as a gaming house, and any person who, being the owner or occupier of any such house, room or place, knowingly and wilfully permits it to be opened, kept or used by any other

[p.6] of [2001-2002] 1 GLR 1 person as aforesaid, and any person having the care or management of or in any manner assisting in conducting the business of any house, room or place opened, kept or used as aforesaid, is guilty of a misdemeanour.”

Within the context of Act 31 and especially of sections 17 and 18 thereof, “public place” would be a place of, for, connected with, owned by, done for or done by or known to people in general whilst a “private place” or “private house” would be of, or for the use of, or concerning one person or group of persons, not people in general. With that understanding, it becomes obvious then that section 17 of Act 31 relates to gaming in a public place while section 18 of Act 31 relates to gaming in a house or at home. Clearly, the place of gaming is an issue for the court to determine. Thus a person found gaming in a house cannot be charged under section 17 of Act 31 because that section relates to a public place; similarly a person found gaming in a public place cannot be charged under section 18(1) of Act 31, since this section relates to gaming in a house. See Hausa v Commissioner of Police [1962] 2 GLR 116. That being so, it was patently prejudicial to the case of the appellants that they be presumed to have understood the law as such. Accordingly, the appeal would be allowed as canvassed under the ground.

Regarding the second ground of appeal, counsel for the appellants submitted that the trial community tribunal was improperly constituted as a juvenile court and therefore incompetent to sit as such. His bone of contention was the omission from the panel of the social welfare officer appointed to the tribunal for that purpose. Counsel for the respondent countered the argument by praying in aid section 46(2) of the Courts Act, 1993 (Act 459) and section 406 of the Criminal Procedure Code, 1960 (Act 30). He submitted on the authorities that the omission, if at all, of the social welfare officer did not suffer the appellants any substantial miscarriage of justice.

Section 46(2) of Act 459 merely gives the community tribunals their minimum and maximum composition as to make them competent courts of jurisdiction. Then sections 47(1)(h) and 77(2) confer the jurisdiction of juvenile courts and family tribunals

[p.7] of [2001-2002] 1 GLR 1 respectively on the community tribunals. And section 47(3) of Act 459 requires that where a community tribunal sits as a family tribunal or as a juvenile court, the panel of the community tribunal shall include a social welfare officer appointed by the Chief Justice on the recommendations of the Director of Social Welfare. It must be noted that in its ordinary sittings the community tribunal may be composed of any three or five members including its chairman. It is irrelevant and inconsequential if any of these members happened to be a social welfare officer. However, it is highly relevant and highly consequential when a community tribunal purports to sit as a family tribunal or a juvenile court without a social welfare officer on the panel of adjudicators. This is because section 47(3) of Act 459 explicitly makes it mandatory and no doubt for good reasons that a social welfare officer be on the panel. Failure to field the social welfare officer makes the trial a nullity.

The Community Tribunal, Hohoe which took place on Monday, 24 July 2000 before His Worship J Y Agbenyegah, Esq, chairman, E K Mawusi and Maxwell Adjah as panel members, did not include the social welfare officer by name Albert Prika appointed to that court. His omission from the panel clearly offends against the mandatory provision of section 47(3) of Act 459.

It is also easy to see through that the reason for the omission of the social welfare officer is that the trial community tribunal took the instant case in its stride in the course of its regular sittings for the day. Were it to sit specially as a juvenile court, it could not have overlooked the requirement. This is because of the special procedures in juvenile courts as dictated under section 340(1) of Act 30. Under that section, juvenile courts shall sit either in a different building or room from that in which sittings of courts other than juvenile courts are held, or on different days from those on which sittings of such other courts are held, and no person shall be present at any sitting of a juvenile court, except:

(a) members and officers of the court;

(b) parties to the case before the court, their counsel and solicitors and witnesses, and other persons directly concerned in the case; and

(c) such other persons as the court may specially authorise to

[p.8] of [2001-2002] 1 GLR 1 be present.

It is unarguable that if the above procedure were observed by the trial community tribunal, it would have noticed the conspicuous absence of the all important social welfare officer from the panel trying the case. This omission makes the purported trial a nullity and we uphold the submission to that effect.

Further to that is the provision in section 341(1) of Act 30 that:

“341. (1) No Court of summary jurisdiction other than a Juvenile Court shall hear any charge against, or dispose of any matter affecting, a person who appears to the Court to be a juvenile, if the Court is satisfied that—

(a) the charge or matter is one in respect of which jurisdiction has been conferred on Juvenile Courts; and (b) a Juvenile Court has been constituted for the place, district or area concerned, and in every such case, and where the Court is so satisfied, the Court shall make an order transferring the charge or matter to the Juvenile Court.”

(The emphasis is mine.)

In the instant case, the first accused person was twelve years old at the time of the alleged offence, while the appellants were thirteen years old each. Their ages were given by the prosecutor in his narration of the brief facts of the case to the trial tribunal and before the tribunal pronounced on their guilts. Therefore they were clearly known to the tribunal as juveniles. By not complying with the exclusive jurisdiction and transfer of the case to the juvenile court, the community tribunal grossly and grievously erred in the procedure it adopted. For the foregoing reasons, canvassed or uncanvassed by learned counsel for the appellants, the submission on the second ground of appeal is also hereby upheld.

And finally, having come to the conclusion that the appellants were juveniles, it was incumbent on the trial tribunal before sentencing them to call for a probation officer’s report on the juveniles based on which a fitting punishment out of the myriad listed especially under section 346(1) of Act 30. On the face of the

[p.9] of [2001-2002] 1 GLR 1 records, it is difficult to appreciate how the sentence handed down to them was informed as it looks harsh and excessive vis-à-vis the offence charged.

The appeal succeeds on all the grounds. Accordingly, we hereby set aside the conviction and quash the sentence. In the result, we hereby acquit and discharge the appellants.

Although the first accused person did not appeal, the decision herein affects him as he is also for the foregoing reasons is hereby acquitted and discharged. No re-trial shall be ordered against the first accused person and the appellants herein. The bench warrant issued against the fourth accused remains in force as he may be properly tried by the juvenile court on arrest.

Appeal allowed.

Appellants acquitted and discharged.

IS