HIGH COURT, HO
Date: 13 NOVEMBER 1973
ANDOH J
COUNSEL
W. T. Doku for the appellant.
E. Akwei-Addo, State Attorney, for the respondent.
JUDGMENT OF ANDOH J
[His lordship, after referring to the facts and the appellant’s conviction by the district court for stealing and his subsequent committal for sentence to the circuit court under section 178 of Act 30, continued:] The only reason why the accused was committed to the circuit court for sentence was, according to the district magistrate, the startling revelations
[p.66] of [1974] 1 GLR 65
made, that is to say, the thirteen previous convictions. But these were neither admitted nor proved strictly as the law requires. As a practice note, where an accused is convicted and committed for sentence under section 178 of the Criminal Procedure Code, 1960 (Act 30), it is the duty of the district magistrate to ask the accused (if any previous convictions are mentioned against him) to ascertain from him personally (and not even from his counsel assuming he is represented) whether the previous convictions are admitted or not. If admission is made, the magistrate shall record that fact. If the previous convictions are not admitted, it is the duty of the magistrate to ask the prosecutor to prove the alleged previous convictions. If this is not done the learned circuit court judge can either do what the district magistrate failed to do or he could send the case back for this area of the matter to be probed.
Again when the previous convictions are proved strictly or admitted, it is the duty of the learned circuit judge to ascertain whether the judgment of the district magistrate is supported by the evidence adduced before the court. If not, he should acquit the accused himself. It is not the duty of the learned judge to pass sentence without making sure that the conviction is right according to the facts and evidence before the court. The committal by the district court to the circuit court for sentence does not per se, mean that the judgment of the court below is right and therefore the learned circuit judge should endorse it by awarding an enhanced sentence. The learned circuit judge is not bound to award any sentence if the conviction itself is not supported by evidence. He has the power to acquit if there is no evidence.
In this case, the learned circuit judge as I have already stated did not ascertain whether in fact the accused had the thirteen previous convictions attributed to him. He assumed without proof that this was so. In this, he erred just as the district magistrate erred. The learned circuit judge sentenced the accused to two years’ imprisonment with hard labour and the accused has now appealed to this court against the conviction. The sentence was quite reasonable and was not faulty in any manner except as to what I have stated . . .
DECISION
S. Y. B.-B.
