REPUBLIC v. DISTRICT MAGISTRATE, ASAMANKESE: EX PARTE IDE ZABRAMAH AND OTHERS [1972] 1 GLR 398
HIGH COURT, KOFORIDUA
Date: 31 JANUARY 1972
Before: QUASHIE-SAM J.
CASES REFERRED TO
(1) Commissioner of Police v. Wenyonu (1958) 3 W.A.L.R. 459, C.A.
(2) R. v. Bandoh (1944) 10 W.A.C.A. 190.
(3) Fulani v. The Republic, High Court, Sekondi, 12 September 1968, unreported; digested in (1969)
C.C. 4.
(4) R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 K.B. 338;[1952] 1
T.L.R. 161; 116 J.P. 54; 96 S.J. 29; [1952] 1 All E.R. 122, C.A.
(5) R. v. Akiwumi and Bannerman; Exparte Dako (1958) 3 W.A.L.R.372.
NATURE OF PROCEEDINGS
APPLICATION for an order of certiorari to quash an order made by the District Magistrate, Asamankese, on 27 July 1971 recommending the deportation of 32 aliens after conviction and sentence to a term of imprisonment. The facts are sufficiently stated in the judgment.
COUNSEL
E. Okyere Darko for Amofah for the applicants.
R. K. Bruce, Assistant State Attorney, for the Republic.
JUDGMENT OF QUASHIE-SAM J.
On 19 January 1972 I made an order quashing the order of the District Magistrate’s Court, Asamankese, made on 27 July 1971, recommending deportation of 32 aliens after their trial by the court and reserved my reasons. I now give my reasons for granting the order of certiorari.
[p.401] of [1972] 1 GLR 398 The applicant, Ide Zabrama and 31 others were arraigned before the District Court II at Asamankese charged with the following offence as shown in the record of proceedings:
“Being in Ghana without valid documents: Section 12 (1)(e) of Act 160/63. Being in a Prohibited Area
without permit: Section 9A (1) and (4) as amended by N.L.C. Decree 259/68 and Regulation 9 (1) [sic.] and 2 (1) of L.I. 612/69 of Act 160/63.”
Though the record of proceedings shows only one statement of offence, it recites two offences, namely, being in Ghana without valid documents and being in a prohibited area without permit. Furthermore the record of proceedings shows no particulars whatsoever in support of the offence or offences but states that all the applicants pleaded guilty to both charges.
On the face of the record the applicants were made to plead to what purported to be two charges under one statement of offence and until then the trial court itself was not seised with the information upon which the prosecution had been mounted. This information was narrated verbally in the court only after the plea, whereupon the court convicted and sentenced each person to four months’ imprisonment with hard labour with a recommendation for deportation after serving sentence. That the charge disclosed no particulars of offence is a gross irregularity or error on the face of the record for, especially in a charge such as being in a prohibited area without permit, it is necessary to disclose the particular prohibited area or areas and other particulars necessary for giving reasonable information to the person or persons facing the charge or charges as to the case he or they have to answer.
The mandatory provisions of section 112 of the Criminal Procedure Code, 1960 (Act 30), as amended by the Criminal Procedure Code (Amendment) Act, 1965 (Act 261), s. 1. are: [His lordship here read the provisions as set out in the headnote and continued:] It is apparent on the face of the record that these mandatory provisions were omitted in framing the charge or charges in this case.
In the case of the Commissioner of Police v. Wenyonu (1958) 3 W.A.L.R. 459, C.A. where similar
circumstances arose, the Court of Appeal quashed the conviction on the ground that there was nothing in the particulars of offence to indicate to the accused person which of the multifarious duties he had neglected or in what respect he had fallen short of his duty. The accused in that case, a police sergeant, faced particulars of offence which merely recited that he had been guilty of neglect of duty without showing in what respect he had been so negligent of duty.
Further, in the case of R. v. Bandoh (1944) 10 W.A.C.A. 190 at p. 192 the court in quashing a conviction because of failure to provide proper particulars of offence stated, inter alia, as follows:
[p.402] of [1972] 1 GLR 398 “In our view the point raised is no mere technicality, since we think that there is a very real danger that an accused person, especially an illiterate person to whom the charge and particulars have to be translated, may admit the correctness of such particulars and have a plea of guilty recorded against him, when he would have pleaded Not Guilty to a charge with properly framed particulars and perhaps have been acquitted.”
In the instant case, unlike the two cases cited above, the record shows no particulars of the offence
whatsoever, any more than one of a defective nature. As I have already said this is a gross irregularity or error on the face of the record for which certiorari would amply lie to quash the conviction. But the matter does not rest there; it has been argued by counsel for the applicants that the district court had no jurisdiction under the Aliens Act, 1963 (Act 160), in recommending deportation of the applicants, in addition to their sentences of imprisonment even if the court had jurisdiction to entertain the charges.
The applicants were charged under section 12 (1) (e) of the Aliens Act, 1963 (Act 160). That section
provides that: [His lordship here read the provisions as set out in the headnote and continued:] The
provisions of that section are very clear in so far as they provide for the deportation of an alien whose presence in Ghana is illegal. The machinery for the deportation of an alien liable to deportation under section 12 (1) (e) of Act 160 is clearly provided in section 13 of the Act which provides as follows:
“(1) The Minister may by executive instrument order the deportation of any person liable to deportation.
(2) The order may be made subject to such conditions as the Minister may impose.
(3) A deportation order may include the dependants of the person to be deported if the Minister so directs.” The effect of a deportation order made by the minister is contained in section 14 of the Act. All this machinery is an executive process per se and does not necessarily involve the court. Indeed section 12 (1) (e) of the Act creates no triable offence. It provides for the deportation of an alien who is in Ghana without a valid permit or whose conditions on which his permit was granted have been broken. Such an alien is liable to deportation in the same way and by the same machinery or process as an alien whose presence in Ghana is, in the opinion of the minister, not conducive to the public good under section 12 (1) (f) of Act 160.
By section 25 (1) of the Act, certain offences are created under the Act which do not include anything of the nature contemplated under section 12 (1) (e). The punishment for these offences is provided in
subsection (2) of section 25 which provides that: [His lordship here read the provisions as set out in the headnote and continued:] It is my opinion that section 25 (2) does not apply to section 12 of the Act, since section 12 does not create a triable offence. In my view therefore the trial court
[p.403] of [1972] 1 GLR 398 wrongly assumed jurisdiction in trying the applicants under section 12(1)(e) of the Act and convicting them under that section and certiorari would lie to quash the convictions.
This brings me to the other charge, that of being in a prohibited area without permit under section 9A (1) and (4) of the Act as amended by the Aliens Act, 1963 (Amendment) Decree, 1968 (N.L.C.D. 259), which provides: [His lordship here read the provisions as set out in the headnote and continued:] There is no doubt here that subsection (4)creates a triable offence in terms of subsection (1) of this section of the Act for which the applicants could be tried summarily.
Assuming, then, that the charge here was properly laid and the particulars of offence sufficiently stated in terms of section 112 (1) and(4) of Act 30 as to provide reasonable information to the applicants facing their trial, would the district magistrate have jurisdiction to recommend deportation in addition to a sentence of imprisonment? In my view the answer is in the negative, for under section 12 (2) of Act 160 a court may recommend deportation if one prerequisite is fulfilled, namely, that the court must have convicted on an offence for which it has power to impose a sentence of imprisonment without the option of a fine. This condition is unfulfilled in the instant case under review since section 9A (4) of Act 160, (reproduced supra), provides for an option of a fine. It must be observed here that subsections (1) (a) and (2) of section 12 of Act 160 do not limit a court’s power of recommendation for deportation to cases tried under that Act alone; those subsections are applicable in all criminal trials, and in all such cases, the court may only recommend deportation if it has no power to impose a fine as an alternative to a sentence of imprisonment. I will not attempt to give reasons why the legislature imposed such a condition in the exercise of the court’s power to recommend deportation, but it occurs to me that the intention is to limit such power to cases of a serious nature, the sanction for which is imprisonment simpliciter.
During the arguments in this matter my attention was drawn by learned counsel for the Republic to the case of Fulani v. The Republic, High Court, Sekondi, 12 September 1968, unreported; digested in
(1969)C.C. 4. I must say with respect at once that I decline from the construction placed on section 12 (2) of Act 160 in that case. It is my view that “power to impose a sentence of imprisonment without the option of a fine” within the context of that section means that the court has power to impose a sentence of imprisonment only. It means the court must have had no discretion to impose a fine. An example of the situation contemplated within the meaning of section 12 (2) of Act 160 is clearly provided in section 2A (1) and (2) of the same Act as follows:
“(1) A person other than a citizen of Ghana shall not enter Ghana except by one of the recognised or normal places of entry into Ghana. [p.404] of [1972] 1 GLR 398
(2) Without prejudice to any other penalty imposed by or under this Act, any person who contravenes the provisions of this section shall be guilty of an offence and shall be liable on summary conviction thereof to a term of imprisonment of not less than ten years.” So where a prerequisite for the exercise of the court’s jurisdiction is wanting, any purported exercise of jurisdiction is an act in excess of jurisdiction against which certiorari would lie as in this instance. The law is that, “Certiorari exists to correct error of law where revealed on the face of an order or decision or irregularity, or absence of, or excess of, jurisdiction where shown.” See R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 K.B. 338, C.A. quoted in R. v. Akiwumi and Bannerman (1958) 3 W.A.L.R. 372 at p. 373.
For all these reasons I thought the trial under section 12 (1) (e) of Act 160 was without jurisdiction, there being no triable offence; the charge and trial without any particulars of offence whatsoever was a serious error revealed on the face of the record, and the recommendation for deportation an excess of jurisdiction.
My order of 19 January 1972 was specifically directed to quash the recommendation for deportation. I now, in pursuance of the full reasons given herein, also quash the conviction and set aside the sentence in each case.
DECISION
Order accordingly.
