REPUBLIC vs. CIRCUIT COURT JUDGE, TARKWA; EX PARTE OPOKU [1999-2000] 1 GLR 55

CASES REFERRED TO

(1) Baah v The Republic [1991] 1 GLR 483.

(2) Republic v Osei, High Court, Kumasi, 31, July 1967; unreported; digested in (1968) CC 156. (3) R v Arundel Justices; Ex parte Jackson [1959] 2 QB 89; [1959] 2 WLR 798; [1959] 2 All ER 407, DC.

(4) Republic v Registrar of Political Parties; Ex parte People’s Vanguard Party [1981] GLR 316.

NATURE OF PROCEEDINDS APPLICATION by the applicant to the High Court, Sekondi for an order of certiorari to quash his conviction and sentence by the Circuit Court, Tarkwa for stealing money belonging to his employers, the Produce Buying Co. The facts are sufficiently stated in the ruling of the court.

COUNSEL

Ackaah-Gyasi for the applicant.

G Kpodo for the Republic.

JUDGMENT OF ANSAH J

Pursuant to leave granted on 27 November 1998, the applicant filed a motion on notice whereby he prayed for an order of certiorari to quash the judgment of the Circuit Court, Takwa, given on 16 November 1998.

The judgment sought to be quashed was as follows:

[p.57] of [1999-2000] 1 GLR 55 “I sentence the accused to eight years’ imprisonment with hard labour without the option of a fine. He is also ordered to pay ¢74,195,300 to the Produce Buying Co.

The sentence imposed on the accused is, however, suspended for one month and subject to the accused failure[sic](1) to pay the debt. His liability to pay the debt shall however not be affected if the sentence is served.”

From there that court proceeded to grant bail to the applicant and the case was adjourned from 15 October 1998 to 16 November 1998. On 16 November 1998. On 16 November 1998 it was noted that the applicant had not been able to make any payment. A committal warrant was therefore ordered to be issued and dated from 1 September 1998 when he was arrested.

The facts of this case which resulted in the judgment sought to be quashed was that during the 1996-97 main cocoa season, it was detected that the applicant, a marketing clerk of the Produce Buying Co at Asankragwa, had entered in his returns that he supplied 400 bags of cocoa beans but same were not delivered. The value of the bags of cocoa not delivered by him was put at ¢72,660,000. There was a failure by him to account for 1,181 pieces of cocoa sacks, valued at ¢1,135,300 to his successor in office. He was charged with stealing the amounts stated and at his trial, pleaded guilty to the offence and sentenced in the manner stated above.

The ground upon which the application was made was “or want of jurisdiction or both.” In his submissions before this court counsel for the applicant stated that the court in sentencing the applicant did not follow the procedure spelt out in section 147B (1) and (2) of the Criminal Procedure Code, 1960 (Act 30) as amended by the Criminal Procedure Code (Amendment) (No 2), 1964 (Act 254). It is necessary to quote the said section 147B of Act 30 (1) as inserted by the said Act 254, which reads:

“147B. (1) Where sentence is imposed for an offence involving dishonesty and any property including money is not recovered, the court on sentencing the offender, on its own motion or on the application of the prosecutor or the victim of the offence, may make an order for the return by the offender to the victim of the offence of the property not recovered and

[p.58] of [1999-2000] 1 GLR 55 for the payment, in default, of the value of any property not returned.”

It is settled that this section confers a discretion on the sentencing court to make that order: see Baah v The Republic [199][sic](2) 1 GLR 483 at 487 and also Republic v Osei, High Court, Kumasi, 31 July 1967, unreported; digested in (1969) CC 156. The effect of the above quoted section is statutory. It is to be found in section 147B (2) of Act 30 as amended and quoted hereunder:

“(2) … shall he deemed to be an exercise of the civil jurisdiction of the court in an action between the victim of the offence as plaintiff and the offender as defendant and shall be enforceable in the same manner and be subject to the like appeal as are orders for the return of chattels or money.”

This section was interpreted in Baah v The Republic (supra) at 487 to mean that a sentencing court in making an order that the accused should return to the victim of the offence the value of any property not returned, cannot tack to the said order any default clause that the accused be imprisoned for a certain period. Such an order sounds in the civil Jurisdiction of the court and is enforceable by the ordinary methods as in a civil cause or matter. It must be noted that in Baah v The Republic (supra) the trial court on sentencing the appellant ordered him to pay the balance of the value of the goods in question not returned, or serve five years’ imprisonment with hard labour.

The issue then is, did the trial judge in this case do any such thing as tacking a default clause to the order he made as was done in the Baah case (supra)? He did not. With regard to the restitution order, which he had the discretion to make, he simply ordered the applicant to pay 474,195,300 to the Produce Buying Co. He therefore could not be held to have violated section 147B or any section of Act 30. I think on that fact alone the case is to be distinguished from Baah v The Republic (supra).

What did the trial judge do which is sought to be quashed by the present proceedings? According to counsel for the applicant, when he suspended that sentence, but later on goaled the applicant, he was in effect seeking to enforce the payment for the restitution order by imprisoning the applicant and that was contrary to what was decided in the Baah cases (supra).

[p.59] of [1999-2000] 1 GLR 55

The order of the trial court is to be examined carefully instead of jumping to conclusions of making sweeping statements. The trial judge sentenced the accused to eight years’ in hard labour without the option of a fine. There is nothing wrong with that as that is within his sentencing power or discretion. He next ordered him to make that refund. Again that was well within his discretion as noted above. He also made that order! “On sentencing the offender”; the law entitled him to do that. He next proceeded to suspend the sentence for one month and made that subject to the accused’s ability to pay the debt of ¢74,195,300. That is to say the eight year goal term was not to begin at once. If he was able to pay the amount to the Produce Buying Co within the one month period then he was not to go to jail. If he was not able to do so, then he was to serve the term.

It must be pointed out that the order to suspend the sentence for one month was made in error. A sentencing court has the power to suspend the execution of a sentence for imprisonment in the way and manner and condition as has been prescribed by the law in section 318 (1) of Act 30. Such a power of suspension is exercised, according to the section, “When an offender has been sentenced to a fine only and to imprisonment in default of payment of the fine, and court issues a warrant under section 317…” So that where the court does not impose any sentence of a fine on the offender and tack it with an order for imprisonment in default of payment of the fine, then there is no such power of discretion to suspend the execution of the sentence of imprisonment. In this cause the court inflicted a sentence of imprisonment without the option of a fine. In my view therefore, the sentencing judge had no power to suspend the sentence of imprisonment. As he did that, that was an error on the face of the record.

It must be mentioned that that order was to be severed from the sentence passed by the court. It must be mentioned that the court did not just make a restitution order and then tack it with a default clause. If that was what was done in this case, there would have been no difficulty in quashing the sentence of the court. Rather the court did what was legally required of it, namely to pass sentence upon conviction. There is no question raised on this. In other words, it has not been questioned that the court had the power to do that. The complaint is rather the erroneously suspended sentence was to be executed for non-payment of the allegedly stolen money within the

[p.60] of [1999-2000] 1 GLR 55 time given the applicant. That was a consequential order separate and distinct from the sentence. In so far as an accused person cannot be ordered to serve a prison sentence on non-payment of money by way of restitution that order was not warranted by the known rules of criminal procedure and will therefore be quashed by an order of certiorari. When that is done the sentence stands that is to say the sentence of eight years’ in hard labour.

It is needless to state that an order of certiorari is discretionary. If it is granted in this case it will mean that the applicant was convicted but not sentenced and he will have to go back to the trial court for his sentence. However on the record, a proper sentence of eight years’ imprisonment with hard labour without the option of a fine stands. As the court has no reason to quash that sentence the application will fail in respect thereof. However, it is not so with record to the order in the particular circumstance of the case. Since the trial court has no power so to do that, what was ordered in connection herewith is hereby quashed. I am fortified in quashing only the invalid part of the order of the trial court as that was distinct and severable from the orders of the court as a whole and for that order the following authorities, R v Arundel Justices Ex Parte Jackson [1959] 2 QB 89 and Republic v Registration of Political Parties [1981] GLR 316 are cited.

DECISION

Application dismissed.

LSNA

Endnotes

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