SULEMANA vs. THE REPUBLIC [2001-2002] 2 GLR 243

SULEMANA v THE REPUBLIC

[2001-2002] 2 GLR 243

Division: COURT OF APPEAL, ACCRA

Date: 28 JUNE 2001

Before: ARYEETEY, OWUSU AND OWUSU-ANSAH JJA

Criminal law and procedure—Sentence—Death sentence—Conditions for imposition by—National Public Tribunal—Appellants convicted of conspiracy to commit robbery and robbery and sentenced to death by “firing squad “—Appellants appealing against sentence on ground, inter alia, it was harsh and excessive—Neither of two conditions for imposition of death penalty present on facts—Whether appellate court to set aside sentence and impose custodial sentence instead—Public Tribunals Law, 1984 (PNDCL 78) s 16.

[p.244] of [2001-2002] 2 GLR 243

Criminal law and procedure—Sentencing—Sentencing power of National Public Tribunal—Section 16(2) of PNDCL 78 setting lowest limit at three years or fine or both but silent on upper limit—Tribunal having discretion to apply penalties charges attracting under Acts 29 and 30 which predated Law—Appellants convicted and sentenced by tribunal to death by firing squad on charges of conspiracy to commit robbery and robbery—PNDCL 78 under which appellants charged not specifying punishment to be imposed—Section 296(1) of Act 30 as amended by Act 261 directing imposition of life imprisonment or less term where punishment for first degree felony not specified—Appellate court overturning death sentence and imposing sentence of 22 years’ imprisonment on appellants—Criminal Code, 1960 (Act 29), ss 23(1) and 149—Criminal Procedure Code, 1960 (Act 30), s 296(1)—Criminal Procedure Code (Amendment) Act, 1965 (Act 261), s 5.

The appellant and two others were charged with conspiracy to commit robbery contrary to sections 23(1) and 149 of the Criminal Code, 1960 (Act 29) and section 16 of the Public Tribunals Law, 1984 (PNDCL 78), as well as for robbery contrary to section 149 of Act 29 and section 16 of PNDCL 78. The National Public Tribunal on 30 May 1988 after the trial convicted them of the charges and sentenced them to death by “firing squad.” The appellants appealed against their sentence on ground that the sentence was too harsh and excessive. In support of the appeal, counsel submitted, inter alia, that, since nobody was killed or hurt in the course of the armed robbery, the sentence of death by shooting by firing squad was wrong in law and had to be set aside and a custodial sentence imposed in its place.

Held, allowing the appeal:

(1) under section 16(1) of the Public Tribunals Law, 1984 (PNDCL 78) the National Public Tribunal had power to impose the death sentence only when any of the following two conditions were met, namely: (a) the Provisional National Defence Council Law (PNDCL) had specified in writing the offence which attracted the death penalty; or (b) the tribunal was satisfied that very grave circumstances meriting such a penalty had been revealed. Consequently, since there was no indication in the judgment or the evidence on record that either of the two conditions existed, the imposition of the death sentence by the National Public Tribunal had no legal basis. Accordingly, the death sentence imposed by the National Public Tribunal on the appellants would be set aside and a custodial sentence imposed its place.

(2) Section 16(2) of PNDCL 78 sets the lowest limit to the National Public Tribunal’s sentencing powers at three years or payment of a fine or both. It was however silent on the upper limit of the tribunal s sentencing powers. The court would therefore resort to section 16(5) of PNDCL 78 which allowed the public tribunal the discretion to apply the penalties that the charges attracted under Act 30, which predated the enactment. Under section 296(1) of Act 30 as amended by the Criminal Procedure Code (Amendment) Act, 1965 (Act 261), where a crime was

[p.245] of [2001-2002] 2 GLR 243 declared by any enactment to be a first degree felony and the punishment for the crime was not specified, a person convicted thereby was liable to imprisonment for life or any lesser term.

Accordingly, since the enactments under which the four appellants were tried did not specify the punishment to be imposed upon conviction, it was obvious in the light of section 296(1) of Act 30 as amended by Act 261, that the upper limit of the terms of imprisonment to be imposed was a life sentence. However, since the circumstances of the case did not warrant the maximum sentence which the statute allowed, a sentence of 22 years’ imprisonment with hard labour would be imposed on each of the four appellants in place of the death penalty.

APPEAL by the appellants against their sentence by the National Public Tribunal to death by firing squad on their conviction of the charges of conspiracy to commit robbery and robbery, on the ground that the sentence was too harsh and excessive. The facts are sufficiently set out in the judgment of Aryeetey JA.

Dwamena Bamfo for the appellants.

Mrs Merley Wood, State Attorney, for the Republic.

Aryeetey JA. In this appeal, according to the available scanty record, on 30 May 1988 the four appellants and two others, Charles Bannerman and Kwadwo alias Frafra, who were at large, were found guilty on the charge of conspiracy to commit robbery contrary to sections 23(1) and 149 of the Criminal Code, 1960 (Act 29) and section 16 of the Public Tribunals Law, 1984 (PNDCL 78) as well as the charge of robbery contrary to section 149 of Act 29 and section 16 of PNDCL 78 and “sentenced to death by shooting by firing squad.” The two main grounds of appeal are as follows: (1) the conviction is wrong in law and cannot be supported by the evidence on record; and (2) the sentence is harsh and excessive. However, counsel for the appellants abandoned the first ground of appeal and restricted himself to only the second ground, namely “the sentence is too harsh and excessive.”

In arguing that ground of appeal, learned counsel for the appellants made the following submissions: since nobody was killed or hurt in the course of the alleged armed robbery, the sentence of death by shooting by firing squad was wrong in law and therefore ought to be set aside and in its place a custodial sentence imposed. The appellants at the time of the commission of the

[p.246] of [2001-2002] 2 GLR 243 offence were young offenders and after spending thirteen years in prison they have become wiser and presumably, more responsible members of society. As they have learned some trade while in prison they would be gainfully employed upon their release from prison. Also, if they are released from prison, they would be in a position to take good care of their children.

Section 16 of PNDCL 78 which is referred to in the charges against the four appellants contains some relevant provisions, which we ought to look at when it comes to sentencing of the appellants. The applicable provisions are subsections (1), (2) and (5). They read as follows:

“16. (1) Subject to subsection (7) of this section, the death penalty may be imposed by a Public Tribunal for such offences as may be specified in writing by the Council and in respect of cases where the Tribunal is satisfied that very grave circumstances meriting such a penalty have been revealed.

(2) Subject to subsection (8) of this section, any person who is convicted by a Public Tribunal of an offence shall be liable to a term of imprisonment no less than three years or to pay such fine as the Tribunal may determine, or both such imprisonment and fine . . .

(5) Where a Public Tribunal determines that an offence triable under this Law is subject to specified penalties under a pre-existing law at the time of its commission, the Tribunal may in its discretion apply such penalties in appropriate cases in so far as such application is consistent with the terms, effect and purposes of this Law.”

Under section 16(1) of PNDCL78, the National Public Tribunal would only have power to impose the death sentence provided either of two conditions are met: First, the council, that is the Provisional National Defence Council, specifies in writing the offence which should attract the death penalty. The alternative situation is that the tribunal should be satisfied “that very grave circumstances meriting such a penalty has been revealed.” In the absence of any indication in the judgment as well as evidence on record that either of the two conditions listed above existed, the National Public Tribunal’s exercise of jurisdiction to impose the

[p.247] of [2001-2002] 2 GLR 243 death sentence has no legal basis. Accordingly, I would set aside the death sentence imposed by the National Public Tribunal and in its place impose a custodial sentence.

Section 16(2) of PNDCL 78 sets the lowest limit to the tribunal’s sentencing powers as three years or payment of a fine. Since the subsection is silent on the upper limit of the Public Tribunal’s sentencing powers it would be appropriate for us to resort to section 16(5) of PNDCL 78 which allows the Public Tribunal the discretion to apply the penalties which the charges attracted under Act 29 and the Criminal Procedure Code, 1960 (Act 30), which predated that enactment. According to section 296(1) of Act 30 as amended by section 5 of the Criminal Procedure Code (Amendment) Act, 1965 (Act 261):

“5. Where a crime is declared by any enactment to be a first degree felony and the punishment for the crime is not specified, a person convicted thereof shall be liable to imprisonment for life or any lesser term.”

Since the enactments under which the four appellants were tried do not specify the punishment to be imposed upon their conviction it becomes obvious that in the light of the amended section 296(1) of Act 30 the upper limit of the term of imprisonment to be imposed would be a life sentence. However, I do not think that the circumstances of this case warrant the maximum sentence, which the statute allows. I think a sentence of 22 years’ imprisonment with hard labour would be the appropriate deterrent sentence. Accordingly, in place of the death sentence, each of the four appellants is sentenced to 22 years’ imprisonment with hard labour. The sentences in each case are to take effect from 30 May 1988 when the National Public Tribunal sentenced the four appellants. Appeal allowed.

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