HIGH COURT, SUNYANI
Date: 10 APRIL 1974
OSEI-HWERE J
CASES REFERRED TO
(1) R. v. Ingleson [1915] 1 K.B. 512; 84 L.J.K.B. 280; 112 L.T. 313; 78 J.P.J. 521; 24 Cox C.C. 527; 11 Cr.App.R. 21, C.C.A.
(2) R. v. Emery (1943) 29 Cr.App.R. 47, C.C.A.
(3) R. v. Muambo (1941) 7 W.A.C.A. 27.
(4) Ofei v. The State [1965] G.L.R. 680, S.C.
(5) R. v. West Kent Quarter Sessions Appeal Committee; Ex parte Files [1951] W.N. 440; [1951] 2 T.L.R. 470; [1951] 2 All E.R. 728; 115 J.P. 522, D C.
(6) Osei Tutu v. The State [1965] G.L.R. 593.
(7) State v. Atsivi, High Court, 13 September 1965, unreported; digested in (1965) C.C. 202.
(8) Kofi alias Fiozo v. The State [1965] G.L.R. 28.
(9) R. v. Norfolk Justices; Ex parte Director of Public Prosecutions [1950] 2 K.B. 558; 94 S.J. 436; 48 L.G.R. 483; 34 Cr.App.R. 120; sub nom. R. v. South Greenhoe Justices; Ex parte Director of Public Prosecutions [1950] 2 All E.R. 42; 114 J.P. 312; 66 T.L.R. (Pt. 2) 452.
(10) Bakuma v. Ekor [1972] 1 G.L.R. 133, C.A.
(11) Republic v. Watara [1974] 1 G.L.R. 195, C.A.
(12) R. v. Vallett [1951] 1 All E.R. 231; 115 J.P. 103; 95 S.J. 91; 49 L.G.R. 152; 34 Cr.App.R. 251, C.C.A.
(13) R. v. Hartlepool Justices; Ex parte King [1973] Crim.L.R. 637.
(14) R. v. Lynn Justices; Ex parte Brown [1973] Crim.L.R. 52.
(15) R. v. Tower Bridge Magistrates; Ex parte Osman [1971] 1 W.L.R. 1109; [1971] 2 All E.R. 1018; 55 Cr.App.R . 436, DC.
(16) Hassan v. The State [1962] 2 G.L.R. 150, S.C.
(17) R. v. Abaley (1958) 3 W.A.L.R. 463, C.A.
(18) Akakpo v. The Republic (Practice Note) [1974] 1 G.L.R. 65.
NATURE OF PROCEEDINGS
APPEAL against a conviction by a district court under Act 29, s. 317 (1) (f). The minimum sentence being outside that court’s jurisdiction the appellant was committed to and sentenced by a circuit court. The facts are fully stated in the judgment.
COUNSEL
Ewusie-Wilson (Oppong with him) for the appellant.
Ossei (holding C. S. K. Agbanu’s, Senior State Attorney, brief), for the Republic.
JUDGMENT OF OSEI-HWERE J
By his petition of appeal the appellant brings this appeal against the conviction (and inferentially against the sentence) of the Circuit Court, Sunyani. The facts giving rise to the appeal are that on 6 June 1972, the appellant was arraigned before the District Court Grade I. Wenchi, on a charge of fraudulent evasion of customs duties contrary to section 317 (1) (f) of the Criminal Code, 1960 (Act 29), as substituted by the Criminal Code (Amendment) Act, 1971 (Act 364). The particulars of the offence, as appear on the charge sheet, are as follows:
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“Lamini Watara, lorry driver: For that you on the 24th day of December 1971 at Wenchi in the Brong-Ahafo Magisterial District and within the jurisdiction of this court, were knowingly concerned in fraudulent evasion of customs duties.”
After the statement had been read and explained to the appellant he pleaded guilty and the prosecutor proceeded to give the facts. The recorded facts are the following:
“On 24 December 1971, policemen on barrier duty in front of Wenchi Police Station stopped Toyota bus No. GK 6039 which was travelling in Sampa direction towards Kumasi. The vehicle was searched and 28 pieces of wax prints were discovered in the vehicle. The wax prints are contraband goods the importation of which is prohibited unless the necessary duties are paid. The accused claimed ownership of the goods but admitted that he did not pay the necessary duties. The 28 pieces of cloth were sent to the Customs and Excise Office at Sunyani. The collector in charge gave the treble value of the goods to be N01,191.33. The matter was referred to the Attorney-General for advice. The Attorney-General advised prosecution.”
Thereafter the following order was made by the court:
“By court:—Accused is convicted on his own plea and committed to the Circuit Court, Sunyani, for sentence. Accused remanded in custody to appear before the circuit court on 7 June 1972.”
It appears from the record of proceedings that the appellant was put before the circuit court on 23 June 1972. On that day he was represented by counsel for the first time. His counsel urged before the learned judge that the appellant, at the court below, had given an explanation which does not appear on the record and he submitted that the judge must satisfy himself of the propriety of the conviction before sentencing the appellant. The senior state attorney who happened to be in court took up the gauntlet and submitted that under section 171 of the Criminal Procedure Code, 1960 (Act 30), it was not mandatory for the trial magistrate to record the appellant’s explanation. He accordingly, invited the court to carry out its only duty under section 178 (1) and (2) of Act 30 which was to sentence the appellant. The learned judge found himself in a dilemma and he adjourned the case to enable him to consider his ruling as to whether the court must satisfy itself that the appellant was properly convicted before it could impose sentence. That ruling was never to be but, from the undisputed history of this appeal, the circuit judge stated a case on this matter for the consideration of the Court of Appeal. The case stated was heard by the Court of Appeal on 19 January 1973, and reported in [1974] 1 G.L.R. 195, C.A. The Court of Appeal made the following order: “We consider the points raised very frivolous and quite undeserving in a case stated. We send the case back to the circuit court for sentence.” The appellant was, consequently brought before the circuit court (presided over by a circuit judge other than the judge who stated the case) for sentence on 1 March 1973 and the court, acting under Act 29 as
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amended by Act 364 sentenced the appellant to a fine of 05,000.00 or five years’ imprisonment with hard labour. The appellant was granted one month within which to pay the fine and he was granted bail in the sum of 05,000.00 with two sureties to be justified. The court further directed, by applying section 297 (3) of Act 30, that if the appellant failed to pay the fine within the period stipulated, he should serve a term of imprisonment for six months until the fine was paid. The appellant did not utilise the bail so as to find the money to pay the fine imposed and until 21 December 1973, when the appellant was granted bail by this court, he served part of his sentence.
The appellant’s solicitor raised the following grounds of appeal in the petition of appeal:
“(1) The judgment was against the weight of evidence.
(2) The learned trial judge ought, when he found the appellant guilty, to have given him very sufficient
time to pay the fine imposed.”
He followed this up with the under-mentioned supplementary grounds of appeal which constituted the main prop of his argument, viz.:
“(1) The learned magistrate erred in law in not recording the appellant’s plea of guilty as nearly as possible in the words used.
(2) The learned magistrate, despite the appellant’s plea of guilty, ought to have entered a plea of not guilty having regard to the time the alleged offence was committed and the time the appellant was before court.
(3) The learned magistrate erred in law when he failed to explain to the appellant, after he had pleaded
guilty, the nature of the charge and the procedure which would follow the acceptance of the
appellant’s plea of guilty.
(4) That from the facts of the case the learned magistrate misdirected himself by non-direction when he failed to treat the appellant’s plea as equivocal and, accordingly, entered a plea of not guilty.
(5) That upon the admitted facts, the learned magistrate ought not in law to have convicted the appellant.
(6) That since the facts of the case did not support the charge the learned magistrate was wrong in convicting the appellant on his plea.”
He finally rounded these up with an additional ground of appeal in the following terms:
“That since the learned magistrate had no jurisdiction to try the accused in the case the trial herein was a nullity, and the sentence by the learned circuit judge was equally a nullity.”
It was by a sheer flash of revelation that counsel for the appellant came upon this additional ground of appeal. On that day when there was a summary hearing of this appeal the learned senior state attorney, who acted as a friend of the court, invited me to dismiss the appeal summarily
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on the ground that this court had no jurisdiction to hear it. According to him the appellant was committed to the circuit court for sentence and, under section 178 (2) of Act 30:
“The Circuit Court shall have power to deal with the offender as if he had been convicted on indictment by that Court of the offence, and the conviction and sentence shall be subject to appeal as if he had been so convicted.”
I overruled the preliminary point raised as to jurisdiction on the main ground that section 178 (1) of Act 30 from which subsection (2) derives its life does not apply to the instant appeal. It was then that the issue of jurisdiction at the court below, undoubtedly dawned on counsel for the appellant for the first time and they at once clung to it like a leech. More of what ultimately turned out to be the controversial section 178 of Act 30 anon.
An appeal does not lie as of right unless it is given by some statute. Where a statute therefore, denies a right of appeal an appellate court cannot confer on itself the right to hear such an appeal. Section 324 (3) of Act 30 provides expressly that no appeal shall be entertained against a conviction by an accused person who has pleaded guilty and has been convicted on his plea. In order to make a plea of guilty binding and effective it must be unambiguous: see R. v. Ingleson [1915] 1 K.B. 512, C.C.A. and R. v. Emery (1943) 29 Cr.App.R. 47, C.C.A. If the plea of guilty is, therefore, ambiguous or made under a misapprehension an appeal will lie to declare the conviction based on the plea a nullity: see R. v. Muambo (1941) 7 W.A.C.A. 27 and Ofei v. The State [1965] G.L.R. 680, S.C. But where the accused unequivocally pleaded guilty there can be no right of appeal against conviction: see R. v. West Kent Quarter Sessions Appeal Committee; Ex parte Files [1951] 2 All E.R. 728, D.C. Indeed in Osei Tutu v. The State [1965] G.L.R. 593, Koranteng-Addow J. held that section 324 of Act 30 only comes into play when an offence has in fact been committed and the accused pleads guilty and is convicted on his plea. If no offence has been committed the plea of guilty will on appeal be considered as having been entered under a misapprehension and the plea will be declared a nullity in law.
It seems very plain on the face of the record that the appellant simply pleaded guilty to the charge after it had been read and explained to him in Twi and, under normal circumstances, this court should not entertain his appeal against conviction unless the appeal can be justified on any of the grounds mentioned above. Counsel strenuously strove to find justification for the appeal for a variety of reasons encompassed by those grounds raised in the supplementary grounds of appeal. I find no merit in grounds (1), (2) and
(3) argued by the appellant’s counsel. The requirement in section 171 (2) of Act 30 that the plea of guilty shall be recorded as nearly as possible in the exact words used does not enjoin the trial court that what is recorded must be the ipsissima verba. The entry of “guilty” against the word “plea” in the record does not give any room for doubt that the appellant pleaded guilty. Undoubtedly the appellant, as it appears
[p.30] of [1974] 2 GLR 24
he spoke Twi, must have said, “I am guilty”; but the simple entry “guilty” sufficiently conveys the same idea. At any rate the legal maxim is de minimis non curat lex and this ground should not have been raised at all. In regard to ground (2) I apprehend that unless there is some provision in a statute limiting the period within which a particular crime must be prosecuted there will be nothing wrong in prosecuting the crime as and when it is deemed convenient. Undue delay in prosecuting a crime must only put the trial court on the qui vive when the trial court comes to weigh the evidence. The short answer to ground (3) is that section 199 (1) of Act 30 has no application to summary trials but to trials on indictment.
Affidavits were filed before this court as part of the record of proceedings. The affidavit filed on behalf of the appellant disclosed that when the appellant’s vehicle was intercepted by the police at Wenchi the appellant was neither in charge of the vehicle nor in it. His spare driver, one Osei Yaw, was behind the steering wheel. According to the affidavit as the police could not lay hands on the woman who the spare driver alleged owned the wax prints he was persuaded by the police to admit ownership of the prints otherwise his vehicle would be seized and he would also be imprisoned. The police told him that they had closed the docket after he had been made to sign the statement the police prepared admitting ownership. When he was arraigned before the court many months after, he pleaded guilty to the charge but explained the circumstances of the case but his explanation was not recorded. The trial magistrate in turn swore to an affidavit deposing that he faithfully recorded what took place before him and he denied that the appellant offered any explanation to his plea of guilty. The policeman who investigated the case also swore to an affidavit deposing, inter alia, that the appellant was not on the vehicle when it was intercepted but that Osei Yaw was driving the vehicle. It was Osei Yaw who told the police that the appellant owned the wax prints. The appellant was arrested and he admitted ownership of the prints. The affidavit then went on to deny the impropriety alleged of the police.
It was with these affidavits at the foreground that counsel for the appellant argued supplementary grounds
(4), (5) and (6). The “facts of the case” stated in ground (4) are obviously those facts deposed to on behalf of the appellant, especially where it is alleged that he explained the circumstances of the case after he had pleaded not guilty. I find it highly improbable that the appellant, after his plea of guilty, told the trial magistrate that he had been persuaded by the police to admit ownership of the prints for fear of imprisonment and seizure of his vehicle. The trial magistrate at any rate, has denied that any explanation was given and I prefer what he says to the appellant’s imputation against his integrity. I find supplementary ground (4) not sustainable. Supplementary grounds (3) and (6) are, in reality, variations on the same theme. There capital was made of the admitted fact that the appellant was never on the vehicle at all and he could not (as it was argued with vehemence) have been convicted of the offence as it was not disclosed to the court where and how he admitted ownership. Counsel for the appellant relied on State v. Atsivi, High Court, 13 September 1965, unreported; digested in (1965) C.C. 202 where
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Boison J. held, adopting the dictum of Lassey J. (as he then was) in Kofi alias Fiozo v. The State [1965] G.L.R. 28 that where on the face of the record the facts cannot support the charge the court can entertain an appeal in spite of section 324 of Act 30. Indeed, the full holding of Lassey J. in Kofi alias Fiozo v. The State (supra) as appears in the headnote at p. 28 is as follows:
“(1) notwithstanding the mandatory provision of section 324 (3) of the Criminal Procedure Code, 1960, in cases where a plea of guilty has been recorded, the appellate tribunal can entertain and hear an appeal against conviction if it appears on the face of the record that (a) the appellant who was not represented at the trial did not understand or appreciate the nature of the charge or charges; or did not intend to admit that he was guilty; (b) upon the admitted facts he could not in law have been convicted of the offence charged. . .”
It is quite beside the point whether the appellant was in his vehicle or not when it was intercepted; or whether he admitted ownership or not. The gravamen of the offence is that he must be “knowingly concerned in fraudulent evasion of customs duties.” The dictionary meaning of “concern” is to relate or belong to; to effect an interest; to involve by interest, occupation or duty; to implicate; to make uneasy; to trouble. The sense of ownership does not constitute an essential element of the offence. My understanding of the offence is that whoever involves himself by his interest, occupation or duty by using deceit to cheat in the payment of customs duties shall be guilty of that offence. The full offence is stated in Act 29, s. 317
(1) as substituted by Act 364, as follows:
“317. ( 1) If any person …
(f) is in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any customs or excise duties; …
he shall be guilty of an offence . . .”
This offence is obviously aimed at cracking down on those who by fraudulent manipulation of records cheat or attempt to cheat the Republic of Ghana of customs or excise duties. I think that it will be stretching the imagination too far if it can be said that simply because the appellant had admitted ownership of some prohibited goods within Ghana then he was knowingly concerned in a fraudulent evasion of customs duties. It is for no idle purpose that the marginal note to section 317 of Act 29 as amended by Act 364 distinguishes, for convenient reference, “smuggling and other evasions.” Section
317 (1) (a) of Act 29 deals with the importation of prohibited or restricted goods whilst section 317 (1) (f) is concerned with fraudulent evasion of customs or excise duties. In other words the things in relation to which the two offences can be committed are amplified by “goods” and “customs or excise duties”
respectively. It does not seem to me that the facts as given to the court could support the charge and the
trial magistrate ought not to have accepted the appellant’s plea of guilty.
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The more serious objection to the trial magistrate s entertainment of the plea of guilty is the fact that by the hopelessly defective manner the particulars of the charge were framed the court was disabled from carrying out its mandatory duty under section 171 (1) of Act 30 and the appellant therefore pleaded guilty when the particulars of the offence were not sufficiently explained to him. It must be conceded that this point was not canvassed by the appellants counsel but this court must not be muzzled thereby where it finds that the defect engendering the trial court’s default is as grave as to amount to a miscarriage of justice. Section 171 (1) of Act 30 provides:
“171. ( 1) If the accused appears personally or, under section 70 (1), by his advocate, the substance of the
charge contained in the charge sheet or complaint shall be stated and explained to him, or, if he
is not personally present, to his advocate (if any), and he or his advocate, as the case may be,
shall be asked whether he pleads guilty or not guilty. In stating the substance of the charge the
Court shall state particulars of the date, time, and place of the commission of the alleged
offence, the person against whom or the thing in respect of which it is alleged to have been committed, and the section of the enactment creating the offence.”
It will be noted from the particulars of the offence (which have been set down before) that they failed to inform the appellant, more importantly, the person against whom or the thing in respect of which he was alleged to have committed the offence. In other words, the particulars ought to have disclosed in what manner the appellant was knowingly concerned in the fraudulent evasion of customs duties as the offence may take one of many forms. The charge sheet merely re-stated the statement of the offence in the particulars of offence and added only the place and date to the statement of the offence. As the charge sheet failed to give the statutory information to the appellant his plea of guilty cannot be sustained.
The most far-reaching point argued is the question of jurisdiction. It is the contention of the appellant’s
counsel that the trial court had no jurisdiction to try the appellant and that as the trial was a nullity the
purported sentence of the appellant by the circuit court was also a nullity. Counsel, in particular, refers to section 39 of the Courts Act, 1971 (Act 372), which spells out the criminal jurisdiction of the district court, particularly to subsection (1) (a) and subsection (2) (a) of the said section 39. In reply the senior state attorney submitted that the appellant was arraigned before the district court grade I by virtue of the power conferred on the Attorney-General by section 39 (1) (b) of the Courts Act, 1971. According to him the facts, disclosed to the court, show that the police referred this matter to the Attorney-General for advice and he advised prosecution. The record, of course, does not indicate that he advised prosecution at the district court. The learned senior state attorney reiterated his argument that this court has no jurisdiction to entertain the appeal as the appellant was committed to the circuit court for sentence and by section 178 (2) of Act 30 the conviction and sentence of the appellant shall be subject to appeal
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as if he had been convicted on an indictment by the circuit court. The proper forum for the appeal is, therefore, the Court of Appeal. He felt that his argument was comfortably ensconced because in the extract of the answer of the case stated produced in the record of proceedings the Court of Appeal ordered the circuit court to sentence the appellant. It was also argued that even if section 178 (1) of Act 30 under which the appellant was committed for sentence to the circuit court is held to be wrong the proper forum where the appeal can lie is still the Court of Appeal. As his parting salvo the learned senior state attorney contended that this appeal, at any rate, is still incompetent as by section 325 (1) of Act 30 the time limited for bringing criminal appeals to the High Court is within ten days of the date of the order or sentence appealed against.
It will be pertinent for the purpose of answering the points raised as to jurisdiction to quote in extenso,
those subsections of section 39 of Act 372 and section 178 of Act 30 which counsel referred to. It is
provided in section 39 (1) and (2) of Act 372 as follows:
“39. ( 1) In criminal matters a District Court (Grade I or Grade II) shall have jurisdiction to try
summarily—
(a) an offence punishable by a fine not exceeding N01,000.00 or by imprisonment for a term not exceeding two years or both;
(b) any other offence (except an offence punishable by death or by imprisonment for life or
an offence declared by any enactment to be a first degree felony,) if the
Attorney-General is of the opinion that having regard to the nature of the offence, the
absence of circumstances which would render the offence of a grave or serious
character and all other circumstances of the case the case is suitable to be tried summarily; . . .
(2) Subject to the other provisions of this section, a District Court shall, in the exercise of its criminal jurisdiction, not impose
(a) in the case of a District Court. (Grade I) a term of imprisonment exceeding two years or a fine exceeding N01,000.00 or both . . .”
It must be mentioned at this stage that Act 364 provides that if any person commits any of the offences under section 317 (1) of Act 29 (as amended by Act 364)
“he shall be guilty of an offence and liable on summary conviction to imprisonment for a term of not less
than five years and not exceeding ten years or to a fine of not less than five thousand new cedis and not
exceeding ten thousand new cedis or both…”
Subsection (2) of section 178 of Act 30 has already been mentioned. Subsection (1) of that same section lays down the following provisions:
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“178. ( 1) Where, upon the summary conviction of a person for any offence, the District Court is of
opinion that, having regard to the evidence, and to the character and record of the offender, the maximum punishment which the District Court is empowered to impose would be insufficient, the Court may commit the offender for sentence to a Circuit Court and any enactment relating to the powers of any Court upon committal for trial shall apply so far as relevant to such committal for sentence.”
There can be no doubt that the Attorney-General, under section 39 (1) (b) of Act 372 can cause any offence which is not one punishable by death or by imprisonment for life or which is not declared by any enactment to be a first degree felony to be tried summarily. This power is, of course, exercisable where the Attorney-General is of the opinion that having regard to the nature of the offence and the other circumstances mentioned in the section the case is suitable to be tried summarily. Section 39 (1) (b) is patently not meant as a charter whereby the Attorney-General can reduce serious offences—and an offence where the minimum punishment is five years’ imprisonment with hard labour or a fine of 05,000.
00 is no exception-so as to confer jurisdiction on inferior courts. Such practice must, if it exists, be vehemently deprecated. The district courts must themselves not be all too ready to assume such jurisdiction because they are not bound to assent to it. In the words of Lord Goddard C.J. in R. v. South Greenhoe Justices; Ex parte Director of Public Prosecutions [1950] 2 All E.R. 42 at p. 44 that, “the fact that justices have power to deal with cases is no reason why they necessarily should deal with them.” This is all the more so because section 178 of Act 30 lays down the procedure which a district court may follow where it finds that an offence before it is unsuitable for summary trial. The need to decline jurisdiction where the offence is grave is exemplified by the absence of any power in a district court, except in those cases covered by section 178 (1) of Act 30, to commit for sentence.
But the lips of the respondent’s counsel must perforce remain forever dumb in view of the overriding provisions of section 39 (3) of Act 372 which seem to have eluded counsel for both parties. That subsection provides that:
“(3) A District Court (Grade I or Grade II) shall not have jurisdiction to try an offence under paragraph
(b), (c) or (d) of subsection (1) of this section where the enactment creating the offence has prescribed in relation thereto a minimum penalty higher than any penalty prescribed in respect of that Court by subsection (2) of this section.”
As by subsection (2) (a) the district court grade I is not entitled in the exercise of its criminal jurisdiction to impose a term of imprisonment exceeding two years or a fine exceeding 01,000.00 or both and as the offence with which the appellant was charged carries the minimum sentence of five years’ imprisonment or a minimum fine of 05,000.00 the trial district court grade I had no jurisdiction to entertain the charge and
[p.35] of [1974] 2 GLR 24
the appellant’s arraignment and his subsequent conviction before that court was completely null and void. The purported committal of the appellant to the circuit court for sentence by the trial district magistrate was similarly null and void and, in contemplation of the law, it must be deemed never to have existed. It has been explained in Bakuma v. Ekor [1972] 1 G.L.R. 133, C.A. that a judge of an inferior court is said to have exceeded his jurisdiction when he assumes to do something which cannot in any way be justified by the relevant statutory provisions from which he derives his power to adjudicate and also that where there is no jurisdiction the proceedings are void.
Upon reading the answers to the case stated in Republic v. Watara [1974] 1 G.L.R. 195, C.A. it becomes very clear that those answers proceeded upon the wrong assumption that the appellant was committed for sentence under section 178 (1) of Act 30. The simple truth is that the trial magistrate, as revealed by the record of proceedings, just committed the appellant to the circuit court for sentence without disclosing the source of his authority. What undoubtedly happened was that the trial court, after wrongfully assuming jurisdiction to try the case which was in excess of its jurisdiction, found itself subsequently in a dilemma when it realised that the sentence to be imposed was above its sentencing powers and it accordingly found an escape gap by committing the appellant to the circuit court for sentence. The interpretation given by the Court of Appeal in the case stated quoted above on the effect of section 178 (2) of Act 30 bears no relevance, therefore, to this case. It follows then that the argument that an appeal from the conviction and sentence of the applicant lies to the Court of Appeal can also not be sustained, because it is a non sequitur that section 178 (1) of Act 30 applied as the appellant found himself before the circuit court for sentence.
But, even if it can be implied that the appellant was committed for sentence under section 178 (1) of Act 30, can it be said that the committal was lawful? It cannot be disputed that the power to commit can be considered where, firstly, a person is summarily convicted for any offence by the district court, i.e. where the offence is a second degree felony, a misdemeanour or any offence which is not declared to be either. Secondly, the power is only exercisable when these two conditions co-exist, viz., the court must have regard to (a) the evidence and (b) the character and record of the offender. It seems that the expression “character and record” will not limit the information upon which the district court can commit to previous convictions alone. It may arise where, for instance, a convicted person asks for a large number of offences to be taken into consideration — R. v. Vallett [1951] 1 All E.R. 231, C.C.A. It is indeed not open to trial magistrates to commit under section 178 (1) of Act 30 unless having considered the evidence as well as the character and record of the accused person they considered that greater punishment should be inflicted than they had power to inflict. The deciding factor is not the circumstances of the offence (for instance that the offence is one that should merit public condemnation as the Court of Appeal observed in the case stated quoted
[p.36] of [1974] 2 GLR 24
above) but what the magistrate learns about the character and record of the accused: see R. v. Hartlepool Justices; Ex parte King [1973] Crim.L.R. 637. In R. v. Lynn Justices; Ex parte Brown [1973] Crim.L.R. 52 the court warned that before justices embarked on summary trials they should make a proper inquiry, and, if seised of all relevant facts, could not use section 29 of the Magistrates’ Courts Act, 1952 (15 & 16 Geo. 6 & 1 Eliz. 2, c. 55) (almost analogous to our section 178 (1) of Act 30) to get them out of a difficulty. Indeed, in the instant case, as nothing emerged from the facts given at the trial throwing light on the gravity of the offence which did not appear in the charge itself the trial magistrate could not have had the power to commit for sentence under section 178 (1) of Act 30: see R. v. Tower Bridge Magistrates; Ex parte Osman [1971] 1 W.L.R. 1109, D.C. It is clear from the foregoing that the purported committal of the appellant for sentence by the circuit court can in no way be justified.
The declaration that criminal proceedings are null and void means that the charge is good but that the court that purported to try it was void of jurisdiction: see Hassan v. The State [1962] 2 G.L.R. 150, S.C. In such a case a retrial can be ordered upon the original unamended charge: see R. v. Abaley (1958) 3 W.A.L.R. 463, C.A. The primary concern of all courts of justice is to do justice but not to perpetuate injustice. The offence with which the appellant was charged, as noted before, carries with it the minimum punishment of a five year prison sentence. No court has the power to scale down this minimum sentence of five years. The appellant, before his release on bail, had served some nine months of his prison sentence. If he is sent down for retrial and he is convicted then he would have suffered his imprisonment for nothing. I have also indicated that the particulars of the charge, as they stand, are hopelessly bad and it is not unlikely that all sorts of manoeuvres will be adopted by the prosecution to get the appellant to stand his trial on a proper charge. It is for all these reasons that I hold that justice will not be served in ordering a retrial.
Before I leave off I concede to the respondent’s counsel that the appeal was brought out of time in defiance of section 35 (1) of Act 30. Section 35 (1) of Act 30, however, empowers this court for good cause to admit an appeal though the period of limitation prescribed has elapsed. As the whole trial was void of jurisdiction and therefore a nullity the appellant, if still in prison, could have brought a habeas corpus for his release. This is a sufficient cause why I should extend the time and it is hereby extended up to and including 29 March 1973, so as to admit his appeal. It is for all of the above reasons that I allow the appellant’s appeal against his conviction and sentence and set them aside. In place thereof I enter an acquittal and discharge.
I have, since the delivery of the above judgment, come upon the decision of Andoh J. in Akakpo v. The Republic [1974] 1 G.L.R. 65 where the learned judge, in spelling out the duty of a circuit court judge where a convicted person is committed to a circuit court for sentence under section 178 of Act 30, lays down the following, inter alia, as a practice note at p. 66:
[p.37] of [1974] 2 GLR 24
“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.”
With all due deference to the learned judge I think that the above quoted practice direction is wrong. One of the questions of law stated by the circuit judge for the consideration of the Court of Appeal appearing in Republic v. Watara [1974] 1 G.L.R. 195, C.A. was as follows:
‘“(a) Does the circuit court, being the sentencing court, have power to endorse or decline to endorse the conviction by the district court before passing sentence, or does this court have to regard the conviction as sacrosanct and proceed to pass sentence?”’
The Court of Appeal, in answering this question, felt that it concerned the interpretation of section 178 (2) of Act 30. The court, per Sowah J.A. who delivered the judgment of the court stated at p. 197:
“We do not see the difficulties of the learned circuit judge if he would only interpret section 178 (2) in its ordinary meaning without pendantry or embellishment. It means simply that the learned circuit judge should assume that he had convicted the accused person; in other words, the conviction should be taken as the circuit court’s conviction, the only power remaining thereafter, was to pass sentence. It is not for the circuit court to endorse or refuse to endorse the conviction; that is the function of an appellate court to which the accused if he were so disposed, would appeal.”
In view of the interpretation given to section 178 (2) of Act 30 by the Court of Appeal it must be held that that part of the practice note in the Akakpo case quoted above was laid down per incuriam and it cannot be followed.
DECISION
Appeal allowed.
Conviction and sentence set aside.
Appellant acquitted and discharged.
S.E.K.
