OSEI TUTU AND ANOTHER v. THE STATE [1965] GLR 593

DIVISION: HIGH COURT, SEKONDI

DATE: 4 OCTOBER 1965

BEFORE: KORANTENG-ADDOW J.

CASE REFERRED TO

Duah v. Commissioner of Police (1950) 13 W.A.C.A. 85. NATURE OF PROCEEDINGS

APPEAL against the judgments of the District Magistrate, Sekondi, in three cases. The facts are set out in the judgment.

COUNSEL

R. A. Darko, Assistant State Attorney, for the State.

Hayfron for the appellant.

JUDGMENT OF KORANTENG-ADDOW J.

This is an appeal from the judgments of the District Magistrate, Sekondi. The judgments appealed from are in three separate cases (cases Nos. 25, 26 and 27 of 1965) tried at Half Assini on the same day. The charges in case No. 25, case No. 26 and count 1 of case No. 27 were all under section 237 of the Criminal

Code, 1960,1 and the facts are almost identical save that the three offences took place at different times and at different places. The first took place at Half-Assini on 28 January 1965 (case No. 26), the second on 29 January 1965 at Bonyere (case No. 27) and the last on 30 January 1965 at Takinta (case No. 25).

The staple in the charges was that the two accused persons pretended to be public officers and under that assumed character did obtain certain articles from the complainants in these matters. The articles involved are ordinary daily needs, e.g. reels of black cotton thread, Atwood Bitters, bottles of lavender, pieces of cotton prints, shirts and spectacles. The total value of the goods obtained in the first of the cases was;

£G10 15s., in the second £G6 and in the third 12s.

The second count in case No. 27 charged the appellants with extortion contrary to section 151 (1) of the

Criminal Code, 1960.

Under their assumed character the accused were said to have:

“threatened one Mozu Kwame of Bonyere as having sold one piece of cloth above control price and as such were making a case against him and under such assumed colour obtained for yourselves the sum of £G8 from the said Mozu Kwame . . . which you knew you were not lawfully authorised to obtain.”

[p.395] of [1965] GLR 593

The accused persons who are described in the charges as labourers seem to have gone on a spending spree in the locality of Half-Assini after receiving their pay for the month of January 1965. The explanation of the accused persons as appearing in case No. 25, and which the prosecution regarded as “unreasonable” was that “the traders deliberately reduced the price of their commodities for them as they resembled policemen.” The accused pleaded guilty to all the charges and were convicted and sentenced accordingly.

They appealed against their sentences. The second ground of their appeal reads:

“That the exhibits, the articles bought or purchased on sale from the various traders were paid for and as such was invested with ownership and possession upon delivering of goods and transaction completed: essence of fact which was neglected or concealed at trial.”

The grounds of appeal put me on my mettle and I therefore looked at the appeal twice. The fact that the articles involved were bought and paid for appears in the statements made to the police by the accused persons. I therefore granted the appellants leave to appeal against both their convictions and sentences rather than against their sentences as they prayed.

At the hearing of the appeal Mr. Hayfron, learned counsel for the appellants, argued as regards the counts charging “pretending to be public officers” that no offences were committed by the appellants and therefore even though they pleaded guilty their convictions and sentences should be quashed. As opposed to this submission Mr. R. A. Darko, the learned assistant state attorney, appearing for the State submitted that the appeals were not properly before the court. They should not have been entertained at all by the court as none lay. He quoted in support of his forceful submission section 324 (3) of the Criminal

Procedure Code, 1960.2 He stressed that the section is couched in such mandatory terms that it leaves the court no discretion. The subsection reads, “No appeal shall be entertained against conviction by an accused person who has pleaded guilty and has been convicted on his plea.” Learned counsel submitted that to entertain such an appeal would seem to render nugatory the mandatory provisions of subsection (3) of section 324 of the Criminal Procedure Code.

I accept the submission of learned counsel for the appellants. In my opinion the very assumption of the character of a public officer without the commission of any offence does not amount to a crime under our

Criminal Code. Causing a storekeeper or trader to sell at

[p.596] of [1965] GLR 593 control price is not criminal. It would rather amount to “acting in good faith for the public benefit” and would fall within the second exemption provided by section 237. 1 would go further and submit that a trader who has displayed his wares has made a general offer to the public at large. If he sold to any buyer the storekeeper is not “procured” to do anything he would not have done otherwise.

In my opinion section 324 (3) only comes into play when an offence has in fact been committed and the accused person pleads guilty and is convicted on his plea. If, as in this case, no offence has been committed, both the charge and the plea are a nullity in law. In the eye of the law they never existed. The accused persons need not have pleaded at all to the charges. I may mention that section 324 (3) of Act 30 is in pari materia with the proviso to section 326 (1) of the old Criminal Procedure Code.3 The only difference between the two is that whereas the provision about the non-entertaining of such appeals is in a proviso to section 326 of Cap. 10 the similar provision in Act 30 is given pride of place and enshrined in a subsection.

For easy reference I am quoting the two provisions hereunder: Section 326 of Cap. 10 reads:

“(1) Where a Magistrate’s Court makes a conviction or order ordering any of the following things, that is to say— . . .

Provided that no appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea, except as to the legality or extent of the sentence . . . (2) An appeal to the Supreme Court may be on a matter of fact as well as on a matter of law.”

And section 324 (3) of Act 30 reads as follows:

“No appeal shall be entertained against conviction by an accused person who has pleaded guilty and has been convicted on his plea.”

(The emphasis is mine.) The authorities on section 326 of the old Criminal Procedure Code in my submission would be applicable to section 324 (3) of Act 30: see the case of Duah v. Commissioner of

Police,4 and the case cited therein. From the foregoing it would be seen that the forcefulness of the argument of learned counsel for the State pales off. I would therefore allow the appeals on the pretending” charges and quash the convictions and sentences thereon and substitute therefor verdicts of acquittal and discharge. With respect to the count charging extortion, i.e. count 2 in case No. 27, 1 would uphold the conviction and sentence thereon and dismiss the appeal. [p.597] of [1965] GLR 593

With regard to the restitution orders made in cases Nos. 25 and 26, if the said orders were interpreted to mean restoration of the goods to the traders concerned I dissent therefrom as the owners of the goods are the appellants. The goods were sold to them and are therefore to be restored to them—not to the traders.

Court below to carry out.

DECISION

Appeals allowed, except in count 2 of case No. 27.

S. K. D.-B.