OGUNWUMI v. THE STATE [1965] GLR 400

DIVISION: SUPREME COURT

DATE: 21 MAY 1965

BEFORE: OLLENNU, ACOLATSE AND APALOO JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL against conviction and sentence. The appellant was convicted by the Circuit Court, Ho, for the offences of possessing forged documents and uttering forged document and was sentenced to four years’ imprisonment with hard labour on each count. He appealed against his sentence and conviction to the

High Court, Ho, which reduced the sentence. He further appealed to the Supreme Court.

COUNSEL

P.A. Adjetey for the appellant.

Gyeke-Dako, Senior State Attorney, for the State.

JUDGMENT OF APALOO J.S.C.

Apaloo J.S.C. delivered the judgment of the court. The applicant, who is a citizen of the Republic of

Nigeria, was on 30 March 1963, convicted by the Circuit Court, Ho, of the offences of possessing forged document and uttering forged document and was sentenced to four years’ imprisonment with hard labour on each count. An amount of £G2,520 which was used by him in the commission of the offences was ordered to be forfeited to the government and also two sums of money which were found in his possession and in respect of which no charges were preferred against him. The court also recommended his deportation at the expiry of the sentence. He appealed against his conviction and sentence to the High

Court, Ho. On 28 June 1963, the High Court constituted by Siriboe J. (as he then was) dismissed the appeal against his conviction on both counts, but reduced the sentence from four years to two years. The learned High Court judge also set aside the order of confiscation of the two sums of money found with the appellant and in respect of which no charges were preferred against him, but he did not make a formal order of restitution in the appellant’s favour. The court however affirmed the order of confiscation made in respect of the £G2,520 and concurred in the recommendation for deportation which the learned circuit judge made. The appellant again appealed to this court against the conviction and sentence.

It is not necessary to recite the facts at great length. The substance of it is that: On 20 September 1962, the appellant and two other persons entered the Barclays Bank premises at Ho. The appellant apparently had gone there to purchase a bank draft. Unknown to him,

[p.402] of [1965] GLR 400 he was placed under surveillance by the police. He produced to the manager, a Mr. Harrison, what purported to be an authority from the Bank of Ghana for the purchase of £G2,520 Nigerian currency. It was exchange control form Al. The manager, believing it to be genuine, made out the necessary draft in his favour in return for £G2,520 Ghana currency. The appellant was negotiating other business with the manager when the police entered the manager’s office and arrested him. The exchange control form was proved to have been forged to the appellant’s knowledge and he knowingly uttered it to the manager. The police took possession of the £G2,520 and the two other sums of £G1,520 and £G466 which were found in his possession. At his trial before the circuit court, these sums were tendered in evidence. The learned circuit judge accepted the prosecution’s version of the facts and, holding the charges proved, convicted the appellant and made the orders which we have recited. But before making the order recommending the appellant’s deportation, the learned circuit judge took evidence of his personal particulars and obviously used them as the basis for exercising his discretion.

As we have said, the appellant appealed against his conviction and sentence to the High Court with the results which we have already set out. Although the appellant again appealed to this court against his conviction, no argument was addressed to us on this. We think on the facts, the appellant was properly convicted and that the appeal against his conviction has no merit.

The only serious argument which was addressed to us was about the sentences in respect of which we extended the time to appeal and granted leave. It was submitted on behalf of the appellant, that the learned

High Court judge having set aside the confiscation orders in respect of the two sums of £G1,520 and

£G466, should have made a consequential order of restitution in the appellant’s favour. This was conceded by the learned senior state attorney. We think that submission was well-founded. In our judgment, that order naturally flows from the setting aside of the confiscation orders and we think the omission to make it was due to a genuine oversight on the part of the learned High Court judge. We accordingly order that the two sums of £G1,520 and £G466 now in the possession of the High Court registrar at Ho shall be restored to the appellant.

It was next contended on behalf of the appellant that no offence was committed in respect of the sum of

£G2,520 and that on a proper construction of section 144 (1) of the Criminal Procedure Code, 1960,1 the order of confiscation was illegal. It was submitted in any event that an order of confiscation in addition to the imprisonment of two

[p.403] of [1965] GLR 400 years makes the sentence harsh and excessive. We cannot accede to either contention. We think the order of confiscation can, on the proved facts of this case, be properly made under section 144 of the Criminal

Procedure Code and was properly made. In our opinion, this matter is too plain for argument. That section reads:

“144. (1) Notwithstanding anything in this Code or in any enactment, when any person is convicted of an offence the Court may make such order as in any case it thinks fit for the destruction or for the forfeiture and disposal of any article produced before it regarding which any offence appears to have been committed, or which has been used for the commission of any offence.”

As to the severity of the sentence, we notice that the learned judge of the High Court reduced it from four to two years and was obviously aware of this fact when he affirmed the confiscation order. Indeed he expressly adverted to it in his judgment. He thought that the offence was one which affected the economy of the country and should be seriously viewed. We are entirely of the same opinion and think the sentence well merited.

That leaves us only with the order of deportation. On this, counsel for the appellant submitted that as the appellant has lived here for a long time and has his family and business here, the learned circuit judge exercised his discretion wrongly in recommending his deportation and in any case, gave no reasons for the order. Counsel said that even if contrary to his submission, the learned circuit judge exercised his discretion judicially, the appellant was in all circumstances, entitled to our mercy. He referred to four

English cases, namely: R. v. Shaffner,2 R. v. Friedman,3 R. v. Grunspan4 and R. v. Gilbert.5

In the two latter cases cited by counsel for the appellant, the Court of Criminal Appeal in setting aside the orders of expulsion, did not profess to act on any recognised legal principle. In Grunspan’s6 case which was followed in Gilbert,7 the prosecution asked the court to extend some mercy to the appellant and the court merely acceded to it. In this case the prosecution made no such request to us but on the contrary seriously argued against our interfering with that order. In those circumstances we have to deal with this matter by applying legal principles irrespective of any claim that the appellant may have

[p.404] of [1965] GLR 400 on our sympathy. In so far as any principle is deducible from the rest of the cases cited to us, it appears to be that the court, before recommending a convict for deportation, ought to consider his personal circumstances and should not make a technical use of the Aliens Act, 1963.8 As we have already observed, before passing sentence, the learned circuit judge took down the appellant’s personal particulars and obviously used them as the basis for exercising his discretion. Accordingly, the only real question is whether in recommending the deportation, the learned circuit judge exercised his discretion judicially. It is to be noted that the appellant has not sought to suggest that he has made this country his home or has lived here for so long that he would be regarded as a stranger in his own homeland. Indeed he did not claim that Ghana has any particular attraction for him.

The only reason he gave for wanting to be allowed to remain here is that he may continue to do his business. That business is that of a cattle dealer and in order to carry on his business, he would, from time to time, need foreign currency. No doubt, he would also wish, as he has done in this case, to repatriate some of his profits home. In those circumstances, we cannot exclude the possibility of his repeating these offences. We do not consider the fact that he brought his Nigerian wife and children here of any real consequence. If, as he says, he has been living here since 1950 to do business, we think it only natural that his family should be with him. Nor do we consider the fact that he has also married a Ghanaian of any relevance. We cannot see any difficulty in the way of a Ghanaian wife joining her Nigerian husband in his home. We are wholly unable to say there is here a technical use of the Aliens Act, 1963. In all the circumstances of this case, we think the learned circuit judge exercised his discretion judicially in recommending the appellant’s expulsion and that the learned judge of the High Court was right in concurring in it. In these circumstances, we decline to interfere with the order of deportation.

Save the order of restitution which we have already made, this appeal fails both against conviction and sentence and is dismissed.

DECISION

Appeal dismissed.

E. A.-A