REPUBLIC v. AMADU FULANI [1971] 1 GLR 44

DIVISION: IN THE COURT OF APPEAL

DATE: 19 OCTOBER 1970

BEFORE: SOWAH, ANIN AND ARCHER JJ.A.

NATURE OF PROCEEDINGS

APPEAL from the judgment of the High Court, Accra, reducing the sentence imposed on the respondent by the trial circuit court.

COUNSEL

Kisseih, Senior State Attorney, for the appellant.

D. K. Afreh for the respondent.

JUDGMENT OF SOWAH J.A.

Sowah J.A. delivered the judgment of the court. Amadu Fulani was on the 20 January 1967 after a summary trial by the Circuit Court, Accra, convicted of the offences of conspiracy, unlawful entry and stealing property valued at ¢3,462.00 and was sentenced to seven years’ imprisonment with hard labour after the prosecution had given his antecedents of previous convictions and sentences. He appealed to the High Court, Accra, on both conviction and sentence but the appeal on conviction was dismissed whereupon the learned judge of the High Court called upon the senior state attorney to support the sentence of seven years’ imprisonment since the trial of the appellant was summary. The arguments advanced by counsel for the State did not particularly impress the learned judge and, with respect, we do not consider them impressive. In a long and reasoned judgment, the learned judge held that the circuit judge was wrong in imposing a sentence of seven years after a summary trial; further, that a circuit court trying a case summarily and for that matter, a High Court had no jurisdiction to impose a sentence higher than a court of summary jurisdiction and accordingly reduced the sentence to two years’ imprisonment. The State has appealed on the grounds which may be compendiously stated, namely, that the learned judge erred in his interpretation of the jurisdiction of the circuit court and the High Court in relation to their powers of sentence after a summary trial. We had the benefit of the reasoned judgment of the judge and of arguments of Mr. Afreh who was invited to assist the court in support of the judgment and of Mr. Kisseih, senior state attorney, for the appellant.

[p.46] of [1971] 1 GLR 44

It is not out of disrespect that we do not repeat counsel’s argument in full. Mr. Afreh, in the main, sought to support the reasoning of the learned judge that our machinery of criminal justice envisages some correlation between the mode of trial and the sentencing powers of the courts and that under our system, indictable offences carry with them heavier sentences than summary ones. From this premise, learned counsel drew the court’s attention to the old Criminal Code, Cap. 9 (1951 Rev.), and the Criminal Procedure Code, Cap. 10 (1951 Rev.), and undertook a comparative analysis of their provisions with the present Criminal Code, 1960 (Act 29), and Criminal Procedure Code, 1960 (Act 30). Mr. Afreh first referred to the titles of the new Codes which read: “AN ACT to consolidate and amend the law relating to criminal offences” and “An Act to consolidate and amend enactments providing for the procedure to be followed in criminal cases” and submitted that it is a principle of interpretation that where words and provisions from a repealed enactment are repeated in a new enactment is in pari materia, then the legislature would be deemed to intend to retain the meaning and effect of those words or provisions as had hithertofore been placed upon them. This comparative analysis is also contained in the judgement and we think it would be repetitious to state the argument herein in full.

My Kisseih submitted, and in our view, correctly, that the court ought first to focus its attention on the provisions of the Criminal Code, 1960 (Act 29), and Criminal Procedure Code, 1960 (Act 30), and not on any nostalgia of former times and past practices. Nevertheless, he adverted to the fact that even under the old law, the High Court had greater powers of sentence when exercising its summary jurisdiction in criminal case.

Under the old law the criminal jurisdiction of the magistrate’s court was contained in section 49 of the Courts Ordinance, Cap. 4 (1951 Rev.). It provided that the magistrate shall hear and determine (a) all offences punishable under any ordinance by a fine not exceeding £G100 or imprisonment for twelve months or both; (b) all other offences specifically designated to be triable by a magistrate’s court under the Criminal Code; the power of sentence was still limited to £G100 fine or imprisonment for twelve months. In the course of time there were amendments to this provision.

In section 159 of Cap. 10, the High Court was given jurisdiction to hear and determine summarily those offences which under the code could so be tried; the significant feature of the section was that the judge had greater jurisdiction on sentence than was accorded to the magistrate’s court. The High Court could impose an unlimited fine except where the fine was one limited by the provision creating the offence or impose a sentence of two years’ imprisonment.

Mr. Kisseih submitted that the new Procedure Code adopts the features of the old Code save that the new Code simplifies the procedure. The arrangement of the sections makes for easier accessibility to its various provisions. Under the old system, there were indictable offences, summary offences and those offences which had been referred to as hybrid in their [p.47] of [1971] 1 GLR 44 mode of trial, namely, that they could be tried either on indictment or summarily having regard to the proviso contained in section 49 (b) of the Criminal Code, Cap. 9. Section 49 (b) has been reproduced in simpler and perhaps more succinctly in section 2 (3) of the Criminal Procedure Code of 1960. It reads, “Every other offence shall be triable on indictment or summarily.” Section 179 (1) empowers a court trying an offence summarily if that offence is also triable on indictment to stop the trial if it considers the case unsuitable for a summary trial and to inform the Attorney-General of its opinion; thereupon certain consequences flow.

One of the important considerations in this matter would be whether or not an accused person being tried summarily would have a fair trial; this will depend upon the nature of the offence, the number of witnesses, the legal issues which may arise and the time which such trial would take. Summary trial means what it says. Responsibility is therefore placed on the law enforcing agencies and the court to have regard to the nature of the offence, the mode of proof, and any other factors connected with the trial of a criminal matter in deciding whether to proceed summarily or not, vide section 179 of Act 30. We are of the view that an offender who is being tried summarily can also make representation, if he so desires, to assist the court in deciding whether the offence for which he had been arraigned should be tried summarily or on indictment.

The learned appellate judge, however, posed this question: “Is the citizen to be liable to such vicious penalties after a trial which is only summary?” In his attempt to answer his own question, he placed limitation on the jurisdiction of the High Court and circuit court in their powers of punishment after summary trial.

Experience had shown over the years that though several offences for legal convenience had been classified as felonies or misdemeanors, yet under these nomenclatures range offences from the serious to the most trivial. It is to meet modern conditions that the criminal system has shifted from the ancient rule which enjoins that no matter the gravity of offence, its trial should be by jury. The process of simplification is still continuing. An offence may be very serious though its proof may be one of the simplest. To give an illustration: under the felony of stealing, a man may steal a car valued at N¢20,000.00 in the simple way of entering the car and driving it off. He is arrested while taking the car away and charged with stealing of the car. It may require perhaps three witnesses to establish his guilt. If the case comes before a district magistrate, he may well find that his jurisdiction in relation to sentence is limited and that he cannot therefore adequately deal with the offender and may have recourse to section 178 of the Code in order that the correct punishment be meted out to the offender. Such offences can be multiplied in their thousands.

On the other side of the scale are offences which, considered from monetary terms, are not serious; yet the proof of which may be of the most complicated character and may require all the paraphernalia of the criminal machinery. No doubt this type of offences would not be suitable for trial summarily. It seems to us that it is the former type of offence that

[p.48] of [1971] 1 GLR 44 the provision of section 2 (3) of the Criminal Procedure Code, 1960, is aimed at. The overriding consideration being whatever the mode of trial, the offender must have a fair trial and it is the mode which will determine the fairness or otherwise of the trial.

The next issue is whether punishment by the High Court or the circuit court is limited in the same respect as a district court in its trial of summary offences? The answer is contained in paragraphs 27 (a), 35 (1)

(b) and 51 (1) of the Courts Decree, 1966 (N.L.C.D. 84).

An analysis of these sections brings out the intention of the legislature. Paragraph 27 (a) of N.L.C.D. 84 confers an original jurisdiction in all matters on the High Court. The implication is that it has the jurisdiction to hear all cases although the mode of trial is determinable by the nature of the offence or the enactment providing for the offence. Paragraph 35 (1) (b) confers original jurisdiction in all criminal matters other than an offence where the maximum punishment is death or life imprisonment on the circuit court. The criminal jurisdiction of the district court is contained in paragraph 51 (1) (a) and it reads: “A District Court (Grade I or Grade 11) shall have jurisdiction to try summarily –

(a) an offence punishable by fine not exceeding ¢240 or by imprisonment for a term not exceeding 12 months or both;

(b) an indictable offence other than an offence punishable by death, or an offence declared by any enactment or Decree to be a first degree felony if the Court, 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 is of the opinion that the case is suitable to be tried summarily.” It is clear from the above that the jurisdiction of the courts in all criminal matters had been set down. It is difficult to see how the jurisdiction of the district court should determine the limits of imposition of sentence by the High Court or the circuit court.

Sections 294 to 296 of Act 30 set out the various limits of punishment. There is no provision anywhere within our Code that the mode of trial shall govern the infliction of punishment. On ordinary principles of punishment, it is expected that the punishment shall fit the crime and further that trivial offences shall be heard in courts of summary jurisdiction and carry minimum sentences. It seems to us that the aim of the new machinery of justice is to give the courts a broad outline of punishment and to leave the superior courts and the circuit courts room to develop principles in this regard.

It is into this field that the courts would have to look for the development of principles. Ordinarily, a case tried summarily should not carry with it a heavy penalty not because it is tried in the district court but because the offence is not of a serious nature. Thus all things being equal, similar offences, whether tried in the district court or in the circuit court summarily should carry with them similar punishment in terms of sentence or fine.

[p.49] of [1971] 1 GLR 44

In the absence of any enactment fixing a mandatory penalty for an offence, the criterion for determining the reasonableness or otherwise of a sentence imposed by a trial court is not the mode of trial but, inter alia, such factors as the prevalence of the offence, the nature of the evidence, the presence of any extenuating or aggravating circumstances, and the character and antecedents of the offender. The interpretation being placed on the summary criminal jurisdiction of the circuit court and the High Court is not borne out by an examination of the Code and would unduly interfere with the jurisdiction of these courts and is unwarranted and, in our view, would defeat its entire intention in providing for adequate sentences in offences which do not deserve the whole gamut of trial by indictment yet call for severe punishment either because of the nature of property involved, the prevalence of the offence or the antecedent of the offender.

Accordingly, the appeal is allowed and the judgment of the High Court is set aside.

DECISION

Appeal allowed.

N. A. Y.