TURKSON v. THE REPUBLIC [1971] 1 GLR 35

DIVISION: IN THE HIGH COURT, KOFORIDUA

DATE: 31 JULY 1970

BEFORE: QUASHIE-SAM J.

NATURE OF PROCEEDINGS

APPEAL by one co-defendant in a case in which a retrial had been ordered in respect of the other co-defendant. The facts are fully stated in the judgment.

COUNSEL

Miss A. A. Ayisi for the appellant.

Isaac Odoi, State Attorney, for the respondent.

JUDGMENT OF QUASHIE-SAM J.

The appellant together with one Ebenezer Saka was jointly charged before the District Court at Mpraeso with conspiracy to steal and stealing a quantity of engine oil. Each pleaded guilty with explanation to both charges and gave identical explanations which the trial court refused to accept. The trial court convicted each of them on their pleas on 30 October 1969. The first accused who is the appellant herein was sentenced to six months’ imprisonment with hard labour and the second accused to five months’ imprisonment with hard labour, sentences in each case being made concurrent. The second accused Saka appealed to the High Court, Accra, against his conviction on 18 December 1969. Counsel for the respondent conceded the submission by counsel for Saka that a plea of not guilty should have been entered upon the explanation given at the court below for trial to proceed on merit. Counsel for the respondent further conceded that there should be a retrial, whereupon the court made an order allowing the appeal in the following terms:

“The appeal is allowed. The magistrate should have entered a plea of not guilty. The conviction and sentence of the second accused are set aside. There should be a trial de novo. There should be a trial before another magistrate.”

It should be appreciated that this order did not affect the present appellant who was the first accused at the trial. Apparently this was so because unlike the second accused he did not appeal. Consequently he served the six months’ term while his companion served just three months’ when his appeal was allowed. It must also be appreciated that the High Court in granting the appeal did not state any reason why it thought a plea of not guilty should have been entered.

After serving his sentence of six months, and upon hearing of the result of his companion’s appeal, the appellant herein applied for an extension of time within which to appeal and has appealed on two grounds that:

“(1) The conviction was wrong having regard to the evidence adduced before the court.

(2) The charge of conspiracy is wrong in law, because the accused cannot conspire alone.” At the hearing, counsel for the appellant offered no argument on the first ground of appeal, perhaps, for the apparent reason that there was no evidence taken at the trial, but counsel urged that since the trial was of two persons charged with the same offences before the same court, and [p.37] of [1971] 1 GLR 35 the case of the present appellant was on all fours with that of his colleague in the earlier appeal, the High Court as the appellate court, should have exercised its powers to bring the justice of the case to the two of them at the same time when the second accused’s conviction and sentence were quashed and a retrial was ordered, even though the first accused had not appealed.

I am of the opinion that when the appellate court found that a plea of not guilty should have been entered, it decided something fundamental at the joint trial and in the peculiar circumstances of that case, that finding was a finding in favour of the two convicted persons. The corrollary is that if there was to be a trial de novo as ordered, it meant a retrial in the whole case in which both convicted persons would be involved. It follows also that if the conviction and sentence of one of the accused persons were set aside, a consequential order was necessary to release the other accused if the retrial order was to be pursued. There was no such consequential order and therefore the present appellant served his full term of imprisonment.

The question then is can he and must the appellant be retried with his colleague in pursuance of the order for trial de novo when the appellant has already fully served sentence? On the other hand can the second accused be tried alone de novo when that is not the natural interpretation of the order for retrial especially where the earlier joint trial involved a charge of conspiracy?

Upon consideration of the whole circumstances, I think this is a case in which upon the hearing of the appeal of the second accused the court could have exercised its powers under paragraph 28 of the Courts Decree, 1966 (N.L.C.D. 84), in bringing the first accused in pari passu with the second accused by equally setting aside his conviction and sentence, if he was to be retried, for “justice must not only be done but must be manifestly and undoubtedly be seen to be done.” I would be persuaded to make a similar order, setting aside the conviction and sentence of the appellant and ordering a retrial but I am inclined to think that the prejudices have far advanced to the detriment of the appellant. Counsel for the respondent has indicated his full appreciation of the circumstances and in much sympathy with the situation has undertaken to approach the retrial order in a manner to avoid further miscarriage of justice. For these reasons I allow the appeal. The conviction and sentence are set aside and the appellant is acquitted and discharged.

DECISION

Appeal allowed.

B.T.A.