ASAMOAH vs. THE REPUBLIC [1973] 1 GLR 186

CASES REFERRED TO

(1) Osei v. The Republic (No. 2) [1971] 1 G.L.R. 449.

(2) State v. Adabo [1961] G.L.R. 321, S.C.

[p.188] of [1973] 1 GLR 186

NATURE OF PROCEEDINGS

APPEAL against conviction and sentence for selling above the controlled price, on the grounds that the conviction was bad in law and that the sentence was excessive. The facts are sufficiently stated in the judgment.

COUNSEL

Adjei-Mensah for the appellant.

Kaleo-Bioh, Senior State Attorney, for the Republic.

JUDGMENT OF OSEI-HWERE J.

The appellant appeals against her conviction and sentence by the District Magistrate Grade II, Techiman. On Monday 28 February 1972 the appellant was arraigned before the District Court Grade II, Techiman, on a charge of selling above the controlled price as fixed by the Price Control (Maximum Prices) Order, 1969 (E.I. 135 of 1969), contrary to sections 1 and 2 of Control of Prices Act, 1962 (Act 113). The particulars of the charge are that the appellant sold one single cake of New Sunlight soap for 15p. instead of the maximum controlled price of 10p. scheduled for Techiman area and thus making an illegal profit of 5p. The appellant pleaded guilty to the charge and she was convicted and sentenced to a fine of ¢80.00 or three months’ imprisonment with hard labour. Against this conviction and sentence the appellant appeals on the ground that the conviction is bad in law as she was charged on a repealed law and also that the sentence is excessive.

The main argument of the learned counsel for the appellant is that the Control of Prices Act, 1962 (Act 113), under which the appellant was charged has specifically been repealed by section 17 (1) of the Price Control Decree, 1972 (N.R.C.D. 17), which was made on 4 February 1972. At the time of the alleged offence the enabling Decree, therefore, was N.R.C.D. 17. Item 76 of the Schedule to the Price Control (Maximum Prices) Order, 1972 (E.I. 17 of 1972), which was made by virtue of the powers conferred on the Commissioner responsible for Trade by section 1 of N.R.C.D. 17, specifies that a single cake of New Sunlight soap shall sell in the Techiman area at 14p. and not at 10p. as charged. Counsel argued that as the charge was defective the offence-creating Act having been repealed, it could not form the basis of any conviction and the conviction and sentence should be set aside. Alternatively the sentence should be set aside as being excessive for, if it had been brought to the notice of the trial magistrate that the appellant only made an illegal profit of one pesewa, he might have been disposed to impose a more lenient sentence, not ruling out a caution and a discharge.

The learned senior state attorney conceded that at the time of the alleged offence Act 113 had been repealed by N.R.C.D. 17. However, he argued for the dismissal of the appeal as at the time of the appellant’s arrest the offence of selling above the controlled price was, in spite of the wrong enactment quoted, known to the law and her conviction had occasioned no substantial miscarriage of justice. He further invited the court to consider where the defect lay and to hold that in all those cases where the statement of offence, as opposed to the particulars of the offence, is defective it has never been held that the mere defect will

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occasion a substantial miscarriage of justice. Counsel referred the court particularly to the provision in the Criminal Procedure Code, 1960 (Act 30), s. 330 (1) and also to section 406 (1) (a) of the same Act.

There is nothing esoteric and sacrosanct about the formulation of charges and indictments. The statutory provisions relating to the framing of charges and indictments are to be found in section 112 of the Criminal Procedure Code, 1960 (Act 30), as amended by the Criminal Procedure (Amendment) Act, 1965 (Act 261), s. 1. All that is required by subsection (1) is that there should be a statement of offence together with such particulars as may be necessary for giving reasonable information as to the nature of the charge. By subsection (2) the statement of offence shall describe the offence shortly in ordinary language and a reference to the enactment creating the offence is not compulsory but only permissive. It is therefore clear that the absence of the relevant enactment in the statement of offence will not make the charge defective.

Counsel for the appellant has referred to the High Court decision of Osei v. The Republic (No. 2) [1971] 1 G.L.R. 449 where Hayfron-Benjamin J. laid it down that a suspect has the right to be informed in detail of the charge that is brought against him and that failure to set the charges out in detail is fatal and cannot be cured by the evidence. It is quite obvious that Hayfron-Benjamin J. in arriving at this decision, had to grapple with article 20 (2) (c) of the 1969 Constitution and by reason of these provisions he literally ran a pencil through subsections (1) and (2) of section 112 of Act 30. The 1969 Constitution is no more with us and the decision in Osei v. The Republic (supra) now belongs to the past ages. What is required now is not that the charges must give detailed information but that they must give reasonable information in the light of section 112 of Act 30.

But what happens where the enactment referred to in the statement of offence is non-existent? I am of the opinion that what has to be considered is whether the offence disclosed in the statement of offence was, as at the time of the alleged offence, known to the law. In the instant case there was still the offence of selling above the controlled price, albeit created by N.R.C.D. 17 which had repealed Act 113. It was therefore, a mere technical error in the charge that instead of quoting N.R.C.D. 17 the repealed Act 113 was quoted. Indeed Act 113 had been repealed only a matter of some 23 days before the appellant committed the alleged offence. A case in point, but not quite on all fours, is that of State v. Adabo [1961] G.L.R. 321, S.C. There the appellant was convicted of murder on an information which charged him with murder contrary to section 238 of the Criminal Code, Cap. 9 (1951 Rev.). The Criminal Code, 1960 (Act 29), which repealed Cap. 9 had come into force when the appellant was charged and it was therefore, contended that the trial and conviction of the appellant was null and void. It was held that section 406 (1) (a) of Act 30 provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or reviewed on account of such

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possible technical errors as this. The offence of murder, the court so held was an offence both under section 238 of Cap. 9 and under section 46 of Act 29. The appellant was therefore properly tried. The court additionally used its powers in dismissing the appeal as no substantial miscarriage of justice had occurred.

I mentioned earlier on that Adabo’s case was not on all fours with the present case because there the murder was committed when Cap. 9 was still in force but the appellant was rather charged when Cap. 9 had been repealed by Act 29. This aspect of the matter was, however, not considered by the court and it seems to me, therefore, as irrelevant that in the appellant’s case she sold above the controlled price when Act 113 had been wholly wiped off the statute book. Indeed, there can be no complaint about the particulars of the charge which inform the appellant that she sold the cake of New Sunlight soap for 15p. instead of 10p. It is not true to say, as the appellant’s counsel contended that at the time of the commission of the alleged offence the controlled price of that commodity was 14p. This is because the Price Control (Maximum Prices) Order, 1972 (E.I. 17), which was made by virtue of the powers derived under N.R.C.D. 17 came into effect on 7 April 1972, a date subsequent to the commission of the offence. By E.I. 17 a single cake of New Sunlight soap was to sell at 14p. in the Techiman area. The position, therefore, was that at the time of the appellant’s arrest the executive instrument in force controlling maximum prices was E.I. 135 of 1969 which gave the price of a cake of New Sunlight soap at 10p. The obvious intention of section 17 (2) of N.R.C.D. 17 is to fill the legislative lacuna that the repeal of Act 113 may open up. Before E.I. 17 of 1972 was made E.I. 135 of 1969 was, therefore, to be enforced. It follows then that reference to E.I. 135 of 1969 in the statement of the offence and the statement in the particulars of the offence that the soap was sold for 15p. instead of 10p. cannot be faulted.

By the proviso in section 330 (1) of Act 30 as amended by the Criminal Procedure Code (Amendment) Act, 1965 (Act 261), s. 7 the High Court shall:

“. . . notwithstanding anything to the contrary in the foregoing provisions, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or that the point raised in the appeal consists of a technicality or procedural error or of a defect in the charge but that there is evidence to support the offence alleged in the statement of offence in the charge or any other offence of which the accused could have been convicted upon that charge.”

I am satisfied by reason of the above provisions and by reason of the decision in Adabo’s case (supra) that the appellant’s conviction had occasioned no substantial miscarriage of justice and the appeal must accordingly be dismissed.

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In regard to sentence I cannot shut my eyes to the mischief that E.I. 17 of 1972 set out to cure. I am bound to take judicial notice that at the time N.R.C.D. 17 was made the value of the cedi had fallen and the prices of commodities had soared. E.I. 17 was intended to make the consequent adjustment in the prices of commodities. If E.I. 17 of 1972 had come into effect soon after N.R.C.D. 17 the appellant might have been caught by those provisions and the illegal profit she made would have been only one pesewa. Even though the appellant, technically, ought to have sold the soap at 10p. it would have been absurd to hold her to that price in the light of the economic conditions of the day. It is for these reasons that I feel that the fine of ¢80.00 was rather excessive and that the appellant was entitled to some leniency. I accordingly allow the appeal against sentence and, in lieu of the fine of ¢80.00 or three months’ imprisonment with hard labour, I substitute a fine of ¢10.00 or one month’s imprisonment with hard labour. The excess fine of ¢70.00 if paid should be refunded forthwith to the appellant. To this extent of varying the sentence I dismiss the appeal.

DECISION

Appeal dismissed.

Sentence varied.

S. E. K.