NOKWE vs. THE REPUBLIC [1999-2000] 1 GLR 49

CASES REFERRED TO

(1) Zabrama (Alpha) v The Republic [1976]1 GLR 291.

(2) R v Tottenham Justices; Ex parte Rubons [1970]1 WLR 800; sub nom R v Tottenham Justices; Ex parte Rubens; R v Middlesex Quarter Sessions; Ex parte Rubens [1970]1 All ER 879; (1969) 54 Cr App R 183, DC.

(3) R v Durham Quarter Sessions; Ex parte Virgo [1952]2 QB 1; [ 1952]1 All ER 466; [1952]1 TLR 516, DC.

(4) Ani v The Republic, Court of appeal, Accra; 26 May 1995, unreported.

(5) Bonsu alias Benjillo v The Republic, Court of Appeal, Accra; 30 April 1998, unreported.

NATURE OF PROCEEDINGS

APPEAL by the appellant to the Court of Appeal against his conviction and sentence by the High Court, Ho on his plea of “guilty with explanation” at his trial on a charge of possessing Indian hemp contrary to section 2(1) of the Narcotic Drug (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236). The facts are sufficiently stated in the judgment of Gbadebe JA.

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COUNSEL

Owusu Fodwour for the appellant.

Gyambiby State Attorney, for the Republic.

JUDGMENT OF GBADEGBE JA

Gbadegbe JA delivered the judgment of the court. On 16 November 1993, the appellant appeared before the High Court, Ho on a single count of possessing Indian hemp, contrary to section 2(1) of (PNDCL 236). When the charge was read over and explained to him, he pleaded guilty with explanation. The explanation which he offered to the charge which he faced was recorded in the proceedings of the said date, which may be found in the record of proceedings as follows:

“When I was given the luggage it was full of foodstuffs to be given a brother in Abidjan. I never knew there was anything inside. It was only when I got to Akanu border when on asking everybody to bring his goods for inspection, I brought the three ice chest and on inspection they found the leaves inside. I told them how I got the items. I beg the court.”

Following the said explanation, the learned High Court judge convicted the appellant “on his plea” and proceeded to sentence him to a term of ten years’ imprisonment with hard labour. In or about 1996, the appellant obtained leave from the High Court, Ho to appeal out of time and the instant appeal is based on the time so extended to him to appeal. The appellant filed three grounds of appeal which are as follows:

“(1) The learned trial judge should have entered a plea of not guilty on behalf of the appellant after his explanation to the court following a plea of guilty with explanation.

(2) Having pleaded guilty with explanation but added words by way of explanation and conduct which appear inconsistent with the plea of guilt, the learned trial judge should have changed the plea to that of not guilty and proceeded to take evidence.

(3) The conviction and sentence of the appellant on the facts of the case and his explanation are therefore

wrong in law and the proceedings should be set aside as null and void and of no effect.”

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Clearly, the said grounds as formulated seek to impeach the conduct of the trial judge in not entering a plea of not guilty on behalf of the appellant in view of the explanation which he offered to the charge. In my view, all the three grounds of appeal raise essentially the same point, namely whether in the face of the explanation offered by the appellant to the charge, there was a duty placed on the trial judge not to have convicted him but instead enter plea of not guilty on his behalf? Since the trial, which has resulted in this appeal, was summary in nature, it is important to note that the plea was taken under section 171(2) of the Criminal Procedure Code, 1960 (Act 30) which provides as follows:

“(2) If the plea is one of guilty the plea shall be recorded as nearly as possible in the words used, or if there is an admission of guilt by letter under section 70(1) such letter shall be placed on the record and the court shall convict the accused person and pass sentence or make an order against him, unless there shall appear to it sufficient cause to the contrary.”

It must be stated that Act 30 provides for two pleas, namely “Guilty” and “Not Guilty”. However, as a matter of practice, our courts have tended to accept a plea which is to the effect of “Guilty with explanation.” Much as this was not provided for by Act 30, one cannot deny that it has become part of our criminal jurisprudence, thus forming part of our criminal procedure and as such when such pleas are received by the courts, they should only convict when the explanation is not such as in the words of section 171(2) of Act 30 constitute “a sufficient cause to the contrary.” In my view, a plea should be quite clear and unambiguous and therefore when an accused pleads guilty to a charge but adds by way of explanation words which negative the plea of guilty by rendering the said plea equivocal then in the words of section 171(2) of Act 30, the said person has given “sufficient cause to the contrary”; in which case the trial judge is disabled from proceeding to convict by entering a plea of not guilty on his behalf: see Alpha Zabrama v The Republic [1976] 1 GLR 291; R v Tottenham Justices [1970] 1 All ER 879 at 883 per Bridge J; and R v Durham Quarter Sessions Ex parte Virgo [1952] 2 All ER 466.

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I now turn to the facts of the instant appeal by looking at the section which creates the offence, namely section 2(1) of PNDCL 236. Although the offence as created does not use the words “knowingly”, “with intent’, “intentionally” maliciously and or the like which would import the need for “mens rea” in construing the crime, the words used in the enabling section have been expressed similarly or substantially in a previous legislation, namely the Pharmacy and Drugs Act, 1961 [Act 64] hence when later the courts sought to construe the section they, applying one of the known aids to the construction of statutes, interpreted “possession” to mean the meaning which the courts had attached to it under the previous law. Thus, in the case of Ani v The Republic Court of Appeal, 26 May 1995, unreported, Acquah JA (as he then was) reading the judgment of the court said: “The rule therefore is established in relation to an offence that a man cannot be said to possess something until he knows that he possesses it and is also aware of its true character.” See also Bonsu alias Benjillo v The Republic, Court of Appeal, 30 April 1998, unreported. In particular, in the said case, I observed of “possession” as used in the section with which we are now concerned thus: “So said, in my opinion, to incur liability under the section, one must have not only physical possession but be aware of what one possesses.”

Having stated the nature of “possession” which can ground an offence under the section, I next turn to the proceedings, the subject matter of this appeal, to find out whether having regard to the explanation of the appellant to the charge, he had brought himself within the words contained in section 171(2) of Act 30, ie “unless there shall appear to it sufficient cause to the contrary.” I think so. By the explanation, the appellant had negatived the essential requirement of “knowledge” as decided by the authorities and thus rendered his plea of “guilty” equivocal. Since the plea thereafter because equivocal, it lacked certainty, which is what the law requires of a plea of “guilty” to be the basis of a conviction. In such a situation, I think that what the trial judge ought to have done was to enter a plea of not guilty on behalf of the appellant and then have the matter proceed to a full-scale trial. Perhaps at the end of the trial, the gist of the explanation to the charge as recorded on behalf of the appellant might turn out to be totally untrue; indeed the court might disbelieve and or reject the said version but the appellant would have

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been afforded the opportunity of having his version tested by cross-examination which would have then ensured that substantive justice was done to him. I think that as it is, the trial judge summarily dismissed the explanation of the appellant, which in my thinking was one which negatived the knowledge which he is required to have to be possessed of a drug within the intendment of section 2(1) of PNDCL 236. I have no doubt that if the learned trial judge had adverted his mind to the nature of the offence, he would have entered a plea of not guilty on behalf of the appellant for the matter to be thereafter proceeded with under section 171(3) of Act 30 as though the appellant had himself pleaded “not guilty” to the charge. By not entering a plea of not guilty on his behalf, I think that the proceedings subsequently thereto became a nullity, with the result that his conviction was an instance of miscarriage of justice.

In the circumstances, sic(1) think that the learned counsel for the appellant was right when he submitted that the conviction was wrong. I also wish on this point to commend the attitude of the learned senior state attorney who appeared on behalf of the Republic-respondent in conceding that the conviction having regard to the explanation was wrong, think that it is rare these days for counsel to exhibit themselves so honourably in keeping with their role as officers of the court. The result is that the appeal herein succeeds and in place of the unsafe conviction I substitute a plea of not guilty. The sentence of ten years in hard labour is accordingly set aside. I proceed therefore to discharge the appellant.

In my view having regard to the fact that the effect of allowing the appeal is that there was no trial of the appellant on the merits of the case, but for the fact that he has been in custody for almost six years from May 28 1993, I would have ordered a retrial. But taking into account the long period that he has been incarcerated for a conviction which was erroneous think that the justice of the matter requires that he be discharged and accordingly recommend to the Attorney-General’s department that the appellant herein be not proceeded with again on the same charge else he might suffer double punishment on the same charge.

DECISION

Appeal allowed.

EAA

Endnotes

1 (Popup – Footnote) sic same in original.