NYARKO vs. THE REPUBLIC [1999-2000] 2 GLR 252

CASES REFERRED TO:

(1) Biney v The Republic, Court of Appeal, Accra, 14 April 1969 digested in (1969) CC 70.

(2) Commissioner of Police v Marteifio (1943) 9 WACA 40.

(3) R v Mensah [1960] GLR 53, CA.

(4) Commissioner of Police v Sarpey and Nyamekye [1961] GLR (Pt II) 756.

(5) Seedi v Commissioner of Police (1946) 12 WACA 29.

(6) Ohine Moore v Akesseh Taye (1932) 1 WACA 242.

(7) Kojo Pon v Atta Fua [1927] AC 693, PC.

(8) Commissioner of Police v Lagos (1942) 8 WACA 56.

(9) Kini v The Republic [1980] GLR 412.

(10) Dontoh v The State [1967] GLR 280.

Appeal against decision of Circuit Court, Tepa sentencing the appellant to a term of twelve months’ imprisonment with hard labour following his plea of guilty to charge of stealing contrary to section 124(1) of the Criminal Code, 1960 (Act 29) without first, recording a conviction of the appellant. The facts are sufficiently set out in the judgment.

D Akenten for the appellant

Agbolosu, Chief State Attorney, for the Republic

Kanyoke J. The appellant was on 17 October 2000 arraigned before the Circuit Court, Tepa on a charge of stealing, contrary to

[p.254] of [1999-2000] 2 GLR 252 section 124(1) of the Criminal Code, 1960 (Act 29). When the charge was read and explained to the appellant, he pleaded guilty simpliciter to the offence. After the prosecutor had given the facts of the case, the trial circuit judge straightaway sentenced the appellant to twelve months Imprisonment with hard labour without first recording a conviction of the appellant. The appellant has now appealed against the judgment of the trial court on three grounds, namely: (1) that the judgment or verdict is unreasonable and cannot be supported having regard to the evidence on record; (2) the trial circuit court judge erred in law when he sentenced the accused to a term of twelve months imprisonment with hard labour without convicting the accused of any offence, which said sentence has occasioned substantial miscarriage of justice to the accused; and (3) the lack of conviction constitutes an error on the face of the record the benefit of which should ensure to the accused. Even though it was indicated in the notice of appeal that additional grounds may be filed on receipt of a copy of the record proceedings, no such additional grounds of appeal have since been filed.

In his submissions, learned counsel for the appellant contended first that where a statute has prescribed a mode of doing something, it will be a fundamental breach of that statute if that mode is not followed. He referred to section 171(2) of the Criminal Procedure Code, 1960 (Act 30) and said that the section provides that where an accused person pleads guilty to an offence, he must first of all be convicted of that offence before a sentence can be lawfully passed on him. According to counsel, since in this case the trial circuit court judge failed to record a conviction, he had breached a statutory provision and as such his verdict was unreasonable and could not be supported. Secondly, counsel for the appellant submitted that the failure of the trial circuit court judge to convict the appellant constituted an error of law, so his verdict could have been quashed by certiorari proceedings because his failure to record a conviction constituted an error of law on the face of the record. When I drew learned counsel for the appellant’s attention to section 31(2) of the Courts Act, 1993 (Act 459), he contended that the failure of the trail circuit court judge to convict the appellant in this case constituted a fundamental error of law and not a technical or procedural irregularity or error; and that since the appellant has been in prison custody since the date of the verdict, his incarceration has occasioned a substantial miscarriage

[p.255] of [1999-2000] 2 GLR 252 of justice and consequently that section 31(2) of Act 459 is inapplicable in the circumstances of this case. Even though the learned chief state attorney was notified of the hearing date, he did not turn up to counterargue the appeal.

The relevant facts given by the prosecution in support of the charge of stealing against the appellant were that the complainant was a farmer living at Asafo Asin, near Mamfo. The appellant is also a farmer living at the same village. On the 14 October 2000 the complainant visited his farm and detected that a thief or thieves had harvested twelve bunches of plantain from his farm. He made his own enquiries and founds four of his bunches of plantain together with six other bunches of the plantain with one Daavi, a plantain seller. Upon confrontation, Daavi mentioned the appellant as the person who sold the four bunches of plantain to her. The complainant made a report to the village unit committee and the appellant was arrested; and during interrogations the appellant admitted the offence. The appellant was handed over to the police who charged him with the offence after further investigations. Immediately after these facts were given by the prosecutor the trial circuit court judge made this record:

“By court: Accused sentenced to twelve months’ Imprisonment with hard labour. The twelve bunches of plantain are to be returned to complainant.

Sgd HA Kwofie Circuit Court Judge 17/10/2000.”

There is no doubt therefore that learned counsel for the appellant’s contention that the trial circuit court judge did not specifically convict the appellant but that he merely proceeded to sentence the appellant is true. For this reason, it is the view of learned counsel for the appellant that the sentence passed on the appellant cannot in law stand. I must say that learned counsel for the appellant’s contention is not a novel one. It has in fact supportive judicial authority. I must however point out that the judicial authorities on the point are conflicting. Let me refer to a few of these judicial authorities to show the point of conflict in them.

In the case of Biney v The Republic, Court of Appeal, Accra, 14 April 1969 digested in (1969) CC 70, the appellant whose appeal had been dismissed by the High Court, Kumasi was charged

[p.256] of [1999-2000] 2 GLR 252 before the district court on two counts of pretending to be a public officer. The appellant pleaded guilty simpliciter to the charge. The facts of the case as presented by the prosecution stated that the appellant collected various sums of money from various complainants promising to give them cement and provisions respectively. Upon these facts, the district magistrate did not record a conviction but proceeded to pass sentence as follows: “Sentence: Two years imprisonment with hard labour.” On appeal to the Court of Appeal, Azu Crabbe JSC (as he then was), reading the judgment of the court, held, inter alia, that the appellant pleaded guilty to only one of the charges and it was not clear from the record which of the charges he pleaded to. Secondly, he said the district court passed a sentence on only one of the charges and it was not clear from the record on which one the sentence was passed; and thirdly that the trial magistrate did not convict the appellant. The appeal was therefore allowed for these reasons.

In an earlier case of Commissioner of Police v Marteifio (1943) 9 WACA 40, one of the appellants appealed against the verdict of the Ag District Magistrate, Accra. He had been sentenced without a finding being made against him (ie without a conviction). The appellant had put forward the defence of alibi. In these circumstances, instead of the trial magistrate to review the case put forward by the prosecution as well as that put forward by the appellant and give reasons and make findings against the appellant convicting him, he merely proceeded to sentence the appellant. In the light of these circumstances, the West African Court of Appeal in setting aside the sentence said at 43: “The decision is an ingredient of a conviction and we would say it is the main ingredient, for without a decision . . . we do not see how there can be either a judgment or a sentence.

We hold therefore that failure to convict is not a mere irregularity but the omission of a vital part of a trial and that in its absence a sentence cannot lawfully be recorded or carried out.”

(The emphasis is mine.) Another case on the point is R v Mensah [1960] GLR 53, CA. In that case the appellant and others were tried before a commissioner of assizes and civil pleas with the aid of assessors. The charges against the appellants were two, namely house-breaking in count 3 and stealing in count 4. He was discharged on the house-breaking. There were in all about six

[p.257] of [1999-2000] 2 GLR 252 accused persons and about six counts, four of which involved the other accused persons. The assessors expressed an opinion that the appellant was not guilty of stealing but two of the assessors were of the opinion that the appellant was guilty of the alternative offence of dishonest receiving. Without making a finding as to whether the appellant was guilty of stealing or receiving, the commissioner sentenced him simply to twelve months imprisonment with hard labour. Sarkodee-Addo J (as he then was), reading the judgment of the Court of Appeal (van Lare and Granville-Sharp JJA concurring), held that the sentence must be set aside as the appellant had not been shown to have been convicted of any crime. In the course of the judgment he said at 55, allowing the appeal:

“In our view, faced with the conflicting opinions of the assessors, it was not only highly desirable, but also legally incumbent upon the learned Commissioner, to record a conviction in respect of a stated offence before passing sentence on this appellant. This he did not do.”

Commissioner of Police v Marteifo (supra) was also followed by the erstwhile Supreme Court in Commissioner of Police v Sarpey and Nyamekye [1961] GLR (Pt II) 756 at 759. However in another case, Seedi v Commissioner of Police (1946) 12 WACA 29, a magistrate passed sentence on the appellant without convicting him or entering on the record a finding of guilt against him. On first appeal to the first appellate court, the appellate judge held:

“It is true that the Magistrate omitted to write the words ‘Found Guilty’ or ‘Guilty’, but I hold that the fact of sentencing the appellant clearly shows that the Magistrate found the appellant guilty of the only charge upon which he was tried. If there had been two or more charges, it could have been contended that the sentence was ambiguous . . .

The omission to write the words “found guilty” or “Guilty” can be nothing else that a mere clerical error apparent on the face of the record. I therefore order that the words ‘Found Guilty’ be entered on the record.”

The appeal was therefore dismissed. In dismissing a further appeal from this judgment to the West African Court of Appeal, Baker Ag CJ, delivering the judgment of the court, referred to the

[p.258] of [1999-2000] 2 GLR 252 cases of Ohene Moore v Akesseh Taye (1932) 1 WACA 242 and Kojo Pon v Atta Fua [1927] AC 693, PC and cited with approval the decision of Commissioner of Police v Lagos (1942) 8 WACA 56 where the West African Court of Appeal had held that errors of the nature under consideration are oversights rectifiable by the appellate court, and said at 30:

“It is well established that this Court is bound by the record of the case and in this appeal we have a record of a trail Magistrate, which does not impose a finding but imposes a sentence.

There was only one charge and the Magistrate passed a sentence quite consistent with a finding of guilt under the said charge, yet we are now asked in the absence of a finding to quash the conviction. It may well be that in certain cases there may be a defect or an omission to which an objection might be raised which goes to jurisdiction which would be fatal to the conviction . . .

In our present case, however, the omission is one of procedure and might be described as a mere technicality and which in our opinion cannot be considered as fatal and is within the power and duty of the Court to remedy so that substantial justice may be done . . .”

This court, in a case where there had been an omission by the trial judge, Commissioner of Police v Lagos (supra) at 58 gave the following decision:

“The only error in this case in the Supreme Court is that the learned Judge omitted, obviously by an oversight, formally to order that the finding and sentence be reversed, before ordering the re-trial. We accordingly substitute for the order made by the learned Judge in the Supreme Court, the following order: ‘It is ordered that the finding and sentence be reversed and the appellant be re-tried on the new charge by another Magistrate.’”

I think the review of some these judicial authorities on the point shows how confusing the situation has been; for whilst some of the judicial authorities are saying that a failure to record a conviction before sentence is fatal, other judicial authorities say that it is a mere technical or procedural error or an oversight and

[p.259] of [1999-2000] 2 GLR 252 that to allow an appeal on technical error is to deny justice. The Biney and the Marteifio cases (supra) support the view that failure to record a conviction before sentence is fatal, whilst the Seedi and Lagos cases (supra) think such a failure is a mere technical error. Incidentally, Azu Crabbe JSC (as he then was) who was a member of the panel in the Biney case (supra) was also a member of the panel in the Seedi case (supra). It is curious therefore that both cases are diametrically opposed to each other on the point.

Apart from these conflicting decisions of the Court of Appeal, there are other judicial authorities from the High Court on the same point. Thus, in the case of Kini v The Republic [1980] GLR 412, the trial magistrate after a trial did not record a conviction of the accused but merely, inter alia, sentenced him to twelve months imprisonment with hard labour. On appeal to the High Court, Tamale, Taylor J (as he then was), after an exhaustive review of all the relevant judicial authorities including those I have cited herein, held (holding (3)) that:

“(3) The omission to record a conviction in a case where a person pleaded guilty was a technicality. The law on the matter was placed on a statutory footing when the proviso to section 330(1) of Act 30 was amended by section 7 of Act 261, which empowered the High Court to dismiss an appeal if it considered, inter alia, that no substantial miscarriage of justice had actually occurred or that the point raised in appeal consisted of a technicality or procedural error or defect in the charge but there was evidence to support the charge or any other offence of which the accused could have been convicted upon the charge. A miscarriage of justice occurred where an accused was deprived of the protection given by essential steps in criminal procedure . . .”

It is instructive to point out that when the Seedi, Mensah, Sarpey and Martefio cases were decided, the provision in section 330(1) of Act 30 as amended by section 7 of the Criminal Procedure Code (Amendment) Act, 1965 (Act 261), was not operative; but it was operate on the date the Biney case (supra) was decided, yet the Biney case was singularly silent on the applicability of that proviso.

There is also another High Court case on the point and that is the case of Dontoh v The State [1967] GLR 280. In that case the appellant aged 25 and a first offender pleaded guilty to two counts

[p.260] of [1999-2000] 2 GLR 252 of unlawful entry and stealing ¢15,754. Before the trial, a substantial amount of the money was recovered. The appellant pleaded guilty but the trial court failed to record his conviction as required by section 171(2) of Act 30. He was sentenced to seven years imprisonment with hard labour. He appealed against his sentence on the ground that the failure of the trial court to record the conviction was fatal to the sentence or verdict. In considering the ground of appeal, the High Court presided over by Archer J (as he then was) conceded that there were conflicting judicial authorities on the point. The learned judge reviewed and considered the Seedi and Marteifo cases (supra) and held at 282 as follows: “For my purposes, I am prepared to follow the decision in Seedi v Commissioner of Police (supra) because in the present appeal, the appellant confessed his guilt and there was no question of the trial judge taking evidence from both the prosecution and the appellant in order to consider his verdict. . . I do not therefore think the appellant has suffered any miscarriage of justice after confessing his guilt.”

The learned judge concluded that since the appellant had pleaded guilty, the omission to record the conviction was undoubtedly an oversight and it would be straining the law of procedure too much to consider it so fatal that it amounted to a miscarriage of justice. He therefore dismissed the appeal. It will be seen therefore that Taylor and Archer JJ (as they then were) refused to follow the Court of Appeal decisions in the Marteifio, Biney, Mensah and Sarpey cases (supra), but followed the Lagos and Seedi cases (supra).

In the Kini case (supra) especially Taylor J (as he then was), was positive and categorical that section 330(1) of Act 30 as amended by section 7 of Act 261, had settled the controversy and laid it to rest by providing that such an omission to record a conviction was a mere technicality or procedural error and that an appeal on that ground only should be dismissed unless the verdict has occasioned a substantial miscarriage of justice. In fact in the Kini case (supra), Taylor J (as he then was) considered all the then known judicial authorities on the point. It is worthy to point out here that section 330(1) of Act 30 as amended by section 7 of Act 261, has since been revoked and replaced by section 31(2) of Act 459. In fact

[p.261] of [1999-2000] 2 GLR 252 section 31(2) of Act 459 is a verbatim reproduction of the proviso in section 330(2) of Act 30 as amended by section 7 of Act 261.

For my part I am prepared to follow the Seedi, Kini and Dontoh cases (supra). In effect, I am also of the view that failure to record a conviction or convict an accused who pleaded guilty to an offence before passing sentence is a mere technical or procedural irregularity and not a fundamental error of law. The record of proceedings in the present appeal before me shows beyond doubt that the appellant confessed to his guilt by pleading guilty to the offence of stealing preferred against him and there was no question of the trial circuit court judge taking evidence from both the prosecution and the appellant in order to consider his verdict. The omission by the trial circuit court judge to record the conviction was therefore an oversight; that failure was therefore not fatal to the verdict of the court. It has not been shown in which way that verdict had occasioned a miscarriage of justice. I will therefore dismiss the appeal.

However, I think the sentence of twelve months imprisonment with hard labour was too severe and harsh in the circumstances of the case. The appellant had not been shown to have had a brush with the law before. All the twelve bunches of the plantain had been recovered. The appellant appears to be a young man in his early twenties. I will in all these circumstances therefore quash or set aside the sentence of twelve months imprisonment with hard labour; and it is accordingly set aside. In its place I will sentence the appellant to at fine of ¢500,000 or six months Imprisonment with hard labour. In addition, the appellant is to sign a bond in the sum of ¢1 million with one surety to be justified to be of good behaviour for twelve months and in default and /or breach to serve six months Imprisonment with hard labour. This sentence is to take effect from 17 October 2000. I also order that the words “accused is convicted on his own plea” should be entered on the record of the trial circuit court judge between the words “By Court:” and “accused”

Subject to these orders and the replacement of the sentence, the appeal is dismissed. Court below to carry out.

Appeal allowed in part.

SA