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Criminal law -
Robbery -
section 149 of Act 29 of 1960.-
section 6 of Act 112 of 1962-
Whether learned
trial High Court judge did not
convict the appellant before
sentencing him and therefore the
sentence imposed thereafter was
wrongful in law.
HEADNOTES
The
appellant and others whose
appeal is now before us had
boarded different vehicles from
Accra bound for Mankessim in the
Central Region and all of them
alighted at Enyisam Abbor, a
town near Mankessim. On the
following day, the appellant and
others armed with pump action
gun, cutlasses, knives, etc
mounted a road block on the main
Accra – Mankessim road,
succeeded in stopping all
vehicles from both sides and
subjected the passengers to
severe beatings and robbed them
of their monies. The timely
intervention of the police and
the people of Eyisam Abor led to
the arrest of the appellant and
other accomplices. All of them
were later identified by the
victims of the robbery who
testified when they were
arraigned before the High Court,
Cape Coast for trial on the
charges referred to above. The
learned High Court judge
sentenced the accused person
herein to thirty years
imprisonment in hard labour
after the trial. He lodged an
appeal at the Court of Appeal,
Cape Coast, against his sentence
and had the sentence reduced to
twenty-five years
HELD :-
In our view the trial
court after evaluating the
evidence proceeded to say that
it had found the accused person
guilty of the offences charged
without using the magic word
CONVICT, It should be reasonably
construed and presumed that the
court had on finding the accused
guilty, convicted him of the
offence(s) charged. The mere
failure to use the word CONVICT
does not occasion any
miscarriage of justice in any
way whatsoever.We accordingly
dismiss this appeal which was
based on arid technicality of no
significance.
STATUTES REFERRED TO IN JUDGMENT
Act 29 section 23(1) and
149
Act 112 of 1962 section 6
Criminal and other
Offences (Procedure Act) Act 30,
1960
Criminal Procedure Code
(Amendment) Act, 1965 (Act 261).
CASES REFERRED TO IN JUDGMENT
COMMISSIONER OF POLICE V
MARTEFIO & ORS (9 WACA 40).
REGINA V MENSAH & ORS
[1960] GLR 53 CA
SEEDI v COMMISSIONER OF
POLICE [1946] 12 WACA 29,
BINEY V THE REPUBLIC
[1969] CC 70 CA
STATE V WUNAMA [1965] CC
60
KINI V THE REPUBLIC [1980]
GLR 412,
NYARKO V THE REPUBLIC
[1999-2000] 2 GLR 252.
DONTOH V THE STATE [1967]
GLR 280
C.O.P v SARPEY & NYAMEKYE
[1961] GLR (PART II) 756 SC
BOOKS REFERRED TO IN JUDGMENT
BLACK’S LAW DICTIONARY 9th
edition
DELIVERING THE LEADING JUDGMENT
YEBOAH, JSC:-
COUNSEL.
AUGUSTINE OBOUR FOR THE
APPELLANT.
FRANCES MULLEN ANSAH, PRINCIPAL
STATE ATTORNEY WITH HIM VICTORIA
ASIEDUA, SENIOR STATE ATTORNEY
FOR THE RESPONDENT.
YEBOAH, JSC:-
My Lords, this appeal raises an issue
for our consideration in respect
of failure on the part of a
trial court to record a
conviction before sentence.
To appreciate the reasons for our
decision, a brief summary of the
facts will suffice. The
appellant herein and six others
were charged with the offences
of conspiracy to commit robbery
contrary section 23(1) and 149
of Act 29, and Robbery contrary
to section 149 of Act 29 of
1960. It appears that he was
solely also charged with
possession of firearms without
lawful authority contrary to
section 6 of Act 112 of 1962.
The appellant and others whose
appeal is now before us on
3/11/2002 had boarded different
vehicles from Accra bound for
Mankessim in the Central Region
and all of them alighted at
Enyisam Abbor, a town near
Mankessim. On the following
day, which was the 4th
/11/2002, the appellant and
others armed with pump action
gun, cutlasses, knives, etc
mounted a road block on the main
Accra – Mankessim road,
succeeded in stopping all
vehicles from both sides and
subjected the passengers to
severe beatings and robbed them
of their monies.
The timely intervention of the police
and the people of Eyisam Abor
led to the arrest of the
appellant and other
accomplices. All of them were
later identified by the victims
of the robbery who testified
when they were arraigned before
the High Court, Cape Coast for
trial on the charges referred to
above.
The learned High Court judge sentenced
the accused person herein to
thirty years imprisonment in
hard labour after the trial. He
lodged an appeal at the Court of
Appeal, Cape Coast, against his
sentence and had the sentence
reduced to twenty-five years.
The appellant has lodged this
appeal before us and counsel for
the appellant has raised as one
of his grounds of appeal that
the learned trial High Court
judge did not convict the
appellant before sentencing him
and therefore the sentence
imposed thereafter was wrongful
in law. Counsel placed reliance
on section 177(1) of the
Criminal and other Offences
(Procedure Act) Act 30, 1960
which provides thus:
(1). The court, having heard the
totality of the evidence, shall
consider and determine the whole
matter and may
(a). Convict the accused and pass
sentence on or make an order
against the accused, or
(b). Acquit the accused and the court
shall give its decision in the
form of an oral judgment, and
shall record the decision
briefly together with the
reasons for it, where necessary.
[emphasis ours]
On this issue, learned counsel for the
appellant left the court
unassisted and did not cite any
decided case which was decided
on Section 177(1) of Act 30 of
1960.
This issue first arose in our criminal
procedure in the case of
COMMISSIONER OF POLICE V
MARTEFIO & ORS (9 WACA 40). In
the above case the West African
Court of Appeal laid down the
law that since the
non-compliance with a statutory
requirement and the failure on
the part of the trial court to
convict was a serious omission,
no lawful sentence could be
passed without the conviction.
This dictum was applied in the
case of REGINA V MENSAH & ORS
[1960] GLR 53 CA which was an
appeal before the Court of
Appeal but the trial was with
assessors whose opinions were
conflicting on record.
However, in the case of SEEDI v
COMMISSIONER OF POLICE [1946] 12
WACA 29, in which the appellant
was tried summarily by a
magistrate court, the appellant
was sentenced without record of
findings of guilty or conviction
against him. The West African
Court of Appeal was of the view
that the omission to convict or
pronounce guilty against the
appellant was a mere
technicality and substantial
justice could be done if the
omission could be corrected.
However, in the case of BINEY V
THE REPUBLIC [1969] CC 70 CA the
Court of Appeal, then the
highest court of the country
formed the view that the SEEDI
case was given per incuriam on
the grounds that the court did
not refer to the MARTEIFIO case
which was decided by the West
African Court of Appeal. It
must be pointed out that in the
BINEY’s case the court failed to
convict on one of the two
charges that the appellant was
charged. The Court of Appeal,
relying on the two West African
Court of Appeal cases referred
to above quashed the conviction
and rejected the principle in
the SEEDI case.
The courts in this country, however,
have on countless times been
confronted with those
conflicting authorities and
regardless of the fact that the
BINEY’s case is the latest Court
of Appeal decision on the issue
of whether failure to convict
amounts to a serious
irregularity which would lead to
quashing of a conviction is not
free from doubt.
The problem resurrected in the case of
STATE V WUNAMA [1965] CC 60 even
though the court did not fully
discuss the previous authorities
in detail on the effect of
omission to convict but
nevertheless relied on the
SEEDI’s case and held that the
omission was a mere
irregularity. However, in the
case of KINI V THE REPUBLIC
[1980] GLR 412, Taylor J (as he
then was) reviewed all the
existing authorities and in a
more comprehensive manner
ignored the ratio decidendi in
the BINEY’S case and applied the
SEEDI case. He referred to
section 7 of the Criminal
Procedure Code (Amendment) Act,
1965 (Act 261). It states thus:
“Provided that the 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 or any
other offence of which the
accused could have been
convicted upon that charge”
He subjected all the decided cases
which has been referred to above
to review, including the only
Supreme Court case of C.O.P v
SARPEY & NYAMEKYE [1961] GLR
(PART II) 756 SC and concluded
that in his view, with the
coming into force of the
Criminal Procedure Code
(Amendments) Act, 1965 (Act 261)
S7, which was the law as it
stood at the time of the BINEY’s
decision in 1969, that the
decision was given in error.
The issue was lately raised
again, this time before KANYOKE
J (as he then was) in the case
of NYARKO V THE REPUBLIC
[1999-2000] 2 GLR 252. His
Lordship also referred to all
the previous authorities and the
conflicting judicial
pronouncement on this issue. He
cited with approval the dictum
of Archer J (as he then was) in
the case of DONTOH V THE STATE
[1967] GLR 280 which probably
eluded Justice Taylor in the
KINI’s case and held inter alia
thus:
“the failure by a court to record a
conviction or convict an accused
who pleaded guilty to an offence
before passing sentence on him
was a mere technical or
procedural irregularity and not
a fundamental error in law”
[emphasis ours]
His Lordship did not follow the
BINEY’s case and proceeded to
dismiss the appeal. In this
case, the learned Principal
State Attorney has referred us
to the definitions of CONVICT
and CONVICTION in BLACK’S LAW
DICTIONARY 9th
edition thus:
“CONVICT is to find (a person) guilty
of a criminal offence upon a
criminal trial, a plea of guilty
or a plea of bolo contendere (no
contest)”
CONVICTION is defined thus
“The act or process of judicially
finding someone guilty of a
crime; the state of having been
proved guilty. 2. The judgment
(as by a jury verdict) that a
person is guilty of a crime”.
The record of appeal reveals
adequately what the learned
trial judge said before passing
sentence as follows:
“BY COURT: All the accused found
guilty of the various offences.
A1 is found guilty of the
offence of robbery. The role of
A1 in procuring the assistance
of others in committing the
offence makes his case
exceptional. A1 is sentenced to
30 years I.H.L on count 1, 30
years on count 2 and 30 years on
count 3. Sentences to run
concurrently”
In our respectful view, we find from
the submission of counsel for
the appellant that the mere
absence of the word CONVICT in
the above order of the court
renders the thirty years
sentence bad in law as very
disturbing indeed. In as much
as in all criminal cases in this
country and elsewhere the
liberty of the accused person is
paramount, a court of law
naturally in the course of
judicial proceedings may make
errors in the nature of
omissions, but it is the duty of
appellate courts to carefully
consider whether such errors are
fundamental and occasion
injustice to an appellant. This
has found statutory support in
section 406(1) of The Criminal
and other Offences (Procedure)
Act, Act 30 of 1960 which
section was not referred to in
all the cases referred to in
this judgment. The section
falls under Irregular
Proceedings and states thus
“406 (1) subject to this part, a
finding sentence or order passed
by a court of competent
jurisdiction shall not be
reversed or altered or altered
on appeal or review on account
(a). of an error, omission,
irregularity in the complaint,
summons, warrant, charge,
proclamation, order, judgment or
any other proceedings before or
during the trial or in an
inquiry or any other proceedings
under this Act, or
(b). of the omission to revise a list
of Jurors in accordance with
Part five, or
(c). of a misdirection in a charge to
a jury, unless the error,
omissions irregularity or
misdirection has in fact
occasioned a substantial
miscarriage of justice”
We find that the so-called error to
convict which counsel for the
appellant seeks to make maximum
complaint about was a mere
irregularity as found by Taylor
J (as he then was) in the KINI’s
case which was subsequently
approved by and adopted by
KANYOKE J (as he then was) in
NYARKOH’s case. In our
respectful view the failure to
convict has not occasioned any
substantial miscarriage of
justice when the trial judge
merely said “All the accused
persons found guilty of various
offences” including the first
accused who is the appellant
herein.
In our view the trial court after
evaluating the evidence
proceeded to say that it had
found the accused person guilty
of the offences charged without
using the magic word CONVICT, It
should be reasonably construed
and presumed that the court had
on finding the accused guilty,
convicted him of the offence(s)
charged. The mere failure to
use the word CONVICT does not
occasion any miscarriage of
justice in any way whatsoever.
We accordingly dismiss this appeal
which was based on arid
technicality of no significance.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
AUGUSTINE OBOUR FOR THE
APPELLANT.
FRANCES MULLEN ANSAH, PRINCIPAL
STATE ATTORNEY WITH HIM VICTORIA
ASIEDUA, SENIOR STATE ATTORNEY
FOR THE RESPONDENT.
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