AYIDICHAW AND ANOTHER vs. THE STATE [1961]DLSC1987

Date	1961-07-10
Suit No.
Citation No.	[1961]DLSC1987

ADUMUA-BOSSMAN JSC

OLLENNU JSC

BLAY JSC

HAYFRON-BENJAMIN FOR THE FIRST APPELLANT

ABBAN FOR THE SECOND APPELLANT

ANNAN

SENIOR STATE ATTORNEY

FOR THE RESPONDENT.

[1961]DLSC1987
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AYIDICHAW AND ANOTHER

<a name="_gjdgxs"></a>vs.

[SUPREME COURT]

[1963] 2 GLR 297

DATE: 10TH JULY, 1963.

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COUNSEL:&nbsp;&nbsp;

HAYFRON-BENJAMIN
FOR THE FIRST APPELLANT.

ANNAN,
SENIOR STATE ATTORNEY, FOR THE RESPONDENT.

</div>

ADUMUA-BOSSMAN, OLLENNU AND
BLAY JJ.S.C.

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&nbsp;

Adumua-Bossman J.S.C. delivered the judgment of the court. This
appeal is against the conviction of the two appellants by his honour Judge
Siriboe (as he then was) at the Central Circuit Court, Cape Coast on two
charges: (1) unlawful entry, contrary to section 152 of the Criminal Code,
1960,1. and (2) stealing goods to the value of £G1,630 17s. 8d. the property of
the United Africa Company (Ghana) Ltd., contrary to section 124 of the Criminal
Code, 1960.2 The first appellant was sentenced to five years, and the second
appellant to three years imprisonment with hard labour on each charge, the
sentences in each case, to run concurrently.

Learned counsel for the first appellant commenced his arguments on
ground 2 of the grounds filed which reads: “The learned judge was wrong in
convicting the first appellant without giving reasons.” This complaint arises
from the manner in which the trial was finally concluded. What happened, as
disclosed by the record was that on the 10th April, 1962, when the court was
constituted by the judge sitting with the assessors, he duly “summed up” to
them, then took their individual opinions on the two charges against the appellants.
Each of the assessors gave it as his opinion that each accused was guilty on
each of the two charges preferred against him. The learned judge accepted their
unanimous opinions, and proceeded to find each accused guilty, and duly
convicted him. He stated as follows: “I agree with the opinions of the
gentlemen assessors and find each accused guilty on both counts and convict
them accordingly. Reasons for my decision to be given and sentences to be
passed on the 17th April, 1962.” There was no formal order discharging the
assessors, but on the other hand there was nothing on the record to indicate
that they were requested to attend on the adjourned date, the 17th April, 1962.
Be that as it may, on the adjourned date the 17th April, 1962, the learned judge
sat alone without the assessors and adjourned to the morrow, the 18th April,
1962, “for reasons for judgment and sentences.” On the 18th April, 1962, be
again sat alone, without any of the assessors present, and then read or
delivered his reasons for convicting the appellants which reasons he called
“judgment” then proceeded to sentence the appellants as already stated. In this
state of the record, Mr. Hayfron-Benjamin for the first appellant referred the
court to section 287, subsections (1) and (2) of the Criminal Procedure Code,
19603 which provides that:

“(1) When, in a case tried with assessors, the case on both sides
is closed, the Judge may sum up the evidence for the prosecution and the
defence, and shall then require each of the assessors to state his opinion
orally, and shall record their opinions. (2) The Judge shall then give
judgment, and in so doing shall not be bound to conform with the opinions of
the assessors, but he shall record his judgment in writing and in every case
the judgment shall contain the point or points for determination, the decision
thereon and the reasons for the decision, and shall be dated and signed by the
Judge at the time of pronouncing it.”

Learned counsel then submitted that without doubt the judgment is
the learned judge’s determination on the 10th April, 1962, when he recorded “I
agree with the opinions of gentlemen assessors and so find each accused guilty
on both counts and convict them accordingly”; that in the form in which it is
given, however, it does not comply with the requirements of section 287 (2) of
the Criminal Procedure Code, 1960, namely, that it “shall contain the point or
points for determination, the decision thereon and the reasons for the
decision, and shall be dated and signed by the Judge at the time of pronouncing
it.” In counsel’s further submission, the “judgment” or reasons, which the
learned judge delivered on the 17th April, was coram non judice in that in the
absence of the assessors, the judge sitting alone was not a properly
constituted court; and that this view of the matter is supported by section 264
(2) of the Criminal Procedure Code, 1960 which provides that: “Any assessor
dissenting from any decision of the Court may have his dissent and the grounds
thereof recorded in the minutes.” Learned counsel finally referred the court to
section 291 of the above-mentioned Code which provides that “The Court before
which any person is tried for an offence may reserve the giving of its final
decision on questions raised at the trial, and its decision whenever given
shall be considered as given at the time of trial.”

He concluded by submitting that the proper course which the
learned judge should have followed was to have adjourned the case after taking
the assessors’ opinions, and to have requested them to attend at the adjourned
date for the delivery of his judgment in which he could at one and the same
time indicate his acceptance of their unanimous opinions, and his conviction
and sentence of the appellants. This latter observation may well be true, but
that course was not followed, and the court must decide what is the correct
legal position resulting from the course which was actually followed.