OGUNWUMI vs. THE STATE [1965]DLSC1840

Date	1965-05-21
Suit No.
Citation No.	[1965]DLSC1840

OLLENNU JSC

ACOLATSE JSC

APALOO J.S.C.

P.A. ADJETEY FOR THE APPELLANT.

GYEKE-DAKO SENIOR STATE ATTORNEY FOR THE STATE.

[1965]DLSC1840
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													<main id="main" class="content" style="min-height: 60rem" >OGUNWUMI <o:p></o:p>vs. <o:p></o:p>THE STATE <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 400<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
21 MAY 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

P.A. ADJETEY FOR THE APPELLANT.<o:p></o:p>

GYEKE-DAKO, SENIOR STATE ATTORNEY, FOR THE STATE.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU, ACOLATSE AND APALOO JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.S.C.<o:p></o:p>Apaloo
J.S.C. delivered the judgment of the court. The applicant, who is a citizen of
the Republic of Nigeria, was on 30 March 1963, convicted by the Circuit Court,
Ho, of the offences of possessing forged document and uttering forged document
and was sentenced to four years’ imprisonment with hard labour on each count.
An amount of £G2,520 which was used by him in the commission of the offences
was ordered to be forfeited to the government and also two sums of money which
were found in his possession and in respect of which no charges were preferred
against him. The court also recommended his deportation at the expiry of the
sentence. He appealed against his conviction and sentence to the High Court,
Ho. On 28 June 1963, the High Court constituted by Siriboe J. (as he then was)
dismissed the appeal against his conviction on both counts, but reduced the
sentence from four years to two years. The learned High Court judge also set
aside the order of confiscation of the two sums of money found with the appellant
and in respect of which no charges were preferred against him, but he did not
make a formal order of restitution in the appellant’s favour. The court however
affirmed the order of confiscation made in respect of the £G2,520 and concurred
in the recommendation for deportation which the learned circuit judge made. The
appellant again appealed to this court against the conviction and sentence.<o:p></o:p><o:p>&nbsp;</o:p>It is not
necessary to recite the facts at great length. The substance of it is that: On
20 September 1962, the appellant and two other persons entered the Barclays
Bank premises at Ho. The appellant apparently had gone there to purchase a bank
draft. Unknown to him, he was placed under surveillance by the police. He
produced to the manager, a Mr. Harrison, what purported to be an authority from
the Bank of Ghana for the purchase of £G2,520 Nigerian currency. It was
exchange control form Al. The manager, believing it to be genuine, made out the
necessary draft in his favour in return for £G2,520 Ghana currency. The appellant
was negotiating other business with the manager when the police entered the
manager’s office and arrested him. The exchange control form was proved to have
been forged to the appellant’s knowledge and he knowingly uttered it to the
manager. The police took possession of the £G2,520 and the two other sums of
£G1,520 and £G466 which were found in his possession. At his trial before the
circuit court, these sums were tendered in evidence. The learned circuit judge
accepted the prosecution’s version of the facts and, holding the charges
proved, convicted the appellant and made the orders which we have recited. But
before making the order recommending the appellant’s deportation, the learned
circuit judge took evidence of his personal particulars and obviously used them
as the basis for exercising his discretion.<o:p></o:p><o:p>&nbsp;</o:p>As we
have said, the appellant appealed against his conviction and sentence to the
High Court with the results which we have already set out. Although the
appellant again appealed to this court against his conviction, no argument was
addressed to us on this. We think on the facts, the appellant was properly
convicted and that the appeal against his conviction has no merit.<o:p></o:p><o:p>&nbsp;</o:p>The only
serious argument which was addressed to us was about the sentences in respect
of which we extended the time to appeal and granted leave. It was submitted on
behalf of the appellant, that the learned High Court judge having set aside the
confiscation orders in respect of the two sums of £G1,520 and £G466, should
have made a consequential order of restitution in the appellant’s favour. This
was conceded by the learned senior state attorney. We think that submission was
well-founded. In our judgment, that order naturally flows from the setting
aside of the confiscation orders and we think the omission to make it was due
to a genuine oversight on the part of the learned High Court judge. We
accordingly order that the two sums of £G1,520 and £G466 now in the possession
of the High Court registrar at Ho shall be restored to the appellant.<o:p></o:p><o:p>&nbsp;</o:p>It was
next contended on behalf of the appellant that no offence was committed in
respect of the sum of £G2,520 and that on a proper construction of section 144
(1) of the Criminal Procedure Code, 1960,1 the order of confiscation was
illegal. It was submitted in any event that an order of confiscation in
addition to the imprisonment of two years makes the sentence harsh and
excessi</main>