AMOAH vs. THE STATE [1966]DLCA1648

Date	1966-11-14
Suit No.
Citation No.	[1966]DLCA1648

OLLENNU JA

AZU CRABBE JA

LASSEY J.A.

APPELLANT IN PERSON.

S. M. BOISON PRINCIPAL STATE ATTORNEY (AIKINS STATE ATTORNEY WITH HIM) FOR THE RESPONDENT.

[1966]DLCA1648
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													<main id="main" class="content" style="min-height: 60rem" >AMOAH <o:p></o:p>vs. <o:p></o:p>THE STATE <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1966] GLR 737<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:
14 NOVEMBER 1966.<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">

APPELLANT IN PERSON.<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, AZU CRABBE AND LASSEY JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.A.<o:p></o:p>Ollennu
J.A. delivered the judgment of the court. This appeal was argued on 25 October
1966, and was allowed, and we now give reasons for the decision therein. The
appellant was convicted by the District Court, Effiduase, of the offence of
being on premises for an unlawful purpose, contrary to section 155 of the
Criminal Code, 19601; the alleged unlawful purpose is “to steal.” He was then
committed to the High Court, Kumasi, under section 3 (1) of the Punishment of
Habitual Criminals Act, 1963,2 for sentence. The learned judge of the High
Court, Baidoo J., after holding full and proper inquiries as should be held
under section 2 of the Act came to the conclusion that the conviction was bad,
that the verdict was not warranted by law, and cannot be supported having
regard to the evidence. With that view we are in entire agreement. But instead
of quashing the conviction, and acquitting and discharging the appellant as we
think he is in law entitled to do, the learned judge took the view that he had
no jurisdiction in a case committed to him under Act 192 to interfere with the
conviction or the merits of the case, and addressed himself as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“It is
rather unfortunate that the matter is not on appeal before me. The accused has
been already convicted by the learned district magistrate and I am required
under section 1 (c) of Act 192 to hold an inquiry to find out whether by reason
of the accused’s criminal habits or tendencies or of his association with
persons of bad character, it is expedient for the protection of the public that
he should be detained in custody for a substantial period.”<o:p></o:p>

We are of
the opinion that this view of the law held by the learned judge is erroneous.
The duty of a court is to do justice, a court therefore should not shut its
eyes at obvious injustice.<o:p></o:p><o:p>&nbsp;</o:p>The
jurisdiction of a court to pass sentence upon a person, i.e. to punish, can
only be exercised where a person has been lawfully convicted; lawful conviction
is therefore a condition precedent to a sentence. A sentence which has been passed
when there has been no lawful conviction is illegal. Therefore, a court vested
with jurisdiction to pass a sentence at first instance, or confirm, quash or
vary a sentence on appeal, is under a legal duty to satisfy itself first of all
as to the lawfulness of the conviction before it should exercise its
jurisdiction to pass, confirm, or vary it.<o:p></o:p><o:p>&nbsp;</o:p>In each
of the following three cases: Benson v. Commissioner of Police,3 Asante v.
Commissioner of Police,4 and Asamoah v. The State,5 the appellant pleaded guilty
to a charge of possessing Indian hemp, contrary to section 47 (1) of the
Pharmacy and Drugs Act, 1961,6 and was convicted and sentenced to a term of
imprisonment with hard labour. By virtue of section 324 (3) of the Criminal
Procedure Code, 1960,7 he could only appeal against sentence and not against
conviction; he appealed unsuccessfully to the High Court, and finally to the
Supreme Court, where it was discovered that the Attorney-General’s fiat was not
obtained as required by section 57 (5) of Act 64 before the proceedings were
instituted; it was conceded for the State that in those circumstances the
proceedings including the conviction were null and void. The Supreme Court
therefore quashed the conviction.<o:p></o:p><o:p>&nbsp;</o:p>Again in
Cobbina v. The State,8 an accused person charged with possessing Indian hemp
pleaded guilty with explanation, and gave an explanation which amounted to a
positive plea of not guilty; he was convicted and sentenced; he appealed to the
High Court against both conviction and sentence, but when it was brought to his
notice that he had no right of appeal, he withdrew his appeal against
conviction and proceeded with appeal against sentence, which was dismissed. He
then appealed to the Supreme Court against his sentence. When attention was called
to the case of Ofei v. The State,9 it was conceded on behalf of the State, that
the court cannot overlook the explanation given by the appellant as recorded by
the trial district court, which amounts to a plea of not</main>