DONTOH vs. THE STATE [1967]DLHC1494

Date	1967-04-28
Suit No.
Citation No.	[1967]DLHC1494

ARCHER J.

APPELLANT IN PERSON.

J. O. AMUI ASSISTANT STATE ATTORNEY FOR THE STATE.

[1967]DLHC1494
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													<main id="main" class="content" style="min-height: 60rem" >DONTOH<o:p></o:p>&nbsp;vs. <o:p></o:p>THE STATE <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1967] GLR 280<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:
28 APRIL 1967.<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">

ARCHER J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>The
appellant was charged with another on two counts of unlawful entry and stealing
the sum of ¢15,724.00. He pleaded guilty to the charge but there is no record
that he was convicted by the learned trial circuit judge on the plea of guilty.
It is, however, recorded that the trial judge, after hearing the facts,
sentenced the appellant to seven years’ imprisonment with hard labour on each
count-sentences to run concurrently. He appealed against sentence only.
Nevertheless, during the hearing, the learned assistant state attorney agreed
with the court that there was nothing on record to show that the appellant was
convicted after his plea.<o:p></o:p>Section
171 (2) of the Criminal Procedure Code, 1960 (Act 30), reads:<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">“If the
plea is one of guilty the plea shall be recorded as nearly as possible in the
words used, or if there is an admission of guilt by letter under section 70 (1)
such letter shall be placed on the record and the Court shall convict the
accused person and pass sentence or make an order against him, unless there
shall appear to it sufficient cause to the contrary.”<o:p></o:p><o:p>&nbsp;</o:p>The words
of section 171 (2) are mandatory and the trial judge should have convicted the
appellant on his plea by recording it. The appellant admits he pleaded guilty
but it appears there was an omission on the part of the court to convict him
before sentence. Has this omission or irregularity occasioned a miscarriage of
justice as envisaged by section 406 of the Criminal Procedure Code?<o:p></o:p>There are
conflicting authorities on this matter. In the case of Seedi v. Commissioner of
Police (1946) 12 W.A.C.A. 29, the appellate court held that the omission to
enter on record a finding of guilty against an appellant before passing
sentence, was a mere technicality and the court could remedy it so that
substantial justice might be done: see also R. v. Ekpo (1947) 12 W.A.C.A. 153.
On the other hand there is the case of Commissioner of Police v. Marteifio
(1943) 9 W.A.C.A. 40 where a finding of guilty was not recorded before passing
sentence and the appellate court held that the sentence could not be allowed to
stand. At p. 43 the following is recorded:<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">“A
conviction at common law has been said in strictness to consist of verdict,
judgment and sentence. In certain English Statutes it means verdict or
confession of guilt. In a summary trial in this Colony what is called in the
side note to section 163 of the Criminal Procedure Code ‘the decision’ takes
the place of the verdict of a jury. The decision is an ingredient of a
conviction and we would say it is the main ingredient, for without a decision
(except in the special case referred to in section 79 of the Criminal Code) we
do not see how there can be either a judgment or a sentence. We hold therefore
that a 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.”<o:p></o:p><o:p>&nbsp;</o:p>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. Section 171
provides that he shall convict on the plea of guilty. And if I may borrow the
words of the appellate court in Seedi v. Commissioner of Police at p. 30
(supra):<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">“In a
case where there is such an omission as this one, which was undoubtedly an
oversight, to consider it fatal we are of opinion would be straining the law of
procedure to such an extent that it would amount to a miscarriage of
justice...”<o:p></o:p><o:p>&nbsp;</o:p>