BAIDEN AND ANOTHER vs. THE REPUBLIC [1972]DLHC2206

Date	1972-06-24
Suit No.
Citation No.	[1972]DLHC2206

COUSSEY J.

FORSON WITH HIM ANNANCY FOR THE APPLICANTS.

AHLIJAH SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1972]DLHC2206
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													<main id="main" class="content" style="min-height: 60rem" >BAIDEN AND ANOTHER<o:p></o:p>&nbsp;vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[HIGH COURT, SEKONDI]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1972] 2 GLR 174<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
26 JUNE 1972.<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">

FORSON WITH HIM ANNANCY FOR THE APPLICANTS.<o:p></o:p>

AHLIJAH, SENIOR STATE ATTORNEY, FOR THE
RESPONDENT.<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;
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COUSSEY J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF COUSSEY J.<o:p></o:p>The
application is for bail pending appeal. The applicants were convicted for
perjury contrary to section 152 (1) of the Criminal Procedure Code, 1960 (Act
30), on 14 June 1972 by me sitting at the High Court, Sekondi. The
circumstances leading to their conviction were that Moses K. Baiden procured
Kwame Essel and both agreed to fabricate evidence with the intent to pervert
the cause of justice in Civil Suit No. 44/71 between John Lefred Ansah and
Moses K. Baiden. It is worthy of note that if the applicants had succeeded in
their fabrication, and if Moses K. Baiden had won in that civil case, he would
have been entitled to a total sum of about ¢42,000.00 in damages. This amount
would have been obtained by fraud on the court.<o:p></o:p><o:p>&nbsp;</o:p>The High
Court is vested with jurisdiction to grant bail. The exercise of the
jurisdiction is governed by certain considerations which I shall refer to
later. It is necessary to state that bail pending appeal is not granted as a
matter of course. It is material that before such an application is filed and
argued worthy consideration is given to the request; because on the application
succeeding, a convicted prisoner is allowed to stay out of prison until his
appeal is heard. If the appeal fails, as pointed out by my brother Taylor J. in
Fynn v. The Republic [1971] 2 G.L.R. 433 at p. 437, it has become the practice
that the prisoner is not sent back to prison, but perhaps his sentence is
reduced or he is fined: see State v. Halm, Court of Appeal (Full Bench) 7
August 1969, unreported; digested in (1969) C.C. 155 and State v. Hawa Banda,
High Court, Kumasi, 26 July 1965, unreported. I have personally held the view
that fines as punishments in certain cases entitle the rich man to buy the
right to break the law. Where the offence of which a person is convicted is one
unbecoming of the person, I have maintained that a short term of imprisonment
in the circumstances could be an adequate deterrent punishment. I do not support
the legislature in providing an alternative of a fine for the offence of
perjury, I am more inclined to prefer the provision in section 440 (1) of the
Criminal Procedure Code of Ceylon which in effect provides that if any person
gives false evidence in any judicial proceedings he shall lawfully be sentenced
summarily to imprisonment either simple or rigorous, for any period not
exceeding three months. It is against such background that I am chary in
readily granting bail pending appeal unless as expressed by the English Court of
Criminal Appeal when granting bail in the case of R. v. Gregory (1928) 20
Cr.App.R. 185, C.C.A. “There are special and peculiar circumstances in [the]
case, and it is not to be regarded as a precedent.” The Lord Chief Justice in
R. v. Gott (1921) 16 Cr.App.R. 86 at p. 87, C.C.A. said that it was dangerous
for convicts to be on bail. However, there are certain known principles in
Ghana on which the application for bail will be considered. In passing I would
like to state that half of counsel’s submission turned on granting bail on
humanitarian grounds. Perjury is immoral. Considering that the haul of
¢42,000.00 is enormous, I would say that the situation is not venial.<o:p></o:p><o:p>&nbsp;</o:p>The
present application is founded on the Courts Act, 1971 (Act 372), s. 26 (5) and
(6). When my brother Taylor J. ruled in the case of Fynn v. The Republic
(supra) the application then was brought under section 332 (1) of the Criminal
Procedure Code, 1960 (Act 30), which is now obsolete. I will, therefore,
consider the propriety of this application under section 26 (5) and (6) of Act
372, and if I find it desirable I will apply the conditions for bail. Section
26 (5) and (6) are 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">“(5) The
Court before which a person is convicted or the Court to which an appeal is
made may if it thinks fit on the application of an appellant admit the
appellant to bail pending the determination of his appeal. (6) Where an appeal
has been lodged by a person entitled to appeal, the Court to which the appeal
is made may, pending the hearing and for reasons to be recorded by it in
writing, order that the execution of the sentence or order appealed against be
suspended”.<o:p></o:p>