PRACTICE NOTE: AKAKPO vs. THE REPUBLIC [1973]DLHC2309

Date	1973-11-13
Suit No.
Citation No.	[1973]DLHC2309

ANDOH J.

W. T. DOKU FOR THE APPELLANT.

E. AKWEI-ADDO STATE ATTORNEY FOR THE RESPONDENT.

[1973]DLHC2309
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">PRACTICE NOTE: AKAKPO <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">THE REPUBLIC <o:p></o:p>[HIGH COURT, HO]<o:p></o:p>[1974] 1 GLR 65<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 13 NOVEMBER 1973.<o:p></o:p>

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

<a name="_gjdgxs"></a>W. T. DOKU FOR THE APPELLANT.<o:p></o:p>

E.
AKWEI-ADDO, 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 black 1.5pt;
padding:0in 0in 0in 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANDOH J.<o:p></o:p>[His
lordship, after referring to the facts and the appellant’s conviction by the
district court for stealing and his subsequent committal for sentence to the
circuit court under section 178 of Act 30, continued:] The only reason why the
accused was committed to the circuit court for sentence was, according to the
district magistrate, the startling revelations made, that is to say, the
thirteen previous convictions. But these were neither admitted nor proved
strictly as the law requires. As a practice note, where an accused is convicted
and committed for sentence under section 178 of the Criminal Procedure Code,
1960 (Act 30), it is the duty of the district magistrate to ask the accused (if
any previous convictions are mentioned against him) to ascertain from him
personally (and not even from his counsel assuming he is represented) whether
the previous convictions are admitted or not. If admission is made, the
magistrate shall record that fact. If the previous convictions are not
admitted, it is the duty of the magistrate to ask the prosecutor to prove the
alleged previous convictions. If this is not done the learned circuit court
judge can either do what the district magistrate failed to do or he could send
the case back for this area of the matter to be probed.<o:p></o:p><o:p>&nbsp;</o:p>Again
when the previous convictions are proved strictly or admitted, it is the duty
of the learned circuit judge to ascertain whether the judgment of the district
magistrate is supported by the evidence adduced before the court. If not, he
should acquit the accused himself. It is not the duty of the learned judge to
pass sentence without making sure that the conviction is right according to the
facts and evidence before the court. The committal by the district court to the
circuit court for sentence does not per se, mean that the judgment of the court
below is right and therefore the learned circuit judge should endorse it by
awarding an enhanced sentence. The learned circuit judge is not bound to award
any sentence if the conviction itself is not supported by evidence. He has the
power to acquit if there is no evidence.<o:p></o:p><o:p>&nbsp;</o:p>In this
case, the learned circuit judge as I have already stated did not ascertain
whether in fact the accused had the thirteen previous convictions attributed to
him. He assumed without proof that this was so. In this, he erred just as the
district magistrate erred. The learned circuit judge sentenced the accused to
two years’ imprisonment with hard labour and the accused has now appealed to
this court against the conviction. The sentence was quite reasonable and was
not faulty in any manner except as to what I have stated . . .<o:p></o:p>

<o:p>&nbsp;</o:p></main>