MENSAH vs. THE REPUBLIC [1975]DLSC408

Date	1975-12-16
Suit No.
Citation No.	[1975]DLSC408

TAYLOR J.

R. D. AMOFAH FOR THE APPELLANT.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.

[1975]DLSC408
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													<main id="main" class="content" style="min-height: 60rem" >MENSAH <o:p></o:p>vs.<o:p></o:p>&nbsp;THE REPUBLIC<o:p></o:p>&nbsp;[HIGH
COURT, ACCRA]<o:p></o:p>[1976] 1 GLR 230<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:
16 DECEMBER 1975.<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">

R. D. AMOFAH FOR THE APPELLANT.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF 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;
padding:0in 0in 0in 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>The
appellant was arraigned before the district court grade II on 1 August 1975 on
a charge of stealing a shirt valued at ¢6.00, the property of one John Kwaku
Nsiah. He pleaded guilty to the charge and he was therefore convicted on his
own plea and sentenced to a term of nine months’ imprisonment with hard labour.
It is against the sentence of nine months’ imprisonment with hard labour that
he has appealed to this court.<o:p></o:p>On the
case coming before me for summary hearing for the first time on 11 December
1975, Counsel for the appellant submitted that this is a very simple case of
stealing involving an article of little value. He submitted further that the
appellant is a first offender and urged me on the authority of R. v. Jowsey
(1915) 11 Cr.App.R. 241, C.C.A. to deal with the appeal summarily and reduce
the sentence without calling on or notifying the Attorney-General as counsel
for the Republic.<o:p></o:p><o:p>&nbsp;</o:p>I must
confess that I was rather shocked and taken aback by this submission. In the
sixteen years that I have had intimate experience of the operation of Ghana
criminal procedure, I have not come across a single instance where the courts
have allowed in appeal either against sentence or conviction without calling on
counsel for the Republic. I find, however, that R. v. Jowsey (supra) would seem
to support this extraordinary and novel procedure for in that case, in altering
the sentences imposed on an appellant in respect of her conviction for larceny
of two letters containing postal orders to the value of 5s. 6d. and £1
respectively, without calling on counsel appearing for the Crown, Lord Reading
C.J. remarked at p. 242:<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 has
not been the practice of this Court to make any reduction or alteration in
sentences in the absence of counsel appearing on behalf of the prosecution. But
it would have been ridiculous in this case to cause an expenditure of public
money for the purpose of the prosecution being represented when we had determined
on such an alteration in this sentence. We therefore departed from our usual
practice. I only desire to add that in such cases, when the Court is of opinion
that no difficulty can arise, and that there is nothing which the prosecution
could properly urge against the reduction or alteration of a sentence, the
Court will deal with the question of such reduction or alteration on the
application for leave to appeal. “<o:p></o:p><o:p>&nbsp;</o:p>It seems,
therefore, that the practice urged on me by counsel for the appellant has the sanction
of the English Court of Criminal Appeal. I am, however, reluctant to copy
English practices blindly just because English judges indulge in such practices
if I do not find that the practice is supported by our law: see on this point
my views in Asantekramo alias Kumah v. Attorney-General [1975] 1 G.L.R. 319 at
pp. 347-348. In this respect I propose to examine the legal basis for the
English practice. It is trite learning that courts in the common law
jurisdictions do not have inherent appellate jurisdiction. Azu Crabbe J.A. (as
he then was) citing R. v. London Quarter Sessions; Ex parts Bowes [1951] 1 K.B.
383, D.C. and the Ghana cases of Amponsah v. Minister of Defence (1960) G.L.R.
140, C.A. and In re Okine [1960] G.L.R. 84, C.A., stated the principle when
delivering the reasons for the judgment of the Court of Appeal in Inkumsah v.
The Republic, 18 December 1967, unreported; digested sub nom. Inkumsah v. The
State (1968) C.C. 55 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">“Appellate
jurisdiction is conferred by statute and unless it is expressly conferred a
court cannot arrogate to itself that jurisdiction which is not vested in it;
nor can it assume appellate jurisdiction by consent of the parties.”<o:p></o:p><o:p>&nbsp;</o:p>It seems
to me therefore that to appreciate the practice sponsored in R. v. Jowsey
(supra) it is necessary to turn to a consideration of the enactment which gave
the English Court of Criminal Appeal jurisdiction in c</main>