PEKI AND OTHERS vs. THE REPUBLIC [1978]DLHC1168

Date	1978-03-17
Suit No.
Citation No.	[1978]DLHC1168

TAYLOR J.

OKYERE DARKO FOR THE APPELLANTS.

FLORENCE OKINE FOR THE REPUBLIC.

[1978]DLHC1168
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													<main id="main" class="content" style="min-height: 60rem" >PEKI AND OTHERS <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>&nbsp;[1979] GLR 61<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:
17 MARCH 1978<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">

OKYERE DARKO FOR THE APPELLANTS.<o:p></o:p>

FLORENCE OKINE FOR THE REPUBLIC.<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
appellants were jointly charged with the offence of forcible entry contrary to
section 202A (1) of the Criminal Code, 1960 (Act 29), as amended by the
Criminal Code, 1960 (Amendment) (No. 2) Decree, 1966 (N.L.C.D. 47). The facts
of the case which were established by overwhelming evidence and accepted by the
court are that the complainant was engaged in putting up a building consisting
of two rooms and a verandah on land which the first appellant claimed to be
his. The complainant engaged one Nene Nyazor, a mason, to put up the said
building which was a cement block building. On 21 July 1972 the complainant
visited the site in the company of three other persons. The mason was then
actually working on the building with his workmen and was at the top of the
building which had then reached window level and the door and window frames had
then been fitted. While the complainant and the mason and the other three
persons and workers were on the site, they heard the other appellants led by
the first appellant and others, about fifteen altogether, singing war songs in
a war-like manner, they came to the site in a furious mood; they were holding
iron bars, cutlasses, hammers, pick-axes and sticks. On the orders of the first
appellant, the other appellants started to break the building. The mason on top
of the building was naturally frightened and had to jump down and the
appellants completely demolished the whole building using the instruments they
had brought. The complainant asked those with him not to do anything fearing
that resistance might result in bloodshed or death.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>These
facts were never seriously challenged at the trial and in arguing the appeal on
behalf of the appellants the said facts were also apparently accepted. The
original grounds of appeal filed by the appellants are as follows:<o:p></o:p>“(1) Conviction
is wrong in law. (2) Verdict is unreasonable having regard to the evidence
adduced. (3) In the alternative sentence of imprisonment is illegal as it
contravenes the provisions of section 297<o:p></o:p>(3) of
the Criminal Procedure Code, 1960 (Act 30).”<o:p></o:p><o:p>&nbsp;</o:p>Perhaps
in order to understand the so-called alternative third ground of appeal it may
be necessary to advert to the order made by the trial court. On convicting all
the appellants the learned district magistrate passed the following sentences:
the first appellant was fined ¢200 and the other five appellants ¢100 each. In
addition each of the appellants was ordered to enter into a bond in the sum of
¢100 each on his own recognisance to be of good behaviour for twelve months; in
default the first appellant to go to prison for twelve months’ imprisonment
with hard labour and each of the other appellants to go to prison for eight
months’ imprisonment with hard labour. On application by counsel for the
appellants, the learned district magistrate purporting to act on the authority
of Donkor v. The State [1964] G.L.R. 598 at p. 602, S.C. allowed a respite of
the sentence and granted each appellant bail in the sum of ¢600 with one surety
each to be justified. I shall deal with the legality of this course of action presently
in this judgment. In the meantime it is necessary to find out in what manner
section 297 (3) of Act 30 was contravened. Now section 297 (3) of the Criminal
Procedure Code, 1960 (Act 30), is 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">“(3)
Where a person convicted of any offence is sentenced to pay a fine the Court
may direct that if he fail to pay it within the time appointed for payment
(which may be either forthwith or within a specified time, as the Court thinks
fit), he shall suffer imprisonment until it is paid. Such imprisonment shall be
in addition to any imprisonment to which he is sentenced for his offence; and,
in the case of a felony or misdemeanour, shall not exceed one-fourth of the
maximum term of imprisonment prescribed for such offence, and shall not in any
case exceed twelve months. . . .”<o:p></o:p><o:p>&nbsp;</o:p>