SARPONG vs. THE REPUBLIC [1980]DLHC1635

Date	1980-12-11
Suit No.
Citation No.	[1980]DLHC1635

ANSAH-TWUM J.

B. LUMOR FOR THE APPELLANT.

AHLIJAH CHIEF STATE ATTORNE FOR THE REPUBLIC.

[1980]DLHC1635
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													<main id="main" class="content" style="min-height: 60rem" >SARPONG <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>&nbsp;[1980] GLR 790<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:
11 DECEMBER 1981<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">

B. LUMOR FOR THE APPELLANT.<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">

ANSAH-TWUM J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANSAH-TWUM J.<o:p></o:p>This is
an appeal against the conviction and sentence of the appellant, Emmanuel Victor
Sarpong, on 30 September 1980, to a term of four years’ imprisonment by the
Circuit Court, Sekondi, on a charge of fraud by false pretences, contrary to
section 131 of the Criminal Code, 1960 (Act 29).<o:p></o:p>The
following are the original and additional grounds of appeal respectively filed
and argued in the matter:<o:p></o:p>“(a) That
the judgment was erroneous in law. (b) That from all the evidence adduced at
the trial and particularly with reference to exhibit C, the trial judge should
have held that the transaction between the first prosecution witness and the
appellant was one of legitimate business. Additional grounds of appeal <o:p></o:p>(1) The
learned circuit judge erred in finding the accused person guilty before he opened
his defence. <o:p></o:p>(2) The
learned trial judge erred in that he failed properly to consider the defence of
the accused. <o:p></o:p>(3) The
learned trial judge erred in law when he convicted the accused person even
though the prosecution failed to call relevant and material witnesses. <o:p></o:p>(4) The
learned trial judge misapplied the cases referred to at the trial.”<o:p></o:p><o:p>&nbsp;</o:p>The main
submissions made by the learned counsel for the appellant are that the holding
made by the trial judge at the close of the prosecution’s case and before the
appellant was heard that the appellant knew that the representation he was
alleged to have made was false to his knowledge, was wrong in law. Counsel
cited Republic v. Accra Special Circuit Court; Ex parte Akosah [1977] 2 G.L.R.
283, and submitted that all that the trial judge ought to have said was that a
prima facie case had been made out and no more. The court ought to have waited
until the appellant had been heard. Counsel also submitted that by so holding
at the close of the case for prosecution and before the appellant had been
heard, the trial judge disenabled himself from later considering the defence.
Counsel cited in support Atinga Frafra v. The Republic [1968] G.L.R. 85 and
Marhaba v. The Republic [1979] G.L.R. 90 to the effect that where essential
procedure is infringed, conviction following therefrom may be quashed. Counsel
submitted further citing State v. Sowah and Essel [1961] G.L.R. (Pt. II) 743
that to say at the close of prosecution’s case that the trial judge was
convinced of the guilt of the appellant before he was heard, was wrong in law.
Counsel also submitted that the falsity of the alleged statement made by the
appellant must be proved before conviction and condemnation.<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel submitted further that the trial judge failed to hear a material
witness and therefore the conviction was bad. He cited R v. Ansere (1958) 3
W.A.L.R. 385, C.A. and Agyeman v. The State [1964] G.L.R. 681, S.C. On this
point, counsel submitted that the General Manager of Allied Chemicals mentioned
ought to have been called by the prosecution to say whether or not he was the
appellant’s friend or that he had, in fact, promised to give the appellant some
roofing iron sheets.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
also referred to exhibit C in the record of proceedings and submitted that the
trial court fail</main>