ASAMOAH vs. THE REPUBLIC [1986]DLHC843

Date	1986-12-02
Suit No.
Citation No.	[1986]DLHC843

MENSAH AG. J.

OKOFO DARTEH FOR THE APPELLANT.

OWOO FOR THE REPUBLIC.

[1986]DLHC843
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ASAMOAH <o:p></o:p>

{HIGH COURT, SUNYANI} <o:p></o:p>

[1984-86] 2 GLR 769<o:p></o:p>

DATE:
2 DECEMBER 1986<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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OKOFO DARTEH 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;
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MENSAH AG. J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF MENSAH AG. J.<o:p></o:p>This is
an appeal lodged against the conviction and sentence by the appellant. The
appellant was convicted after pleading guilty with explanation to a charge of
fraud by false pretences contrary to section 131 of the Criminal Code, 1960
(Act 29), and was sentenced to nine months’ imprisonment with hard labour. The
appellant was said to have obtained the sum of ¢3,400 from the complainant
under the pretext of supplying her with beans which he failed to do.<o:p></o:p><o:p>&nbsp;</o:p>Arguing
the appeal for the appellant counsel submitted in the main that since the
appellant pleaded guilty with explanation but the trial magistrate failed or
refused to record the explanation of the appellant, then the trial magistrate
grade II violated the statutory duty imposed on him by section 171 (2) of the
Criminal Procedure Code, 1960 (Act 30), and consequently the trial is a nullity
and the conviction and sentence should be set aside by this appellate court.
Counsel referred to Mensuo v. The Republic [1971] 2 G.L.R. 30. Counsel further
submitted in the alternative that since the appellant is a young first
offender, the sentence of nine months’ imprisonment with hard labour was harsh
and excessive.<o:p></o:p><o:p>&nbsp;</o:p>In reply
counsel for the respondent submitted that the mere omission of the explanation
of the appellant, does not negate the conviction. Counsel referred to section 4
(a) of Act 29 and section 415 of Act 30 and added that both sections should be
construed amply and beneficially to give effect to the purposes thereof.
Counsel for the respondent further submitted that since the order made by the
trial court showed that the magistrate recorded the sum and substance of the
appellant’s explanation and this has not been challenged by affidavit then the
appellant cannot be heard to say a substantial miscarriage of justice has been
occasioned, and referred to section 406 of Act 30. Finally counsel referred to
section 26 (12) of the Courts Act, 1971 (Act 372) and argued that the point
raised by counsel for the appellant was technical and should not be allowed to
disturb the said conviction.<o:p></o:p><o:p>&nbsp;</o:p>I have
carefully read the record of proceedings and I have also patiently read the
written submissions made by both counsel and it is my candid and considered
opinion that, plausible as the submissions made by counsel for the respondent
may seem, they do not find favour with the court.<o:p></o:p><o:p>&nbsp;</o:p>In the
first instance the submission that the trial magistrate recorded the sum and
substance of the explanation of the appellant is not tenable, having regard to
the record of proceedings forwarded to this court. Nowhere in the record of
proceedings did the trial magistrate record the explanation of the appellant,
although the record of proceedings abundantly and apparently indicated that the
appellant pleaded guilty with explanation. If after pleading guilty with
explanation with the appellant desired not to offer any explanation the trial
court should have made a record to that effect.<o:p></o:p><o:p>&nbsp;</o:p>If the
trial magistrate had recorded any explanation of the appellant at all then this
court would have ascertained from the recorded explanation whether it formed
the sum and substance of the said explanation; but here, no explanation was
recorded at all. How then can one ascertain whether it was the sum and
substance of the explanation of the appellant and therefore the appellant
cannot be said to have suffered substantial miscarriage of justice?<o:p></o:</main>