DORVLO vs. THE REPUBLIC [1990]DLHC1188

Date	1990-03-12
Suit No.
Citation No.	[1990]DLHC1188

ACQUAH J

NUDO FOR THE APPELLANT.

J ASAFO FOR THE REPUBLIC.

[1990]DLHC1188
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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:#00B0F0">DORVLO<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:#00B0F0">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:#00B0F0">THE REPUBLIC<o:p></o:p>[HIGH COURT, HO]<o:p></o:p>[2001-2002] 1 GLR 679<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 12 MARCH 1990<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NUDO FOR THE APPELLANT.<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">

J ASAFO FOR THE REPUBLIC.<o:p></o:p>

ACQUAH J<o:p></o:p>

</div>JUDGEMENT<o:p></o:p>Acquah J. <o:p></o:p>The appellant was arraigned, together with one other, before the
Circuit Court, Ho on charges of stealing contrary to section 124(1) of the
Criminal Code, 1960 (Act 29) and possessing firearm at a proclaimed area
contrary to section 1 of the Public Order (Prohibition of Arms and Ammunition)
(Awudome and Peki Traditional Areas) Instrument, 1986 (EI 10 of 1986). He
pleaded guilty with explanation to both charges and was convicted and sentenced
to 24 months’ imprisonment with hard labour on each count.<o:p></o:p>The facts as presented by the prosecution are that the appellant
and the other accused stole two live sheep on 16 July 1989 from Dededo and
brought the two animals to Anum Asikuma for sale. The local committee for the
defence of the revolution arrested them but the appellant later managed to
escape. The other accused person mentioned the appellant as the owner of the
animals. The appellant was later arrested and a cap gun was found in his
possession. He was accordingly charged, and he pleaded guilty with explanation
on both counts. The only recorded explanation of the appellant is: “The second
accused — I thought the sheep was for my mother.” He was accordingly convicted
and he now appeals to this court against his conviction and sentence on the
following grounds: “(1) the conviction was wrong in law and cannot be supported
having regard to the evidence; and (2) the sentence is harsh.”<o:p></o:p>Counsel for the appellant, Mr Nudo, argued that the recorded
explanation does not amount to an admission of guilt and that the trial circuit
court judge ought to have entered a plea of “not guilty” in respect of both
counts. He pointed out that the explanation has no relevance at all to the
charge of “possessing fire arms in a proclaimed area”, and that since the
appellant was unrepresented the trial judge ought to have satisfied himself
that the appellant really meant to plead guilty on both counts. Mr James Asafo,
counsel for the Republic readily conceded that the recorded explanation did not
amount to an admission of guilt and that the circuit judge erred in not
entering a plea of not guilty.<o:p></o:p>I agree entirely with both counsel on this submission that on a
proper assessment of the recorded explanation offered by the appellant, a plea
of not guilty should have been entered. Consequently, the failure of the trial
judge to enter the said plea renders the trial a nullity, and the conviction
and sentence ought to be set aside.<o:p></o:p>I must say that although there is no plea statutorily known as
“guilty with explanation”, yet I can take judicial notice of the fact that this
form of plea is perhaps the commonest form of plea offered by very many accused
persons who for one reason or the other believe that they have some excuse for
committing the offence levelled against them. There are others who plead
“guilty with explanation”, not because they are guilty but principally to
short-circuit the trial and save themselves the onerous task of going through
the full trial. Now, because a plea of “guilty with explanation” is not known
to our law, a trial court cannot convict an accused person on this plea unless
the court has fully satisfied itself that such a plea amounts to an admission
of guilt, otherwise any conviction on such a plea will be quashed on appeal.
And it is for this reason that the provisions of sections 171 and 199 of the
Criminal Procedure Code, 1960 (Act 30) impose a mandatory duty on trial courts
to ensure that the plea of the accused persons amount to that of “guilty” or
“not guilty.” And Section 171(4) of Act 30 even goes on to provide that where
the accused refuses to plead to the charge, a plea of “not guilty” should be
entered for him. The said subsection reads:<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">“(4) If the accused or his advocate, as the case may be, refuses
to plead, or if he does not appear and the Court decides to hear the case in
his absence under the provisions of section 170 a plea of not guilty shall be
entered and the plea so entered shall have the same force and effect as if the
same had been actually pleaded.”<o:p></o:p>