BAAH vs. THE REPUBLIC [1991]DLHC2217

Date	1991-04-11
Suit No.
Citation No.	[1991]DLHC2217

KPEGAH J.A.

CAB-ADDAE FOR THE APPELLANT.

NO APPEARANCE BY OR FOR THE REPUBLIC.

[1991]DLHC2217
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													<main id="main" class="content" style="min-height: 60rem" >BAAH<o:p></o:p>vs.<o:p></o:p>THE
REPUBLIC<o:p></o:p>[HIGH
COURT, CAPE COAST]<o:p></o:p>[1991] 1
GLR 483<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

<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:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">Date: 11
APRIL 1991<o:p></o:p>

</div>COUNSEL:<o:p></o:p>CAB-ADDAE
FOR THE APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

<p class="MsoNormal" style="margin-bottom:5.0pt;mso-pagination:none;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:31.0pt 31.0pt 1.0pt 31.0pt;
mso-border-shadow:yes">NO APPEARANCE BY OR FOR THE REPUBLIC. <o:p></o:p>

</div>JUDGMENT
OF KPEGAH J.A.<o:p></o:p>This is
an appeal against sentence. On 11 May 1988 the appellant was put before the
Circuit Court, Agona Swedru presided over by his Honour Judge Julius Ansah on a
charge of stealing contrary to section 124(1) of the Criminal Code, 1960 (Act
29). The appellant, who was represented by counsel, pleaded guilty.<o:p></o:p>The brief
facts are that the appellant was an employee of International Tobacco Co.
(Ghana) Ltd., a cigarette manufacturing company. The appellant worked under a
sales supervisor stationed in Agona Swedru as a salesman. Over a certain
period, the appellant was given quantities of cigarettes for distribution to
customers. He gave them out on credit. The total amount involved was ¢511,900.
After a certain time, the appellant informed the sales supervisor that he had
collected ¢50,000 but had made use of same. He was given time by his supervisor
to refund the whole amount of ¢511,900 and when he failed to do so a report was
made to the police. The appellant was charged after investigations.<o:p></o:p>Although
from the facts on record the prosecution did not directly say the appellant
embezzled the whole amount, learned counsel, in his plea of ad misericordiam,
admitted this. He then pleaded the appellant’s efforts to repay the whole
amount. The learned trial judge did not proceed to convict but granted the
appellant bail and ordered him to refund the amount in two weeks before being
dealt with.<o:p></o:p>Then
followed several adjournments in an effort to get the amount out of the
appellant before he was convicted and dealt with. The propriety or otherwise of
such a procedure will be considered. On some of the adjourned days the
appellant paid to the court some amount; on other days he could pay nothing. On
each occasion that the case was adjourned to enable the appellant find and pay
the amount the court notes ended to the effect that “case adjourned for
sentence.” This was so even though the appellant had not been formally
convicted after he registered a plea of guilty.<o:p></o:p>When the
court finally lost patience with, or was disappointed by the appellant’s
failure to refund the amount, it remanded him in custody for a period before
later proceeding to deal with him. The court’s note for that day 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">“By court
: I convict the accused on his own plea and sentence him to a fine of ¢15,000
or twelve months’ imprisonment with hard labour. The accused is to pay the
balance of ¢311,900 or serve five years’ imprisonment with hard labour.”<o:p></o:p>It is
against the order to pay the balance of ¢311,900 or serve five years’
imprisonment with hard labour which the instant appeal has been brought. Mr
Cab-Addae, counsel for the appellant, contended that a criminal court had no
jurisdiction to make an order for the appellant to pay the balance of ¢311,900
or in default serve five years’ imprisonment with hard labour.<o:p></o:p>The sole
legal point for determination in this appeal is the legitimacy of a trial court
making an order for the recovery from an offender of money or property he has
stolen and proceed to tack to the said order a term of imprisonment in default.
I will readily concede to an accused his option to offer reparation before
sentence as a way of seeking mitigation of sentence. Whether a trial court can
force this out of an accused is a different matter.<o:p></o:p>I will
also express my views on whether the laws of this land permit the criminal
process to be used to induce an accused to pay money said to have been stolen
by him before sentence. In other words, where an accused is found guilty of
stealing an amount, is it legitimate for the court to demand reparation from
the accused before he is sentenced?<o:p></o:p>Under the
previous Criminal Procedure Code, Cap. 10 (1951 Rev.), the victim of a crime
who might have lost any property was not entitled to an order of restitution of
the property lost or to have an order for its value made in his favour. His
remedy laid in a separate civil action for that purpose. This situation was
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