MENDS-BUAH vs. THE REPUBLIC [1996]DLCA583

Date	1996-03-07
Suit No.
Citation No.	[1996]DLCA583

WOOD JA

BROBBEY JA

ESSILFIE-BONDZIE JA

KENNETH MAINOO FOR THE APPELLANT.

ANTHONY GYAMBIBY (SENIOR STATE ATTORNEY) FOR THE REPUBLIC.

[1996]DLCA583
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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">MENDS-BUAH<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>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1995-96] 1 GLR 26<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: 7 MARCH
1996<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KENNETH MAINOO 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">

ANTHONY GYAMBIBY (SENIOR STATE
ATTORNEY) 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 1.0pt 0in">

WOOD, BROBBEY AND
ESSILFIE-BONDZIE JJA<o:p></o:p>

</div>JUDGMENT OF BROBBEY JA<o:p></o:p>Brobbey JA read the first judgment at the invitation of Wood JA.
The second leg of the appeal relates to the sentence of imprisonment imposed on
him. He was sentenced to eighteen months’ imprisonment after his conviction.
Having regard to the nature of the offence and the circumstances surrounding
the conviction for that offence, I am of the opinion that that sentence is
rather on the low side.<o:p></o:p>The Courts Act, 1993 (Act 459), s 30(a)(i) and (b) empowers this
court to amend the sentence of the trial tribunal. At the trial, the tribunal
in sentencing the appellant stated that: “What the accused is proved to have
done is most treacherous and must be fought against in no uncertain terms.” It
is significant to observe that there is no appeal against the conviction. I
would therefore enhance the prison sentence of eighteen months from the date of
his conviction by the trial court.<o:p></o:p>The appellant having been sentenced to eighteen. months’
imprisonment was in addition ordered to refund ¢9 million to the complainant.
It was further ordered that he should go to prison for ten years if he is
unable to refund that amount.<o:p></o:p>There is no doubt that the order for alternative imprisonment for
the non-compliance with the refund order was illegal because of section 31 of
the Public Tribunals Law, 1984 (PNDCL 78) which permits such an order of refund
further provides in section 31(2) that such court order is enforceable as a
civil process. The provisions in section 31 of PNDCL 78 are similar to the
provisions in the Criminal Procedure Code, 1960 (Act 30), s 147(l) and (2).
There is no statutory provision empowering a court or tribunal to impose a
sentence as alternative to non-compliance with such order of refund. The
ten-year alternative sentence tagged on to the order for refund is indefensible
and is therefore struck out. The appeal is therefore allowed on the ground
concerning that order of refund.”<o:p></o:p><o:p>&nbsp;</o:p>JUDGMENT OF
WOOD JA.<o:p></o:p>On 15 December 1992 the appellant was found guilty and convicted
by the National Public Tribunal presided over by Mr K B Anning. He was given a
custodial sentence of eighteen months’ imprisonment with hard labour on each of
the counts and ordered also to “refund ¢9 million to the first prosecution
witness, Alhaji Adams, or in default ten years’ imprisonment with hard labour.”<o:p></o:p>Being dissatisfied with the conviction and sentence, he appealed
against both on a number of grounds. At the hearing, however, the appeal
against conviction was abandoned. The appeal therefore turned on the sentence
only on the ground that it was “harsh and excessive having regard to the
circumstances of the case.”<o:p></o:p>The appellant’s counsel based his argument partly on some of the
all too familiar matters urged in appeals of this kind. First, that the
appellant is a first offender. Secondly, that as the appellant was kept in
custody for some two years from the date of his arrest, in passing sentence,
the tribunal ought to have taken this period of detention into consideration.
But perhaps the more serious point argued on this question of the excessiveness
of the sentence is this: that having regard to the decision of this court in
the unreported case of Abbey v The Republic, Court of Appeal, Accra, 15 June
1994, unreported, the consequential sentence of ten years’ imprisonment in default
of the refund of the ¢9 million, be set aside in its entirety. Alternatively,
it was argued that the sentence ought to be reduced to meet the requirements of
section 297 of the Criminal Procedure Code, 1960 (Act 30) particularly since
the amount that actually changed hands was ¢7,125,000.<o:p></o:p>In prevailing upon us to dismiss the appeal, counsel for the
Republic urged us not to overlook the following. First, that the offence in
respect of which the appellant was convicted involved dishonesty, ie fraud by
false pretences, for which by law the maximum sentence is 25 years. Even so it
was argued, the Public Tribunals Law, 1984 (PNDCL 78), the statu</main>