NOKWE vs. THE REPUBLIC [1999]DLCA500

Date	1999-07-19
Suit No.
Citation No.	[1999]DLCA500

OFORI-BOATENG JA

BADDOO JA

GBADEGBE JA

OWUSU FODWOUR FOR THE APPELLANT.

GYAMBIBY STATE ATTORNEY FOR THE REPUBLIC.

[1999]DLCA500
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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">NOKWE<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>[1999-2000] 1 GLR 49<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>COUNSEL:<o:p></o:p>OWUSU FODWOUR FOR THE APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;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">GYAMBIBY STATE ATTORNEY, FOR THE REPUBLIC.<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;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">OFORI-BOATENG, BADDOO AND GBADEGBE JJA<o:p></o:p>

</div>JUDGMENT OF GBADEGBE JA<o:p></o:p>Gbadegbe JA delivered the judgment of the court. On 16 November 1993, the
appellant appeared before the High Court, Ho on a single count of possessing
Indian hemp, contrary to section 2(1) of (PNDCL 236). When the charge was read
over and explained to him, he pleaded guilty with explanation. The explanation
which he offered to the charge which he faced was recorded in the proceedings
of the said date, which may be found in the record of proceedings as follows:<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">“When I was given the luggage it was full of foodstuffs to be
given a brother in Abidjan. I never knew there was anything inside. It was only
when I got to Akanu border when on asking everybody to bring his goods for
inspection, I brought the three ice chest and on inspection they found the
leaves inside. I told them how I got the items. I beg the court.”<o:p></o:p>Following the said explanation, the learned High Court judge
convicted the appellant “on his plea” and proceeded to sentence him to a term
of ten years’ imprisonment with hard labour. In or about 1996, the appellant
obtained leave from the High Court, Ho to appeal out of time and the instant
appeal is based on the time so extended to him to appeal. The appellant filed
three grounds of appeal which are as follows:<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">“(1) The learned trial judge should have entered a plea of not
guilty on behalf of the appellant after his explanation to the court following
a plea of guilty with explanation. <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">(2) Having pleaded guilty with explanation but added words by way
of explanation and conduct which appear inconsistent with the plea of guilt,
the learned trial judge should have changed the plea to that of not guilty and
proceeded to take evidence. <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">(3) The conviction and sentence of the appellant on the facts of
the case and his explanation are therefore wrong in law and the proceedings
should be set aside as null and void and of no effect.”<o:p></o:p>Clearly, the said grounds as formulated seek to impeach the
conduct of the trial judge in not entering a plea of not guilty on behalf of
the appellant in view of the explanation which he offered to the charge. In my
view, all the three grounds of appeal raise essentially the same point, namely
whether in the face of the explanation offered by the appellant to the charge,
there was a duty placed on the trial judge not to have convicted him but instead
enter plea of not guilty on his behalf? Since the trial, which has resulted in
this appeal, was summary in nature, it is important to note that the plea was
taken under section 171(2) of the Criminal Procedure Code, 1960 (Act 30) which
provides as follows:<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">“(2) If the plea is one of guilty the plea shall be recorded as
nearly as possible in the words used, or if there is an admission of guilt by
letter under section 70(1) such letter shall be placed on the record and the
court shall convict the accused person and pass sentence or make an order
against him, unless there shall appear to it sufficient cause to the contrary.”<o:p></o:p>It must be stated that Act 30 provides for two pleas, namely
“Guilty” and “Not Guilty”. However, as a matter of practice, our courts have
tended to accept a plea which is to the effect of “Guilty with explanation.”
Much as this was not provided for by Act 30, one cannot deny that it has become
part of our criminal jurisprudence, thus forming part of our criminal procedure
and as such when such pleas are received by the courts, they should only
convict when the explanation is not such as in the words of section 171(2) of
Act 30 constitute “a sufficient cause to the contrary.” In my view, a plea
should be quite clear and unambiguous and therefore when an accused pleads
guilty to a charge but adds by way of explanation words which negative the plea
of guilty by rendering the said plea equivocal then in the words of section
171(2) of Act 30, the said perso</main>