REPUBLIC vs. CIRCUIT COURT JUDGE, TARKWA; EX PARTE OPOKU [1999]DLHC458

Date	1999-01-20
Suit No.
Citation No.	[1999]DLHC458

ANSAH J

ACKAAH-GYASI FOR THE APPLICANT.

G KPODO FOR THE REPUBLIC.

[1999]DLHC458
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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">REPUBLIC<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">CIRCUIT COURT JUDGE, TARKWA; EX PARTE OPOKU<o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1999-2000] 1 GLR 55<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: 20
JANUARY 1999<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ACKAAH-GYASI FOR THE APPLICANT.<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">

G KPODO FOR THE REPUBLIC. <o:p></o:p>

</div>JUDGMENT OF ANSAH J<o:p></o:p>Pursuant to leave granted on 27 November 1998, the applicant filed
a motion on notice whereby he prayed for an order of certiorari to quash the
judgment of the Circuit Court, Takwa, given on 16 November 1998.<o:p></o:p>The judgment sought to be quashed was 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">&nbsp;“I sentence the accused to
eight years’ imprisonment with hard labour without the option of a fine. He is
also ordered to pay ¢74,195,300 to the Produce Buying Co. <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">The sentence imposed on the accused is, however, suspended for one
month and subject to the accused failure[sic](1) to pay the debt. His liability
to pay the debt shall however not be affected if the sentence is served.”<o:p></o:p>From there that court proceeded to grant bail to the applicant and
the case was adjourned from 15 October 1998 to 16 November 1998. On 16 November
1998. On 16 November 1998 it was noted that the applicant had not been able to
make any payment. A committal warrant was therefore ordered to be issued and
dated from 1 September 1998 when he was arrested.<o:p></o:p>The facts of this case which resulted in the judgment sought to be
quashed was that during the 1996-97 main cocoa season, it was detected that the
applicant, a marketing clerk of the Produce Buying Co at Asankragwa, had
entered in his returns that he supplied 400 bags of cocoa beans but same were
not delivered. The value of the bags of cocoa not delivered by him was put at
¢72,660,000. There was a failure by him to account for 1,181 pieces of cocoa
sacks, valued at ¢1,135,300 to his successor in office. He was charged with
stealing the amounts stated and at his trial, pleaded guilty to the offence and
sentenced in the manner stated above.<o:p></o:p>The ground upon which the application was made was “or want of
jurisdiction or both.” In his submissions before this court counsel for the
applicant stated that the court in sentencing the applicant did not follow the
procedure spelt out in section 147B (1) and (2) of the Criminal Procedure Code,
1960 (Act 30) as amended by the Criminal Procedure Code (Amendment) (No 2),
1964 (Act 254). It is necessary to quote the said section 147B of Act 30 (1) as
inserted by the said Act 254, which 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">“147B. (1) Where sentence is imposed for an offence involving
dishonesty and any property including money is not recovered, the court on
sentencing the offender, on its own motion or on the application of the
prosecutor or the victim of the offence, may make an order for the return by
the offender to the victim of the offence of the property not recovered and for
the payment, in default, of the value of any property not returned.”<o:p></o:p>It is settled that this section confers a discretion on the
sentencing court to make that order: see Baah v The Republic [199][sic](2) 1
GLR 483 at 487 and also Republic v Osei, High Court, Kumasi, 31 July 1967,
unreported; digested in (1969) CC 156. The effect of the above quoted section
is statutory. It is to be found in section 147B (2) of Act 30 as amended and
quoted hereunder:<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) ... shall he deemed to be an exercise of the civil
jurisdiction of the court in an action between the victim of the offence as plaintiff
and the offender as defendant and shall be enforceable in the same manner and
be subject to the like appeal as are orders for the return of chattels or
money.”<o:p></o:p>This section was interpreted in Baah v The Republic (supra) at 487
to mean that a sentencing court in making an order that the accused should
return to the victim of the offence the value of any property not returned,
cannot tack to the said order any default clause that the accused be imprisoned
for a certain period. Such an order sounds in the civil Jurisdiction of the
court and is enforceable by the ordinary methods as in a civil cause or matter.
It must be noted that in Baah v The Republic (supra) the trial court on
sentencing the appellant ordered him</main>