NYARKO vs. THE REPUBLIC [2000]DLHC503

Date	2000-12-18
Suit No.
Citation No.	[2000]DLHC503

KANYOKE J

D AKENTEN FOR THE APPELLANT

AGBOLOSU CHIEF STATE ATTORNEY FOR THE REPUBLIC

[2000]DLHC503
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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">NYARKO<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, KUMASI]<o:p></o:p>[1999-2000] 2 GLR 252<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: 18
DECEMBER 2000<o:p></o:p>

</div>COUNSEL:<o:p></o:p>D AKENTEN 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">

AGBOLOSU CHIEF STATE ATTORNEY
FOR THE REPUBLIC<o:p></o:p>

</div>JUDGEMENT<o:p></o:p>Kanyoke J. <o:p></o:p>The appellant was on 17 October 2000 arraigned before the Circuit
Court, Tepa on a charge of stealing, contrary to section 124(1) of the Criminal
Code, 1960 (Act 29). When the charge was read and explained to the appellant,
he pleaded guilty simpliciter to the offence. After the prosecutor had given
the facts of the case, the trial circuit judge straightaway sentenced the
appellant to twelve months Imprisonment with hard labour without first
recording a conviction of the appellant. The appellant has now appealed against
the judgment of the trial court on three grounds, namely: (1) that the judgment
or verdict is unreasonable and cannot be supported having regard to the
evidence on record; (2) the trial circuit court judge erred in law when he
sentenced the accused to a term of twelve months imprisonment with hard labour
without convicting the accused of any offence, which said sentence has
occasioned substantial miscarriage of justice to the accused; and (3) the lack
of conviction constitutes an error on the face of the record the benefit of which
should ensure to the accused. Even though it was indicated in the notice of
appeal that additional grounds may be filed on receipt of a copy of the record
proceedings, no such additional grounds of appeal have since been filed.<o:p></o:p>In his submissions, learned counsel for the appellant contended
first that where a statute has prescribed a mode of doing something, it will be
a fundamental breach of that statute if that mode is not followed. He referred
to section 171(2) of the Criminal Procedure Code, 1960 (Act 30) and said that
the section provides that where an accused person pleads guilty to an offence,
he must first of all be convicted of that offence before a sentence can be
lawfully passed on him. According to counsel, since in this case the trial
circuit court judge failed to record a conviction, he had breached a statutory
provision and as such his verdict was unreasonable and could not be supported.
Secondly, counsel for the appellant submitted that the failure of the trial
circuit court judge to convict the appellant constituted an error of law, so
his verdict could have been quashed by certiorari proceedings because his
failure to record a conviction constituted an error of law on the face of the
record. When I drew learned counsel for the appellant’s attention to section
31(2) of the Courts Act, 1993 (Act 459), he contended that the failure of the
trail circuit court judge to convict the appellant in this case constituted a
fundamental error of law and not a technical or procedural irregularity or error;
and that since the appellant has been in prison custody since the date of the
verdict, his incarceration has occasioned a substantial miscarriage of justice
and consequently that section 31(2) of Act 459 is inapplicable in the
circumstances of this case. Even though the learned chief state attorney was
notified of the hearing date, he did not turn up to counterargue the appeal.<o:p></o:p>The relevant facts given by the prosecution in support of the
charge of stealing against the appellant were that the complainant was a farmer
living at Asafo Asin, near Mamfo. The appellant is also a farmer living at the
same village. On the 14 October 2000 the complainant visited his farm and
detected that a thief or thieves had harvested twelve bunches of plantain from
his farm. He made his own enquiries and founds four of his bunches of plantain
together with six other bunches of the plantain with one Daavi, a plantain
seller. Upon confrontation, Daavi mentioned the appellant as the person who
sold the four bunches of plantain to her. The complainant made a report to the
village unit committee and the appellant was arrested; and during
interrogations the appellant admitted the offence. The appellant was handed
over to the police who charged him with the offence after further investigations.
Immediately after these facts were given by the prosecutor the trial circuit
court judge made this record:<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: Accused sentenced to twelve months’ Imprisonment with
hard labour. The twelve bunches of plantain are to be returned to complainant. <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">Sgd <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">HA Kwofie <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">Circuit Court Judge <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">