FELIX UGOCHUKWU OGU vs. THE REPUBLIC [2010]DLCA7020

Date	2010-02-25
Suit No.	CIVIL APPEAL NO. H2/6/2010
Citation No.	[2010]DLCA7020

APALOO J.A. (PRESIDING)

GYAESAYOR J.A

ADDOH J.A

[2010]DLCA7020
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													<main id="main" class="content" style="min-height: 60rem" >FELIX UGOCHUKWU OGU<o:p></o:p>(APPELLANT)<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APPEAL NO. H2/6/2010&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 25TH FEBRUARY, 2010<o:p></o:p>

</div>CORAM:<o:p></o:p>APALOO J.A.
(PRESIDING), GYAESAYOR J.A, ADDOH J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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</div>ADDOH J.A <o:p></o:p>This
is an appeal for a reduction of the sentence of fifteen (15) years imposed on
the appellant. The appellant, who was tried and convicted by the Greater Accra
Regional Tribunal for the offence of possessing Narcotic Drugs without lawful
authority contrary to section 2(1) and (2) of the Narcotic Drugs (Control
Enforcement and Sanctions) Law 1990 PNDCL 236 is appealing for mitigation of
sentence. The appellant from the appeal record was arrested on 26/03/2003. He
was admitted to bail on stringent conditions which he could not fulfill. He
therefore remained on remand from that day till his conviction and sentence on
10/08/2007 i.e. a period of about four years, five months.<o:p></o:p>&nbsp;He appealed on four (4) main grounds.<o:p></o:p>&nbsp;Ground I <o:p></o:p>The sentence
imposed on the appellant was harsh in view of the circumstances surrounding the
case. <o:p></o:p>Ground
II <o:p></o:p>That
the appellant who is a first offender pleads with this Honorable Court to
trespass justice with mercy by reducing his sentence to the minimum.<o:p></o:p>&nbsp;Ground
III<o:p></o:p>&nbsp;The appellant had been in prison custody for
over four years without being granted bail and therefore pleads with the court
for the reduction to take retrospective effect from the 26/03/2003.<o:p></o:p>&nbsp;The Attorney General in reaction apposed the
application on two main grounds. She submits that the minimum sentence is ten
years, so the sentence of fifteen years is appropriate. Further that the
applicant knew he committed the offence but pleaded not guilty thus, wasting
the court’s time to fathom out the truth which took many years. She then
concluded that” the sentence of 15 years IHL befits the offence and in that
context should not be varied”. <o:p></o:p>She
however agreed that the time spent in lawful custody should be taken into
account before sentencing since it is a constitutional provision; Article 14(6)
of the 1992 constitution. She referred to and relied on the Supreme court case
of Gabriel Kwao Boso vs the Republic, dated 4th February, 2009 (Unreported). In
her conclusion, she submitted:<o:p></o:p>&nbsp;"that in the instant case before us, it
is clear from the record that the court did not make any reference to the
period the appellant had spent in custody before the trial was concluded. The
judge also makes no reference to the constitutional provision. There are also
no words express or implied to the effect that it weighed on the Judge’s mind.
It is my final submission therefore that the sentence of the appellant be
varied taking into account the amount of time the appellant had spent in
custody before the conclusion of the trial".<o:p></o:p>&nbsp;Since the learned State Attorney has detected
these flaws in the sentencing, I don’t think I have to carry coals to
Newcastle. Suffice it to say that the constitutional provision is mandatory.
Article 14(6) provides: <o:p></o:p>"Where a person is convicted and
sentenced to a term of imprisonment for an offence, any period he has spent in
lawful custody in respect of the offence before the completion of his trial
shall be taken into account in imposing the term of the imprisonment".<o:p></o:p>&nbsp;This constitutional provision enjoins Judges,
when passing sentence, to take any period spent in lawful custody before the
conclusion of the trial into account. As the learned state Attorney said, there
is no iota of evidence in the judgment that the panel took this constitutional
provision into account before sentencing the appellant.<o:p></o:p>