MATHIAS ASHABI vs. THE REPUBLIC [2014]DLCA4802

Date	2014-10-21
Suit No.	Suit No: H2/11/2015
Citation No.	[2014]DLCA4802

ADJEI J.A (PRESIDING)

LOVELACE-JOHNSON

J.A.

SOWAH J.A.

MR. J. K. YEBOAH (ESQ.) FOR THE APPELLANT

MRS. EMILY OKYERE (CSA) FOR THE RESPONDENT

[2014]DLCA4802
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													<main id="main" class="content" style="min-height: 60rem" >MATHIAS ASHABI<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, KOFORIDUA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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Suit No: H2/11/2015&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; &nbsp; &nbsp;DATE: October 21, 2014<o:p></o:p>

MRS.
EMILY OKYERE (CSA) FOR THE RESPONDENT <o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>SOWAH J.A.<o:p></o:p>The
appellant was convicted by the Circuit Court (Akropong) on 6th October 2011 for
“Being in possession of Narcotic drugs contrary to section 2(1)(2) of PNDCL 236
of Act 1990” and&nbsp; sentenced on his own
plea of guilty to 15 years imprisonment. He appealed his conviction and
sentence to the High Court, Koforidua which on 2nd May 2012 dismissed the
appeal and rather enhanced the sentence from 15 years to 25 years IHL. <o:p></o:p>Being
aggrieved with the decision contained in the judgment of the High Court
Koforidua, sitting as an appellate court, the appellant has pursuant to leave
granted filed this appeal to this court with the following as grounds of
appeal:<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The appellate High Court failed to
consider the ground of appeal of the appellant that the appellant did not
appreciate the nature and quality of his plea of guilty by holding that
appellant pleaded guilty simplicity when the charge was read to him.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The appellant High Court erred in law
when it held that the procedure at the Circuit Court was a summary one and
appellant pleaded guilty without adding any words there was no need for the
trial Circuit Court to record anything.<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The appellate High Court misdirected
itself when it relied on the facts of the case as if the facts were evidence
put before the court.<o:p></o:p>d.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The appellate High Court relied on
matters that were not relevant to enhance the sentence of the appellant from 15
years IHL to 25 years IHL.<o:p></o:p>e.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The enhanced sentence is excessive and
harsh having regard to the circumstances of the whole case.<o:p></o:p>The
judgment appealed is at pages 31 to 36 of the Record of Appeal. <o:p></o:p>Arguing
grounds 1 and 2 of the appeal together, the appellants’ lawyer contends that
contrary to the statement in the judgment appealed that the charge had been
read and explained to the appellant whereupon he pleaded guilty simpliciter,
nowhere in the record of the trial court does it show that the charge sheet was
read and explained to the appellant before he pleaded guilty.<o:p></o:p>The
proceedings at the Circuit Court are at pages 4 and 5 of the Record. At page 4
line 14 is the cryptic statement “CRE in Ewe and Twi”. This court will take
judicial notice of the fact that the courts in this country have developed
accepted abbreviations of commonly used phrases in writing court notes because
of the large volume of cases judges and magistrates have to hear and record by
hand every day. Thus “CRE” is commonly recognized as the abbreviation for
“Charge Read and Explained”. <o:p></o:p>The
record of the trial court is also clear that two persons were arraigned that
day, that is, the appellant and the 3rd accused.&nbsp; The 2nd accused had absconded. The appellant
was charged on one count with Possession and A3 on a separate count with
Abetment. Thus “CRE in Ewe and Twi” could only mean that the charge was
explained to the appellant who was the 1st accused in Ewe and explained to the
3rd accused in Twi.<o:p></o:p>The
appellate High Court was therefore right in its conclusion that the charge had
been read and explained to the appellant in Ewe and he had pleaded guilty
simpliciter without adding any words which would have suggested that he had an
explanation as to how he came by the drugs.<o:p></o:p>Relying
on the following cases: Atinga Frafra vs. Republic [1968] GLR 85, Darkuruku vs.
Republic [1989-90] 1 GLR 308, and the minority decision in Gabriel Joanne vs.
Republic [2012] 1 SCGLR 560, appellants' counsel further submits that as the
record only shows that the appellants’ plea was taken and nothing more, it is
questionable whether the appellant had understood or appreciated the nature and
quality of the plea of guilty.<o:p></o:p>The
facts of Atinga Frafra vs. Republic were that on the appellants own plea of
guilty, he had been convicted and sentenced without the magistrate enquiring
into the facts of the case from the prosecution. The appellate High Court held
that the trial magistrate had thereby disabled himself from exercising his
powers not to convict if he found sufficient cause. <o:p></o:p>