SAMUEL OSEI BOATENG vs. THE REPUBLIC [2015]DLCA6960

Date	2015-07-22
Suit No.	SUIT NO. H2/12/15
Citation No.	[2015]DLCA6960

ADJEI J.A. – PRESIDING

SOWAH J.A.

KWOFIE J.A

SETH WIAFE DANKWA ESQ FOR THE APPELLANT

EMILY ADDO OKYIREH (CSA) FOR THE RESPONDENT

[2015]DLCA6960
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													<main id="main" class="content" style="min-height: 60rem" >SAMUEL OSEI BOATENG<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<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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</div>COUNSEL:<o:p></o:p>SETH
WIAFE DANKWA ESQ 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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EMILY ADDO OKYIREH (CSA) FOR THE
RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>ADJEI
J.A. – PRESIDING, SOWAH J.A., KWOFIE J.A<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ADJEI,
J.A. :<o:p></o:p>The
Appellant was convicted by the Circuit Court Accra on 29th February, 2008 on a
charge of Defrauding by False Presences contrary to Section 131 of the Criminal
Offences Act, 1960(Act 29).<o:p></o:p>&nbsp;The trial Regional Tribunal Chairman who sat
as an additional Circuit Judge sentenced the Appellant to ten (10) years in
prison on each count. The sentences were to run concurrently.<o:p></o:p>&nbsp;The brief facts of the case as presented by
the prosecution before the trial Circuit Court were that the Appellant styled
himself as a bodyguard of Hon. Kan Dappah and took GH¢1,000.00 and USD 2,000.00
from one Adjei Malik under the pretext of securing him European travelling
documents. The Appellant could not secure the travelling documents for the
complainant and went into hiding. The Appellant pleaded "Not Guilty" to the charge but was convicted by the trial
Judge after the trial. <o:p></o:p>Even
though the Appellant indicated that he was appealing against the conviction,
the grounds of appeal set forth by him show that he rather appealed against the
sentence which he described as being harsh and excessive.<o:p></o:p>&nbsp;This Court would raise the issue of competence
of the appeal and deal with it. It is a jurisdictional issue and goes to the
root of the appeal. From the facts of the case and information available from
the record of appeal the Appellant was arraigned before the Circuit Court
presided over by a chairman of a Regional Tribunal. The Chairman of the
Regional Tribunal heard the case as an additional Circuit Judge. The petition
of Appeal disclosed that the Regional Tribunal Chairman heard the matter in the
Circuit Court as an Additional Circuit Judge. <o:p></o:p>The
impression we gather from the petition of Appeal is that the presiding Judge
was a High Court Judge even though he sat as an additional Circuit Court Judge
and therefore an appeal against his decision must be determined by the Court of
Appeal.<o:p></o:p>&nbsp;A look at the clause 2 of the petition of
Appeal clearly demonstrates that the matter was heard by a High Court Judge and
it is this Court which is seised with the appeal. It states thus:<o:p></o:p>&nbsp;"That your Petitioner is aggrieved by the
said conviction (or order 2 of the said High Court Judge and humbly prays that
he may appeal against such conviction (or order) on the following". <o:p></o:p>It
is trite law that it is the Court that determines the forum for the appeal and
not the person who presides over the Court. The Chief Justice may sit as an additional
Circuit Court Judge or may nominate any justice of the Superior Court of
Judicature to sit as a Circuit Court. Section 41 of the Courts Act 1993 (Act
459) provides thus:<o:p></o:p>&nbsp;"Without prejudice to subsection (3) of
Section 40, the Chief Justice or a Justice of the Superior Court of judicature
nominated by the Chief Justice, may sit as a Circuit Judge".<o:p></o:p>&nbsp;The law is that it is the Court that
determines its jurisdiction and the forum for its appeal and not the person who
presided over it. The Regional Tribunal Chairman who determined the matter
which is the subject matter of this appeal did not sit as a High Court Judge or
Regional Tribunal Chairman and was bound by the jurisdiction of the Circuit
Court. The appeal from his decision is determined by the appeals regulating the
Circuit Court. <o:p></o:p>The
Criminal and Other Offences (Procedure) Act, 1960 (Act 30) makes provision for
Criminal appeals from the District Court to the High Court. It does not make
provision for appeals from Circuit Court to the High Court. Part eight of Act
30 is on appeals from the District Court to the High Court Sections 325 to 330
of Act 30 are on appeals from the District Court to the High Court.<o:p></o:p>&nbsp;Part Eight of Act 30 has its headings
"Appeals from District Courts". The law is that headings are intended
for convenience of reference only but may be used as an aid to interpretation
of the enactment. Section 15 of the Interpretation Act, 2009, Act 792 which is
about headings provides thus: <o:p></o:p>"Titles placed at the head of
beginning of a subdivision of an enactment and notes and references placed
before the beginning of a provision are intended for convenience of reference
only but may be used as an aid to construction of the enactment". <o:p></o:p>The
importance of hea</main>