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MENSAH AND ANKRAH v. THE STATE


  • appeal
  • 1961-01-20
  • SUPREME COURT
  • GLR 64-68
  • Print

VAN LARE, GRANVILLE SHARP AND AKIWUMI, JJ.S.C.


Summary

Criminal procedure?-Trial with assessors?-Failure of judge to give reasoned judgment?-Duties of trial judge?-Criminal Procedure Code, Cap. 10 (1951 Rev.) s.300.

Headnotes

The appellants were tried on two counts of house-breaking and stealing. The trial judge had summed up to the assessors on the 21st January, 1960, and the assessors gave their opinion that the appellants were guilty on both counts. Thereafter the trial judge adjourned the case for judgment on three consecutive occasions. On the 26th January, 1960, the trial judge found the appellants guilty on both counts and convicted them accordingly, but gave no reasoned judgment. On appeal against conviction:

Judgement

APPEALS against convictions for house-breaking and stealing by Charles, J. sitting with assessors at Accra Assizes on the 26th January, 1960.

JUDGMENT OF VAN LARE, J.S.C.

Van-Lare J.S.C. delivered the judgment of the court. We set out the following extract from the record of proceedings in the so-called trial of the appellants before Charles, J. sitting with assessors - Messrs. Sakodee- Adoo, Witty-Quaye and Amos - at the Accra Assizes of January, 1960:

"Court sums up for 1 hour 35 minutes.

Mr. D. Sakodee-Adoo: - No. 3 Accused Guilty on 1st and 2nd counts. No. 4 Accused Guilty on 1st and 2nd counts. No. 5 Accused Not Guilty on 1st count but guilty on 2nd count of receiving. No. 6 Accused Not Guilty on 3rd count.

Mr. J. Witty-Quaye: - No. 3 Accused Guilty on 1st and 2nd counts. No. 4 Accused Guilty on 1st and 2nd counts. No. 5 Accused Not Guilty on 1st count but guilty of Receiving stolen property on 2nd count. No. 6 Accused Not Guilty on 3rd count.[p.65]

Mr. T. E. Amos: - No. 3 Accused Guilty on 1st and 2nd counts. No. 4 .Accused Guilty on 1st and 2nd counts. No. 5 Accused Not Guilty of House-breaking but guilty of receiving stolen property. No. 6 Accused Not Guilty on the 3rd count.

Judgment to be delivered on the 22nd January, 1960.

(Sgd.) M. A. Charles J.

22nd January, 1960

In the High Court of Justice, Ghana, Eastern Judicial Division. At the Assizes holden at Victoriaborg, Accra, on Friday, the 22nd day of January, 1960 before M. A. Charles, J.

REGINA

v.

1. Emmanuel Alex Thompson

2. Braima Wangara

3. Abraham Yaw Mensah

4. Stephen Quarshie Ankrah

5. Kwame Owusu alias Tailor Moshie etc.

6. Rebecca Afua Bentsil

(Contd.)

Court as before.

By Court: Judgment reserved until Monday, 25th January, 1960.

(Sgd.) M. A. Charles J.

25th January, 1960

In the High Court of Justice, Ghana, Eastern Judicial Division. At the Assizes

holden at Victoriaborg, Accra, on Monday, the 25th day of January, 1960 before

M. A. Charles, J.

Information No. 15/60

REGINA

v.

1. Emmanuel Alex Thompson

2. Braima Wangara

3. Abraham Yaw Mensah

4. Stephen Quarshie Ankrah

5. Kwame Owusu alias Tailor Moshie alias ?"99?"

6. Rebecca Afua Bentsil

(Contd.)

[p.66]

Court as before.

By Court: Judgment adjourned to Tuesday, 26th January, 1960

(Sgd.) M. A. Charles J.

26th January, 1960

In the High Court of Justice, Ghana, Eastern Judicial Division. At the Assizes holden at Victoriaborg, Accra on Tuesday, the 26th day of January, 1960 before M. A. Charles, J.

Information No. 15/60

REGINA

v.

1. Emmanuel Alex Thompson

2. Braima Wangara

3. Abraham Yaw Mensah

4. Stephen Quarshie Ankrah

5. Kwame Owusu alias Tailor Moshie alias "99"

6. Rebecca Afua Bentsil.

Nos. 3, 4 and 5 Accused found guilty on 1st and 2nd counts. Convicted accordingly.

No. 6 Accused Not Guilty on 3rd count; acquitted and discharged.

By Court: Nos. 3, 4 and 5 Accused are each asked if they have anything to say why sentence should not be passed upon them according to law.

No. 3 Accused replies:?-I have nothing to say.

I have already told the Court the truth.

No. 4 Accused replies:?-I have nothing to say.

The evidence against me was not true.

No. 5 Accused replies:?-I have nothing to say.

I am begging for leniency.

No. 3 Accused admits 3 p.cs. for stealing

No. 4 Accused admits 3 p.cs. for stealing

No. 5 Accused admits 4 p.cs. for stealing and 1 p.c. for burglary.

No. 3 Accused sentenced to 4 years I.H.L. on 1st count

No. 3 Accused sentenced to 2 years I.H.L. on 2nd count

Sentences to run concurrently.

No. 4 Accused sentenced to 4 years I.H.L. on 1st count

No. 4 Accused sentenced to 2 years I.H.L. on 2nd count . Sentences to run concurrently.

No. 5 Accused sentenced to 4 years I.H.L. each on the 1st and 2nd counts. Sentences to run concurrently and with the present sentence you are now serving.

Restitution Order made in respect of the flour.

(Sgd.) M. A. Charles J."

[p.67]

The case involving charges against the appellants of house-breaking and stealing was by no means on the facts a simple one, and the notes of the summing up do not assist us; nor could the summing up have much assisted the assessors in arriving at their several opinions.

However this may be, the glaring defect in the proceedings consists of the total, and it seems to us deliberate, disregard on the part of the trial judge of the provisions of section 300 of Cap. 10. No less than four times this court has called the attention of judges and magistrates to these provisions, and it is, to say the least, unfortunate that we should have to do so again. We earnestly hope that this may be the last time for us to repeat the section. It is as follows:

"(1) When, in a case tried with assessors, the case on both sides is closed, the Judge may sum up the evidence for the prosecution and the defence, and shall then require each of the assessors to state his opinion orally, and shall record such opinion.

(2) The Judge shall then give judgment, and in so doing shall not be bound to conform with the opinions of the assessors, but he shall record his judgment in writing and in every case such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the Judge at the time of pronouncing it.

(3) If the accused person is convicted, the Judge shall pass sentence on him according to law."

We have emphasized words that seem to us of special importance.

It will be observed from the extract from the record which we have set out that the trial judge on no less than three occasions adjourned the case "for judgment". We must assume that during the days between the 21st and the 26th January, 1960, he exercised his mind with the intention of, at some time, delivering a reasoned judgment. In the event, however, he seems to have decided that he would shirk this cardinal responsibility, because he delivered no written judgment; he did not set out the points calling for decision, state any findings or any reasons whatever either for his findings or why he accepted or rejected the opinions of the assessors; neither did he date and sign any judgment.

In this we must say that in our considered opinion the trial judge noticeably and inexcusably failed in his duty. The convictions of the appellants were therefore not in accordance with the requirements of the law and are accordingly bad.

We therefore again (and we repeat that we hope it will be for the last time) call attention to the judgments in the following cases in this court on the point - C.O.P. v. Asamoah1; R. v. Sarpong;2 R. v. Mensah and others3; and R. v. Adamu.4

Section 300 of Cap. 10 is, as we have repeatedly emphasized, mandatory in its terms. It is well founded in law on the principle that the judicial [p.68] process is well known to be to resolve the facts in issue and facts relevant to the issue and then to apply the law to the facts found. If the question "What are the facts found?" cannot be answered with precision and particularity, the judgment ought to be held to be unsatisfactory, because the judicial process has not been applied. A fortiori where the judgment is non-existent, the judicial process has been manifestly ignored as in the present case.

The appellants were entitled to be tried according to law by the judge and not by assessors. The present case seems to us to be covered by the opinion of Sir John Beaumont in the Privy Council in a case on appeal from the Supreme Court of Fiji, Joseph v. The King5 where the trial of the appellant had been on a charge of murder before a judge with the aid of assessors, and the judge having summed up to the assessors, left the appreciation of the evidence to them and accepted their unanimous conclusion of "Guilty of Manslaughter" as the verdict of a jury which bound him, instead of regarding it merely as an opinion which might help him in arriving at his own conclusion, and thereupon, without himself pronouncing a judgment as required by the Criminal Code of Fiji, in terms similar to the Criminal Code in Ghana, section 300 aforesaid, passed sentence. Of this, Sir John Beaumont in concluding the advice of their Lordships to His Majesty made the following criticism:

"The learned Chief Justice does not appear to have brought his own mind to bear on the question of the guilt or innocence of the accused. He left the appreciation of evidence to the assessors, and accepted their conclusion as the verdict of a jury which bound him, instead of regarding it merely as an opinion which might help him in arriving at his own conclusion. The appellant was entitled to be tried by the judge and he has not been so tried."6

We accept these observations with respectful approval, and apply them to the present case.

It is little to be wondered at, that, when the appeal came on for hearing before us, the learned Senior State Attorney, Mr. Amissah, frankly confessed that he was in no position to support the convictions of the appellants because there was in fact no judgment to support. We fully agreed with this and we therefore allow the appeals and order the appellants to be acquitted and discharged.

Decision

Appeals allowed.

Plaintiff / Appellant

Appellants in person.

Defendant / Respondent

A. N. E. Amissah

Referals

(1) C.O.P. v. Asamoah (1958) 3 W.A.L.R. 458, C.A.

(2) R. v. Sarpong [1959] G.L.R. 383, C.A.

(3) R. v. Mensah and others [1960] G.L.R. 53, C.A.

(4) R. v. Adamu [1960] G.L.R. 91, C.A.

(5) Joseph v. The King [1948] A.C. 215; [1948] L.J.  1246; 92 S.J. 53, P.C.

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