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  • appeal
  • 1960-03-25
  • GLR 53-55
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Criminal law?-Failure to record conviction before sentence?-Circumstances in which such failure will vitiate the trial?-Criminal Procedure Code, Cap. 10, ss. 300 and 355.


Six men were tried by the Commissioner of Assize and Civil Pleas at Kumasi on a charge of housebreaking and stealing.One prisoner was acquitted; four were found guilty of the breaking and theft. As to the sixth accused, the learned Commissioner acquitted him on the charge of breaking. On the charge of stealing, one assessor was of opinion that [p.54] he was not guilty of stealing but guilty of receiving. The learned Commissioner himself would appear to have considered him guilty of receiving, though he did not specifically say so. His relevant words were, ?"From the highly suspicious circumstances in which he took in the exhibits . . it is quite clear that he knew the exhibits had been stolen." He was sentenced to 12 months I.H.L.Three of the five convicted persons (John Mensah, third accused; Owuta Mensah, fourth accused; Nabaguru Moshie, sixth accused) appealed to the Court of Appeal. The appeal of the third accused was allowed and that of the fourth accused dismissed. The appeal of the sixth accused (with which this report is concerned) was also allowed.


APPEALS against convictions for housebreaking and stealing by Commissioner of Assizes and Civil Pleas (Horward Christian, Esquire) at Kumasi Assizes on April 8, 1959.


Van Lare, J.A. delivered the judgment of the court. (After dealing with the appeals of the first and second appellants he continued).

The sixth accused (that is the third appellant) was sentenced without any clear finding of guilt having been recorded against him, in violation of statutory requirements. It is impossible to discover in respect of what offence he was sentenced. The charges against him were two?-housebreaking (Count 3), and stealing (Count 4). He was discharged on the housebreaking charge, for in the course of his judgment the learned Commissioner said, "There being a doubt as to the part he played with respect to count 3, the benefit of it is given him." With regard to the stealing charge, the learned Commissioner continued as follows:?-

?"Not so however with respect to count 4. From the highly suspicious circumstances in which he took in the exhibits and the manner in which he tried to secure them and himself from the police it is quite clear that he knew the exhibits had been stolen. Having once been found out, like the first accused person he affected to co-operate with the Police with the probable hope of being used as a witness for the Crown. It is interesting to note that there is a considerable degree of intimacy admitted by them between the first, second, third, fourth and sixth accused persons."

All three assessors had expressed the opinion that the sixth accused was not guilty of stealing; two, however, were of opinion that he was guilty [p.55] of the offence of receiving. The verdict in a trial with the aid of assessors is that of the judge, not that of the assessors; no question of the majority opinion of the assessors ever arises. The learned Commissioner failed to make any clear finding whether or not this appellant was guilty of stealing, nor did he ever indicate whether or not he conformed with the opinions of the two assessors that this appellant was guilty of receiving; yet he was bound to give his own judgment as required by section 300 (2) and (3) of the Criminal Procedure Code (Cap. 10) in a trial with assessors. These subsections are as follows:?-

?"300. (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."

In our view, faced with the conflicting opinions of the assessors, it was not only highly desirable, but also legally incumbent upon the learned Commissioner, to record a conviction in respect of a stated offence before passing a sentence on this appellant. This he did not do, but sentenced him to 12 months I.H.L. without having first convicted him.

In the circumstances of this case we are unable to say, in terms of section 355 (a) of the Criminal Procedure Code (Cap. 10) that this is a mere " error, omission or irregularity " in the proceedings which does not render the sentence unlawful. We are of opinion that non-compliance with the statutory requirements and the failure to convict was an omission of a vital part of the trial, and that in its absence a sentence could not lawfully be recorded or carried out. This was laid down in the case of Commissioner of Police v. Martefio and Others (9 W.A.C.A. 40).

The present case and that cited are both distinguishable from the case of Seedi v. Commissioner of Police (12 W.A.C.A. 29). In the latter case not only were the facts and circumstances different, but also the predominantly deciding factor was that there was only one charge, and a sentence was passed consistent with a finding of guilty with reference to the charge preferred. The West African Court of Appeal held that it was so abundantly clear and obvious that the trial magistrate did in fact find the prisoner guilty, and that it was quite within the bounds of possibility that he actually said so when delivering his judgment. In that case there was no written record of the judgment delivered, because it was a summary trial and the magistrate was not bound (as in a trial upon information) to give reasons for his decision.

In the present case, however, in view of the conflicting opinions of the assessors, it is difficult?-if not wholly impossible?-for anyone to discern the offence in respect of which this appellant was sentenced. We felt, therefore, that the trial of this appellant was so highly unsatisfactory as to occasion a miscarriage of justice.


<P>Appeal of first and third appellants allowed.</P> <P>Appeal of second appellant dismissed.

Plaintiff / Appellant

First and Second appellants in person. No appearance.for Third appellant (sixth accused).

Defendant / Respondent



(1)  Commissioner of Police v. Marteifio and Others 9 W.A.C.A. 40;

(2)  Seedi v. Commissioner of Police 12 W.A.C.A. 29.

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