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November 19, 1976
HIGH COURT
GHANA
CORAM
JUDGMENT OF ANDOH J.
This appeal raises certain legal points of great general importance namely:
(1) Whether a High Court judge has the power to dismiss a criminal appeal in chambers by reference only to the petition of appeal.
(2) Whether the High Court differently constituted may hear the appeal when the registrar lists the case at a time when the record of proceedings has been transmitted to the High Court registry.
(3) Whether the dismissal of a criminal appeal is an administrative or judicial function warranting the absence or presence of the appellant.
(4) The effect of such a dismissal when the appeal is not ripe for hearing in the sense that the record of proceedings called for by the registrar of the appellate court from the lower court had not been received by the Registrar of the High Court.
The facts in this case are as follows: The appellant was charged on two counts jointly with another person with conspiracy to steal and stealing. The appellant pleaded not guilty to both counts and so did his alleged confederate who was at the end of the trial acquitted on both counts. In fact the appellant pleaded alibi and contended that the charges were maliciously mounted against him by the police. The judgment of the court below in this hotly contested case was as follows:
"Per Curiam:
A2 is acquitted and discharged on both counts. Al is guilty on the two counts of stealing. The accused is an incorrigible rogue and I suspect him of having a prison sentence before and the accused has virtually served four months’ imprisonment. I have no alternative due to his antecedents to sentence him to three years' imprisonment with hard labour.
(Sgd) F. A. Haizel
District Court Grade II
10 October 1973."
It would be seen from the judgment that the accused, was found guilty on two counts of stealing whereas he was charged with conspiracy to steal and stealing. Again it would be seen from the judgment that A2 was acquitted and discharged on both counts. Al could not therefore be convicted on both counts. If A2 was acquitted and discharged on both counts then at least Al alone could not have been convicted of conspiracy as well. At least he should have been acquitted on the conspiracy count. There was no evidence that the accused had any previous conviction nor that he was an "incorrigible rogue." A magistrate grade II has no power to impose a sentence of three years' imprisonment with hard labour. The magistrate did not even direct that the sentences on th
AI Generated Summary
Andoh J. considered an appeal arising from a District Court Grade II conviction of A1, who was tried jointly with A2 on conspiracy to steal and stealing. Though A2 was acquitted, the magistrate convicted A1, labelled him an incorrigible rogue, and imposed three years’ imprisonment with hard labour without giving reasons and without ordering concurrency—measures beyond the jurisdiction of a Grade II magistrate. Before the record reached the High Court, a High Court judge, in chambers and without notice, dismissed the appeal by reading the petition alone and did not communicate the result to the appellant. Andoh J. held that this disposal was a nullity: the appeal was not ripe, the appellant was denied a hearing, and natural justice was breached. Citing authority, he heard the appeal on its merits, found the trial judgment fundamentally defective—including the improper conspiracy conviction and statutory non-compliance—and quashed the conviction and sentence, acquitting and discharging the appellant.