REPUBLIC v. DIRECTOR OF PRISONS; EX PARTE OHENE-DJAN

JUDGMENT OF AGYEPONG J.

The applicant herein was on 8 August 1975, convicted of manslaughter of an unknown man by the High Court, Accra, presided over by Amissah J.A. sitting as an additional High Court judge, and was on 11 August 1975, sentenced to fifteen years' imprisonment with hard labour. At the time of the present application, the applicant was serving his sentence at Ussher Fort Prison, Accra.

The applicant contends that his conviction is null and void and of no effect; consequently his sentence of imprisonment and his incarceration at the Ussher Fort are illegal, and he is therefore entitled to be released under the Habeas Corpus Act, 1964 (Act 244).

[p.398]

In support of his submission that the conviction was a nullity, Mr. Peter Adjetey, learned counsel for the applicant, on 28 June 1978 urged four main grounds: (1) that the applicant did not himself plead guilty to the offence of manslaughter; (2) that the Criminal Procedure Code, 1960 (Act 30), s. 239 (2) under which the applicant was convicted of manslaughter could not in law be invoked by the applicant at the stage the trial had reached, that is, after the close of the case of the prosecution; (3) the court ought to have acquitted the applicant first of the offence of murder before convicting him of the offence of manslaughter; and (4) once the applicant was put in charge of the jury he could not in law be acquitted or convicted except by the verdict of the jury, which was not taken in this case. Learned counsel concluded his submission by contending that the failure of the learned trial judge to comply with these rules of law or procedure amounted to want of jurisdiction.

The history of the case culminating in the conviction and sentence of the applicant is well known: The applicant, a Sunyani legal practitioner, and one Adu Yeboah, were jointly, charged with the murder of an unknown man at Sunyani. They were, however, tried at the High Court, Accra, and as previously stated, it was presided over by Amissah J.A.

On arraignment on 30 July 1975, both accused persons pleaded not guilty and the jury were empanelled for the trial. The prosecution closed its case on 6 August 1975 after calling nineteen witnesses and the case was adjourned to 7 August 1975 for the defence to open. On that adjourned date, 7 August 1975, counsel for the applicant informed the court that his client, the applicant herein, wanted to avail himself of the Criminal Procedure Code, 1960 (Act 30), s. 239 (2) by plea