GH - SARPONG v. THE REPUBLIC

JUDGMENT OF ANSAH-TWUM J.

This is an appeal against the conviction and sentence of the appellant, Emmanuel Victor Sarpong, on 30 September 1980, to a term of four years’ imprisonment by the Circuit Court, Sekondi, on a charge of fraud by false pretences, contrary to section 131 of the Criminal Code, 1960 (Act 29).

The following are the original and additional grounds of appeal respectively filed and argued in the matter:

“(a) That the judgment was erroneous in law.

(b) That from all the evidence adduced at the trial and particularly with reference to exhibit C, the trial judge should have held that the transaction between the first prosecution witness and the appellant was one of legitimate business.

Additional grounds of appeal

(1) The learned circuit judge erred in finding the accused person guilty before he opened his defence.

(2) The learned trial judge erred in that he failed properly to consider the defence of the accused.

(3) The learned trial judge erred in law when he convicted the accused person even though the prosecution failed to call relevant and material witnesses.

(4) The learned trial judge misapplied the cases referred to at the trial.”

The main submissions made by the learned counsel for the appellant are that the holding made by the trial judge at the close of the prosecution’s case and before the appellant was heard that the appellant knew that the representation he was alleged to have made was false to his knowledge, was wrong in law. Counsel cited Republic v. Accra Special Circuit Court; Ex parte Akosah [1977] 2 G.L.R. 283, and submitted that all that the trial judge ought to [p.794] have said was that a prima facie case had been made out and no more. The court ought to have waited until the appellant had been heard. Counsel also submitted that by so holding at the close of the case for prosecution and before the appellant had been heard, the trial judge disenabled himself from later considering the defence. Counsel cited in support Atinga Frafra v. The Republic [1968] G.L.R. 85 and Marhaba v. The Republic [1979] G.L.R. 90 to the effect that where essential procedure is infringed, conviction following therefrom may be quashed. Counsel submitted further citing State v. Sowah and Essel [1961] G.L.R. (Pt. II) 743 that to say at the close of prosecution’s case that the trial judge was convinced of the guilt of the appellant before he was heard, was wrong in law. Counsel also submitted that the falsity of the alleged s