Panin Vrs Republic [2023] GHAHC 187 (26 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD IN CAPE COAST ON THURSDAY THE 26TH OF JULY, 2023 BEFORE HER LORDSHIP JUSTICE JOHN-MARK NUKU ALIFO “J” SUIT NO: F22/10/2018 KWABENA PANIN ------------------------- APPELLANT VS. THE REPUBLIC -------------------------- RESPONDENT APPELLANT PRESENT PHILIP M. YOUNG ESQ. FOR THE APPELLANT LUCY BOISON ESQ. (SA) FOR RESPONDENT JUDGMENT This is a criminal appeal against the judgment of the Circuit Court Cape Coast delivered by Her Worship, Eva Bannerman-Williams (as she then was) delivered on the 6th November, 2013. The appellant was charged with two (2) counts of possession of narcotic drugs without lawful authority contrary to section 2(1) of the Narcotic Drug (Control, Enforcement and Sanctions) Law,1990 (PNDCL 236) and was convicted and sentenced to serve 10 years` imprisonment on both counts, sentences to run consecutively. Page 1 of 18 The facts presented by the Prosecution in support of the charges against the appellant are as follows; The appellant is a farmer who lives at Breman Kontonsase near Breman Asikuma in Central Region. On 30-06-2011, the Police acting upon intelligence that the accused peddles in Narcotic went in to his house at Breman Kontonase, the appellant who was in his kitchen on seeing the Police bolted. The Police found 3 parcels of dried leaves and 41 wrappers of the substance suspected to be Indian Hemp. 3 months later on 29- 09-2011, the Police arrested the accused in his room after earlier attempts to do so has failed. A search in his room again led to the discovery of 6 wrappers of dried leaves in Polythene bag. The substances were sent to forensic lab for testing. It tested positive for cannabis. At the trial, the accused pleaded “Guilty” simpliciter to the charges. The trial judge convicted and sentenced the accused-appellant on his own plea to ten years imprisonment for both counts 1 and 2. Dissatisfied with the sentence, the appellant, with the leave of court granted by the High Court on 6th November, 2013, through counsel, filed a Notice of Appeal and Notice of Additional Grounds of Appeal. The following are the grounds of Appeal; 3(a)That the discretionary use of power by the Circuit Court Judge in making the sentence consecutive instead of being made concurrent was arbitrary, capricious and bias. 3(b)That the sentences of 10 years each on the count which was imposed on the appellant and made consecutive is too harsh and excessive based on the following grounds: v) That the appellate court should amend the sentences since it is out of proportion to the offences committed. Page 2 of 18 vi) That the sentences be made concurrent instead of consecutive to ensure his release from prisons within the next few years. On 28th February, 2023, leave was granted the parties to submit their written submissions and legal arguments to facilitate its effective and complete determination. ISSUES FOR DETERMINATION The petition of appeal engendered the following issues for determination gleaned from the two grounds of appeal: 1. Whether the trial judge erred when she made the sentence in counts 1 and 2 to run consecutively instead of concurrently? 2. Whether the failure of the trial judge to give reasons for imposing sentence to run consecutively occasioned a miscarriage of justice against the appellant? 3. Whether the appeal should be determined under the Narcotic Drug (Control, Enforcement and Sanctions) Law,1990 (PNDCL 236) under which the appellant was tried, convicted and sentenced or the new law, Narcotics Control Commission Act, 2020 (Act 2019)? In dealing with the grounds of appeal, this court shall deal with the grounds of appeal seriatim. 1. THE DISCRETION USE OF POWER BY THE TRIAL JUDGE IN MAKING THE SENTENCE CONSECUTIVE INSTEAD OF CONCURRENT WAS ARBITRARY, CAPRIOUS AND BIASED. In his introductory submission, Learned Counsel for the appellant stated that an appeal is by way of rehearing. He cited the case Dexter Johnson vs. The Republic Page 3 of 18 (2011) SCGLR 601 where the Court stated that, “what was meant by an appeal being by way of re-rehearing was that the appellate court had the powers to either maintain the conviction and sentence, or set it aside acquit and discharge or increase or decrease” In arguing this ground of appeal, Counsel for the appellant submitted that the various grounds of appeal together, deal with the appeal against the sentence and as such, the appeal will be argued under a general ground against the sentence. Learned Counsel argued that the appellant was charged with two counts of offences which both involve possession for narcotics albeit on different dates. Counsel indicated that anytime the narcotics was found on the appellant, it was because he was dealing with it as per the evidence of PW1 at the trial. He submitted that all the narcotics found on him was in respect of one common design or purpose or forming part of a grand design. He argued that despite the fact that the two counts referred to different dates, the appellant will be said to be possessing for his scheduled grand design be it using it or selling it. Learned Counsel cited the case of Kweku Frimpong @Iboman vs. The Republic (2012 Criminal Appeal No. J3/5/2010 18th January, 2012 to support his arguments where it held that “It has generally been accepted that if a person is convicted in respect of several counts emanating from one grand design or criminal conduct, sentence in respect of those counts, must run concurrent because the criminal act arose out of one transaction.” Counsel also cited the cases of Tetteh Asamadey Alias Osagyefo and Another vs. Commissioner of Police (1963) 2 GLR 400 and Commodore a.k.a Kaya vs. The Republic (1976) 2 GLR 471 where the court was called upon to make a determination whether the trial court was right in imposing consecutive sentences on the appellant. Counsel opined that, in this respect, the court considered the combined effect of sections 302(a) and 303(a) 303 of Act 30, the Criminal and other Offences (Procedure) Act, 1960 (Act 30) and held as follows; Page 4 of 18 “The principle might very well be re-stated that where in a trial of a person in respect of more than one count and those counts arise in respect of only one common criminal design and or purpose, forming part of a grand criminal design, sentence upon conviction in respect of the various counts must be made to run concurrently by virtue of the combined effect of section 203 (a) and 303 of the Criminal and other Offences (Procedure) Act, 1960 (Act 30)”. In summation, Learned Counsel for appellant submitted that by law and above Supreme Court authorities cited the trial judge ought to have imposed the sentence of 10 years for each count to run concurrently and that it was legally erroneous for the trial judge to have imposed the sentence to run consecutively without stating why it should be so. In her response to this ground of appeal, Counsel for the Respondent argued out only grounds 3a, 3(b) V and 3(b) VI of the Appellant`s Noice of Appeal. Ground 3a. The discretionary use of power by the trial judge in making sentences consecutive instead of concurrent was arbitrary and capricious biased. Ground 3 b. That the sentences of 10 years each on the count which were imposed on the appellant and made consecutive is too harsh and based on the following ground: Ground 3 (b) V. That the Appellant Court should amend the sentences since it is out of proportion to the offences committed, BREMPONG II vs. The Republic (1995-96) 1 GLR 350-367. Ground 3(b)VI. That the sentences be made concurrent instead of consecutive to ensure his release from prison within the next few years. Ground 3a. The discretionary use of power by the trial judge in making sentences consecutive instead of concurrent was arbitrary capricious and biased. On this ground, Counsel for Respondent argued that the trial judge`s use of discretion was not arbitrary, capricious or bias in the sentence as there was no evidence to prove Page 5 of 18 same. She submitted that the Appellant`s possession of the narcotics substances which tested positive for cannabis were found in his possession in different dates. The 41 wrappers which were found in his kitchen on 30/6/2011 were of commercial quantities. The 6 wrappers which were found in his room on 29/9/2011 were inferentially for his personal use or sale. She opined that this cannot be said to be offence done in execution of grand design as submitted by Counsel for the Appellant. Learned Counsel cited the case of Adomako vs. The Republic (1984-86) 2 GLR 766 at 768 to buttress her point. Counsel for Respondent distinguished the facts in the Adomako case (supra) from the present case, where there was one continuous transaction being part of the execution of one grand design because the offence go hand in hand. The appellant broke into the premises in order to steal the things. The offences were not committed on separate dates, they were committed in succession. She argued that the present case was in sharp contrast with the Adomako case and that in the present case two different quantities were found in possession of the Accused three (3) months apart of each other, the first 41 wrappers for commercial activity and the second 6 wrappers inferentially for appellant`s use. Ground 3 b. That the sentences of 10 years each on the count which were imposed on the appellant and made consecutive is too harsh and based on the following ground: V. That the Appellant Court should amend the sentences since it is out of proportion to the offences committed, BREMPONG II vs. The Republic (1995-96) 1 GLR 350-367. In arguing against this ground, Counsel for Respondent submitted that the trail judge was right in imposing a consecutive sentence on the Appellant and the sentence was neither harsh nor excessive. She further submitted that on the authority of Dexter Page 6 of 18 Johnson vs. The Republic (supra) as an appeal was by way of re-hearing the appellate court has the power to either maintain the 10 years consecutive sentence of the Appellant or substitute it for a concurrent sentence. Ground 3(b)VI. That the sentences be made concurrent instead of consecutive to ensure his release from prison within the next few years. On this final ground, Counsel for Respondent argued that the trail judge was justified in giving the Appellant a consecutive sentence but submitted however that, since appeal is by way of re-hearing this Appellate Court has the power to substitute the concurrent sentence of the Appellant or substitute the consecutive sentence to a concurrent sentence if it deems fit to do so. In this judgment, I shall deal with all the various grounds in the Notice of Appeal wholistically, same as argued by Counsel for Appellant in his written submission, for clarity and coherence as the various grounds deal with sentencing except the issue whether the appeal should be determined under the Narcotic Drug (Control, Enforcement and Sanctions) Law,1990 (PNDCL 236) under which the appellant was tried, convicted and sentence or the new law, Narcotics Control Commission Act, 2020 (Act 1019) which shall be addressed separately. The issue for determination in the various harmonized grounds as stated above is whether the trial judge erred when she made the sentence in counts 1 and 2 to run consecutively instead of concurrently? Indeed, it has been held that an appeal is by way of rehearing. Thus, in the case of Bakana Ltd vs Osei [2014] 77 GMJ 68 at 76, the court held that an appellate court as a rehearing court is to rehear an appeal as if the rehearing were the original hearing of the case and hence may comprehensively review the whole case by analysing the entire record of appeal, taking into account the testimonies and all the documentary evidence adduced at the trial before arriving at a decision. See also the cases of Dexter Page 7 of 18 Johnson vs. The Republic (supra), Tuakwa vs Bosom [2001-2002] SCGLR 61 and Brown vs Quashigah [2003-2004] 2 SCGLR 930 Praka vs Ketewa 1964 GLR 423 SC. Thus, this court is duty bound to refer to the record to form its own opinion of the facts, case law and relevant statutes, in this case, to determine whether the trial judge erred when she made the sentence in counts 1 and 2 to run consecutively instead of concurrently. Article 19 (11) and 296 of the constitution 1992 provide as follows; (19)No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law. (296) Where in this constitution or in any other law discretionary power is vested in any person or authority a) That discretionary power shall be deemed to imply a duty to be fair and candid; b) The exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law and c) Where the person or authority is not a Justice or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not with the provisions of this constitution or that other law to govern the exercise of the discretionary power. In the case of Victor Ocloo vs The Republic [2014] 69 G. M. J. 173, it was held that sentencing is at the discretion of the court as long as it falls within the statutory limit imposed by law. Under Article 296 of the Constitution 1992, when discretionary power is conferred on a person, he is enjoined to exercise it fairly and candidly in accordance with due process and devoid of any arbitrariness or personal dislike. See the case of Banda vs The Republic [1975] 1GLR 52, where it was held that “The exercise of the power of sentencing lay entirely within the discretion of the trial court, and Page 8 of 18 provided the sentence fell within the maximum permitted by the statute creating the offence and the trial judge duly considered those matters that go in mitigation of sentence, an appellate court should not disturb the sentence only because it would have felt disposed to impose a lighter sentence if it had tried the case at first instance”. The records show that the appellant was charged with two (2) counts of possession of narcotic drugs without lawful authority contrary to section 2(1) of the Narcotic Drug (Control, Enforcement and Sanctions) Law,1990(PNDCL 236) and was convicted and sentenced to serve 10 years` imprisonment on both counts, sentences to run consecutively. Counsel for the appellant in all his submissions argued that the appellant was charged with two counts of offences which both involve possession for narcotics albeit on different dates. Counsel indicated that anytime the narcotics was found on the appellant, it was because he was dealing with it as per the evidence of PW1 at the trial. He submitted that all the narcotics found on him was in respect of one common design or purpose or forming part of a grand design either for sale or personal use. He argued that despite the fact that the two counts referred to different dates, the appellant will be said to be possessing for his scheduled grand design be it using it or selling it. Learned Counsel cited the Iboman Case (supra) to support his arguments where it was held that “It has generally been accepted that a person is convicted in respect of several counts emanating from one grand design or criminal conduct, sentence in respect of those counts, must run concurrent because the criminal act arose out of one transaction.” The combined effect of sections 302(a) and 303(a) 303 of Act 30, the Criminal and other Offences (Procedure) Act, 1960 (Act 30) was determined in the cases of Tetteh Asamadey Alias Osagyefo and Another vs. Commissioner of Police(supra) and Commodore a.k.a Kaya vs. The Republic (supra) thus; Page 9 of 18 “The principle might very well be re-stated that where in a trial of a person in respect of more than one count and those counts arise in respect of only one common criminal design and or purpose, forming part of a grand criminal design, sentence upon conviction in respect of the various counts must be made to run concurrently by virtue of the combined effect of section 302 (a) and 303 of the Criminal and other Offences (Procedure) Act, 1960 (Act 30)”. Sections 302 (a) and 303 of the Criminal and other Offences (Procedure) Act, 1960 (Act 30) sets out clearly how punishments are to run either concurrently or consecutively. The said provisions read: 302. Several crimes, or several acts done in execution of one criminal purpose With respect to cases where one act constitutes several criminal offences or where several acts are done in execution of one criminal purpose, the following provisions shall have effect: (a) where a person does several acts against or in respect of one person or thing, each of which is a criminal offence but the whole of which acts are done in execution of the same design, and in the opinion of the Court before which that person is tried, form one continuous transaction, that person may be punished for the whole of the acts as one criminal offence, or for anyone or several of those acts as one criminal offence, and all the acts may be taken into consideration in awarding punishment, but that person is not liable to separate punishments as for several criminal offences; and (b) where a person by one act assaults, harms or kills several persons, or in any manner causes injury to several persons or things, that person is punishable only in respect of one of the persons so assaulted, harmed or killed, or of the persons or things to which injury is so caused, but in awarding punishment the Court may take into consideration all of the intended or probable consequences of the criminal offence. Page 10 of 18 303. Saving in respect of concurrent sentences (1) The Court may pass on a person convicted, at one or more trials of any two or more offences, a separate sentence in respect of which section 302 imposes certain restrictions in regard to punishment, and the separate sentences, if sentences of imprisonment, shall run concurrently and not consecutively, and, if sentences of fines, shall not operate in a manner that imposes the fines cumulatively. (2) Subsection (1) is without prejudice to section 302. In the Practice Note; (Blackie vs The State) (1962) 2 GLR 219 SC, the court held that the offences committed by the appellant in respect of which the two indictments were preferred formed a series of offences and similar character. The trial circuit judge in the instant case should have made the sentence of five years I. H. L to run concurrently with the former sentence imposed in the earlier case. Failure to do so means that the appellant would be serving two consecutive sentences of five years I. H. L totalling ten years I. H. L. This in our view is manifestly excessive and we agree with the learned senior state attorney that the sentence imposed in this case should be made to run concurrently with the sentence imposed by the trial court on the 20th November, 1961”. This Court is of the opinion that the Blackie Case supra, sits on all fours with the present appeal in the sense that though the transactions took place at separate times the offence formed a series of the same and character being possession of narcotics by the Appellant be it for sale or for his personal use and the two charges were also put into one charge sheet, the more reason why the sentence should have run concurrently. In the case of Banda vs. The Republic (1972 2 GLR 253 (holding 2) where the Court held that “Since it was a principle of sentencing that consecutive sentences should not have the effect of crushing an accused person, the total sentence of eight years Page 11 of 18 imposed on the accused was under the circumstances excessive. The sentences should therefore run concurrently”. In the case of Adomako vs. The Republic at page 768 (supra) Mensah A. G “J” held as follows: “The cumulative effect of both sections 302(a) and 303 of the Criminal Procedure Code, 1960 (Act 30), is that when acts of an accused person are done in execution of the same design and that they form one continuous transaction, then the court should make any sentences imposed on the accused run concurrently and not consecutively. In fact, section 303 of Act 30 is mandatory”. This court of the considered opinion that these acts constitute one continuous transaction and form part of the same criminal design on the following grounds: a) all the acts involve the same appellant and the substance suspected to be Indian Hemp. b) Examining the circumstances surrounding the incidents there is a link or common criminal purpose between the initial discovery of the 3 parcels and 41 wrappers and the subsequent discovery of the 6 wrappers. The facts clearly states that the Police acting upon intelligence that the accused peddles in Narcotic. The fact that the accused peddles in Narcotic constituted a clearly link between the initial discovery of the 3 parcels and 41 wrappers and the subsequent discovery of the 6 wrappers. Therefore, in the court's opinion this ground of appeal has merit, and same is allowed. In view of the fact that the trial judge should have made the two counts run concurrently, this Court will exercise its discretion to correct the sentence to allow the sentence for counts 1 and 2 run concurrently based on the facts of the case and tenets of the law. Page 12 of 18 2. Whether the failure of the trial judge to give reasons for imposing sentence to run consecutively occasioned a miscarriage of justice against the appellant? Counsel for the Appellant submitted that it is generally desirable to give reasons as he was of the view that the trial judge ought to have made the sentence run concurrent instead of consecutive. In the case of Kwashie vs The Republic (1971) 1GLR 488 CA it was held that when a trial judge is imposing a sentence on a convicted person there is no obligation on him to give reasons for the sentence that he passes. However, there are certain exceptions to the general rule where the statute requires that reasons should be given for the sentence, where the sentence is extremely high or quite close to the maximum limit and where the sentence is at the minimum or comes very close to the minimum limit, and this discloses exceptional leniency. It is the opinion of the Court that the mere fact that the trial judge did not state any reason for the sentence had not occasioned a miscarriage of justice against the Appellant because even if the judge had stated any reason for the sentence imposed on the Appellant, it would still have been of no consequence since the trial judge was constrained by law to impose the minimum of ten (10) years for each count. Justifiably, the essence or extremity or otherwise cannot be considered in this instance to warrant a reason for the sentence given. The second argument of Counsel for the Appellant on ground 3(b) against the sentencing, relates to the severity of the sentences imposed. The legal issue for determination gleaned from the arguments of Learned Counsel for the Appellant on pages 3-5 of his written submission is; whether the appeal should be determined under the Narcotic Drug (Control, Enforcement and Sanctions) Law,1990 (PNDCL 236) under which the appellant was tried, convicted and sentenced or the new law, Narcotics Control Commission Act, 2020 (Act 1019)? Page 13 of 18 Counsel for the Appellant submitted that Section 2(2) of the Narcotic Drug (Control, Enforcement and Sanctions) Law, 1990(PNDCL 236) under which the Appellant was charged provided as follows: “Any person found guilty of an offence under subsection (1) shall on conviction be liable to imprisonment for a term of not less than ten years”. He stated that the minimum the trial judge could impose for each of the offences was ten (10) years which the trial judge did. Counsel further submitted that PNDCL 236 has been repealed by Section 114 of the Narcotic Control Commission Act, 2020 (Act 1019). He stated that Act 1019 has however provided less harsh sentencing regime for possession of narcotic drug for use per Section 37(2)(a). Counsel stated that the sentence is now a fine only of not less than two hundred penalty units and not more than five hundred penalty units. Learned Counsel argued forcefully that with the repeal of PNDCL 236 the new less harsh sentencing law should be applied to the appeal. He cited the case of Obeng Gyebi vs. The Republic (Criminal Appeal No. J3/02/2021) dated 26th May, 2021. Learned Counsel for the Appellant summed up by submitting that under the new Act 1019, the conduct under counts 1 and 2 of the offence in the charge sheet will suffice for a charge under Section 37(2)(a) of Act 1019, that is, possession or control of a narcotic drug for use which will attract fine of not less than two hundred penalty units and not more than five hundred penalty units only with no imprisonment because the trial judge had found that the Appellant`s denial of any knowledge if the drug or its use was an afterthought and a contradiction of his own admission in EXHIBIT “C” being his statement to the Police, that the drug belonged to him and that it was not for sale but for his personal use. Counsel finally submitted that the sentence of 10 years imprisonment imposed for Count two of the offence be set aside by this Honourable Court and substituted with a sentence of a fine prescribed under Section 37(2)(a) of Act 1019. Page 14 of 18 Obviously, a careful perusal of the written submission of Counsel for Respondent shows that she did not address this Court on the arguments by Counsel for the Appellant on this issue. I must say that despite the very forceful and intelligent arguments put forward by Learned Counsel for the Appellant relative to this issue the Court disagrees with the submissions made in the light of the clear and unambiguous interpretation of the provisions of Section 34 (1) (d) and (e) of the Interpretation Act, 2009 (Act 792) quoted below. 34. Effect of repeal (1) Where an enactment repeals or revokes an enactment, the repeal or revocation shall not, except as in this section otherwise provided, (a) revive an enactment or a thing not in force or existing at the time at which the repeal or revocation takes effect; (b) affect the previous operation of the enactment that is repealed or revoked, or anything duly done or suffered under the enactment; (c) affect a right, a privilege, an obligation or a liability acquired, accrued or incurred under the enactment that is repealed or revoked; (d) affect an offence committed against the enactment that is repealed or revoked, or a penalty or a forfeiture or a punishment incurred in respect of that offence; or (e) affect an investigation, a legal proceeding or a remedy in respect of a right, a privilege, an obligation, a liability, a penalty, a forfeiture or a punishment; and the investigation, legal proceeding or remedy may be instituted, continued or enforced, and the penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked. Page 15 of 18 Section 34(1) (d) of the Interpretations Act 2009 as earlier quoted prescribes that a repealed law does not affect any liability, penalty or punishment that has accrued under the repealed law. The operation of section 34 (1)(d) is distinguishable by whether one has been convicted or not or whether the offence is criminal or civil. It must be noted by Counsel for Appellant that, the Appellant has been tried, convicted and sentenced by the Circuit Court for an offence committed under the repealed Act. Had the Appellant not been convicted prior to or at the time of repeal of PNDCL 236, there would have been no liability of the Appellant under same as Article 19(11) of the 1992 Constitution clearly proscribes the conviction of a person for a criminal offence unless the offence and the penalty for it is prescribed in a written law. Appellant’s liability for serving the present sentence appealed against accrued under the repealed PNDCL 236 as at the time of his conviction, PNDCL 236 was the law in force that prescribed the offence and penalty under which the Appellant was tried, convicted and accordingly sentenced. He could not benefit from the less severe punishment under Act 1019 by virtue of Section 34(1)(d). See Kojo Fiebor v. The Republic, CA Criminal Appeal No. H2/21/2010(unreported) The vulnerable Dominic Adjei (JA) in his book Modern Approach to the Law of Interpretation in Ghana, succinctly states the position of the law on Section 34(1)(d) as follows; “the law is that where an enactment is repealed, it would not affect an investigation, legal proceeding, or remedy in respect of a right, liability, punishment et cetera acquired under the repealed Act. Any investigation, legal proceedings or remedy in respect of the Act should be in accordance with the repealed law. Any penalty or punishment for a future obligation and/or liability should also be in accordance with the repealed legislation.” Page 16 of 18 Even though Counsel for Respondent did not address the Court on Counsel for Appellant’s argument on the applicability of Act 1019 in the present instances, and both Counsel did not address the Court on the matters of interpretation arising out of the third issue it is trite learning that every enactment must be construed and interpreted in light of the Interpretation Act 2009(Act 792) see the case of Republic vs. High Court (Commercial Court Division-Accra) (Ex parte Environ Solutions & 3 Others (Dannex Limited & 5 Others -Interested parties) (2019-2020) 1 SGLR 1 and the recent Supreme Court decision in the case of Edmund Addo vs. The Republic, (Criminal Appeal No. J3/04/2022) dated 31st May, 2023. CONCLUSION. Upon a careful examination and consideration of the petition of appeal, written submissions and legal arguments of the parties, the judgment of the trial circuit court appealed against in this Court, the various statutes, judicial precedents, legal principles and authorities, I hereby allow the appeal on ground 3(a) that the trial judge erred in making the sentences for counts 1 and 2 run consecutively instead of concurrently. This Court will exercise its discretion to correct the sentence to allow the sentences for counts 1 and 2 run concurrently. Ground 3 (b) of the appeal is accordingly dismissed as Appellant’s liability for serving the present sentence appealed against accrued under the repealed PNDCL 236 which was the law in force that prescribed the offence and penalty under which the Appellant was tried, convicted and accordingly sentenced. He could not benefit from the less severe punishment under Act 1019 by virtue of Section 34(1)(d) of Act 792. Page 17 of 18 The 10 years’ imprisonment for each of the two counts are to run concurrent from date of the sentence being 6th November, 2013. (SGD) JOHN-MARK NUKU ALIFO HIGH COURT JUDGE CAPE COAST Page 18 of 18