ALHASSAN VRS REPUBLIC (C15/030/22) [2024] GHAHC 228 (22 January 2024)

1 | P a g e IN THE SUPERIOR COURT OF JUDICATURE, HIGH COURT OF JUSTICE COMMERCIAL DIVISION ‘’A’’ HELD AT SUNYANI ON MONDAY THE 22ND DAY OF JANUARY, 2024 BEFORE HIS LORDSHIP JUSTICE HARRY ACHEAMPONG- OPOKU ESQ FUSEINI ALHASSAN …………. APPELLANT SUIT NO. CC15/030/22 VRS: THE REPUBLIC ………….. RESPONDENT ================================================= JUDGEMENT ============================================= This is an appeal from the conviction and sentence handed down by the Circuit Court, Goaso presided by His Honour Charles A.K. Acheampong on 17th May, 2022. The Accused/Appellant was charged with the following offence; (a) Being on premises for an unlawful purpose contrary to section 155 (1) of the criminal offences Act of 1960, Act 29 (b) Mining without License contrary to section 99 (2) of minerals and mining Act of 2008 (Act 703). (c) Upon his arraignment he pleaded guilty consequently he was found guilty and convicted on his own plea and sentenced as follows; On count 1 – sentenced to serve a term of imprisonment of 6 years in hard labour. On count 2 - sentenced to pay a fine of Ghc10, 000.00 penalty units and shall serve a term of imprisonment of 15 years in hard labour. Sentence to run concurrently. 2 | P a g e Now, being aggrieved by the said conviction and sentence, the Accused/Appellant has appealed to this court on the grounds that; (a) That the sentence was too harsh against the background of the fact that the accused/Appellant is a first-time offender having brush with the law for the very first time. (b) Further grounds of Appeal shall be filed upon receipt of the record of proceeding hence on the 14th July, 2023 the learned counsel for the Accused/Appellant was granted leave to file additional grounds of appeal. Therefore, on the same day, file additional ground(s) of appeal as follows; (a) “The appellant was charged, tried and convicted under a repealed law and wrongly sentenced under the new law”. It may be prudent to reproduce here below the charges, facts of the case and the sentence entered by the trial Circuit Court, the basis for which this appeal has been launched. The charges read as follows; (a) Being on premises for unlawful purpose contrary to section 155 (1) of the criminal offences Act of 1960 (Act 29) (b) Mining without license contrary to section 99 (2) of the mineral and mining Act of 2006 (Act 703) Whereas the facts read as follows; “The complainants are policemen and security guards of Protea Ghana Security Company all attached to New Mount Ghana Company Limited Kenyasi. Accused Fuseini Alhassan is a driver and currently residing at Ntotroso on 7th May, 2022 about 2:00am whilst the complainant were on joint night patrol duty within the concessions of Newmount company they spotted accused and four others at Awunso low grade stockpile a concession of the said company, digging for gold 3 | P a g e bearing materials from a pile of boulders kept there by the company when the Accused and his colleagues saw the complainants approaching the scene, they took to their heels but, accused Fuseini Alhassan was arrested. He was later handed over to the Regional C.I.D. with the exhibits retrieved from him at the scene to wit a sack containing small quantity of gold bearing materials and a broken torch light for investigation. The Accused was cautioned and he claimed ownership of the sack and its content. The crime scene was visited. After investigation accused was charged with the offences stated on the charge sheet before the honourable court. On the record the charges were read over and explained to the Accused upon which he pleaded guilty. The court then went ahead to convict him on his own plea however, before the Accused/Appellant was convicted and sentence, he pray for mitigation by saying; “I am guilty but I plead for leniency I pray to be forgiven” BY COURT The Accused person is convicted on his own plea of guilty on both counts and sentenced as follows; “On Count 1. Accused person is sentenced to serve a term of imprisonment of 6 months in hard labour and On Count 2. Accused person is sentenced to pay a fine of 10, 000.00 penalty units and shall serve a term of imprisonment of 15 years in hard labour. Sentences to run concurrently. The sack containing the quantity of gold bearing material shall be released to the complainant forthwith. However, since the sentences were to run concurrently. The Accused/Appellant is supposed to serve the highest of them that is pay of fine of 10,000.00 penalty units and a prison term of 15 years with hard labour. It must be noted that the 4 | P a g e learned counsel for the Accused/Appellant abandoned his original ground of appeal and rather concentrated on the ground of appeal filed with the leave of this appellate court that is; “That is the Appellant was charged, tried and convicted under a repealed law and wrongly sentenced under the new law”. So in essence this ground became the sole ground of appeal which was argued by the learned counsel for the appellant. Now arguing this ground of appeal the learned counsel for the appellant in his written submission posited that the appellant was charged and tried under non- existent law that is section 99 (2) of the mineral and mining Act, Act 703 of 2006 which had been repealed by Act 995 at the Circuit Court and that after been charged and tried under non-existent law, he was also wrongly sentenced to pay a fine of 10,000.00 penalty units and also serve a term of imprisonment of 15 years with hard labour. Learned counsel further argues that the appellant ought to have been charged, tried and convicted and sentence under minerals and mining (Amendment)Act 995 of 2019 at section 99 (2). He finally submitted in this conclusion that the error committed by the trial Judge by trying and convicting the appellant under a repealed law and thereafter purported to sentence the appellant under the existing law committed a fundamental error which has occasioned a miscarriage of justice against the appellant. In a reply, the learned counsel for the Republic agreed with the submission made by the learned counsel for appellant admitting that it was wrong for the appellant to have been charged under section 99 (2) of Act 703, because at the time of the committal of the offence by the appellant, the said section 99 (2) of Act 703 has 5 | P a g e been amended by section 99 (2) (a) of the Amended minerals and mining Act of 2019, Act 995. Learned counsel for the Republic further argued in her written submission that it was wrong for the trial Circuit court to have tried and convicted appellant under section 99 (2)of Act, 703, yet punished him under section 99 (2) (a) of Act 995. Finally she submitted that by Act 703, the Circuit Court has no jurisdiction to try the appellant, since section 111 of Act, 703 which is the interpretation section of Act 703 the said section 111 defines court as follows; “Court” means the High Court hence the appellant who was charged under Act 703 should have been tried by the High Court and that the trial at the Circuit Court could have been legal if the appellant had been charged under Act 995, because section 99 (11) of Act 995, court was defined by the said section to include Circuit Court. Finally, the learned counsel for the Republic/Respondent in her written submission concluded that the appellant was charged under Act 703 but punished under Act 995 and the fact that he was tried by the Circuit Court when he should have been tried by the High Court and therefore submitted that the instant appeal should succeed. In considering the appeal I wish to say at the onset that I find merit in the both arguments by the both learned counsel in the matter in their written submissions as tenable. However, before I proceed in the matter, it must be noted that an appeal is by way of re-hearing. In essence what this means is that as an appellate court, whenever, an appeal comes up for hearing, the appellate court must consider its task as re- hearing of the case. The appellate court must put itself in place of the trial court and as in this instance and consider in detail whether the trial of the appellant conformed to settled principles of law governing trial of criminal cases. 6 | P a g e Furthermore in determining whether the trial court performed it role of hearing the matter which come up for consideration no doubt it is incumbent upon the appellate court to scrutinize and analyses the entire record of appeal in our circumstance the charge sheet, the plea of the accused, testimonies adduced, documents tendered if any and the sentence passed. Hence it is said that the appellate court must allow the appeal if it considers that the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the Judgment in question ought to be set aside on the ground of wrong decision of any question of law or fact or that on any ground there has been miscarriage of justice. In any other case the appeal must be dismissed. Now from the record of proceedings, it was clear that, the appellant committed the said offence charged on 7th May, 2022 at 2:00am, that is the offence of mining without licence. For avoidance of doubt I would like to re-echo, the said charge as follows; CHARGED SHEET COUNT TWO STATEMENT OF OFFENCE MINING WITHOUT LICENSE CONTRARY TO SECTION 99 (2) OF THE MINERALS AND THE MINING ACT, 2006 ACT 703 PARTICULARS OF OFFENCE FUSEINI ALHASSAN, age 32years, driver on 7th may, 2022 at 2:00am at Newmont Ghana Gold Limited, Kenyasi in the Ahafo Circuit and within the jurisdiction of this court, you engaged yourself in mining gold bearing materials illegally commonly known as galamsey. In fact the said section 99 (2) of Act 703 of 2006 states as follows; 7 | P a g e A person who; (a) Without a licence granted by the Minister undertakes a small scale mining operation contrary to section 1 or; “acts in contravention of provision of this act in respect of which an offence has not been specified commits an offence and is liable on summary conviction to a minimum fine of 1,000.00 (one thousand) penalty units or to imprisonment for a term not more than 3 years or to both “. Therefore since the appellant was charged under section 99 (2) of Act 703, of 2006, he ought to have been sentenced to a fine of 1000 penalty units and a prison term of 3 years and not the sentence pronounced on him by the trial circuit court. In any case section 99 (2) of Act 703, of 2006 was amended by section 99 (2) of the mining and minerals Act of 2015 (Act 900). Furthermore, it must be noted that interpretation section of Act 703 defines the court to mean the High Court. It was therefore clear that the trial circuit court has no jurisdiction to try the Appellant under Act 703. In any case Act 900 of 2015 which amended section 99 (2) of Act 703 was also amended by section 99 (2) of Act 995 of 2019. In fact at the time the appellant committed the offence the said section 99(2) of Act 703 has been amended by way of repeal by section 99 (2) of Act 995 of 2019. Section 99 (2) of Act 995 states as follows; “A person who; (a) Without a licence granted by the Minister undertake a mining operation contrary to provision of this Act. (b) Acts, or instigates, common commands, counsels procures, solicits or in any manner, purposely aids facilitates, encourages, or promoter any Acts in 8 | P a g e contravention of a provision of this Act in respect of which penalty has not been specified or (c) Provide a mining support services, commits an offence and is liable to summary conviction to a fine of not less than ten (10) Thousand penalty units and not more than fifteen (15) thousand penalty units and to term of imprisonment of not less than fifteen (15) years and not more than twenty five (25) years. From the above it was clear that although the appellant was charged under repeal law of section 99 (2) of Act 703, and when he was convicted was punished under section 99 (2) of Act 995. It is of interest to note that interpretation section of Act 995 defines court to include circuit court. Indeed it was wrong for the appellant who has been charged under Act 703, to have been punished under Act 995. However, it would have been legal if the Appellant had been charged under Act 995 which was the existing law when the appellant committed the said offence. So it was therefore clear that the appellant was charged under a repeal law. The question then is what is the legal effect of trying someone under a repeal law? Section 32 of the interpretation Act, 2009 (Act 792) provides that; “Where in an enactment it is declared that the whole or part of any other enactment is to cease to have effect, that other enactment shall be deemed to have been repealed to the extent to which it is so declared”. What this section simply means is that where an enactment, or part of it is repealed, the enactment or the part of it which has been repealed shall cease to 9 | P a g e have effect and shall cease to form part of laws of Ghana – SEE PAGE 267 OF MODERN APPROACH TO THE LAW OF INTERPRETATION IN GHANA BY PROFESSOR DENIS DOMINIC ADJEI (THE THIRD EDITION). In fact in the case of BRITISH AIRWAYS & ANOR VRS. ATTORNEY- GENERAL (1996-97) SCGLR 547 the Supreme Court held that; “A person could not be investigated tried or convicted under repealed legislation, unless the amending enactment saves the provision”. From the above the answer to the question stated supra in the preceding paragraph is that such a tried is of no legal effect and would be quashed upon appeal. Nevertheless the appellant who was unrepresented at the trial court pleaded guilty to the said repeal law, what then would be the legal effect of said guilty plea. It is a trite learning that in criminal law, the concept of plea presupposes the existent of a crime. The existence of a recognized criminal offence or charge as a condition precedent for a valid plea, for a plea cannot be made to nothing. Where the appellant pleaded guilty to a non-existent crime, a conviction based on such a plea is nullity, because it is in Ghanaian criminal jurisprudence that nothing is crime which has not been statutorily made so by parliament. This position of the law was re-echoed in Article 19 (11) of the 1992 Republic constitution of Ghana, the said Article says; “No person shall be convicted of a criminal offence, unless that offence is defined and the penalty for it is prescribed in a written law”. 10 | P a g e Obviously this position of our law has been succinctly articulated by our courts. In BAWA ALIAS ISSAHAQUE VRS THE REPUBLIC (1981-90) 2 GLR 587-59 The Court held that the accused had pleaded guilty to a non- existent law charge and therefore his conviction was improper. Also in the case of ALPHA ZABRAMA VRS THE REPUBLIC (1976)1 GLR 291-395 Taylor J. (as he then was) stated at page 299 as follows; “I am of the view that in the case where an accused person pleads guilty to a charge which does not disclose an offence known to our law the position is the same as if he had not pleaded. A plea of guilty as I understand that expression must mean an answer made by the accused person in response to a charge and the charge must contain both a statement and particulars of an offence known to the law. If the charge is invalid on the face of either because through unamended defect it is inherently bad or that it contains no allegation of an offence then a plea of guilty to it cannot be taken to be a plea to a charge”. From the record of proceedings it was clear that appellant pleaded guilty to a repeal law, which was non-existent and also not known to our laws, at the time that he committed the said offence, hence it is said that the appellant pleaded to non-existent law and therefore his plea was nullity and not recognized by law, because, the charge which he pleaded guilty did not disclose any existing law. From the above analysis of the law, the appeal is hereby upheld, the conviction of the appellant is hereby quashed and sentence of payment of fine of 10,000 penalty units and sentence of 15 years imprisonment with hard labour is hereby set aside, appellant to be released from Sunyani prison forthwith. (SGD) JUSTICE HARRY ACHEAMPONG-OPOKU (JUSTICE OF THE HIGH COURT) 11 | P a g e Cay.