Seidu Vrs. Republic (CC/12/2023) [2023] GHAHC 635 (19 October 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HO – VOLTA REGION, A. D. 2023. CORAM: CHARITY A. ASEM (MRS), J. SUIT NO. CC/12/2023 DATE: 19TH OCTOBER,2023 ISSAH SEIDU APPELLANT VRS. THE REPUBLIC RESPONDENT JUDGEMENT The appellant was charged with the offense of Unlawful Possession or Control of Narcotics Drug contrary to section 37(2b) of Narcotics Control Commission Act 2020 Act 1019. The particulars of the charge were that the convict Issah Seidu Aged 24 Driver’s mate on the 28th March 2023, had in his possession ten (10) parcels of cannabis conceded in a sack without lawful authority. On 21/3/2023 convict/appellant was put before court; The Circuit Court Jasikan presided over by His Honor Alfred Kwabena Asiedu where accused pleaded “guilty simpliciter”. The trial judge delivered judgement on the same day where he convicted appellant and sentenced him to ten (10) years in prison and a fine of 10,000 penalty and in default to serve additional three (3) years in prison making 13 years in total. It is against the above conviction and sentence that appellant appeal to this court on the grounds filed in his Notice (Petition) of Appeal dated 18/04/2023. Ground of Appeal. There is only one ground of appeal in the petition of appeal filed on the 18/04/2023 thus, (a) That the trial court erred in the law when he purportedly convicted the appellant on the appellant’s supposed plea of guilty thereby occasion a substantial miscarriage of justice. Particulars of Error of Law. a. The conviction of the appellant is contrary to Section 171 of the Criminal Act 30 under the provisions of trial in relation to criminal trials under offences (Procedure) Act 30. b. The trial judge failed to explain to the appellant the nature of the charge and the procedure which follows the acceptance of plea of guilty to the appellant who was not represented by counsel contrary to Section 199 (1) of Act 30. c. The statement of the appellant which the trial judge relied upon as the purported plea of guilty by the appellant was ambiguous, imperfect and unfinished to warrant a conviction on a purported plea of guilty by the appellant. d. The conviction by the trial court on the supposed plea of guilty by the appellant violates the appellants constitutional right to innocence under Article 19 (2) (C) of the 1992 Constitution of Ghana. The appellant therefore prays the court for an order setting aside of the conviction and sentence of the appellant and any other orders the court may deem fit. This court after hearing the appeal directed lawyers to file submissions. Submissions of Appellants Counsel. Appellant submitted through his counsel filed on the 29/08/2023. Learned counsel for appellant submitted and argued forcefully that the trial judge has breached all the fundamental laws and procedure in so far as the trial, conviction and sentence of appellant in the present case is concerned. He cited Article19 (2) (C) of the 1992 constitution – and stated that the procedure adopted by the trial judge violates the appellants constitutional right to innocence under the law. He argued further that, Section 171 of Act 30 which regulates the procedure in a plea taking summary trials such as in the instant case. Section 171(3) of Act 30 states as follows. “A plea of guilty shall be recorded as nearly as possible in the words used or if there is an admission of guilt by letter under Section 70(1), the letter shall be placed on the record and the court shall convict the accused and pass sentence or make an order against the accused unless there appears to it sufficient cause to the contrary.” The supreme court in the recent case of Gabriel Joanne Vs The Republic (Criminal Appeal No. J3/3/2011) (2012). GHASC 171 (18 April 2012 per Owusu JSC cited by counsel for appellant explained aptly the excess of Section 171 (3) of Act 30 and stated thus, “under section 171 (3) what the trial judge was legally bound to do was to have recorded the plea as nearly as possible in the words used so that if there was any explanation or words used which rendered the plea of guilty inconsistence with the words added then the court was bound to enter a plea of not guilty and proceed to try the case.” In summary trials, it behoves the trial judge to make sure that a plea of an accused person is not imperfect or unfinished and in law, a court ought not take the accused to have admitted his guilt unless he does so in unequivocal, unmistakable terms. Please see the case of Republic Vs. Bright (1974) 2 GLR page 12. The lamentation of counsel for appellant is based on what appears in Exhibit A, the record of proceedings from the Circuit Court Jasikan where appellant was put before the court for trial on the 21/03/2023. I have taken a deep study of Exhibit A. Appellant is said to have pleaded to the charge. Learned Counsel for the state filed its response to the appeal on the 17/10/2023. And in equal force urged the court to completely disregard the submission made by counsel on behalf of the appellant and maintain the conviction and sentence by the trial judge. Learned Counsel for the state recorded that appellant was charged with Possession of “Narcotic for Business” contrary to Section 38(1) and (2) of the Narcotics Control Commission Act, 2020 Act 1019 and proceeded to agreed there to. On the contrary the charge sheet attached filed before the court on the 29/6/2023 tells that appellant was charged under Section 37 (2b) of Act 1019 of 2020 for possession. I want to believe it was an oversight on the part of counsel for the state. From her submissions however the issue of “Possession for Business” was not addressed. According to learned counsel for the state the record of proceedings shows that the plea of the appellant was recorded as nearly as possible to his words used and hence there is no breach of Section 171 of Act 30. That appellant having pleaded guilty the trial court was enjoined to convict and sentence the accused on his own guilty plea unless there appears to it a sufficient cause to the contrary. The Learned State Counsel submitted further that, the record shows accused person entered the pleas of guilty voluntarily and in conformity to Article 19 (2) (C) of the 1992 Constitution of Ghana. She confirmed that the duty of the trial judge to explain the criminal trial procedure to the accused who pleads guilty is only applicable in indictable trial and not summary trials. Now from Exhibit A, I fail to see any words recorded coming from the appellant herein. The words “guilty simpliciter” recorded against the accused and with all due respect to my younger brother are not the words of the appellant. There are no proceedings recorded on Exhibit A to show that accused was taken through trial before sentence was handed down upon him. From what I make of Exhibit A, the lamentations of counsel for appellant is justified. The whole procedure is a clear breach; resulting to fundamental error by failing to comply with Section 171 of Act 30 before proceedings to convict the appellant and sentencing him to 13 years in prison. In the case of Okorie Vs. The Republic (1974) 2 GLR page 272 it was held that “Any breach of the provisions of the constitutions carries with it not only illegality, but also impropriety, arbitrariness, dictatorship, that is to say the breaking of the fundamental law of the land.” Indeed, the act of the court emanating from the record of appeal thereof is contrary to statute. Before I conclude, the procedure as I know and understand it in Narcotic Drug related offences and trial is that, when an accused is presented to the court with some exhibits (substance) suspected to be Narcotic the prosecution is directed to test the substance at Police Forensic Lab and a report made to the court which will then form basis for trial and subsequent conviction and sentence. More so, the facts attached to the charge sheet put before the court, the police did state as follows; and I state in part. “On 20/03/2023 about 7:30pm, the Jasikan Police were on their normal check duties whilst a Yutong bus with Registration No. GC-5124-Z DRIVEN BY Seidu Anas pulled up. Upon a thorough search in the vehicle, ten (10) parcels of dried leaves SUSPECTED to be Indian hemp were found conceded in the boot of the bus.” A court cannot convict a person based on suspicion. The forensic test must confirm first what is contained in the substance otherwise anyone would suffer injustice for substance that may not even be prohibited. For the above reason I do disagree completely with the learned state attorney that once accused pleaded guilty he knows he was in possession of a prohibited item. In criminal trials the prosecution is enjoined under the law to proof the guilt of the person charged with a crime beyond reasonable doubt. This court holds the firm view that the procedure adopted by the trial circuit judge sitting at Jasikan 21/03/2023 is contrary to law, leading to the breach and fundamental error by failing to comply with both Sections 171 of Act 30 and Section 19 of the 1992 Constitution of the Republic of Ghana. I will set aside the conviction and sentence handed down on the appellant on the 21/03/2023 and order a retrial. The appeal succeeds. (SGD) CHARITY A. ASEM (MRS) (JUSTICE OF THE HIGH COURT) PARTIES Appellant – Present. LEGAL REPRESENTATION SETH NYABA FOR APPELLANT. CELESTINE ARKU FOR THE REPUBLIC. 6