OJO AND ANOTHER vs. THE REPUBLIC [1999]DLCA504

Date	1999-02-18
Suit No.
Citation No.	[1999]DLCA504

WOOD JA

BROBBEY JA

BENIN JA

DANKWA WIAFE FOR THE APPELLANTS.

J C AMONOO-MONNEY DIRECTOR OF THE PROSECUTIONS (WITH HIM MRS ACQUAH STATE ATTORNEY) FOR THE REPUBLIC.

[1999]DLCA504
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">OJO AND ANOTHER<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">THE REPUBLIC<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1999-2000] 1 GLR 169<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">DATE: 18
FEBRUARY 1999<o:p></o:p>

</div>COUNSEL:<o:p></o:p>DANKWA WIAFE FOR THE APPELLANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

J C AMONOO-MONNEY DIRECTOR OF
THE PROSECUTIONS (WITH HIM MRS ACQUAH, STATE ATTORNEY) FOR THE REPUBLIC.<o:p></o:p>

</div>JUDGMENT OF BENIN JA<o:p></o:p>Benin JA delivered the first judgment at the invitation of Wood JA. The
appellants were among four persons who were arraigned before the erstwhile
National Public Tribunal in connection with narcotic drug offences. They were
found guilty, convicted and sentenced to the mandatory minimum sentence of ten
year’s imprisonment. That was on 6 July 1993. On 8 December 1997 this court,
differently constituted, granted the appellant’s application for extension of
time within which to appeal. Pursuant to the said order the appellants filed
their notice of appeal raising just one legal ground which reads: “That the
tribunal erred in law in failing to take into account article 14 (6) of the
Constitution, 1992 of the Republic of Ghana”.<o:p></o:p>Article 14 (6) of the Constitution, 1992 provides:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(6) Where a person is convicted and sentenced to a term of
imprisonment for an offence, any period he has spent in lawful custody in
respect of that offence before the completion of his trial shall be taken into
account in imposing the term of imprisonment.”<o:p></o:p>It is the contention of counsel for the applLants that if this
constitutional provision had been taken into account, the sentence imposed
would have begun to run from the date they were first taken into lawful
custody, which in their case was 14 February 1991. And the trial court must say
that it has taken this constitutional provision into account in imposing the
sentence.<o:p></o:p>Counsel for the Republic, however, argued that by section 315(2)
of the Criminal Procedure Code, 1960 (Act 30) the court cannot impose a
retroactive sentence. And in respect of the narcotic offence with which the
appellants were charged, the minimum sentence is ten years, so the trial court
had no discretion in the matter other than to impose a minimum sentence of ten
years from the date of their conviction. So that all that this court can do is
to affirm the sentence which was not illegal.<o:p></o:p>Section 315(2) of Act 30 provides: “A sentence of imprisonment
shall commence on and include the whole of the day on which it is pronounced.”
Clearly, this provision does not entitle a court to back-date a sentence. Thus
a court cannot impose a sentence today and say it should take effect from
yesterday. Article 14 (6) of the Constitution only enjoins a court before
sentencing a convicted person to take into account the period he has spent in
lawful custody. So that if the court is mindful to impose six months and the
convict has spent two months in lawful custody, the court has to impose four
months to start from the date of the conviction. The court is not entitled to
impose six months and then say it should start from the date the convict was
taken into lawful custody, ie two months back.<o:p></o:p>Indeed, provisions similar to section 315 (2) of Act 30 and
article 14(6) of the Constitution, 1992 existed in the English Criminal Justice
Act of 1967. Hence in R v Gilbert (Arthur Ernest) (1974) 60 Cr App R 220, CA it
was held that the expression that a sentence takes effect from the beginning of
the day on which it is imposed unless the court otherwise directs did not allow
the court to ante-date a sentence. It may be observed that under the English
provision the court could otherwise direct when the sentence should start, yet
it was held that it did not include ante-dating it; the court may direct the
sentence to begin on a later day.<o:p></o:p>The relevant provisions under the English Act are as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“67. (1) The length of any sentence of imprisonment imposed on an
offender by a court shall be treated as reduced by any relevant period. And
‘any relevant period’ is defined as follows: <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">67(1) (A)— (a) any period during which the offender was in police
detention in connection with the offence for which the sentence was passed, or <o:p></o:p></sp</main>