1.0 INTRODUCTION
The recent decision of the High Court at Amasaman, presided over by His Lordship, Justice Solomon Oppong-Twumasi, in the case of Patricia Asieduwaa v The Republic, has sparked a compelling debate about where a judge’s allegiance must lie: for the law or for appeasing public sentiment.
The concept of judicial independence holds that judges and judicial officials must administer justice without fear or favour. The adage that justice must prevail, though the heavens fall, remains the breastplate of righteousness for all judges and is usually re-echoed at all induction ceremonies for new judges. However, the true test of a judge’s resilience comes into play when deciding cases of major public interest. In such cases, most judges are usually torn between honouring their fidelity to the law and risking public backlash and appeasing the public (which may be uninformed about the evidence adduced at the trial). It is this dichotomy that I intend to comment upon in this article.
In this article, I will be discussing the concept of judicial independence and establishing that all judges in the administration of justice owe unflinching loyalty to the law and only to the law. I will also discuss the judgment of his Lordship, Justice Solomon Oppong-Twumasi, in the case of Patricia Asieduwaa v The Republic and proffer my view as to whether or not the judgment was in accordance with law as per the evidence adduced at the trial or it was wrongful in law.
I will also endeavour to make some suggestions on the investigation and prosecution of public interest cases by the Attorney General, the police, and other law enforcement agencies.
2.0 JUDICIAL INDEPENDENCE
The 1992 Constitution of Ghana has guaranteed the independence of the judiciary in very robust language. Article 125(1) provides as follows:
“Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution“[1]
The importance of safeguarding the independence of the judiciary was highlighted by Her Ladyship Bamford Addo JSC in the case of Tsikata v AG[2] (although dissenting) as follows:
“There is now a growing determination on the part of peoples of the modern state to have enshrined in their constitutional process the concept of the rule of law, or what is called in other jurisdictions “due process.” It has been realised that the only way to achieve this is to ensure the independence of the judiciary. Our founding fathers had this vision; hence “Freedom and justice” as our national motto. The independence of the judges is an essential prerequisite to the achievement of this goal. This is why the framers of our Constitution, 1992 have crystallised and given practical meaning to this vision by guaranteeing, in a very robust language, the independence of the judiciary in article 125(1) and article 127(1) of the Constitution, 1992 …”
It follows from the above dictum that in the quest of the state to live by its motto, “freedom and justice”, the institution of the Judiciary must be given the free hand to administer justice irrespective of the persons involved or the public sentiments about the case. Thus, although the Judiciary is to administer justice in the name of the Republic, this function does not require it to be a political tool for appeasing the will of the people; wherein the adage, justice must be done though the heavens may fall. This duty on judges is clearly contained in the judicial oath taken by all judges before they assume office. The oath crystallized in the 2nd Schedule of the 1992 Constitution provides as follows:
“I………………… having been appointed (Chief Justice/a Justice of the Supreme Court/Justice of the Court of Appeal/a Justice of the High Court of Justice, etc.) do (in the name of the Almighty God swear) (solemnly affirm) that I will bear true faith and allegiance to the Republic of Ghana as by law established; that I will uphold the sovereignty and integrity of the Republic of Ghana; and that I will truly and faithfully perform the function of my office without fear or favour, affection or ill-will; and that I will at all times uphold, preserve, protect and defend the constitution and laws of the Republic of Ghana. (So help me God)”
It follows, therefore, that judges are enjoined to uphold the rule of law irrespective of the people involved in cases tried or determined by them or what public sentiments might be. Members of the Judiciary, unlike their counterparts in the other coordinate arms of government, are not elected into office, and their loyalty does not lie with satisfying the wishes of the people but rather to the Constitution and the laws of Ghana. Thus, while it is therefore common for the political class to do certain things to appease or whip up the sentiments of the people, such matters have no place in the courtroom. We are, therefore, as a state, to hasten slowly lest we convert a court of law into a rally ground. This was the view of Amegatcher JSC in the case of Kwadwo Appiah vrs Kwabena Anane[3] where he stated thus,
“It is not surprising that one of the hard-hitting areas of attack by counsel for the defendant against the learned and respected judges of the Court of Appeal is that they were swayed by sentiments in reaching a decision in this matter. However, those who ply their trade as Barristers and Advocates as well as those of us who act as referees in the competing claims presented to the court know or are deemed to know that a court of law does not make decisions based on emotions, sympathy or sentiments”. (Emphasis mine)
While it is understandable that judges when faced with the tough choice as between whether to appease the people or adhere strictly to the law are most likely to toe the line of the former to avoid the public outburst, backlash and resentment that normally comes with choosing the latter, they are to remember that they are enjoined by their judicial oath to honour their unflinching loyalty to the Constitution and the laws of Ghana barring the consequences that may follow.
I therefore encourage all judges to administer justice to all manner of persons irrespective of their social status, religion, creed or whatever they stand for. They are to consider the evidence before them only in arriving at their decision, irrespective of what the public perceptions, sentiments or evidence in the public domain might be.
3.0 ROLE OF THE RECORD OF APPEAL IN THE DETERMINATION OF APPEALS
Where a trial judge has heard and determined a cause or matter, the losing party always has a right of appeal, with or without the leave of the trial court. In criminal trials, the losing party, be it the Republic or the convict, may either appeal against the conviction/acquittal, the sentence or both. In the instant case, Patricia Asieduwaa who was convicted and sentenced by the Circuit Court, Accra on a count of Charlatanic Advertisement in Newspapers and two (2) counts of defrauding by false pretences contrary to sections 137 and 131(1) of the Criminal and Other Offences Act, 1960 (Act 29) had every right under law to appeal against both her conviction and sentence to the High Court, which mantle fell on the court at Amasaman.
In appeals, albeit civil or criminal, the Registry of the court below is required by law to compile the entire proceedings and processes filed in that court. These, inclusive of the judgment and rulings of the court below, are bound together into a “book” referred to as the Record of Appeal (“ROA”). The Registrar of the court below personally transmits the ROA to the Registrar of the appellate court and thereafter notifies the parties of the transmission. The court below loses jurisdiction in the case when notice of the transmission of the Record of Appeal is served on the parties to the appeal. The appellate court is then seized with jurisdiction as regards the case. This principle of law was repeated by Kulendi JSC in the case of Republic v Court of Appeal, Cape Coast, Ex Parte James Gyakye Quayson (Michael Ankomah-Nimfah and another, interested parties)[4] where he held as follows,
“Again, the contention by the Applicant in this application that the Court of Appeal was seized with the appeal, at the time of the application, is not borne by the record before us. We have not sighted the evidence of the issuance of the Civil Form 6, which is the evidence, per Rule 21 of the Court of Appeal Rules (C.I. 19) of the transmission of the Record of Appeal. Quite strangely, the Applicant, who avers before us that the Record of Appeal had at the time of the Application to the Court of Appeal, been transmitted, failed to exhibit a copy of the Form 6 to demonstrate the veracity of the averment”.
3.1 An appeal, as often said, is by way of rehearing. The appellate court in the hearing of an appeal is to consider the evidence led at the trial court and come to its own conclusion in support or against the decision of the trial court.[5] Thus, an appellate court may affirm, vary or set aside the decision of the trial court on appeal. The caveat, however, being that the appellate court is bound by the evidence contained in the record of appeal and as adduced before the trial court. The appellate judge cannot consider extraneous matters, even if the same has come to his personal knowledge before or after the appeal is filed. The accused person, except in very exceptional circumstances, will not be permitted to call into her aid fresh evidence to prove her innocence, neither would the State be permitted to call fresh evidence to either support a conviction or disprove an acquittal. Thus, any matter outside of the ROA is deemed not to have ever happened! This principle was affirmed in the case of Vicentia Mensah v Numo Adjei Kwanko II[6] where it was held thus,
“In our adversarial system, the court and the parties are bound by the pleadings and the influence of pleadings in civil proceedings is asserted throughout the trial and appellate proceedings. Parties cannot generally introduce new matters on appeal even though a point of law apparent on the record which may not require any fresh evidence may be allowed on appeal, save for the above, appellate courts are very circumspect. It is only when from the facts on record, a legal point could be raised for the first time on undisputed facts on appeal. An appellate court will be loath to entertain such course.”
In the case of The Republic v Sosu Raphael[7], the appellant therein had been convicted by the Circuit Court, Mpraeso, for the offences of defrauding by false pretence and issue of false cheques contrary to section 131 and 313A of Act 29. He was sentenced to 15 years imprisonment. On an appeal to the High Court, his sentence was reduced to 8 years, and being dissatisfied with the decision of the High Court, the Appellant filed a further appeal to the Court of Appeal. One of the grounds of appeal filed before the Court of Appeal was that the “Appellant is suffering from a serious illness and needs urgent medical attention”. The Court of Appeal per Adjei JA (as he then was) in dismissing the said ground of appeal and upholding the long-standing rule that an appellate court is bound by the record of appeal held as follows:
“The law is that an appeal is by way of rehearing and the parties to the appeal are bound by the record of the appeal. Therefore, any information which is not part of the record of appeal cannot be admitted and discussed in the appeal. A person who seeks to introduce fresh evidence is permitted to do but must do so in accordance with law. A person who introduces any fresh or new evidence through his notice of appeal into a record of appeal shall be prevented from doing so as it will offend the long standing principle of law that an appeal is by way of rehearing and the parties are bound by the record of appeal. The fact that the Appellant is sick and needs an urgent medical attention may be a ground for bail pending an appeal but it cannot be accepted as a valid ground of appeal. The ground (c) of the appeal is not borne out from the record of appeal and it therefore contains extraneous facts which the Courts are forbidden from using same. We shall therefore dismiss ground (c) of the appeal as containing facts not borne out by the record of appeal and it is hereby dismissed”.
It thus follows that in the hearing of the appeal titled Patricia. Asieduwaa v The Republic, the learned appellate judge, His Lordship Justice Solomon Oppong-Twumasi was bound by the evidence adduced before the trial court and contained in the ROA. His duty was to examine the ROA to satisfy himself whether the conviction and sentence imposed on the appellant was in his view fair and reasonable having regards to the circumstances of the case. He was barred from relying on alleged public perception of the appellant as a notorious fraudster or even his personally experience of the appellant (assuming without admitting that he has even been defrauding by the appellant). He could also not regard evidence obtained or discovered after the conviction, supporting the prosecution or public sentiments that the accused person was a chronic fraudster.
Once again, where the evidence does not appear on the face of the ROA, same cannot be used either for or against the Appellant and neither can same be called to aid in affirming, reducing or enhancing the sentence of the appellant.
3.2 The evidence as contained in the ROA and which the appellate judge was bound to consider was that the Appellant on 7th October, 2022 published and advertised on her TV station and also in her church that she was going to share “1 billion” amongst possible attendees, particularly the financially needy at the said service, so they can do something for themselves. She had on the day of the advertisement packed bundles of money suspected to be Ghana Cedis on a table behind her, which money she represented that she was going to give away during the all-night service. According to the evidence adduced by the prosecution, based on these representations, the Appellant obtained the consent of Samuel Ampadu, PW1, and George Boateng, PW2, to part with the sum of Five Hundred and Forty Ghana Cedis (GHs 540.00) each to her. It was upon these evidence that the trial judge convicted the Appellant and sentenced her to 15 years imprisonment.[8] While I have my own doubts about the conviction, that will be a discussion for another day.
It must be stated that apart from PW1 and PW2, who testified as victims and persons defrauded by the appellant, there were three (3) other people who although filed their witnesses’ statements to testify in the case, never appeared in court and as such those charges were dismissed against the Appellant. No one else came to testify against the
Appellant contrary to public opinion and perception that the appellant was a serial fraudster and had defrauded gullible members of her church through various schemes.
Although most people argue that such persons may not be courageous enough to lodge a complainant and must have been taken into consideration in sentencing the appellant, a court of law is enjoined by the ROA to presume that those other people receive the promise allegedly made by the appellant or that they never parted with anything of value to the appellant to make her actions guilty of fraud. Thus, to quote the learned appellate judge, the appellant’s sentence meant that she was to spend one and a half years in prison for every One Hundred Cedis (GHs 100) she received from the complainants (PW1 and PW2) by way of false pretenses.
It is this evidence which I submit must be assessed in the light of the sentence handed over to the appellant by the trial court and consequently varied by the appellate court and not the sentiments or public perception of the accused person.
4.0 SENTENCING REGIME OF DEFRAUDING BY FALSE PRETENSE UNDER GHANAIAN LAW
The offence of defrauding by false pretence is provided for under section 131 of Act 29. It is established as a second-degree felony without any specific limits of punishment provided for under that law. Once an offence-creating statute creates an offence and only categorises it without indicating its specific punishment, recourse is made to the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). Section 296(5) of Act 30 provides that a person convicted under section 131 (defrauding by false pretence) shall be liable to imprisonment for a term not exceeding twenty-five (25) years. Thus, while Act 30 provides the maximum sentence for the offence of defrauding by false pretence, no minimum sentence is provided, and a judge is usually permitted to sentence the convict to any punishment provided for under law, provided such sentence does not exceed the maximum sentence of 25 years imprisonment.
The various modes of punishment provided for under our criminal jurisprudence is contained under section 294 of Act 30, which provides as follows:
“The following punishments may be inflicted for offences:
- Death; (4) Fine
- Imprisonment; (5) Payment of compensation;
- Detention; (6) Liability to police supervision”.
Since a person convicted under section 131 of Act 29 cannot be sentenced beyond 25 years imprisonment, it follows therefore that such a person may be punished by any other means
stated supra except for death or an imprisonment for a term exceeding 25 years. Thus, a judge has discretion to sentence a person convicted of defrauding under false pretence within the scale of a fine to a term of imprisonment not exceeding 25 years or to both as provided for under section 297(1) of Act 30. A judge may, depending on the circumstances of the case sentence a convict to sign a bond to be of good behaviour or may even caution and discharge the convict.
I must state that I am not oblivious of the fact that section 131 of Act 29 has subsequently been amended by section 5 of the Criminal Code (Amendment) Decree, 1969 (NLCD 398) to create two (2) types of defrauding by false pretence under section 131. The said section 5 of NLCD 398 was subsequently amended by sections 1 and 2 of the Criminal Code (Amendment) (No. 2) Decree, 1972 (NRCD 53). The two types of defrauding by false pretence under section 131 (1) and (2) of Act 29 provide thus,
“131.(1) A person who defrauds any other person by a false pretence commits a second degree felony.
(2) A person who by means of a false pretence or by personation obtains or attempts to obtain the consent of another person to part with or transfer the ownership of a thing by a false representation of acting in accordance with the instructions, orders or a request of the President or member of the Cabinet, commits a second degree felony under subsection(1) and is liable to a term of imprisonment of not less than ten years and not more than twenty-five years despite section 296 of the Criminal and Other Offences (Procedure) Act,ig6o (Act30)”
In the case of a person charged under section 131(1), the maximum sentence a court may impose is 25 years’ imprisonment, with no minimum. A person charged under section 131(2) shall be sentenced to a term of imprisonment of not less than 10 years and not more than 25 years.
It is clear from the reading of section 131(2), as produced supra, that a person convicted under that section must have represented herself as acting in accordance with the instructions, orders, or request of the President or a member of Cabinet. (Emphasis mine). It can therefore, by no stretch of the imagination, be said that the appellant in this case committed an offense under section 131(2), as she never purported to make any representation in the name of or as representing that of the President or a member of Cabinet.
It logically flows from the above that the Appellant could have only been convicted under section 131(1) of Act 29, and the punishment for the same remains a fine or a term of imprisonment not exceeding 25 years or both, all at the discretion of the trial judge.
5.0 SENTENCING OF THE APPELLANT
It is a trite learning that sentencing of a convict is at the discretion of the judge so far as it is in accordance with law.[9] Such discretion must however be exercised in accordance with Article 296 of the 1992 Constitution and must not be unreasonable, capricious or arbitrary. This exercise of discretion is usually checked by the appellate court to ensure that same was rightly exercised in accordance with law and according to the circumstances of the case. This legal position was stated by Adjei JA (as he then was) in the case of The Republic v Raphael Sosu (supra) as follows:
Appellate Courts with criminal jurisdiction are vested with powers to alter conviction, sentence or acquittal of a person and do what is right in accordance with the law depending on the facts of the case.
This power is further codified under section 30(a) (ii) and (iii) of the Courts Act, 1993 (Act 459) in the following words:
“Subject to the provisions of this Sub-Part, an appellate court may in a criminal case-
fa) on an appeal from a conviction or acquittal—
- alter the finding, maintaining the sentence or with or without altering the finding, reduce or increase the sentence; or the sentence; or
- with or without such reduction or increase and with or without altering the finding alter the nature of the sentence”
This power granted to appellate courts, without any shred of doubt, is designed to check the excesses of trial judges that may arise from their judgments leading to the imposition of excessive sentences or very lenient sentences.
5.1 Sentence imposed on the Appellant
The Appellant herein, Patricia Asieduwaa, was sentenced after the full trial of the case by the learned trial Circuit Court Judge, who sentenced her to a fine of 25 penalty units or in default 30 days imprisonment on Count 1 and 15 years imprisonment in hard labour on Counts 2 and 3, with both to run concurrently. It is this sentence that was varied by the learned Appellate Judge to the following:
- The Appellant was sentenced to 25 penalty units on count 1 or in default to a fine of three months’ imprisonment;
- The Appellant was sentenced to 12 calendar months’ imprisonment in hard labour on counts 2 and 3. The Appellant was sentenced to a further sentence of a fine of 200 penalty units on counts 2 and 3, or in default, she was to serve one year imprisonment in hard labour.
The above sentence in law meant that if the Appellant was unable to pay the fine imposed on her, then she was to serve a total of two (2) years in prison for the fraud perpetuated on the complainants. The trial judge, in the exercise of his right of restitution under section 147B of the Criminal and other Offences (Procedure) Act, 1960 (Act 30), further ordered the Appellant to refund to the complainants Five Hundred Ghana Cedis (GH$ 500) each, being the sum found by the trial court to have been received dishonestly by the Appellant.
5.2 Arguments of Proponents against the Sentence Reduction
There has been a wide public discussion of the above sentence reduction by the appellate court with many calling for the Attorney-General to file an appeal. The arguments have generally been based on the fact that the appellate judge had exercised his discretion unreasonably by handing the appellant such a lenient sentence, considering the gravity of the offences she had committed.
Many also argue that the offence of defrauding by false pretence, being a 2nd-degree felony, ought to attract a much more severe punishment than a misdemeanour. The proponents of this argue that if the maximum sentence for a misdemeanour is a term of imprisonment not exceeding three (3) years, then defrauding by false pretence must carry a sentence of at least three (3) years. They argue that it is only such a sentencing regime that would make sense of the classification of offences under our law.
And yet there are still some persons who would argue that, since the Appellant was a known fraudster, there was the need for the court to have imposed a much more severe sentence to deter her and other like-minded persons from their criminal activities. They argue that if the court has, in some cases, been sentencing people found guilty of petty offences such as stealing menial items, to very lengthy terms of imprisonment, then the sentence handed over by the appellate court to the appellant is most unfair and amounts to a travesty of justice.
It is my respectful submission that all of these arguments are unfounded and amount to a clear misconception of the sentencing regime in Ghana. I will, in the ensuing paragraphs, debunk these assertions and argue strongly that the sentence handed down by the appellate court to the appellant was fair and ought to be emulated by other courts within our jurisdiction.
5.2.1 Gravity of the offence
I, in all honesty, concede that one of the factors that would inform and operate on the mind of the court in terms of the sentencing of a convict would be the gravity of the offence. It is for these reasons that various punishments are provided under law for various offences. The punishment imposed by a court of law is not only to fit the person but also the crime, a point hammered upon by the appellate court.
Parliament, in providing the sentence for the offence of defrauding under false pretence as stated supra, provided only a maximum sentence and not a minimum. This omission, in my candid opinion, was not a result of inadvertence but was rather deliberate, to give the trial judge or magistrate a wide discretion in the sentencing of a person convicted for such an offence. The offence of defrauding under false pretence lies in the ability of a convict to make a representation or “lie” to the complainant to cause him to surrender something to the offender. Thus, no offence is committed where the complainant, despite being gullible and moved by the representations of the complainant, does not pass to the complainant anything. The law, therefore seeks to punish the convict for receiving something from the complainant in a cunning way.
The gravity of the offence of defrauding by false pretence is therefore determined by the value of the item obtained as well as the scale at which the offence was committed. It is therefore for nothing that that whenever the charge sheet of such offences is drawn, the monetary value of the item (if not money) received or stolen is usually quoted in the charge sheet in order to show of the gravity of the offence. In fact, in most countries, the punishment for fraud is usually determined by the value of the item the fraudster received. For instance, under Canadian law, fraud of over Five Thousand Canadian Dollars ($5,000) attracts a maximum fine of 14 years’ imprisonment whereas fraud below that amount attracts a sentence of not more than 2 years.
In the instant case, the total amount received by the Appellant as a result of the fraud perpetuated on the complainant was found by the trial Circuit Court judge to be one Thousand Ghana Cedis (GH$ 1,000). Apart from these persons, there was no evidence on record that the accused person defrauded anyone else. To this end, the imposition of a sentence of 15 years imprisonment in my mind is extremely harsh and excessive, and makes “a mockery of the sentencing structure of Ghana”, to quote the appellate judge. While most of the people criticising the appellate court are fixated on the drastic reduction of the sentence, I call upon us all to examine the following sentences handed down by our courts for similar offences:
- In Emmanuel Agbeko v The Republic,[10] the accused person, who was a pastor, defrauded one Mercy Adodo of the sum of 440.00 and was sentenced to five (5) years I.H.L. On appeal before the High Court, Koforidua, His Lordship Kossi Efo Kaglo J (of blessed memory) reduced the sentence to 6 months, effective from the date of his remand into prison custody. The convict had already spent six months in prison as of the date of the High Court’s judgment and was thus set free that very day.
The appellate judge in his judgment stated “…our prison cells are overcrowded, and the courts are to look for other alternative forms of punishment, particularly for offences like defrauding by false pretences rather than compounding the problem by throw (sic) offenders in such category to prison”.
- In Philip Assibit Akpeena v The Republic[11], the appellant and one Abuga Pele were convicted of the offence of defrauding under false pretence of the sum of GHC 3,330,568.53, an equivalent of $1,948,626.68. They were sentenced to a term of 12 years with a further order directed to the state to recover any property belonging to the appellant to the tune of the same amount in accordance with section 6 of the Public Property Protection Act 1977 (SMCD) 140. The Court of Appeal held this sentence to be fair, considering the quantum of money involved.
- In The Republic v Sosu Raphael (cited supra), the appellant was convicted for defrauding by false pretense in the sum of GH$ 26,330.00 and was sentenced by the Circuit Court to 15 years imprisonment. The High Court on appeal, reduced his sentence to 8 years imprisonment and made a further order for the appellant to refund the said money to the complainant. On a further appeal to the Court of Appeal, Koforidua, the sentence was reduced further to three (3) years, 6 months.
The appellant at the time of this sentence had already spent three (3) years in prison.
Apart from these examples of judgments handed over by Ghanaian courts on charges of defrauding by false pretense, we may also look at other examples abroad of Ghanaian interest. For example, Ghanaian socialite and musician Mona Faiz Montrage, known by her showbiz name Hajia4Real, was sentenced by a U.S. Federal Court to one year and one day in prison followed by three years of supervised release, for her role in Two Million United States Dollars ($2,000,000) romance fraud. According to the U.S. Department of Justice (DOJ), Montrage pleaded guilty to one count of conspiring to receive stolen money. The sentence even included an order for her to pay over one point three million United States Dollars (1,300,000.00) in restitution and forfeit Two Hundred and Sixteen Thousand, Four
Hundred and Seventy-Five United States Dollars ($ 216,475).[12] Again, one Kwaku Adoboli, a Ghanaian-born British citizen, who was indicted and found guilty of fraud in the sum of one point four billion British Pounds Sterling (GP£ 1,400,000,000), was sentenced to 7 years imprisonment, but after serving his sentence, he was stripped of his British citizenship and deported to Ghana.[13]
Having a look at all of these judgments handed over to persons convicted of defrauding by false pretense, both in Ghana and abroad, one can only conclude that the sentence imposed on the appellant by the Circuit Court judge was extremely harsh and excessive, considering the fact that the amount involved was only GH$ 1,000. Although the argument may be made that the sentence by the trial circuit court was expected to be deterrent that does not take away from the fact that the same is excessive. I agree with the appellate judge when he said that it was tantamount to killing a common mosquito with a sledgehammer. The punishment handed down by the trial circuit court judge does not fit the crime committed and the trial judge was right in reducing it to such a magnitude, particularly when the appellate court ordered her to refund the money and also fined her 200 penalty units. He should be applauded for fixing the excess of the trial circuit court judge and not condemned.
5.2.2 Second Degree Felony
I have heard, read, and watched some persons, including lawyers, argue in the media that the trial judge ought to have considered the fact that the crime committed by the Appellant was a second-degree felony and as such it was wrong for him to have punished her as if she had committed a misdemeanour. It is my respectful view that this argument is not only wrong in law but also untenable. While I concede that the classification of offences is important in law, it is my respectful view that the same applies only as regards the maximum sentence that a court may impose where the statute is silent on the sentence and whether it may be settled out of court. In fact, it has nothing to even do with the jurisdiction of the court to try an offence, particularly where there is no minimum sentence for that offence. In fact, the District Court has jurisdiction to try all offences provided it is not punishable by death, imprisonment for life, an offence declared by an enactment to be a first degree felony or an offence that carries a minimum prison sentence of two (2) years or more.[14] Thus, a District Court has jurisdiction to try an offence described as a 2nd degree felony (where no minimum sentence is provided) but cannot sentence a person convicted to a term of imprisonment exceeding two years.[15] Thus, once the punishment for the offence of defrauding by false pretense ranges from a fine to a term of imprisonment not exceeding 25 years, the District Court is amply clothed with jurisdiction to try the same and has exercised such jurisdiction in several cases. In such cases, the Court looks at the facts and imposes a sentence within the limits of its powers despite the classification of the offence as a 2nd degree felony.
Again, going by the arguments of the proponents against the sentence, all stealing offences must be punished by at least three (3) years, the same being described as a 2nd Degree felony under Act 29. That argument would mean that the District Courts cannot try the offence of stealing, as they cannot sentence a convicted person beyond two (2) years. Conversely, the bulk of cases tried by the District Court are on the offences of stealing, which, just like the offence of defrauding under false pretense carries the same sentence – a maximum prison sentence not exceeding 25 years imprisonment. It must be stated that the offence of stealing is not higher to the offence of defrauding under false pretense as they are all described as second-degree felonies. Would the Circuit Court be justified in imposing a sentence of 15 years on a person for stealing something valued at 1,000? Certainly not, the fact that it has a maximum prison sentence of 25 years notwithstanding.
I finally conclude on this argument by referencing the case of Kokomba v The State,[16]where the Supreme Court of Ghana substituted the charge and conviction of the appellant of murder to manslaughter and accordingly sentenced him to five (5) years imprisonment. It must be noted that the offence of manslaughter under section 50 of Act 29 is a first-degree felony and carries a maximum sentence of up to life imprisonment.[17] Since the law does not provide a minimum, the appellate court had the discretion to sentence the appellant from a fine to imprisonment for life. The Supreme Court chose to sentence him to five (5) years imprisonment. Are we to describe this sentence as being extremely lenient, considering the fact that the maximum sentence is life imprisonment? Once again, certainly not!
5.2.3 Comparative Excessive Punishment
Many Ghanaians have also criticised the sentence of the appellate judge as being a travesty of justice mainly because other people who have committed less severe crimes have been sentenced to lengthy prison terms. This argument on its face value would have been correct if the said sentences for the so called “less severe crimes” were accepted as proper in the face of the law.
There has been a major concern on our sentencing regime in Ghana where people who have committed minor offences, like petty stealing, etc. have been sentenced to lengthy prison terms. We all know that such sentences are wrong, particularly where our prisons are congested and there is a need for prisoners to be reformed. We all know that there is a need for judges and magistrates alike to take a second look at the harsh sentences they hand down to persons who have committed minor crimes. It is usually said in Ghana that the net of justice in Ghana only catches the smaller fishes while it let go the bigger ones – to wit, persons who commit serious crimes are let to go free while we punish those who commit minor crimes severely.
We all acknowledge the fact that there is a need for something to be done and there is a need for someone to begin the agenda to reset the status quo of sentencing in Ghana. The appellate judge in this case has shown the light and presented a clarion call on all judges and magistrates to take a second look at our sentencing. The mere fact that other persons who have committed minor crimes have been objects of such severe, harsh and excessive sentences does not mean the status quo must continue. The adage goes, two wrong does not make a right! If that excessive punishment for that minor offence was wrong, then this one cannot be right. The call for change has begun and must be applauded.
6.0 CONCLUSION
I wish to commend the appellate judge, Justice Solomon Oppong-Twumasi for standing out for justice and being courageous to speak out on harsh and excessive sentences handed down to convicts, which are not based on the evidence but simply on media and public opinion. The Court of Law is a court of justice and not the place for ventilating public sentiments.
I also wish to extend advice to our investigative agencies, particularly the police when they are investigating cases where a person is suspected of committing similar offences rather than those actually reported. Instead of the police or the Attorney General holding on to a branch and rushing to court to prosecute suspects of such kind, they may rather grant them bail or pray to the Court for them to be remanded into police custody pending investigations while they conduct thorough investigation into their activities, extending same even beyond the complaints made to them. They may even make public announcements for persons who are victims of the shenanigans of suspects to come forward to help police investigations. By so doing, the police is able to conduct serious investigations, build a strong case docket to put the suspect behind bars for a long time.
On this basis and the reasons given above, I wish to conclude by saying that I find the sentence of Patricia Asieduwaa by the appellate judge to be right and in accordance with law and I commend him for such a bold decision despite the public criticisms that he expected to flow from his Judgment.
My penny thought.
The writer, Albert Gyamfi, is a private legal practitioner and the head of chambers for Gyamfi Legal PRUC, Kumasi. He is a lecturer at the Faculty of Law, KNUST and the author of “Principles of Commercial Law in Ghana”. He holds a Master’s Degree in Business and Finance Law (with highest honours) from the George Washington University Law School, Washington D.C, United States of America.
References:
[1] See also Dexter Eddie Johnson v The Republic… , per Dotse JSC
[2] (2001-2002) 2 GLR 1
[3] (Unreported) Civil Appeal No. J4/42/2019 dated 22nd January, 2020, SC
[4] (2020) 32 gmj 32, SC
[5] See Oppong Kofi and Ors v Attibrukusu III (2011) 1 SCGLR 176; Tuakwa v Bosom (2001-2002) SCGLR 61;Ama Nimo Boatemaa v Nana Boateng (2019) 147 GMJ 130, CA
[6] (2018) 117 GMJ 76
[7] (Unreported) Suit No: H2/24/2017 dated 28th February, 2017
[8] Please see the facts as narrated by the appellate court and appearing at pages 12, 18-19 of the Judgment
[9] See Kamil v The Republic (2011) 1 SCGLR 300 at 315 where it was held per Ansah JSC that “In fact, sentencing either after conviction in a trial of first instance or, on appeal is a matter entirely within the discretion of the Judge or the appellate Court”.
[10] (Unreported) Suit No. F23/34/10 dated 10th December, 2010.
[11] (Unreported) Criminal Appeal No. H2/23/2018 dated 13th February, 2020
[12] https://www.pulse.com.gh/story/hajia4reall-tD-pay-dollar13m-tD-40-romance-scam-victims-after-release- 2025052216241336251
[13] https://www.bbc.com/news/business-45400814
[14] See s. 48(1)(b) of the Courts Act, 1993 (Act 459)
[15] See section 48(1)(a) of Act 459
[16] (1965) GLR 598
[17] See s. 296(1) of Act 30
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