IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
DATE: 18TH NOVEMBER, 2015
CASE NO: D/15/112/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
The appellant herein, Tweneboa Kodua, was convicted on 16/06/2015 by the District Court, Agogo on the following charge:
STATEMENT OF OFFENCE
FRAUDULENT TRANSACTION IN LAND: CONTRARY TO SECTION 34(a) of LAND REGISTRY ACT, 1962.
PARTICULARS OF OFFENCE
TWENEBOA KODUA:FARMER AGE: 49 YEARS: For that you, during the month of April 2012 at Agogo in the Asante Akyem Magisterial District and within the jurisdiction of this court, with intent to defraud, did obtain the consent of one Solomon Antwi Bosiako to part with cash the sum of GH¢ 2, 200.00 by means of certain false pretences to wit; by falsely pretending that if the said amount is given to you, you could secure him a plot of land and upon such false representation you succeeded in obtaining the said amount from the said Solomon Antwi Bosiako which statement you knew at the time of making it to be false.
Section 34(a) of the Land Registry Act, 1960 Act 122 reads:
34. Offences for fraudulent transactions
A person who knowingly
(a) purports to make a grant of a piece of land to which that person does not have title commits the offence of a second degree felony and is liable in addition to any other punishment that may be imposed, to pay an amount of money equivalent to twice the value of the aggregate consideration received by that person.
The Appellant had pleaded guilty with explanation but, after listening to his explanation, the Magistrate entered a plea of guilty for him. For no apparent reason, the Magistrate deferred sentence and remanded him in police custody to re-appear on 18/06/2015 for sentence. Although the Appellant pleaded for mitigation, the magistrate proceeded to sentence him to 12 months imprisonment, in addition to refunding the complainant's money.
Aggrieved by the Sentence, the Appellant filed a petition of Appeal on 25/09/2015.
GROUNDS OF APPEAL
That the sentence of 12 months IHL in addition to the court's order that appellant refunds the money collected is excessive and ought to be reduced drastically.
The appellant is a first offender and pleads for drastic reduction in the sentence.
I think "ground 2" can be subsumed under "ground 1" in determining this appeal. This is because ground "2" only goes to mitigation of sentence after ground 1 has been dealt with.
The facts which led to the conviction and sentence of the appellant are simple and straight forward. In April, 2012, the appellant, a resident of Agogo, offered a piece of land for sale to the Complainant through one Mr. Amponsah. Subsequently, the Appellant collected an amount of GH¢2,200.00 from the Complainant, showed him a piece of land at Etiah and prepared a document for him. Sometime in 2014, the complainant decided to dispose of the land and hired some labourers to clear the same. The appellant's mother who claimed ownership of the land stopped the labourers. At a meeting with the appellant's family, his mother told the complainant to recover his money from the appellant on the ground that the land did not belong to the appellant. Upon a report made to the police by the complainant, the appellant was arrested and prosecuted.
That the sentence of 12 months IHL in addition to the court's order that appellant refunds the money collected is excessive and ought to be reduced drastically.
In arguing this ground of appeal, counsel for the appellant sought to bring to the notice of this court certain factors which the court below ought to have found out before passing sentence. First, he submitted that even though the appellant's mother had earlier on given the land to him, she was not happy that he had disposed of the land. Second, the appellant was unable to refund the complainant's money due to an ailment which resulted in his frequent hospitalization over a period of time.
Referring to the provisions of section 34(a) of Act 122, Counsel submitted that the operative word is 'MAY" and not "SHALL" , and, by section 27 of the Interpretation Act 1960, CA 4, the word "MAY" is to be construed as permissive. Thus, the order for restitution was not mandatory. In Counsel's view, the matter involved the appellant's family and so the court ought to have invoked the provisions of section 73 of the Court's Act 1993, Act 459; and section 64(1) of the Alternative Dispute Resolution Act 2010, Act 798 and refer the parties to a mediator for an amicable settlement. Having failed to do so, counsel is of the view that the continuous incarceration of the appellant will not help foster unity and cohesion in the family. He identified the principles of punishment, namely, (a) Retribution; (b) Deterrence; (c) Prevention, (d) Reformation (e) Rehabilitation and (f) Justice. His preferred choice is reformative justice, especially where the offender is young, and urged the court to apply these principles to the circumstances of the appellant.
In response to the submissions on the custodial sentence and the order for restitution, The Learned Assistant State Attorney for the Respondent argued that section 34(a) of Act 122 empowers a judge to impose both a custodial sentence and monetary restitution; It gives the judge room to either issue an order for restitution, and or any other punishment. And, for the appellant to argue that a refund is not mandatory under the law is unfortunate in that the complainant is the appellant's brother-in-law. Were the tables to turn, counsel is of the view that the appellant would have insisted on a refund of his money because fairness dictates so and justice frowns on unjust enrichment.
Further, on the question of sentence, she argued that the judge did not impose the maximum sentence of two years , but a twelve month sentence. Also, the court had to do a balancing act of weighing the fact that the complainant and the appellant were related by marriage as against deterring the act of family members abusing the trust of other family members in the light of the society's desire to preserve family and communal cohesion.
She did not hesitate to point out that the argument on referral to mediation or settlement is flawed by the very wording of section 73 of Act 459 because the crime in issue is a second degree felony.
Concluding, she submitted that even though the Appellant's deceit was discovered in 2014, he was prosecuted in 2015 which in the Republic's view is ample time to refund the money if the appellant was desirous of doing so. And, even though he seeks to rely on deteriorating health, that allegation is not backed by any evidence.
COURT'S DISCRETION TO REFER A CRIMINAL CASE TO ADR OR OUT OF COURT SETTLEMENT.
It is provided under the Courts Act 1993 as follows:
Section 73: Reconciliation in criminal cases
A Court with criminal jurisdiction may promote reconciliation, encourage and facilitate a settlement in an amicable manner of an offence not amounting to felony and not aggravated in degree, on payment of compensation or on any other terms approved by the Court before which the case is tried, and may, during the pendency of the negotiations for a settlement, stay the proceeding for a reasonable time and in the event of a settlement being effected shall dismiss the case and discharge the accused person.
It is also provided in the Alternative Dispute Resolution Act 2010 as follows:
Section 1 APPLICATION
This Act applies to matters other than those related to :
the national or public interest;
the enforcement and interpretation of the constitution; or
any other matter that by law cannot be settled by an alternative dispute resolution method.
Counsel for the appellant in his written submissions questioned why the trial court failed to refer the case for settlement because it is a matter between one family. And, i am wondering why counsel has raised it at the appellate court where only the sentence is being challenged. This argument seems to be out of place.
That apart, from the wording of section 34(a) of Act 122, referred to supra, the offence created therein is a second degree felony. Being a second degree felony, it is not a case that can be settled by any alternative dispute resolution method, which includes out of court settlement, within the meaning of section 73 of Act 459 and section 1 of the ADR Act, 2010.
As rightly argued by the Learned Assistant State Attorney, the trial magistrate did not have any discretion to refer the matter for settlement and this court affirms that he was right in not doing so. Thus, the arguments made by counsel for the appellant on this subject cannot hold.
THE INTERPRETATION ACT 1960, CA 4
In his attempt to attack the Magistrate's interpretation and application of the word "MAY" as used in section 34(a) of Act 122, counsel for the Appellant relied on CA 4.
With due respect to Learned Counsel, CA 4 has been repealed by the Interpretation Act, 2009 Act
Therefore, he ought to have resorted to section 42 of Act 792. However, the wording of section of Act 792 is the same as in CA 4.
SECTION 34 (a) of Act 122
The wording of that section, as quoted above, is clear and unambiguous. If one were to adopt a purpose approach to interpretation, then what the law seeks to achieve are twofold namely: (i) to punish a person who has engaged in a fraudulent transaction in land and (ii) to ensure that the victim is adequately compensated for the wrong done him or her.
Any other interpretation will lead to absurdity and defeat the true intention of the law maker. On that premise, the custodial sentence and the order for the appellant to refund the money received under the fraudulent transaction was proper in law.
As regards the length of the custodial sentence, the magistrate said per the proceedings of 16/06/2015: Accused is sentenced to 12 months imprisonment.
What is the punishment for a second degree felony? This court will be guided by the relevant provisions in the Criminal and Other offences Procedure Act, 1960 Act 30.
Section 296 of Act 30 General rules for punishment
(2) Where a criminal offence which is not an offence mentioned in subsection (5), is declared by an enactment to be a second degree felony and the punishment for that offence is not specified, a person convicted of that offence is liable to a term of imprisonment not exceeding ten years.
Section 296(5) lists offences created under various sections of the Criminal and Other Offences Act, 1960 Act 30 thus: sections 124, 128, 131, 138, 145, 151, 152, 154, 158, 165, 239, 252, 253, and 260 . In those situations, a person is liable upon conviction to a term of imprisonment not exceeding twenty-five years. Clearly, section 34(a) of Act 122 does not fall within section 296(5), but rather, it falls under section 296(2) where the maximum sentence is ten years. Also, the District court has jurisdiction to impose custodial sentence up to two years only. So, the 12 months sentence was within the legally permissible range.
In the instant appeal, one may be quick to say that if the maximum sentence fixed by law is 10 years, then 12 months is rather on the lower side. I believe this has been the argument of the Learned Assistant State Attorney.
In passing sentence, a judge is to bear in mind certain basic principles of punishment. These have been stated in Kwashie v The Republic (1971) 1 GLR 488 CA, and affirmed by the Supreme Court in Frimpong alias Iboman v The Republic (2012) 1 SCGLR 297 at 303 (holding 8) thus:
The Supreme Court would affirm the principles for imposing sentences upon a convicted person, namely, in determining the length of sentence, the factors which should be considered by the trial judge were: (1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law abiding citizens of the society for the particular crime; (3) the pre-meditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place; (5) the sudden increase in the incidence of that particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed.
The Court continued thus:
...On a complaint by an appellant as to the harshness of a sentence, he ought to appreciate that every sentence was supposed to serve a five -fold purpose, namely, to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to the country...
Having found that the 12 months custodial sentence was not bad in law, can this court interfere with the same, bearing in mind the peculiar circumstances of this case? In APALOO v THE REPUBLIC (1975) 1 GLR 156, the Court of Appeal made the following pronouncement in respect of an appeal against sentence (holding 11):
The principles upon which the court would act on an appeal against sentence were that it would not interfere with a sentence on the mere ground that if members of the court had been trying the appellant they might have passed a somewhat different sentence. The court would interfere only when it was of opinion that the sentence was manifestly excessive having regard to the circumstances of the case, or that the sentence was wrong in principle. Kwashie v. The Republic  1 G.L.R 488 at pp. 493 and 494, C.A. considered.
Also, in ASAAH alias Asi v THE REPUBLIC (1978) GLR 1, Apatu-Plange Ag. J. made very useful observations which this court will adopt. His Lord stated:
...in dealing with an appeal of this nature the court has to find out whether there were any mitigating factors which the trial magistrate took or failed to take into consideration. If the record reveals that he took all the said mitigating factors into consideration before imposing the sentence, then his discretion can be said to have been properly exercised, and in the absence of any special circumstances, an appellate court will be slow to interfere with such a sentence. If, however, the record does not reveal that the trial magistrate took any such mitigating circumstances into consideration, then the appellate court will find out whether the said mitigating factors were such that if the trial magistrate had adverted his mind to them, he would probably not have imposed the said severe sentence.(emphasis added).
In the instant appeal, the proceedings of 16/06/2015 did not reflect the factors which the magistrate took into consideration in passing sentence. More so, the appellant did not have legal representation at the court below and so it was the duty of the magistrate to ascertain the existence or otherwise of any mitigating or aggravating circumstances. The appellant had even indicated that her mother gave her the land but later revoked the gift. If a full trial had been conducted, the truth or otherwise of this assertion would have been proved. In short, the magistrate failed to consider the existence of any mitigating factors on the face of the record of proceedings of 16/06/2015.
The Learned Assistant State Attorney has urged the court not to interfere with the 12 months custodial sentence even if the appellant is a first offender because he was in a position of trust and has breached that trust. But, in my opinion, the circumstances of this appeal shows that the appellant "committed the crime out of necessity" and, being a first offender, his sentence deserves mitigation. As the Republic admits, the appellant and the complainant are related through marriage i.e. the complainant is the brother-in-law of the appellant. It is in the interest of society that such relationships are preserved in as much as the appellant deserves to be punished for his fraudulent act.
Having considered all the circumstances of this case, especially the mitigating factors raised by counsel for the appellant, i will allow the appeal against sentence. I hereby set aside the 12 months sentence. I sentence the appellant to six months imprisonment with hard labour. The order for refund of the sum of GH¢2,200.00 to the complainant is affirmed.
Appeal against sentence allowed.