ATSU KALEVOR vs THE REPUBLIC
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT
    HO - A.D 2019
ATSU KALEVOR - (Plaintiff)
THE REPUBLIC -(Defendant)

DATE:  15 TH NOVEMBER, 2018
SUIT NO:  F22 /15/ 2019
JUDGES:  MATHEW KYEREMANTENG JUSTICE OF THE HIGH COURT
LAWYERS:  GODWIN T. K. T. KPOBLE FOR APPELLANT
FREDA AMEKE FOR THE REPUBLIC
JUDGMENT

 

The Appellant appeared before the Circuit Court, Keta on 9th October, 2018 charged with the following offences:

Careless and Inconsiderate driving contrary to Section 3 of RTA 2004 Act 653 as Amended by Act 761/2008.

Negligently Causing Harm contrary to Section 72 of Act 29/60

The particulars of offences were that the Appellant on 12th October, 2018 at about 3:30 p.m. at Darkordzi on the Savietula-Anyinu motor road being the driver in charge of Opel Astra Taxi GT 4351 - S did fail to exercise due care and attention on the road to other road users.

 

He was further alleged to have negligently knocked down one Ahiaku Whoknows who sustained injuries resulting to his death. After the charge have been read to him, he pleaded guilty with explanation on all the two (2) counts.

The Court permitted him to give his explanation.

The Appellant's explanation was as follows:

“It is as presented by the Prosecution. It is unfortunate. This is because the victim swerved unnoticed from unseen side of the vehicle. I tried my best to save him. That was how come I even ran into the house in the process”.

After listening to his explanation the trial Circuit Judge stated as follows:

"Accused's explanation by necessary implication amounts to admission of the charges preferred against him. The accused in the circumstances is found guilty and convicted on both counts. Sentence is deferred and Accused is admitted to bail in the sum of GH¢10,000.00 with two (2) sureties”.

 

On 10th October, 2018, the Court sentenced the Appellant to 36 months I. H. L. on each count to run concurrently.

It is against the conviction and sentence that the Appellant petitioned this Court on 22nd October, 2018 for a review.

The grounds of appeal are as follows:

a.    That the Court erred in not entering a plea of not guilty for the Appellant in view of the explanation.

b.    The Appellant did not understand and appreciate the plea he took.

c.    The full trial ought to have been conducted due to the nature and circumstances of the case.

d.    That the sentence was harsh and severe.

 

GROUNDS OF APPEAL

THE COURT ERRED IN NOT ENTERING A PLEA OF NOT GUILTY FOR THE APPELLANT IN VIEW OF THE EXPLANATION

Appellant Counsel submitted that the explanation proffered by his client on 9th October, 2018 was inconsistent with the guilty plea and a plea of not Guilty ought to have been entered by the Court. He further contended that failing to do that has occasioned miscarriage of justice to the Appellant. He argued that a plea to a charge should be clear and unambiguous. Therefore, when the Appellant added words by way of explanation and which negatived the plea of guilty rendering same equivocal. He had by virtue of Section 171 (2) of Act 30/60 given a sufficient cause to the contrary.

Counsel cited the cases of: -

NOKWE VRS. THE REPUBLIC (1999 - 2000) GLR 49.

GANDAA VRS. THE REPUBLIC (1989 - 90) 2 GLR 445.

to buttress his submission;

Appellant Counsel therefore, prayed the Court to uphold the appeal on that ground.

Counsel for the Republic generally did not oppose this ground of appeal.

 

I now proceed to deal with the issue whether or not the explanation of the Appellant on 9th October, 2018 was inconsistent with the plea of guilty.

The charges and the facts were read and interpreted to the Appellant in the language that he appreciates, Ewe.

It was thereafter that he pleaded Guilty with explanation.

The authorities have settled to the effect that even though the nomenclature of “guilty with explanation” is not part of our criminal procedures in taking of a plea, it has woven itself into our criminal jurisprudence and accordingly, where an Accused pleads guilty but add words or any explanation the trial Court was obliged to consider the added words or explanation and if they negatived the plea of guilty enter a plea of not guilty on behalf of the Accused person. The sequence of pleading in a summary trial are clearly stated in Section 171 of the Criminal Procedure Act, 1960 Act 30.

 

Firstly, the Accused is called into the dock, the charges are read over in English and where the Accused does not understand the English language the charges are interpreted to him in the language of his choice. The Accused is then required to plead. The plea is recorded as nearly as possible as the actual words used by him. The trial Judge then decides on the plea to be entered. Where the Accused pleads guilty and adds words or explanation. After the plea is entered the Accused is convicted where the plea is that of guilty. After the conviction the trial Court ought to proceed to sentence. This plea procedure for summary trials is often confused with the plea procedure for trials on indictment under Section 199 of Act 30/60. Whereas under Section 171 of Act 30/60 the Judge has No duty to explain to the accused the nature of the charge and the procedure which follows the acceptance of a plea of guilty, that duty is placed upon the judgement in trials on indictment under Section 199 of Act 30/60. It is instructive to note that, a Court of law must apply the law as made by the legislature and not to put a gloss on it. Counsel for the Appellant cited Section 199 (4) of Act 30/60 to buttress his argument. Section 199 (4) reads:

"Where the Accused pleads guilty but adds words indicating that the Accused may have a defence or so indicates an answer to the Court, the Court shall enter a plea of NOT GUILTY and record it as having been entered by order of the Court”.

With the greatest respect to Learned Counsel Section 199 (4) of Act 30/60 falls under PART IV of Act 30/60 which deals with trials for indictable offences. However, the appeal on this ground succeeds.

 

GROUND B

THE APPELLANT DID NOT UNDERSTAND AND APPRECIATE THE PLEA НЕ TOOK

Counsel for the Appellant stated in his submission that Grounds a, b and c were canvassed together.

Counsel for the Republic with her response to ground (b) submitted inter alia as follows

“Per the Record of Appeal, the charge was read over in English language and translated to the Appellant in Ewe language of the Appellant and in my opinion he understood perfectly the charge leveled against him and appreciated the plea he took. More especially, where there is no evidence on record that he was forced or coerced to plead guilty with explanation.

Thus, this ground lacked merit and does not contradict Section 171 (1) and (2) of Act 30/60 hence should not be entertained”.

I cannot but agree with Counsel for the Republic that this ground of appeal fails and same dismissed.

 

GROUND C

THAT FULL TRIAL OUGHT TO HAVE BEEN CONDUCTED TO THE NATURE AND CIRCUMSTANCES OF THE CASE

Appellant Counsel's submission on this ground was centered on the fact that in view of the Appellant's explanation, a plea of Not guilty ought to have been entered by the Court. And the Court failing to do that occasioned a mismanage of justice to the Appellant. The response of Counsel for the Republic to this ground of appeal rather fortified the Appellants Counsel's argument.

She submitted as follows:

“In this particular instance the trial Judge after listening to the explanation offered by the Appellant should have entered a plea of Not guilty so as to proceed to a trial in accordance with section 171 of Act 30/60”.

 

 

In my respectful opinion I agree strongly with the Appellant that this ground succeeds.

 

GROUND D

THAT THE SENTENCE WAS HARSH AND SEVERE

Appellant's Counsel submitted that it was not necessary to canvass this ground as same has become fortuitous or expedient or heaven-sent for the other grounds of the appeal. Counsel for the Republic on the other hand argued that the sentence imposed by the trial Judge, that is 36 months I. H. L. on each count was not excessive but the attitude of the trial Judge in deferring the sentence and admitting the convict to bail raised a lot of questions and was quite reprehensible. Counsel therefore prays the Court to either substitute the sentence with a fine or order a re-trial of the case by a Court differently constituted. The 1st count for which the Appellant suffered 36 months I. H. L. was:

"Careless and Inconsiderate Driving, contrary to Section 3 of RTA, 2004, Act 683 as amended by Act 761/2008.

 

Count two was Negligently Causing Harm contrary to Section 72 of Act 29/60.

In respect of count one (1) the offence attracts a fine of not exceeding two hundred penalty units or to a term of imprisonment not exceeding forty (40) months or both. On count 2, Negligently Causing Harm is a misdemeanor which punishment under Section 296 (4) of the Criminal Procedure Act, 1960, Act 30 attracts a jail term which does not exceed three (3) years. Section 296 (5) applies because the Section 72 of Act 29/60 which created the offence did not specify the sentence.

 

CONCLUSION

The Appellant pleaded guilty with explanation. He stated in his explanation as follows:

“It is as presented by the Prosecution. It was unfortunate. This is because the victim swerved unnoticed from the unseen side of the vehicle. I tried to save him. That was how I even ran into the house in the process”.

 

I conclude that the victim was equally negligent. He was reckless in crossing the road from the unseen side of the vehicle. I regret his death but he could have preserved his life, had he exercised caution in crossing the road.

His negligence is however, relevant in consideration of sentence not conviction. I have taken same into consideration. I uphold the conviction but set aside the sentence of 36 months I. H. L. on both counts 1 and 2 and substitute in its place with a fine of 100 penalty units or in default 12 months I. H. L. on both counts to run concurrently.