Yeboah v Attorney General (F15/001/2025) [2025] GHAHC 162 (21 May 2025)

1 INTHE SUPERIORCOURT OF JUDICATURE,HIGH COURT OF JUSTICESITTING ATSUNYANI ONWEDNESDAY,THE 21ST DAY OF MAY, 2025BEFOREHIS LORDSHIP JUSTICE NATHANP.YARNEYESQ., SUITNO. F15/001/2025 AUGUSTINEYEBOAH APPELLANT VRS: ATTORNEYGENERAL RESPONDENT JUDGMENT: To provide some context for this appeal, it is necessary to mention certain provisions ofour criminal laws which areapplicable tothis case. It is provided in S. 226(1)(c) of the Criminal and other Offences (Procedure) Act, 1960,Act30asfollows: (1) A person commits a misdemeanor who endeavours to resist or prevent the execution ofthe law– 2 (c) By escaping personally or permitting to be rescued by any other person fromlawful custody Subsection2ofthatsectionalso readsasfollows: (2) Where a person in lawful custody under a sentence of imprisonment escapes, the time during which that person is at large shall NOT be taken into account in computing the term of the original sentence. (emphasismine) The Appellant in this case was arrested in 2014 and arraigned before the Circuit Court, Berekum for the offence of Stealing. After trial before H/H A. Y. Asibey the Appellant was convicted of the offence and sentenced to a term of imprisonment of ten years. Pursuant to this, a Warrant of Commitment dated 1st December, 2014 was issued tocause the Appellant toservethe sentence aforementioned. According tothe Appellant, he appealed against this sentence tothis Courtand per a judgment dated 12th June, 2023 (Coram: Seidu, J) same was reduced to 9 years from the date of conviction. By that fact the Appellant contends that he should have been released from jail. However, according to the Appellant, a second Warrant of Commitment was found in the possession of the prison authorities dated 31st March, 2022, which prevented his release. He therefore applied to the Circuit Court, Berekumto have this second warrant ofcommitment set aside. Per a ruling dated 2nd 3 September, 2024, the Circuit Court, Berekum (Coram: H/H. Osei Kofi Amoako), that applicationwas refused. The circumstances leading to the issuance of the second warrant of commitment were addressed in the written submissions filed on behalf of the Republic. According to the Republic, on the same day the Appellant was convicted by the Circuit Court, that is 1st December, 2014, on which day accordingly, the first warrant of commitment had been issued, he absconded and never got to start his sentence. In 2022, about 8 years after, the Appellant was arrested, and sent again to the Circuit Court, Berekum. The Circuit Court, Berekum, presided over by H/H Osei Kofi Amoako caused a new warrant of commitment to be issued. It was dated 31st March, 2022. Upon that issuance the Appellant was committed to prison to commence his sentence onthatdate. Curiously, Counsel for the Appellant does not mention any of this in his written submissions but leaves the facts simply as that the Appellant was convicted and sentenced in 2014 to 10 years in prison, and in 2023, his sentence of 10 years was reduced to 9 years upon appeal, meaning that he should have been released from prison custody. These facts as narrated by the Appellant were laden with a glaring oddity. If he was sentenced in 2014, why wait till 30th December, 2022 to appeal against a 10 year sentence as being excessive, note being taken of Regulation 61 (1) 4 of the Prison Regulations L.N 412 of 1958 which provides opportunity for remission ofathird ofsentences aboveone month. The aforementioned enigmatic circumstances requires some pathology of the record to determine, as part of this appeal, why a sentence of 10 years decreed on 1st December, 2014, has still not been served, and ultimately, whether this appeal is based ontruthor falsehood. The Court will conduct a thorough review of the decision of H.H Osei Kofi Amoako dated 2nd September, 2024 which is the subject of this appeal. He determined that the warrant of commitment dated 31st March, 2022 was not irregular nor a mistake since it replaced that issued earlier on 1st December, 2014. This second issuance of a warrant of commitment became necessary because the Appellant, immediately upon conviction absconded, and did not actually commence his sentence from which the warrant of commitment dated 1st December, 2014 was issued. Surely, if the Appellant was in prison custody in commencement of his sentence, a second warrant of commitment later in 2023 would not have been necessary. This makes the case of the Republic believable, that the Appellant did not start his sentence decreed on 1st December, 2014. Though that warrant of commitment was duly issued upon the conviction of the same day the Appellant absconded, and remained unavailable till his rearrest in 2022. Is the Appellant through his lawyer asking this Court to disregard the fact of his abscondence from serving his sentence levied on 1st 5 December, 2014? Is that a true and proper interpretation and conclusion to be arrived at in the face of the facts alleged by the Respondent as the reason for the issuance ofthe replacement warrantofcommitment? It has been argued on behalf of the Appellant by his Counsel in paragraphs 5.5, 5.7, and 5.8as follows: 5.5. My Lord, under Ghanaian law, the sentence of a convict cannot be suspended to be served on a future date. Suspended sentences apply under very limited circumstances. There are only three instances in which a sentence of imprisonmentmay be suspended. 5.7. My Lord, apart from these limited circumstances, there is no place for suspended sentences in our law. Thus, where an accused is tried in absentia or absconds and the sentence run (sic) and is subsequently extradited to serve his or her punishment such a convict will only be liable to serve the remainder of the sentence atthe time of the extradition. 5.8. My Lord, any view that the sentence of imprisonment is automatically suspended merely because the offender absconded will be contrary to the clear provisions of section 315(2) of Act 30. Apart from suspending a sentence of imprisonment as clearly provided for by the law, there is no other way of keeping 6 a conviction and sentence in abeyance. It runs notwithstanding that the offender is on the runor absconded. With all due respect to the Appellant and his lawyer, this opinion, argument, or howsoever referred to is but a heresy. It does not represent a correct statement of the law. Should that be the case, then Act 30of1960 would be incentivizing abscondence. The convict tries his luck, runs away and enjoys his time, knowing that should he be rearrested he will face no comeuppance for absconding. That would make nonsense of the sentencing powers of the courts. That would subject the courts’ authority and integritytoridicule. Section 315(1) and (2) of the Criminal and Other Offences (Procedure) Act, 1960, Act30provides as follows: Section 315 (1) Where a person is sentenced to a term of imprisonment, the Court which sentenced him shall issue a warrant of commitment ordering that the sentence shall be carried out in any prison in Ghana, and the warrant shall be full authority to the police and prison officers totake, convey and keep that person and to all other personsto carrying intoeffect the sentence described in the warrant. 7 (2) A sentence of imprisonment shall commence on and include the wholeday onwhich it ispronounced. With the greatest respect, no part of the provision suggests that any part of the term of imprisonment decreed is forfeited if the convict absconds before commencement of the term, which includes the day the sentence is decreed. That would clearly offend Section 226(2) of Act 30 of 1960 cited above. If therefore, upon abscondence a convict is rearrested, upon the operation of Section 226(2) it becomes necessary for a new warrant of commitment to be issued accordingly to give true and proper effect to the sentence to be served from the time of rearrest. In the present circumstances therefore, Section 315(1) and (2) should be read together with Section 226(1) and (2) in view of the circumstances presently placed before the Court, and by that, the issuance of a second warrant of commitment upon the rearrest of the Appellant was right. It is obvious that these circumstances were not placed before the High Court during the hearing of the Appellant’s first appeal against his sentence dated 30th December, 2022, which resulted in the revision of his sentence of 10 years to 9 years per a judgment dated 12th June, 2023 (Coram: Seidu, J). That judgment is deemed to have been obtained by the perpetration of deceit on the High Court exercising its appellate jurisdiction, and to the extent that same was based on a misconstrued 8 rendition of the true facts and circumstances of the Appellant in the service of his sentence, same is deemed void, and accordingly its effect, reducing the Appellant’s sentence by one yearis also void (see Mosi v. Bagyina [1963] 1 GLR 337and Morkor v. Kuma (No. 1) [1999-2000] 1 GLR 721). The sentence of 10 years decreed by the Circuit Courtthereforeis reinstated. In view of the fact that the act of absconding from lawful custody upon conviction is an offence, albeit a misdemeanor, the Registrar is directed to forward a copy of this judgment to the Office of the Attorney-General with a request for the investigation and prosecution of the Appellant for the offence established in Section 226(1) and (2) of Act 30 of 1960. That conduct, and the brazenness in the attempt to perpetrate deceit onacourt oflawshould notgo without retribution. The instant appealis accordinglydismissed in its entirety. (SGD) NATHANP. YARNEY (JUSTICE OFTHE HIGH COURT) 9 LAWYERS: JONAHMBAZORABUI FOR THE PLAINTIFF. COMFORTKWAKYE ANTWI FORTHE RESPONDENT.