IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT OF GHANA

ACCRA, 2012

CORAM: ADINYIRA (MRS) JSC (PRESIDING

OWUSU (MS) JSC
DOTSE JSC
YEBOAH
GBADEGBE JSC

CRIMINAL APPEAL
NO. J3/3/2011

18TH APRIL, 2012

GABRIEL JOANNE - APPELLANT

VRS

THE REPUBLIC - RESPONDENT

JUDGMENT

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ADINYIRA (MRS.) JSC:

I have the privilege of reading beforehand the opinion of my eminent sister

Justice Owusu and I agree with her conclusion that the appeal is without
merit.

I also had the opportunity to read the dissenting opinion of my esteemed

brother Justice Dotse which turned on ground (b) of the appeal. I wish his
permission make some comments in relation to that ground.

Ground (b):

„‟The Court of Appeal erred when it held that the trial High Court was right
in accepting the plea of the appellant in the absence of her counsel without
explaining the consequences to the appellant.‟

His Lordship discussed Articles 14 (2) and 19 (2) (f) of the 1992
Constitution in relation to this ground of appeal.

Article 14 (2) provides that:

“14(2) a person, who is arrested, restricted or detained, shall be informed

immediately in a language that he understands of the reasons of his arrest
and detention and of his right to a lawyer of his choice.”

I do agree with my brother Justice Dotse that our Courts must observe best
practices in the administration of justice especially when it affects the
liberty of the individual. It is fair to say that the best practice as envisaged
in the Miranda rights referred to by Justice Dotse and what is called the
Judges Rules in the UK have been applied and observed in the
administration of criminal justice in this country. It is indeed a standard
procedure and requirement. It is trite law that any breach of these rules in
the course of the arrest detention and interrogation by the police or any

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arresting officer or enquiry renders any confession statement given by a
suspect or any evidence obtained in the process, inadmissible at a trial.

Article 14 (2) reflects these values that seeks to protect personal liberty.
However this provision is with all due respect not applicable in this instant
case as the appellant‟s complaint is that the judge erred in accepting the
plea of the appellant in the absence of her lawyer.

The relevant article is rather Article 19 (2) (f) that provides:

(2) A person charged with a criminal offence shall

(f) be permitted to defend himself before the court in person or by a lawyer

of his choice.

An accused person is vested under this article with the right to defend
herself or by a lawyer of his choice. This Court in a unanimous decision in
the case of The Republic v. High Court (Fast Track Division) Accra:
Ex parte Tsatsu Tsikata [2007-2008] SCGLR 1200 had the occasion
to define the phrase “a lawyer of his choice”.

The relevant facts as it appears in the headnotes of the law report are that
the applicant Mr. Tsatsu Tsikata was the accused person in a criminal
matter pending before an Accra High Court (Fast Track Division). The trial
court fixed 18 June 2008 for judgment. On 10 June 2008 the applicant
caused a motion to be filed on his behalf to adduce fresh evidence.
According to the applicant, accompanying the motion paper and supporting
affidavit was a letter addressed to the Registrar of the Court, informing him
that his counsel would be out of the jurisdiction on 12 June 2008, and
therefore requesting that, when the criminal matter came up for hearing it
should be adjourned further to a date in the second half of 2008.

At the hearing on 18 June 2012, the applicant referred to counsel‟s letter

and asked that the motion be adjourned. The learned Judge however
insisted that the hearing of the matter must proceed. When the applicant
declined to move the application himself, the court, after hearing the
Attorney-General on behalf of the Republic struck out the application for
want of jurisdiction. The applicant filed an application for certiorari to

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quash the decision and on other matters not relevant for our purpose. One
of the grounds inter alia was that the decision of the High Court to strike
out his motion for want of prosecution was in breach of the applicant‟s
constitutional rights under Article 19 (2) (f) for fair trial.

At page 1221 the Supreme Court unanimously held that:

“It is clear from the language of article 19(2) (f) that an accused person has
a right to self-representation. On the affidavit evidence, the trial judge did
indeed, in the course of the proceedings, draw the applicant‟s attention to
that fact, and gave him the opportunity to do so, which the applicant
insistently declined. Also under this provision, an accused person has the
right to decide to be represented by counsel of his choice. This seems to be
the option taken by the applicant. However the phrase “lawyer of his own
choice does not mean a particular lawyer if such a lawyer knowingly absent
himself from court. To hold otherwise would be to place the processes of
criminal justice at the mercy of the whims and fancies of defence counsel
and at the risk of grinding to a halt.”

In this case the appellant on 15 September 2009 opted to exercise her right
to be represented by a lawyer of her choice before she would plead to
charges preferred against her and two others. The court granted her request
and at the next hearing, she pleaded not guilty to the charges of attempt to
commit an offence of exportation of narcotic drugs and possession of same
in the presence of a lawyer of her own choice. On that day the other 2 co-
accused who had on an earlier date pleaded not guilty changed their plea to
that of guilty and they were convicted and sentenced to 10 years
imprisonment IHL on both counts. The appellant was present when all
these events occurred.

The case against the appellant proceeded to full trial on 23 February 2010
and the first prosecution witness gave evidence and was cross-examined.
On 4 May 2010, the appellant was in court without her counsel and she
without any prompting informed the court that she wanted to change her
plea. The trial judge without any enquiries into her decision had the
charges read to her and she pleaded guilty and she was convicted and
sentenced to 10 years IHL on her plea.

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I fully agree with Justice Dotse that our courts must follow the best
practices in the administration of criminal justice in order to protect the
liberties of the individual. Although no provision is made in the Criminal
and other Offences Act, 1960, Act 30, as to what was required of a judge in
a summary trial upon a change of change of plea in the course of hearing
evidence, the best practice that has evolved in our courts and which the
judge could have followed was to have explained the consequences of the
change of her plea, or at least enquired the reasons for her decision to
proceed without her counsel. This practice stems from Section 199 of Act
30 which applies to trials on indictment.

It is recommended that similar provisions are made in respect of summary

trials as an accused person is entitled to full protection of his fundamental
human rights to fair trial irrespective of the nature of the offence.

Having said that, is the omission of the trial judge to enquire into the
appellant‟s change of plea in the absence of her lawyer so grave and weighty
to result in a miscarriage of justice? This was a summary trial and
proceedings could continue in the absence of counsel for an accused
person; furthermore it was regular for the trial judge to record the plea of
guilty and proceed to convict and sentence the appellant. It is only in
capital offences that as a matter of practice the trial Court does not proceed
in the absence of lawyer for the accused; and under section 199(5) of Act
30, a plea of guilty shall not be accepted and instead a plea of not guilty is
entered on behalf of an accused.

Having regard to the facts on record, I find it difficult to conclude that this
omission was so material as to vitiate the whole proceedings. The appellant
was someone who was fully aware of her fundamental human right to
counsel and she demonstrably insisted and exercised that right. On the
other hand, the appellant also had the right to elect to conduct her case in
person. See Tsatsu supra. The choice was hers and she made it on this
occasion.

In any event it is not surprising that the appellant changed her plea having
regard to the evidence of PW1 at the previous hearing. PWI‟s evidence was
mainly that during a search on the appellant at the airport, some drugs

5
were found in her shoes and she herself removed some pellets of drugs
from her vagina. Upon this evidence I do not think there was any cause or
legal duty for the trial judge to enquire from the appellant the reason for
her change of plea and as such there was no miscarriage of justice

I therefore do not find any merit in this ground of appeal.

The other grounds of appeal have been sufficiently dealt with by Justices
Owusu and Dotse. I concur that the errors in the charge sheet were cured
by the evidence of PW1 and that did not occasion any miscarriage of justice.

The appeal is without merit and it is dismissed.

(SGD) S. O. A. ADINYIRA (MRS.)

JUSTICE OF THE SUPREME COURT

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OWUSU JSC.

The Appellant herein was charged together with two others on two
counts of:

Count One

Attempt to commit an offence of exportation of narcotic drug

without a licence issued by the Minister for Health: Contrary to
section 56 (a) and 1 (1) of the Narcotic sanctions) Act of 1990
(PNDCL 236).

Count Two

Possession of Narcotic drug without licence issued by the Minister

for Health: contrary to section 2 (1) of the Narcotic Drugs (Control,
Enforcement and Sanctions) Law 1990 (PNDCL 236)

The particulars of the offences as set out in the charge sheet are as
follows:

Count One

“1. Shadrack Bamfo Ntiamah, fire officer, 2. Abena Serwaa; student,

3. Gabriel Joanne; student, on 9th September, 2009 at the Kotoka
International Airport in the Greater Accra Region and within the
Jurisdiction of this court attempted to export to the United States of
America 49.8932gms of cocaine, a narcotic drug without license
issued by the Minister of Health.

Count Two

1. Shadrack Bamfo Ntiamah, fire officer, 2. Abena Serwaah,

student, 3. Gabriel Joanne, student, on 9th September, 2009 at
Kotoka International Airport, Accra in the Greater Accra Region and
within the jurisdiction of this Honourable court had in your
possession 491.8932 of cocaine, a narcotic drug without lawful
authority.

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On 15th day of September 2009 the Appellant together with the
others was arraigned before the High court for the first time.

The charges were read and explained to them to which the 1 st and
2nd accused persons pleaded not guilty to both counts. The
Appellant refused to plead to the charges because her counsel was
not in court.

Thereafter, the facts were given to the court. The accused persons
were then remanded in custody and the case adjourned to
23/09/2009.

On 23/09/2009 when the accused persons reappeared before

court, this time one Lawyer Adjei appeared as counsel for the
accused persons.

The charges were read and explained to the 3rd accused, the
Appellant herein whereupon, she pleaded not guilty to both counts.

They were again remanded in custody and the case adjourned to

8/10/2009.

On 28/01/2010 when the accused persons reappeared in court

their counsel S. R. Brempong pleaded for a short adjournment for
the accused persons to reconsider their plea.

The court obliged them and granted the adjournment to 03/02/10.

On 03/02/10, Lawyer Brempong appeared as counsel for the 1 st

and 2nd accused persons while Lawyer Effah Dartey appeared for
the 3rd accused person.

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The 1st and 2nd accused persons pleaded to change their pleas. The
charges were re-read and explained to them to which each of them
changed her plea on both counts to guilty.

Each of them was convicted on her own plea and sentenced to

10yrs I.H.L. The case of the Appellant was adjourned to 23/02/10.

On 23/02/10 the 3rd accused was in court with her counsel and
hearing of the case began.

The first prosecution witness mounted the witness box and testified
as to what happened on the 9th of August 2009 at the Airport
leading to the arrest of the accused persons. P. w. 1, Timothy
Abolimpo told the court he is a Narcotic Control Officer.

At the Airport, the Appellant was searched while going through

departure formalities and substance suspected to be narcotic drug
was found in her shoes. The Appellant then on her own brought
out some pellets of drugs from her vagina.

When the substance was tested, it proved positive for heroin. She
was thereafter handed over to the police at Nacob Headquarters.

The witness was cross-examined by counsel for the accused and the
case was thereafter adjourned to 10/03/10.

It was not until the 4th day of May 2010 that the accused appeared
in court. This time she was there without her counsel.

She informed the court that she wanted to change her plea.

The court ordered the charges to be re-read to her and they were so
re-read to her and she pleaded as follows:

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“COUNT 1: Plea: Guilty
COUNT 2: Plea: Guilty

Upon her plea of guilty on both counts, the court convicted her and
sentenced her to 10 years I. H. L on both (sic) counts to run
concurrently.

The sentences were to take effect from the day of her arrest under
Article 14(6) of the 1992 constitution.

She was ordered to be deported from the country after serving her
sentence.

On 19th January 2011, on application for extension of time within

which to appeal, the Court of Appeal granted the Applicant
extension of time to appeal and pursuant to the leave granted, the
Appellant on 24/01/11 filed a Notice of Appeal against her
conviction by the High Court on the following grounds:

“(a) The facts of the case do not support the charge leveled
against the accused person.

(b) The charge sheet was incurably bad and could not be the
basis of the Appellant‟s conviction and subsequent sentence.

(c) The Learned Judge erred when he accepted the plea of the
Appellant in the absence of her counsel after she had refused
to plead to the charges.

(d) The Appellant never intended to plead guilty to any charge as

she had written in her statement to the police and for that
matter to the prosecution that she knew nothing about the
drugs.

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 (e) The Appellant did not understand the proceedings at the

court below in that she is only 21 years, a U. S. A. National

as well as a student and she was without any relative in

court or Ghana.

On 19th May 2011, the Court of Appeal by a unanimous decision

after both counsel have filed their written submissions, dismissed
the appeal.

Dissatisfied with the decision of the Court of Appeal, the Appellant

on 20/05/11 filed a Notice of Appeal to this court on the grounds
that:

“(a) The Court of Appeal erred in its interpretation of sections 110

and 112 of the Criminal Procedure Code Act 30, 1960.

(b) The Court of Appeal erred when it held that the Trial High
Court was right in accepting the plea of the Appellant in the
absence of her counsel without explaining the consequences to
the Appellant.

(c) The Court of Appeal erred when it held that the defect in the
charge sheet was not fatal.

(d) The Court of Appeal erred when it failed to consider the effects
of section 171 of the criminal procedure code 1960 Act 30 on
the change in the plea of the Appellant of the Trial High Court.

(e) The Court of Appeal erred when it held that the prosecution
would have amended the charge sheet if the Appellant had not
changed its (sic) at the Trial High Court when there was no
such evidence before the Court of Appeal.

(f) The Court of Appeal erred when it refused to follow a

precedent from the Supreme Court.

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 (g) Additional grounds of appeal may be filed on receipt of a
certified copy of the Judgment of the Court of Appeal.

No such additional grounds have been filed.

The facts of the case as presented by the prosecution are that the
accused persons are all American nationals resident in the United
States of America. They arrived at the Kotoka International Airport
to board a Delta Airline flight to the United States of America.

While going through pre-departure formalities for the flight,

operatives of Narcotics Control Board suspected them of carrying
narcotic drug and therefore picked them for a search which
revealed a powdery substance suspected to be narcotic drug hidden
in their pants and the sole of their shoes. A further search on 2nd
and 3rd accused persons revealed pellets of the same powdery
substance hidden in their vagina. They were therefore arrested.

On interrogation, they mentioned one Abubakari Issaka in the

U.S.A. as the one who contracted them for a fee to carry the
substance to the United States. They named one Alhaji as their
contact in Ghana and that the said Alhaji for whom they brought
four envelopes containing money met them on their arrival in
Ghana on 02/09/09. In Ghana, Alhaji took care of all their needs.
It was he who gave them the substance to be carried to Abubakari
in America.

From these facts, one can safely conclude that the accused persons
acted together with a common purpose in committing the offence of
attempt to commit an offence of exportation of narcotic drug
without a license issued by the Minister for Health contrary to
section 56(a) and 1 (1) of the Act.

Arguing the appeal, counsel had argued grounds (a) and (c) as filed
in the notice of Appeal together.

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In the court below, counsel had argued that the facts do not
support the charge preferred against the accused persons and that
the charge was incurably defective.

It was submitted that the facts as presented by the prosecution

alleged that each of the accused persons had a narcotic drug
independent of the other and therefore to put them together as if all
three of them jointly held the drug in the particulars of offence is
wrong and fatal to the prosecution‟s case.

It was in dealing with this submission that the court below per
Acquaye J. A. referred to section 110 of the criminal and (other
offences) procedure Act, Act 30.

Counsel submits that the issue before the court below was not
joinder of accused persons but rather it centres on joinder of
charges which was not addressed in its judgment.

Counsel referred to section 110 (1) (a) of the Act.

According to him the word “charge” in section 110 (1) does not
mean “count”. The “charge” here means joining other accused
persons in the same charge sheet with different counts. In a very
limited sense, it may mean a conspiracy charge involving several or
more accused persons. Counsel further submitted that the section
must be read in conjunction with section 109 of the Act.

Section 109 of the Act deals with joinder of charges.

109 (1) states that –

“for each distinct offence of which a persons is accused there

shall, subject to subsection (2), be a separate charge or count.

(2) charges or counts for offences may be joined in the same

complaint charge sheet, or indictment and tried at the same
time if the charges or counts are founded on the same facts, or

13
 form or are a part of a series of offences of the same or a
similar character.”

Having referred to section 109, Acquaye J. A. referred to section 110

(1) of the Act which deals with joinder of accused persons.

Section 110 (1) (a) states that “persons accused of the same offence
committed in the course of the same transaction may be charged
and tried together.

Under this subsection, the Court of Appeal found nothing wrong

with their being charged jointly for the same offences because they
were said to have arrived in the country together on the same date
and were leaving together on the same date with each carrying the
same narcotic drug in almost the same manner.

Counsel however submits that this is not the issue but rather the
issue is one of joinder of charges which the Court of Appeal did not
address.

The accused persons were charged on two distinct counts from the
charge sheet. Indeed, if they acted together with a common
purpose in committing crime, they should have been charged on a
separate count of conspiracy. The fact that no such distinct charge
was preferred against them does not detract from the fact that they
acted together with a common purpose in committing crime. If they
acted together with a common purpose in committing the offence of
attempting to export the drug found on them without a licence from
the minister, then the charge sheet cannot be said to be defective as
counsel for the Appellant is urging upon the court.

In that case the quantity found on each of them becomes

immaterial. Even if none was found on any of them, that person
would have been equally blameable for the quantity found on the
rest and all of them would be guilty of attempting to export the
whole quantity of 491.8932gms found on all of them if the

14
prosecution succeeded in establishing that that person participated
in the execution of a conspiracy.

In this case, the Appellant and the others had come to Ghana
purposely to carry the drug to the United States of America and for
that reason all of them are equally blameable. See the case of
STATE VRS OTCHERE [1963]2 GLR 463.

The Court of Appeal saw nothing wrong with the accused persons
being charged jointly for the same offences and this court sees
nothing wrong with the charge on this score either. The appeal fails
on these grounds.

Ground (b) to me is what merits consideration by this court. This

ground attacks the Court of Appeal‟s holding that the trial Judge
was right in accepting the plea of the Appellant without explaining
the consequences of such a plea to the Appellant.

It is counsel‟s submission that Justice expected in summary trials

is no lesser justice than in a trial on indictment. In this wise, he
referred to “practice and procedure in the trial court and Tribunal of
Ghana by the learned Author S. A. Brobbey JSC, in which he dealt
with change of plea. The learned Author cited the case o YEBOAH
VRS THE STATE [1964] GLR 715 at 717.

Counsel contented that if the trial Judge had asked for and
recorded the explanation for the change in plea, the court would not
have accepted the plea of guilty and convicted the Appellant.

In the case of YEBOAH, Supra, the Appellant was arraigned before

the District Court on a charge of stealing. On his first appearance
he pleaded not guilty and was granted bail. On the second occasion
he was discharged for want of prosecution. He was re-arrested and
appeared again before the same Magistrate on the same charge. He
then pleaded guilty. He was convicted and sentenced to a fine of 25
or three months I. H. L. on all three occasions the appellant was not
represented by counsel.
15
On appeal to the High Court against his conviction, it was argued
on his behalf that the trial was irregular since the appellant was
induced by the prosecution officer to change his plea and that he
did not appreciate the import of the plea of guilty.

The court presided over by Kinsley Nyinah J. (as he then was) held,
allowing the appeal that:

“(1) when the appellant suddenly changed his erstwhile plea of “not
guilty” to “guilty” the magistrate “ought to have paused for
judicial thought” and enquired from the accused the
circumstances surrounding and leading to his sudden change of
plea, and recorded his answers.

If his answers indicated that he had a defence, the court should

proceed to try the case under section 199 (4) of the criminal
procedure code, 1960 (Act 30) failure to do that was a neglect of
duty.

(2) the appellate court can go behind the record of appeal to find out
whether the accused “deliberately and unequivocally” pleaded
guilty or he did so as a result of some misapprehension or
inducement. If the latter, the appellate court ought properly to hold
that there has been a miscarriage of Justice, and allow the appeal.

With all due deference to the appellate Judge, section 199(4) of the
criminal procedure code 1960 (Act 30) is referable to trial on
Indictment. It is not for nothing that two different procedures have
been set out under the Act for trial. The procedure in summary
trials so far as taking of plea and its consequences are concerned is
not the same as trials on indictment. The procedure is as set out
under section 171(3) of the Act.

The Appellant herein was tried summarily.

Under section 163 of the Act, a reference in an enactment to an

offence as a summary offence, triable summarily, or punishable

16
summarily, means that the offence shall be tried in accordance with
this part. Under section 164, this part applies to the summary trial
of an offence by a District Court, a Circuit Court or the High Court.

“(1) where the accused appears personally or - - - - - - - - - - - -

- - - the substance of the charge contained in the charge sheet
or complaint shall be stated and explained to the accused or -
- - - - - - - - - - - - - - - -, and the accused or counsel of the
accused shall be asked to plead guilty or not guilty.” See
section 171 (1) of the Act.

171 (3) states that –

“A plea of guilty shall be recorded as nearly as possible in the

words used or if there is an admission of guilt by letter under
section 70(1), the letter shall be placed on the record and the
court shall convict the accused and pass sentence or make an
order against the accused unless there appears to it sufficient
cause to the contrary.” (emphasis mine)

Reference to section 199 (4) of the Act with all due respect to his

Lordship was wrong reference in a summary trial.

Under section 171 (3) what the trial Judge was legally bound to do
was to have recorded the plea as nearly as possible in the words
used so that if there was any explanation or words used which
rendered the plea of guilty inconsistent with the words added then
the court was bound to enter a plea of not guilty and proceed to try
the case.

Section 199 laid down the procedure before the trial court in a trial
on indictment.

PLEA OF GUILTY

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199 (1) “where the accused pleads guilty to a charge, the court
before accepting the plea shall, if the accused is not represented by
counsel, explain to the accused the nature of the charge and the
procedure which follows the acceptance of a plea of guilty.

(4) “ where the accused pleads guilty but adds words indicating that
the accused may have a defence or so indicates in 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.

I have had a look at the cases of REPUBLIC VRS BRIGHT [1974]2

GLR 12 and FORSON VRS. THE REPUBLIC [1976] 1 GLR 138 at
146 referred to by counsel for the Appellant.

In the Bright case His Lordship Andoh J. cautioned as follows:

“It is imperative that ample care should be taken by the tried

court to see that there should be no ambiguity in the plea of
“guilty”. The trial court is to make sure that the plea is not
imperfect or unfinished; for in law, a court ought not to take
the Accused to have admitted his guilt unless he does so in
unmistakable terms.”

The case was cited because of this caution but counsel did not
relate the facts of the case to the present case. In Bright‟s case, the
plea of “guilty” was with explanation which indicated that the
accused might have a defence to the charge. Under the
circumstances the court‟s acceptance of the plea and subsequent
conviction of the accused was wrong and in contravention of s.173
(3) of the procedure Act.

His Lordship to whose court the accused was sent to be committed

for sentencing was of the view that the trial magistrate was wrong
in not entering a plea of not guilty in view of the explanation offered
by the accused.

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In the case of FORSON, the accused had pleaded not guilty, tried
and convicted in two separate trials arising out of the same facts
and circumstances.

In the second trial, the trial magistrate ordered that the evidence in
the first trial be adopted “since the same evidence gave rise to the
second. This was done. Judgment in both cases was delivered on 12
August 1974 when the accused was sentenced to a fine of GH50.00
or Six months imprisonment in the first trial and, in the second
trial to nine months imprisonment on count 1 and 24 months
imprisonment on count 2.

On appeal against his sentence which cumulatively came to 30

months imprisonment because of the separate trials, the appellate
court suo motu concerned itself with the validity of the conviction in
the second trial because of the procedure of adopting the evidence
in the first trial as evidence in the second trial.

The court presided over by Taylor J. (as he then was) held that

“(2) The conviction in the second trial was a nullity and could
not support any sentence because the procedure of adopting
the evidence in the first as evidence in the second trial was not
justified by Act 30 or any decided case or practice. The
procedure to be adopted in a summary trial on a plea of not
guilty was provided in Act 30, S. 172, which was mandatory
and made provision for the taking of evidence and cross-
examination of witnesses.”

The conviction was vitiated because the procedure adopted offended

against section 172 which set down the procedure on a plea of not
guilty in a summary trial.

I am unable to appreciate the relevance of this case to the instant

case. When on the second appearance of the Appellant, she
pleaded not guilty, the court in compliance with section 172 of the
Act, set down the case for trial and proceeded to hear it.
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When the Appellant changed her plea of “not guilty” to guilty, she
added no words which necessitated a plea of “not guilty” being
entered by the court for her.

I have already stated that section 199(4) of the Act is not applicable
in summary trials. This does not mean that in a summary trial, the
court‟s duty has been in any way lessened and therefore justice
demanded lesser than in trials on indictment.

If the plea is recorded in as nearly as possible in the words used

and it appears to the court that there4 is sufficient cause for which
the plea of guilty should not be accepted, then the court will enter a
plea of not guilty for the accused.

The duty being cast on a trial court to pause for “judicial thought”
and inquire from the accused the circumstances leading to the
sudden change of plea and record his answers is not a legal duty
under the Act failure of which must in all cases vitiate the
conviction.

I must admit such an inquiry may be desirable but not a necessity

for non compliance of it to vitiate a conviction where having regard
to all the circumstances of the case the appellate court finds no
justification in doing that.

In YEBOAH‟S case, His Lordship had this to say:

“In all the circumstance, I find and am satisfied that the

appellant did not deliberately and unequivocally plead “guilty”
to the charge of stealing.”

Indeed as Denning J. (as he then was) opined in MILLER VRS.

MINISTER OF PENSION [1947] 2 AER 372, the court would fail in
its duty to assist in clamping down this menace if it permitted such
technicalities to deflect the course of Justice.

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The Appellant‟s plea in this case was unequivocal. From the record
one cannot say that the Appellant, aged 21 and an American
National did not appreciate the consequences of the change of plea.

On the 1st day of her appearance in court without counsel, she

refused to plead to the charges because she was unrepresented. On
the day that she entered her plea of not guilty, she was in court
with her counsel.

On the next appearance, counsel appeared for all the accused

persons and pleaded for a short time to reconsider their pleas.

On the next adjourned date, counsel, who had pleaded for

adjournment for the accused persons to consider their plea
appeared for only 1st and 2nd accused persons while another
counsel Effah Dartey appeared for the 3rd accused person,
Appellant, herein.

The 1st and 2nd accused persons changed their plea to guilty
simpliciter in the presence of their counsel and were convicted on
their plea and sentenced to 10 years I.H.L.

At least from that, the Appellant got to know if she did not know
before then the consequences of a plea of guilty.

After the conviction of the 1st and 2nd accused persons, the
Appellant‟s case was set down for trial.

On 23rd day of February 2010, hearing started and p.w. 1, a

narcotic control officer testified before the court.

Significantly, this change of plea was after the 1st prosecution

witness had testified in court. To get what he said in court, I wish
to reproduce his evidence verbatim as follows:

“My name is Timothy Abolimpo. I am a narcotic officer

stationed at the Kotoka International Airport. I know the
accused person. My Lord, on the 9th of August 2009. I was on

21
 duty at the Kotoka International Airport with Felix Akolgo,
Issaka and others.

My Lord on that day while passengers were going through

departure formalities to board Delta Flight from Accra to J. F.
K. My Lord, Marine and Akolgo took some passengers and
examined them for drugs. My Lord the accused person was
one of them and Marine took her to the ladies room to examine
her. My Lord, she found drugs in her shoes and then accused
also voluntarily brought out some pellets of drugs from her
vagina. My Lords, we tested the drug and it read positive for
heroin. My Lord, I handed her over to the police investigator
at NACOB Headquarters Office.”

This piece of evidence was given in the presence of her counsel who
took time to cross-examine the witness.

This is what transpired under cross-examination.

“Timothy to be sincere to the court, you were on duty at the

Airport, you didn‟t examined (sic) the accused person. So you
have nothing to say about her, you don‟t know anything.”

My Lord I know something

What do you know?

My Lord when she was brought to me (sic) I ordered for (sic)

her to be examined. I am not a lady so the lady took her to the
private and brought me the report. So it was Marine Issaka
who after examining her brought me the report.

So the only role you played was to order a female officer to

examine her?

Yes my Lord and after examining her, I again ordered that the
substances be tested in the presence of all. And we ran the

22
clarificates (sic) on them which work positive for heroin my
Lord.

You are relying solely on the report given to you by your

female officer is that it?

My Lord, I was a witness to everything that happened. Expect

(sic) the fact that I did not go into the room with her. The
drugs were brought, we all examined them together and I
ordered that they should test them, they did the test.

Timothy I want you to accept the fact that you have nothing to
do with the discovery of the substance on her.

You were not inside the room where the examination took
place?

No my Lord.

So you don‟t know or you know?

My Lord I know.

My lord I think I am flaring (sic) a dead horse. I wont (sic) ask

any further question.

The court then discharged the witness and the case adjourned
to 10/3/2010. It was however not until 4/5/10 that the
Appellant appeared again in court and pleaded to change her
plea.

It is significant to note that the evidence that the substance

was found in her shoes and that she voluntarily brought out
some pellets of the drug from her vagina was not challenged
by the Appellant‟s counsel who was then in court.

With this evidence, when the Appellant appeared on 4/5/10

and changed her plea I do not see the need for the trial court
to have asked why the change of plea. At least the evidence of

23
 p.w.1 if believed by the court is sufficient to sustain the
conviction in line with the plea of guilty.

Counsel‟s contention is that the Appellant acted under a

misapprehension and that if the court had asked her
questions about whereabouts of her counsel and why the
change of plea, the Appellant would have told the court that
she knew nothing about the charge just as she told the police
in her statement to the police. Where is this statement? Why
did counsel not exhibit it in this appeal?

I am convinced that the Appellant who would not plead to the

charges on her first appearance would not take what somebody told
her to influence her to go to court and change her plea without
consulting her counsel knowing very well what follows after a plea
of guilty.

The Appellant before the court on 4/5/10 did not show that she did
not appreciate or understand the charge or procedure and thus
pleaded guilty by mistake.

As much as the constitution guarantees the Appellant‟s right to be

represented by counsel of her choice, the same constitution permits
the accused to defend herself before the court in person. Art. 19(2)
(f) of the constitution states that:

“A person charged with a criminal offence shall be permitted to

defend himself before the court in person or by a lawyer of his
choice.”

Where she chooses to defend herself in person that choice which is

completely hers should not be “criminalized” and used under such
circumstances to derail the course of Justice.

In the case of REPUBLIC VRS HIGH COURT KUMASI; EX-PARTE

ATUMFUWA and Another [2000] SCGLR 72, Acquah JSC. (as he
then was and now of blessed memory had this too say:

24
 “Our procedure rules have gone a long way in freeing this
court from the clutches of pointless technicalities. The
tendency now, is to look at eh substance of the case and
ensure that substantial Justice is done on the merits within
the four corners of the procedural rules. Of course, where
parties and their counsel exhibit deliberate and reckless non-
compliance of the rules, sometimes with a view to overreach
their opponent‟s, the court‟s discretion would not be exercised
in their favour - - - - - -”

This case is not on all fours with the instant one but it goes to
support the fact that technicalities such as the one being urged on
the court should not be allowed to derail the course of Justice.

Consequently I am satisfied that on the facts and especially having

regard to the evidence of p. w. 1, the trial court committed no error
as, the Court of Appeal found when it accepted the change of plea of
guilty and convicted the Appellant accordingly without “pausing for
Judicial thought” and explaining the consequences to her.

This ground of Appeal also fails and same is dismissed.

On ground (d), I am unable to appreciate counsel‟s submission on

section 171 of the Act and thus attack on the Court of Appeal that
it failed to consider the effects of the section on the change of plea
of the Appellant in the trial court.

Section 171 (3) does not deal with a plea of “not guilty”. Rather, it is
171 (4) which states that “where the plea is one of not guilty, the
court shall proceed to hear the case.

171 (3) provides for the procedure to be followed on a plea of guilty

but not a plea of not guilty as counsel has quoted in his statement
of case.

25
I am unable to understand what counsel means by the trial court
“applying reverse gears”, upon indication by the Accused without
counsel, to change her plea.

The Appellant is someone who knew what the whole trial was about
and was very much aware of her rights. On her first appearance
without counsel, she refused to plead to the charges because she
had no counsel. The court in its duty to afford the Appellant fair
trial in consonance with Article 19 (1) of the constitution, adjourned
the case.

When she pleaded not guilty, the case was set down for trial for the
prosecution to prove her guilt.

Under Art 19(2) (c), she was presumed innocent until she changed
her plea and pleaded guilty on both counts. When she indicated
she wanted to change her plea, the charges were read over to her
again in a language she understood and she pleaded guilty to both
of them.

Ground (e) of the appeal without much ado should and is hereby
sustained.

The Court of Appeal erred when it held that the prosecution would
have amended the charge sheet if the Appellant had not changed
her plea at the trial court.

The court was of the view that even though the particulars of
offence stated that the drugs carried was cocaine, when p.w.1
testified and stated that the drug carried was heroine, the
prosecution should have amended the particulars of offence in line
with p.w.1‟s evidence, the amendment could not be effected because
of the change of plea.

This view of the Court of Appeal clearly is not supported by any

evidence and same is based on conjecture. If anything at all, the
defect i.e. that what the Appellant carried was cocaine, was

26
remedied by the evidence of p.w.1 and therefore that by itself
occasioned no miscarriage of justice under section 406 of the
procedure Act, S. 406 (1) (a) reads in part as follows:

“--------- no finding, sentence, or order passed by a court of

competent Jurisdiction shall be reversed or altered on appeal
or review on account.

(a) Of an error, omission, or irregularity in the complaint,

summons warrant, charge, proclamation, order, Judgment
or any other proceedings before or during the trial or in any
enquiry or any other proceedings under this Act or unless
such error, omission, irregularity or misdirection has in fact
occasioned a substantial miscarriage or Justice.

Again under section 31(2) of the courts Acts of 1993, Act 459

“The appellate court shall dismiss the appeal if it considers

that a substantial miscarriage of justice has not actually
occurred or that the point raised in the appeal consists of a
technicality or procedural error or a defect in the charge or
indictment but that there is evidence to support the offence
alleged in the statement of offence in the charge or indictment
or any other offence of which the accused could have been
convicted on that charge or indictment.”

Coming to the last ground of appeal, that the Court of Appeal erred
when it refused to follow a precedent from the Supreme Court, it is
the contention of counsel that the court of Appeal bound to follow
the decisions of the Supreme court on questions of law, erred when
it refused to follow the decision of the court in the case of BONSU
alias BENJILO VRS THE REPUBLIC [2000] SCGLR 112.

In this case, the Appellant and four others were charged with three
drug related offences including unlawful possession of narcotic
drug contrary to section 2 (1) of PNDC 236.

27
The 1st and 5th accused persons, Nigerians absconded and were
tried in absentia. All the accused persons were convicted of the
three offences. They appealed to the Court of Appeal against their
conviction for the offence of unlawful possession of heroin. The
Court of Appeal after making certain inferences on the issue of
possession and knowledge of the contents of the parcel by the
accused, dismissed the appeal.

On appeal to the Supreme Court, one ground was that the trial
court had erred in holding that on the evidence the appellant has
possession of the parcel and that there was sufficient evidence to
convict him of the offence of possession of a narcotic drug.

The court per Atuguba J.S.C. listed the essential ingredients of the
offence of possession of narcotic drug contrary to section 2 (1) of the
Narcotic Drugs (Control, Enforcement and sanctions) Law of 1990
(PNDCL 236. This is what His Lordship said “from the foregoing. I
hold that on a charge of possessing of narcotic drug under PNDC
L236, the prosecution must prove (1) custody or control of the drug
by the accused;

(ii) knowledge of the presence of the drug;

See WARNER VRS METROPOLITAN COMMISSIONER, R. V.

BOYESON (supra) and AKOSA VRS THE REPUBLIC [1979] GLR 250
and (iii) knowledge of the nature and quality of drug possessed I
hasten to say that proof of any of these ingredients may be actual or
constructive - - - - - - -”

His Lordship referred to cases of REPUBLIC VRS MUNTALIA,

WARNER VRS THE REPUBLIC, AMARTEY VRS THE STATE and
Others.

It is counsel‟s submission that this decision is binding on the Court

of Appeal.

28
However, the particulars of the present case did not state the
nature and quality of the drug that the Appellant had in her
possession to start with except that there is some insertion
indicating the quantity of cocaine.

He submitted that the Appellant pleaded guilty to possessing

cocaine the evidence of p.w.1 is that what the Appellant had on her
was heroine.

Counsel then contended that the nature and quality of what the
Appellant held is missing from the charge sheet and thus the
Appellant was not charged with what she held but pleaded not (sic)
to what probably the two other convicts held. At page 63 of the
record, the Court of Appeal on this issue held as follows:

“It should also be noted that the offence creating section of the
Narcotic Drugs (control, enforcement and sanction) Law
PNDCL 236/1990 does not speak of cocaine or heroin but
Drugs. Since heroin and cocaine are all drugs the non
amendment does not cause any embarrassment or prejudice
the case of the accused and no substantial miscarriage of
justice was occasioned there.”

I have already dealt with this defect when dealing with ground (c) of
the grounds of appeal together with ground (a).

From the record what the accused persons had on them is stated as
cocaine but the evidence before the court is that what the Appellant
had on her heroine.

What the Appellant pleaded guilty to from the record is not clear
whether it was possession of cocaine or heroine since the change of
plea was after the evidence of p.w.1.

I will agree with Acquaye J. A. that the offence is possessing of

narcotic drug be it cocaine or heroine and for that reason the defect
in the charge if stated as cocaine occasioned no miscarriage of

29
justice and for that reason the appeal will not be allowed on that
ground.

The charge sheet from the record stated the nature and quantity of
the drug held by the accused persons by the insertion and the court
is bound by the record. When and how the insertion was effected
for purposes of the appeal is immaterial.

For this reason, the case of Benjilo becomes irrelevant and of no

use to the Appellant. This ground of appeal also fails and same is
dismissed.

In the end, the appeal fails on all grounds except ground (e) and
same is hereby dismissed.

I feel I will fail in my duty if I do not comment on the reckless

manner in which the prosecution handled the case in the court
below.

How could the charge sheet state that what the accused persons
carried was cocaine when p.w.1 talked of heroine? The Appellant
could have gotten away but for sections 406 (1) (a) of the criminal
and (other offences) procedure Act and of the courts Act, Act 459.

The offence of possessing narcotic drug as stated under section 2

(1) is without authority but not without a license issued by the
Minister.

I have not dealt with this in the judgment because that was not
raised in the appeal. What is more the particulars of the offence
correctly stated the offence and that defect again did not occasion
any miscarriage of justice which would have vitiated the conviction.

(SGD) R. C. OWUSU (MS.)

JUSTICE OF THE SUPREME COURT
30
DOTSE JSC:

I have had the honour and privilege to have discussed the lead
judgment just delivered by my respected Sister, Rose Owusu JSC. I
have also tried my best to understand the reasons underpinning the
said decision but has been unable to come to terms with it. I am
reluctantly compelled, to come out with my reasons why I cannot
with respect subscribe to the reasons behind the majority and lead
judgment.

In the first place, it has to be noted that this is not only the
Supreme Court, but is the Court of last resort and a Constitutional
Court for that matter.

As a result, I am of the view that this court must always be very

circumspect in the decisions it delivers especially when it has to do
with the curtailment of the liberty of the individual.

It is therefore not surprising that the whole of chapter five of the

Constitution 1992 has been devoted to securing the enjoyment of
fundamental human rights and freedoms by the citizenry. It is in
this light that I am of the opinion that provisions contained in
articles 12, through to 33 of the Constitution 1992 can be said to be
the philosophical underpinnings of the Constitution 1992.

For example, article 14 (2) of the Constitution 1992 provides as

follows:-

“a person who is arrested, restricted or detained shall be

informed immediately in a language that he understands, of the
reasons for his arrest, restriction or detention and of his right
to a Lawyer of his choice.” emphasis

31
My understanding of this provision is that, immediately a person is
arrested, restricted or detained the arresting person or persons
shall do the following:

i. Inform the suspect of the reasons for his or her arrest,

restriction or detention.

ii. This must be done in a language he understands.

iii. Thirdly, and by far the most important, that the suspect
is entitled to the services of a lawyer of his choice before
he starts talking to the arresting officer or officers. This
means that, before commencing investigations, the
suspect must be made aware of these rights.

The achievement or attainment of the above even though might

prove difficult is the path that Ghana endorsed by the promulgation
of the Constitution 1992 and a Court of law such as this Supreme
Court must be prepared to hold these ideals strictly.

It is the provisions of this article 14 (2) and those in articles 19 (2)

(c) (d) (e) and (f) of the Constitution 1992 that has informed my
decision and resolve to chart a different path from the majority.
What then are the facts of this case?

On or about the 9th of September, 2009 the appellant herein, an

American national, together with two other persons, now convicts
were arrested at the Kotoka international airport in the Greater
Accra Region for attempting to export to the United States of
America, a quantity of narcotic drug without licence issued by the
Minister of Health. Appellant and the other two persons were
arraigned before the High Court, Accra, for trial. One charge sheet
was prepared recounting the statement and particulars of offence of

32
all three persons. It is relevant to note that on the first day of trial,
after the charges were read and explained to the three accused
persons, while the other persons pleaded not guilty, the appellant
chose not to plead to the charge, her reason being that her
lawyer was not present. Subsequently, during the trial, the
appellant with her lawyer present in court pleaded not guilty to the
two counts, namely:

1. Attempt to commit an offence of exportation of narcotic drugs

without a licence issued by the Minister for Health, contrary to
Sections 56(a) and 1(1) of the Narcotic Drugs (Control,
Enforcement and Sanctions) Law 1990, (PNDCL 236); and

2. Possession of narcotic drugs without licence issued by the

Minister for Health contrary to Section 2(1) of the Narcotic
Drugs (Control, Enforcement and Sanctions) Law 1990
(PNDCL 236)

On the next day of trial, the two other accused persons therein
changed their “not guilty” pleas to “guilty” and were convicted on
their own pleas. The trial judge then proceeded to a full trial of the
appellant alone.

This he did by taking evidence from the Narcotic control officer, one
Timothy Abolimpo with subsequent cross examination by counsel
for the appellant.

33
Very surprisingly, while the trial was ongoing, the appellant on a
later date, in the absence of her counsel, informed the court that
she wanted to change her plea. The court reread the charges to her,
after which appellant changed her plea to guilty, all in the absence
of her counsel. The court thereafter proceeded to convict her on her
own plea of guilty sentencing her to 10 years imprisonment with
hard labour on both counts to run concurrently. The court again
ordered that appellant be deported after serving her sentence.

Dissatisfied with her conviction and sentence, appellant

unsuccessfully appealed to the Court of Appeal against her
conviction and sentence.

The Court of Appeal dismissed appellant‟s appeal and confirmed the

conviction and sentence on the basis, inter alia that there had been
no miscarriage of justice, that the appellant reasonably understood
the charges read to her and the consequences of her guilty plea. It
is against the decision of the Court of Appeal that the appellant now
further appeals to this court to set aside her conviction and
sentence on the following grounds of appeal:

GROUNDS OF APPEAL

a. The Court of Appeal erred in its interpretation of Sections 110

and 112 of the Criminal Procedure Code Act 30, 1960

b. The Court of Appeal erred when it held that the trial High
Court was right in accepting the plea of the Appellant in the

34
 absence of her counsel without explaining the consequences to
the appellant.

c. The Court of Appeal erred when it held that the defect in the
charge sheet was not fatal
d. The Court of Appeal erred when it failed to consider the effects
of Section 171 of the Criminal Procedure Code 1960, Act 30 on
the change in the plea of the appellant at the trial High Court.

e. The Court of Appeal erred when it held that the prosecution

would have amended the charge sheet if the appellant had not
changed its plea at the trial High Court when there was no
such evidence before the Court of Appeal.

f. The Court of Appeal erred when it refused to follow a

precedent from the Supreme Court.

The main issue I identify as running through the grounds of appeal

of the appellant is whether the intermittent errors and omission
from the time the appellant was charged through to her conviction
were weighty enough to occasion a miscarriage of justice. I shall
proceed to discuss the grounds of appeal. Grounds (b) and (d)
which border on the same issue, so I shall leave them for the last
and discuss them jointly

Grounds A and C

35
The Court erred in its interpretation of Sections 110 and 112
of the Criminal and other Offences Procedure Act 1960 Act 30.

The Court of Appeal erred when it held that the defect in the
charge sheet was not fatal.

In arguing these two grounds, counsel for appellant contends that a

reading of Sections 110 (1) (a) in conjunction with Section 109(1) of
Act 30 imposes a duty on the prosecution to lay a distinct charge or
count for every separate offence that a person is accused of.
Counsel for the appellant vehemently opposes the argument that
accused persons arrested in the course of a joint illegal venture may
be prosecuted on the same charge sheet under the same count.
Counsel for the appellant quotes a paragraph of the judgment of the
Court of Appeal to disagree with same, that:

“Since the accused persons were said to have arrived in the

country together on the same date and were leaving together on
the same date with each carrying the same narcotic drug(with
emphasis) in almost the same manner we find nothing wrong
with their being charged jointly for the same offence”

Upon a careful reading of Sections 109 and 110, I cannot bring

myself to agree with counsel for the appellant that, necessarily,
every accused person where such person acts in consent with
others and they are charged on the same facts, they must
nevertheless be charged by distinct charge sheets and counts. If
that were to be the case, there would not have been the need for

36
making Section 109(1) subject to subsection 2. Besides, the use of
„similar‟ in both Sections 109 and 110 suggests that in situations
like the appellant‟s case, where the charges can be established on
not only the same, but similar (with emphasis) facts, then there
could be joinder of charges and accused persons.

The intense weight counsel for appellant also gives to his argument
regarding Sections 109 and 110 is unexplainable looking at it in the
light of Section 110 (2) which reads:

(2) A trial shall not be invalidated by reason only that two or

more persons have wrongly been tried together on one
complaint, charge sheet or indictment unless objection is made
by any of the accused persons at the time or before the accused
was called upon to plead”.

This provision was rightly quoted and interpreted by learned

Counsel for the respondent that even if appellant had been wrongly
tried with the other persons, appellant cannot now be heard to raise
this objection. She should have done so before or at the time her
plea was being taken. Thus, the issue of misjoinder, if any cannot
now be heard at the time of appeal.

See cases of

i. Togbe Fiti v State [1965] GLR 33 where it was held on

appeal that it was counsel‟s duty to raise at the earliest
possible time the submission that the charge was bad for
duplicity i.e. before the case of the prosecution is closed. It

37
 was thus held that where an appeal had been based solely on
duplicity (in the middle of the trial of the appellant) that
contention and objection would not be allowed.

ii. In Darkwa v The Republic [1973] 1 GLR 431 it was held that
putting the words “demanding” and “obtaining” in the same
count was bad for duplicity but this was not fatal to the
prosecution‟s case since there had been no miscarriage of
justice.

iii. See also the case of R v Asiegbu 1937 WACA 142.

On the strength of the above cases and the combined effect of

sections 109 and 110 (1) and (2) of the Criminal and other offences
Procedure Act, 1960, Act 30, it is clear that even though the charge
sheet is bad for duplicity and was not drafted in the best of terms,
the provisions of section 110 (2) operate to nullify the type of
submission learned counsel for appellant intends since no
substantial miscarriage of justice has resulted thereby and most
importantly, the objection to the charge sheet was not taken
timeously. I will therefore dismiss grounds (a) and (c) of the appeal.

Ground F

The Court of Appeal erred when it refused to follow a precedent

from the Supreme Court.

That the Court of Appeal is bound by decisions of the Supreme

Court is well established. See articles 129 (1) and (2) of the
Constitution 1992. According to Counsel for the appellant the
38
Supreme court in the case of Bonsu alias Benjilo v The Republic,
SC GLR 112 listed the essential ingredients of the offence of
possession of narcotic drugs. Specifically, counsel for the appellant
quoted my respected brother Atuguba JSC as follows:

“From the foregoing, I hold that on a charge of possessing of

narcotic drug under PNDCL 236 the prosecution must prove: (i)
custody or control of the drug by the accused; (ii)
knowledge of the presence of the drug;…and (iii)
knowledge of the nature and quality of drug possessed. I
hasten to say that proof of any of these ingredients may be
actual or constructive…”emphasis supplied.

Counsel for the appellant argued that the respondent failed to state
the nature and quality of the narcotic drug the appellant was
accused of, and this omission, by reason of the decision in Benjilo
is fatal as to render the conviction and sentencing a nullity which
has to be quashed.

Admittedly, PNDCL 236 does not speak of cocaine, but drugs, as

the Court of Appeal found.

However, with the peculiar facts of this case, where the appellant
and the other accused persons found themselves in, whilst some
carried cocaine and appellant carried heroin, and where also they
were charged jointly by the same charge sheet, the best practice
would have been to specify that the appellant carried heroin and

39
not cocaine like the other accused persons to avoid any
embarrassment and confusion to the appellant.

Besides, I am drawn to the holding by my respected learned brother

Atuguba JSC, that the prosecution must prove those ingredients
(emphasis mine). Proving here does not suggest that, the
prosecution must state the nature and quality of the drug
possessed failing which the court would consider that omission so
grave as to result in quashing of a conviction and sentence. The fact
is that the appellant had been found in possession of a narcotic
drug.

I am certain that Section 112 of Act 30 and the case of Hodgson v

The Republic [2009] SCGLR 642 is instructive on issues
concerning the disclosure of the specific particular narcotic drug on
the charge sheet. As the Court in Hodgson found, what is relevant
is that the appellant knew the nature of the offence he was being
tried for. Section 112 is quite elaborate on these issues;

“112 (1) Subject to the special rules as to indictments mentioned

in this section, a charge, complaint, summons, warrant or any
other document laid, issued or made for the purpose of or in
connection with proceedings before a Court for an offence shall
be sufficient if it contains a statement of the offence with which
the accused person is charged together with the particulars
necessary for giving reasonable information as the nature of the
charge and although there may be a rule of law to the contrary

40
 it shall not be necessary for it to contain any further particulars
other than necessary particulars.”

Even prior to completion of the trial due to the U-turn plea the
accused made, evidence of PW1 gave appellant reasonable
information as to the offence she was being charged with. Ground
(e) on the issue of amending „cocaine‟ to read „heroine‟ is partly
answered by Section 112 of Act 30 and the Hodgson case.

Ordinarily, I would have considered these lapses on the part of the

prosecution as serious enough to merit the quashing of the
conviction and sentence. But considering the evidence of PWI the
Narcotics Control Officer when he testified that the narcotic drug
found on the appellant was heroin at the time that appellant had
counsel in court, any irregularity should have been raised at that
stage or subsequently.

In view of my opinion on the remaining grounds of appeal on the

change of plea by appellant from not guilty to guilty during the
course of the trial, it is my opinion that the decision of the Court of
Appeal was not a refusal to follow a binding Supreme Court
decision.

This is because if one considers the evidence of PWI Timothy

Abolimpo which I have referred to, any lapses or irregularities in
establishing the proof of the narcotic substance found on the
appellant had been filled in by the evidence. This ground of appeal
is also dismissed.

41
Grounds b and d

The Court of Appeal erred when it held that the trial judge was
right in accepting the plea of the Appellant without explaining
the consequences to the Appellant

“The Court of Appeal erred when it failed to consider the

effects of section 171 of the Criminal Procedure Act 30, 1960
on the change in the plea of the Appellant at the trial High
Court”

The case before the honourable court presents a peculiar problem

of balancing the effect of an irregularity as against upholding
strictly the liberty of accused persons. The need to uphold respect
and uphold the liberty of an accused person, all in a bid to ensure
that the appellant is dealt with justly, is without distinction a
necessity as it applies in summary trials or trials by indictment.
Counsel for the appellant makes strong argument against the lack
of careful inquiry, as it were, by the learned trial judge when
appellant made a U-turn plea of guilty. S A Brobbey in his
invaluable book “Practice and Procedure in the Trial Courts &
Tribunals of Ghana” lays it out succinctly on situations where an
accused person suddenly changes his plea from „not guilty‟ to
„guilty‟. He writes:

“It sometimes happens that in the middle of a trial or after some

appearances in court, an accused person suddenly changes his
plea from not guilty to guilty with or without explanation. It is

42
 the duty of the magistrate or trial panel in such a situation to
pause for “judicial thought” and inquire from the accused the
circumstances leading to the sudden change of plea and record
his answers…”

The present case before us presents the very situation envisaged by

the learned author. Even more, this case presents a stronger
argument for the need for “judicial thought”. This is an accused
person who at the first day of trial refused to plead to the charges
read to her on the basis that her lawyer was not present. Then
ironically in the absence of her lawyer, this same appellant changes
her not guilty plea to guilty. I am of the opinion that the best
practice was for the judge to have been placed on alert, and made
further enquiries as to the sudden change of mind by the appellant
and in the absence of her counsel.

Let me use this occasion to urge our prosecution team to adopt

practices, best practices, as they are normally called, especially
when issues arise that involve the respect for the freedom of the
accused persons. Let me hasten to add that the balance between
over-indulgence in technicalities and best practices may not always
be simple. However, where these technicalities can have dire
consequences on the freedom of the accused persons, this should
enure to the benefit of the accused person. In advocating for best
practices to be adopted by the prosecution, I can envisage examples
like in this case, the omission to state the nature of the drug and
the joinder of accused persons (as I have discussed already), which

43
are not so grave and weighty enough to result in miscarriage of
justice, as against the omission to enquire into the appellants
sudden decision to change her plea in the absence of her lawyer.

Let not a broader interpretation than is necessary be placed on

Section 406 of Act 30. The limit should be where such irregularity is
so grave and weighty as to unjustly take away the liberty of an
accused person. As much as possible, let the Republic strive to
adopt best practices that will seek to respect the freedom and
liberty of an accused person that are enshrined in the Constitution
1992. After all, the Republic is better placed and much resourced to
prove the guilt of the accused and must do so humanly possible
without flouting well laid principles bordering on the protection of
the liberty of the accused. Does this practice I am advocating for not
share the same reason behind the well-known principle of “proving
the guilt of the accused person beyond all reasonable doubt.”

Needless to say, judges when they serve in their capacity are judges
not just for the prosecution but to all citizens alike including
accused persons, and so must be slow to take away the freedom of
the accused person, more so in situations like we have before us. I
am of the opinion that the judge should have done more than just
re-read the charges to the appellant and convict her on her own
plea. There is nothing on record to show the reason for the sudden
change in plea. Who knows what could have accounted for the
change in plea. Such best practices, I am also sure will eradicate
most of the unproven allegations like what was being alluded to in

44
the present case that the appellant had been told that if she
changed her plea the prosecutor will go and see the judge in
„chambers‟ and beg for her. If the judicial enquiry had been made,
which would have been in open court, the reason will have been
evident, and any such “begging in chamber” reasons may have
come up for the judge to address accordingly.

I am fully aware that in advocating for these best practices, guilty

persons might be escaping the course of justice as was done in the
case of Egbetowokpor v Republic [1975] 1 GLR 485. In answer to
counter-arguments by skeptics of the best practices I am
propounding the dictum of the Court of Appeal in the
Egbetowokpor case is suitable, that:

“We fully appreciate that in view of the result we have reached,

guilty persons may well be escaping justice. If this be so, we
cannot but regret it. But our duty is to do justice not according to
our own lights but in accordance with the law as we conceive it”

Indeed, it is better for a hundred guilty persons to walk away than

for an innocent person to be punished.

A similar situation like this arose in the U.S. Supreme Court Cases
of Miranda v Arizona 384, U.S 436 (1966) and Massiah v United
States, 377 U.S. 201 (1964).

FACTS IN THE MIRANDA CASE

Ernesto Miranda was arrested by the Police on suspicion of a

kidnap and sexual assault. The victim identified the suspect,
45
Ernesto Miranda at the Police station. In accordance with U.S
standard operating procedures, the suspect Miranda was taken into
a private interrogating room. The suspect was not advised that he is
entitled to be represented by a lawyer before he is interrogated.

Two hours later, the suspect signs a confession. There was no

evidence that Miranda was physically or mentally abused. The
confession statement includes a statement that, the suspect has
“full knowledge of his legal rights and understanding that any
statement he makes may be used against him.”

But on appeal, the U.S Supreme Court held that once Miranda was
taken into police custody and before any interrogation could begin,
the Police had the constitutional duty under the 5th Amendment to
advise him that he had the right to refuse to answer any questions
and to be represented by a lawyer, and if Miranda chose to take
advantage of those rights, the Police could not interrogate him in
anyway. The Supreme Court further ruled that, and because the
Police failed to advise Miranda of these rights now known in the U.S
as “Miranda Rights”, before they questioned him and obtained his
confession, Miranda‟s conviction was thrown out, just as other
convictions have been thrown out for similar reasons since the
decision in Miranda had been handed down by the U.S Supreme
Court.

See other cases like

46
Harris v New York 401 U.S 222 (1971) decided by a vote of 5-4
majority, where the U.S. Supreme Court per Warren Burger for the
stated that:

“while Miranda can be read as prohibiting the use of an

uncounseled statement for any purpose, such a reading was
unnecessary to its logic and thus not controlling”

Miranda case, Burger noted was not a license to use perjury with
no risk of being confronted with prior inconsistent statements.

The rationale of the decision of the Court can be seen against the
background of the fact that the courts seem to enforce the
viewpoint that since it might be easier and quicker for law
enforcement authorities to solve a crime by forcing a confession
than it is to solve an offence through painstaking investigation,
particularly where the evidence may be hard to come, by it is better
to expect that the law enforcement agencies prove their case
without the testimony of the suspects. This principle which is the
bedrock of English law and is part of the common law principles
which both the U.S and Ghana have enshrined in their
Constitutions.

For example, the Fifth Amendment to the U.S. Constitution

commands that no person “shall be compelled in any criminal case
to be a witness against himself.”

On the other hand, the Sixth Amendment to the U.S. Constitution

among other rights, guarantee‟s the right to Counsel.

47
FACTS OF THE MASSIAH CASE

The case of Massiah v United States, already referred to is a case in

point, where the court by a majority vote of 6-3 held that a
defendant is entitled to the right of his Counsel.

This was an appeal where the U.S Sixth Amendment which

guarantees a defendant the right to rely on Counsel as the medium
between him and the investigating and law enforcement agencies
was enforced and applied.

It should be noted that, the rationale of the Sixth Amendment is

that, once adversary proceedings have begun, the government
cannot by pass the defendant‟s lawyer and deliberately elicit
statements from the defendant himself.

The facts in the Massiah case are that, after he had been indicted
for federal narcotics violations, Winston Massiah, retained a lawyer
pled not guilty and was released on bail. Jesse Colson, a co-
defendant who has also been released on bail, invited Massiah to
discuss their pending case in Colson‟s car. Unknown to Massiah,
his Co-defendant had become a federal agent and had hidden
recording gadgets in his car. Their conversation was broadcast to a
nearby federal agent.

As expected, Massiah made several incriminating statements. These

facts are different from a typical confession or self incriminating
case as was observed in Miranda v Arizona. Nevertheless, a 6-3
majority vote of the U.S Supreme Court held that the defendants

48
statements could not be used against him. The main important
feature of the decision was that after adversary proceedings
had commenced against the defendant and at a time when he
was entitled to a lawyer’s help the government had deliberately
set out to elicit incriminating statements from him in the absence of
Counsel. This the court held, constituted a violation of the
defendant‟s Sixth Amendment right to Counsel.

I wish to emphasise here that I am by no means by reference to

these cases seeking to import wholesale, constitutional rights and
their applications of the U.S. into this country. But it is sufficient
to take note that, having embarked upon a constitutional system of
government, then it behoves on us as a nation to attempt to
practice it as best as we could by drawing useful lessons from the
rich experience of countries like the U.S who have practiced it for
well over 200 years. It is in this light that I believe we have fallen
short of the best practices which will enable us as a country to rob
shoulders with the big brothers like U.S and U.K.

Once an individual, in this case the appellant has evinced a clear

intention to rely and insist on her right to Counsel, steps must be
taken to ensure that the enjoyment of this right is not curtailed and
or abused.

The principle in the Massiah case, referred to supra was also

applied by the U.S Supreme Court with more potent force in the
following case:

49
1. Brewer v Williams 430 U.S 387 (1977) 178

In our circumstances articles 14 (2) already referred to supra and

19 (2) (c) (d) (e) and (f) of the Constitution 1992 which provides as
follows:-

“A person charged with a criminal offence shall:

(c) be presumed to be innocent until he is proved or has

pleaded guilty

(d) be informed immediately in a language he understands,

and in detail of the nature of the offence charged.

(e) be given adequate time and facilities for the preparation

of his defence.

(f) be permitted to defend himself before the court in

person or by a lawyer of his choice”

are all provisions meant to protect the sanctity of the liberty of the
individual facing criminal prosecution. It is therefore clear that the
constitutional provisions dealing with the arrest, arraignment and
trial of persons suspected of having committed crimes must follow a
certain pattern or procedure.

In the instant case as stated many times in this judgment, the

appellant has evinced a very strong and clear intention to be guided
by a lawyer of her choice from the very beginning of the trial.

50
It should have struck the learned trial judge as odd, when only after
her insistence that she will not even plead to the charges in the
absence of her lawyer, she suddenly changes her not guilty plea to a
guilty plea.

What I deduce from our constitutional provisions in articles 14 (2)

and 19 (2) (c) (d) (e) and (f) of the Constitution 1992 and the Fifth
Amendment of the U.S. Constitution is that, every person who is
accused of having committed a criminal offence has the right and
the power to insist that the government through its massive and
coercive organs of state prove the accusations through real,
substantive evidence and that every person is provided safeguards,
like a lawyer, and an unbiased court, to resist the oppressive
conduct and might of those in power when they want to get at you.

In the light of the above, it does appear to me sufficiently that those

constitutional guarantees in our Constitution 1992 have been
violated against the appellant in so far as the learned trial judge
failed to make the necessary enquiries to help disabuse the minds
of all and sundry that the protections afforded suspects in the
Constitution 1992 have not been violated.

The vex question which I have to answer is, does this constitutional
breach, technical though it might seem constitute a substantial
miscarriage of justice such as would entitle the appellant to an
acquittal?

51
In the Miranda case, even though the confession upon which his
conviction was based was thrown out, the Police re-assembled the
evidence, retried him and Miranda was convicted.

In the instant case, I observe from the record that the appellant was
arrested at the Kotoka International Airport, Accra on the 9th of
August, 2009. She was convicted on the 4th day of May 2010 by the
High Court in the following terms:

“The accused person is convicted on her own plea of guilty to

both counts of the offence levelled against her. She is sentenced
to 10 years imprisonment on both counts to run concurrently.
The sentences are to take effect from the day of her arrest
under article 14 (6) of the 1992 Constitution of Ghana. The
authorities of Narcotics Control Board are to return her
belongings to her. She should be deported from the country after
serving her sentence.”

In view of the fact that the appellant has been in custody since 9 th
August 2009 which is well over two and half years, no useful
purpose will be served in ordering a re-trial in this case. Re-trials
are ordered when the appellant has not served a substantial part of
the sentence. I consider the period the appellant has served in
prison as substantial of the 10 years sentence. I will therefore order
that the appellant is acquitted and discharged on grounds (b) and
(d) and she should be released forthwith.

52
 (SGD) J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT

ANIN YEBOAH, JSC

I had the opportunity of reading beforehand all the opinions of my esteemed

colleagues. I am of the opinion that the appeal be dismissed.

I am of the view that all criminal proceedings in common law jurisdictions are

regulated by statutes. In Ghana, criminal proceedings in both summary trials and

trials on indictments are regulated by the Criminal and Other Offences

(Procedure) Act, 1960 Act 30. Like my sisters in the majority, I find no provisions

in the Act 30 which denied the appellant her rights under the existing constitution

or any other law for that matter. Care must be taken not to import certain rights

on accused persons which to me are not conferred by any existing law into our

criminal procedure.

What my esteemed brothers in the minority are advocating appears to be a

desirable requirement but not a statutory requirement which would lead to any

53
substantial miscarriage of justice for us to quash the conviction. I therefore vote

for the dismissal of the appeal which to me is based on purely technical point

which is without merits under the circumstances.

(SGD) ANIN YEBOAH

JUSTICE OF THE SUPREME COURT

GBADEGBE JSC:
I have had the advantage of reading the incisive opinion of my worthy
brother, Dotse JSC and I agree entirely with him that the instant appeal be
allowed. In view of the importance which I think the point touching the right
to counsel for an accused person raises for our consideration, I wish to
add a few words of my own for coming to the conclusion that the appeal
herein be allowed. The right to counsel is provided for in article 14.2 of the
1992 Constitution as follows:
“A person who is arrested, restricted or detained shall be
informed immediately, in a language that he understands, of the
reasons for his arrest, restriction or detention and of his right to
counsel or lawyer of his own choice.”

54
This provision is one of the fundamental human rights contained in Chapter
Five the 1992. In the opening article to the said chapter of the Constitution
it is provided as follows:
“The fundamental human rights and freedoms enshrined in this
Chapter shall be respected and upheld by the executive,
Legislature and Judiciary and all other organs of government
and its agencies and, where applicable to them, by all natural
and legal persons in Ghana, and shall be enforceable by the
courts as provided for in this Constitution.”

In my view, these are carefully drafted words that were provided for the
protection of the rights of citizens and indeed every person within Ghana
and place an onerous responsibility in particular on the Judiciary. When this
provision is read together with article 14.2 of the Constitution, it is quite
clear to say that the right to counsel for an accused person is of
fundamental importance to our criminal justice system. Within the context
of the 1992 Constitution, the right to counsel is the central element of our
adversary criminal system. A constitution sets out in my opinion the values
of any society informed by historical events and when as in this case we,
as a nation have made these elaborate provisions as part of our criminal
justice system, it behoves us all to do nothing that might be seen as
undermining their efficacy and accordingly it becomes a valuable standard
by which to measure the essentials of fairness in criminal adjudication.

Although the right of a person charged with a crime to counsel may not be
deemed fundamental and essential to fair trials in some countries having
55
regard to our constitution it is of fundamental importance. In my thinking, for
a criminal trial to have the approbation of validity, it must satisfy due
process requirements. The fundamental right to counsel provided for in
article 14.2 of the Constitution in my view is substantive in its nature and
not merely one of procedural due process only. As it seems, the right to
counsel if not knowingly waived should be available to an accused in order
that the trial should not only be fair but for the purpose of upholding the
integrity and accuracy of the fact finding process by which a conviction
might be reached with the resultant deprivation of the right to personal
liberty, which is also one of the fundamental human rights provisions
contained in the 1992 Constitution. What this means is that when there is a
proven violation of the right to counsel, it like any other breach of the
Constitution by article 2 .1 calls for the intervention of the Supreme Court in
the exercise of its enforcement jurisdiction by making any order or such
orders that it considers fit under article 2.2 to give effect to the declaration
of invalidity of the act that might have been done in breach of the right to
counsel as its breach impairs fairness of the proceedings. It is useful at this
juncture to refer once again to article 12.1 of the 1992 Constitution in terms
of the responsibility that is placed on us as judges; a responsibility that is
reasonably expected from all persons within Ghana subject to the
Constitution to be discharged in accordance with the provisions of the
Constitution. See: Okorie v The Republic [1974] 2 GLR 272

In my opinion, although this is an appeal, we cannot close our eyes to the

provisions of articles2.1 and 12.1 of the 1992 Constitution. In the event of a
breach of the fundamental right to counsel, the court is enabled to enforce
the constitution by taking cognisance of it to invalidate the act that is
56
founded on its breach. Now, from the record of appeal before us in the
matter herein, it is undisputed that on the very first day that the parties were
arraigned before the trial High Court, the appellant herein asserted her right
to counsel whereupon the court adjourned the taking of her plea to the
charges that she was facing along with others. At page 10 of the record of
appeal, the court adjourned the taking of her plea on all the counts. The
record of proceedings for the day regarding the taking of her plea is as
follows:
“3rd accused says her lawyer is not present so she will not
plead to the charge.”

Consequently, on the next adjourned date of 23 November 2009, she

pleaded to the charges in the presence of her lawyer as appears at page
11 of the record of appeal before us. I think that in granting the appellant
herein the opportunity to plead to the charges only in the presence of her
counsel, the learned trial judge was not acting benevolently but properly as
this was within the right of the appellant by virtue of article 14.2 of the 1992
Constitution. In my view, if the learned trial judge had not made an
accession to the said request of the appellant regarding the presence of
her counsel, the proceedings would have been vitiated. Indeed that the
learned trial judge was aware of his limitations to proceed in the absence of
counsel for the accused persons is borne out by the proceedings of 28
January 2010 at page 12 of the record of appeal wherein the following
entry is made:
“ACCUSED COUNSEL: Pleading for a short time to reconsider
their pleas.
By COURT: Case is adjourned to 3rd February 2010.”
57
The record of appeal at page 14 discloses that indeed on the next
adjourned date of 23 February 2010, the pleas of the 1st and 2nd accused
persons were actually retracted in the presence of counsel after the
charges had been read over and explained to them. Based upon their
retraction, the learned trial judge proceeded to convict them and sentenced
them to ten years imprisonment. It is interesting to observe that so far the
right to counsel that is enshrined in the 1992 Constitution was respected by
the learned trial judge regarding the presence of counsel at the
proceedings at which the pleas were taken and subsequently retracted.

As the appellant herein did not retract her pleas of not guilty to the charges,
the trial of the offences against her was commenced on the same date as
appears at pages 15-18 of the record of proceedings with the further
hearing adjourned to 10 March 2010. The record reveals that although the
matter was adjourned to 10 March 2010, for no reason apparent from the
record of proceedings the further hearing of the matter was continued on 4
May 2010.On that date, the record of proceedings at page 19 has the
following entry for the proceedings of the day.
“Accused person present.
George K Ofori for the Republic present.
Accused person informs the court that she wants to change her
plea.
By COURT: The charges should be re-read to her.
Charges read to the accused person.
COUNT 1: Plea: Guilty.
COUNT 2: Plea: Guilty.
58
 BY COURT: The accused person is convicted on her own plea
of guilty to both counts of the offence levelled against her. She
is sentenced to 10 years imprisonment on both counts to run
concurrently…..”

Within the context of the record of proceedings that has been previously
referred to in the course of this judgment, there is a noticeable departure by
the court from what transpired at the initial taking of the pleas of the
accused persons to the charges and also when their pleas were retracted
or changed. The previous proceedings were in the presence of counsel but
at that date she did not effect any change to her pleas.

In my thinking, having previously adjourned the proceedings in the

presence of counsel for the pleas of the accused persons to be
reconsidered over a period of one week, when in the absence of her
counsel, the appellant indicated to the court that she desired to have a
change of her plea, the learned trial judge mindful of her assertion of the
right to counsel should have paused to inquire from her where her counsel
was and whether she desired to proceed with the matter on her own. In my
opinion, there was the need for the learned trial judge to have made an
inquiry regarding the absence of counsel. If counsel was absent but still
acting in the matter, I think this called for a short adjournment to enable
counsel to be present in court to give meaning to article 14.2 of the 1992
Constitution. If, on the other hand, counsel was no longer acting in the
matter and the appellant had indicated her wish to act on her own then in
line with settled judicial opinion in such matters the court would have to

59
advise her of the consequences of a change of plea from not guilty to
guilty.

It cannot be said having regard to the learned trial judge’s previous course
of conduct regarding the taking of the pleas of the accused persons and in
particular, the appellant who had by her indication on the very first day of
arraignment asserted her constitutional right to counsel that there was a
compliance by the court with article 14.2 before the change of plea was
received on 4 May, 2010. In my opinion, any reasonable person who was in
court from the first day of the arraignment of the accused persons would
have thought that the retraction of the plea in the absence of counsel was
not fair. For myself, I think it was odd indeed if an accused who before then
had insisted on asserting the right to counsel could lose that right without
the court making any inquiry to establish if she desired now to proceed on
her own. This becomes difficult to comprehend when instead of the further
hearing being conducted on 10 March 2010 it was proceeded with long
after the said date on 4 May 2010.

Although section 199 of Act 30, of the Criminal Procedure and Other
Offences (Procedure) Act, which was referred to by the appellant in her
submissions to us deals with trials on indictment, it is observed that the
practice has crept into summary trials such as to be deemed to be part of
the existing practice in criminal trials when there is a change of plea by an
unrepresented accused person from not guilty to guilty. It being so, beyond
the constitutional provision contained in article 14.2 one can say based on
the practice of our courts in such cases that its violation is a good ground
for avoiding proceedings based thereon. I do not think that our courts can
60
have different standards depending on whether or not a retraction of plea is
in a trial that is proceeding by way of indictment or summarily and
accordingly the failure to satisfy this statutory requirement is fatal to the
conviction.

I am of the view that on the date that the appellant requested to retract her
pleas to the charge, the learned trial judge did not afford her of the
protection provided by article 14.2 of the right to counsel in criminal
proceedings and that the violation of this fundamental right is sufficient to
invalidate the entire proceedings founded thereon. It is to be observed that
violations of provisions of the constitution are grave matters and once a
court is satisfied that there has been such an infraction then the act which
is based on the said infraction should be invalidated by the court, there
being no discretion in the matter. For my part, the point on which this
decision turns being one of non-compliance with due process requirements
is not concerned with the merits of the case brought against the appellant
and it being so “the axe must fall where it falls.” It does appear to me that
the right provided in article 14.2 has not been respected by our courts for a
considerable length of time but that should neither give legitimacy to it nor
fetter our enforcement jurisdiction in preventing its further breach, it being
an act that is not sanctioned by the Constitution. I venture to say that
beyond the decision of the Court of Appeal in the Okorie case (supra)
which was applied by Taylor J (as he then was) in the Republic v Akosa
and Another [1975] 2 GLR 406, when the right to counsel was considered
one rarely comes across any other previously decided case in which the
point came up for decision within the scope of this judgment regarding the

61
availability of the right to accused persons in the performance of their cases
in court before conviction is entered against them.

It would appear to me from a fair reading of the constitutionally protected

right to counsel for an accused person that its violation renders the plea
accepted involuntary and consequently one that cannot be the lawful basis
of a conviction in our criminal justice system. The scope of the right to
counsel permits a plea to be taken from an accused only in the presence
of counsel where as in this case the appellant has asserted her right to
counsel and not waived same. Judges must recognise that once there has
been a violation of a constitutionally protected right then there is inherent in
the acts founded on the violation of those right other factors might come
into play that cumulatively have the effect of rendering the guilty plea such
as occurred in the case herein unreliable and indeed involuntary.

Before putting this matter to a rest, I wish to say that in the proceedings
before the Court of Appeal particularly at pages 2-3 of the record of appeal
herein, the appellant in her deposition in support of her application for
extension of time to appeal made reference in paragraphs 18-20 to some
matters that in my view were so grave that though denied by they tended
to raise the issue of the retraction of the pleas having been induced by
certain representations that were allegedly made to her. Perhaps, an
inquiry into them might establish that they were not true but in its absence
one cannot say that the retraction of the pleas was voluntary .I think article
14.2 of the 1992 Constitution is intended to prevent the state taking
advantage of uncounselled accused persons who might be thought of as
unable in the absence of counsel to prepare their cases. Our training as
62
lawyers is a special skill that the constitution makers in their wisdom think
should be available to persons who are accused of crimes and we should
uphold the fundamental right so provided in an effort to deepen
constitutionalism in this country.

In my thinking even guilty persons are entitled to be advised of strategies

for their defence in the conduct of criminal cases in the same way as
innocent persons and as such the violation of this fundamental right when
properly asserted must result insetting aside any conviction that is founded
thereon. When people are accused of crimes and going through trials, the
role of counsel is of utmost importance in ensuring that they are properly
advised in preparing their defence and all the options that are available to
them are explained to them to ensure that the trial process is fair and also
to uphold the integrity of the judicial process by which their right to personal
liberty might be curtailed following their conviction. I am of the opinion that
the right to counsel for accused persons if not respected by our courts
would render article 14.2 a mere expression of lofty principles that are
devoid of any substance. Such a state of affairs would not only be
regrettable from the point of view of our duty in terms of our oath to
“preserve, protect and defend the Constitution” but undermine the corollary
duty of our citizens to respect the Constitution.

In the circumstances, the appellant’s appeal to this court on grounds that

touch and concern the violation of her right to counsel is allowed.

63
 (SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT

COUNSEL
AUGUSTINE OBOUR FOR THE APPELLANT
K. ASIAMAH-SAMPONG (PRINCIPAL STATE ATTORNEY) FOR THE
RESPONDENT

64