INTRODUCTION
The Author earlier published a paper on the topic ‘Conviction and Sentence in Absentia; Effective date of Sentence, Settling the Uncertainty; The Case of Sedina Tamakloe-Attionu, Former MASCLOC CEO[1]. The paper was a response and the Author’s contribution to the discussion in legal circles on the issue of ‘when a sentence takes effect in respect of a person sentence in absentia or a person who has absconded from justice’. A view had been expressed that a court could not pass a sentence and suspend the effective date of same because by the Criminal and Other Offences (Procedure) Act 1960 (Act 30), the sentence takes effect and includes the day on which it is passed.[2] The Author took a contrary view and provided basis for the contrary position and argued that, the law properly construed, the sentence of a fugitive of justice does not commence until that person is either re-arrested or extradited and brought into prison custody.

After the publication of the paper, the Author came across a decision of the High Court Sunyani presided over by His Lordship Justice Nathan Parker Yarney in the case of Augustine Yeboah v Attorney-General[3]. This paper intends to discuss and review the said decision of the Honourable Court in the said case as it relates to the subject matter of whether a sentence can be suspended or whether it takes effect on the day it is pronounced even in respect of absconding accused persons. Parker Yarney J in that case concluded and with admirable indignation in the Author’s view exposed the further absurdity in the view that by law a sentence of an accused starts from the day it is passed regardless of whether the person absconds before or during the sentence. His Lordship Parker Yarney J. will suggest, and the Author agrees that such a person may be liable for prosecution for the abscondence.

The facts in the case of Augustine Yeboah v Attorney-General

In the case of Augustine Yeboah v Attorney-General, the appellant was arrested in 2014 for the offence of stealing and arraigned before the Circuit Court, Berekum. The Circuit Court after trial convicted him of the offence and sentenced him for ten years imprisonment. A warrant of Commitment dated 1^st December 2014 was issued for the commencement of the sentence of the appellant. According to the appellant, he appealed against the sentence to the High Court and per the judgment of Seidu J dated 12^th June 2023, the sentence was reduced to nine (9) years from the date of conviction. By this fact the Appellant contends that he should have been released from imprisonment, however a second warrant of commitment was found in the prison dated 31^st March 2022 which prevented his release. An application to the Circuit Court Berekum differently constituted[4] to set aside the second warrant of commitment was refused on the 2^nd September 2024. The Republic in their written address disclosed the circumstances surrounding the issuance of the second warrant of commitment thus,

“on the same day the Appellant was convicted by the Circuit Court, that is 1^st December 2014, on which day accordingly, the first warrant of commitment had been issued, he absconded and never got to start his sentence. In 2022, about 8 years after, the Appellant was arrested, and sent to the Circuit Court, Berekum. The Circuit Court, Berekum, presided over by H/H Osei Kofi Amoako caused a new warrant of commitment to be issued dated 31^st March 2022. Upon that issuance the Appellant was committed to commence his sentence on that date”.

To the mind of the Author, the above shows that the appellant was sentenced on 1^st December 2014 and by operation of section 315(3) his sentence ought to have begun on the same 1^st December 2014, but on that same day he absconded, failed to commence the sentence until he was arrested after eight years in 2022. By the literal, narrow and sole application of section 315(3) of the Criminal and other Offences (Procedure) Act, 1960 (At 30), that would have meant he would have only two more years to serve having been able to abscond for eight years, without serving his sentence. In the Author’s view, nothing can be more incongruous than this interpretation.

It was the decision of the Circuit Court presided over by His Honour Osei Kofi Amoako dated 2^nd September 2024 which was the subject matter of the appeal before the High Court presided over by Parker Yarney J. His Lordship Justice Parker Yarney, concerned about the enigmatic circumstances, conducted a thorough review of the decision of His Honour Osei Kofi Amoako, who had determined that the second warrant of commitment dated 31^st March 2022 was not irregular. He delivered himself in the following words,

“This second issuance of a warrant of commitment became necessary because the Appellant, immediately upon conviction absconded, and did not actually commence his sentence from which the warrant dated 1^st December 2014 was issued. Surely, if the Appellant was in prison custody in commencement of his sentence, a second warrant of commitment later in 2023 would not have been necessary. This makes the case of the Republic believable that the Appellant did not start his sentence decreed on 1^st December 2014. Though that warrant of commitment was duly issued upon the conviction of the same day the Appellant absconded, and remained unavailable till his rearrest in 2022.”

Parker Yarney J seized with these facts posed a rhetorical question thus,

“Is the Appellant through his lawyer asking this Court to disregard the fact of his abscondence from serving his sentence levied on 1^st December 2014? Is that a true and proper interpretation and conclusion to be arrived at in the face of the facts alleged by the Respondent as the reason for the issuance of the replacement warrant of commitment?”

The Author posits that the reaction of Parker Yarney J supra should be the reaction of anyone on whom the argument that the sentence commences on the date of pronouncement and so an absconding convict will only serve the remaining term after his re-arrest is urged. This makes the absurdity in the application of section 315(3) of Act 30 to absconding convicts more apparent if not legally nauseating.

Counsel for the Appellant in seeking to convince the Appellate Court, although Parker Yarney J remained unconvinced, argued inter alia in his paragraphs 5.5, 5.7 and 5.8 thus,

“5.5. My Lord, under Ghanaian law, the sentence of a convict cannot be suspended to be served on a future date. Suspended sentences apply under very limited circumstances. There are only three instances in which a sentence of imprisonment may be suspended.”

In paragraph 5.7 he argued thus,
“My Lord, apart from these limited circumstances, there is no place for suspended sentences in our law. Thus, where an accused is tried in absentia or absconds and the sentence run (sic) and is subsequently extradited to serve his or her punishment such a convict will only be liable to serve the remainder of the sentence at the time of the extradition.”

The Appellant argues in paragraph 5.8 thus,
“My Lord any view that the sentence of imprisonment is automatically suspended merely because the offender absconded will be contrary to the clear provision of section 315(2) of Act 30. Apart from suspending a sentence of imprisonment as clearly provided for by law, there is no other way of keeping a conviction and sentence in abeyance. It runs notwithstanding that the offender is on the run or absconded.”

In the Author’s view the absurdity in this construction of the law is problematic and same was dealt with in the previous paper.[5] A careful reading of section 33 of the Courts Act, to which the Author shall return shows that the argument in paragraph 5.8 above is legally untenable.

In determining the appeal, the Court through Parker Yarney J. had this to say,

“With all due respect to the Appellant and his lawyer, this opinion, argument or howsoever referred to is but a heresy. It does not represent a correct statement of the law. Should that be the case, then Act 30 of 1960 would be incentivizing abscondence.”

The learned Judge spoke the mind of the present Author in the dictum above. It is not the intendment of the law to encourage or incentivize abscondence let alone doing so by legislation. The Author suggests that any law that seeks whether expressly or impliedly to encourage abscondence or any interpretation to that effect is not worthy of being on the statute books of the Republic and any such interpretation remains unattractive and must be jettisoned. The learned Parker Yarney J continued thus,

“The convict tries his luck, runs away and enjoys his time, knowing that should he be rearrested he will face no consequence for absconding. That would make nonsense of the sentencing powers of the courts. That would subject the court’s authority and integrity to ridicule.”

The Author agrees with the Judge that the argument advanced by the Appellant makes mockery of the justice system, especially so when absconding is itself an offence and such a person must be punished for breaking the law with his abscondence, such a person in the Author’s view must be reprimanded, possibly charged with the relevant criminal offence and prosecuted, but not to be welcomed with a freedom party as he dances to welcome his newly found freedom and liberty.

Speaking directly to the issue of section 315, the learned Parker Yarney J after reproducing the relevant provision had this to say,

“With the greatest of respect, no part of the provision suggests that any part of the term of imprisonment decreed is forfeited if the convict absconds before commencement of the term, which includes the day the sentence is decreed. That would clearly offend Section 226(2) of Act 30 of 1960 cited above. If therefore, upon abscondence a convict is rearrested, upon the operation of Section 226(2) it becomes necessary for a new warrant of commitment to be issued accordingly to give true and proper effect to the sentence to be served from the time of the rearrest.”

His Lordship therefore admonished as follows,

“In the present circumstances therefore, Section 315(1) and (2) should be read together with Section 226(1) and (2) in view of the circumstances presently placed before the Court, and by that, the issuance of a second warrant of commitment upon the rearrest was right.”

For the avoidance of doubt and ease of reference the two provisions are reproduced below. Section 315(1) as cited in the judgment provides that,

“Where a person is sentenced to a term of imprisonment, the Court which sentenced him shall issue a warrant of commitment ordering that the sentence shall be carried out in any prison in Ghana and the warrant shall be full authority to the police and prison officers to take, convey and keep that person and to all other persons to carrying into effect the sentence described in the warrant.

”315(2) A sentence of imprisonment shall commence on and include the whole day on which it was pronounced.

Section 226 (2) of the Criminal and Other Offences Act, 1960 (Act 29) provides that,

“Where a person in lawful custody under a sentence of imprisonment escapes, the time during which the person is at large shall not be taken into account in computing the term of the original sentence” (emphasis supplied).

In the Author’s view the combined effect of the above provisions leaves one in no doubt that an absconding convict cannot and should not be made to benefit from the abscondence and only serve the remainder of the offence when he or she is rearrested.

Rescue, Escape, Compounding Crime.
In the study of Philosophy, it is recounted of the father of Philosophy, Socrates, that at the age of seventy (70) years he was put on trial in Athens for impiety and corrupting the youth. He was thus tried and convicted by a jury of about five hundred (500) Athenian men. He spent his final weeks in Athenian prison. He had an opportunity to escape from imprisonment, but he declined. He chose to obey the Athenian law and accept his sentence and execution rather than escape, despite frantic pleas from his own loyal friend Crito, who had visited him in his prison cell having bribed the guards to arrange an escape, yet Socrates refused. His argument was that a good life must be ruled by justice, and escaping would mean breaking his implicit “social contract” with his state Athens and returning evil for evil. In his view therefore, once he has been sentenced by the law, an escape is not an option despite the opportunities so to do.

When an act is an offence, it is against public policy and good conscience that the offender will stand to benefit from that conduct which is proscribed by law and even if not proscribed by law, shunned by society. The law in Section 226 (1) (c) of the Criminal and other Offences Act, 1960 (At 29) creates an offence thus,

“A person commits a misdemeanor who endeavours to resist or prevent the execution of the law, by escaping personally or permitting to be rescued by any other person from lawful custody”.

By the clear and express provision of the law therefore, a person is under obligation not to escape personally or permit him or herself to be rescued from lawful custody. It therefore is incongruous to argue that a person who has either absconded after his or her sentence would be deemed to have served part of the imprisonment during the time of the abscondence, in the Author’s view, if this is not absurd one wonders what else it will be.

The Author therefore suggests that a convict who escapes either at the beginning of the sentence as happened in the case of Augustine Yeboah v the Attorney-General or during the term of imprisonment is unworthy of any protection by the law left alone benefit under section 315 of the Criminal and other Offences (Procedure) Act 1960 (Act 30) as has been argued by some scholars. It is in this light that the Author agrees with Parker Yarney J. when he delivered himself at the conclusion of his judgment thus,

“In view of the fact that the act of absconding from lawful custody upon conviction is an offence, albeit a misdemeanor, the Registrar is directed to forward a copy of this judgment to the Office of the Attorney-General with a request for investigation and prosecution of the Appellant for the offence established in Section 226(1) and (2) of Act 30 of 1960”.

The Author notes that the correct legislation is section 226(1) and (2) of Act 29 and not Act 30. In the view of the Author, the learned judge was mindful of the presumption of innocence under Article 19(2)(c) of the Constitution 1992, even under these circumstances hence the direction to the Registrar to forward a copy of the judgment to the Office of the Attorney General for investigation and prosecution. Parker Yarney, J further concludes on the conduct of the Appellant thus,

“That conduct, and brazenness in the attempt to perpetrate deceit on a court of law should not go without retribution.”

The Honourable Court, therefore, rightly in the Author’s view, dismissed the appeal and reinstated the 10-year sentence decreed by the Circuit Court.

The dictum of Parker Yarney J gives judicial impetus to the view of the present Author. The decision provides a direct judicial blessing of the Author’s view held in the previous paper earlier referenced and rejects the view that section 315 (3) applies in all instances including persons sentenced in absentia and the view that sentence cannot be suspended. It is trite learning that decisions of the Superior Courts of Judicature are parts of the sources of our laws. Article 11 (2) of the Constitution, 1992 provides in this regard that,

“The common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Courts of Judicature.” (emphasis supplied).

The Constitution 1992 provides that the,
“The Judiciary shall consist of (a) the Superior Courts of Judicature comprising (i) the Supreme Court; (ii) the Court of Appeal; and (iii) the High Court and Regional Tribunals.” (emphasis supplied).

The decision in the case in reference Augustine Yeboah v Attorney-General emanating from a High Court therefore has the force of law under Article 11 albeit not from a Supreme Court or Court of Appeal.

Correct Interpretation of Section 315(3) of Act 30

The Author is at pains to in the broader picture of the law put a proper construction on section 315(3) of the Criminal and Other Offences (Procedure) Act 1960, Act 30. The Author is not oblivious of the fact that he is not a judge but relies on the statement by that prominent French Philosopher, Rene Descartes when he said, “Cogito ego sum” translated as “I think therefore I am”. As a thinking being, therefore, one can attempt to suggest the proper interpretation of a provision of an enactment, of course subject to the interpretation by judicial minds, with superior wisdom to which the Author would bow. It is said that the law lies in the bosom of the judge, which according to Dotse JSC in the case of Republic v High Court (Financial Division 3) Ex Parte Ms Arch Adwoa Company Ltd, Auditor-General and Attorney-General as interested Parties[6], is a saying which has crystalized into a principle of law, which although may be a fallacy, is accepted and widely held principle which has been applied in common law jurisdictions, the Republic of Ghana not excepted.

In the Author’s humble view, the proper construction to be placed on section 315(3), “A sentence of imprisonment commences on and includes the day on which it is pronounced” is that, in computing the days of imprisonment, the date for the pronouncement must be added. Once the convict is in custody, the day of the sentence shall be counted as a full day irrespective of the time of the day of the pronouncement. It does not mean, in the Author’s humble view, that even if the convict is sentenced in absentia, the sentence of imprisonment has commenced even in absentia through abscondence. In civil proceedings, when a party is supposed to take a certain step within a number of days, the date on which the party is served is sometimes counted in commuting the time. In the same vein, it is the view of the Author that the only interpretation to be placed on this section is that, in computing the number of days to be served under an imprisonment, the date on which the imprisonment is pronounced must be counted. This in the Author’s respectful view is irrespective of the time of the day the sentence is pronounced. It is trite that a day is made up of twenty-four (24) hours, and so the section implies that in computing the period to be served in imprisonment, the day on which the sentence is pronounced is counted as a full day.

Is there a Conflict between Section 315(3) of Act 30 and Section 33(4) of Act 459?

The Author reproduces the relevant parts of section 33 of the Courts Act below for ease of reference.

“Section 33(1) The Court before which a person is convicted or the Curt to which an appeal is made may, on the application of the appellant, grant the appellant bail pending the determination of the appeal. (2) Where the appeal is lodged by a person entitled to appeal, the Court to which the appeal is made may, pending the hearing and for reasons to be recorded by it in writing, order that the execution of the sentence or the order appealed against be suspended. (3) The time during which an appellant is released on bail pending the determination of the appeal shall not count as part of a term of imprisonment under the sentence. (4) Subject to subsection (3), and to the directions given by the Court, a sentence of imprisonment begins to run as from the day on which the prisoner is received into prison under the sentence” (emphasis supplied).

The two provisions above seem to be at cross purposes. Section 33(4) of the Courts Act, 1993 (Act 459) provides that, “Subject to subsection (3), and to the directions given by the Court, a sentence of imprisonment begins to run as from the day on which the prisoner is received into prison under the sentence”.

The Courts Act indicates that the period of imprisonment commences from when the prisoner is received into custody[7], while the Criminal and Other Offences (Procedure) Act 1960 (Act 30) says that the period of imprisonment commences on the day it was pronounced[8].

If there is a conflict between the two provisions on the commencement dates of the sentence, that conflict must be resolved with the use of aids, maxims and rules of interpretation known to law, some of which the Author proposes to invoke to attempt a resolution of the seeming conflict.

In Statutory interpretation, Generalia specialibus non derogant’ is a latin maxim that translates, general provisions do not derogate from special ones’. It dictates that, when a conflict arises between two legal rules or provisions, the law that provides for the specific subject prevails and takes precedent over the law that provides for general matters. It is one way the Courts have used to resolve conflicts between two statutes. In the case of Bonney & 4174 Others v GPHA[9], the Supreme Court was called upon to resolve a conflicting provision between the Ghana Ports and Harbours Authority Act 1986 (P.N.D.C.L 160) and the Limitations Act, 1972 (NRCD 54). The GPHA legislation provided that action must be taken within 12 months, while the Limitations Act provided for a limitation period of six (6) years. Their Lordships at the apex court had the task to determine between the general law on limitations (NRCD 54) and the specific legislation (GPHA Act) which one ought to prevail, their Lordships sought refuge in the maxim and stated the position as follows through Rose C. Owusu JSC,

“Whenever there is a general enactment in a statute which if taken in its most comprehensive sense, would override a particular enactment in the same statute, the particular enactment must be operative, and the general enactment must be taken to affect only the parts of the statute to which it may properly apply and delivered themselves succinctly thus, “in this therefore, the Limitation period of 12 months under the Ports and Harbours Authority law overrides the Limitation period of 6 years under the Limitation Act in actions founded on contract”.

In the instant scenario, the two legislation are the Criminal and other Offences (Procedure) Act 1960, (Act 30) and the Courts Act, 1993 (Act 459). It is the humble view of the Author that using the maxim above, the Act 30 may prevail over the Limitations Act. Since this will produce an absurdity, the Author seeks refuge in another maxim or principle of interpretation.

The rule of interpretation to which resort may be sought is known by the latin maxim ‘lex posterior derogate priori’ which translates to ‘a later law repeals or overrides an earlier one’. This is used in event of conflicting provisions in different statutes to resolve the conflicts in enactments enacted at different times. There is a presumption of interpretation that the legislator is presumes to know the law. There is therefore the understanding that the legislature’s most recent expression of intent reflects its current will. It serves as an implied repeal of the previous law or the law enacted earlier in time to the extent of the conflict, such that the earlier statute gives way to the subsequent legislation. Again, in the case cited above, Bonney & 4,174 others v GPHA[10] the Supreme Court adopted this maxim thus, “Indeed, PNDCL 160 of 1986 is a later legislation and would ordinarily repeal the Limitation Act except that in this case, whereas PNDCL 160 was specifically made in respect of Ports and Harbours and related matters, the Limitation Act is of a general application”.

Using the above therefore, the Author suggests that to the extent of the conflict between section 315(3) of the Criminal and other Offences (Procedure) Act 1960 (Act 30) and section 33(4) of the Courts Act, 1993 (Act 459), the provision in Act 30 which was enacted in 1960 must bow and give way to the provisions in the Court Act which was enacted in 1993. This interpretation accords with common sense, reasonableness and achieve the purpose of punishment.

Learnings from the decision in Augustine Yeboah v Attorney-General

A reading of the decision of the learned court produces the following

1. Clarity that a sentence imposed can be suspended by operation of law.

2. A person who has absconded from serving his or her sentence cannot benefit from the law in particular section 315 of Act 30.

3. When a person absconds from imprisonment, the sentence is suspended for the period of abscondence.

4. A person who absconds from serving the term of imprisonment commits a criminal offence of misdemeanor and is liable for prosecution and can be further imprisoned for a term in addition to serving the full term of the substantive imprisonment from which he or she absconded.

5. When a person absconds and is rearrested, a new warrant of commitment can be issued effective from the time of rearrest for the convict to serve the full sentence imposed by the court in addition to the possibility of prosecution under section 226 of the Criminal and other Offences Act, 1960 (Act 29).

Conclusion.
From the above, the Author suggests that this decision has provided judicial settlement to the subject of controversy in addition to the principles discussed in the Author’s previous paper. The Author believes the judgement by the High Court Sunyani presided over by Parker Yarney J. has settled this matter and placed same beyond controversy.

[1] https://www.gurahsampsonlaw.com/conviction-and-sentence-in-absentia-effective-date-of-sentence-settling-the-uncertainty-the-case-of-sedina-tamakloe-attionu-former-masloc-ceo/ or https://www.modernghana.com/news/1506942/conviction-and-sentence-in-absentia-effective.html

[2] Section 315 (3)

[3] Unreported case with Suit Number F15/001/2025 judgment delivered on 21^st May 2025

[4] His Honour Osei Kofi Amoako

[5] https://www.gurahsampsonlaw.com/conviction-and-sentence-in-absentia-effective-date-of-sentence-settling-the-uncertainty-the-case-of-sedina-tamakloe-attionu-former-masloc-ceo/ or https://www.modernghana.com/news/1506942/conviction-and-sentence-in-absentia-effective.html

[6] Civil Motion No. J5/32/2019 judgment dated 10^th April 2019.

[7] Section 33(4) of Courts Act, 1993 (Act 459)

[8] Section 315(3) of the Criminal and other Offences (Procedure) Act, 1960 (Act 30)

[9] Civil Appeal No. J4/39/2012 judgment dated 29^th January, 2014 reported in [2014] Part 75 GMJ 76

[10] [2014] Part 75 GMJ 76