HIGH COURT, ACCRA
Date: 7 NOVEMBER 1975
TAYLOR J
CASES REFERRED TO
(1) Commissioner of Police v. Akoto [1964] G.L.R. 231.
(2) Micah v. Bruce [1971] 1 G.L.R. 153.
(3) R v. Ajani (1936) 3 W.A.C.A. 3.
(4) Eregie v. Inspector-General of Police (1954) 14 W.A.C.A. 453.
(5) R. v. Osabu and Maaseyo (1957) 3 W.A.L.R. 180, C.A.
(6) In re Mason [1928] Ch. 385; 97 L.J.Ch. 321; 139 L.T. 477; 44 T.L.R. 225.
(7) Affail v. The Republic [1975] 2 G.L.R. 69.
(8) Beevis v. Dawson [1957] 1 Q.B. 195; [1956] 3 W.L.R. 1016; [1956] 3 All E.R.837; 100 S.J. 874, C.A.
NATURE OF PROCEEDINGS
OBJECTION by defence counsel to an application by prosecuting counsel to reply to a submission of no case to answer.
COUNSEL
S.E. Asamoah, Senior State Attorney (with him Doku, State Attorney and Kankam Poku, Assistant State Attorney), for the Republic.
Bob Anane for the first accused.
James Ahenkora for the second accused.
JUDGMENT OF TAYLOR J.
The facts of this case are not necessary for the purpose of this ruling. The first accused person was charged on an indictment with attempted abortion contrary to the Criminal Code, 1960 (Act 29), ss. 18 (2) and 58. The prosecution led evidence in an attempt to substantiate the particulars of the charge as contained in the bill of indictment. At the close of the case for the prosecution yesterday, counsel for the first accused made a submission of no case to answer. At the end of his submission, counsel for the Republic sought to reply to his submission but counsel for the first accused raised an objection that the Republic has no right of reply having regard to the case of the Commissioner of Police v. Akoto [1964] G. L.R. 231, herein referred to as the Akoto case, a judgment of the High Court in a criminal appeal. He referred me to the ostensible second holding in the headnote to that case which reads:
“The prosecution has no right of reply in a case where a submission of no case has been made by the defence because the law did not make any provision for an answer to be made to a submission of no case.”
I must confess that I find this proposition difficult to understand and I therefore read and re-read the case cited in an effort to discover the ratio decidendi and therefore the legal basis of what in my view is an extraordinary holding.
The case arose out of an acquittal in the district court following a submission of no case and it seems to have been taken for granted in that case that the alleged right of the defence to make a submission of no case to answer is founded on section 173 of the Criminal Procedure Code, 1960 (Act 30). The section reads:
“If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him.”
After defence counsel had drawn my attention to these matters and counsel for the Republic had practically left the matter to me, I overruled the objection of defence counsel yesterday and reserved my full reasons for the ruling to today. I did this because it is my view that the point at issue is of extreme and practical importance to the proper administration of justice in this country and it is therefore necessary to examine the matter very carefully.
I now proceed to give my reasons for overruling the objection. Before doing that, however, I must remark that my general inclination in the view I take of my judicial duty is to spurn any argument directed at silencing counsel who appear before me unless I have no discretion in the matter. In a ruling in Micah v. Bruce [1971] 1 G.L.R. 153 at p. 160, I made this position of mine clear, I there said:
“I conceive of my duty as relentlessly to allow parties who appear before me to have full opportunity to canvass all points which will contribute to a fair decision of the matter in controversy between them. I will therefore spurn any arguments directed at silencing parties who appear before this court . . . I do not think it will be a proper exercise of discretion if I shut out the argument when there is the probability that it may help the court to come to a just decision.”
In my view in an adversary system of jurisprudence like ours, the court must endeavour at all times to hear both sides. Nothing can be lost from hearing all parties but a lot can be lost by impatience and a refusal to listen. The scales of justice cannot be evenly balanced if equal opportunities are not given to the parties.
The case I have in hand is on indictment and in my opinion the corresponding provision to section 173 of Act 30, for cases on indictment, is section 271 of the Criminal Procedure Code, 1960 (Act 30). That section provides as follows:
“The Judge may consider at the conclusion of the case for the prosecution whether there is any case for submission to the jury, and if the Judge is of opinion that there is no evidence that the accused has committed any offence of which he could be lawfully convicted
[p.413] of [1975] 2 GLR 410
on the indictment upon which he is being tried, the Judge shall forthwith direct the jury to enter a verdict of not guilty and shall acquit the accused.”
I am prepared to concede that if the suggested interpretation given to section 173 of Act 30 is correct, then section 271 of Act 30 is also amenable to the same interpretation and accordingly by the same parity of reasoning, counsel for the Republic will have no right of reply.
In the Akoto case (supra) counsel for the State submitted that the proper interpretation of section 173 of the Criminal Procedure Code, 1960 (Act 30), is that the court must decide whether or not there is a case to answer without any submission by counsel for the accused. He then conceded that counsel for the prosecution had no right of reply because the law did not make any provision for a submission of no case. There is something rather anomalous and not so logical about this submission, for if there is no right of reply because the law contained in section 173 makes no provision, then there is equally no right to make a submission of no case because the said law also makes no provision. Since the submission mentions a reply, the reply must be dependent on a submission and consequently the whole argument assumes the character of the classic poser about the chicken and the egg. Which came first?
Be that as it may, in his decision Akainyah J. (as he then was) endeavoured to come to grips with this submission. He said at p. 233:
“With respect, I do not agree with learned counsel’s narrow interpretation of section 173. A person charged before the court is entitled as of right to make his defence. In his own interest, it is his duty to make it appear to that court, that no case has been made out against him sufficiently to require an answer from him. He can do so either by himself or by his counsel who is his legal spokesman. That right to make the time-honoured submission of no case to answer, is a fundamental principle of our criminal procedure. If the legislature intended to take away that right, it would have done so in express terms. The wording of section 173 of the Criminal Procedure Code, 1960, is exactly as the wording of section 169 of Criminal Procedure Ordinance (Cap. 10 (1951 Rev.)) which it repealed and section 286 of Criminal Procedure Ordinance (Cap. 43) of Nigeria. In the learned exposition of the law relating to the submission of no case to answer by Kingdon C.J. (Nigeria) in R. v. Ajani ((1936) 3 W.A.C.A. 3) and by Verity C.J. (Nigeria) in Eregie v. Inspector-General of Police ((1954) 14 W.A.C.A. 453) discussed by the Ghana Court of Appeal in November 1957, in R. v. Osabu & Maaseyo ((1957) 3 W.A.L.R. 180, C.A.), decided under section 169 of Cap.10 and section 286 of the Nigerian Criminal Procedure Ordinance, the right of the defence to make the submission of no case to answer was neither challenged nor doubted.”
It is clear therefore that Akainyah J. did not hold that the prosecution has no right of reply.
[p.414] of [1975] 2 GLR 410
The second holding elicited from the decision in the headnote in the Ghana Law Reports is in the circumstance erroneous for the case did not decide any such thing. It was merely a point made apparently by the defence and conceded to by counsel for the Republic but which it appears the judge disagreed with. His decision would seem to be primarily directed at demonstrating the right of the defence to make a submission of no case to answer and nothing more. Unfortunately the authorities relied upon by Akainyah J. (as he then was) to support the proposition that the defence has a right, presumably an inalienable right to make a submission of no case are inapposite and the conclusion derived from them is in my opinion of doubtful validity.
I propose therefore to examine the claim inherent in the application of these cases that they support the alleged Akainyah proposition formulated in the holding of the headnote. The first of the cases is R. v. Ajani (1936) 3 W.A.C.A. 3. In that case a submission of no case was never made at the trial. The case in fact turned upon the legal position in cases where the prosecution has made out no case against an accused but in spite of that he is called upon to enter upon his defence. The question of a submission of no case merely arose in the argument when the acting Solicitor-General submitted at p. 5 that since at the close of the case for the prosecution no submission of no case was made, the court on calling the accused was entitled to look at the whole case in order to decide whether there was evidence on which to convict. The question of the right of the defence to make a submission of no case was never in issue as it was in the Akoto case and in the instant case. The second case, Eregie v. Inspector-General of Police (1954) 14 W.A.C.A. 453 is a very short decision indeed. Nowhere in the two-page judgment of Verity C.J. is there any reference however remote to a submission of no case. In R. v. Osabu and Maaseyo (1957) 3 W.A.L.R. 180, C.A. the third case referred to, the effect of a submission of no case was considered in an exhaustive decision of Adumua-Bossman J. (as he then was). The issue, however, as to whether in Ghana the defence has a right to make the submission was never raised before the court and in my view that case cannot properly be taken as an authority on the question of the right of defence counsel to make a submission of no case in Ghana. Having regard to these cases and the wording of section 271 of Act 30, I am afraid I am unable to subscribe to the conclusions which found favour with Akainyah J. (as he then was) in the Akoto case.
Sitting as a High Court judge, I think our doctrine of judicial precedent demands that the utmost respect be given to previous decisions of my brothers in the High Court, even though the said decisions are merely of persuasive authority. Where, however, the authorities cited in support of a holding do not support the said holding, I think the matter begins to wear a different aspect. Faced with a not too dissimilar a situation Romer J. stated in In re Mason [1928] Ch. 385 at pp. 400-401:
[p.415] of [1975] 2 GLR 410
“The opinions of such high authorities as Lord Cranworth, Lord Wensleydale, and Lord Chelmsford must naturally be received with the greatest respect. I may, however, be pardoned if I venture to criticize their opinions, seeing that the point was never argued on the part of the respondents, and that the argument on the part of the appellants, so far as this point is concerned, does not appear to have been supported by the citation of any reported case or other authority.”
As I see it, the Akoto case (supra) cited to me by counsel for the defence does not support the proposition that defence counsel in Ghana have a legal right in the accepted sense of the term “right” to make a submission of no case.
The position in England is of course quite clear. In Archbold, Criminal Pleading, Evidence and Practice (36th ed.) at para. 549 is stated in relation to trials on indictment:
“At the close of the case for the prosecution a submission may be made (either in the presence or the absence of the jury) that there is insufficient evidence to justify the case being left to the jury either in respect of the whole indictment or in respect of one or more counts. If the judge upholds a submission in respect of the whole indictment, he will direct the jury to return a verdict of Not Guilty; if he upholds the submission in respect of one or more counts only, he will inform them that when he comes to sum up he will direct them to return a verdict of Not Guilty in respect of such count or counts.”
The word may appearing in the above passage is significant as demonstrating the exercise of a discretion.
In summary trials before justices in England the practice is not dissimilar and the point that the right to a submission of no case is a concession to the advocate is forcibly brought out in Stone’s Justices’ Manual (93rd ed.) at pp. 265-266 where it is stated :
“In a criminal case, where the onus of proof lies on the prosecution, an advocate for the defence should be allowed a greater freedom to submit that there is no case to answer without being required to elect whether or not to rest his case on the submission.”
(The emphasis is mine.)
It has long been the practice in Ghana to allow the defence if they are so minded to make a submission of no case. No doubt this must be related to the fact that we inherited our criminal practice and procedure from the English and since the English practice allows it, we also permit it. This of course is an unsatisfactory foundation for the practice because we now have a Code and according to the said code, the Criminal Procedure Code, 1960 (Act 30), s. 1:
“All offences under the Criminal Code and, subject to the provisions of any enactment, all other offences shall be enquired into, tried and otherwise dealt with according to this Code.”
It would seem therefore that the basis of the practice must be looked for in the Criminal Procedure Code, 1960 (Act 30).
Before I advert to the relevant provision, I consider it necessary to refer to what in my view are the respective duties of both the defence and prosecuting counsel in criminal trials in this country. I have already discussed this matter at length in Affail v. The Republic [1975] 2 G.L.R. 69. In that case I drew attention to a number of English authorities and concluded that counsel have, inter alia, a duty to assist the judge to come to a just decision in all criminal matters as in all other matters. It was part of the assumption on which I decided that case that the adversary system is no bar to such assistance. As I said in that case the duty of counsel to assist justice is well entrenched in the law and practice of our courts and its ambit was succinctly canvassed in the views of Singleton and Parker L.JJ. as can be found compressed in the headnote to Beevis v. Dawson [1956] 3 W.L.R. 1016 at p. 1017, C.A.: “
“A member of the Bar is in court to assist in the administration of justice; he is there to help the judge and, when there is one, the jury to arrive at a proper result.”
It is with this in view that I proceed now to examine the relevant provision. As I have indicated I think section 271 of Act 30 already referred to is the enabling provision. That section gives the judge the power to consider whether at the close of the prosecution’s case there is any case for submission to the jury. In this exercise, the court has a general right as I hope I have shown to call upon counsel to assist him to arrive at a just decision. Counsel appearing in the case are officers of the court committed to uphold the integrity of the judicial process: see Affail v. The Republic (supra) and they therefore have a duty to assist when called upon to so assist the court.
It must be emphasised that there is nowhere in Act 30 any provision giving the defence “a right” so to speak to make a submission of no case. Indeed at the close of the case for the prosecution, the judge can decide that a case has been made out, and he can then call upon the accused. If in this situation defence counsel insists that he must be allowed to make a submission of no case, it is my view that it is within the discretion of the judge to agree or refuse and if he refuses in the rightful exercise of his discretion, I cannot see on what basis it can be said that he has erred in law, if the enabling provision is section 271 of Act 30. If indeed there is a legal right to make such a submission then a refusal will clearly be an error of law. I see no provision in our books either in case law or statute giving any such right and the exercise of the privilege for that is what it is, of making this submission of no case in the past can properly be explained as a concession granted to counsel by the presiding judge for the purpose of obtaining assistance in the often onerous and difficult duty of taking away the case from the jury in the interest of justice.
In his judgment in the Akoto case, however, Akainyah J. (as he then was) said at p. 233:
[p.417] of [1975] 2 GLR 410
“I hold . . . that the proper interpretation of the section [i.e. Act 30, s. 173] is that the court’s power to rule that there is no case to answer and the right of the defence to make it so appear to the court by the submission of no case to answer are not mutually exclusive. In my view, they are co-existent and concurrent and counsel for the defence is entitled to make a submission of no case to answer.”
In so far as Akainyah J. can be said to have decided that the defence has a right qua legal right to make a submission of no case, an acquired right which the presiding judge must uphold at any time counsel wishes to exercise it, a right the judge cannot legally ignore, then it is my view that the proposition is not supported by any authority. The right in my view to allow the submission is rather in the judge; and counsel for both the prosecution and the defence at most merely have as I have said a privilege the exercise of which depends on the judge’s discretion.
It is for these reasons that in my search for assistance I overruled the objection of counsel yesterday and called upon counsel for the Republic to reply to the submission of no case for in my view to uphold this objection will be tantamount to depriving the judge of his right to assistance from counsel if he needs it.
I have taken pains to canvass this matter at length because counsel at the bar have informed me that the case of Commissioner of Police v. Akoto (supra) has been consistently and successfully used at the circuit courts by defence counsel for the purpose of depriving the prosecution of the privilege of replying to submissions of no case. In my view this is a most unfortunate development since the judgment of Akainyah J. in the Akoto case does not in any way support this practice. I believe practitioners have been led to do so by the clear mistake in the second holding of the headnote to that case.
DECISION
Objection overruled.
