CLERK OF AXIM LOCAL COUNCIL v. TANDOH [1968] GLR 774

DIVISION: HIGH COURT, SEKONDI

DATE: 12 SEPTEMBER 1968

BEFORE: EDUSEI J.

NATURE OF PROCEEDINGS

APPEAL from a decision of a district court grade II awarding costs against the appellant as a private prosecutor. The facts are fully set out in the judgment.

COUNSEL

C. K. A. Anson for the appellant.

K. Bentsi-Enchill for the respondent.

JUDGMENT OF EDUSEI J.

The Axim Local Council by their clerk of council instituted criminal proceedings against the respondent, P. K. Tandoh, for refusing to give information to the Axim Local Council as a rating authority.

When the case came on for hearing before the district court grade II, Axim, the prosecutor did not appear and on representation by the respondent’s counsel the case was struck out and the respondent was discharged. The court awarded N¢40.00 costs to the

[p.775] of [1968] GLR 774 respondent against the Axim Local council. Against this order for costs the council has appealed to this court.

The learned state attorney argued that the clerk of council was acting in his official capacity and therefore was a public prosecutor. In the circumstances it was wrong in law for the district magistrate to have awarded costs to the accused-respondent. The learned state attorney relied on section 139 (3) of the Criminal Procedure Code, 1960 (Act 30), and submitted that the Axim Local Council was not a private prosecutor. He invited the court to consider section 139 (5) of Act 30 and to hold that the Axim Local Council was not a private prosecutor. This subsection states that, “No order shall be made if the Court considers that the private prosecutor had reasonable grounds for making his complaint.” Mr. Bentsi-Enchill, counsel for the accused-respondent maintained that the Axim Local Council was a private prosecutor and the only persons who could be described as public prosecutors are the Attorney-General and his team of state attorneys as well as police prosecutors. There is no definition of a public prosecutor in the Criminal Procedure Code, though section 139 (7) of Act 30 defines “private prosecutor” as “any person who is not prosecuting as public prosecutor.” This definition does not assist us much. However, a careful reading of section 56 of Act 30 may offer some assistance as to whether a clerk of council is a public prosecutor or not. It is to be observed that the Attorney-General may under section 56 of Act 30 appoint public officers to be public prosecutors. The said section 56 of Act 30 states: “The Attorney-General may, by executive instrument appoint generally, or for any specified class of criminal causes or matters, or for any specified area, one or more public officers to be public prosecutors, and may by writing under his hand appoint any legal practitioner or public officer to be a public prosecutor in any particular criminal cause or matter. Any public prosecutor so appointed may appear and plead before any District Court in which any criminal cause or matter of which he has charge or of which he has assumed the conduct under section 57 is under enquiry or trial, and shall be subject to the express directions of the Attorney-General.” I am not aware of the existence of any such executive instrument and the learned state attorney has not been able to show me one wherein it is stated that the clerk of Axim Local Council has been appointed a public prosecutor.

[p.776] of [1968] GLR 774

In the absence of any such appointment by the Attorney-General, I have no hesitation in holding that the clerk of council acting on behalf of his council in these circumstances was a private prosecutor.

I now have to consider the reasonableness of the complaint of the clerk of council. It is indeed difficult for the court to undertake this exercise because there is not sufficient material before me. On the contrary, from the affidavit of the clerk of council it is clear that when the case came on on 27 April 1968, it was adjourned to 10 May 1968, and finally to 7 June 1968, when it was struck out for want of prosecution. As a matter of fact the case was adjourned to 7 June 1968, at the request of the clerk of council but he failed without any reason to appear to prosecute the accused-respondent and the court had no alternative but to strike out the criminal summons against the accused-respondent. I do not think in circumstances like this, when the accused-respondent engaged the services of a counsel to travel from Sekondi to Axim to defend a client it is out of place for the court to award costs.

If private prosecutors undertake prosecutions they must know the consequences that follow their failure to see their work through unless there are reasonable grounds for making the complaint. If private prosecutors are to be given such carte blanche to prosecute one wonders what will become of the liberty of the citizen that we all prize so much. My view is that the costs awarded against the council were justified in the circumstances. At least it will serve as a check against frivolous prosecutions by private prosecutors. The appeal by the Axim Local Council is therefore dismissed.

DECISION

Appeal dismissed.

S. K. T.