DIVISION: IN THE HIGH COURT, ACCRA
DATE: 23RD SEPTEMBER, 1963
BEFORE: AKAINYAH J.
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION. The prosecution appealed against the acquittal of the respondent by a
district court. The respondent raised an objection to the appeal on the ground that the prosecution has no
right of appeal against an acquittal by a district or juvenile court.
COUNSEL
C.B. Zwennes, Assistant State Attorney, for the appellant.
Koi Larbi for the respondent.
JUDGMENT OF AKAINYAH J.
The respondent was tried by the District Court, Accra, on a charge of stealing the sum of £G50 and was
found not guilty and acquitted. The Commissioner of Police has appealed to this court against the
acquittal. On the 26th June, 1963, Mr. Koi Larbi, counsel for the respondent, took a preliminary point, that the
appellant cannot appeal against an acquittal therefore the appeal is not properly before the court. He
submitted that under section 324 (2) of the Criminal Procedure Code, 1960,1 the prosecution can only
appeal against a “conviction” or “order” of a district court ;or a juvenile court but not against an
“acquittal”. The respondent was acquitted therefore the prosecution has no right of appeal.
Counsel did not cite any authority on the point but referred to Osborne’s Concise Law Dictionary and
Archbold’s Pleadings, Evidence and Practice in Criminal cases (33rd ed.) for the definitions of the words
[p.338] of [1963] 2 GLR 336
“conviction” and “order” and submitted that the word “order” did not include an acquittal.
Mr. Zwennes for the appellant submitted that he was surprised that the point had been taken by Mr. Koi
Larbi because the prosecution always appealed under section 324 (2) of the Criminal Procedure Code,
1960. He contended that the section was clearly intended to confer a right of appeal on the prosecution
from an acquittal. He further contented that it was not necessary to invoke the aid of a dictionary if the
meaning of a word can be found in the Code; that offences under the Criminal Code, 1960,2 and (subject
to the provisions of any other enactment) all other offences shall be enquired into, tried and otherwise
dealt with according to the Criminal Procedure Code, 1960; and that the Code is, therefore, the primary
source of construction and that dictionaries are secondary. Counsel then referred to sections 330 (1) and
415 of the Criminal Procedure Code, 1960, and section 4(a) of the Criminal Code, 1960, and seriously
submitted that by virtue of section 330 (1) of the Criminal Procedure Code, 1960, the word “order” must
be taken to include the word “acquittal,” therefore the appeal is properly before the court. He too cited no
case in support of his submissions. I have considered the arguments carefully. Although the word “order”
is not defined in the Criminal Procedure Code, 1960, it is defined in section 1 of the Criminal Code, 1960as follows: “order includes a conviction.” I have read also the provisions of the Criminal Procedure Code,
1960, in an attempt to discover the intention of the legislature on that very important and fundamental
point and to give effect to it. I must say that I am not impressed by Mr. Zwennes’ contention. According to the provisions of the
Criminal Procedure Code, 1960, it is clear that the legislature did not intend to confer any right of appeal
on the prosecution against an acquittal from a district court or a juvenile court to this court. The word
“acquittal” instead of the word “order” which appears in section 330 (1) of the Criminal Procedure Code,
1960, is rather unfortunate; because it has resulted in ambiguity. But whether the use of the word
“acquittal” was deliberate or accidental, I am of the opinion that the legislature did not intend to create or
to confer a new right of appeal on the prosecution which did not which did not exist before, without
saying so expressly in the operative or enabling section of the Criminal Procedure Code, 1960. An
acquittal has always been a bar to further proceedings upon the same facts against the same accused upon
the maxim nemo debet bis vexari pro una et eadem causa. It is a principle of great antiquity and one
which is so firmly established that it cannot be swept away or whittled down merely by counsel’s forensic
ingenuity and subtlety. An appeal against an acquittal is a further trial on the same facts, for the same
offence, of a person who has been tried by a court of competent jurisdiction and acquitted, therefore, if
the legislature wish to abrogate or eliminate the principle it is competent to do so but it must be done in
language which is clear and unambiguous.
[p.39] of [1963] 2 GLR 336
When section 175 of the old Criminal Procedure Code3 was repealed, its provisions were re-enacted by
section 113 of the Criminal Procedure Code, 1960,4 in the following express words:
“A person who has been once tried by a Court of competent jurisdiction for an offence, and convicted or
acquitted of the offence, shall not be liable to be tried again on the same facts for the same offence or any
other offence of which he could have lawfully been convicted at the first trial unless a retrial is ordered by a
Court having power to do so.”
It seems to me that the legislature preserved the principle and it cannot reasonably be said to have been
abrogated.
In my view the word “order” in section 324 (2) of the Criminal Procedure Code, 1960, means any
command, decree or direction given by a district court or a juvenile court against a person before it, which
that person must obey and the breach of which, gives rise to punishment or execution, for example: (a)
when a juvenile court makes an order against the parent or guardian of a juvenile who is a destitute, or is
deserted by his relatives or has a parent or guardian who does not exercise proper guardianship or is an
orphan, to enter into a recognisance to exercise proper care and guardianship: Criminal Procedure Code,
1960, s. 349; or (b) where a person charged with a felony is not convicted yet an order is made by a
district court that he should pay compensation to the complainant. In such a case, either the prosecution or
the defence may appeal on a question of law to this court against any such order of the district court or
juvenile court. But where there has been an acquittal simpliciter, there is no command, decree or direction
which the freed man must obey. There is no obligation on him at all.
I hold therefore that there is no right of appeal by the prosecution against an acquittal and this appeal is
dismissed accordingly.
DECISION
Appeal dismissed.
K.T.
