HIGH COURT, HO
Date: 20 MAY 1975
ANDOH J
CASES REFERRED TO
(1) R. v. Tsakle (1957) 3 W.A.L.R. 59.
(2) Brooks v. Bagshaw [1904] 2 K.B. 798; 73 L.J.K.B. 839; 91 L.T. 535; 68 J.P. 514; 53 W.R. 13; 20 T.L.R. 655; 48 S.J. 623; 2 L.G.R. 1007; 20 Cox C.C. 727, D.C. [p.18] of [1975] 2 GLR 16
(3) Radcliffe v. Bartholomew [1892] 1 Q.B. 161; 61 L.J.M.C. 63; 65 L.T. 677; 56 J.P.262; 40 W.R. 63; 36 S.J. 43; 8 T.L.R. 43, D.C.
(4) Hardy v. Ryle (1829) 9 B. & C. 603; 4 Man. & Ry. K.B. 295; 2 Man. & Ry. M.C. 301; 7 L.J. (O S.) M.C. 118; 109 E.R. 224.
(5) Williams v. Burgess and Walcot (1840) 12 Ad. & El. 635; 9 Dowl. 544; Am. & H. 65; 4 Per. & Dav. 443; 10 L.J.Q.B. 10; 5 Jur. 71; 113 E.R. 955.
(6) R. v. Middlesex Justices (1843) 2 Dowl. (N.S.) 719; 12 L.J.M.C. 59; 7 J.P. 240; 7 Jur. 396.
(7) South Staffordshire Tramways Co., Ltd v. Sickness and Accident Assurance Association, Ltd. [1891] 1 Q.B. 402; 60 L.J.Q.B. 260; 64 L.T. 279; 55 J.P. 372; 39 W.R. 292; 7 T.L.R. 267, C.A.
(8) Isaacs v. Royal Insurance Co., Ltd. (1870) L.R. 5 Exch. 296; 39 L.J. Ex. 189; 22 L.T. 681; 18 W.R. 982.
(9) Pellew v. Wonford (Inhabitants) (1829) 9 B. & C. 134; 4 Man. & Ry. K.B. 130; 2 Man. & Ry. M.C. 127; 7 L.J. (o.s.) M.C. 84; 109 E.R. 50.
NATURE OF PROCEEDINGS
APPEAL against conviction by a district court of the offence of defilement of a female between ten and fourteen years of age contrary to section 102 (1) of the Criminal Code, 1960 (Act 29). The facts are fully set out in the judgment.
COUNSEL
W.T. Doku for the appellant.
Kotey, State Attorney, for the Republic.
JUDGMENT OF ANDOH J
The appellant, a head teacher, was prosecuted to conviction for the crime of defilement of a female school girl over ten years and under fourteen years of age. The charge, was laid under section 102 (1) of the Criminal Code, 1960 (Act 29). Section 102 (3) of the Criminal Code, 1960 enacts as follows: “No prosecution shall be commenced for an offence under this section more than three months after the commission of the offence.”
It was submitted unsuccessfully in the court below that the prosecution was commenced outside the three months’ limitation period and therefore the magistrate had no jurisdiction to entertain the action. In this appeal the only point worthy of consideration is whether the prosecution was commenced outside the three months’ limitation period imposed by section 102 (3) of Act 29, and if so, whether the trial was vitiated thereby. The learned trial magistrate in rejecting the submission of no case made by counsel in the court below stated that in his view the correct interpretation of section 102 (3) of Act 29 was that prosecution is commenced when a report is made to the police within three months after the commission of the crime. He stated further “the law does not insist that the accused should at all costs be put before the court for his plea to be taken within three months. The emphasis is on a timeous pre-trial, complaint being made to the law enforcers.” By this interpretation, the learned
[p.19] of [1975] 2 GLR 16
magistrate was saying in effect that prosecution had commenced in this case since a complaint had been made to the police within three months after the commission of the crime. Whether this interpretation of the learned magistrate is right is the substantive point to be considered in this appeal. Ground (1) of the appeal which is a repetition of the submission in the court below is stated thus: “Because the prosecution of the appellant was not commenced three months after the commission of the offence, the conviction was bad in law.” Mr. Doku, counsel for the appellant, referred to the undisputed facts on record which formed the basis for this ground of appeal. These are as follows:
The alleged offence giving rise to this prosecution took place on 18 November 1973. No report was made to the police that day. The complainant rather made a report to her grandfather on the same day. On 19 November 1973, at a meeting held in the complainant’s grandfather’s house, the crime was compounded with an offer of 025.00 pacification for the complainant and a forbearing to prosecute the crime. Upon this alleged unlawful settlement reaching the parents of the complainant, the 025.00 pacification money was retrieved from the grandfather of the complainant, returned to the chief of the village who was instrumental in compounding the crime, and a complaint lodged formally with the police on 23 November 1973. The police took the complainant to the hospital for treatment of her injuries and for assessment of her age which was given as eleven years. On 23 November 1973, the appellant was invited to make a statement. No application for summons or warrant was made to any magistrate within the three months after the commission of the crime. On 14 March 1974, the appellant was charged with the crime aforementioned and arraigned before the District Magistrate, Keta. He was prosecuted to conviction in spite of a submission that the prosecution was commenced out of time.
It is upon these facts that Mr. Doku had submitted before this court that since the appellant committed the offence on 18 November 1973 and was charged on 14 March 1974, and put before the court on that date, there could be no prosecution after three months after the commission of the crime. Learned counsel submitted that the period of three months is calculated by excluding the day on which the offence is said to have been committed and including the day on which the prosecution begins in court. He contended therefore that the magistrate’s interpretation of section 102 (3) of Act 29 was tainted or erroneous in law. No authority was cited in support of this proposition of law. Mr. Kotey, the learned state attorney, in reply referred to Archbold, Criminal Pleading, Evidence and Practice (35th ed.), para. 163 wherein the following appears:
“Commencement of Prosecution. The commencement of the prosecution is the preferring of the indictment when it is sent up without a preliminary inquiry; or the laying of the information; or, it would seem, the arrest of the accused person or the application for summons or warrant in respect of the offence.”
[p.20] of [1975] 2 GLR 16
Now the passage referred to by the learned state attorney is not helpful in my view, for the simple reason that in this case it is quite clear from the evidence of the prosecuting officer, the fifth prosecution witness, that no application was made to a magistrate for a summons or warrant to issue in respect of this offence. It is also clear that after the complaint had been lodged with the police no information was laid before a magistrate within the three months for the issue of a summons or warrant. It cannot be said either that by merely arresting the accused upon the complaint received, prosecution had commenced.
The method of instituting criminal proceedings is set out in section 60 (1) of the Criminal Procedure Code, 1960 (Act 30), as follows:
“60. ( 1) Criminal proceedings may be instituted before a District Court in either of the following ways-
(a) by making a complaint and applying for the issue of either a warrant or a summons in the manner hereinafter mentioned; or
(b) by bringing a person arrested without a warrant before the Court upon a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against him, and the time when and the place where the offence is alleged to have been committed. The charge sheet shall be signed by the police officer or public prosecutor in charge of the case.”
It is clear from section 60 of Act 30, that a mere complaint to the police coupled with a statement collected from an accused cannot be said to be a commencement of criminal prosecution before a district court.
In fact at common law, there is no restriction on the right of the Republic to take criminal proceedings. Thus in the absence of any statutory limitation for a particular prosecution, a prosecution may be commenced at any length of time after the offence (nullum tempus occurrit regi). Where however, under section 102 (3) of Act 29, a time limit has been imposed for the prosecution of the offence of defilement of a female of ten years and above and under fourteen years of age, the burden is upon the prosecution to prove that the prosecution is commenced within due time. This is an essential ingredient of the charge and failure to establish it must be fatal to the prosecution’s case: see R. v. Tsakle (1957) 3 W.A.L.R. 59 at p. 60.
The learned trial magistrate in dealing with the matter under consideration referred to many English decided cases; but in my view, all those cases rather indicate that prosecution is commenced when upon information laid before a magistrate, a summons or warrant is issued by the magistrate for service on or apprehension of the accused before the lapse of the period limited for the commencement of proceedings. It would seem that provided this is done, the fact that the summons or warrant is not served or executed within the time imposed by the particular statute
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would not be fatal to prosecution: see Brooks v. Bagshaw [1904] 2 K.B. 798, D.C.
Now the substantial legal point raised in this appeal can be posed thus: When a statute provides that prosecution shall not be commenced after a stated period, from what date is the computation of time as to commencement of proceedings begin? Without precedent, I think one can comfortably guess in the absence of anything to the contrary that the period is calculated from the time when the alleged crime is committed or when a complaint is lodged with the police or the appropriate authority. It could also be when a complaint substantiated on oath is made to the magistrate and acting upon discretion, a summons is issued by him to be served on the accused or a warrant is issued for the apprehension of the accused. There is in fact no hard or fast rule on this matter. Each case must depend upon the statute which made the provision for the restriction.
In this appeal, all efforts to find a local precedent as to how and when the period of calculation is commenced have not yielded any dividend. I am forced therefore to take inspiration from other foreign decisions where the point has arisen and to see at what point of time the calculation was made to begin.
Thus in the case of Radcliffe v. Bartholomew [1892] 1 Q.B. 161, D.C. the facts (as stated in the headnote at p. 161) were as follows:
“By s. 14 of the Act for the Prevention of Cruelty to Animals (12 & 13 Vict., c. 92), every complaint under the provisions of the Act is to be made ‘within one calendar month after the cause of such complaint shall arise.’ On June 30 an information was laid against the appellant in respect of an act of cruelty alleged to have been committed by him on May 30. An objection to the jurisdiction of the justices having been taken, on the ground that the complaint had not been made within one calendar month after the cause of complaint had arisen:—
Held, that the day on which the alleged offence was committed was to be excluded from the computation of the calendar month within which the complaint was to be made; that the complaint was therefore made in time, and the justices had jurisdiction to hear the case.”
(The emphasis is mine.) See also Hardy v. Ryle (1829) 9 B. & C. 603; Williams v. Burgess and Walcot (1840) 12 Ad. & El. 635 and R. v. Middle sex Justices (1843) 2 Dowl. (N.S.) 719. In fact in Radcliffe v. Bartholomew (supra) Wills J. in rejecting counsel for the appellant’s submission that there was distinction between civil and criminal cases in relation to computation of time said at p. 163: “Unless there is something in the suggested distinction to the effect that the same words are to be construed differently in civil and criminal cases, I think that the case is really governed by authority, and that of a very cogent kind.” The learned judge then cited the three English authorities just mentioned above.
Again in the case of the South Staffordshire Tramways Co., Ltd. v. Sickness and Accident Assurance Association Ltd. [1891] 1 Q.B. 402, C.A., the facts (as stated in the headnote) were these:
[p.22] of [1975] 2 GLR 16
“The plaintiffs, a tramcar company, effected with the defendants an insurance against ‘claims for personal injury in respect of accidents caused by vehicles for twelve calendar months from November 24, 1887’ to the amount of ‘[£250] in respect of any one accident.’ On November 24, 1888, one of the plaintiffs’ tramcars was overturned, forty persons were injured, and the plaintiffs became liable to pay claims to the amount of [£833]: — [On the question as to how the twelve calendar months was to be calculated by the court], Held, by the Queen’s Bench Division, that the effect of ‘from’ in the expression ‘for twelve calendar months from November 24, 1887’ was to exclude November 24, 1887, and to include November 24, 1888, in the period of the insurance, and that the defendants were therefore liable…”
See also Isaacs v. Royal Insurance Co., Ltd. (1870) L.R. 5 Exch. 296 where Kelly C.B. observed at p. 300 that the authorities illustrated “the principle that, in general, the day on which the engagement is entered into is excluded, and the last day of the term is included.”
Again in Brooks v. Bagshaw [1904] 2 K.B. 798, D.C. the facts (as stated in the headnote at p. 798) are these:
“By s. 19, sub-s. 1, of the Sale of Food and Drugs Act, 1899, a prosecution under the Sale of Food and Drugs Acts ‘shall not be instituted’ after the expiration of twenty-eight days from the time of purchase.
An information was laid and a summons issued thereon within the twenty-eight days, but, the summons not having been served within the time prescribed by s. 19, sub-s. 2, of the Act, it was allowed to drop, and, after the expiration of the twenty-eight days, a fresh summons was applied for on the same information and issued: —
Held, that there having been no adjudication on the merits of the first summons, a second summons could be issued on the information; and that it was immaterial that the second summons was issued after the expiration of the twenty-eight days, the information, which was the institution of the prosecution, having been laid within that time.”
(The emphasis is mine.) In the immediately preceding case the justices held that even though the information was laid and summons had issued within the 28 days limitation period, yet since there was no service on the accused within the same period, they had no jurisdiction to hear the case. The King’s Bench Division held on appeal against the dismissal of the suit that once summons had issued upon information, it was immaterial that the accused had not been served within the limitation period. See also Williams v. Burgess and Walcot (1840) 12 Ad. & El. 635 where it was laid down that the general rule of practice in the computation of time was certainly to reckon the first day exclusively and the last inclusively. Finally in the case of Pellew v. Wonford (Inhabitants) (1829) 9 B. &. C. 134, it was held that the two days allowed by statute for giving notice of the offence are exclusive of the day on which the incident happened.
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It is clear from all the decided cases which I have cited that whether in civil or criminal cases, where by statute, something is to be done “from” a date, that in the computation thereof, the actual day is excluded from reckoning but the last day is included. Again where the time is given as three months as under section 102 (3) of the Criminal Code, 1960, the three months should be taken to mean three calendar months and Sundays are included in the computation of the time except that if the last day should fall on a Sunday or public holiday, by our own rules of court, the next day would be the last day. I think from all the cases cited that the interpretation put on section 102 (3) of Act 29 by the learned trial magistrate was wrong. Great mischief might and certainly would arise by altering the canon of construction put on the same words according to the subject-matter with which they dealt; and there being no authority in support of so broad a proposition propounded by the trial magistrate, I am certainly not inclined to endorse it. The last day when the appellant should have been put before the court was, upon the authorities cited, on 18 February 1974.
What then is the legal effect when an accused is prosecuted to conviction when the statutory limitation imposed for commencement of proceeding had expired? Is the appellant entitled to an acquittal or what? Mr. Kotey has referred this court to section 159 of Act 30 and prayed this court to substitute a conviction for assault. In fact if this could be done then there would be no problem because the appellant did not deny at the trial that he had sexual intercourse with the complainant. His rejected defence (apart from what has been discussed) was that he had reasonable cause to believe that the complainant was fourteen years of age. Section 159 (1) —(3) of Act 30 reads:
“If on any trial for rape or for defilement of a female under the age of ten years the facts proved in evidence authorise a conviction for defilement of a female between the ages of ten and fourteen years or for an assault and not the offence wherewith the accused is charged, he may be convicted of defilement of a female between the ages of ten and fourteen years, or of assault, as the case may be, although he was not charged with that offence.
(2) If on any trial for defilement of a female between the ages of ten and fourteen years the facts proved in evidence authorise a conviction for an assault and not the offence wherewith the accused is charged, he may be convicted of assault although he was not charged with that offence.
(3) A person shall not be convicted of assault under subsection (1) or (2) unless the assault involved an element of indecency.”
Now it has been shown by the many authorities cited that the magistrate has no jurisdiction to entertain the action. The offence was committed on 18 November 1973. A report was made to the police on 23 November 1973 and the accused was charged before the court on 14 March 1974. If the magistrate lacked jurisdiction to hear the case as undoubtedly he
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did, having regard to the cases cited, then in my view, he could not substitute a conviction for assault. If the prosecution had commenced within the statutory period and the age of the complainant had not strictly been proved, then, of course, the court might convict of the offence of assault. In my opinion, just as the trial magistrate could not have invoked the provisions of section 159 of Act 30 since he had no jurisdiction, the prosecution having commenced outside the statutory period, so this court cannot invoke the said provisions. I think the whole trial was a nullity and it must be so declared and the conviction quashed. The appeal is therefore allowed and the conviction is quashed. The appellant is discharged.
I think a word or two must of need be said of the sentence of the court. The appellant, on conviction, was sentenced to eight months’ imprisonment with hard labour. In addition, a fine of 0100.00 was imposed on him. As regards the fine, 050.00 thereof was ordered to be paid to the complainant as compensation, the other 050.00 was also ordered to be paid to her as her costs. In the event of the fine not being paid, the magistrate ordered that the appellant was to serve a further term of six months’ imprisonment with hard labour.
Sections 139-143 of Act 30 deal with costs and compensation in criminal prosecution and appeals. I think that upon a proper construction of section 139 (1)-(7) of Act 30, while a magistrate may in appropriate cases award compensation to the victims of the crime in addition to ordering the payment of costs in favour of or against a private prosecutor, a magistrate is not authorised by law to order costs to be paid out of a fine imposed. The costs may be awarded in appropriate cases as an additional penalty to the fine imposed.
One of the issues which may arise from this order is whether the appellant could be prosecuted for rape or assault? There is no doubt about this but this is a matter left entirely within the discretion of the Attorney-General, but it seems to me that in the event of fresh charges of rape or assault being preferred
against the appellant in another forum the pleas as to autrefois convict or acquit shall not arise.
DECISION
Appeal allowed.
Conviction quashed.
S.Y.B.B.
