KUMA v. THE REPUBLIC [1968] GLR 757

DIVISION: HIGH COURT, ACCRA

DATE: 21 AUGUST 1968

BEFORE: AMISSAH J.A.

NATURE OF PROCEEDINGS

APPEAL against the ruling of the committal magistrate dismissing the plea of autrefois acquit raised by the accused as a preliminary objection. The facts are fully set out in the judgment of Amissah J.A. sitting as an additional judge of the High Court.

COUNSEL

P. A. Adjetey for the appellant.

[p.758] of [1968] GLR 757

JUDGMENT OF AMISSAH J.A.

In spite of Mr. Adjetey’s usual persuasive advocacy, I am not in the least bit impressed that there is any substance in this appeal. It is in my view an appeal without merit whatsoever. A case against the accused was first brought for committal before J. F. S. Hansen, Esquire, on an indictment which charged the accused with two counts of stealing. The learned magistrate after an adjournment gave his considered view that the facts supported fraud by false pretences and not stealing and therefore discharged the accused. The prosecution appealed on the point that having regard to the view he took of the facts the magistrate was not entitled to discharge the accused because whether the facts supported the charges preferred or any other offence for which the accused on his trial could be convicted, and fraud by false pretences was one such offence, the magistrate was bound to commit. This court (in Republic v. Kuma [1968] G.L.R. 532) ruled in their favour. In making my order at p. 537 in that appeal I remitted the case to the magistrate “with instruction to commit the respondent for trial if in his opinion there is evidence on the summary which supports the offences charged in the indictment or any other offences for which he, as an accused, could be convicted on those charges at his trial.”

Knowing of the magistrate’s already considered view that the case on the summary supported some such offence, there was not much doubt in my mind as to what this order meant. The case went back to the magistrate’s court and was eventually dealt with by Mr. Hansen again. I do not know, what happened. Perhaps it was due to Mr. Adjetey’s persuasiveness referred to but in another considered opinion, the learned magistrate said the case did not now even support a charge of fraud by false pretences or any other offence and he discharged the accused again. Having regard to this unexpected course that the case took I regret that I did not make my order more specific and request the magistrate to commit the accused on that indictment. The unsatisfactory order which I made was on 24 June 1968. Another indictment, dated 2 August 1968 charging the accused with the same stealing was filed against the accused after his discharge. This time the accused appeared before M. Abakah, Esquire, district magistrate. Objection was taken to his proceeding with the committal on the ground that the accused had once been discharged by the magistrate’s court on the same facts and on the same charges. I know of no law which says that once an accused had been discharged as [p.759] of [1968] GLR 757 distinct from acquitted by a court of competent jurisdiction, he cannot be prosecuted on the same charges and the same facts again. Under our law, an accused person may be discharged on any number of grounds—by the committal magistrate because in his view there is no case for the accused to answer on the indictment or summary, by either the committal magistrate or the trial court upon a nolle prosequi being filed by the Attorney-General, by the trial court on a motion to quash the indictment before the evidence is heard in the actual trial, or by the trial court on a motion in arrest of judgment even after judgment had been given but before sentence has been passed. These are some of the examples. On none of these occasions is the discharge a bar on further proceedings against the accused on the same facts. There is a plea of autrefois convict or acquit in our Criminal Procedure Code, 1960 (Act 30), which enables a court before which a subsequent charge is brought against a man already convicted or acquitted of the same offence to absolve him from liability to the second trial. But it will be noticed from section 113 of the Criminal Procedure Code, 1960 (Act 30), that this privilege from a second trial is limited to cases where the accused has once before been tried and convicted or acquitted by a court of competent jurisdiction on the same charge or any other charge of which he could have been convicted. There is nothing in the Criminal Procedure Code which accords the same protection to an accused who has not been tried but has merely been discharged. The principle on which the person properly tried before is freed from facing a second trial is based on the well known one that a person should not be put in jeopardy twice for the same offence. It is not written in so many words in section 113 of Act 30 but that as I see it is the rationale behind that section. How can the accused, who has never been tried on these charges, claim that he has once before been put in jeopardy or peril of a conviction ? He certainly cannot. That a discharge by the magistrate is no bar from a subsequent charge on the same facts is made abundantly clear by section 184 (5) of the Criminal Procedure Code. Mr Adjetey has argued that “subsequent charge” must mean some different charge. I am unable to accept that view. It means any charge which is brought subsequent to the discharge, on the same facts. And that covers this case. I can see no reason why the expression “subsequent charge” must be restricted only to a charge different in nature from the first. And it is important that this should be the position. If the conduct of Mr. Hansen gives any illustration at all, it is that he was not sure of the law he was propounding on the first occasion. How can anybody be [p.760] of [1968] GLR 757 sure that he was right the second time? Yet his was not the duty to try the accused to find out whether he was guilty or not of the offence charged.

It has been said here that as the district court is one in the Eastern Region and it has discharged the accused once, it is not open to the prosecution to bring the case before another magistrate to ask for a committal. On the contrary the law allows them to bring the accused on a subsequent charge on the same facts before the court and even if it is the same magistrate he has jurisdiction to go into the case again. The magistrate’s jurisdiction in this case is founded on the position that the prosecution have preferred a charge, which they are entitled to, for a trial on indictment. And that under section 44 of the Code, this trial which has to be before the High Court or the circuit court cannot commence before the case has been brought before a district court and committed. Mr. Adjetey has also raised two points before the court which are entirely subsidiary to this. They are of value or importance only if the first point which he raised before the magistrate and which I have dealt with already is right.

In the circumstances I dismiss this appeal summarily. The committal proceedings before Mr. Abakah must continue, and having regard to the course that this case is taking, I recommend that it be dealt with as expeditiously as possible. I understand the case is adjourned by the magistrate to 29 August. On that day he must take my recommendation into account.

DECISION

Appeal dismissed.

S.K.T.

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