KWADU v. THE REPUBLIC [1971] 1 GLR 272

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 9 FEBRUARY 1971

BEFORE: TAYLOR J.

CASES REFERRED TO

(1) Fulani v. The State, High Court, 19 January 1968, unreported; digested in (1968) C.C. 67.

(2) State v. Boye, High Court, 26 January 1966, unreported; digested in (1966) C.C. 54.

(3) Commissioner of Police v. Anum, Supreme Court, 28 June 1965, unreported.

(4) Kofi v. Commissioner of Police [1961] G.L.R. 184, S.C.

(5) State v. Grunshie (Abu), Supreme Court, 20 June 1966, unreported.

(6) Essandoh v. The Republic, Court of Appeal, 4 April 1969, unreported; digested in (1969) C.C. 63.

(7) Republic v. Asare (T.O.), Court of Appeal, 29 July 1968, unreported; digested in (1968) C.C. 137.

(8) Republic v. Fulani (Amadu) [1971] 1 G.L.R. 44, C.A.

(9) Woolmington v. Director of Public Prosecutions [1935] A.C. 462; 104 L.J.K.B. 433; 153 L.T. 232; 25 Cr.App.R. 72, H.L.

(10) Magor and St. Mellons R.D.C. v. Newport Corporation [1952] A.C. 189; [1951] 2 T.L.R. 935; 115 J.P. 613; [1951] 2 All E.R. 839, H.L.; affirming [1950] 2 All E.R.1226, C.A.

(11) Koomson v. The Republic, High Court, 3 December 1968, unreported; digested in (1969) C.C. 29.

(12) Sarpong v. The Republic, High Court, 25 November 1969, unreported; digested in (1970) C.C. 27. [p.274] of [1971] 1 GLR 272

NATURE OF PROCEEDINGS

APPEAL from a decision of the Circuit Court, Kumasi, on 30 May 1968 in which the appellant was sentenced to seven years’ imprisonment with hard labour after having been convicted of possessing forged Bank of Ghana notes contrary to section 18 (2) of the Currency Act, 1964 (Act 242).

COUNSEL

D. M. Adusei for the appellant.

J.C Amonoo-Monney, State Attorney, for the respondent.

JUDGMENT OF TAYLOR J.

On 30 May 1968, the appellant was convicted in the Circuit Court, Kumasi, on one count of possessing three forged Bank of Ghana ten new cedi notes, contrary to section 18 (2) of the Currency Act, 1964 (Act 242). He admitted to one previous conviction for stealing and one for attempted stealing for which he had been sentenced to three months’ imprisonment with hard labour on 28 May 1966 in the Circuit Court, Kumasi. The circuit court thereupon sentenced the appellant to seven years’ imprisonment with hard labour and remarked that the appellant “has criminal propensities and must be dealt with severely.” It is against the conviction and sentence that the appellant appealed to this court. At the summary hearing the appellant abandoned the appeal against his conviction and sought to appeal against the sentence on the ground that the sentence was excessive. I took the view at the hearing that, like many cases of its kind pending before me, the appeal against the sentence entailed a consideration of the validity of the reasoning of Amissah J.A. (sitting as an additional judge in the High Court) in the case of Fulani v. The State, High Court, 19 January 1968, unreported; digested in (1968) C.C. 67. I was in some difficulty as I found the matter a little confusing having regard to previous decisions of the Court of Appeal. I therefore made the following order, after granting leave to appeal against the sentence, since the appellant was not represented by counsel:

“I want legal argument touching on this problem as I find the matter one of extreme difficulty. Although I do not seem to find myself in agreement with Amissah J.A., I think his opinion is entitled to the greatest respect and because the decision may very well be right I am anxious that learned counsel assist me in resolving the matter. For this reason I will assign the conduct of this appeal on behalf of the appellant to counsel D. M. Adusei.”

Thereafter I heard arguments from counsel for the parties and I must say that I have been tremendously assisted by the able and painstaking efforts of both counsel.

Before considering the decision in Fulani v. The State (supra) it may be necessary to remember that that decision was not the first High Court decision which laid down the proposition that a circuit court trying a case summarily must not pass a higher sentence than a district court trying the same case could pass. In State v. Boye, High Court, 26 January 1966,unreported; digested in (1966) C.C. 54 Wiredu J. held that whenever a case was tried summarily by a circuit court judge, he must consider himself [p.275] of [1971] 1 GLR 272 as exercising concurrent jurisdiction with a magistrate and he must not therefore pass a higher sentence than a magistrate. This must be a remarkable decision indeed because in the case of Commissioner of Police v. Anum, Supreme Court, 28 June 1965, unreported, that court in effect held that sentences of eighteen and thirteen months’ imprisonment with hard labour imposed on the appellants by the circuit court, in a summary trial were adequate and dismissed the appeals which had previously been dismissed by the High Court. I have studied the record of proceedings in the circuit court in that case and the record shows that the appellants, all police officers, were first offenders, and so if the view of Wiredu J. or the subsequent view of Amissah J.A. is right, then the sentences of eighteen months and thirteen months were wrong and the decision of the Supreme Court in the case would seem to have been given per incuriam. Indeed if the decision in Fulani v. The State (supra) is right then quite a number of decisions of the Supreme Court must be considered to have been given per incuriam. As a random example: In the case of Kofi v. Commissioner of Police [1961] G.L.R. 184, S.C., a sentence of three years’ imprisonment with hard labour imposed on the appellant was held to be in order. This was a case which was decided very soon after the 1960 legislation was passed. In the case of the State v. Grunshie (Abu), Supreme Court, 20 June 1966, unreported, the erstwhile Supreme Court considered sentences of five and seven years’ imprisonment with hard labour imposed on the appellants in a summary trial before the Circuit Court, Takoradi, in a case in which the appellants were appealing against the sentences. Assuming that the 1960 legislation which created the circuit courts limited their power of punishment to twelve months’ imprisonment with hard labour or 24 months’ imprisonment with hard labour in cases involving previous convictions, then it is amazing indeed that this escaped the attention of three Supreme Court judges. This is what the Supreme Court unanimously said, “After considering the facts and all the circumstances surrounding this case we are of the opinion that the sentence passed upon each appellant by the circuit court judge is warranted by law and is not manifestly excessive.” It is noteworthy that in the view of the Supreme Court the sentences passed on each of the appellants were “warranted by law.” Is it to be assumed that the highest court in the land at that time would so decide without looking at the relevant law? I think not, but if that is so then this decision of the Supreme Court was also decided per incuriam. Coming however to very recent times, a strongly constituted Court of Appeal on 4 April 1969 dealt with the case of Essandoh v. The Republic,Court of Appeal, 4 April 1969, unreported; digested in (1969) C.C.

63. In that case the appellant was tried summarily in the Circuit Court,Kumasi, and he was acquitted on ten counts of stealing. The Court of Appeal’s decision was given after the case of Fulani v. The State (supra).The State appealed against the acquittal and the High Court allowed the appeal and imposed a sentence of four and half years on each count with the sentences to run concurrently. There was no question of a previous conviction and the inference is inevitable that the High Court considered, [p.276] of [1971] 1 GLR 272 and the Court of Appeal agreed, that four and half years was the appropriate sentence which the circuit court should have imposed. This is so because the appeal was dismissed which in effect confirmed the sentence of four and half years on each count to run concurrently. Is it to be assumed that a court composed as this court was, of Akufo-Addo C.J.(as he then was), Azu Crabbe J.A. and Archer J. (as he then was) was unaware of the provision limiting the jurisdiction of the circuit court to sentence convicted persons? I think not; but if I am wrong then once again the decision of the Court of Appeal in this case was decided per incuriam.

I have adverted to these authorities to show that the view of the law held by Wiredu J. and Amissah J.A. is not free from doubt; that their decisions unsettled what was apparently considered to be a settled legal position and that it was a revolutionary view. If it is supported by authorities or it is the only logical inference deducible from construction of the relevant statutory provisions having regard to the intention of the legislature as spelt out in those statutory provisions then it ought to prevail and all of the many decisions of the erstwhile Supreme Court and its successor the Court of Appeal, must be taken to have been decided per incuriam. This is because in all the cases decided by the Court of Appeal and the erstwhile Supreme Court, no reasons were advanced for the sentences. It was assumed by the provision creating the offence. The decision in Fulani v. The State (supra), however, for the first time considered the matter very closely and meticulously and gave very plausible reasons based,inter alia, on the construction of sections 44 and 60 of the Criminal Procedure Code, 1960 (Act 30), and section 56 of the Courts Decree, 1966 (N.L.C.D. 84). The construction of section 44 of Act 30 spelt out in the decision would seem to have been subsequently vindicated in the case of Republic v. Asare (T.O.), Court of Appeal, 29 July 1968, unreported; digested in (1968) C.C. 137, a decision which will be discussed later on in this judgment.

While writing this judgment, I was informed that the decision in Fulani v. The State (supra) was on appeal and was being argued in the Court of Appeal. I therefore suspended consideration to await the result of the appeal. The appeal by the state was allowed: See Republic v. Fulani(Amadu) [1971] 1 G.L.R. 44, C.A. Unfortunately the arguments which dominated the reasoning of Amissah J.A. did not seem to have been dealt with by the Court of Appeal. Furthermore although the view of Amissah J.A. was indeed revolutionary in the sense that no previous decision of the Court of Appeal can be found supporting it, nevertheless as I have already indicated the subsequent decision of the Court of Appeal in Republic v. Asare (T.O.) (supra) would seem to have supported the reasoning. Consequently a decision overruling it without adverting to the case of the Republic v. Asare case (supra) may be thought to be of doubtful validity. It is for these reasons that I propose to examine fully the decision of the High Court in Fulani v. The State. In my view the decision of the Court of Appeal allowing the appeal by the State in that case conflicts diametrically

[p.277] of [1971] 1 GLR 272 with the decision in Republic v. Asare (T.O.) (supra). It is my further view that of the two conflicting decisions, the decision of the Court of Appeal in the case of the Republic v. Fulani (supra) is to be preferred to its previous decision in the Republic v. Asare (T.O.) (supra).

Now to the reasoning of the High Court in Fulani v. The State (supra). One aspect of the 1960 criminal legislation which is obvious on a reading of the Criminal Code, 1960 (Act 29), and the Criminal Procedure Code, 1960, is, as Amissah J.A. remarked at the commencement of his judgment, “its drive for simplicity and economy of expression.” This must not be lost sight of as it is very relevant when one considers the proper construction to be placed on, say, section 44 of Act 30 before it was amended by the Criminal Procedure Code (Amendment) Decree, 1968(N.L.C.D. 276). The said section 44 is the provision upon which the decision in Fulani v. The State was founded in the High Court. I shall advert to this point later on in this judgment. It is a matter for regret that this was ignored by the Court of Appeal. The judgment commenced by posing this question: “Is there no more correlation between the gravity of an offence and its mode of trial and punishment?” It then endeavoured to answer this question by examining the criminal legislation existing before the 1960 legislation was passed and concluded after examining the said legislation as follows (the emphasis is mine):”

“One thing was quite clear from the arrangements which existed up till 1960. Where an accused was tried by a magistrate or a judge, once his trial was summary, the maximum sentence he faced was by law set at a lower level than what he would other wise have faced if the trial for the same offence had been on indictment. As a consequence the prosecution would only present the less serious of the offences which could be tried by either mode for trial summarily. The most serious offences they had to reserve for the more majestic mode of trial which carried the more serious consequences.”

It must be noted that inherent in this apparently innocuous conclusion are two propositions:

(1) That the maximum punishment provided by law is more in trials on indictment than in all cases of summary trials

(2) That the decision to try a person summarily or on indictment rests with the prosecution, and that it is a discretion apparently exercisable by considering the gravity of the offence.

The first proposition had statutory support, it is the result of the combined effect of the provisos to section 49 (1) of the Courts Ordinance, Cap. 4 (1951 Rev.), and section 159 of the Criminal Procedure Code, Cap.10 (1951 Rev.). These unambiguously limited the powers of punishment of the district courts and High Court in summary trials but in both Cap. 4 and Cap. 10 there were no provisions limiting the powers of the High Court in trials on indictment. It is remarkable that a somewhat similar situation was to exist in the subsequent N.L.C.D. 84 and Act 30 with regard to summary trials in the circuit and High Courts. In both of these enactments

[p.278] of [1971] 1 GLR 272 there were no provisions limiting the sentencing power of the High Court or circuit courts in summary trials.

The proposition involves the exercise of a discretion and although it is a view which would seem to disclose that the discretion is exercised by merely considering the gravity of the offence, the most serious being triable on indictment and the less serious being tried summarily, there would seem in actual fact to be legally no authority which could be said to support, or which gives the principles governing the exercise of the discretion as is disclosed here. In fact the question of whether a crime, say a felony, is serious or not, would seem to be a very difficult one indeed for which there is no ready legal answer. To suggest therefore that the prosecution had to reserve the most serious offences for a so-called majestic mode of trial is to impute to the prosecution a duty for which there is no legal basis or justification. Consider the case of A. stealing ten new pesewas from B. by force and the case of D. stealing N¢1,000,000 from Barclays Bank. One would have thought, applying common sense, that the million cedis case is more serious than the ten new pesewas case; and yet under the law the ten new pesewas case is a first degree felony punishable by imprisonment for life and the million cedi case is only a second degree felony punishable by imprisonment not exceeding 25 years.

It seems to me that the question as to whether a case should in fact be tried summarily or not, where the case is one triable summarily or on indictment, involves the exercise of a discretion by or on behalf of the Attorney-General and there are, as far as I know, no decided cases, and there could in the nature of things be no decided cases governing the exercise of this discretion. To attempt to give the principles governing this exercise as was attempted in Fulani v. The State (supra) is, if I may say so with respect, mere speculation. In the final analysis, and this is important, the court is the ultimate authority on the matter and in a case tried on indictment by the High Court or a circuit court an imprisonment for two months may be imposed, while in a case tried summarily by the district court an imprisonment for twelve months may be given thus upsetting the inference that the one crime is more serious than the other for which reasons perhaps the respective modes of trial had been chosen by the prosecution. It is probable, and this would also be speculative, that the decision to have a case tried summarily or on indictment may be dictated not by its gravity but by its complexity or even by a desire for speedy trial only. It is now necessary to consider the argument which was rejected by the court and which Mrs. Amankwah, counsel for the State, put forward in Fulani v. The State (supra) in the High Court and which the Court of Appeal did not consider “impressive.” The appellant in that case had been sentenced to seven years’ imprisonment with hard labour on charges of conspiracy to steal, unlawful entry and stealing. Before the 1960 legislation, unlawful entry (then known as burglary or house breaking, depending on the time of the offence) was an indictable offence and was never tried summarily. The 1960 legislation converted it to a second

[p.279] of [1971] 1 GLR 272 degree felony triable either on indictment or summarily. The amount of money involved was ¢3,462.00. The argument of counsel for the State was that on a summary conviction by the circuit or High Court, there was nothing which prevented the trial judge from imposing a sentence up to and including the maximum that the provisions which created the offence imposed. This argument, which in my humble opinion would seem to be impressive and well-founded, was rejected by the courts and it becomes necessary to examine the reasons for rejecting it. It was said that the argument “does away with any distinction between the summary trial as the machinery for the more serious offence.” With the utmost respect I do not see how the argument can be said to do away with the distinction. As has been observed already in this judgment, a trial on indictment may result in imprisonment for two months and summary trial may end up in imprisonment for twelve months. The deciding factor is the view that the tribunal takes of the gravity of the offence and not the view which the prosecution may take, however well-intentioned, of the seriousness of the offence.

Then it was further said that if the argument is right then “we are faced with a most serious situation indeed,” because a number of misdemeanours have been made punishable by imprisonment for 25 years and our citizens are therefore “liable to such vicious penalties after a trial which is only summary.” This argument seems to postulate the proposition that summary trials are inferior and not as safe as trials on indictment. With the greatest respect, it seems to me that this cannot be right. Whatever superiority people may see in trials on indictment the principles which govern the trial and reception of evidence in our courts in criminal cases and the legal requirement made famous in the oft-quoted dictum of Viscount Sankey L.C. in Woolmington v. Director of Public Prosecutions [1935] A.C. 462, H.L. make it absolutely essential that the prosecution can only succeed in obtaining a conviction after discharging the burden of proof by satisfying the standard of proof which is the same in a trial on indictment as in a summary trial. With respect therefore, to talk about “vicious penalties after a trial which is only summary” is to whittle, so to speak, down the standard of proof in summary trials and to lose sight of the warning of Viscount Sankey L.C. in the Woolmington case (supra) at pp. 481-482 that, “No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of common law of England and no attempt to whittle it down can be entertained.” The emphasis in the above quotation shows that regardless what the court, and we may add what mode of trial, the principle is unaffected. It must be noted that the effect of the argument of Mrs. Amankwah is that there is no legal provision which limits the sentencing power of the circuit and High Courts and so far no specific provision was indicated in the judgment. Indeed in the Fulani v. The State decision itself, the High Court would seem to have conceded this point, because after comparing the pre-1960 criminal legislation with the 1960 legislation the judge

[p.280] of [1971] 1 GLR 272 observed (the emphasis is mine):

“In comparison with the old, we find that the magistrate under our present criminal legislation still has the same limited power of sentencing. The judge of the High Court or the circuit court on the other hand has no limit other than the maximum that the offence itself calls for imposed on his powers.” This, of course, is perfectly correct because under section 53 of the Courts Act, 1960 (C.A. 9), now paragraph 51 of N.L.C.D. 84, the sentencing power of the district courts has been limited. The relevant sub-paragraphs (2) and (3) read as follows:

“(2) Subject to sub-paragraph (3), a District Court (Grade I or Grade II) shall not impose imprisonment for a term exceeding twelve months or a fine exceeding ¢240.

(3) Where under any enactment increased punishment may be imposed upon any person previously convicted of a crime, a District Court (Grade I or Grade II) may impose such increased punishment, or twice the maximum punishments prescribed by sub-paragraph (2), whichever is the lesser.” It must be noted that the sub-paragraphs specifically mention “District Court (Grade I or Grade II).” There is nowhere in the decree or in Act 30 where a similar provision can be found spelling out a similar limitation touching the circuit or High Courts and so it becomes necessary to examine first the logical steps or the process of reasoning by which a limitation as specific as is advocated in Fulani v. The State (supra) came to be attached by the High Court to the sentencing power of the circuit and High Courts,and second whether it was open to the High Court after conceding that the sentencing power of a judge of the High or circuit court “has no limit other than the maximum the offence itself calls for” to endeavour by interpretation to fasten a limitation on the power of a circuit court judge.

In arriving at the conclusion that the sentencing powers of a circuit or High Courts in summary trials are as circumscribed in the same way as those of district courts, the judge after examining both the old and the new criminal legislation of 1960, particularly section 2 of Act 30, came to the conclusion that in the new order the “legislature accepted the basic distinction between the modes of trial for the varying degrees of offences,namely, that serious offences should be tried on indictment and less serious ones tried summarily.” Furthermore the court held that it is difficult to find a reason for the provisions of section 178 (2) of Act 30 if the circuit court is otherwise able after trying a case summarily to award the same penalty that it may award after trying that same case on indictment.” Now section 178 of Act 30 reads as follows:

“(1) Where, upon the summary conviction of a person for any offence, the District Court is of opinion that, having regard to the evidence, and to the character and record of the offender, the maximum punishment which the District Court is empowered to impose

[p.281] of [1971] 1 GLR 272 would be insufficient, the Court may commit the offender for sentence to a Circuit Court and any enactment relating to the powers of any Court upon committal for trial shall apply so far as relevant to such committal for sentence.

(2) The Circuit Court shall have power to deal with the offender as if he had been convicted on indictment by that Court of the offence, and the conviction and sentence shall be subject to appeal as if he had been so convicted.”

I have had great difficulty in appreciating why, in the first place, it was thought necessary to find a reason why the legislature enacted section 178 (2) of Act 30 and why it would be difficult to find a convincing reason for the said provision if the “circuit court is otherwise able after trying a case summarily to award the same penalty that it may award after trying that same case on indictment.” I would have thought, with respect, that the reason for the provision is clear from a reading of the subsection and that the said section, no matter how it is read, can have no relevance to the question of the limitation of the sentencing power of the circuit court. I think it ought to be borne in mind that one objective of the 1960 criminal legislation, which is obvious from reading it, would seem to be that apart from trying cases on indictment and perhaps some cases summarily, the High Court was to have little to do with criminal cases before inferior courts. Appeals from district courts were to go to the circuit court, the monthly lists from the district courts were to go to the circuit court, and the circuit courts were to supervise the district courts in the exercise of their criminal jurisdiction. Is it not natural that section 178 of Act 30 should take the form which it took, particularly as the High Court, apart perhaps in the matter of the prerogative writs, had no contact whatsoever with the exercise of criminal jurisdiction by the circuit courts? Appeals from the circuit court in criminal matters, moreover, went to the Court of Appeal.

It seems to me that the ratio decidendi in the Fulani case runs thus: There is no provision in Act 30 for the institution of criminal cases summarily before the circuit court or High Court. The only provision is section 60 (1) of Act 30 and it is confined to proceedings before the district courts. It reads as follows: “(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.”

[p.282] of [1971] 1 GLR 272

The argument therefore runs thus: Summary trials strictly speaking can only be held by district courts. On the other hand under paragraph 65 of N.L.C.D. 84 the circuit and High Courts have concurrent jurisdiction with the district courts. Paragraph 56 is as follows:

“No jurisdiction conferred upon any District Court shall in anyway restrict or affect the jurisdiction of the High Court or a Circuit Court and each of those Courts shall have in all causes and matters,civil and criminal, or original jurisdiction concurrent with the jurisdiction of a District Court.” Furthermore section 44 of Act 30, before it was amended by N.L.C.D. 276,provided as follows: “Subject to the provisions of any enactment a criminal case shall not be brought before the High Court or a Circuit Court, unless it has been previously brought before a District Court and the accused person has been committed for trial to the High Court or Circuit Court, as the case may be.”

After the Republic v. Asare (T.O.) (supra) was decided section 44 of Act 30 was replaced by a new provision which sought to reverse the implication of the decisions in the Republic v. Asare (T.O.) and Fulani v. The State. The ratio of the decision in Fulani v. The State (supra), however, must be examined uninfluenced by this amendment since it could not have had any effect on the reasoning at the time of the decision. In view of these provisions it was held in Fulani v. The State (supra) that unless a criminal case passes through the district court it cannot be dealt with by the circuit or High Court. This conclusion had, independently of Fulani v. The State, been reached by the Court of Appeal in the Republic v. Asare (T.O.) (supra). Therefore, the argument continues, when exercising jurisdiction in summary cases circuit courts and High Courts must be taken to be proceeding by virtue of the concurrent jurisdiction mentioned in paragraph 56 of N.L.C.D. 84 and consequently the power to punish must be the same as the power of the district magistrate. It is remarkable and rather unfortunate that the Court of Appeal in allowing the appeal was completely silent as to this ratio decidendi. Since this ratio would appear to have the support of the Court of Appeal in Republic v. Asare (T.O.)(supra), it is, in my humble view and with the utmost respect, vital to the decision of the Court of Appeal that it should have been dealt with. I propose to deal therefore with the reasoning.

As I have already indicated an important feature of the 1960 criminal legislation was “its drive for simplicity and economy of expression” to use the words of Amissah J.A. at the commencement of his judgment. When the comparative table which accompanied Act 30 is studied very closely it becomes clear that the original section 44 of Act 30 replaced section 49 of Cap. 10. And the question this poses is this: Is the original section 44 of Act 30 the same as section 49 of Cap. 10 or did the legislature intend a change in the law? In this respect it must be remembered that [p.283] of [1971] 1 GLR 272 the 1960 Criminal Procedure Code consolidated all of the existing legislation on the matter with minor alterations and introduced a radical innovation in the committal for trial procedure. Those sections of Cap.10 which were repealed did appear in the comparative table as abolished and examples are: sections 25, 45, 55, 56, 57, 152, 180, 187, 198, 202, 203, 207,209, 210, 224, 258, 281, 282, and 343-351. Section 49 of Cap.10 was in the following form:

“The Supreme Court may, subject to any order made under section 27 of the Courts Ordinance forming divisions for the purposes of jurisdiction and to the power of transfer provided by section 34 of the Courts Ordinance, enquire of and try any offence subject to the jurisdiction at any place where it has power to hold sittings:

Provided that, except under sections 60, 149, 159, and 333 of this Ordinance and in the case of a Coroner’s inquisition no criminal case shall be brought under the cognizance of the Supreme Court unless the same shall have been previously investigated by a Magistrate’s Court and the accused person shall have been committed for trial before the Supreme Court.”

It would seem from a careful comparison of section 44 of Act 30 and section 49 of Cap. 10 that the draftsmen intended no more than “simplicity and economy of expression” when in the original section 44 of Act 30 they drafted the provision that a criminal case shall not be brought before the High Court or circuit court as aforesaid, etc. “subject to the provisions of any enactment.” An “enactment” is defined in section 32 of the Interpretation Act, 1960 (C.A. 4.), as amended by the Second Schedule to the Constitution (Consequential and Transitional Provisions) Decree, 1969(N.L.C.D. 406), to mean: “. . . an Act, a constitutional instrument or a statutory instrument or any provision of an Act, a constitutional instrument or a statutory instrument.”

There are statutory provisions which make it clear that summary trials can be held in the circuit or High Courts: Section 2 (4) (b) of Act 30 provides that (the emphasis is mine), “Subject to any limitations on the jurisdiction of the Court – . . . (b) a summary trial shall be by a court of summary jurisdiction, or by the High Court or a Circuit Court.” Section 164 of Act 30 in dealing with summary trials provides that: “This Part applies to the summary trial of an offence by a District Court, a Circuit Court or the High Court.” I cannot understand why the original section 44 of Act 30 cannot be interpreted as a provision made subject to sections 2 and 164 thereof and any other enactment. It seems so clear that I am at a loss to understand how its implication can be resisted by any conceivable argument. Can it be seriously argued that Act 30 limited the sentencing power of circuit and High Courts? Where in the whole of Act 30 is the provision achieving this limitation? I think the memorandum to Act 30 offers a guide of a sort. At p. 46 of Memoranda on Acts of the Republic beginning from the Constitution to Act 223 (1964, Attorney-General’s Department) it is stated:

[p.284] of [1971] 1 GLR 272

“There are also a number of minor alterations, the most important of which are as follows. The mode of trial, i.e. summary or indictable,is to depend on the maximum sentence which the offence carries (clause 2). District Courts will have power to try summarily offences carrying a ten-year sentence (i.e. up to second degree felonies) although they will still normally only be able to impose a one-year sentence themselves. Circuit Courts will have power to try offences (summarily or on indictment) not carrying the death penalty or life imprisonment and the High Court will, as now, normally try offences on indictment only, including capital offences. This necessitates minor amendments to the Courts Act, 1960 (see clause 416 of the Criminal Procedure Code Bill).”

Obviously if it is the intention to restrict the sentencing power of the circuit or High Courts in summary trials the memorandum would have stated it as it stated clearly the limitation on the sentencing power of the district courts. This cannot be a matter to be left for inference by subtle and ingenious interpretation. In my view the recourse to section 60 of Act 30 and the suggestion by interpretation that proceedings can only be instituted summarily in the district courts because the circuit and High Courts have no power to issue the commencement process for a summary trial is uncalled for. If anything, paragraph 56 of N.L.C.D. 84 which gives the circuit and High Courts concurrent jurisdiction with the district courts, would enable a circuit or High Court to issue processes to commence actions before the circuit or High Court as the case may be just in the same way as in my opinion committal proceedings in accordance with Part IV of Act 30 can be commenced in a circuit or High Court by virtue of paragraph 56 of N.L.C.D. 84. In my opinion when a circuit or a High Court sits to hear a case summarily it sits in its own right having regard to sections 2 and 164 of Act 30, and not because of any supposed concurrent jurisdiction. The sections say so and their provisions are so clear that it is difficult to appreciate by what cannons of interpretation these clear provisions can be ignored. In his well reasoned arguments in the Fulani decision the judge in the High Court ostensibly set out to discover through the Criminal Procedure Code, 1960, the Criminal Code, 1960, and the Courts Decree, 1966 (N.L.C.D. 84), the intention of the legislature in enacting the 1960 legislation. Did the legislature intend to limit the sentencing power of the circuit and High Courts in summary trials as it specifically limited that of district courts in paragraph 51 (2) and (3) of N.L.C.D. 84? Although he found no specific provision directly or impliedly achieving this limitation he nevertheless answered the question in the affirmative by a process of interpretation. It is submitted with respect that it is here that he fell into error. This journey of discovery recalls to mind the warning of Lord Simonds. In Magor and St. Mellons R.D.C. v. Newport Corporation [1950]2 All E.R. 1226 at p. 1236, C.A. the inimitable Denning L.J. (as he then was) for once blasphemed. He said, inter alia, in a dissenting judgment: “We sit here to find out the intention of Parliament and of Ministers and [p.285] of [1971] 1 GLR 272 carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.” This heresy was condemned by Lord Simonds when the case went on appeal to the House of Lords, in no uncertain terms, in [1952] A.C. 189 at p. 191; “[T]he general proposition that it is the duty of the court to find out the intention of Parliament … cannot by any means be supported. The duty of the court is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited …

The second part of the passage … is no doubt the logical sequel of the first. The court, having discovered the intention of Parliament… must proceed to fill in the gaps. What the legislature has not written, the court must write. This proposition…. cannot be supported. It appears to me to be a naked usurpation of the legislative function under thin disguise of interpretation.”

Clearly when the High Court or circuit courts sit to hear cases summarily they are not converted into dignified district courts. Will they be under the metamorphosis grade I or grade II district courts? I think it is the circuit court or the High Court sitting. And the relevant question to ask is whether the power of the circuit or High Court so sitting is in anyway limited by legislation. In this regard I think it is worthwhile to examine the language of paragraph 51 (2) and (3) of N.L.C.D. 84 already referred to. It will be noted that the language is clear and unambiguous. It deals only with district courts grades I and II. Why did the legislature not mention circuit and High Courts if these courts are supposed to be affected by these provisions? I have not succeeded in finding any answer to that question. And here the matter would have ended but for the decision of the Court of Appeal in the Republic v. Asare (T.O.) (supra). In that case the court held, inter alia, upholding the ruling of the High Court: “That by virtue of section 44 of the Criminal Procedure Code, 1960 (Act 30), the circuit court and the High Court cannot exercise jurisdiction in a criminal case summarily or on indictment unless the accused person has been committed to it by a district court.”

In Fulani v. The State (supra), because the appellant was not so committed the High Court judge held that for that reason the circuit court must be taken to have exercised jurisdiction concurrent with that of the district court as is spelt out in paragraph 65 of N.L.C.D. 84. Consequently he held that the circuit court’s power of sentencing would be the same as the sentencing power of the district courts. If the decision in the Republic v. Asare (supra) is right then the reasoning of the High Court in Fulani v. The State is unexceptionable, and the decision of the Court of Appeal setting aside that decision would be wrong. It is a pity that the attention of the Court of Appeal was not called to the case of the Republic v. Asare (T.O.) (supra). It is noteworthy that the holding in the Republic v. Asare categorically admits apparently, of no exceptions. But since the

[p.286] of [1971] 1 GLR 272 court did not direct its attention to the effect of paragraph 56 of N.L.C.D.84 as was done by the High Court in the Fulani case it would seem that the decision is of doubtful validity.

Be that as it may, having regard to the view which I have expressed,it seems to me that of the two conflicting decisions the decision reversing Fulani v. The State is to be preferred to the decision in Republic v. Asare. Before the Court of Appeal’s decision in Republic v. Fulani [1971] 1 G.L.R. 44, C.A. I had considered myself bound by the Court of Appeal’s decision in Republic v. Asare. I took the view that the decision in the Asare case would seem to support the reasoning of the High Court in the Fulani case and although I disagreed rather strongly with the decision, I felt bound to follow it compelled by the doctrine of judicial precedent. In the result, I gave a number of decisions reducing circuit court sentences to twelve months or below in cases where there were no previous convictions and to 24 months or below in cases involving previous convictions. It seems that these decisions must be considered to be erroneous. The original section 44 of Act 30 was amended on 28 August 1968 and was given retrospective effect to the date of the Criminal Procedure Code, 1960 (Act 30), by the Criminal Procedure Code (Amendment)Decree, 1968 (N.L.C.D. 276). The enactment provides that:

“1. The Criminal Procedure Code, 1960 (Act 30) is hereby amended by the substitution for section 44 thereof the following new section:-

44. (1) A criminal case which is being tried on indictment shall not be brought before the High Court or Circuit Court,unless it has previously been brought before a District Court and the accused person has been committed for trial to the High Court or Circuit Court as the case may be.

(2) Subject to the provisions of subsection (1) of this section, the High Court or a Circuit Court shall have power to issue any summons or warrant for the commencement of any criminal case (whether the case is to be tried before the High Court, a Circuit Court or any other court of competent jurisdiction) and, accordingly subject as aforesaid, sections 60 to 87 of this Code shall, with the necessary modifications, apply in relation to the High Court and a Circuit Court in the same manner as they apply to the District Court; so however that a criminal case may be heard and determined by the High Court or a Circuit Court notwithstanding that the summons or warrant for the commencement thereof was issued by a District Court.

2. This Decree shall be deemed to have come into force at the same time as the said Criminal Procedure

Code, 1960 (Act 30).”

It seems therefore that even if the decision of the High Court in Fulani v. The State is right then N.L.C.D. 276 must be taken to have altered the position so that on the date of the appeal the ratio decidendi of both the Fulani and Asare cases had disappeared and the decisions had ceased to be good law. If this is so then a very serious constitutional problem will

[p.287] of [1971] 1 GLR 272 arise for decision. The High Court decision in Fulani v. The State ruled that on a summary trial in the circuit court where the accused had a previous conviction the maximum punishment to which he could be subjected was two years and that term was imposed. The effect of N.L.C.D. 276 is to enable the court in a summary trial to impose a sentence that is within the maximum provided by the law without any limitation which paragraph 56 of N.L.C.D. 84 was thought to impose because of the concurrent jurisdiction. Therefore in the case of Fulani v. The State (supra) imprisonment for seven years would be in order. Now under article 20 (5) of the Constitution, 1969, it is provided as follows, “No penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.” It seems to me that if the High Court decision in Fulani v. The State is right, then with the promulgation of the Constitution all these cases decided before the coming into force of N.L.C.D. 276 would not be affected in any way at all by the said N.L.C.D.276 despite its retroactive provision; and this would be so because of the mandatory prohibition of this type of retrospective legislation by article 20 (5) of the Constitution. Of course all cases decided after N.L.C.D. 276 would be unaffected by the principle in Fulani v. The State (supra). Indeed on 3 December 1968, Aboagye J. in the High Court, Sekondi, in Koomson v. The Republic, unreported; digested in (1969) C.C. 29 observed after considering the Fulani case and N.L.C.D. 276 that: “I fully share the view of Amissah J.A. that when a High Court or circuit court tries a case summarily its sentence must be less severe than when it tries the same case on indictment. But in view of the amendment of section 44 of Act 30 by N.L.C.D. 276 I hold that in a summary trial the High or circuit court is not restricted to pass a sentence which a district court trying the case would be entitled to pass … ;” Mensa Boison J. in the case of Sarpong v. The Republic, High Court, 25 November 1969, unreported; digested in (1970) C.C. 27 came to the same conclusion after examining the decision in Fulani v. The State and N.L.C.D 276. It is easy to think that N.L.C.D. 276 had so affected the Fulani decision that all consideration of the matter would be academic. It seems that this cannot be right in view of article 20 (5) of the Constitution and it is regrettable that the attention of the Court of Appeal was not drawn to these matters.

However, the instant case was decided before the passing of N.L.C.D. 276 and therefore if the reasoning in Fulani v. The State had been valid and the decision in Republic v. Asare (supra) was right, then N.L.C.D. 276 would have had no effect in increasing, as it were, the maximum punishment indicated in the judgment of Fulani v. The State (supra) for offences committed before 28 August 1968. As it is we have lost an authoritative pronouncement of the Court of Appeal on the matter.

[p.288] of [1971] 1 GLR 272

Be that as it may, in the appeal before me now, having regard to the views that I have expressed and the reasons I have given, I hold that the circuit court judge had the jurisdiction to impose the sentence which she did. The only question is whether the sentence was harsh. Although the appellant had two previous convictions two years ago at which time he was sentenced to three months’ imprisonment with hard labour, it seems to me that the highest punishment he was shown to have been given was only three months’ imprisonment with hard labour. To jump from a pattern of a prison term sounding in a few months to imprisonment for seven years is very grave indeed and there must be very good reasons why the appellant was so harshly treated. I see none here: The details of the previous convictions which the circuit court thought showed criminal proclivities were not apparently given to the court. The case itself has no aggravating circumstances. It is of course right that the appellant be tried in the circuit court as it seems that these currency offences were becoming rampant and the restriction on the powers of district courts aforesaid makes a recourse to the district courts inadvisable in this case. In my view, imprisonment for a term exceeding the limits of the district court is called for in this case. It ought to be a term harsh enough to be a deterent and short enough to satisfy the reformative element in criminal justice. It is for these reasons and not because the circuit court lacks jurisdiction to impose the sentence that it imposed, that I allow the appeal against sentence. The appeal against sentence is allowed. The sentence of seven years’ imprisonment with hard labour is quashed and in its place is substituted a sentence of three years’ imprisonment with hard labour. The appeal against conviction has already been dismissed summarily as abandoned but the appeal against sentence is allowed to the extent appearing in this judgment.

DECISION

Appeal against sentence allowed.

T. G. K