REPUBLIC v. ADU KWABENA [1971] 2 GLR 323

DIVISION: IN THE HIGH COURT, SUNYANI

DATE: 30 JUNE 1971

BEFORE: ANTERKYI J.

CASES REFERRED TO

(1) Scammell & Nephew Ltd. v. Hurley [1929] 1 K.B. 419; 98 L.J.K.B. 98; 140 L.T. 236; 93 J.P. 99; 27 L.G.R. 53, C.A.

(2) R. v. Allen (1862) 1 B. & S. 850; 31 L.J.M.C. 129; 5 L.T. 636; 26 J.P. 341; 8 Jur. (N.S.) 230; 9 Cox C.C. 120; 121 E.R. 929.

NATURE OF PROCEEDINGS

RULING on the entry of a notice of nolle prosequi by a state attorney without a written order of the Attorney-General.

COUNSEL

State Attorney, for the Republic.

Dr. Ohene-Djan for the accused.

[p.325] of [1971] 2 GLR 323

JUDGMENT OF ANTERKYI J.

The accused in this case stood charged with murder, contrary to section 46 of the Criminal Code, 1960 (Act 29). Mr. Agbettor, State Attorney, appeared for the Republic and Dr. Ohene-Djan for the accused. After the first twelve (out of the proposed seventeen) witnesses for the prosecution had finished their evidence, the thirteenth witness, Adu Gyamfi, during the course of his evidence-in-chief was treated as a hostile witness on the application of the prosecuting state attorney and with the leave of the court; and at the end of his evidence on 18 June 1971, adjournment of the case was granted at the request of counsel for the prosecution to enable him to seek further instructions.

When hearing resumed on 28 June 1971 the court observed that a notice of nolle prosequi (in writing) signed by the state attorney himself “for Attorney-General” had been filed. And the court took occasion to question the validity of this document by requiring the production by the state attorney of an earlier order in writing empowering him in that regard as required by section 55 (1) of the Criminal Procedure Code, 960 (Act 30).

The state attorney, conceding the absence of such an order in writing in his favour under that section, contended that such order in writing by the Attorney-General in his favour was not necessary, for reasons he gave and which were substantially thus:

Even though under the provisions of section 55 (1) of Act 30 [His lordship here read the provisions as set out in the headnote and continued:] yet there was no necessity, at the time of his filing the notice of nolle prosequi, for such a prior order in writing required under Act 30 in that regard; for, as contended by him, the result of the provisions of section 1 of the later Act, i.e. the Law Officers Act, 1964 (Act 225), was to vest in him as a state attorney the power of the Attorney-General to enter a nolle prosequi, and that he could therefore perform that function on behalf of the Attorney-General “subject to his directions.” He submitted that under subsection (2) of section 1 of Act 225, “Evidence shall not be required to be produced that a direction has been given by the Attorney-General in regard to any matter.” He therefore argued that failure to produce an order in writing, as required under the provisions of section 55 (1) of Act 30, could not be called to question.

Moreover (he contended) that Act 225 (The Law Officers Act, 1964) was posterior to Act 30 (Criminal Procedure Code, 1960), and Act 225, as a later Act, by its provisions impliedly repealed the relative provisions of Act 30 (the earlier Act) with regard to the requirement of an order in writing under section 55 (1) of Act 30.

Apart from this, as contended by him, by the provisions of article 174 (h) of the Constitution, “words directing or empowering [the Attorney-General] to do any act or thing” did include him, as state attorney, and as being one of “all his deputies or all other assistants,” and, therefore, he could do any act or thing the Attorney-General, as a public officer was empowered or directed to do by virtue of the provisions of any Act. Hence, as a state attorney, he was empowered by those provisions of the [p.326] of [1971] 2 GLR 323

Constitution to enter a nolle prosequi, the power to enter which was vested in the Attorney-General by section 54 of Act 30.

And he inferentially contended that, as he had thus entered the nolle prosequi in writing signed and filed by him on the oral instructions of the Attorney-General which were covered by the word “direction” in section 1(2) of Act 225, its validity could not be legally impeached.

Dr. Ohene-Djan in reply, while he was not opposed to the entering of the nolle prosequi, made the following comments:

Section 1 of Act 225 relied upon by the state attorney should be strictly construed. The nolle prosequi had not been entered bona fide because the evidence so far adduced by the prosecution did not support the charge of murder preferred; and as the power under section 54 of Act 30 must be exercised in good faith, he relied on the case of Scammell & Nephew Ltd. v. Hurley [1929] 1 K.B. 419, at p. 427, per Scrutton L.J.

In fine he commented that, upon the entering of the nolle prosequi, for the fair administration of justice it must be considered whether it was not proper for the accused in this case to be acquitted, instead of his being discharged merely under the provisions of section 54 of Act 30.

Now, in considering this matter, I must first examine the arguments proffered by the state attorney in support of his contention that the nolle prosequi entered by him in this case was valid. In my view, with regard to the power to enter a nolle prosequi, the provisions of both sections 54 and 55 of Act 30 operate to require specifically a written order of the Attorney-General (in whom this power is solely vested) in order to vest that power in a specific person, who has already been appointed to sign indictments or to represent the State at trials on indictment, in a specific place or venue. That a person has been appointed to a public office, as in the case of a state attorney, is one thing which can in law be inferred from the fact that he acts in that office—by the presumption of regularity merely. But it is another thing when the question is whether or not such a public officer, short of his acting in that public character, has in law the capacity to do an act the doing of which falls specifically outside the ambit of the duties normally attached to the office he occupies. In this case therefore, from the nature of the public capacity in which the state attorney acts, it must be presumed that he is officially so appointed. As, under sections 54 and 55 of Act 30, it is the law that the powers to enter a nolle prosequi are expressly vested in the Attorney-General, but that he “may order in writing that the powers expressly vested in him by section 54 of this Code be vested for the time being in any person appointed to sign indictments or to represent the State at trials on indictment at any place; and the powers may be exercised by any such person accordingly.”

[p.327] of [1971] 2 GLR 323

The exercise of the powers to enter a nolle prosequi being outside the specific duties of the present state attorney “appointed to sign indictments or to represent the State at trials on indictment” in the Sunyani area, to establish the propriety of the alleged exercise of these powers incident to a nolle prosequi, it must be proved not only that he has by the Attorney-General been vested with those powers, but also that these powers become vested in him by means of an “order in writing that the powers expressly vested in him (the Attorney-General) be vested for the time being” specifically in him (as the state attorney) in the Sunyani area.

Therefore, basically in this case, the absence of any such order in writing as required by section 55 (1) of Act 30 leaves the state attorney still not vested with the powers of entering a nolle prosequi and therefore the purported entry of the nolle prosequi by him is a nullity.

But to obviate these stark-naked provisions of sections 54 and 55 of Act 30, the learned state attorney during his argument employs the provisions of sections 1 and 2 of the Law Officers Act, 1964 (Act 225), which read as follows: [His lordship here read the provisions of the sections as set out in the headnote and continued:]

By these provisions it was contended by the state attorney, inferentially, that an order in writing of the Attorney-General (under section 55 (1) of Act 30) to vest him with the power to enter a nolle prosequi would, under subsection (1) of section 1 of Act 225, be a “direction” subject to which he would discharge the function of prosecution in a criminal case to which function the entering of nolle prosequi is incident and, therefore, as by subsection (2) “Evidence shall not be required to be produced that a direction has been given by the Attorney-General in regard to any matter,” he could not be made to produce such order in writing.

This argument must be dismissed in limine: The import of sections 54 and 55 (1) of Act 30 is that the Attorney-General is the fountainhead of the power to enter a nolle prosequi, and that an order in writing under section 55 (1) Act 30 is the open sesame to the sluice-gate through which any waters of this power may legally flow to his specifically named subordinate officer who is engaged on specific duties—signing indictments or presenting the state at trials on indictment in a named juridical venue. And the provisions of the Law Officers Act, 1964 (Act 225), by its section 1 (1), import that:

(a) A state attorney or his superior officer subordinate to the Attorney-General is by virtue of his office legally capable of executing, on behalf of the Attorney-General, any duty performable by the Attorney-General under an Act, but that in the performance thereof he is obliged to follow any incidental instructions given by the Attorney-General; and that (b) before any public officer who is below the rank of a state attorney in the Attorney-General’s Department can execute such a duty a prior authorisation of the Attorney-General must have been given him, and in the execution of such duty the

[p.328] of [1971] 2 GLR 323 officer so authorised must also adhere to such incidental instructions as may be given him by the Attorney-General.

And, in effect, under section 1 of Act 225, the possession of the power to discharge a function under an enactment is one thing, and the “direction” subject to which the function is to be discharged by virtue of such power is another thing.

With regard to the possession of the power by the subordinate officer in the Attorney-General’s Department, such officer of the first category in section 1 (1) becomes impliedly vested, by virtue of the section, with the power to discharge, on behalf of the Attorney-General, any function dischargeable by him under any enactment upon his attainment of that relevant status. But in the case of the relevant officer of the second category, in order to vest him with the power to discharge such functions on the Attorney-General’s behalf, there must be his express authorisation which must either specify or generalise the functions and the enactment. “Directions” of the Attorney-General subject to which an officer of either category may, under the provisions of the section, be enjoined to discharge a function are any instructions likely to be observable during the course of the discharge of the function in question: the “directions” must be deemed to comprehend any advice touching procedure to be adopted in the course of discharging the functions, and they cannot legally be deemed to be any instructional advice adherence to which may conflict with what the enactment itself lays down.

For the effective discharge of a function it initially requires the vesting of the power, if not already vested, in the person who is to discharge the function. If for the purpose of vesting the power in him by an enactment a written order is required of another person already clothed with the power, that other cannot legally employ a mode otherwise than that, for in that case that mode passes nothing to him. Therefore, in the case of entering a nolle prosequi, the power so to enter, is, by section 54 of Act 30, said to be expressly vested in the Attorney-General. And he exercises that power to discontinue criminal proceedings when necessary, and in so exercising it he is said to be discharging the function of entering a nolle prosequi for discontinuing some proceedings in question. He discharges that function upon the legal basis that the power to discharge that function is already expressly vested in him by law. And even though by law the Attorney-General is the officer in whom this power is expressly vested, he may, by law, infuse into a subordinate officer this power for its due exercise by the officer for the time being only. But in doing so the Attorney-General, by section 55 (1) of Act 30, “may order in writing that the powers expressly vested in him by section 54 of this Code be vested for the time being in . . .” And it is only by this mode that the Attorney-General can by law make the power vested in that officer to whom the “order in writing” is directed: any other mode employed by the Attorney-General for this purpose would not be legally operative to vest a scintilla of the power in the subordinate officer concerned, and a consequent purported exercise of the power upon that basis

[p.329] of [1971] 2 GLR 323 otherwise than required by the enactment would be nugatory and legally void. Hence that a power of the Attorney-General has been vested in his subordinate officer is one thing, and the exercising of the power, if vested, is as much another thing as the “directions” to be adhered to in the course of the exercising of the power to discharge the function.

In the premises, it is a fallacious argument to contend that oral instructions in the form of authorisation received by a state attorney from the Attorney-General to enter a nolle prosequi under section 54 of Act 30 falls within the meaning of “directions” under the provisions of section 1 of Act 225 and that, therefore, those given oral instructions as such “directions” required no proof. For, whereas by virtue of Act 225 the power (any power) of the Attorney-General to discharge any function in any enactment is in effect to be impliedly deemed to be vested in a state attorney ipso facto of his official status, under the provisions of sections 54 and 55 of Act 30 that specific power relative to nolle prosequi can only be legally deemed vested in a specific state attorney engaged in discharging specified functions of the Attorney-General in a specified area if, as required by section 55 (1), the Attorney-General vests that power in that specifically named state attorney by order in writing (signed by him).

Moreover, the provisions of section 1 of Act 225 are general provisions applying, as they do, to the functions of the Attorney-General in enactments generally, and those general provisions cannot be made to apply to such special provisions in the earlier Act 30 which are applicable only to the vesting of the power of nolle prosequi.

The effect of the generality of the provisions in Act 225 with regard to his subordinate officer being impliedly capable of discharging the functions of the Attorney-General on his behalf is reflected in or confirmed by article 174 of the Constitution whereby:

“In this Constitution and in any other law, ….

(c) where any power is given to any person or authority to do or enforce the doing of any act or thing, all such powers shall be deemed to be also given as are necessary to enable that person or authority to do or enforce the doing of the act or thing; …

(h) words directing or empowering a public officer to do any act or thing, or otherwise applying to him by the designation of his office, shall include his successors in office and all his deputies or all other assistants.”

And it is to be observed that article 68 clause (2) of the Constitution provides:

“All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or some other person authorised by him in accordance with any law governing the same.”

And even though the above provisions in article 174 of the Constitution are thereby stated to apply in it as well as “in any other law” (or

[p.330] of [1971] 2 GLR 323 enactment), the provision in article 68 (2) that the prosecution of offences by a person other than the Attorney-General, whose function it expressly is, shall be authorised by the Attorney-General “in accordance with any law governing the same,” is in effect to preserve unrepealed the special provisions in section 55 of Act 30.

Even without these special provisions in section 55 (1) of Act 30 being confirmed by necessary implication by the words “in accordance with any law governing the same” in article 68 (2) of the Constitution, as they are special provisions in an earlier Act (Act 30) being compared with those general provisions in section 1 of the later Act (Act 225) in relation to the same subject-matter, namely, the vesting of a power of the Attorney-General in his subordinate officer to enable that officer to discharge his function on his behalf, they (these special provisions in section 55 (1) of Act 30) would still be preserved and underogated from by the later general provisions of Act 225 by the rule of interpretation that “generalia specialibus non derogant,” “i.e. general things do not derogate from special things.” “Thus specific enactments are not affected by subsequent general enactments unless the earlier enactment is inconsistent with the latter enactment, or unless there be some express reference in the later enactment to the earlier enactment—in either of which case the maxim Leges posteriores priores contrarias abrogant applies.” See Byrne, A Dictionary of English Law (1923 ed.), p. 420.

With regard to the procedure of nolle prosequi, see per Cockburn C.J., in R. v. Allen (1862) 1 B. & S. 850 at p. 854.

“It is an undoubted power of the Attorney-General … to enter a nolle prosequi, and thereby to stay proceedings in any indictment or criminal proceeding. No instance has been cited, and therefore it may be presumed that none can be found, in which, after a nolle prosequi has been entered by the fiat of the Attorney-General, this Court has taken upon itself to award fresh process or has allowed any further proceedings to be taken on the indictment.”

And, therefore, had the relevant order in writing of the Attorney-General been produced, this undoubted power of the Attorney-General would have been deemed to be legally exercisable on his behalf by the state attorney by means of the notice in writing factually signed and filed by him (the state attorney). Now, with regard to the evidence for the prosecution as adduced through the first thirteen witnesses (out of the seventeen witnesses proposed on the bill of indictment) I hold that the result of the evidence of the thirteenth prosecution witness was to render inadmissible the alleged written confession statement of the accused. The evidence of the assistant superintendent of police, the ninth prosecution witness, with regard to what he stated that the accused had said orally about an alleged bottle was also inadmissible for want of administering to the accused the necessary caution words to him before receiving that alleged oral statement.

[p. 331] of [1971] 2 GLR 323

In the result I find no evidence, from the overall evidence of the witnesses on record, upon which I can rule that a sufficient case had been made out at this stage. The purported exercise of the power by the state attorney to a enter a nolle prosequi has not been established to be valid in the absence of the basic order in writing of the Attorney-General on behalf of the prosecuting state attorney. I therefore uphold this purported exercise of the power as not bona fide as contended by the defence counsel. And with the consequent invalidity of the notice of the nolle prosequi filed I hold that it implies a submission by the state attorney that he is resting the case of the Republic at the point at which the invalid nolle prosequi was filed. And at this juncture I hold that the evidence for the prosecution had not reached a stage at which the facts could show sufficient evidence towards establishing that (1) the death was caused by an act of the accused, short of its being unlawful, and that (2) the death was caused intentionally by the accused.

I must therefore hereby invite the jury to return a verdict of not guilty. Upon their so returning it, I hereby acquit and discharge the accused.

Entry of nolle prosequi held invalid.

Jury directed to return a verdict of not guilty.

DECISION

Accused acquitted and discharged.

[Reported by S. OSAFO, LL.B. (GHANA).]