REPUBLIC v. ASIAMAH [1971] 2 GLR 478

DIVISION: IN THE SUPREME COURT

DATE: 30 JULY 1971

BEFORE: BANNERMAN C.J., KOI LARBI, SIRIBOE, CHARLES

CRABBE AND APALOO JJ.S.C.

CASE REFERRED TO

Republic v. Maikankan [1971] 2 G.L.R. 473, S.C.

NATURE OF PROCEEDINGS

CASE stated from the High Court for the ruling of the Supreme Court as to whether by virtue of article 20

(2) of the Constitution, the trial of the accused with a jury was a nullity since the offences with which he was charged were not punishable with death or life imprisonment. The facts are sufficiently stated in the judgment of the court.

COUNSEL

Gyeke-Darko Chief State Attorney, for the Republic

Okyere Darko for the accused.

JUDGMENT OF BANNERMAN C.J.

Bannerman C.J. delivered the judgment of the court. In this case referred to this court by way of a case stated under article 106 (2) of the Constitution, 1969, the points raised for determination are as to: “(1) Whether by virtue of article 20 (2) (a) of the Constitution, 1969 this court has no jurisdiction to try this case on indictment with a jury;

(2) Whether article 1 (2) of the Constitution overrides section 404 of the Criminal Procedure Code, 1960

(Act 30), as a provision of the Criminal Procedure Code.

(3) Whether article 20 (2) (a) of the Constitution overrides the provisions of the Criminal Procedure (Trial by Jury) Instrument, 1966 (L.I. 499), and section 204 of Act 30 as provisions of the Criminal Procedure Code.”

These issues arose during the trial on indictment of the accused person on various counts of conspiracy to steal contrary to section 23 (1) and

[p.480] of [1971] 2 GLR 478

124 of the Criminal Code, 1960 (Act 29), stealing contrary to section 124 of Act 29 and forgery contrary to section 159 of Act 29. The trial was before a judge of the High Court with a jury and proceeded until the close of the case for the defence when, in opening his address to the court prior to summing-up by the judge, defence counsel for the first time referred to article 20 (2) of the Constitution, 1969, and submitted that the trial by jury was a nullity since the offences with which the accused person was charged were not punishable with death or life imprisonment. He referred to section 243 (1) of the Criminal Procedure Code, 1960 (Act 30), and argued that the accused person was not charged with any offence punishable with death or life imprisonment and the minister has not, by legislative instrument made under section 242 (1) of Act 30, appropriated the offences with which the accused person was charged to be tried by jury, and therefore the trial could only be with assessors, unless the court, under section 243 (2) of Act 30, for stated reasons, decided to try the case with a jury instead of with the aid of assessors. He concluded that since no reasons were stated by the court in the minutes before deciding to try the accused person with a jury, section 243 (2) could not be said to have been properly applied and the trial so far was a nullity. Counsel for the prosecution, in reply, contended that article 20 (2) makes all offences other than treason (and including those with which the accused is charged) triable by a judge with a jury, and that the phrase “the punishment for which is death or imprisonment for life” refers to treason only. He submitted further that even if the offences in the instant case are not triable by jury the defence did not object to the trial with jury and section 404 of Act 30 must be applied so as not to make such a trial invalid.

It has already been decided by this court in the case of Republic v. Maikankan [1971] 2 G.L.R. 473, S.C. that the meaning of article 20 (2) (a) of the Constitution, 1969, is clearly to make trial by a judge with a jury mandatory in offences punishable with death or life imprisonment, with the exception of treason for which a different mode of trial is provided by article 20 (2) (h) of the Constitution. The submission in the court below that treason is punishable by death or life imprisonment is incorrect. Section 180 (1) of the Criminal Code, 1960 (Act 29), is the appropriate law that determines the punishment for treason, which is death, and sections 181 and 182 of Act 29 which were cited are quite irrelevant.

It has been conceded by counsel on both sides before this court that under the provisions of section 243 of Act 30, the offences in this case are triable by a judge with the aid of assessors but that they can be tried by a judge with a jury for reasons to be stated in the minutes of a trial. Counsel for the Republic, however, submitted that by reasons of section 404 of Act 30, even though the trial should have been with the aid of assessors and not by jury, the trial cannot be invalid solely on the ground of such irregularity. In respect of the first question referred to us, article 20 (2) (a) of the Constitution makes a trial by a justice with a jury mandatory in all capital offences other than treason and in all offences punishable with life [p.481] of [1971] 2 GLR 478 imprisonment. The provisions of section 245 of Act 30 and the Criminal Procedure (Trial by Jury) Instrument, 1966 (L.I. 499), are unaffected by article 20 (2) except that treason is excluded from their operation and is now triable by three justices of the High Court. Article 20 (2) of the Constitution makes no provision for the trial of offences other than those mentioned therein and therefore does not affect the mode of trial of the offences charged in this case. It is rather section 243 of Act 30 which provides that such cases, not being triable by a jury under section 245 of Act 30 and L.I. 499, shall be tried by the court with the aid of assessors. The court, nevertheless, has jurisdiction by virtue of section 243 (2) of Act 30 to try such cases which a jury for reasons to be stated in the minutes; in any case, even where a trial which ought to be with the aid of assessors is conducted with a jury such a trial is not invalid on that ground only because of the provisions of section 404 of Act 30.

On the second question, there is no provision of the Constitution which is in conflict with section 404 of Act 30 and therefore the question of the said section being overridden by virtue of the provisions of article 1 (2) of the Constitution does not arise.

On the third question, article 20 (2) (a) confirms rather than overrides L.I. 499 since bothprovide for the trial of offences punishable with life imprisonment by a court with a jury.

Again article 20 (2) (a) of the Constitution does not seek to make any change in the trial of capital offences other than treason and of offences punishable with life imprisonment, and since it makes no reference to trial with assessors there is no question of the said article overriding section 204 of Act 30. The answers to the questions referred to this court are therefore as follows:

(1) Article 20 (2) (a) is irrelevant to the mode of trial of the charges or counts on indictment in this case. Section 243 (2) gives the court jurisdiction to try this case with a jury provided the court states reasons for doing so in the minutes, but even where reasons are not stated in the minutes, as in this case, in view of the provisions of section 404 of Act 30 such a trial with a jury instead of with the aid of assors cannot on that ground alone be invalid.

(2) Article 1 (2) does not override section 404 of Act 30.

Article 20 (2) (a) of the Constitution does not override the provisions of L.I. 499 and section 204 of Act 30 except by the exclusion of treason from trial with a jury.

We are satisfied that by reason of section 404 of Act 30 the trial of the case so far is not anullity and can properly be continued to final judgment without being invalid on the ground that the trial is with a jury instead of with the aid of assessors.

We wish to stress that it is not every submission in a trial that an issue is a question or matter relating to the interpretation of any provision of the Constitution that has to be referred to this court for determination

[p.482] of [1971] 2 GLR 478 under article 106 of the Constitution. Where the language of the article in question is clear and unambiguous no question of interpretation arises to warrant a reference. The submission may well relate to no more than a proper application of the provision to the facts or issues, and this is a matter which the trial court has jurisdiction to determine. Further we wish to draw attention to rule 54 (2) (g) of the Supreme Court Rules, 1970 (C.I. 13), which requires that a case stated in a reference shall contain “a statement by the Court below that the determination of the constitutional matter or question is necessary to a decision of the action, where the reference is made pursuant to the provisions of clause (2) of article 106 of the Constitution.”

The purpose of this rule is to ensure that references to this court are made only in matters relating to questions that are relevant to the decision or final determination of the case. If, in the opinion of a court, the question or matter relates to an interpretation of a provision which is not relevant to the issues in the case or which does not affect the decision of the case, no reference should be made to this court, however interesting the point of law raised, for no useful purpose will be served in so far as the particular trial is concerned and any delay thus caused by such reference will be quite unnecessary.

DECISION

Trial with jury instead of with the aid of assessors not a nullity.

K. T.