REPUBLIC v. MAIKANKAN AND OTHERS [1971] 2 GLR 473

DIVISION: IN THE SUPREME COURT

DATE: 30 JULY 1971

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

CRABBE AND APALOO JJ.S.C

CASES REFERRED TO

(1) Awoonor-Williams v. Gbedemah, Supreme Court, 8 December 1969, unreported; digested in (1970) C.C. 18.

(2) Tait v. Ghana Airways Corporation, Supreme Court, 29 July 1970, unreported.

NATURE OF PROCEEDINGS

CASE stated from the High Court for the ruling of the Supreme Court as to whether the High Court can try without a jury persons charged with offences other than those punishable with death or imprisonment for life. The facts are sufficiently stated in the judgment of the court.

COUNSEL

Gyeke-Dako, Chief State Attorney (with him G. K. Avah, Assistant State Attorney), for the Republic. P. Swaniker for the first accused.

P.A. Adjetey for the fourth and fifth accused.

Ofosu-Asante for the fifth accused.

Kwaku Boateng (with him A. B. K. Quartey) for the seventh, eighth and ninth accused.

[p. 474] of [1971] 2 GLR 473

JUDGMENT OF BANNERMAN C.J.

Bannerman C.J. delivered the judgment of the court. This is a reference by way of a case stated by Aboagye J. as a result of submissions made by counsel in the trial of the accused persons at the Criminal Sessions held at Accra on 17 June 1971. The proceedings up to the time of the said submissions were as indicated in the case stated by the trial judge as follows:

“The ten accused persons were on 20 May 1971, committed by his worship Mr. E. T. A. Torto, District Magistrate, to the High Court, Accra, for trial on charges of conspiracy to defraud contrary to sections 23 (1) and 131 of the Criminal Code, 1960; defrauding by false pretences contrary to section 131 of the Criminal Code, 1960; forgery of document contrary to section 158 of the Criminal Code, 1960; uttering forged document, contrary to section 169 of the Criminal Code, 1960; and making illegal payments outside Ghana contrary to section 6 and paragraph 5 (1) of Part II of the Exchange Control Act, 1961. None of the charges carries the death penalty or life imprisonment.

All the accused persons duly appeared before the High Court presided over by me, on 17 June 1971. They were all represented by counsel.

Before the charges could be read to the accused persons Mr. Gyeke-Dako, Chief State Attorney, pleaded that owing to the complicated nature of the case I was to try the case without jury. He read articles 20 (2) and 112

(2) of the Constitution, 1969, and submitted that since none of the charges carries the death penalty or life imprisonment I was competent to try the case without jury.

Mr. Kwaku-Boateng, counsel for the seventh, eighth and ninth accused persons, agreed with Mr. Gyeke-Dako.

The other defence counsel, through Mr. J. B. Quashie-Idun, however, disagreed with the learned chief state attorney and submitted that the interpretation put on article 20 (2) of the Constitution was wrong. Mr. Quashie-Idun referred to section 204 of the Criminal Procedure Code, 1960 (Act 30), (hereinafter referred to as Act 30) and submitted that the trial can only be heard by me and a jury.”

The trial judge referred the matter to this court under and by virtue of the provisions of article 106 (2) of the Constitution for determination of the simple question “whether a justice of the High Court can try the charges against the accused persons herein without a jury.”

The provisions of article 112 (2) of the Constitution provide that:

“The High Court of Justice shall be duly constituted, as the case may be,

(a) by any one Justice thereof; or

(b) by any one Justice thereof and a jury, in accordance with the provisions of paragraph (a) of clause (2) of article 20 of this Constitution, for the trial of an offence, other than treason, the punishment for which is death or imprisonment for life; or

(c) by two Justices thereof in accordance with Rules of Court for the determination of any other particular cause or matter; or

(d) by three Justices thereof, in accordance with the provisions of paragraph (h) of clause (2) of article 20 of this Constitution, for the trial of any person for the offence of treason.”

The constituted courts relevant to this reference are obviously (a) and (b) above since the trial is not in respect of a particular cause or matter to be determined in accordance with rules of court and the accused persons are not charged with the offence of treason.

We find it difficult to understand the submission of counsel in the court below that article 20 (2) (a) of the Constitution, 1969, makes trial by a judge with a jury compulsory for all offences other than treason. The language of the relevant part of the article is clear and unambiguous. It states that: “Every person who is charged with a criminal offence

(a) shall, in the case of an offence, other than treason, the punishment for which is death or imprisonment for life, be tried by a judge and jury whose verdict shall

(i) in the case of death, be unanimous; and

(ii) in the case of an imprisonment for life be unanimous or by a majority . . .”

All that it seeks to do is to make mandatory provision for the trial of persons charged with offences punishable with death or imprisonment for life, other than those persons charged with treason, which is also punishable with death, but for which special provision is made in article 20 (2) (h) of the Constitution for trial by “the High Court duly constituted by three Justices thereof.” The only punishment that a court can legally pass on any person convicted of treason is death (under section 180 (1) of the Criminal Code, 1960 (Act 29)) and therefore any argument that the words “punishment for which is death or life imprisonment” refer to treason is not sustainable for the simple reason that for the offence of treason the law does not provide for an alternative punishment of life imprisonment to the mandatory one of death. The intention is clearly to exclude, by the insertion of the words “other than treason,” the offence of treason which is a capital offence from offences punishable with death or life imprisonment for which provision is made for trial by jury. Article 20 (2) (a) of the Constitution is not in conflict with any provisions made for the trial of offences as contained in the Criminal Procedure Code, 1960 (Act 30), or any other law.

An examination of the provisions of Act 30 does not support any argument that the offences with which the accused persons in the instant case are charged must be tried by a judge with a jury. By the provisions of sections 244 and 245 of Act 30, trials of all offences punishable with death shall be by a jury of seven persons; and the Criminal Procedure (Trial by Jury) Instrument, 1966 (L.I. 499), made by the Minister of Justice on 14 January 1966 pursuant to the provisions of section 242 (1) of Act 30 appropriates all offences punishable with life imprisonment to be tried by jury. It is pertinent to note that, quite apart from the provisions of article 20 (2) (a) of the Constitution which make trial with a jury mandatory in offences punishable with death or life imprisonment, other than treason, no legislative instrument has been made appropriating any of the offences of which the accused persons stand charged to be tried by a judge with a jury.

The question that arises is whether provision has been made for the trial of offences not punishable with death or life imprisonment. The Constitution is silent on this point and therefore the answer must lie in the ordinary laws and enactments governing trials on indictment. Under section 243 of Act 30, the trial of offences other than those punishable with death or life imprisonment (such as the offences with which the accused persons are charged) is by a court with the aid of assessors, unless the court, for stated reasons, directs that the accused be tried by jury. No provision of the Constitution has abolished trials with assessors, whatever may have been the intention of the Constituent Assembly in its deliberations regarding the Constitutional Proposals, and, until the provisions of Act 30 relating to such trials are specifically repealed, trials with the aid of assessors remain part of the law of the land. The present state of the law regarding trials on indictment may thus be summed up as follows:

(a) all capital offences (other than treason) and all offences punishable with life imprisonment shall be tried by a justice of the High Court with a jury;

(b) the offence of treason shall be tried by three justices of the High Court;

(c) all other offences shall be tried by a justice or judge with the aid of assessors but, on the application of the accused or the Attorney-General the court may, for stated reasons, try any such offence with a jury;

(d) under section 404 of Act 30 any trial with a jury, where it should be conducted with assessors, shall not on that ground only be invalid.

In a trial by a court with the aid of assessors, the assessors merely aid or assist the judge or justice by each giving an opinion on the facts of the case, which opinion can be overruled by the judge or justice who alone gives the binding and final judgment of the court in such a trial. It is trite learning to state that whereas, in a trial by jury, the judge or justice decides issues of law and sums up the facts for the jury to give the verdict, which is the judgment of the court, in a trial with the aid of assessors the judge determines finally issues of both law and fact and thus the trial is in fact by the judge whose judgment alone constitutes the decision in the case. A trial on indictment by a justice with the aid of assessors is in fact and in essence a trial by the presiding judge who is within the category of “one Justice of the High

Court” duly constituted under and by virtue of article 112 (2) (a) of the Constitution. [p. 475] of [1971] 2 GLR 473

In the result the answer to the question referred to this court is that a justice of the High Court can try the charges against the accused persons herein without a jury although such trial has to be with the aid of assessors.

We wish to comment that a lower court is not bound to refer to the Supreme Court every submission alleging as an issue the determination of a question of interpretation of the Constitution or of any other matter contained in article 106 (1) (a) or (b). If in the opinion of the lower court the answer to a submission is clear and unambiguous on the face of the provisions of the Constitution or laws of Ghana, no reference need be made since no question of interpretation arises and a person who disagrees with or is aggrieved by the ruling of the lower court has his remedy by the normal way of appeal, if he so chooses. To interpret the provisions of article 106 (2) of the Constitution in any other way may entail and encourage references to the Supreme Court of frivolous submissions, some of which may be intended to stultify proceedings or the due process of law and may lead to delays such as may in fact amount to denial of justice. In this connection we fully endorse the decision of the Court of Appeal sitting as the Supreme Court in the case of Awoonor- Williams v. Gbedemah, Supreme Court, 8 December 1969, unreported; digested in (1969) C.C. 18 and of Tait v. Ghana Airways Corporation, Supreme Court, 29 July 1970, unreported.

DECISION

High Court to try accused without jury but with the aid of assessors.

K. T