REPUBLIC vs. MAIKANKAN AND OTHERS [1973] 2 GLR 222

NATURE OF PROCEEDINGS

CASE STATED for the determination of the Court of Appeal as to whether a trial should be adjourned indefinitely if witnesses for the defence who have been served with subpoenas cannot be traced to give evidence.

COUNSEL

Akyea-Djamson for the accused.

Asamoah, Senior State Attorney, for the Republic.

JUDGMENT OF AZU CRABBE C.J.

Azu Crabbe C.J. delivered the ruling of the Court. Section 95 (3) (b) of the Courts. Act, 1971 (Act 372), under which Aboagye J. has stated this case for our consideration reads as follows: “(3) A judge of the High Court . . . may at any time before judgment – (b) . . . on the trial of any criminal case . . . reserve for the consideration of the Court of Appeal on a case stated by him any question of law which may arise in the trial.”

The case stated is 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;

[p.223] of [1973] 2 GLR 222 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, Exchange Control Act, 1961.

On 5 September 1972, the first, fourth, fifth, seventh, eighth and ninth accused persons were acquitted and discharged on all charges against them following a submission of no case made on their behalf. The second, third, sixth and tenth accused persons were called upon to answer some of the charges preferred against them. On 28 November 1972, a subpoena was filed on behalf of the second accused for service on nine persons to give evidence on behalf of the second accused. On the same date another subpoena was filed for service on ten persons to give evidence on behalf of the third accused.

On 1 December 1972, copies of the subpoenas filed on behalf of the second accused was served on three of his proposed witnesses, namely, Abi Babarinde, J. A. Mingle and Alhaji Imoro. On the same date copies of the subpoena filed on behalf of the third accused was served on three of his proposed witnesses, namely, S.

Ade Okedina, A. A. Sengekye and Asare Lartey.

On 4, 5 and 6 December 1972, the second accused gave evidence in his defence. At the close of his evidence his counsel Mr. J. B. Quashie-Idun, informed the court that none of his witnesses (including those served with subpoenas) had turned up. This was checked up and found to be correct. Upon counsel’s application warrants were issued for the arrest of the three witnesses who had been served with the subpoenas but the bailiff informs the court that the people cannot be traced.

On 11 and 12 December 1972, the third accused gave evidence in his defence and it was also found that none of his witnesses (including those served with the subpoenas) had appeared in court. They too cannot be traced.

Mr. Quashie-Idun has stated that the evidence to be given by the witnesses served with the subpoenas is so vital to the defence that he is not disposed to close the cases for the second and third accused persons without the evidence of their witnesses.

I therefore state a case for the determination of the Court of Appeal as to whether a trial court should stay further hearing of a case if witnesses for the defence who have been served with subpoenas cannot be traced to give evidence.

(Sgd.) I. R. Aboagye Judge.”

[p.224] of [1973] 2 GLR 222

This case came before the High Court upon committal for trial by indictment by a district court. Section 188 of the Criminal Procedure Code, 1960 (Act 30), makes special provisions relating to witnesses for the defence, and these read as follows:

“(1) The Court, on committing the accused for trial, shall ask him whether he desires to call witnesses at the trial.

(2) If the accused states that he wishes to call witnesses the Court shall cause to be taken down in writing the name, address and other necessary particulars of each witness.

(3) If any such witness is present in Court, the Court may bind him by recognizance, with or without a surety or sureties to appear at the trial to give evidence.

(4) The Court shall inform the accused of his right to require the attendance at the trial of any witness and of the steps which he must take for the purpose of enforcing such attendance.

(5) The accused may give notice to the District Court at any time before the date to which the accused has been committed for trial and at any time thereafter to the Registrar of the trial Court that he desires a witness to attend at the trial and the Court or Registrar shall cause a summons to be served on the witness for his attendance at the trial.”

In the absence of any facts to the contrary, this court will apply the maxim omnia praesumuntur rite esse acta, and will hold that the district court complied with the provisions of subsections (1) and (4) of section 188. It would appear that the second and third accused chose to exercise their rights under subsection (5), but unfortunately their witnesses failed to attend court to give evidence. And section 275 (2) of the Criminal Procedure Code, 1960, reads: “No accused person shall be entitled to any adjournment to secure the attendance of any witness unless he shows that he could not by reasonable diligence have taken earlier steps to obtain the presence of the witness.” In this case it cannot be doubted that the two accused persons reasonably and diligently took earlier steps to ensure the attendance of their witnesses. The real issue, therefore, is whether the High Court was under an obligation to adjourn the proceedings indefinitely until such time that these witnesses who had disobeyed the summons of the court by disappearing were found? We wish to say at once that we do not think so. For if that were so, an accused person who realises that the case might be decided against him will deliberately frustrate his trial by arranging with some rascals to agree to give evidence on his behalf and then later encouraging them to flee the country after the service of subpoenas on them. Whether this is what exactly happened in this case we are unable to say.

[p.225] of [1973] 2 GLR 222

Counsel for the Republic drew attention to sections 54 and 55 of the Courts Act, 1971 (Act 372), and submitted that the second and third accused could have availed themselves of the provisions of these sections, but that they failed to do so, and cannot, therefore, complain of the failure of their witnesses to attend court. Section 54 reads:

“In a criminal case if the Court is satisfied by evidence on oath that any person can give material evidence and will not attend unless compelled to do so, the court may at once issue a warrant for the arrest and production of the witness before the Court at a time and place to be specified therein.”

And section 55 also reads:

“Where any witness is arrested under a warrant, the Court may, on his furnishing security by recognizance with or without a surety or sureties to the satisfaction of the Court for his appearance at the hearing of the case, order him to be released from custody, or shall, on his failing to furnish proper security, order him to be detained for production at the hearing.”

In the opinion of this court there is no evidence that the two accused persons had cause to suspect that their witnesses would not attend court, unless compelled to do so. Their failure to apply for warrants for the arrests of the witnesses ought not, therefore, be allowed to weaken their argument in support of the application for adjournment. In all criminal cases the accused person is entitled to have compulsory process for obtaining witnesses in his favour. And an accused person, who, after his committal for trial, applies to the registrar of the trial court for summons to be served on a witness by virtue of section 188 (5) of the Criminal procedure Code, 1960, is merely using the court’s machinery to secure the attendance of the witness at his trial. All competent witnesses, with certain exceptions not necessary to consider here, who are amenable to the jurisdiction of the trial court are compellable to attend court for the purpose of giving evidence. But the court does not thereby undertake to compel he attendance of a witness who has left Ghana and is residing in a foreign country.

As a general rule the granting of adjournment is in the discretion of the court, and section 241 of the Criminal Procedure Code, 1960, states as follows:

“(1) If, from the absence of witnesses or any other reasonable cause to be recorded in the proceedings, the Court considers it necessary or advisable to postpone the commencement of or to adjourn any trial, the Court may from time to time postpone or adjourn it on such terms as it thinks fit for such time as it considers reasonable, and may by warrant remand the accused to some prison or other place of security.

(2) During a remand the Court may at any time order the accused to be brought before it.

(3) The Court may on a remand admit the accused to bail.”

[p.226] of [1973] 2 GLR 222

This discretionary power to adjourn a trial from time to time can, in the opinion of this court, be exercised where there is some evidence of the possibility of the witness being found in Ghana and that he can be compelled to attend court. This court is, however, not aware of any enactment or rule of law which enjoins a trial court in a criminal case to adjourn a trial indefinitely for the mere reason that witnesses for the defence are residing outside the territorial boundaries of Ghana. A witness who is within Ghana, but is not within the jurisdiction of the court or is within the jurisdiction, and who fails to attend on his summons or subpoena, exposes himself to the penalties imposed under section 56 of the Courts Act, 1971 (Act 372).This section reads:

“(1) Any person summoned as a witness who – (a) without reasonable excuse fails to attend as required by the summons after having had reasonable notice of the time and place at which he is required to attend, or

(b) having attended departs without reasonable excuse and without having obtained the permission of the Court, or (c) fails without reasonable excuse to attend after adjournment of the Court after being ordered to attend, may be proceeded against by warrant to compel his attendance, and shall also be guilty of an offence and may be dealt with summarily by the Court as for contempt of Court and sentence forthwith to a fine not exceeding N¢250 or six months imprisonment or both.

(2) The fine may be levied by attachment and sale of any movable property belonging to the witness.

(3) For good cause shown, the High Court or Circuit Court may remit or reduce any fine imposed under this section by a District Court.”

The powers conferred by section 56 are not exercisable in relation to witnesses who are outside the territorial limits of Ghana.

Our answer to the question posed in the case stated is that the absence of witnesses for the defence who have been served with subpoena summonses and who cannot be traced to give evidence does not mean that the trial should be adjourned indefinitely; the court may, having regard to all the circumstances, adjourn the hearing from time to time on such terms as it thinks fit, and in every case the discretion must be exercised with the view to securing fair trial. Where the witnesses are beyond the territorial boundaries of Ghana it is the responsibility of the accused to arrange for their attendance at court within reasonable time. If he fails to do this the trial should proceed.

DECISION

Responsibility of defence to secure attendance of defence witness residing outside the country.

S. E. K.