REPUBLIC vs. MAIKANKAN AND OTHERS [1973] 2 GLR 384

CASES REFERRED TO

(1) Bank of Ghana v. Labone Weavers Enterprises Ltd. [1971] 1 G.L.R. 251, C.A.

(2) Republic v. Kuma, High Court, Accra, 24 June 1968, unreported; digested in (1968) C.C. 126.

(3) Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645; [1968] 3 W.L.R. 1229; [1968] 3 All E.R.

561, P.C.

(4) Uganda v. Commissioner of Prisons; Ex parte Matovu (1966) E.A.L.R. 514.

(5) State v. Dosso [1959] 1 Pakistan L.R. 849.

(6) Marbury v. Madison, 1 Cranch 137; 2 L. Ed. 60 (1803).

(7) Adegbenro v. Akintola [1963] A.C. 614; [1963] 3 W.L.R. 63; 107 S.J. 532; [1963] 3 All E.R. 544, P.C.

(8) Kuma v. The Republic, High Court, 21 August 1968, unreported; digested in (1968) C.C. 139. (9) Kuma v. The Republic, Court of Appeal, 15 October 1968, unreported; digested in (1969) C.C. 6. (10) Republic v. Minister of Interior; Ex parte Lynes, Court of Appeal, 22 July 1970, unreported. (11) Heydon’s Case (1584) 3 Co.Rep. 7a; 76 E.R. 637.

NATURE OF PROCEEDINGS

APPEAL against the ruling of the High Court, Accra, that a document which was not listed in the summary of evidence could not be tendered in evidence. The facts are set out fully in the judgment of Charles Crabbe J.S.C.

COUNSEL

Gyeke-Dako, Director of Public Prosecutions, for the Republic.

Peter Adjetey, Peter Swaniker and James Quashie-Idun for the respondents.

JUDGMENT OF CHARLES CRABBE J.S.C.

The accused persons, ten of them, had been charged on 516 counts. The offences, alleged to have been committed between January and December 1969, range from defrauding by false pretences and uttering forged documents to forgery of documents. At the trial the prosecution sought to tender in evidence a document. Mr. Peter Swaniker, one of the defence counsel, objected to the document being tendered in evidence.

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The ground for the objection was that it had not been stated in the summary of evidence of that witness that he would tender any document in evidence. Counsel contended that the object of an accused person being supplied with the summary of evidence was to enable him or his counsel to know in advance what the witness was going to do so as to avoid a surprise.

Mr. Gyeke-Dako, the Director of Public Prosecutions and prosecuting counsel, argued that all that the Criminal Procedure Code, 1960 (Act 30), required was that a summary of the witness’s evidence should be made and a list of the documents which were intended to be tendered in evidence should be attached to that summary. The summary of evidence was not expected to contain a statement that the witness should be asked to tender the documents.

Mr. Peter Adjetey, another defence counsel, also objected to the document being tendered, supporting the contention of Mr. Peter Swaniker. He added that under paragraph (b) of subsection (1) of section 182 of the Criminal Procedure Code, 1960, (Act 30), if an accused person should be kept in the dark as to who was to tender any document, then it would be putting the accused person in difficulty in preparing against the witness for the prosecution.

The learned trial judge gave a ruling as follows:

“I uphold the objection raised by learned counsel for the defence. The purpose of section 182 (1) of Act 30 is to enable an accused person or his counsel to know in advance what charge or charges he is to face and what evidence is to be adduced against him. He is to know in a nutshell what each witness for the prosecution is to say or do in the witness box. Since the witness is not expected, by the summary of his evidence, to tender any document it is improper for him to be allowed to tender any document to surprise the accused persons or their counsel. I further uphold counsel’s argument that once the document sought to be tendered has not been listed it cannot be tendered by the witness.”

Prosecuting counsel then gave notice of his intention to appeal against the ruling. He applied for the hearing to be adjourned sine die pending the hearing of the appeal by this court. Mr. Swaniker, defence counsel, contended that the hearing could proceed with the remaining witnesses who would not tender any document. Prosecuting counsel felt, however, that the ruling went far enough, meaning that a witness could not give evidence on what had not been stated in his summary of evidence. And as some of the witnesses were expected to give evidence on certain documents not listed in the summary of evidence against their names he thought a ruling of the Court of Appeal was essential.

The learned trial judge felt that since the objection raised by counsel was likely to be repeated it would help the court if a ruling of the Court of Appeal was given, before the trial continued. He adjourned the case accordingly.

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The prosecution appealed to this court on questions of law, that is to say:

“(1) That the learned trial judge erred in law in his interpretation of section 182 (1) of Act 30.

(2) That the learned trial judge erred in law by holding that ‘since the witness is not expected by the summary of evidence to tender any document it is improper for him to be allowed to tender any document.’ (3) That the learned trial judge erred in law by stating that ‘once the document sought to be tendered has not been listed it cannot be tendered by the witness’.”

Before this court, counsel for the prosecution conceded that he had been misled as to the existing state, then, of the law regarding the provisions of section 182 of the Criminal Procedure Code, 1960. The relevant section, enacted in 1960 as part of a consolidation of the law relating to criminal procedure was amended by the Criminal Procedure Code (Amendment) (No.1) Act, 1962 (Act 102). The original provision, for present purposes, was, “(a) a summary of evidence which shall comprise a list of witnesses whom the prosecution propose to call at the trial and a summary of the evidence to be given by each witness . . .” As amended by Act 102 of 1962, this paragraph reads:

“(a) a summary of evidence which shall comprise a list of the witnesses who the prosecution propose to call at the trial and a summary of the evidence to be given by each witness and a list of documents and things it proposes to put in evidence at the trial.”

All that the 1962 amendment did was to add the words, “and a list of the documents and things it proposes to put in evidence at the trial.” These words have become very important in this case. Indeed, vital, for the arguments of the defence counsel are based upon the assumption that since the document sought to be tendered had not been described in the list of documents as part of the summary of evidence that the witness who was to tender it would tender it in evidence, that witness could not be asked to tender that document.

In the course of argument before this court the issue was raised whether the prosecution could appeal in an interlocutory matter having regard to the provisions of subsection (5) of section 10 of the Courts Act, 1971 (Act 372). The case was therefore adjourned to enable the Director of Public Prosecutions and counsel for the defence to prepare legal arguments on that issue and on related matters of appeal.

On the issue whether there could be an appeal in an interlocutory matter such as the instant case, the learned Director of Public Prosecutions argued that the jurisdiction of the Court of Appeal was conferred by section 10 of the Courts Act, 1971 (Act 372), regarding the present appeal. Subsection (5) of section 10 of that Act was most relevant and its effect must depend on what interpretation one gave to the word “inter-

[p.389] of [1973] 2 GLR 384 locutory.” The word is defined in The Dictionary of English Law by Earl Jowitt thus at pp. 995-996:

“A proceeding in an action is said to be interlocutory when it is incidental to the principal object of the action, namely, the judgment. Thus, interlocutory applications in an action include all steps taken for the purpose of assisting either party in the prosecution of his case, whether before or after final judgment; or of protecting or otherwise dealing with the subject-matter of the action before the rights of the parties are finally determined; or of executing the judgment when obtained.”

In this definition nothing is mentioned about criminal law; and the meaning which should be given to the word “interlocutory” should be any proceedings after service of the writ. He thought that interlocutory proceedings, however, had been peculiar to civil proceedings. Subsection (5) of section 10 of the Courts Act, 1971, had used the word “any.” Its use in that subsection could be compared with the use of that same word in subsection (4) of the same section 10.

The jurisdiction of the High Court of Justice was conferred by subsection (1) of section 14 of the Courts Act, 1971, which gave that court an appellate jurisdiction, its decisions being subject to appeal to the Court of Appeal. Section 19 of the Interpretation Act, 1960 (C.A. 4), allowed the use of text books and other publications in the construction of enactments including any memorandum published by authority in reference to the enactment and any papers laid before the National Assembly. As such reference should appropriately be made to the memorandum to the Courts Bill to aid interpretation of the Courts Act, 1971 (Act 372). Equally, the mischief rule should also be called in aid to assist in the relevant interpretation.

Before the 1969 Constitution there was no appeal in interlocutory matters in the criminal law. Tracing the history of that bit of the law from the 1936 edition of the Laws of the Gold Coast, to the present position, Mr. Gyeke-Dako thought that the word “any” must not be restricted to civil cases. The use of the word “any” in subsection (4) of section 10 of the Courts Act, 1971, was governed by the provisions of subsection (1) of the same section. Finally, the memorandum to the Bill clearly showed the intention of Parliament and the Act should be interpreted with the aid of that memorandum.

In the view of Mr. Peter Adjetey, defence counsel, the whole issue before the court was governed by two sets of provisions of the law. The provisions were, articles 102 to 125 of the 1969 Constitution, and the provisions contained in section 10 of the Courts Act, 1971. The provisions of articles 102 to 125 of the 1969 Constitution were still in force, by virtue of the provisions of the Proclamation issued by the National Redemption Council upon the take-over by the Military on 13 January 1972.

Article 110 of the 1969 Constitution determined the jurisdiction of the Court of Appeal. Clause (1) of that article used the expression “any cause or matter.” Under clause (2) of that article appeals were as of

[p.390] of [1973] 2 GLR 384 right: no leave was required. In Bank of Ghana v. Labone Weavers Enterprises Ltd. [1971] 1 G.L.R. 251, the Court of Appeal decided that there was no need for leave to appeal from an interlocutory order of the High Court of Justice to the Court of Appeal. In so far as the Courts Act, 1971, purported to put fetters on that right, it was unconstitutional. Subsection (3) of section 10 of the Courts Act, 1971, merely reproduced clause (3) of article 110 of the 1969 Constitution.

Equally subsection (5) of section 10 of the Courts Act, 1971 (Act 372), placed fetters on clause (2) of article 110 of the 1969 Constitution. Subsection (6) of section 10 of the Courts Act, 1971, allowed the prosecution as well as the defence to appeal “against any decision.” The word “interlocutory” was used as opposed to the word “final” and though it might sound rare, it was not the case that it could not be done. He thought that the ruling in the Republic v. Kuma, High Court, Accra, 24 June 1969, unreported; digested in (1968) C.C. 126 was wrong: section 182 of the Criminal Procedure Code, 1960, used the word “shall.” He added that a trial judge had the right to exclude evidence even if in law that evidence was strictly admissible.

Mr. James Quashie-Idun, another of the defence counsel, contended that the use of the expression “appeal as of a right” should be confined to final matters. The Court of Appeal had the requisite jurisdiction but leave was required. Clause (2) of article 110 of the 1969 Constitution used the word “determined.” The rationale then, was, that the matters therein referred to were not intended to be interlocutory. Moreover clause (3) of article 110 used the expression “any appeal.” In all other respects he agreed with the contentions of Mr. Peter Adjetey.

Since Naguib overthrew King Farouk of Egypt in the early fifties of this century and Nasser overthrew Naguib, coups d’etat have become a feature of political and constitutional realism on the continent of Africa. Of late, Greece has copied the example. All great revolutions leave an impact on the international scene. The Netherlands revolt in the sixteenth century markedly influenced the revolutionary movement in England. The seventeenth century English revolution had serious repercussions in France and Holland. Its ideas came to full fruition in France and America. The democratic ideas of the American War of Independence affected the French Revolutions of 1789, 1830, 1848 and 1871.

On 11 November 1965, the Government of Rhodesia issued a proclamation (Rhodesia Proclamation (No. 53 of 1965)) which purported to “adopt, enact and give to the people of Rhodesia” a constitution. This made Rhodesia, as far as Rhodesians were concerned, an independent sovereign State. In January 1965, one Madzimbamuto was issued with an order restricting him to a restricted area. On 6 November 1965, he was served with a detention order. This was later challenged on the ground that the continued detention of Madzimbamuto was without legal authority since the United Kingdom Parliament had passed the Southern Rhodesia Act 1965, emphasising the responsibility and jurisdiction of the United Kingdom Parliament. The Parliament of Rhodesia thus had

[p.391] of [1973] 2 GLR 384 no legal existence and everything done by it or purporting to be done under an Act passed by it was invalid.

The reply to this was that the 1965 Constitution was the lawful one for Rhodesia, that if the Government of Rhodesia was not a de jure government, it was nonetheless the de facto government. Some, at least, of its laws must be legal and recognised as such. It was held that though there was no evidence of a successful revolution or severance of British sovereignty, the 1965 Constitution was not the lawful Constitution of Southern Rhodesia. But as the de facto government was the only effective government, on the basis of necessity and public policy, so as not to cause a breakdown of law and order the courts should give effect to legislative and administrative measures which could have been lawfully taken under the 1965 Constitution of Rhodesia, for the preservation of peace and good government and the maintenance of law and order. The order for detention was not therefore set aside: see Madzimbamuto v. Lardner-Burke [1968] 3 All E.R. 561, P.C.

Earlier than the Rhodesian experience, the courts in Uganda and Pakistan, in Uganda v. Commissioner of Prisons; Ex parte Matovu (1966) E.A.L.R. 514, and State v. Dosso [1959] 1 Pakistan L.R. 849, had given recognition to the revolutionary governments of Uganda and Pakistan, respectively, as having acquired legality. Said Sir Udo Udoma, the Chief Justice of Uganda at p. 537:

“The Constitution had extra legal origin and therefore created a new legal order. Although the product of a revolution, the Constitution is nonetheless valid in law because in international law revolutions and coups d’etat are recognised methods of changing governments and constitutions of sovereign states . . .”

On 22 February 1966, the Independence Constitution of Uganda was suspended. On 15 April 1966 a new Constitution was adopted in Parliament assembled. As in the Rhodesia case one Matovu had challenged the legality of his detention.

The constitutional developments of Uganda and Rhodesia briefly dealt with may be considered as examples of a civil coup d’etat, in each case brought about by the government then in power. When, however, on 4 July 1776, the Americans declared their independence of Britain they reiterated the eighteenth century philosophy that whenever “any form of government” became destructive of “Life, Liberty and pursuit of Happiness . . . it is the Right of the People to alter or abolish it, and to institute new Government, . . .” since the authority of any government is derived from the consent of those who are governed and the purpose of government is to secure these rights. It was, however, not until 1783 that by the Treaty of Versailles that American Independence was recognised. The French Revolution of 1789, provoked by a monarch bent on maintaining his absolutism without concession led to the establishment of a Constituent Assembly and to the Constitution of 1791 to secure property, liberty and equality.

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In Russia, history took a far different course. The Bolshevik Revolution of November 1917, superseded the liberal revolution of March of the same year. The Bolsheviks had “defeated” the Mensheviks. Constitutionalism by way of reforms through the Duma had failed. That gave way to the violence of the Bolsheviks and to “the most important political event of modern times,” the Russian Revolution of November 1917.

Recognition in each of these cases had to be given to the new government. Prudence directs that such a recognition be given. At first the recognition is a de facto one. Sooner or later de jure recognition is accorded. As Sir John Harington observed in Of Treason Bk. IV, No. 5 at p. 76 if treason “prosper, none dare call it treason.”

From this, all too brief a reference to certain coups d’etat, military and civil, it appears that the principle that governments exist for the welfare of the governed and that if a government ceases to secure the ends for which it is established the people have a right to alter it or abolish it, seems also to have actuated the military take-overs in Ghana in 1966 and again in 1972.

The events that led these coups d’etat in Ghana and the political issues arising therefrom are not particularly the concern of this court. Yet, as has been demonstrated, issues as to legality are raised, such as the legality of acts of the government in power consequent upon the revolution. Hence Mr. Peter Adjetey’s concern that though the 1969 Constitution has been suspended, articles 102 to 125 of that self-same Constitution are in force.

The military take over in 1966 was widely acclaimed by the people of Ghana as being in the best interests of the people: the first Republican Government had become destructive of the ends for which it was established. The people of Ghana gave vent to the principle that the web of government depends upon the existence of the State and that if the political sovereignty of the people cannot be given the opportunity for the exercise of their constitutional right, free and unfettered, to change the existing order, then by revolution, it could abolish it.

When the National Liberation Council took over the administration of Ghana it assumed the executive authority of the country. It issued Decrees, appointed judges, revived the Public Service Commission, and generally governed the country. Though the 1969 Constitution clothed with unchallengeable legality the acts of the National Liberation Council by the provisions of section 13 of Part IV of the First Schedule to the 1969 Constitution, no one in Ghana challenged, even questioned, the legality of the acts of the National Liberation Council.

This, so far, appears also to be the present position. No one has as yet challenged the legality of the National Redemption Council, or acts performed by it or pursuant to any of the Decrees it has issued. Some, at least, of the foreign States who maintain diplomatic contact with Ghana, have through their local accredited representatives publicly acknowledged the changed situation, fully aware of the appropriate legal consequences that follow from such an acknowledgement.

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In Rhodesia the 1965 Constitution provided that if a judge of the superior court were asked to choose between loyalty to the Queen of England and acceptance of the 1965 Constitution and he refused, his office would upon the refusal become vacant. The judges of the Superior Court of Judicature in Ghana have not been placed in such a position. They have voluntarily renewed their oaths of office under the National Redemption Council. We must, therefore, give effect to the Proclamation which established that Council.

That proclamation, the National Redemption Council (Establishment) Proclamation, 1972, provides in section 4 that:

“Notwithstanding the suspension of the Constitution, and until provision is otherwise made by law;

(a) all Courts in existence immediately before the 13th day of January 1972 shall continue in existence with the same powers, duties, functions and composition as they had immediately before that date;

(b) the Rules of Court Committee in existence immediately before the 13th day of January, 1972 shall continue in existence with the same powers, duties and functions as before that date,

(c) all judges and every other person holding any office or post in the Judicial Service immediately before the 13th day of January, 1972 shall continue in that office or post upon the same terms and conditions as before that date and shall discharge the same functions as were prescribed in relation to that office or post under any enactment immediately before the said date.”

If the existence of the National Redemption Council is not challenged but accepted as the effective government of this country then the above quoted provision of the Proclamation would be equally effective. That restores to the judiciary all that the 1969 Constitution gave to it. The first and foremost of the powers of the judiciary is that it is the final judicial power in Ghana. Comprehensive as this power is, the effect of clause (1) of article 102 of the 1969 Constitution is that the judiciary has, to the exclusion of the executive and the legislature, the exclusive right to determine all justiciable controversies.

The logic of events and historical perspectives influence the content of a written Constitution. Its essence is borne of the experience which gave it birth. It is conceived of the lessons of yesterday. Yet it governs the conditions of today. And its life depends upon the circumstances of tomorrow. It is not a set of mathematical formulae and human conditions are not static. Its effectiveness demands a vitality that endures and in this, it is essential that its origin is kept in mind, its spirit kept in sight.

In the light of the arguments advanced before us, and in view particularly, of the assertion by the learned Director of Public Prosecutions that the jurisdiction of the Court of Appeal regarding the present appeal is conferred on it by section 10 of the Courts Act, 1971 (Act 372), that

[p.394] of [1973] 2 GLR 384 section needs some scrutiny. It purports to confer jurisdiction on the judiciary in several particulars. In that, generally, it is in accord with the provisions of clause (2) of article 102 of the Constitution, 1969, which states that, “The Judiciary shall have jurisdiction in all matters civil and criminal including matters relating to this Constitution, and such other matters in respect of which Parliament may by or under an Act of Parliament confer jurisdiction on the Judiciary.”

(The emphasis is mine.) The memorandum to the Courts Bill stated at p. IV that, “Part I of the Bill deals with the composition, jurisdiction and functions of the Superior Courts of Judicature.

It incorporates the important provisions of Chapter Nine of the Constitution relating to the Superior Courts of Ghana . . .”

It went on, “In providing for the right of appeal to the Supreme Court, account has been taken of the decisions of the then Court of Appeal in the case of Attoh Okine and others (Ghana Law Reports 1960 page 84) and in the case of R. R. Amponsah and another (Ghana Law Reports 1960 page 140) to the effect that there is no right of appeal without express statutory provision conferring such a right, from a refusal of the High Court to grant an application for a writ of habeas corpus. These decisions were on the basis that the refusal to grant the habeas corpus was not a final judgment or decision given in respect of a claim exceeding £G100 or determining directly or indirectly a claim or other matter above the amount or value of £G100 in respect of which a right of appeal existed under the law then in force. Clause 3 (1) (b) of the Bill provides for appeals as of right to the Supreme Court from a judgment, decree or order of the Court of Appeal ‘in any cause or matter relating to the issue or refusal of a writ or order of habeas corpus, certiorari, mandamus, prohibition or quo warranto.’ This provision is in full accord with clause (3) of article 28 of the Constitution which provides a right of appeal to the Court of Appeal from the exercise by the High Court of its jurisdiction under clause (1) of that article relating to the protection of the liberty of the individual. The said clause (3) of article 28 also confers a further right of appeal in such matters from the Court of Appeal to the Supreme Court.

Further, in view of the doubts cast by cases like the State v. The Minister of the Interior; Ex parte J. H. Lynes and the Bank of Ghana v. Labone Weavers Enterprises Ltd. on the right of appeal from interlocutory orders made by Courts it has been found necessary to make express provision in the Bill concerning such appeals (see Clauses 3, 10 and 19).”

Regarding this the celebrated words of Chief Justice John Marshall of the United States Supreme Court in the equally celebrated case of

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Marbury v. Madison, 4 Cr. 100, at p. 175, 2 L. Ed. 60 (1803) come to mind:

“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution; disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.”

Clause (2) of article 1 of the 1969 Constitution states that:

“This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void and of no effect.”

This is a bold statement of the fundamental law of this country. Any principle that the courts must close their eyes to the force of this constitutional provision, at least before the events of 13 January 1972, and say that only what Parliament, in its wisdom has enacted must prevail, cannot be sustained by the courts.

It would be subverting the Constitution. It would be a doctrine which strikes at the very foundation of the Constitution. For it has implicit in its meaning a dangerous proposition that if the legislature shall do anything whether expressly forbidden or not, whether directly or indirectly, that act of the legislature would override the express provisions of the Constitution.

It is precisely to free the country from this kind of legislative despotism that the framers of the 1969 Constitution made the provision enshrined in clause (2) of article 1 of that Constitution.

History is a reasonable guide; the lessons of history need not be easily forgotten, nor should there be a failure to see clearly the lessons of history. The feats of the Parliament of the First Republic of Ghana must have been uppermost in the minds of the framers of the 1969 Constitution to have led them to make that provision to ensure, it was hoped, the permanence of democratic constitutional government.

Said the Constitutional Commission in The Proposals for a Constitution for Ghana at p. 7, “Parliament, the highest national institution symbolising the sovereign power of the people and serving as the focal point of their urge for good government, natural justice and social order, was ruth-

[p.396] of [1973] 2 GLR 384 lessly stripped of all its attributes and reduced to a mere rubberstamping mechanism for the passing of pernicious and draconian legislation some of which struck at the very foundations of the rights and liberties of the individual. The true function of the National Assembly to question and debate the policy of the Government was completely abandoned.

A whole series of obnoxious legislation not only impinging on the fundamental rights of the citizen but also affecting the highest interest of the state was rushed through Parliament with unconcerned ease and naive approbation. The ‘transcendent and absolute’ power of Parliament was seriously abused. But there was no retribution at the hands of the National Assembly.”

It was thus thought imperative to enact in the 1969 Constitution provisions which set the balance between the various organs of government and set the limits of each organ. Since the Constitution conferred on the judiciary the “final judicial power” it very carefully set out the establishment, jurisdiction and other powers of the various courts to constitute the Superior Court of Judicature. Also, it set out concisely and as clearly as possible the jurisdiction of each of those component courts adding the very necessary provision so essential in a written Constitution, that Parliament may confer other jurisdiction in other matters.

The idea that if there is any doubt in the law resulting from certain decisions of the courts, Parliament can settle the doubt would confer on Parliament a judicial power for the determination of what the law should be having regard to the doubt or conflict. This is not one of the functions of the Parliament established by the 1969 Constitution.

The constitutional practice under the British Constitution is that Parliament is supreme. It can make and unmake any law; the courts do not sit as a court of appeal from Parliament. They have no power to set aside the provisions of an Act of Parliament. Their function is limited to the interpretation of what is enacted in an Act of Parliament. Nor can the courts question the exercise of the legislative power of Parliament.

So powerful is this position that one session of Parliament cannot fetter the legislative competence of another session of Parliament. All this is subject only to the force of morality and the exercise of the political sovereignty of the people, and Lord Hewart could describe an exercise of the legislative power of Parliament as a new despotism. The position then in the United Kingdom is that Parliament can legislate whenever it considers that certain decisions of the courts are inconsistent with each other or that the law on a particular matter is uncertain.

In Ghana under the 1969 Constitution, final judicial power rests with the judiciary. Any doubt in the law, any resolution of a conflict in the law resulting from the pronouncements of the courts can only be settled, can only be resolved, by the courts themselves. Hence the provision in clause (2) of article 104 of the 1969 Constitution that, “The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears

[p.397] of [1973] 2 GLR 384 right so to do; and all other Courts shall be bound to follow the decisions of the Supreme Court on questions of law.”

In so far then as the Courts Act, 1971 (Act 372), seeks to undermine this provision, the courts of Ghana would desist from giving effect thereto.

For present purposes we are dealing with the jurisdiction of the Court of Appeal. Article 110 of the 1969 Constitution provides that [His lordship here read the provisions of the article as set out in the headnote and continued:] It is clear then, that the only jurisdiction which Parliament could add to those provided for in article 110, and in terms of clause (1) of article 110, is an appellate jurisdiction. The appellate jurisdiction can only be an additional jurisdiction, and a fortiori never a jurisdiction which is restrictive of that conferred expressly by the Constitution itself. This cannot be so as to do otherwise would arrogate to the legislature a power it never had. It would also mean to declare the obnoxious proposition that if the legislature does anything which restricts the powers of any institution set up by the Constitution that restriction should in reality be effectual.

More than that it contains within it the dangerous precedent that the legislature, could, if it so desires restrict the operation of the Constitution itself, thus giving to the legislature a real power to indirectly amend the Constitution notwithstanding the express provision of article 169 of the Constitution.

A constitution, such as the 1969 Constitution, which goes to great lengths to set limits to the powers of government and sets out in such detail the limitations to the exercise of fundamental human rights cannot in its very nature give power to Parliament, the Parliament it establishes, to pass legislation restrictive of jurisdiction which the Constitution expressly confers on such an important organ as the judiciary, albeit a component court of the Superior Court of Judicature. Even the residual powers referred to in article 175 of the 1969 Constitution are subject to the provisions of article 169 and could only be invoked, “where on any matter, whether arising out of [the] Constitution or otherwise, there is no provision, express or by necessary implication, of [the] Constitution which deals with the matter that has arisen . . .”

And the Act of Parliament to provide for this must not be inconsistent with any provision of the Constitution.

The Courts Act, 1971 (Act 372), purports, in section 10, to confer, as contended by the learned Director of Public Prosecutions the jurisdiction of the Court of Appeal. This section uses the words “shall have jurisdiction.” The use of that phrase “shall have” as a substantive provision means that the jurisdiction is now being conferred upon the Court of Appeal by the Courts Act, 1971. This, in my opinion, is in conflict with the provisions of article 110 of the 1969 Constitution. Indeed, the whole section 10 of the Courts Act, 1971, is an attempt to reproduce article 110 of the 1969 Constitution, with certain additions, which do not accord with the provisions of clause (2) of article 102 and of clause (1) of article 110 of the 1969 Constitution.

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I say “attempt to reproduce” because the “reproduction” is couched in language which does not show that the provisions of section 10 are a reproduction of certain provisions of the 1969 Constitution. A comparison of the Courts Act, 1971, with the Commissions of Enquiry Bill published on 23 March 1970 will make the position clear.

The first of the additions is stated in subsection (2) of section 10 of the Courts Act. This subsection gives additional appellate jurisdiction to the Court of Appeal in respect of civil and criminal causes or matters from the circuit courts. This is in accord with the provisions of clause (1) of article 110 of the 1969 Constitution.

Having given this additional appellate jurisdiction, having “reproduced” clause (2) of article 110 of the 1969 Constitution as subsection (3) of section 10 as a substantive provision, and having given additional appellate jurisdiction in civil matters from the circuit courts to the Court of Appeal, the Courts Act, 1971, provides in section 10 (5) that, “Any person aggrieved by any interlocutory order or decision made or given by the High Court or a Circuit Court may appeal to the Court of Appeal against the order or decision— (a) in the case of an order or decision made or given by the High Court, with the leave of the High Court or of the Court of Appeal, and (b) in the case of an order or decision made or given by the Circuit Court, with the leave of the Circuit Court or of the Court of Appeal and the Court of Appeal shall have jurisdiction to hear and determine any such appeal.”

We are here concerned with the provisions of paragraph (a). This paragraph requires that the leave of the High Court of Justice or of the Court of Appeal be obtained before there could be an appeal in any interlocutory order or decision. Whereas the 1969 Constitution uses the indefinite article “a” in clause (2) of article 110, that is to say, “an appeal shall lie as of right from a judgment, decree or order of the High Court of Justice to the Court of Appeal in any cause or matter determined by the High Court of Justice”

(the emphasis is mine) the Courts Act, 1971, uses the words “any” and “an” interchangeably, that is to say, a person aggrieved, “by any interlocutory order or decision . . . may appeal . . .

(a) in the case of an order or decision . . . with the leave of the High Court or of the Court of Appeal.”

(The emphasis is mine.)

The word “any” may be an adjective, a pronoun or an adverb. To say, “Baa, baa, black sheep, have you any wool” means any kind of wool. To ask, “were any Ghanaians there” refers to no particular citizen of Ghana. To say, “I can’t see any difference” means one cannot distinguish between two sets of facts. “An” is synonymous with “a.” And “a” is known as an indefinite article. But equally “any” is a word which

[p.399] of [1973] 2 GLR 384 means one or some without making a distinction. It is thus not confined to the plural and its use does not admit of a limitation or a qualification.

Hence if it is sought in legislation to impose a duty on each person in the community the expression “every person” is used. If, however the expression “anyone” is used, questions arise as to whether if one member of the community does what is required to be done, the statutory requirements have been met. On the other hand, if the expression “anyone who” is used, then each individual in the community is aimed at. As Driedger has stated in his book The Composition of Legislation at p. 79 “any” is, “A tiresome word in legislation. Many anys can be replaced by a or an with better effect.”

Thus subsection (5) of section 10 of the Courts Act, 1971, can be rendered by substituting “a” for “any” and there would be no change in the meaning of the provision thus:

“A person who is aggrieved by an interlocutory order or decision made or given by the High Court or a Circuit Court may appeal to the Court of Appeal against the order or decision, (a) in the case of an order or decision made or given by the High Court with the leave of the High Court or of the Court of Appeal . . .”

There is an attempt in section 10 of the Courts Act, 1971, to draw a distinction between a judgment and a decree or order. Subsections (1), (3) and (4) of that section use the expression “any judgment, decree or order.” Subsection (5) uses the expression “order or decision.” On the principle of expressio unius personae vel rei, est exclusio alterius, I am inclined to conclude that it is the intention of the legislature, reading section 10 as a whole, that interlocutory causes or matters do not admit of a judgment. Can it be said that interlocutory matters do not admit of a judgment?

In Adegbenro v. Akintola [1963] A.C. 614, P.C. it was held that the decision of the Federal Supreme Court of Nigeria, on a question as to the interpretation of the Regional Constitution of Western Nigeria, was a final decision so far as the Supreme Court of Nigeria was concerned since it had finally disposed of the matter referred to it. The argument that that decision could not be a final decision in the proceedings before the High Court from which the reference came was rejected. Therefore an appeal lay as of right.

The reference to the Supreme Court of Nigeria was an interlocutory matter. Said Viscount Radcliffe at pp. 614-615:

“The respondent argued that an appeal as of right did not lie to Her Majesty in Council on questions as to the interpretation of the Constitution until a final decision had been reached in the proceedings. ‘The proceedings,’ it was said, were the suit before the Chief Justice of the Western Region, and the reference in these proceedings under section 108 of the Federal Supreme Court was

[p.400] of [1973] 2 GLR 384 interlocutory and the decision upon the question referred was not final. He asked the Board to read the word ‘final’ in the sense in which it is normally understood as finally disposing of the rights of the parties in regard to the whole suit. The cases of Abdul Rahman v. D. K. Cassim & Sons ((1932) L.R. 60 I.A. 76) and Ramchand Manjimal v. Goverdhandas Vishindas Ratanchand ((1920) L.R. 47 I.A. 124) were referred to. It was further argued that section 114 (1) (c) must be read as if it had provided ‘final decisions in any civil proceedings on questions involving the interpretation of this Constitution or the Constitution of a Region.’ Reference was made to Commonwealth of Australia v. Bank of New South Wales ([1950] A.C. 235, 295, P.C.).

If section 114 had stood alone, there might be great force in these observations, but in their Lordships’ opinion the provisions of this section must as far as possible be read so as to provide for the cases which arise out of section 108. That section provides for the reference to the Federal Supreme Court of questions as to the interpretation of the Constitution and by subsection (3) where a question is referred ‘the Federal Supreme Court shall give its decision upon the question.’ Now the Federal Supreme Court has given a decision in civil proceedings on a question as to the interpretation of the Constitution. Is it a final decision?

The decision may not be final in the proceedings before the Chief Justice, but so far as the Federal Supreme Court is concerned it is final. The court has finally disposed of the matter referred to them, namely the question as to the interpretation of the Constitution. This construction accords with that adopted by Brett Ag.C.J.F. in Dr. Chike Obi v. Director of Public Prosecution (F.S.C., No. 56 of 1961). Their Lordships have accordingly reached the conclusion that the decision of the Federal Supreme Court on the reference under section 108 was a final decision and that an appeal lies as of right to Her Majesty in Council under section 114.”

It is significant also that whereas the 1969 Constitution uses the expression, “judgment, decree or order”, subsection (5) of section 10 of the Courts Act, 1971, uses the expression “order or decision.” Subsection (4) of section 10 which confers appellate jurisdiction on the Court of Appeal in civil causes or matters from the circuit courts uses the expression “judgment, decree or order.” In paragraph (a) of subsection (2) of section 10 the expression “judgment of a Circuit Court in any civil cause or matter” is used. In paragraph (b) of that same subsection the expression “decision of a Circuit Court in a criminal case tried on indictment” is used. Again in subsection (6) of section 10 the expression “decision of a Circuit Court upon a trial on indictment” is used.

Reading section 10 as a whole, it would appear that the word “decision” is used in relation to criminal causes or matters, the expression “judgment, decree or order” being confined to civil causes or matters. In subsection (2) of section 10 the lower court referred to is the circuit

[p.401] of [1973] 2 GLR 384 court. In subsection (6) it is the circuit court. In both cases the word “decision” is used in relation to criminal causes or matters. In subsection (4) the expression “judgment, decree or order” is used. The lower court referred to is the circuit court in relation to a civil cause or matter. In subsections (1) and (2) of section 10 where the High Court is the lower court the expression “judgment, decree or order” is used. In subsection (5) where both the High Court and the circuit court are referred to as the lower courts the expression “order or decision” is used and the word “judgment” is dropped.

The word “judgment” is a term of art. It means the decision of the court, the pronouncement of the court: the “judge-ment” of the court, that is to say, the decision of the judge. It may settle the main issue in a cause or matter. It may settle one of the questions, if there be more than one. What is important is that it determines the issue or issues or any of the issues in a given cause or matter.

The difference between the word “judgment” and the word “decree” is that the word “judgment” was originally confined to the common law courts. Judgments of the courts of Chancery were referred to as decrees. And even then, a decree of the court of Chancery was an order. In the courts of equity, the word “decree” meant a judgment. And the whole history of the use of these words in legislation in this country, particularly of the word “judgment” and “decision,” and particularly in recent years, demonstrates that it has never been the intent of the legislature or the legislative authority to make a clear distinction between “judgment” as regards civil causes or matters and “decision” as relating to criminal causes or matters.

What then does the word “interlocutory” mean? The ordinary dictionary meaning of the word is that it is a pronouncement in the course of a legal action. In other words, it denotes what is incidental to the principal object of the action or proceedings. Its use connotes that the proceedings have not been finally disposed of. An interlocutory order or decision, as the term has been used in subsection (5) of section 10 of the Courts Act, 1971, means an order or decision which does not dispose finally of the rights of the parties to the action. It may help to keep the status quo. It may be used in order to obtain a direction as on the issue of costs. It could be a judgment in a particular issue which does not dispose finally of the matter before the court. It may determine a right, as distinct from the exercise of the right. In fine, an interlocutory order or decision involves an order or decree or even a judgment other than a final judgment, order, or decree.

In Republic v. Kuma, High Court, Accra, 24 June 1968, unreported; digested in (1968) C.C. 126, the accused was discharged by the magistrate on the ground that though the accused had been charged on a count of stealing the summary of evidence disclosed fraud by false pretences and not stealing. The Republic appealed. It was held that there was evidence establishing a punishable criminal offence even though the charge sheet contained a different offence. There was thus a case for the accused to

[p.402] of [1973] 2 GLR 384 answer and the magistrate should have committed the accused to stand his trial on the offence disclosed by the summary of evidence. The judge therefore committed the case to the magistrate with instructions to commit, “if in his opinion there is evidence on the summary which supports the offences in the indictment or any other offences for which he . . . could be convicted on those charges at his trial.”

At the subsequent hearing the magistrate again discharged the accused on the ground that the case did not support the charge of fraud or any other offence. Mr. Kuma was again indicted with the offence of stealing after this discharge. He appeared before a second magistrate. At that proceeding objection was taken on the ground that the accused had once been discharged by the district court on the same facts and the same charge. The objection was overruled. Mr. Kuma appealed, again, to the High Court.

The High Court drew a distinction between “acquittal” and “discharge” pointing out that the privilege from a second trial was limited to cases where the accused had once before been tried or convicted or acquitted by a court of competent jurisdiction on the same charge or any other charge of which he could have been convicted. This was based upon section 113 of the Criminal Procedure Code, 1960 (Act 30). Attention was also drawn to the provisions of subsection (5) of section 184 of the Criminal Procedure Code, 1960, to show that a discharge by a magistrate was no bar to a subsequent charge on the same facts: see Kuma v. The Republic, High Court, Accra, 21 August 1968, unreported; digested in (1968) C.C. 139.

The case went to the Court of Appeal: see Kuma v. The Republic, Court of Appeal, 15 October 1968, unreported., digested in (1969) C.C. 6, where it was held, in dismissing the appeal that:

“There is no inherent right of appeal in any one who is dissatisfied with a decision of a court; a right of appeal is a creature of statute, and may only be exercised by the person upon whom a statute specifically confers such a right . . . and in accordance with the procedure laid down for such an appeal.”

In the Bank of Ghana v. Labone Weavers Enterprises Ltd. [1971] 1 G.L.R. 251, the Court of Appeal had this to say at pp. 259-260:

“It is plain from clause (2) of article 110 that an appeal lies as of right to the Court of Appeal from any judgment, decree or order of the High Court. The clause ‘save as otherwise provided in this Constitution’ refers, in our view, to article 105 (4), which excludes from the jurisdiction of the Court of Appeal the power to hear and determine appeals from the convictions of any persons for treason by the High Court. We have not been able to discover any existing law in Ghana which makes specific provisions relating to the jurisdiction of the Court of Appeal to entertain an application for special leave to appeal to the Court of Appeal from a decision of the High Court or the circuit court. In our view, the appellate jurisdiction of the

[p.403] of [1973] 2 GLR 384

Court of Appeal is now governed by article 110 of the Constitution and paragraph 7 of N.L.C.D. 84 as substituted by the Second Schedule of N.L.C.D. 406.

“The Court of Appeal established under the Constitution is, by virtue of article 125 (2) of the Constitution, the successor to the Court of Appeal of the Supreme Court of Judicature created by the Courts Decree, 1966 (N.L.C.D. 84). By paragraph 6 (b) of N.L.C.D. 406, the Supreme Court Rules, 1962 (L.I. 218) continue to regulate the practice and procedure in this court. Under rule 28 an application which had been unsuccessful in the court below can only be repeated in this court if there is ‘any enactment’ which permits such an application to be made: see Tormekpey v. Ahiable (supra) and Khoury v. Khoury, Court of Appeal, 7 December 1970, unreported. The applicants here have not referred this court to ‘any enactment’ or ‘the existing law’ under which they have brought their application. Consequently, we will give a negative answer to the first question. The second question, therefore, does not arise.”

This is one of the cases which inspired the legislature to provide for interlocutory appeals depending upon the grant of leave. The first question which the Court of Appeal asked in the case was “whether the applicant requires leave to appeal.” The High Court of Justice had given a ruling granting unconditional leave to defend a claim originally brought before that court by means of a specially endorsed writ. An application for an order for special leave to appeal to the Court of Appeal was dismissed by the High Court of Justice. The application for special leave was repeated to the Court of Appeal under rule 28 of the Supreme Court Rules, 1962 (L.I. 218).

The “doubts” referred to in the memorandum to the Courts Bill, it does appear, arose out of the line taken by counsel for the Minister of the Interior in Republic v. Minister of Interior; Ex parte Lynes, Court of Appeal, 22 July 1970, unreported. In that case counsel for the respondent raised a preliminary objection. The ground for the objection was that special leave was required as the appeal was in respect of an interlocutory order. Counsel for the applicant conceded to this.

The Court of Appeal in Bank of Ghana v. Labone Weavers Enterprises Ltd. [1971] 1 G.L.R. 251 pointed out that the attention of the Court of Appeal in the Lynes case was not drawn to the provisions of clause (2) of article 110 of the 1969 Constitution. Nor was that court made aware of the provisions of paragraph 19 and Schedule II of the Constitution (Consequential and Transitional Provisions) Decree, 1969 (N.L.C.D. 406). These omissions the Court of Appeal thought, “completely destroys the binding authority of the Lynes case in this …” Relying on a consideration of various pieces of legislation which had a bearing on the matter, the Court of Appeal came to the conclusion that the decision in the Lynes case was given per incuriam. It therefore did not consider that decision as binding upon it.

[p.404] of [1973] 2 GLR 384 The Court of Appeal in its judgment in the Bank of Ghana v. Labone Weavers’ Enterprises Ltd. (supra) did not consider Kuma v. The Republic (supra) in which the Court of Appeal categorically held that:

“There is no inherent right of appeal in any one who is dissatisfied with a decision of a court; a right of appeal is a creature of statute, and may only be exercised by the person upon whom a statute specifically confers such a right . . . and in accordance with the procedure laid down for such an appeal.”

The Court of Appeal in the Kuma case (supra) took the view that section 335 conferred a right of appeal on a person who had been convicted. The appellant, not having been convicted or tried, had no right of appeal under that section to the Court of Appeal, and that even if paragraph 7 of the Courts Decree, 1966 (N.L.C.D. 84), as amended by the Courts (Amendment) Decree, 1968 (N.L.C.D. 277), conferred jurisdiction upon the Court of Appeal and ipso facto conferred a right of appeal on a defendant, its sub-paragraphs indicated the specific circumstances in which the right of appeal might accrue.

Appeals from decisions given in a civil cause or matter come under paragraph 7 (1) (a) and appeals from decisions given in a criminal cause or matter come under paragraph 7 (1) (b). The proper interpretation of paragraph 7 (1) (b) is “any decision not already provided for in any of the sub-paragraphs”, such as appeals from decisions given in prerogative orders. Since the appeal in that case was from an order of the High Court in the exercise of its criminal appellate jurisdiction, an appeal from it might only come under paragraph 7 (1) (b), and not under paragraph 7 (1) (d).

I do not know whether consideration of this Kuma case was left out in Bank of Ghana v. Labone Weavers Enterprises Ltd. (supra) because it is a criminal case. It does, however, illustrate that both in 1969 and in 1971 the Court of Appeal recognised that either in civil or criminal causes or matters the issue of an interlocutory appeal should be or is governed by specific legislation. Counsel may have had their doubts as to the state of the law. The relevant authorities demonstrate, however, that the Court of Appeal had been in no doubt as to the state of the law.

For the purposes of the appeal now before us, the question to be asked is which law governs the issue? As already demonstrated, that matter is governed by the provisions of clause (2) of article 110 of the 1969 Constitution. And these provisions, as demonstrated, do not admit of a distinction being drawn between an interlocutory judgment, decree, order or decision of the High Court of Justice in a criminal cause or matter and an interlocutory judgment, decree, order or decision of the same court in a civil cause or matter.

The ruling of the High Court of Justice on the objection raised before it by the defence counsel in the instant case before the court was a decision of that court on the specific issue of the particular objection raised. It was incidental to the final disposition of the matter before that court.

[p.405] of [1973] 2 GLR 384

It was a pronouncement of the High Court of Justice, that is to say, the “judgment” of the judge on the particular issue of the objection. It was therefore an interlocutory judgment.

Being such a judgment of the High Court of Justice an appeal lies as of right from the High Court of Justice to the Court of Appeal. Clause (2) of article 110 of the 1969 Constitution does not draw any distinction between criminal and civil causes or matters. The expression therein used is “any cause or matter.” The word “any” as used does not admit of a distinction between civil and criminal matters, within the context of article 110.

Indeed the jurisdiction of the High Court of Justice, as conferred by the provisions of article 113 of the 1969 Constitution, is in civil as well as in criminal matters on any of which, the High Court of Justice would make a pronouncement determining an issue or issues before it. Clause (2) of article 110 cannot thus be read without due regard to the provisions of clause (1) of article 113.

Parliament, by virtue of the provisions of clause (3) of article 113 has power to make provision for the exercise of the jurisdiction of the High Court of Justice to “determine any matter relating to industrial and labour disputes and administrative complaints.” Parliament has no such power to make provision for the exercise of the jurisdiction conferred on the High Court of Justice by the provisions of clause (1) of article 113.

Only the Rules of Court Committee, by virtue of the provisions of clause (2) of article 121 of the 1969 Constitution, has power to make rules of court “for regulating the practice and procedure of all Courts,” including “regulations relating to the prevention of frivolous and vexatious proceedings.” The Rules of Court Committee cannot make a constitutional instrument which would affect in any way, adversely, the substantive powers and jurisdiction of the Court of Appeal or of the High Court of Justice.

There is a distinction between regulating the practice and procedure of courts and providing for substantive rights such as a right of appeal. An appeal as of right, such as is conferred by the provisions of clause (2) of article 110 of the 1969 Constitution, is a protection for the individual as well as an advantage for his benefit. It may even be considered a liberty, the fruits of which accrue automatically to any person affected by a judgment, decree or order of the High Court of Justice. Its exercise cannot be fettered—as distinct from being aided by practice and procedure regulations or rules intended the better to facilitate the exercise of the right—by a law inferior to any provision of the supreme law of Ghana.

In the context of article 110 of the 1969 Constitution the word “determined” can mean no more than brought to an end, that is, decided or settled. It is not contended that the High Court of Justice cannot deal with any interlocutory matter on which it could give a judgment, make a decree or give an order. The jurisdiction conferred upon it by the provisions of article 110 as already demonstrated is not limited to final as opposed to interlocutory matters in civil or criminal matters. It is obvious,

[p.406] of [1973] 2 GLR 384 then, that the word “determined” as used in clause (2) of article 110 cannot be restricted in its meaning to final judgments only as Viscount Radcliffe’s opinion makes clear in the Adegbenro case.

By providing for leave before an appeal could be lodged in the Court of Appeal from a decision of the High Court of Justice, paragraph (a) of subsection (5) of section 10 of the Courts Act, 1971 (Act 372), is in conflict with the provisions of clause (2) of article 110 of the 1969 Constitution. The jurisdiction to hear and determine appeals from the High Court of Justice is conferred on the Court of Appeal not by the provisions of section 10 of the Courts Act, 1971, but by the provisions of article 110 of the 1969 Constitution. Parliament could only confer “other appellate jurisdiction” which the Courts Act, 1971, does in respect of appeals to the Court of Appeal from the circuit courts. And the provisions of the 1969 Constitution in this wise prevail over those of the Courts Act, 1971.

The procedure regarding summary of evidence was introduced from military law. Before 1960 a district magistrate heard evidence on oath at what was then known as a preliminary hearing or preliminary investigation. After having heard the evidence, he decided whether there was a prima facie case on which the accused could be committed for trial. If he was not satisfied that there was sufficient evidence he would dismiss the case and discharge the accused. If he was satisfied that there was sufficient evidence he would commit the accused for trial.

Under military law the object of the summary of evidence is to assist the commanding officer, especially in complicated cases, to decide whether the case should be remanded for trial by a court-martial. It also enables the convening officer to consider whether he should order trial by court-martial and if so what type of court-martial should be ordered. Apart from the summary of evidence providing a brief for the prosecutor at the trial, it has this important object of informing the defence of the evidence which will be given by the prosecution at the trial. It also has the object of enabling the president of the court-martial, not being a legal man, to appreciate the nature of the case before the trial commences and, of course, in the event of a plea of guilty the summary of evidence enables the court and the confirming officer to know the facts of the case and to decide upon the punishment.

The taking of a summary of evidence under military law is done in the presence of the accused who has a right to cross-examine the witnesses for the prosecution and also to call witnesses for his defence who may not be questioned by the officer taking the summary. He may give evidence or make an unsworn statement or he may reserve his defence. Where he gives evidence or makes an unsworn statement he cannot be questioned. He cannot claim to be represented at the taking of the summary of evidence a copy of which he is entitled to.

The summary of evidence under military law is therefore somewhat similar to the former procedure of preliminary investigation. The officer taking the summary is duty bound to ensure that the rules of evidence are strictly complied with, avoiding, in particular, hearsay evidence and

[p.407] of [1973] 2 GLR 384 evidence tending to show that the accused has been convicted of other offences. He is required to observe the rules regarding the admissibility of documents in evidence.

Any witnesses the accused wishes to call are called after he has given evidence or made a statement or declined to make any statement. The witnesses of the accused are sworn and their evidence regarded in the same way as that of the witnesses for the prosecution. He is required to sign his evidence in much the same way that an accused signed his evidence at the preliminary investigation; but he cannot be compelled to do so.

Where a summary of evidence has not been ordered by the commanding officer he will detail an officer to take an abstract of evidence. The abstract of evidence consists of the unsworn signed statements of witnesses who gave evidence before the commanding officer and such other persons whose evidence would be relevant to the charge. The abstract of evidence is recorded in the first person and on occasions a precis of the evidence written in the third person is included.

Here again the officer making the abstract of evidence is required to ensure that the rules of evidence are complied with particularly ensuring that hearsay evidence is excluded. A copy of the abstract of evidence is given to the accused. He is informed that though not obliged to he can make a statement which would be taken down in writing and given in evidence at his trial. The abstract of evidence is forwarded, like the summary of evidence, to the prosecutor at the trial.

The procedure under the Criminal Procedure Code, 1960 (Act 30), is that where a person is charged with an offence which is not being tried summarily, the preliminary hearing consists of the prosecution furnishing the court and the accused with a bill of indictment and a summary of evidence. The prosecution addresses the court in explanation of the case against the accused, the accused having the right to address the court in reply either by counsel or by himself.

The addresses are not required to be recorded though a statement made by the accused before committal may be recorded. If the court is of the opinion that there is a case for the accused to answer the district court has the mandatory duty to commit him for trial to a court of competent jurisdiction. If the court is of the opinion that there is no case for the accused to answer it shall discharge him though such a discharge would not be a bar to a subsequent charge in respect of the same facts.

The witnesses for the prosecution and for the accused are not examined on oath. The court requires the accused to state whether he would desire to call witnesses at his trial. If he so desires the court would cause the names, addresses and the other necessary particulars of his witnesses to be recorded. Where they are present in court they may be bound by recognisance with or without sureties to appear at the trial to give evidence. The court would inform the accused of his right to require the attendance at the trial of any witnesses and of the steps he must take for the purposes of enforcing such attendance.

[p.408] of [1973] 2 GLR 384

As can be seen there is a marked difference between the procedure by way of summary of evidence under military law and the procedure by way of summary of evidence under the Criminal Procedure Code, 1960. The procedure under military law is more like the old procedure of preliminary investigation. Though called summary of evidence the procedure under the Criminal Procedure Code, 1960, approximates more to the procedure of abstract of evidence under military law. The summary of evidence under the Criminal Procedure Code, 1960, is no more than a precis of the evidence of each of the witnesses that the prosecution propose to call at the trial. This little comparison will serve to show the importance of the addition made by the 1962 amendment to section 182 of the Criminal Procedure Code, 1960.

The first ground of appeal is that the learned trial judge erred in law in his interpretation of subsection (1) of section 182 of the Criminal Procedure Code, 1960. As already indicated, what the 1962 amendment did was to add the words, “and a list of the documents and things it proposes to put into evidence at the trial.” This 1962 amendment must really have exercised the minds of the authorities concerned and it must have been considered very important for the legislature to have resolved upon its inclusion in section 182. Was there no mischief aimed at when the legislature made this addition? Why did the legislature think it necessary that a list of the documents and things intended to be put in evidence should be supplied as part of the procedure by way of summary of evidence?

The law before the 1962 amendment required only a list of the witnesses and a summary of the evidence of each witness. The 1962 amendment would then show that something was missing, some hardship was being caused, some situation existed which did not accord with the proper administration of the criminal law in this regard. The “cause and necessity” of the 1962 amendment would appear to be, then, that an accused person was in some jeopardy, some predicament, as to the preparation of his defence and the existing law being inadequate “to cure [this] disease of the commonwealth” (see Heydon’s Case (1584) 3 Co.Rep. 7a at 7b) the 1962 amendment was “resolved and appointed” to remedy the defect.

It is my office, then, as was urged upon us by the learned Director of Prosecutions, to “make such construction” of the 1962 amendment, “as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy. according to the true intent of the makers of the Act, pro bono publico.”

This is what is required of a judge in dealing with the mischief rule as laid down in Heydon’s Case (1584) 3 Co.Rep. 7a at 7b. The language of the provision includes the imperative “shall.” As so used in subsection (1) of section 182 of the Criminal Procedure Code, 1960, incorporating the 1962 amendment that is, the word “shall” is a command. It is not

[p.409] of [1973] 2 GLR 384 intended to be directory. It does not give directions as to what could be done or might be done. It gives a clear and succinct order, “shall comprise.”

I hold then that the learned trial judge did not err in law in his interpretation of subsection (1) of section 182 of the Criminal Procedure Code, 1960, as amended by the 1962 Amendment Act. His interpretation would require the prosecution to obey the command explicit in that provision of the law. To accept the interpretation advanced by the learned Director of Public Prosecutions would be to render useless a positive provision of the law.

The second ground of appeal is that the learned trial judge erred in law in holding that “since the witness is not expected, by the summary of evidence, to tender any document it is improper for him to be allowed to tender any document.” As shown by the brief reference to the position under military law from which inspiration was drawn for the procedure by way of summary of evidence under Part IV of the Criminal Procedure Code, 1960, an accused has no right to cross-examine the witnesses for the prosecution at that stage of the proceedings. How is he to prepare, for example, to challenge whether the witness who is to produce the document in question is the proper person to produce that document? He would have no idea. And his inability to take up such a challenge may be to his detriment when he appeals and raises the matter on appeal.

The law requires that in addition to the “summary of evidence to be given by each witness” there shall be added “a list of the documents and things the prosecution propose to put in evidence at the trial.” If the prosecution fail to comply with this provision of the law, imperative as it is, I am unable to hold that under the circumstances of this case the learned trial judge erred in law in holding that since the witness is not expected by the summary of evidence to tender any document it is improper for him to be called to tender any document.

All that the learned trial judge was saying is that the summary of evidence must comply with the requirements of the law in ensuring that it is indicated in the summary of evidence of each witness the documents and things that it is proposed he would tender in evidence at the trial. The provisions of the law do not require that there shall be a summary of the evidence as a whole that the prosecution propose to call at the trial. It requires that a summary of evidence shall comprise:

(a) a list of the witnesses it is intended to call at the trial;

(b) a summary of evidence to be given by each witness; and

(c) a list of the documents and things it proposes to put in evidence.

Since the tendering in evidence of a document or thing would be done by a witness as he gives his evidence, it is requisite that the summary of evidence should indicate what document and what thing that witness would put in evidence.

The third ground of appeal is that the learned trial judge erred in law by stating that “once the document sought to be tendered has not been listed it cannot be tendered by the witness.” Again, the law requires that

[p.410] of [1973] 2 GLR 384 a list of the documents and things it is intended to put in evidence at the trial shall be included in the summary of evidence. Where, in any given case, the prosecution fail to comply with the requirements of the law, should they be permitted to circumvent the imperative provisions of the law? No judge would allow that. So to do would be to connive at a non-compliance with a statutory provision. Such a failure to comply with the law is disobedience to the relevant provisions of the law; disobedience which in other contexts of the law is a punishable offence. This provision of requiring a list of the documents or things as part of the summary of evidence is in the nature of the civil law procedure of discovery. This distinction between a summary of evidence of the evidence as a whole and the summary of evidence of each witness merits some attention.

The distinction is to enable the accused or his counsel to know what he has to face with respect to each witness. He will then prepare to meet each witness fully and squarely. It is thus incumbent on the prosecution to specify all the documents which are material to its case. Material as well as relevant. This is an invidious burden. It is nonetheless a burden with which the law requires that the prosecution must comply.

It is, I submit, a burden which requires the prosecution to list every document which will materially throw light on its case. An accused is entitled to have an idea of what he is up against. The pith and substance of a case against him may be contained in a document. The listing of such a document or thing might ring a bell and thus put him or his counsel upon his inquiry in much the same way as, I believe, an accused is required by law to give particulars of the defence of alibi. The learned trial judge therefore did not err in law by stating that “once the document sought to be tendered has not been listed it cannot be tendered by the witness.”

The strict application which the provisions of the law under reference require is demonstrated by the provisions of subsection (3) of section 182 of the Criminal Procedure Code, 1960, which makes it possible for the summary of evidence to be amended or added to at any time during the proceedings. The omission to include the list of documents, as in this case, is an omission which makes the summary of evidence incomplete.

The list of documents and things form an essential part of the summary of evidence. The absence of such an essential, material part of the summary of evidence detracts from its worth and quality as to affect, in my view, adversely, the proceedings before the High Court of Justice. The learned trial judge was therefore right to insist on the inclusion. I will therefore dismiss the appeal.

Advantage was not taken of the provisions of subsections (3) of section 182 of Act 30. The attention of counsel was drawn to this provision and it was agreed that advantage should be taken of it so that the trial would proceed whilst the judgment of this court was awaited.

The record of the proceedings before us cover 132 pages, 122 of which cover the counts in this case—516 counts! There are three counts of abetment, 50 counts of conspiracy, 66 counts of illegal payments outside

[p.411] of [1973] 2 GLR 384

Ghana, 70 counts of forgery of documents, 71 counts of defrauding by false pretences and over 250 counts of uttering forged documents.

There are ten accused persons. The first accused faces a total of 86 counts; the second, 45 counts; the third, 84 counts; the fourth, 48 counts, the fifth, 61 counts; the sixth, 74 counts; the seventh, four counts; the eighth, 41 counts; the ninth, sixteen counts and the tenth, 56 counts.

The first accused faces ten counts of conspiracy, twenty of defrauding by false pretences, 24 of illegal payment and 32 of uttering forged documents. The second accused faces two counts of conspiracy, three of forgery of documents, ten of defrauding by false pretences, twelve of illegal payment and eighteen of uttering forged documents. The third accused faces five counts of conspiracy, five of illegal payment outside Ghana, eight of defrauding by false pretences, eight of forgery of documents and 58 of uttering forged documents.

The fourth accused faces five counts of forgery of documents, seven of illegal payment outside Ghana, eight of conspiracy, eight of defrauding by false pretences and 30 of uttering forged documents. The fifth accused faces ten counts of conspiracy, ten of defrauding by false pretences, ten of forgery of documents and 31 of uttering forged documents. The sixth accused faces four counts of illegal payment outside Ghana, five of defrauding by false pretences, ten of conspiracy, 25 of forgery of documents and 30 of uttering forged documents.

The seventh accused faces one count of illegal payment outside Ghana and three counts of conspiracy. The eighth accused faces four counts of conspiracy, five of defrauding by false pretences, eight of illegal payment outside Ghana and 24 of uttering forged documents. The ninth accused faces three counts of conspiracy, three of illegal payment outside Ghana, four of defrauding by false pretences and six of uttering forged documents. The tenth accused faces three counts of abetment, six of conspiracy, twenty of forgery of documents and 27 of uttering forged document. Having brought the maximum of counts perhaps the prosecution expect the maximum of penalty.

The offence of defrauding by false pretences carries a maximum penalty of 25 years’ imprisonment. That of uttering forged document carries a similar penalty. On those two counts alone the first accused could be sentenced to a maximum penalty of 1,300 years imprisonment and the third accused to a maximum of 1,650 years’ imprisonment! I am instinctively reminded of the admonition contained in Matthew Chapter 18 verse 7: “Woe unto the world because of offences! For it must needs be that offences come; but woe to that man by whom the offence cometh.” I consider it oppressive that such a large number of counts should be contained in one indictment. Let me say at once that there is nothing illegal about it. Yet I feel quite uncomfortable about it. Time was when there used to be a directive against so many counts being brought in one indictment. Things may have changed. Yet I hasten to question the desirability of so many counts in one indictment.

[p.412] of [1973] 2 GLR 384

The time-honoured procedure, as we knew it, was for a few counts to be preferred. When the accused was convicted the court was informed of the other offences. The accused was asked about them. If he agreed they were taken into account in passing sentence. Time was thereby saved. If the accused was acquitted the prosecution would advise themselves whether they could succeed on the remaining charges: the facts in such cases are often similar. But 516 counts in one indictment! The sky, it is said, is the limit.

JUDGMENT OF KOI LARBI

I agree.

JUDGMENT OF ANNAN J.A.

I also agree.

DECISION

Appeal dismissed.

S.E.K.