REPUBLIC vs. T. O. ASARE [1968] GLR 727

NATURE OF PROCEEDINGS

APPEAL from the decision of the High Court, Accra, staying prosecution of the respondent of the offence of conspiracy to deliberately dissipate and deliberate dissipation of public property contrary to section 2 (a) of the Public Property (Protection) and Corrupt Practices

[p.729] of [1968] GLR 727

(Prevention) Act, 1962 (Act 121), on the grounds of lack of jurisdiction. The facts are fully set out in the judgment of the court

COUNSEL

S. S. Okunor, Principal State Attorney (with him Mrs. Joyce Amankwah, State Attorney), for the Republic.

J. K. Agyemang for the respondent.

JUDGMENT OF OLLIENNU J.A.

He delivered the judgment of the court This is an appeal by the Republic, hereafter referred to as the prosecution, against a calling of the High Court reported at p: 93 ante. The ruling is lengthy, but for the purpose of this appeal the important points decided are two. These are:

(1) That by virtue of section 44 of the Criminal Procedure Code, 1960 (Act 30), the circuit court and the High Court cannot exercise jurisdiction in a criminal case, summarily or on indictment, unless the accused person has been committed to it by a district court; and

(2) the offence charged, namely:

(a) Conspiracy to deliberately dissipate public property, contrary to section 2(a) of the Public

Property (Protection) and Corrupt Practices (Prevention) Act, 1962 (Act 121), and

(b) Deliberate dissipation of public property, contrary to section 2(a) of the same Act, are indictable offences, not triable summarily.

The prosecution appealed against the ruling on one main ground, namely: “That the learned high Court judge Anterkyi J. erred in law by holding that the accused could not be tried summarily.”

The learned state attorney, Mrs. Amankwah, who appeared for the prosecution argued this ground in three parts, namely:

(i) the learned judge erred in interpreting section 44 of Act 30 to mean that all criminal cases, whether summary or indictable have to pass through the district court, and cannot be initiated originally in the High Court;

(ii) the learned judge erred in holding that offences created by Act 121, s.2 are indictable offences, and as such not triable summarily; and

(iii) the learned judge further erred in holding that even if the offence fell under section 2(3) of the Criminal Procedure Code, 1960 (Act 30), i.e. if it may be tried on indictment or summarily, the choice lay with the accused person, or with the court and not with the Attorney-General.

Arguing the, first point the learned state attorney read section 44 of Act 30 and emphasised the words “Subject to the provisions”

[p.730] of [1968] GLR 727 and “committed”; she submitted that each section in the Act is by law an enactment by itself, therefore if there is any provision in any of these or in any other existing statute which provides for initiation of criminal proceedings direct in the High Court, that enactment will take the case out of the general provision in section 44. The state attorney further contended that the only meaning which has been attached in legal proceedings to the word “committed” is committal of an accused person for trial on indictment, and not for trial summarily. She submitted, therefore, that by the use of the word “committed” it is made abundantly clear that section 44 was not intended to apply to summary trial.

As to an enactment which, she alleged, provides another mode for initiating criminal proceedings in the High Court or the circuit court, learned state attorney directed the court’s attention to section 2 (4) (b) of Act 30 which provides that: “a summary trial shall bc by a court of summary jurisdiction, or by the High Court or a Circuit Court.” She next referred to Part III of Act 30, headed “Summary Trial” and particularised sections 163, 164 and 166 (1). The sections are as follows:

“163. A reference in any enactment (including this Code) to an offence as summary, or triable summarily or punishable on summary conviction or in terms to the like effect shall be taken as indicating that the offence shall be tried in accordance with this Part.

164. This Part applies to the summary trial of an offence by a District Court, a Circuit Court or the High Court . . .

166. (1) When the accused comes before the Court on summons or warrant, or otherwise, either originally or on adjournment, then if the prosecutor, having had notice of the time and place appointed for the hearing or adjourned hearing of the charge, does not appear, the Court shall dismiss the charge, unless for some reason it think it proper to adjourn or further adjourn the hearing of the case until some other date, upon such terms as it shall think fit.”

The state attorney then argued that since by virtue of section 164 the procedure for summary trial in a district court is the same as that in a High Court, and a circuit court, the only reasonable interpretation which can he given to the words “When the accused comes before the Court on summons or warrant, or otherwise” used in section 166 (1) is that one and the same procedure applies to the institution of summary trials in all the three mentioned in section 164, namely, a district court a circuit court and the High Court.

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We are unable to accept the interpretation which learned state attorney places upon the expression “When the accused comes before the Court on summons or warrant, or otherwise.” Those words only indicate a point of time, or circumstances upon which the procedure laid down m that part of the section following the words quoted may be applied. Section 166 (1) and all other sections in Part III of the Act deal with procedure at the trial, that is, how the court should proceed with the case after it has been lawfully initiated and properly brought before it. Initiation or institution of criminal proceedings is provided for in another part of the Act. The very section 166 (1) upon which the state attorney stakes so much, gives the clue as to institution of criminal proceeding, i.e. by “summons or warrant, or otherwise.” That then takes us to sections 60, 61 and 62. Section 60 provides, inter alia, that for the institution of criminal proceedings a summons, or warrant, or complaint should be made, it says:

“60. (1) Criminal proceedings may be instituted before a District Court in either of the following ways— (a) by making a complaint and applying for the issue of either a warrant or a summons in the manner hereinafter mentioned; or (b) by bringing a person arrested without a warrant before the Court upon a charge contained in a charge sheet specifying the name and occupation of the person charged, the charge against him, and the time when and the place where the offence is alleged to have been committed. The charge sheet shall be signed by the police officer or public prosecutor in charge of the case.”

Section 61 enacts that the summons, or warrant which initiates the criminal proceedings is to be issued by a district magistrate as defined in paragraph 46 of the Courts Decree, 1966 (N.L.C.D. 84). By virtue of this paragraph 46 a circuit judge, a High Court judge, or a Justice of Appeal, may, upon nomination by the Chief Justice, sit as a district court; in any such case he sits at a district court pure and simple.

We next turn to section 62 (1) and (2) of Act 30 which provide that the summons issued should direct the accused person to appear before a district court. Its provisions say as follows:

“62. (1) Every summons issued by a District Court under this Code shall be in writing, in duplicate, signed by the presiding

[p.732] of [1968] GLR 727 officer of the Court or by such other officer as rules of Court or the Chief Justice may direct.

(2) Every summons shall he directed to the person summoned and shall require him to appear at a time or place to be therein appointed before a District Court having jurisdiction to enquire into and deal with the complaint or charge. It shall state shortly the offence with which the person against whom it is issued is charged.”

It follows that the accused person served with criminal summons must first appear before the district court which issues the summons.

There is no special provision in the Code similar to section 60 for instituting criminal proceedings. But section 73 provides that a warrant for arrest may be issued by a judge or magistrate. Sub-sections (1) and (2) state:

“(1) Every warrant of arrest shall be under the hand of the Judge [or] Magistrate issuing it.

(2) Every warrant shall state shortly the offence with which the person against whom it is issued is charged and shall name or otherwise describe such person, and it shall order the person or persons to whom it is directed to apprehend the person against whom it is issued and bring him before the Court issuing the warrant or before some other Court having jurisdiction in the case, to answer to the charge therein mentioned and to be further dealt with according to law.”

Read by themselves these two subsections tend to show that a judge may issue a warrant of arrest to apprehend an amused person and bring him either before the High Court issuing the warrant or before some other court having jurisdiction in the case. That tends to support the contention of the prosecution that criminal proceedings may be instituted initially in the High Court or circuit court without first going to the district court. But the use of the definite article “the Judge [or] Magistrate” in subsection (1) of section 73, is an indication that the section should be read together with the two preceding sections, i.e. sections 71 and 72, and be construed together. These two sections deal with a case where criminal proceedings have already been initiated by summons issued, as earliar stated, by a district court directing the person summoned to appear before the district court, and for some reason or the other a complaint or charge is made on oath either before or after the date appointed in the summons for appearance. The sections read as follows:

“71. Notwithstanding the issue of a summons a warrant may be issued at any time before or after the time appointed

[p.733] of [1968] GLR 727 in the summons for the appearance of the accused. No such warrant shall be issued unless a complaint or charge has been made upon oath.

72. If the accused does not appear at the time and place appointed in and by the summons and his personal attendance has not been dispensed with under section 70, the Court may issue a warrant to apprehend him and cause him to be brought before such Court. No such warrant shall be issued unless a complaint or charge has been made upon oath.”

These two sections and particularly the reference in section 72 to section 70 of the Act necessarily show that the warrant which a judge or magistrate may issue under section 73, is one which may only be issued after criminal proceedings have first been instituted by a summons issued by a district court, directing the accused person to appear before the district court.

Again, the expression in section 73 (2), i.e. “to apprehend the person against whom it is issued and bring him before the Court issuing the warrant or before some other Court having jurisdiction in the case,” (the emphasis is ours) implies that a warrant which may he issued by a judge may only be for the purpose of producing the accused person before the district court before whom he was originally directed to appear, and not before the court of the issuing judge. These several provisions of the enactment for initiating criminal proceedings supply sufficient material which shows section 44 of the Criminal Procedure Code, 1960 (Act 30), cannot be interpreted otherwise than is said by its plain unambiguous language, namely, that “a criminal case shall not be brought before the High Court or a Circuit Court, unless it has been previously brought before a District Court and the accused person has been committed for trial to the High Court or Circuit Court” for trial either on indictment or summarily. It follows that the learned judge was right in holding that the case was not properly before him, it not having been brought previously before a district court and committed to his court

It is proper at this stage to point out that provision was made in section 7 of Act 121 for initiating criminal proceedings in the Special Criminal, Division of the High Court. It reads:

“7. Proceedings for the trial of any person charged with an offence under any provision of this Act may, notwithstanding any existing enactment, be instituted by the Attorney-General before the Special Criminal Division of the High Court established by the Criminal Procedure (Amendment) Act, 1961

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(Act 91) as if the offence charged were an offence specified in section 6 of that Act, and the said Act shall apply accordingly.”

Had that enactment continued in force it would except this case from the mandatory provisions of section 44 of Art 30 by reason of the words “notwithstanding any existing enactment,” appearing in the section. But the Special Criminal Division of the High Court and the procedure relative thereto as enacted by the Criminal Procedure (Amendment) Act, 1964 (Act 238), replacing Act 91, were abolished by the Criminal Procedure (Special Criminal Division) (Abolition) Decree, 1966 (N.L.C.D. 43), which repealed Act 238. No other enactment exists which can take this case out of the provisions of section 44.

We pass on now to the submission of learned state attorney that the judge erred in that an offence under section 2 of Act 121 is an indictable offence not triable summarily. In support of that contention learned state attorney referred to section 2 of Act 30 as amended by the Criminal Procedure Code (Amendment) (No. 2) Act, 1965 (Act 272), which says:

“2. (1) An offence shall be tried summarily if— (a) the enactment creating the offence provides that it is to be punishable on summary conviction, and provides for no other mode of trial; or

(b) the enactment creating the offence makes no provision for mode of trial and the maximum penalty for the offence on first conviction is a term of imprisonment not exceeding six months, whether with or without a fine.

(2) An offence shall be tried on indictment if— (a) it is punishable by death or it is an offence declared by any enactment to be a first degree felony; or (b) the enactment creating the offence provides that it shall be triable on indictment, and provides for no other mode of trial.

(3) Every other offence shall be triable on indictment or summarily.

(4) Subject to any limitations on the Jurisdiction of the Court—

(a) a trial on indictment shall be by the High Court or a Circuit Court;

(b) a summary trial shall be by a court of summary jurisdiction, or by the High Court or a circuit court.”

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She submitted that this case comes under subsection (3) of section 2, because it does not come under either subsection (1) or subsection (2), and it may therefore be tried on indictment or summarily, and that the decision as to whether the trial should be on indictment or summarily is left to the Attorney-General. The question boils down to this: is an offence under section 2 of Act 121 a first degree felony or a second degree felony? The answer to this argument is provided by section 296 of Act 30, and section 8 (1) of Act 121, read together with section 2 (2) of Act 30. By section 29 (3) a second degree felony is a crime carrying imprisonment which does not exceed ten years; while by section 29 (1) a first degree felony is a crime which carries a term of imprisonment for life or any lesser term.

Now, the punishment for an offence under section 2 of Act 121 as provided by section 8 and the Schedule thereto is “Imprisonment for a term not less than ten years and not exceeding fifteen years with productive hard labour.” It is therefore an offence the maximum punishment for which exceeds ten years’ imprisonment with hard labour. It necessarily follows that the offence falls within the category of first degree felony, which by virtue of section 2 (2) of Act 30 “shall be tried on indictment.” Therefore, on this second point also, the learned judge was right. These two points completely dispose of the appeal.

Although the third ground upon which the ruling is attacked does not affect the decision in the matter it is only fair to learned state attorney that we should indicate our entire agreement with her submission thereon. Section 179 of Act 30, by virtue of which the High Court questioned the propriety of trying the case summarily itself shows that in such a case the decision to proceed on indictment or on summary trial rests with the Attorney-General. The learned judge therefore erred in the view he took that it is the court and not the Attorney-General which has to decide upon the procedure. It should, however, be noted that the section applies only to offences which may be tried summarily or on indictment, and not to one like the present which is only triable on indictment. This is made clear by the section itself when it says: “ 179. (1) If it appears to the Court at any stage of a summary trial of an offence which is also punishable on indictment . . . “

(The emphasis is ours).

For the reasons stated above, the appeal must be dismissed, and it is accordingly dismissed.

DECISION

Appeal dismissed.

S. N. T.