THE STATE v. KOFI ADABO [1961] GLR 321

DIVISION: IN THE SUPREME COURT

DATE: 16TH JUNE, 1961

BEFORE: KORSAH, C.J., SARKODEE-ADOO AND AKIWUMI,

JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL against conviction for murder by Crabbe, J. sitting with a jury in the High Court, Sunyani, on the 8th March, 1961. This report is concerned solely with a preliminary objection raised by counsel for the appellant.

COUNSEL

W.N.A. Bossman for the appellant.

K. Dua Sakyi for the respondent.

JUDGMENT OF KORSAH, C.J.

The appellant stood his trial at the Criminal Sessions held at Sunyani on Wednesday, the 1st March, 1961, on a charge of murder alleged to have been committed by him on the 21st November, 1960, and was on the 8th day of March, 1961, convicted of the said charge. He has appealed to this court and at the hearing counsel on his behalf has raised a preliminary objection to the information which was filed on the 22nd February, 1961, by which the appellant was charged with murder contrary to section 238 of the Criminal Code, Cap. 9. It is contended on his behalf that on that date the Criminal Code, Cap. 9 of the Laws of the Gold Coast (1951 Rev.) had been repealed and replaced by Act 29 of the Parliament of the Republic of Ghana, the Criminal Code, 1960, which came into effect on the 1st February, 1961, and therefore this court should hold that the trial and conviction of the appellant was null and void. [p.322] of [1961] GLR 321

In support of this contention, counsel argued that all proceedings taken after the new code came into force should have complied with the provisions of that new code. Counsel relied on the Criminal Code, 1960, (Act 29) section 318 (2) by which the Criminal Code, Cap. 9, is repealed; and also section 318 (4) of the Criminal Code, 1960, which provides thus: “Notwithstanding any enactment, no person shall, after the commencement of the Code, be charged with any crime under any enactment hereby repealed or declared to be no longer in force in Ghana but any person who has been so charged before the commencement of the Code, may be proceeded against as though the enactment had not been repealed or declared to be no longer in force.” In answer to this submission the Senior State Attorney contended that the whole intendment of the legislation should be given due consideration; that with the view of meeting such difficulties which may arise in consequence of new legislation, the Interpretation Act, 1960, was passed; hence the provision in section 6 (1) thus: “A reference in an enactment to any enactment shall be construed as a reference to it as for the time being amended by any provision, including a provision contained in the enactment in which the reference is made or in a later enactment.” He also referred to section 8 of the Interpretation Act, 19601(1), which deals with the effect of repeal, revocation or cesser as follows:

“(1) The repeal or revocation of any enactment shall not—

(a) revive anything not in force or existing at the time when the repeal or revocation takes effect; or

(b) affect the previous operation of the enactment or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed thereunder; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

And any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture, punishment may be imposed, as if the enactment had not been repealed or revoked.

“(2) When an enactment expires, lapses or otherwise ceases to have effect this section shall apply as if the enactment had then been repealed or revoked.”

He contended that by virtue of these sections, the criminal investigation and committal of the accused which took place prior to the 1st February, 1961, when the new Criminal Code, 1960, came into force must be deemed to be investigation and legal proceedings affecting the trial which took place after the 1st day of February, 1961; also that the mere fact that in the information the charge was laid as contrary to the section relating to murder in the Criminal Code, Cap. 9, which is an enactment repealed by section 318 (2) of Act 29, the Criminal Code, 1960, should not [p.323] of [1961] GLR 321 operate to vitiate the trial and conviction of the appellant. He further referred to section 9 of the Interpretation Act, 1960, relating to the effect of the substituting enactment, thus: “Where an enactment is repealed or revoked and another enactment is substituted, by way of amendment, revision or consolidation— all authorities and persons established or acting under the repealed or revoked enactment shall continue to be established, or to be entitled to act, under the substituted enactment; and every bond and security given by a person appointed under the repealed or revoked enactment shall remain in force and all books, papers and things used under it shall continue to be used so far as consistent with the substituted enactment; and all proceedings taken under the repealed or revoked enactment shall be prosecuted and continued under and in conformity with the substituted enactment, so far as consistently may be.”

In reply to the Senior State Attorney’s contention, counsel for appellant submitted that the reference to “enactment” in section 6 (1) of the Interpretation Act, 1960, must mean reference in one enactment to another enactment and not to proceedings; and further contended with reference to section 9 of the Interpretation Act, 1960, that the provisions under this section are intended to apply not only to substantive law but also to procedural rules applicable to such trials. We reserved our ruling on the objection raised and requested counsel to argue the appeal on its merits.

We have carefully considered the relevant sections of the Interpretation Act, 1960, which have been argued before us. We observe that apart from the fact that in the information filed, the statement of offence is stated to be contrary to section 238 of the Criminal Code, Cap. 9 which has been repealed, instead of section 46 of Act 29, the Criminal Code, 1960, which has replaced the said repealed Code, the particulars in the said information relate to the offence of murder which is an offence under section 46 of the Criminal Code, 1960.

The objection raised relates to the fact that the relevant section under the old Criminal Code had been stated instead of the section under the new Criminal Code in respect of the offence of murder. In our view it is for such possible technical error in the charge that that provision has been made under section 406(1) (a) of Act 30, the Criminal Procedure Code, 1960, which reads as follows:

(1) Subject to the provisions hereinafter contained, no finding, sentence, or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or review on account— “(a) of any error, omission, or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment, or other proceedings before or during the trials or in any enquiry or other proceedings under this Code”.

In view of this provision we have come to the conclusion that the appellant was properly tried and, in any event, in the exercise of our powers conferred by the proviso to section 15(1) of the Courts Act, 1960, we [p.324] of [1961] GLR 321 consider that no substantial miscarriage of justice has actually occurred. The objection is therefore overruled.

[His lordship then entered into the merits of the appeal which was held to be of no substance.]

DECISION

Appeal dismissed.