STATE v. NINSIN AND OTHERS [1966] GLR 451

Division: HIGH COURT, CAPE COAST

Date: 3 JUNE 1966

Before: ARCHER J.

NATURE OF PROCEEDINGS

APPEAL against the decision of the Cape Coast Circuit Court awarding costs against the appellant. The facts are sufficiently set out in the judgment.

COUNSEL

Quartey for the appellant.

JUDGMENT OF ARCHER J.

The fourteen respondents were prosecuted by the State for refusing to provide communal labour lawfully demanded, contrary to section 113 of the Labour Ordinance,1 and were convicted in the Asikuma-Ajumako-Enyan Local Court. They appealed to the Cape Coast Circuit Court and their convictions and sentences were set aside. The learned circuit judge then awarded ¢60.00 (sixty cedis) costs against the complainant and added that the costs would have been awarded against the trial magistrate, had the court any power so to do. The State appealed against the award of costs against the complainant. When the appeal was summarily heard, I decided to treat it as a hearing of the substantive appeal because it was obvious that the learned circuit judge had no power to award costs against the complainant.

[p.452] of [1966] GLR 451

Section 60 of the Criminal Procedure Code, 1960,2 allows complaints to be made either by making a complaint to a district magistrate and applying for the issue of either a warrant or a summons and secondly by bringing a person arrested by a warrant before the court upon a charge. Section 57 then provides that a person who makes a complaint before a district court may conduct the prosecution of the cause or matter to which the complaint relates in person or by a legal practitioner. It follows therefore that criminal cases may be prosecuted by private prosecutors as complainants or by public prosecutors authorised by the Attorney-General.

However, section 139 (3) of Act 30 also provides that:

“A Court that acquits or discharges a person accused of an offence, if the prosecution for such offence was originally instituted on a summons or warrant issued by a Court on the complaint of a private prosecutor, may order the private prosecutor to pay to the accused such reasonable costs as the Court thinks fit.” Private prosecutor is defined in subsection (7) of section 139 to mean “any person who is not prosecuting as public prosecutor.” This section means that no costs can be awarded against a public prosecutor and this would include the State. Costs can only be awarded against a complainant who himself conducts the prosecution or by a legal practitioner on his behalf.

In the present appeal, the respondents were prosecuted by the sanitary officer who is a public prosecutor on behalf of the State and it follows that no costs could be awarded against the person who lodged the complaint but did not prosecute the complaint himself as a private prosecutor.

I note that under section 141 (1) of the Criminal Procedure Code, 19603:

“If on the discharge or acquittal of an accused the Court is of opinion that the charge was frivolous or vexatious the Court may order the complainant to pay to the accused a reasonable sum not exceeding ten pounds as compensation for the trouble and expense to which such person may have been put by reason of the charge in addition to his costs.”

The words “in addition to his costs” in section 141 (1) in my view must be read in conjunction with section 139 (6) which reads that:

[p.453] of [1966] GLR 451

“The costs awarded under this section may be awarded in addition to any compensation awarded under section 141.” The following conclusions can therefore be safely drawn:

(1) When an accused is prosecuted by a private prosecutor, then if the accused is discharged or acquitted, the court may award reasonable costs against the private prosecutor and may also award compensation not exceeding ten pounds (£10) against the private prosecutor as complainant.

(2) When an accused is prosecuted by a public prosecutor, then if the accused is discharged or acquitted, no costs can be awarded against the public prosecutor or the complainant. However, the court may order the complainant in such a case to pay compensation not exceeding £10 to the accused who is acquitted if the charge was frivolous or vexatious.

In the present appeal therefore, the respondents were prosecuted by a public prosecutor and the only power the learned circuit judge had was to award compensation not exceeding £10 to the respondents to be paid by the complainant assuming he was satisfied that the charge was frivolous and vexatious. As the complainant did not act as a private prosecutor, the learned circuit judge had no power to award costs against him.

For the above reasons, I allowed the appeal and ordered that the ¢60.00 (sixty cedis) costs, if paid, should be refunded to the complainant.

DECISION

Appeal allowed. S. K. T.