REPUBLIC vs. T. O. ASARE [1968] GLR 93

CASES REFERRED TO

(1) R. v. Sussex Justices; Ex parte McCarthy [1924] 1 K.B. 256; [1923] All E.R. Rep. 233; 93 L.J.K.B.

129; 88 J.P. 3; 68 S.J. 253; 22 L.G.R. 46; sub nom. R. v. Hurst; Ex parte McCarthy, 130 L.T. 510;

40 T.L.R. 80; 27 Cox C.C. 590.

(2) R. v. Allen (1862) 1 B. & S. 850; 31 L.J.M.C. 129; 5 L.T. 636; 26 J.P. 341; 8 Jur. (N.S.) 230; 9 Cox C.C. 120; 121 E.R. 129.

(3) Attorney-General v. Lamplough (1878) 3 Ex.D. 214; on appeal, 3 Ex.D. 224, 47 L.J. Ex. 555; 38 L.T. 87; 42 J.P. 356; 26 W.R. 323, C.A.

(4) Chapman v. Kirke [1948] 2 K.B. 450; [1948] 2 All E.R. 556; [1948] L.J.R. 255; 64 T.L.R. 519;

112 J.P. 399; 46 L.G.R. 507, D.C.

(5) R. v. Bertrand (1867) L.R. 1 P.C. 520; 4 Moo. P.C.C. (N.S.) 460; 36 L.J.P.C. 51; 16 L.T. 752; 31 J.P. 531; 16 W.R. 9; 10 Cox C.C. 618.

(6) Parke Gate Iron Co. v. Coates (1870) L.R. 5 C.P. 634; 39 L.J.C.P. 317; 22 L.T. 658; 18 W.R. 928. (7) R. v. Clewer (1953) 37 Cr.App.R. 37, C.C.A.

(8) Inspector-General of Police v. Lartey (1934) 2 W.A.C.A. 182.

NATURE OF PROCEEDINGS

RULING on whether a trial of an accused person for offences under Public Property (Protection) and Corrupt Practices (Prevention) Act, 1962 (Act 121), could be commenced by summary proceedings in the High Court.

COUNSEL

J. N. K. Taylor, Director of Public Prosecutions (with him E.V.A. Adjetey, State Attorney) for the Republic.

Dr. E. V. C. de Graft Johnson for the accused.

[p.96] of [1968] GLR 93

JUDGMENT OF ANTERKYI J.

The accused is being tried before me on two charges as follows:

“First Count STATEMENT OF OFFENCE Conspiracy to deliberately dissipate public property, contrary to section 23 (1) of the Criminal Code, 1960 (Act 29), and section 2 (a) of the Public Property (Protection) and Corrupt Practices (Prevention) Act, 1962 (Act 121).

PARTICULARS OF OFFENCE Theodore Oboo Asare, between the months of April 1965 and August 1965 at Accra in the Eastern Region of Ghana and in diverse places outside Ghana, acted together with Marwan Mahmoud Koreh, Nachaat Mouhamed Kabbara, D. E. Bilimoria, K. T. B. Menon and other persons unknown, with a common purpose in committing a crime, namely, that the said Theodore Oboo Asare should deliberately dissipate public property to wit N¢522,480.04 (£G261,240 0s. 5d.) the property of the Ghana Commercial Bank, a statutory corporation, by knowingly entering into an unprofitable business transaction on behalf of the said Ghana Commercial Bank with the aforesaid other persons and the United Arabian Corporation.

Second Count STATEMENT OF OFFENCE Deliberate dissipation of public property, contrary to section 2 (a) of the Public Property (Protection) and Corrupt Practices (Prevention) Act, 1962 (Act 121).

PARTICULARS OF OFFENCE Theodore Oboo Asare, between the months of April 1965 and August 1965 deliberately dissipated public property to wit N¢522,480.04 (£G261,240 0s. 5d.) the property of Ghana Commercial Bank a statutory corporation, by knowingly entering into an unprofitable business transaction on behalf of the said Ghana Commercial Bank with K. T. B. Menon, Nachaat Mouhamed Kabbara, Marwan Mahmoud Koreh, D. E.

Bilimoria, United Arabian Corporation and others unknown.”

[p.97] of [1968] GLR 93

When the accused first appeared on 20 October 1967, it being represented to me that the prosecution intended the trial to be summary, I questioned the validity of such a procedure, as by the Schedule to Act 121, pursuant to the penalty section-section 8 (1) -every person charged with an offence under section 2 of the Act, as in this case, is liable to be sentenced to “imprisonment for a term not less than ten years and not exceeding fifteen years with productive hard labour.”

My attention was then called by the Director of Public Prosecutions to the General Provisions as to procedure in Part I, sections 1 and 2 of the Criminal Procedure Code, 1960 (Act 30), with regard to summary trials and trials on indictment, and, particularly to section 2 (3) and section 2 (4) (b) thereof.

After a few adjournments to await the arrival of the first witness for the prosecution from abroad, hearing began. Towards the end of the cross-examination of the second witness for the prosecution, counsel for the accused raised the point, casually, as to whether a conviction upon a summary trial could carry a punishment of more than a term of six months’ imprisonment with hard labour on first conviction, as that was the implication of section 2 (1) (b) of Act 30, the more so as it states:

“(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.”

Without making any pronouncement on this, upon adverting my mind again to the whole of Act 121, and particularly, to section 7, thereof, I found that the summary trial of this case bristled with certain points of law. And I therefore adjourned the trial for arguments from each side to be heard in support of, and in opposition to, the legal propriety of this case being tried summarily and not on indictment.

During the hearing of the arguments on 24 January 1968, Mr. Taylor, Director of Public Prosecutions, contended on behalf of the prosecution, substantially, that:

(1) It was only in a case of a first degree felony offence that the procedure for trial should be only by indictment, as provided by section 2 (2) (a) of Act 30 (as amended by Act 272, s.1 (a).

(2) By virtue of section 27 of the Interpretation Act, 1960 (C.A. 4), which states, “In an enactment made after the passing of this Act, ‘shall’ shall be construed as imperative and ‘may’ as permissive and empowering,” before the repeal of section 7 of Act 121 by

[p.98] of [1968] GLR 93 the Public Property (Protection) and Corrupt Practices (Prevention) Act, 1962 (Amendment)

Decree, 1967 (N.L.C.D. 130), the word “may,” as appearing after the word “Act” in the second line of that section, was therefore to have been construed as being permissive merely and not imperative, and that with that section of Act 121 stating:

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

(The emphasis is mine.) The Attorney-General was merely empowered to institute actions against offenders under Act 121 before the Special Criminal Division of the High Court established by the Criminal Procedure (Amendment) Act, 1961 (Act 91), by the procedure mentioned in that Act; that with the repeal of that Act by the Criminal Procedure (Special Criminal Division) (Abolition)

Decree, 1966 (N.L.C.D. 43), there was no room for the argument that a case subsequently brought under the Act should be tried before that special court and by the procedure then obtaining before it, the more so as that special court had been abolished by N.L.C.D. 43; a fortiori, N.L.C.D. 130, which repealed section 7 of Act 121, had also been repealed by the Public Property (Protection) and Corrupt Practices (Prevention) Act, 1962 (Amendment) (No. 2) Decree, 1967 (N.L.C.D. 200), para. 2 (b) without reviving that section.

After Dr. de Graft Johnson, counsel for the accused, had called the attention of the court to section 44 of Act 30, the Director of Public Prosecutions continued further thus:

(3) That section 44 of Act 30, which reads:

“Subject to the provisions of any enactment 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, as the case may be,” must be read conjointly with section 2 of Act 30, to enable this court to assume jurisdiction on this case.

[p.99] of [1968] GLR 93

(4) That before the trial of this case by summary procedure began counsel for the accused had agreed with counsel for the prosecution that the trial should proceed in that way.

(5) That the first prosecution witness who had already given evidence was resident abroad, and that to bring him back in the event of a retrial would burden the State with extra expense, and that the extra burden of expense was a sufficient answer to section 179 (1) of Act 30 to which Dr. de Graft Johnson had earlier on butted in to call the attention of the court.

(6) That section 242 (1) and (2), to which the court had referred him, did not apply in the case in hand, for that provision was only applicable when the accused was already before the court after committal for trial on indictment. (The court agreed with the Director of Public Prosecutions in this regard.)

(7) That an accused person had no right of choice in the matter of procedure to be adopted for trial of his case unless expressly so provided by statute or by the enactment under which the charge had been preferred against him, and so the question as to the mode of procedure by which he should be proceeded against rested with the prosecution only.

Dr. de Graft Johnson for the defence, while agreeing with the Director of Public Prosecutions on the fifth point in his argument, as respects the extra burden of expense to the State which would occur upon a change over from summary trial to trial on indictment, referred to section 44 of Act 30 set out above, by arguing that, even if a summary trial was the right procedure, the case should have emanated from a district court where it should first have been brought, and that, inferentially, the case was not properly before this court.

Dr. de Graft Johnson’s second point was that, even though he was in agreement with the Director of Public Prosecutions, as contended finally by him, that an accused person had no choice in the mode of trial to be adopted against him unless there was a specific provision in that respect by statute, yet there was a procedure under section 179 of Act 30 which the court might consider and adopt.

He contended thirdly, after consulting the accused, that an accused person had a right to object to one mode of trial being used if the other mode existed and could be used in the circumstances of the case in hand, and that the accused was inferentially protesting against his trial by summary procedure, and that he desired a trial by indictment.

And lastly, his contention was that, as section 7 of Act 121, before its repeal by N.L.C.D. 130, indicated that a trial of offences under Act 121 was to be before a special court where the procedure

[p.100] of [1968] GLR 93 was by indictment, the repeal of that section, and the abolition of that special court, did not also abolish the procedure to be adopted in future trial of offences under the Act, and therefore this case should be tried on indictment.

After hearing the argument from either side the court adjourned the matter for consideration and consequent ruling on this vexed question. And I hereby give the ruling today, as follows:

Without hesitation at the outset, let it be pointed out that the argument of the Director of Public Prosecutions, that section 44 must be read conjointly with section 2 of Act 30, and that in that connection this case is properly before this court to be tried summarily, commands no weight; even if an offence can in law be tried summarily, unless it is expressly stated by the enactment creating it that the summary proceedings may be commenced at the High Court, a charge sheet embodying that offence cannot properly be brought at the first instance before the High Court without it passing through a district court.

It is hereby not being denied that under paragraph 27 of the Courts Decree, 1966 (N.L.C.D. 84), by sub-paragraph (a), “the High Court shall have (a) original jurisdiction in all matters,” but it is being upheld, in no uncertain terms, that “original jurisdiction” does not refer to the court before which the matter must first be brought, but to the initial hearing or trial to finality as opposed to a subsequent hearing by way of appeal from the result of an initial hearing or trial to finality.

The initial hearing to finality of indictable offences takes place in the High Court or a circuit court as the case may be-and that appertains to original jurisdiction.

The circumstance under which the High Court would legally assume its original jurisdiction in any matter are governed by procedural rules established by statute. In some cases the enactment, under which the matter is to be brought before the High Court, does itself by its provisions indicate the procedure by which it can be brought before the High Court. In civil cases or matters this is effected in accordance with the rules of court, and in criminal cases, by virtue of a provision in the enactment under which the charges are preferred, or in accordance with the provisions of the Criminal Procedure Code, 1960, for example a prosecution for an indictable offence, to be brought before the High Court for it to assume its original jurisdiction in the trial of it, must be so done by means of preliminary investigation and committal by a district court. In a summary offence, for the High Court to assume its original jurisdiction in trying the offender charged with it, certain requirements are necessary. The

[p.101] of [1968] GLR 93 charges in summary jurisdiction offences cannot lawfully be preferred before the High Court (by the surrender by the prosecutor to the court of a charge sheet embodying the charges) except in particular instances to be stated hereafter. I hold that no offence triable summarily could be tried summarily in the High Court unless:

(1) The enactment creating the offence provides that proceedings for the summary trial of that offence shall be instituted before the High Court.

(2) The Chief Justice, in exercise of the powers vested in him by virtue of paragraph 38 of N.L.C.D.

84, has transferred the case from a district court to the High Court.

(3) Under the proviso to paragraph 46 of N.L.C.D. 84 the Chief Justice has nominated a High Court judge to sit as a district magistrate for a district, and that judge has for convenience sake so sat at the High Court and thereby tried.

Hence, except in these circumstances or others allowed by law, the High Court, for the purpose of assuming its original jurisdiction, cannot have charges of summary offences preferred before it to be tried summarily upon the mere production of those charges from the police dockets after the accused has been formally charged at the police station.

For, if by law, an indictable offence, an offence that does not fall within the original jurisdiction of a district court, can only be brought before the High Court by the procedure stated in Part IV of Act 30, i.e. by preliminary hearing (vide Act 30, ss. 181-191), I cannot understand why, if by law also a summary offence falling as it does within the original jurisdiction of a district court, must not also be first preferred at a district court before, upon a reason allowed by statute law, it is transferred to the High Court to be initially tried summarily to finality.

If during the preliminary inquiries relative to the committal of an indictable offence a district magistrate can even under section 184 (5) of Act 30, discharge the accused, why can he not in law act likewise in the case of a summary offence? And why must the charges not be first preferred before him?

Section 44 of Act 30 is quite clear in its provisions, I quote it again:

“44. Subject to the provisions of any enactment 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, as the case may be.”

[p.102] of [1968] GLR 93

This provision applies to a summary offence as well as to an indictable offence, and therefore this case, whether or not it is triable only summarily, should have first passed through a district court, and therefore it is not properly before the High Court; and I hold that up to the stage of the cross-examination of the second prosecution witness all the proceedings are irregular and void as sinning against section 44 of Act 30.

Be that as it may, I come to the question of the particular procedure to be adopted in the trial of this case. In order to ascertain the actual procedural mode now applicable to the trial of an offence charged under Act 121, in my view, attention must be paid to these two regards as viewpoints:

(1) The purport and object of Act 121 together with the surrounding circumstances of the case in hand.

(2) The mode of trial as contemplated in section 7 of Act 121 before the repeal of that section.

I deal with them in that order.

1. Purport and object of Act 121

With regard to the purport and object of the Act and the surrounding circumstances of this case, it must be observed that the Act was, “An Act to make better provision for the protection of public property and for the investigation and punishment of corrupt practices”; and that by section 2 of the Interpretation Act, 1960 (C.A. 4), “The long title and preamble form part of an Act intended to assist in explaining the purport and object of the Act.” And therefore Act 121 envisages the making of better provision for: (1) the protection of public property and (2) the investigation and punishment of corrupt practices. Hence, better provision for punishment thereunder is germane to the finding of the proper mode of trial to be adopted in the trial of this case, as it falls within the offences covered by the Act.

The punishment provided by the Act, with regard to the offences committed under section 2 under which the charges in this case are laid, is stated in the Schedule thereto as being, “not less than ten years and not exceeding fifteen years.” It is relevant to observe at this stage, that by virtue of section 296 (1) of Act 30, an offence declared by an enactment to be a first degree felony without specifying the punishment for it, while it can only be tried on indictment by virtue of section 2 (2) (a) of Act 30 (as amended by Act 272), does carry a punishment of “imprisonment for life or any lesser term,” and that this “any lesser term” is liable to be relaxed to a term ranging from ten to fifteen years, and may even wane to a fine of £G100 or twelve months’ imprisonment with hard labour or a binding over

[p.103] of [1968] GLR 93 or both; for, the punishment therefor is not fixed by law. But such an offence-a first degree felony offence-must, by virtue of section 2 (2) (a) of Act 30, be tried on indictment, and not summarily.

It is therefore arguable, and probably indefeasibly so, that from the standpoint of an accused person, in the case of an offence committed under section 2 of Act 121, the minimum punishment of ten years awardable (as fixed by law) is more unfavourable than the minimum punishment awardable (which is relaxable) in cases of first degree felony offences-even though in the case of some of them, like causing abortion under section 58 of Act 29, the minimum punishment is also fixed as ten years’ imprisonment with hard labour. And the mode of punishment under Act 121 is severer than that in the case of first degree felony cases; for, while in the former the term of imprisonment must be “with productive hard labour,” in the latter it must be “with hard labour” only.

Hence the range of the terms of imprisonment for offences under section 2 of Act 121 falls, at any rate, within that for first degree felony offences, and the mandatory procedure of trial by indictment attaching to first degree felony offences must therefore clutch at, irresistibly, the mode of trial of offences under section 2 of Act 121, making it unquestionably one of trial by indictment.

Moreover, the averments in the charges in this case are to be relied upon in establishing, by legal evidence, that state property, in the form of money to the tune of about one quarter of a million pounds sterling at least, has been “dissipated” by the accused. By standing his trial, the accused also stands the peril of being, upon the totality of the evidence, punished by a sentence to the term of imprisonment for not less than ten years “with productive hard labour,” a description which equally applies also to the term of imprisonment for punishment of offenders under the Punishment of Habitual Criminals Act, 1963 (Act 192). Therefore, even if it could be successfully argued that, as respects offences under section 2 of Act 121, the procedure for trial is caught by the provisions under section 2 (3) of Act 30, the Criminal Procedure Code, namely, “Every other offence shall be triable on indictment or summarily” in order that the accused may feel that justice is being meted out to him fairly, he should be tried upon indictment rather than summarily, on the basis of the principle stated in R. v. Sussex Justices; Ex parte McCarthy [1924] 1 K.B. 256 at p. 259 that: “justice should not only be done, but should manifestly and undoubtedly be seen to be done.” He must therefore be given the option of a choice of jury trial or trial with assessors as given him by statute under section 242 (2) or by section 243 of Act 30, though this view may be defeasible, in that,

[p.104] of [1968] GLR 93 no such choice is given him by statute until he is being committed upon indictment.

2. Mode of trial under Act 121, s. 7

I now come to the second viewpoint-the mode of trial as contemplated by section 7 of Act 121. And I do, in this connection, consider what the procedure was as mentioned in the provisions of section 7 of the Act-Act 121-before the repeal of that section by N.L.C.D. 130.

Upon the passing of Act 121, by its section 7, a prosecution for offences “may” be effected by the institution of proceedings in the Special Criminal Division of the High Court, then in existence, and by the mode of trial obtaining in that court. This was the case up to the time of the repeal of that section 7 by N.L.C.D. 130 at a time when the Special Criminal Division had assumed a new garb of horror under the name of the “Special Criminal Division” only, by virtue of section 1 (1) of Act 238. Section 7 of Act 121 states:

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

(The emphasis is mine.)

Now, it was forcefully denied by the Director of Public Prosecutions that the procedure obtaining before the Special Criminal Division of the High Court was by indictment. But it was admitted that it was the Criminal Procedure (Amendment) Act, 1961 (Act 91), that established that court. It must be pointed out that, later, under the aegis of the Criminal Procedure (Amendment) Act, 1964 (Act 238), the Special Criminal Division of the High Court blossomed to a height comparable to that of the old Court of Star Chamber, by assuming the garb of the Special Criminal Division after shaking off its unnecessary appendage “of the High Court.”

It is at this stage very significant to observe that the Criminal Procedure (Amendment) Act, 1961 (Act 238), was “An Act to revise with amendments the Criminal Procedure (Amendment) Act, 1961 (Act 91),” and that it is stated by its section 1 that:

“1. (1) There shall be a Division of the High Court to be known as the Special Criminal Division (in this Act called ‘the Court’).

[p.105] of [1968] GLR 93

(2) The Court shall consist of the Chief Justice or some other judge of a superior court appointed by the Chief Justice after consultation with the President sitting with a jury of twelve persons.

(3) For the purposes of this Act, there shall be a special list of jurors prepared from the registers of electors by the Judicial Secretary.”

At this stage, let it be pointed out straightaway, that never in the annals of criminal trials has a trial been judicially accepted to be a summary trial when the court of trial is constituted by a judge with a jury of twelve reasonable men (selected specially from the register of electors, as stated in section 1 (3) referred to above). I hold that the mode of trial before that special court was by indictment-for to hold otherwise would stultify the meaning of “trial upon indictment,” and would thus amount to a reductio ad absurdum.

The Director of Public Prosecutions also contended that, under the provisions of section 7 of Act 121 (now repealed by N.L.C.D. 130), the Attorney-General was merely empowered or permitted to bring offenders under the Act before that special court, and that, therefore, he was at liberty to institute proceedings in any other court by the summary mode of trial, as the provisions of the Act did not exclude a summary trial of offences committed under the Act, the more so as, at present, that special court did not exist, by its abolition.

This contention was made with some degree of force not incomparable with the might with which the Director of Public Prosecutions clung to his denial that, before the abolition of that special court by N.L.C.D. 43, the procedure obtaining there was not one of a trial on indictment but a summary trial.

The apparent foothold for this contention of the learned Director of Public Prosecutions was the contention also that the word “may” in that section 7, must be construed as being “permissive and empowering” and in consonance with the provision in section 27 of the Interpretation Act, 1960 (C.A. 4), and that therefore, on the basis of that construction, the Attorney-General was, before the repeal of section 7 of Act 121 and the abolition of that special court, at liberty to prosecute in other courts offenders under Act 121 and by adopting any mode of trial-either on indictment or summarily; and that the Attorney-General was therefore not enjoined in prosecuting such offenders before that special court only, and, inferentially therefore, not enjoined also in adopting the procedure

[p.106] of [1968] GLR 93 obtaining in that special court.

I am unable to uphold this contention, for the following reasons:

(i) The construction to be put on the word “may,” in section 7 of Act 121, as provided by section 27 of the Interpretation Act; 1960 (C.A. 4), as in the case of any other provision in that Act itself, is qualified to the extent that, by virtue of section 1 of the very Act, by its concluding provision, the word “may” in section 7 of Act 121 is to be so construed, “except insofar as the contrary intention appears in the enactment.” But what better contrary intention could have been expressed in Act 121 than the meaning of the words “notwithstanding any existing enactment,” appearing in section 7 thereof, to indicate that the word “may,” as appearing before these words, should now be construed as being mandatory, and not permissive merely? In my view the word “may” and the words “notwithstanding any existing enactment,” in their context, indicate an intention that, upon a decision to prosecute offenders under the Act the proceedings must be instituted by the Attorney-General in that special court, irrespective of any provision in any other enactment to the effect that such proceedings are liable to be instituted by an alternative procedure, and in another court. For, if the amount of the property dissipated was, say, to the value of £G50, the institution of the criminal proceedings could have been effected in a district court. But upon the basis of what I have said above, the Attorney-General should prosecute the offender in the special court.

(ii) For, in the first place, the mention of the special court in section 7 excludes any other court.

Secondly, the Attorney-General always reserves the right to prosecute or not to prosecute a case in a competent court; and when he decides to prosecute he causes the case to be taken up in the ordinary courts not “‘special.” He can enter a nolle prosequi without being questioned by the court, and it is assumed this discretion will not be exercised unreasonably. In this regard it must be observed that Cockburn C.J. in R. v. Allen (1862) 1 B. & S. 850 at p. 854 had this to say:

“It is an undoubted power to the Attorney-General . . . to enter a nolle prosequi, and thereby to stay proceedings in any indictment or criminal proceedings. No instance has been cited, and therefore it may be presumed that none can be found, in which, after a nolle prosequi has been entered by the Attorney-General, this court has taken it upon itself to award fresh process or has allowed any further proceedings to be taken on the indictment.”

[p.107] of [1968] GLR 93

But could the Attorney-General, at the time this special court was functioning, have exercised his discretion, however reasonable, to refrain from prosecuting one of such cases at all, or entered a nolle prosequi in the special court? I dare say no! Not in the domain of the triumphant at the time.

(iii) Under Part V of the Criminal Procedure Code, 1960 (Act 30), which deals with trial on indictment, section 203 states:

“203. A reference, in any enactment to an offence as indictable or in terms to the like effect shall be taken as indicating that the offence is to be tried in accordance with this Part.”

The procedure was indicated by the reference in section 7 to the special court. Hence, even though section 7 of Act 121 has been repealed by N.L.C.D. 130, which also abolished the Special Criminal Division of the High Court, while this court was functioning, the section did sound the note for the procedure by which trials of offences under Act 121 should be effected, by its inferentially stating that the procedure by indictment was the one to be adopted.

(iv) In my view, and with due deference to the learned Director of Public Prosecutions, his forceful contention-that even if at all the procedure before the special court was a procedure of trial by indictment, the repeal of special court by N.L.C.D. 43, did also abolish the mode of trial, and therefore this case, which might even have been prosecuted in the special court on indictment could not be prosecuted in a different court on indictment- commands no weight. Because, N.L.C.D. 130 in repealing section 7 of the Act, which relates to where the prosecution should take place, did not specifically provide a different forum or procedure for prosecuting offenders under the Act, but, merely, by necessary implication, (a) gave a right to appeal, which previously did not exist, from a conviction of an offence under the Act; for, a conviction of an offence under the Act (Act 121), by virtue of the provisions of section 7 of Act 121 and of Act 238, was, before the repeal, not subject to appeal; but (b) did not alter the penalty which such conviction entailed.

Therefore the mode of trial (by indictment) of offences which should have been prosecuted before that special court not having been altered expressly or by necessary implication by the repealing statute (N.L.C.D. 130), that mode of trial still remains to be what should be adopted with regard to the prosecution of the offences under Act 121, and it is by indictment.

[p.108] of [1968] GLR 93

The argument therefore, that, on the basis that there is no vested right in procedure, the procedure for prosecuting offenders under the Act before the special court died its death with the abolition of that court must be dismissed in limine. (v) Furthermore, the offences before this court are alleged to have been committed between the months of April 1965 and August 1965, that is to say before the abolition of the special court by N.L.C.D. 43, and before the subsequent repeal of section 7 of Act 121 by N.L.C.D. 130. Even though there is no vested right in procedure, and therefore the procedure obtaining for the prosecution of those offences before the abolition and repeal cannot now be said to apply, prima facie, to a present trial of an offence under the Act, as the entire Act (Act 121) was not repealed, the remaining unrepealed portions or sections should be considered with the repealed portions in interpreting the unrepealed sections (or clauses, if any). Because, instead of repealing an entire Act, the repeal may be of certain sections or clauses only. It cannot be said that, “where a particular clause in an Act of Parliament is repealed, the whole Act must be read as if that clause had never been enacted,” per Kelly C.B. in Attorney-General v. Lamplough (1878) 3 Ex.D. 214 at p. 223, C.A.

“So a Court is entitled to look at the repealed portion of an Act, to see what is the meaning of what remains in the Act; otherwise it would follow that an Act of Parliament, which at one time had one meaning, would by the repeal of some one clause in it have some other meaning.”

Vide Odgers, The Construction of Deeds and Statutes (3rd ed.), p.263. See also Chapman v. Kirke [1948] 2 K.B. 450 per Denning J. (as he then was) at p. 455. The question of the appropriate procedure to be adopted in the trial of this case was called to question by the court because it is pertinent to observe the following as appearing in Maxwell on Interpretation of Statutes (10th ed.) under the heading “Rules of procedure to be obeyed”:

“Enactments regulating the procedure in courts seem usually to be imperative and not merely directory. If, for instance, an appeal from a decision be given with provisions requiring the fulfilment of certain conditions, such as giving notice of appeal and entering into recognisances, or transmitting document within a certain time, a strict compliance would be imperative and non-compliance would be fatal to the appeal . . .

[p.109] of [1968] GLR 93

The same imperative effect, seems, in general, presumed to be intended even where the observance of the formalities is not a condition exacted from the party seeking the benefit given by the statute, but a duty imposed on a court or public officer in the exercise of the power conferred on him when no general inconvenience or injustice calls for a different construction.

As I hold that the appropriate procedural mode of trying this case is by indictment (because I find that the trial must be so effected by necessary implication by the repeal of section 7 of Act 121 by N.L.C.D. 130 without making reference to a new procedure for trial as being the one to be followed in the prosecution of cases arising under Act 121), a trial of it summarily would be fatal to the validity of the entire proceedings and any consequential order that might fall to be made for then a mistrial would result.

It was also contended, on behalf of the State, that before the hearing of any evidence in this case, the accused had by his counsel agreed with the learned Director of Public Prosecutions that the trial should be conducted summarily, and inferentially, therefore, that the accused had waived any apparent right to demand a trial by indictment.

In this respect it must be pointed out that there is no waiver at all, if that right existed: The maxim, cuilibet licet renuntiare juri pro se introducto; as stated in Maxwell on Interpretation of Statutes (10th ed.) at p. 388:

“Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy,” has no application. Because consent cannot give jurisdiction and therefore, any statutory objection which goes to the jurisdiction, by way of procedure, does not admit of waiver; for where the procedure by trial on indictment as required by statute is a condition precedent to the jurisdiction of the court, compliance cannot be dispensed with, and it is only when this condition precedent is impossible that the jurisdiction fails.

It is important to observe this principle, as couched in the following words used by the learned editors of the Maxwell on the Interpretation of statutes (supra) at pp. 391-392:

“It is said to be a general understanding in the profession that a prisoner can consent to nothing, at least, in the course of his trial. In criminal matters, a person cannot waive what the law requires. Where, upon a trial for felony, the jury was

[p.110] of [1968] GLR 93 discharged and, at the new trial, some of the witnesses, after being sworn, had their evidence read over to them by the judge from his notes and the Counsel for the Crown and the prisoner had afterwards liberty to examine and cross-examine them, it was held that this course of proceeding vitiated the trial and that the consent or acquiescence of the prisoner did not cure that irregularity. The object of a Criminal trial, it was observed, was the administration of justice in a course as free from doubt or chance of miscarriage as human administration of it can be, not the interests of either party.”

Vide R. v. Bertrand (1867) L. R. 1 P.C. 520; also dictum of Smith J. in Park Gate Iron Co. v. Coates (1870) L. R. 5 C.P. 634 at p. 639.

On the basis that this right, to be tried by indictment only, did exist before the proceedings started, this principle completely staves off the argument advanced by the Director of Public Prosecutions that the accused had no right of choice of the procedure by which he might be tried and that if the procedure by indictment be ordered by this court to be adopted for the trial, it would entail inconvenience to the first prosecution witness (Mr. Davies) by his having to come down from overseas again, and also to the State by its having to be saddled with new and additional expense for the passage, and housing of the witness. I have never yet known of the argument ab inconveniente being applied to procedure in criminal law. If the accused is liable to be tried by only one express procedural mode of trial, he has a corresponding right to insist upon his being made to stand his trial by that procedure. Where even the appropriate procedure was being adopted, the Court of Criminal Appeal had this to say in R. v. Clewer (1953) 37 Cr.App.R. 37 at p. 40, “the first and most important thing for the administration of the criminal law is that it should appear that the prisoner is having a fair trial, and that he should not be left with any sense of injustice on the ground that his case has not been fairly put before the jury.”

I am therefore unable to countenance this argument of inconvenience advanced by the learned Director of Public Prosecutions.

There still remains a further argument, proffered from either side, to be considered in this matter, as touching the provisions under section 179 of Act 30.

Learned counsel for the accused did call the attention of the court to section 179 and contended that at this stage of the proceedings the provisions thereunder were germane to this question as to what is the proper procedural mode to be adopted in the trial of this case.

[p.111] of [1968] GLR 93

Learned counsel for the State in that regard, by a casual remark pertinent to the provisions under that section, said that the power of the Attorney-General to act in accordance with those provisions had impliedly been assigned to him in his capacity as the Director of Public Prosecutions, and that, if the provisions under that section were to be applied, he would still insist on the trial proceeding summarily. Now, section 179 of Act 30 states in its terms:

“179. (1) If it appears to the Court at any stage of a summary trial of an offence which is also punishable on indictment that the case is unsuitable for summary trial the Court may inform the Attorney-General of its opinion and adjourn the proceedings for not more than fifteen days to await his reply.

(2) If, within that time, the Court is notified by or on behalf of the Attorney-General that it is proposed to prosecute the accused on indictment the Court shall follow the procedure laid down in Part IV, and, in the case of a trial by the High Court or a Circuit Court, shall have the powers of a District Court under that Part.

(3) In any other case, the Court shall proceed with the summary trial of the offence.”

The remark made by the Director of Public Prosecutions that, if the court were to use the provisions of subsection (1) of section 179 above referred to, he would insist on the summary trial being proceeded with, appears to be based by him upon the opening words of sub-section (3) thereof, that is to say, “In any other case.” With due deference to the learned Director of Public Prosecutions, if he in that regard appeared to base this insistence upon a construction on those opening words to the effect that the phrase “In any other case” operates to mean “in the event of a refusal or reluctance by the Attorney-General to prosecute the case by the procedure on indictment,” the court shall proceed with the summary trial of the offence, if such insistence would be based upon that construction, I do unhesitatingly remark that that construction would be devoid of any merit.

First, it must be pointed out that section 179 deals with “a summary trial of an offence which is also punishable on indictment”-a Summary trail of an offence “triable summarily or on indictment,” and that it has no room for any offence which is expressly or by necessary implication of law to be tried only on indictment.

Second, in cases to which subsection (1) of section 179 of Act 30 applies, it is forcefully proffered as the view of this court that upon invocation of that subsection (1), the Attorney-General must accept the opinion of the court and must proceed by the alternative

[p.112] of [1968] GLR 93 procedure by indictment as borne by the opinion of the court communicated to him; for it is, in this respect, the opinion of the court that carries, and not the desire of the Attorney-General. In this regard, it is necessary to advert to the wording of the predecessor of section 179 of Act 30, which was section 176 of the Criminal Procedure Code, Cap. 10 (1951 Rev.), which has now been repealed by section 413 of Act 30.

Section 176 of Cap. 10 described above stated:

“Where in the course of summary trial of an indictable offence it appears to the Court at any stage of the proceedings that the case is one which is of a character which renders it undesirable that it should be tried summarily the Court shall stop further proceedings and expunge the plea and shall thereupon proceed de novo in the manner provided in Part V of this Code for enquiring into charges preliminary to committal for trial upon information.”

This situation demands attention because the decision to proceed by the preliminary investigation for committal at any stage of the summary proceedings was that of the court only, under that section, and the Attorney-General could not insist on the trial by summary proceedings under that section.

This is the true position under section 179 of Act 30. The reason for the requirement in subsection (1) thereof that the court may inform the Attorney-General of the unsuitability of the case to be proceeded with summarily, is that under the new procedure for committal of cases for trial on indictment, the Attorney-General or some person authorised by him, now prepares the bill of indictment and the summary of evidence, signs them and places them before the committing court-vide sections 181 to 183 of Act 30. And that is the reason, in section 179 (1) for the provision that in the circumstances referred to the court may adjourn the proceedings for not more than fifteen days, and another reason is that during a summary trial, by virtue of section 169 (2) of Act 30, adjournment shall not exceed fifteen days, if the accused is on bail, and not more than seven days if the accused is not on bail but in custody.

While it must be upheld that in the case of an offence triable either summarily or on indictment, the accused has no right of choice of the procedure-vide Inspector-General of Police v. Lartey (1934) 2 W.A.C.A. 182-in this connection the decision as to the procedure to be adopted must be based on the opinion of the court.

That this is so is clear from the wording of subsection (2) of section 179 which is silent upon what should happen should the

[p.113] of [1968] GLR 93

Attorney-General be disinclined to the view of the court, but clear as to what happens when the subsequent proposal of the Attorney-General is in consonance with the opinion of the court as to the case being unsuitable to be tried summarily. Inferentially, therefore, by implication of law, and by virtue of his being the leader of the Bar and, therefore, as a member of the Bar, he is an officer of the court and he therefore owes a duty to the court by respecting the opinion of the court. The Attorney-General, in that wise, should not disregard the views or opinion of the court by not paying due regard to it.

I have exhaustively endeavoured to touch almost all, if not all, of the arguments advanced from either side and I must conclude with less, if less be possible.

After thus steering through the arguments and contentions advanced, I have come to a conclusion, by holding the view that (a) this is a case triable only on indictment, and (b) that, in any event,it is not properly before this court.

I am therefore unable to proceed with the summary trial until an event, not intrinsically improbable, should convert that view into an unreality.

My findings pertinent to that view are:

(1) The charges before me are triable on indictment only, and that they do not fall within the ambit of section 2 (3) of Act 30 to make them either “triable on indictment or summarily.”

(2) The case is not properly before the High Court as it is now for trial by any one of the two modes of procedure-for it was not committed by a district court for trial on indictment; and that, even if it is a hybrid offence as triable either on indictment or summarily,

(3) It is irregular for the proceedings to be instituted initially before the High Court by merely preferring the charges before the court, without any order of transfer by his lordship the Chief Justice transferring it, by virtue of the provisions of paragraph 38 of N.L.C.D. 84, to this court, from either a district court or a circuit court;

(4) And that his lordship the Chief Justice has not nominated me to sit as a district magistrate for the district from which the case purports to have arisen, even if at all it is legally triable summarily.

(Vide N.L.C.D. 84, proviso to paragraph 46 thereof.)

Therefore, as this issue raises a question of exceptional procedural importance, I hereby unhesitatingly grant leave to either side to take a measure appropriate to the situation. If any interest is taken by any or both sides within the prescribed period, the proceedings in [p.114] of [1968] GLR 93 this case must be considered as stayed in the meantime; otherwise, the case itself must hereby be considered, at the end of that period, as struck out, for want of regularity in procedure merely. DECISION Proceedings stayed for want of jurisdiction.

F.S.T.