OSEI v. THE REPUBLIC (NO.2) [1971] 1 GLR 449

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 17 MARCH 1971

BEFORE: HAYFRON-BENJAMIN J.

CASES REFERRED TO

(1) Akowuah v. Commissioner of Police [1964] G.L.R. 475, S.C.

(2) State v. Boahene (Yao), Supreme Court, 15 April 1965, unreported; digested in (1965) C.C. 125.

(3) Andoh v. The Republic, Court of Appeal, 23 January 1970, unreported; digested in (1970) C.C. 42.

NATURE OF PROCEEDINGS

APPEAL against a conviction for selling commodities at a price which exceeded the maximum price as stipulated in an executive instrument contrary to section 4 (1) of Act 113. The facts are fully set out in the judgment of the court.

COUNSEL

Osei-Nti for the appellant.

Mrs. Anson, State Attorney, for the respondent.

JUDGMENT OF HAYFRON-BENJAMIN J.

This is an appeal from the conviction and sentence of the accused by the District Magistrate, sitting at James Town Mantse We, Accra, on 10 July 1970. The accused was charged under section 4 (1) of the Control of Prices Act, 1962 (Act 113), with selling above the control price. The prosecution’s case is that a petty trader by the name of Joseph Mensah went to the shop of the accused and bought one carton of sugar and one case of sardines from Catherine Tetteh who was then keeping the shop in the absence of the accused. When he came out of the shop with these goods he was met by a plain clothes policeman who asked him where he bought the goods and at what price. He informed this policeman who took him to the shop of the accused. There Catherine Tetteh confirmed that she sold the sardines at N¢11.80 and the sugar at N¢6.20. The policeman then disclosed his identity to her and threatened to arrest her. Meanwhile the accused came to the shop, claimed ownership of the store, and started to beg the police officer. The police officer then instructed the accused to report at the price control unit at the police station. He then took Joseph Mensah and the goods to the price control unit and made a report.

[p.451] of [1971] 1 GLR 449

The accused was subsequently charged with the offence of selling above the control price. The trial magistrate accepted and believed the facts as adduced by the prosecution, and I am satisfied that there was sufficient evidence to establish these facts. Sitting as I am, as an appellate tribunal, I am not inclined in the circumstances to disturb these findings of facts, and I confirm and accept them too. This appeal, however, raises some important points of law concerning the liberty of the subject. The statement of the offence on the charge sheet states: “Selling above Control Price — Contrary to section 4 (1) of Act 113/62.” There was no reference to the instrument fixing the maximum prices. The particulars of the offence are stated as follows:

“Osei Jonas, Trader, For that you on the 12th day of May, 1970 at Okaishie, Accra, in the Accra Magisterial

District and within the jurisdiction of this Court did sell per your agent, one Catherine Tetteh, one carton of Bouchon Sugar at N¢6.20 instead of N¢6.00 and one carton of Conca Sardines at N¢11.80 instead of N¢11.20 to one Joseph Mensah, thus making an illegal profit of 80 n.p. in all.”

The minister responsible for trade has exercised his powers under the Act and by executive instrument has fixed the maximum prices of a number of goods. The prosecution contends that the accused sold above the prices fixed by the minister.

The question for consideration is whether the accused was given sufficient information on the charge sheet as to the nature of the offence. As far as the court is concerned it is the charge sheet that gives information to the accused as to the nature of the charge and not what any policeman tells him at the time of his arrest. The prosecution can, after all, substitute charges just before the trial or even amend the charges during the trial, and the accused must be informed of these changes. Article 20 (2) (c) of the Constitution provides (the emphasis is mine):

“20. (2) Every person who is charged with a criminal offence …

(c) shall be informed immediately in a language that he understands, and in detail, of the nature of the offence charged; . .”

I am of the view that this provision refers to the charges as they appear on the charge sheet on which the accused is tried.

The statutory provisions relating to the formulation of charges and indictments, etc. and for affording the accused person information of the offence for which he stands charged that were in force before the coming into force of the Constitution, 1969, are to be found in the Criminal Procedure Code, 1960 (Act 30), as amended by the Criminal Procedure Code (Amendment) Act, 1965 (Act 261). Sections 1 and 2 of Act 261 provide:

“1. The Criminal Procedure Code, 1960 (Act 30) (hereafter in this Act referred to as the principal Act) is hereby amended by the substitution for subsections (1) and (2) of section 112 thereof of the following:-

[p.452] of [1971] 1 GLR 449

‘(1) Subject to the special rules as to indictments hereinafter mentioned, every charge, complaint, summons, warrant or other document laid, issued or made for the purpose of or in connection with any proceedings before any Court for an offence shall be sufficient if it contains a statement of the offence with which the accused person is charged together with such particulars as may be necessary for giving reasonable information as to the nature of the charge and notwithstanding any rule of law to the contrary it shall not be necessary for it to contain any further particulars than the said particulars.

(2) The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence and if the offence is one created by an enactment, may contain a reference to the enactment.’

2. The principal Act is hereby amended by the substitution for subsection, (2) of section 202 thereof of the following: —

‘(2) Every indictment shall contain and shall be sufficient if it contains a statement of the offence with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge and notwithstanding any rule of law to the contrary, it shall not be necessary for it to contain any further particulars than the said particulars’.”

These amendments contained in Act 261 came into force on the same day, i.e. 9 February 1965, as the

Courts (Amendment) Act, 1965 (Act 262), which was designed to prevent appeals against convictions succeeding on purely or mainly technical and procedural points or grounds. The two Acts may be said to form a legislative scheme. Their effect was to alter the law governing the framing of charges and indictments as laid down in the important case of Akowuah v. Commissioner of Police [1964] G.L.R. 475, S.C. Barely two months after these amendments had been enacted they in turn came up for interpretation in the case of State v. Boahene (Yao), Supreme Court, 15 April 1965, unreported; digested in (1965) C.C. 125. Both these decisions were declared by the Court of Appeal as having been given per incuriam in the case of Andoh v. The Republic, 23 January 1970, unreported; digested in (1970) C.C. 42. A consideration of these important cases, each of which is a milestone in the development of criminal procedure under the colonial and Nkrumah regimes may be interesting to a research and academic lawyer. It may reveal the methods by which English criminal procedures relating to information given to suspects as to the charges on which they are to be tried, were adapted to a largely illiterate or semi-literate population. It will, however, largely be an exercise in history. The Constitution now categorically confers a right on a suspect to be informed in detail of the charge that is brought against him. A correlative duty is imposed on all law enforcement officers and particularly those engaged in framing charges to set out the details of the offence. I am of the view that failure to do so is fatal and cannot be cured by the evidence. To hold

[p.453] of [1971] 1 GLR 449 otherwise and say that an appeal court can dismiss an appeal against a conviction, where this right was infringed, on the ground that no substantial miscarriage of justice has been occasioned, would be to make nonsense of this Constitutional provision. I would even venture to say that where the accused pleads guilty to the charge, and the record discloses that the charge does not set out in detail the nature of the offence, the appellate court cannot apply the proviso. Speaking for myself, I would say that I am not prepared to treat the fundamental rights as set out in Chapter 4 of the Constitution as a coronation oath to be applied only by the grace of the courts and to be enjoyed as a bounty from some authority. They are rights inherent in the people of Ghana as human beings, and cannot be derogated from by any law. Section 4 (1) of the Control of Prices Act, 1962 (Act 113), under which the accused was charged provides that (the emphasis is mine):

“4. (1) Any person who employs in his shop, store or other place of trade or business any agent, clerk, servant or other person shall be answerable for the acts of the agent, clerk, servant or other person done in the course of the trade or business of that person and accordingly, if the agent, servant, clerk or other person commits any act which is, or which would, but for any defence available to the agent, clerk, servant or other person under this Act or under any regulations made thereunder, be an offence under this Act or under any regulations made thereunder, the employer shall, subject to the provisions of this section, be guilty of that offence.”

This section introduces the concept of vicarious liability into the criminal law. An important element of criminality is therefore the employment of one person by the accused. It is therefore an essential detail of this offence that the accused should have employed another person. While agency can arise by operation of law, employment is always an act of the parties. To say that A. is the agent of B. does not necessarily imply that A. is employed as such by B. I am of the view, therefore, that the particulars of the offence should have stated quite clearly that the accused employed Catherine Tetteh as his agent, not merely that Catherine Tetteh was the agent of the accused. Furthermore, the offence created by section 4 (1) deals specifically with shop-keepers. Nowhere on the charge sheet is there an averment that the accused owned a shop or a place of business or that Catherine Tetteh was employed as his agent in this shop. I am of the view that this is an essential ingredient of the offence. On these grounds alone I would allow the appeal. It is therefore not necessary for this court to examine the other questions which also arise for determination. These questions are: (a) whether by virtue of article 28 (1) of the Constitution, which guarantees all rights inherent in the democracy, the Control of Prices Act, 1962, is invalid as being an infringement on the right to freedom of contract; (b) whether the right to freedom of contract is itself inherent in democracy; (c) the meaning of democracy as used in article 28 (1) of the Constitution; (d) even if the basic principles of the Control of Prices Act, 1962, are [p.454] of [1971] 1 GLR 449 themselves in conformity with the provisions of the Constitution, whether the power given to the police and the armed forces to enter shops and other premises are not in conflict with the provisions of article 19 of the Constitution which guarantees the rights to privacy of a person and his premises; and finally (e) whether the Control of Prices Act, 1962, being part of the existing law, should not be read with such modifications and exceptions as would bring it into conformity with the Constitution. These questions may arise directly in other cases for determination. I am now content in allowing the appeal on the ground that the accused’s right to be given detailed information as to the nature of the offence was infringed. I set aside the conviction and enter an order acquitting the accused. Any fine paid by the accused should be refunded forthwith.

DECISION

Appeal allowed.

Conviction set aside.

T. G. K.