MIREKU AND OTHERS vs. THE REPUBLIC [1997-98] 1 GLR 915

CASES REFERRED TO

(1) Seidu v The Republic [1978] GLR 65.

(2) Brefer v The Republic [1980] GLR 679.

NATURE OF PROCEEDINGS

APPLICATION for bail pending trial for murder. The facts are fully set out in the ruling.

COUNSEL

E Owusu-Fordjour for the applicants.

Osafo Sampong, Chief State Attorney, for the Republic.

JUDGMENT OF RICHARD APALOO J.

In this application for bail the applicants, two serving police officers and a police labourer deposed to the affidavits in support of their application that they were arrested on 24 February 1997 in connection with the murder of one Daniel Ghann who died in police cells at the Akropong Akwapim Police Station on 14 February 1997. The first applicant was the inspector in charge of the police station, the second was the detective sergeant and the third being a labourer employed by the Ghana Police Service.

It appears from the facts at the disposal of the court that the said Daniel Ghann had arrived at Akropong from Accra and had gone to his girlfriend and had threatened to kill her. When the report reached the first applicant, he caused Ghann’s arrest, kept him in cells under the control of the second applicant who was on duty at the material time. The next morning Ghann was found dead, hanging in the cells with a police blanket around his neck. All three denied molesting Ghann whiles he was in the cells. The first applicant, however, explained that at about 8 pm on 13 February 1997, that is to say, on the evening of Ghann’s arrest, he had information that the arrested person had become violent and was banging at the door of the cells desiring to come out. The first

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applicant entered the cells and was able to calm him down. The application for bail was brought under article 14(4) of the Constitution, 1992.

In opposing the application, Mr. Osafo Sampong, Chief State Attorney at the Office of the Attorney-General, refused to disclose to this court the reasons for the arrest of the applicants. The court prompted and did its best to elicit the information from the Chief State Attorney without success. The court was prepared to listen to the facts in the absence of an affidavit from the Law Office but the attorney will not budge an inch from the position he had taken. The Chief State Attorney’s view was that the Criminal Procedure Code, 1960 (Act 30), s 96(7) as amended by the Criminal Code (Amendment) Decree, 1975 (NRCD 309) had taken away the power of the court to grant bail in murder cases as well as in cases of treason, subversion, robbery, hijacking, piracy and escape from lawful custody. The attorney, however, notified the court that the bill of indictment in respect of the applicants is ready and that they would soon be arraigned before the tribunal for committal to the High Court on a charge of murder.

There is no doubt that the jurisdiction of the court is conferred by statute and it is also admitted that it is only a statute that can take away such jurisdiction. The power of the High Court to grant bail in all criminal matters has been recognised since the advent of the court system. Section 96(7) of Act 30 as amended certainly recognised this fact and ousted the jurisdiction of the court as stated in NRCD 309 in 1975. With the coming into force of our Constitution, 1992, it is open to debate whether or not section 96(7) of Act 30 as amended is still good law and the same has not been modified by the Constitution, 1992.

By the operation of articles 14(4), 19(1) and 140(2) of the Constitution, 1992 the position appears to have changed and I refer to these articles in extenso:

“14 (4) Where a person arrested, restricted or detained under paragraph (a) or (b) of clause (3) of this article is not tried within a reasonable time, then without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular conditions reasonably

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necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial …

19. (1) A person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court …

140. (2) The High Court shall have jurisdiction to enforce the Fundamental Human Rights and Freedoms guaranteed by this Constitution.”

On a careful examination of the three articles read together, I am left in no doubt that the Constitution, 1992 recognises the power of the High Court to grant bail when there has been unreasonable delay in bringing an accused for trial. It is also noted that the Constitution, 1992 does not place any limitations whatsoever as to the offences which should attract bail. It follows, therefore, that bail shall be granted in respect of all offences known to the criminal law if the person arrested is not tried within a reasonable time, upon conditions reasonably necessary to ensure that he appears at a later date for his trial.

Article 140(1) of the Constitution, 1992 confers on the High Court jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by the Constitution or any other law. The Courts Act, 1993 (Act 459), by section 15 thereof restated unambiguously the jurisdiction of the High Court. It is my view that with such extensive jurisdiction in all matters both civil and criminal, the High Court will be shirking its duties to the State by refusing to rise up to the challenge posed in proceedings related to bail. An application for bail is basically one to restore the liberty of the citizen as enshrined in the Constitution, 1992. To take refuge under section 96(7) of Act 30 as amended by NRCD 309, s 2 will not, in my view, be an answer to the problem posed in the application. In assessing whether to confine the citizen, a court ought to consider the interest of society as well as those of the applicant. It is my view, therefore, that this court having jurisdiction to try the accused persons for murder, has similar jurisdiction to grant or refuse bail, notwithstanding section 2 of NRCD 309. I shall comment that section 96(7) of Act 30 as amended by section 2 of NRCD 309 must be restricted to its historical perspective and circumstances which led to its enac

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ent in 1975. The Decree by necessary implication will give way now to the Constitution, 1992.

The principles upon which an accused person may be admitted to bail have been well articulated in various decisions by the courts over the years. Among the factors which a court must consider are: (1) the nature of the offence charged; (2) the type of evidence at the disposal of the prosecution; (3) the severity of the punishment if the charge is proved; and (4) whether or not the accused is likely to appear to stand trial; see Seidu v The Republic [1978] GLR 65 and also Brefor v The Republic [1980] GLR 679. There is no doubt that the offence of murder for which the applicants are being held is a first degree felony and is considered to be a serious crime. The penalty is death or at least life imprisonment, depending on the manner the crime was committed. An accused person facing such a charge may not re-appear for his trial if the evidence against him is water tight.

The Republic, as earlier stated, refused to furnish the court with the facts leading to the preferment of the charge of murder against the applicants. This court has reminded itself that this application is limited to bail only and should not be extended to the realm of a trial. However, I consider the refusal of the Republic to let the court know the basis for laying the charge and thereby not permitting the court to assess whether or not there is in existence any link between the applicants and the crime charged, as an unfortunate development in our criminal jurisprudence which ought not be encouraged. A judicial function such as granting bail entails the balancing of the various interests at play and taking a decision in the interest of the common good which will satisfy the parties. Where the court is prevented from making this assessment, then its decision becomes more of an administrative decision than a judicial one. I hold, therefore, that the refusal of the State to allow the court to assess the nature of the evidence marshalled against the applicants, leaves the court with no other option than relying on the version of the applicants as to the facts. Based on the facts preferred by the applicants, I have come to the conclusion that I am satisfied that this application must succeed and I shall accordingly admit the applicants to bail, which I hereby do. Each applicant is admitted to bail in the sum of ¢10 million to be justified by one surety in like sum.

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While on bail, the applicants shall report to the crime officer in charge of the case every first Monday of the month at 10.00 am until they shall be committed for trial. Each applicant shall not leave the jurisdiction of the High Court without leave of the crime officer. Ordered accordingly.

DECISION

Application granted.