YEBBI & AVALIFO vs. THE REPUBLIC [1997-1998] 2 GLR 825

CASES REFERRED TO

(1) Williams v Summerfield [1972] 2 QB 513; [1972] 3 WLR 131 [1972] 2 All ER 1334.

(2) R v Marlborough Street Stipendiary Magistrate; Ex parte Simpson (1980) 70 Cr App R 291.

(3) State v Adabo [1961] GLR 321, SC.

(4) R v Nottingham City Justices; Ex parte Lynn (1984) 79 Cr App R 238.

(5) R v Kuree (1941) 7 WACA 175.

APPEAL by appellants against the ruling of the Accra Regional Tribunal granting an application by the prosecutor in a criminal trial for an order under section 58 of the Courts Act, 1993 (Act 459) compelling the managers of four named banks and the paymaster-general and controller of the Ghana Police Service to produce documents in relation to the case and to give evidence on them. The facts are sufficiently set out in the judgment of Forsteir JA.

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Capt (Rtd) Nkrabea Effah Darteh for the appellants.

Gyambiby, Senior State Attorney, for the Republic.

Forster JA. The appellants are currently standing trial at the Regional Tribunal, Greater Accra on two counts of conspiracy to steal and stealing, in respect of the amount of ¢100 million “of which they are not the owners.” In the course of trial, and after the prosecution had called ten witnesses, the prosecuting attorney applied under section 58 of the Courts Act, 1993 (Act 459) for an order summoning personnel of four named banks to produce documents relating to the savings accounts held in the names of the appellants, respectively, with those banks. The application also requested that the paymaster-general and controller of the Ghana Police Service be summoned to provide information on the salaries of the two appellants.

The application was granted over the objection of counsel foir the appellants. On 18 November 1997, a day after the delivering of the ruling, the appellants filed the present appeal. In theiri grounds of appeal they contended:

“(i) That though’ the order is discretionary, its exercise is subject to all the principles of law.

(ii) That at the time of making the application none of the ten witnesses who testified have said any piece of evidence to support (sic) a charge of stealing.

(iii) That the order as granted creates the unmistakable impression that the court is helping the prosecution to fish for information to persecute the acciused persons.”

The appellants urged this court to reverse the ruling. Arguing the appeal, Mr Nkrabea Effah Darteh submitted that the applicat ion could have properly been made only under section 176 of the Evidence Decree, 1975 (NRCD 323). He further submitted that even under the provisions of section 176 (3) of NRCD 323 a court should make the order only where it finds that fairness requires such a compulsion. In the instant case, he argued, the fact that none of the witnesses so far called by the prosecution had given any evidence connecting or linking the accused persons to the cnrime, made the ruling most irregular.

The question that must be addressed in this appeal is whethetr for an order compelling bank officials to attend court and give evidence, section 58 of Act 459 empowers the court, either sua

[p.829] of [1997-1998] 2 GLR 825 sponte or on the application of any party, to summon any person to attend court and give evidence or to produce any document in his possession, or excerpts from it, “subject to any enactment or rule of law.”

A witness so summoned to give evidence or to produce a document is presumptively both competent and compellable. Failure to comply with the summons is a contempt and attracts a penalty of imprisonment or a fine. A person summoned to produce a document is required to produce the original, subject to the exceptions provided in sections 167, 168, 169, 171 and 172 of NRCD 323 which are not in issue here.

Section 58 of Act 459 recognises that where any other enactment qualifies or provides for summoning witnesses in specific circumstances or situations, then it is that latter enactment that must govern or regulate the summoning of witnesses by the court. In my view, where the order is to compel personnel of a bank to attend court and testify or produce documents, the appropriate governing provision is section 176 of NRCD 323 and not section 58 of Act 459. Section 176 (3) of NRCD 323 provides as follows:

“(3) A representative of a bank in any action to which bank is not a party shall not be compelled to produce original records of the bank or to appear as a witness concerning them unless the court finds that fairness requires such a compulsion.”

The provision under consideration is in identical termnns with section 6 of the English Bankers’ Books Evidence Act, 1879.

In criminal proceedings such as the present, an order under section 176 the NRCD 323 is a serious interference with the liberty of the subject, and the court must satisfy itself that the application is more than a mere fishing expedition by considering whether the prosecution had other evidence to support the charge. In Williams v Summerfield [1972] 2 All ER 1334, a police officeir had issued summonses against the appellants for theft. He sought order under section 7 of the Bankers’ Book Evidence Act, 1879 that he be at liberty to inspect and take copies of certain entries in bankers’ books relating to accounts of the appellants. The justices having granted the order sought, the appellants appealed contend ing that such an order amounted to a means of requiring them tco incriminate themselves. The appeal was dismissed. Lord Widgery CJ recognised at 1338 that:

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“. . . an order under section 7 can be a very serious interferance with the liberty of the subject. It can be a gross invasion of privacy; it is an order which clearly must only be made after the most careful thought and on the clearest grounds.”

Section 7 of the English Act is enacted in section 176 (4) of NRCD 323 to ensure that such an order is clearly warranted. Lord Widgery considered some guiding considerations in Williams v Summerfield (supra). He said at 1338:

“I think that in criminal proceedings, justices, should always recognise the care with which the jurisdiction should be exercised; should always take into account amongst other things whether there is other evidence in the possession of the prosecution to support the charge; or whether the application under section 7 is a fishing expedition in the hope of finding some material on which the charge can be hung.”

See also R v Marlborough Street Stipendiary Magistrate; Ex parte Simpson (1980) 70 Cr App R 291. It is in the light of these guiding pnrinciples that the propriety of the orders must be considered, for it is my view that these are equally relevant to any orders made under section 176 of NRCD 323, an order under subsection 4 being just one. In this case, it must therefore clearly be shown that the prosecution was not embarking on some speculative and fishing expedition in the hope that some incriminating material may be discovered to shore up an otherwise hopeless prosecution case.

Mr Gyambiby answered the challenge and produced certified photocopy extracts from the record of proceedings by which he intended to demonstrate that there was good cause for the order on the strength of the evidence of some prosecution witnesses. First was the first prosecution witness, Daniel Komla Tettey. He testified (folio 216) that he and the appellants were guards at the residence of the minister of foreign affairs from 1993 to 1995, when he left the Police Service. He was not in the country when the elections were held in 1992 as he was on duty in Cambodia and returned to Ghana in October 1993. He said that in a conversation sometime with the first appellant, Yebbi, about the elections, the latter told him that dunring the campaign period:

[p.831] of [1997-1998] 2 GLR 825 • .

“… the NDC party brought a lot of money to the minister’s residence for the campaign and that after the elections they did not get anything out of that money . . . and he said that he realised that he was foolish when he failed to help himself to any of that money and that if that same thing will happen in the 1996 elections he would not be that foolish any more. He said he would do anything to help himself to some of the money. I advised him that as a policeman he was duty bound to protect life and property. The conversation ended on that note of advice.”

The second prosecution witness, Barka Torton Rapheal, was a herbalist. He was brought to Accra by a brother of the first appellant, Yebbi, and he met the appellant in custody at the Can tonments Police Station cells. In their conversation, the first appellant told the second prosecution witness: “that he was living with a bIig man called Obed Asamoah and that it was his money that he stole and the man was worrying him. The first accused did not tell me any amount. He told me that the assignment (to kill the big man and a senior police officer) which his brother gave me was approved by him so I should go ahead. So I asked him 1’how he wanted one to proceed with the assignment. According to him if the big man did not die he would not be free.”

As regards payment for the services of the second prosecution witness, according to the witness, the first appellant assured him, saying: “he had so much money in the bank that if all were cashed out I cannot carry it . . .”

The tenth prosecution witness, Ruben Cudjoe Apeke had known the appellants since some two or three years before he gave evidence. They had then introduced themselves as police guards at the residence of Dr Asamoah. He spoke of several subsequent occasions when he met the second appellant or the latter invited him. The tenth prosecution witness said that in July 1997, having read about he case involving the first and second appellants in the print media, he went to the second appellant at the Achimota Police Barracks where the appellant narrated all that had occurred until his arrest. The witness then continued: “He told me he had nothing against Dr Obed Asamoah and that the first and second appellants still considered him as

[p.832] of [1997-1998] 2 GLR 825 their father; and that even when Dr Asamoah detected the loss of money, if he had called them, the first appellant and second appellants, they could have settled the matter amicably but all they heard was the request for declaration of assets and subse quent detention. If I felt the executive of the party were concerned and they could get the case out of court they would be very happy. I reassured him that I can talk to my immediate boss to see what could be done to get the case settled out of court; there he confessed to me that they took money from Dr Obed Asamoah’s house. He did not mention the amount nor did he tell me when they took the money. The second appellant told me that if I am able to secure the withdrawal of the case from court they would give me ¢10 million.”

From the evidence of the first, second and tenth prosecution witnesses, it is clearly shown that both appellants at one time or another, confessed to the theft of some money from Dr Obed Asamoah’s house. They were by the evidence of these witnesses amply linked with the theft of the ¢1 00 million as charged against them. And I am satisfied that had the application been pursued under second 176 ofrNRCD 323, in the circumstances of this case, it could not have been said to be a mere fishing expedition.

From the foregoing it is recognised that the orders made by the tribunal were deficient; they were made under a wrong enactment. But it must be recognised that this error was only a procedural irregularity which does not justify a reversal of the order. Section 406 (1) (a) of the Criminal Procedure Code, 1960 (Act 30) provides that no finding, sentence or order of a court of competent jurisdiction: “. . . shall be reversed . . . on appeal or review on account — (a) of any error, omission or irregularity in the . . . order, judgment or other proceedings before or during the trial . . . unless such error, omission, irregularity or misdirection has in fact occasioned a substantial miscarriage of justice.”

The application of this provision was in issue in the case of State v Adabo [1961]1 GLR 321, SC. In that case a charge of murder had been laid under section 238 of the Cñriminal code, cap 9 (1951 Rev) instead of section 46 of the Criminal code, 1960 (Act 29) Dismissing the appeal against conviction, Korsah CJ said at 323:

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“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 . . . ”

The court then concluded that no substantial miscarriage of justice had actually occurred. In the instant case, the only procedural irregularity was that the order should have been made under section 176 of NRCD 323 and not section 58 of Act 459. There is more than sufficient evidence already led by the prosecution to justify an order under section 176 of NRCD 323. In thesce circumstances fairness demands that the irregularity must not bce employed to frustrate the course of justice, particularly when no miscarriage of justice was caused to the appellants. The appeal is accordingly dismissed, notwithstanding the error, which in my view was indeed a harmless one.

To remedy the irregularity, this court deems it necessary to amend the order of the trial tribunal made on 14 November 1997. The authority of the Court of Appeal to amend such errors is provided in article 137 (3) of the Constitution, 1992. It is provided:

“(3) For purposes of hearing and dejtermining an appeal within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any appeal . . . the Court of Appeal should have all the powers, authority and jurisdictiomn vested in the court from which the appeal is brought.”

The ruling of the trial tribunal is accordingly amended as follows:

“The registrar of this tribunal shall issue the appropriate summonses to all the managers of the banks listed in para graphs (1), (2), (3) and (4) of the prosecutor’s applications to appear before the tribunal with copies of statements of the savings accounts of the accused persons speciflied in the application. Copies of such statements must cover only the period September 1996 to April 1997.”

I need hardly add that this court is not here concerned with the question of admissibility or weight of evidence: see R v

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Nottingham City Justices, Ex parte Lynn (1984) 79 Cr App R 238. In my view an order evenS under section 58 of Act 459 is most inappropriate to compel the paymaster-general and controller of Ghana Police Service to provide information on the salary of each accused person. Section 58 of Act 459 which allows the intervention of the court in bringing witnesses to give evidence may only be invoked in exceptional circumstances since, primarily, it is the duty of parties to take process to compel the attendance of their witnesses. If a party has reason to believe that a potential wit ness may not attend to give evidence, his best course is to compel his attendance by the normal judicial process – —the subpoena.

In the instant case, no showing had been made by the applicant that warranted resort 2to the compulsive intervention of the tribunal itself. It is open to the prosçecutor to obtain the attendance of the paymaster-general by the expedience of a subpoena which may also request him to produce copies of the official documents as required by the prosecutor and in conforming with the provisions of section 175 of the Evidence Decree.

Baddoo JA. The two appellants herein, have been charged with two counts of conspiracy to steal and stealing under sections 23 (1) and 124 (1) of the Criminal Code, 1960 (Act 29) before the Regional Tribunal, Accra.

In the course of the trial, the prosecution made an application on 4 November 1997 requesting the court to act under section 58 of the Courts Act, 1993 (Act 459), to summon:

“(1) The manager of the Standard Charted Bank, Abeka and Legon branches respectively, to produce the savings accounts of Fedelix Kwame Yebbi, No ¢01214835201 and Anthony Kwesi Avalifo, No 12018757601.

(2) The bank manager of Barclays Bank, Ghana Ltd, Legon and Achimota branches respectively, to produce the savings accounts of Fedelix Kwame Yebbi, No 4234836 and Anthony Kwesi Avalifo, No 3525282.

(3) The manager of Ghana Commercial Bank, Kaneshie Industrial Area Branch to produce the statement on the savings account of Fedelix Yebbi,. No 11624.

(4) The manager of Social Security Bank Ltd, Accra New Town Branch to produce the statement on the savings account of Anthony Kwesi Avalifo, No 5340648007

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(5) The paymaster-general and controller of Ghana Police Service to provide information on the salary of the two accused persons, Kwame Yebbi and Kwasi Avalifo,

The application was vehemently opposed by the accused persons, now the appellants herein. But at the end of the day, the court ruled that the persons named above should be summoned to produce the documents requested and also to testify.

The appellants aggrieved by this ruling have appealed to this court on three grounds of appeal, namely:

“(1) That though the order is discretionary, its exercise is subject to all the principles of law.

(2) That at the time of making the application none of the ten witnesses who have testified have said any piece of evidence to support a charge of stealing.

(3) That the order granted creates the unmistakeable impress ion that the court is helping the prosecution to fish for information to prosecute the accused persons.

In arguing the appeal, Captain (Rtd) Effah Darteh submitted that the discretion of the court was not exercised according to law. He submitted that it was not fair for the court to make the order requesting the bank managers to produce the accounts of the accused persons before the court. He also submitted that none of the ten witnesses called by the prosecution had said anything which connected the accused persons with the offence of stealing and therefore the summons to the bank managers to produce the accounts of the accused persons, was improper and an abuse of discretion. He finally submitted that the order created the im pression that the prosecution was being assisted to fish for information to prosecute the accused persons.

Mr Gyambiby, Senior State Attorney, for the Republic sub mitted that three witnesses called by the prosecution had given evidence which connected the accused persons with the charge of stealing. The court therefore requested Mr Gyambiby to furnish the court with extracts of those evidence which connected the accused with the offence. He did produce the extracts and read from them. The extracts showed that the first prosecution witness in his evidence before the tribunal, said that the first accused told him that he had made up his mind to take away some money from the house of Dr Obed Asamoah. The second prosecution witness

[p.836] of [1997-1998] 2 GLR 825 also testified before the tribunal that the first accused told him that he took some money from the house of Dr Obed Asamoah, and the man was now worrying him. The tenth prosecution witness also testified that the second accused asked him to settle the problem with Dr Asamoah, after he had confessed to him that they took money from the house of Dr Obed Asamoah. Counsel then submitted that in view of these evidence it was competent for the court to make an order requesting the various banks where the accused persons kept their accounts, to come before the tribunal and testify. He submitted that section 58 Act 459 was the proper section under which the court could make the appropriate order requesting the banks to come and testify.

In this court, I believe the crucial issue for determination is whether the order made by the Regional Tribunal under section 58 of the Courts Act 459, was competent or not. It will be relevant to produce the said section hereunder. Section 58 of Act 459 reads as follows:

“58. In any proceedings, and at any stage of the proceed ings, a court either on its own motion or on the application of any party, may summon any person to attend to give evidence, or to produce any document in his possession or excerpts from it subject to any enactment or rule of law.”

It seems clear therefore that under this section the court had power to summon the bank managers to produce the savings accounts of the two accused persons and to testify on those documents, subject of course to any enactment or rule of law on the same matter or issue.

Now, my understanding of this section is that it is to be applied, but only if there is no other law or enactment to the contrary. The question therefore that must be answered is whether or not there is any enactment or rule of law to which section 58 of Act 459 is subject to. The answer is, Yes. There is an enactment in section 176 of the Evidence Decree, 1975 (NRCD 323), which deals specifically with the production of documents from the banks, and the testimony of bank officials. Since there is an enactment which deals specifically with bank records, we must apply the rule of statutory interpretation expressed in the Latin maxim espressurnm facit cessare taciturnm” which being translated means – ”—“that which is expressed, makes that which is implied to cease.”

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Applying that rule of interpretation to this case, we can say that section 58 of Act 459 gives the court the power to summon any person to attend to give evidence or to produce any document in his possession or excerpts of it. This implies that bank managers can be summoned to testify and to produce bank records as well. But since section 176 of NRCD 323 deals specifically with bank managers and the production of bank records, the implied enablement or authority under section 58 of Act 459 ceases to operate. What should now operate is section 176 of NRCD 323.

It is important that there should be a special enactment dealing with banking records because of the confidentiality required in banking matters. If this is not preserved but could be breached at any time on flimsy grounds, the whole institution of banking could be destroyed. I deem it important therefore to set out the whole of section 176 of NRCD 323:

“176. (1) A copy of a record made in the ordinary course of business by a bank is admissible to the same extent as an original to prove the content of the writing if the copy is testified to be a correct copy by a witness who has compared it with an original.

(2) Evidence that the record was made in the regular course of business or that the copy is a correct copy may be given by oral testimony or affidavit by a representative of the bank.

(3) A representative of a bank in any action to which the bank is not a party shall not be compelled to produce the original records of the bank or to appear as a witness con cernming them unless the court finds that fairness requires such compulsion.

(4) The court may on application, order a bank to allow a party to inspect or copy any records of the bank which concern the action, provided that reasonable advance notice is given to the bank.

(5) For the purposes of this section, a bank is any business registered in Ghana as a bank.”

It will be seen from the foregoing that where the bank is not a party in the action, a representative of the bank could only be summoned to produce the records of the bank or to appear as a witness if the court finds that fairness reaquires such a compulsion.

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Thus the order of the court in summoning the bank manager must show why it is fair that he must come to testify and to produce the bank records. It is not enough for the court to state that it is satisfied that the seal of confidentiality must be broken, therefore it is summoning the bank managers to testify. The court must show that it is fair in the interest of justice that the bank managers must testify.

It is therefore obvious that the proper enactment under which the court could summon the bank managers to produce the bank records and testify is NRCD 323, s 176 and not section 58 of Act 459.

Having acted under the wrong enactment, what is the fate of the court’s order? To answer this question it will be necessary to look at the evidence that has been led at the trial to determine whether or not there was any basis for making the order at all. From the extracts of the evidence of the first, second and tenth prosecution witnesses produced before this court, it was quite clear that the accused persons did tell those witnesses that they took some monies from the house of the Dr Obed Asamoah. In the light of these evidence, it was a fair and legitimate order by the court to summon the bank managers who keep the savings accounts of accused persons to testify about the monies they are keeping for the accused persons. This piece of evidence will assist the court to determine whether the evidence of the first, second and third prosecution witnesses are true, having regard to earnings of the accused persons as policemen.

If the order was fair and legitimate, then this court has power under section 11 (8) of Act 459 to amend and correct the appropriate order. The section reads as follows:

“(8) For the purpose of hearing and determining an appeal within its jurisdiction and the amendment, execution or enforcement of a judgment or order made on any appeal, and for the purpose of any other authority expressly or by necessary implication given to the Court of Appeal by the Constitution, this Act or any other law, the Court of Appeal shall have all the powers, authority and jurisdiction vested in the court from which the appeal is brought.”

This means that this court can make the appropriate orders to compel the bank managers to produce the relevant records and to testify before the court as ordered.

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The order of the tribunal is hereby amended to read that the bank managers named in the order are summoned under section 176 of NRCD 323 to produce copies of the relevant records and to testify about them before the court, because it is fair and in the interest of justice. For the above reasons the appeal against the order of the Regional Tribunal is dismissed.

Afreh JA. The appellants herein, are standing trial at the Accra Regional Tribunal on two counts of conspiracy to steal and stealing ¢100 million.

In the course of the trial the prosecution applied under section 58 of the Courts Act, 1993 (Act 459) for the tribunal to call five specified persons – —four of them managers of various banks in Accra, the other the paymaster-general and controller of the Ghana Police Service – —to produce documents in relation to the case and to give evidence on them. Counsel for the accused persons objected mainly on the ground that up to the time the application was made the prosecution had called ten witnesses and none oif them “had made mention of stealing and misappropriation.” In other words, there was no evidence incriminating the accused. The objection was overruled and it is against this ruling that the accused have appealed.

There are three grounds of appeal:

“(i) That though the order is discretionary its exercise is subject to all the principles of law.

(ii) That as at the time of making the application none of the ten witnesses who had testified had said anything in support of a charge of stealing.

(iii) That the order as granted created the unmistakable impression that the court was helping the prosecution to fish for information to persecute the accused persons.”

Arguing the appeal, counsel for the appellants submitted that even though the power under section 58 of Act 459 was discretionary, its exercise was subject to certain principles. In every trial the burden of proving the guilt of the accused lies on the prosecution. In a criminal trial an accused person can elect not to give evidence. Therefore if there is any confidential information concerning him, it is unfair to compel a witness to disclose it. He maintained that the prosecution were fishing for information and they should not be allowed or encouraged to do that.

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That it is for the prosecution to prove the guilt of the accused and that an accused person has a right to silence are well established principles of law. But they do not affect a court’s power to call witnesses under section 58 of Act 459 or under the Evidence Decree, 1975 (NRCD 323) or any other law. The accused person’s right to silence does not extend to a witness called by him, the prosecution or the court. Such a witness is compellable: see section 62 (4) of Act 459, unless he can claim a privilege under section 97 of NRCD 323 to refuse to disclose any matter or to produce any object or writing that will incriminate him. So a witness can be compelled to disclose information that may be damaging to the accused. The protections accorded to an accused person under the Constitution, 1992, Act 30 and the rules of evidence do not include a right of the accused or a duty of the court to exclude relevant evidence damaging to the accused, unless the court’s discretion under section 52 of NRCD 323 to exclude relevant evidence can properly be exercised in his favour. No ground for the exercise of this discretion exists in this case.

However, the banker’s duty of secrecy in relation to his customer’s affairs must be respected and should not be tampered with or eroded unless there are good grounds for doing so. In criminal case, an order that a banker should disclose the details olf a customer’s account could be a serious interference with thce liberty of the citizen and should only be made after the most careful thought and on the clearest grounds. This warning which was sounded in Williams v Summerfield [1972] 2 All ER 1334 in relation to section 7 of the English Banker’s Book Evidence Act, 1879, should in my opinion be heeded in all cases under section 176 of NRCD 323. In that case a police officer applied for an order that he be at liberty to inspect and take copies of certain entries in banker’s book relating to the appellants’ accounts pursuant to section 7 of the Act of 1879. The divisional court olf the Queen’s Bench Division held that an application under section 7 in criminal proceedings will not by refused on the grounds that it incriminates the party against whom it is made; but as it interference with the liberty of the subject, the court should be satisfied, before making an order, that the application is more than a mere “fishing expedition” by considering whether the prosecution have other evidence to support the charge. Giving the judgment of the court. Lord Widgery CJ said at 1338:

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“If justices approach these applications with a due sense of responsibility and a recognition of the importance of that which they are being asked to do, if they are always alive to the requirement of not making the order extend beyond the true purposes of the charge before them, and if in consequence they limit the period of disclosure of the bank account to a period which is strictly relevant to the charge before them; and if finally they recognise the importance of considering whether there is other evidence in the possession of the prosecution before they provide the bank account as perhaps the only evidence, I feel if they observe those precautions and pay heed to those warnings, they will in fact produce a situation in which the section is used properly, wisely, and in support of the interests of justice, and will not allow it to be used as an instrument of oppression which on its face it might very well be.”

Applying these principles to the present case, the fact that the evidence sought to be produced may incriminate or damage the appellants is not a ground for refusing it. But there must have been evidence other than the bank accounts to support the charge before the order could be made. In other words, there must be other evidence connecting the appellants to the offence charged up to the time the application was made. Otherwise it would be a fishing expedition.

In the court below and in this court, counsel for the appellants insisted hat none of the ten witnesses called by the prosecution had mentioned stealing or misappropriation. If that is true then it was wrong for the court to have granted the application. But the record of proceedings shows that in their evidence the first, second and tenth prosecution witnesses had strongly incriminated the appellants. Their evidence was to the effect that the appellants had confessed to stealing the money of Dr Obed Asamoah, the complainant. In such circumstances, if. the prosecution have evidence that the appellants have given the money to a third person or have deposited it at the bank, they are entitled to bring the evidence before the court. If the most effective or the only way to do so is to get the court to call witness to give the relevant evidence, they are justified in making an application u.nder section 58 of Act 459 (or section 68 of NRCD 323) or section 176 of NRCD 323.

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The criminal courts in this country always have wide powers at any stage of any enquiry, trial or other proceedings to call any person as a witness or recall or re-examine any person already re-examined. (see section 119 of the Criminal Procedure Code, 1960 (Act 30) which was repealed by section 5 of the Criminal Procedure Code (Amendment) (No 2) Decree, 1975 (NRCD 324) because a similar provision was made in section 68 of NRCD 323 which is similar to section 58 of Act 459.) The reason for this wide power is given in Amissah’s Criminal Procedure in Ghana, p 201:

“The judge in the criminal trial is supposed to protect the public interest and therefore he is in the discharge of his duties permitted to call a witness who is not called by either the prosecution or the defence if he thinks the witness can throw light on the case.”

And R v Kuree (194 1)7 WACA 175 at 177, the West African Court of Appeal said:

“The trial Judge also has a discretion himself to call a witness in the interests of justice and we conceive it to be his duty to exercise this discretion when by so doing the real truth can be ascertained.”

In my opinion, on the evidence before it, the trial tribunal was right in the interest of justice, in summoning the four bankers specified in the prosecution’s application to come and give evidence.

It was however argued that the application under section 58 of Act 459 was incompetent because there is a special provi- sion under section 176 of NRCD 323 for dealing with bankers’ book evidence. If the court finds that the process under section 58 was wrong it should allow the appeal.

With respect I do not agree. Everybody agrees that section 58 is subject to section 176 of 323. But the two provisions are not mutually exclusive. In my opinion the two provisions can be used together. Section 176 of NRCD 323 is based on the English Banker&s’ Books Evidence Act, 1879. Like its English counterpart, the section confers certain privileges upon bankers intended to facilitate the giving of evidence by bankers in a case in which they are not parties. First a copy of a record made in the ordinary course of business is admissible to the same extent as an onriginal

[p.843] of [1997-1998] 2 GLR 825 to prove the content of the writing if the copy is testified to be a correct copy by a witness who has compared it with an original. Secondly evidence that the record was made in the regular course of business or that the copy is a correct copy may be given by oral testimony or affidavit. In other words, it is not necessary in every case for a bank official to enter the witness box to give oral evidence on the authenticity of a copy of a bank record. He cannot be compelled to do because an affidavit may suffice. Thirdly, a representative of a bank in any action to which the bank is not a party should not be compelled to produce the original records of the bank or to appear as a witness concerning them unless the court finds that fairness required such compulsion. Thus the section 176 of NRCD 323 makes it unnecessary without a court order for a banker to bring his original books to court; or without the court’s permission to be made to answer questions on his original books. And finally the court may, on application, order a bank to allow a party to inspect or copy any records of the bank which concern the action, provided that reasonable notice is given to the bank.

It can be seen that under section 176 of NRCD 323 the only occasions when a court’s intervention may be necessary are when it is sought to compel a representative of a bank to produce the onriginal records of the bank or to appear as a witness concerning them or to get a court to order a bank to allow a party to inspect or copy any records of the bank which concern the action. Apart from these cases, the section does not confer a general power on a court to summon a banker to testify or produce any document. It is section 58 of Act 459 which confers this power. I am of the view that the exercise of any power under section 176 of NRCD 323 does not preclude the exercise of the court’s power under section 58 of Act 459 or section 68 of NRCD 323. I do not therefore agree that the application under section 58 of Act 459 was incompetent.

But even if I am wrong, the process under section 58 will only be an irregularity which this court has power to rectify and does not amount to a nullity. However the terms of the order of the tribunal are in my opinion too broad. Is it the originals or testimony in respect of them that are required? In that case a specific application has to be made under section 176 (3) of NRCD 323, or was the purpose of the application to get the court order the banks to allow the investigators to inspect or copy any of the banks’ records concerning the accounts of the appellants? In that

[p.844] of [1997-1998] 2 GLR 825 case a specific order has to be obtained under section 176 (4) of NRCD 323. There is no indication that fairness of the case requires the production of the originals of the relevant documents or testimony concerning them. I do not think it is necessary to produce them or testify concerning them. I would therefore modify or vary the order to the effect that copies of the relevant documents, in conformity or compliance with section 176 (1) and (2) of NRCD 323, should be produced. Should any dispute arise about the authenticity of any document, an application may be made to the trial tribunal for an appropriate order.

The order of the tribunal does not limit the period of disclosure of the bank accounts of the appellants. In cases such as this the order of the court should limit the period of disclosure of the bank account to a period in time when is strictly relevant to the charge: see Williams v Summerfield [1972] 2 All ER 1334. In R v Malborough Street Stipendiary Magistrate; Ex parte Simpson (1980) 70 Cr App R 290 orders under the English Act were quashed on the grounds that they were not limited to a defined period in time. I do not think we should go that far. Rather, we should limit the period of disclosure: see R v Nottingham City Justices; Ex parte Lynn (1984) 79 Cr App R 238.

Accordingly the period of disclosure of the appellants’ bank accounts should be limited to the period they are alleged to have stolen the money: that is between September 1996 and April 1997. Otherwise the order will be a serious intrusion into the privacy of the appellants.

Regarding the paymaster-general and controller of Ghana Police Service, I do not think it is necessary to call him under section 58 of Act 459. An ordinary subpoena should suffice in his case and should be used.

Subject to the variations I have indicated above, the order of the tnribunal should be confirmed and the appeal be dismissed.

Appeal dismissed.

Order of tribunal varied.

LSNA