ISSAH vs. THE REPUBLIC [1999-2000] 2 GLR 45

CASES REFERRED TO

(1) Clerk of Axim Local Council v Tandoh [1968] GLR 784.

(2) R v Aiyeola (1948) 12 WACA 234.

(3) R v Thompson and Clein (1975) 61 Cr App R 108.

APPEAL by the appellant against his conviction and sentence by a Regional Tribunal following his prosecution by a police officer of the rank of chief inspector who had not obtained prior authority or consent of the Attorney-General to conduct the prosecution. The facts are set out in the judgment of Afreh JA.

Appellant in person.

Naa Merley Wood, Senior State Attorney, for the Republic.

Afreh JA. This is an appeal from the judgment of the Brong Ahafo Regional Tribunal, presided over by Mr Justice K Adu-Gyamfi sitting with Mr Moses K Ansu and Mr Akomsi Mensah as panel members at Sunyani on 12 February 1999.

The appellant was charged with two counts of defrauding by false pretences, contrary section 131 of the Criminal Code, 1960 (Act 29). The particulars of offence of the first count alleged that in January 1998 the appellant obtained from one Asare Kwame Bediako, a businessman in Sunyani, one video camera valued at ¢600,000 and six “mounting” bicycles valued at ¢1,200,000, all totaling ¢1,800,000, by falsely representing to Asare Kwame Bediako that he could supply him with two cows from Burkina Faso. The particulars of the second count alleged that by a similar

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false pretence the appellant obtained a video camera, also valued at ¢1,200,000, from one Simon Kwaku Yeboah. The appellant pleaded guilty to both offences and was sentenced to two years imprisonment with hard labour on each count. It is not clear whether they were to run concurrently or consecutively. According to the record of proceedings, the sentences of imprisonment were to “run cumulative” (sic): (the proper term is concurrent), but according to the notice of appeal the appellant was sentenced “to two years imprisonment with hard labour on each count to run consecutively.” The appellant was unrepresented. It appears the notice of appeal was prepared by or with the assistance of the prisons authority at Sunyani where he is being kept. If that is so, then it seems the prison records show that he is serving two consecutive terms of two years imprisonment with hard labour. For the avoidance of doubt and confusion, it is essential that trial courts and tribunals use the correct terms or terminology in any information they send to the prisons and other authorities.

The appellant has appealed on two main grounds, namely: (a) the sentence was harsh and excessive in the circumstances of the case and (b) the trial tribunal failed to consider whether or not the facts are enough to ground conviction. Before the court proceeds to consider these grounds, if at all, it is necessary for it to deal with an irregularity it has found in the initiation and conduct of the prosecution of the offences with which the appellant was charged. According to the record of proceedings the charge sheet was signed by one Chief Inspector E K Baidoo who also appeared as the prosecutor at the trial.

The question is whether the police, without the Attorney-General’s authority, have the power or right to initiate and conduct prosecutions in the Regional Tribunal (or, for that matter, in any court). The power and right to initiate and conduct the prosecution of criminal cases in the name of the Republic are conferred on the Attorney-General by article 88(3) and (4) of the Constitution, 1992 which provide:

“(3) The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences.

(4) All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the

Attorney-General or any other person authorised by him in accordance with any law.”

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The authority of the Attorney-General cannot be assumed or presumed. It is not, and cannot be, acquired by practice or prescription. The fact that a person or an institution has been prosecuting cases in the name of the Republic does not mean that it has acquired the right or power to do so. The Attorney-General’s authority must be given in the manner prescribed by law. In the case of the power of the police to prosecute, the authority of the Attorney-General was given by the Appointment of Public Prosecutors Instrument, 1976 (EI 4) which was made by the Attorney-General in exercise of his powers under section 56 of the Criminal Procedure Code, 1960 (Act 30). This section provides:

“56. The Attorney-General may, by executive instrument appoint generally, or for any specified class of criminal causes or matters, or for any specified area, one or more public officers to be public prosecutors, and may by writing under his hand appoint any legal practitioner or public officer to be a public prosecutor in any particular criminal cause or matter. Any public prosecutor so appointed may appear and plead before any District Court in which any criminal cause or matter of which he has charge or of which he has assumed the conduct under section 57 is under enquiry or trial, and shall be subject to the express directions of the Attorney-General.”

Under EI 4 of 1976, the public officers specified in column 1 of the schedule to the instrument are appointed public prosecutors for the criminal cause or matter described in column 2 of the schedule in relation to each of those public officers. Paragraph 2 of column 1 of the schedule to the instrument read together with the corresponding paragraph of column 2 of the instrument provides that any police officer not below the rank of sergeant can be a public prosecutor for all “criminal causes or matters heard by a District Court or heard summarily by a Circuit Court.” In view of the Courts Act, 1993 (Act 459) and the Courts (Amendment) Act, 1993 (Act 464), “District Court” also includes the community tribunal and “Circuit Court” includes the circuit tribunal.

It is clear that police officers of whatever rank have no authority under EI 4 of 1976 to initiate and conduct the prosecution of criminal offences in Regional Tribunals. There is no evidence that the Attorney-General by writing under his hand appointed the prosecuting officer in this case, Chief Inspector E K Baidoo, to be a public prosecutor in the particular case before us. And in my

[p.49] of [1999-2000] 2 GLR 45 view, even if the Attorney-General had appointed or purported to appoint him to be the public prosecutor in the Regional Tribunal in this particular, case the appointment would have been invalid as being contrary to 56 of Act 30.

So what is the effect of criminal proceedings which are instituted and conducted without necessary authority or consent? In the case of the Clerk of Axim Local Council v Tandoh (1968) GLR 774, the council by their clerk of council, instituted criminal proceedings against Tandoh and others. When the case was called the council was not represented and the case was struck out for want of prosecution. The council appealed, alleging that their clerk acted as a public prosecutor. It was held that a public officer who undertakes a criminal prosecution does not thereby become a public prosecutor unless he is appointed a public prosecutor by the Attorney-General under an executive instrument as provided by section 56 of Act 30. In the Nigerian case of R v Aiyeola (1948) 12 WACA 324, which was a trial on indictment, the relevant provisions provided that a prosecution for an offence under certain sections could not be instituted except by, or with the consent of a law officer. No such consent had been obtained at the time the preliminary enquiry started. And the preliminary enquiry was not conducted by a law officer. However, the indictment itself had been filed by the Attorney-General. The West African Court of Appeal held that the proceedings were instituted when the case was brought before the magistrate for the preliminary enquiry and that as there was no consent of a law officer at that time, all that followed was a nullity. Similarly in the English case of R v Thompson and Clein (1975) 61 Cr App R 108 a circuit judge purported to give leave to prefer an indictment. This he had no jurisdiction to do; the English Court of Appeal held that the indictment was invalid, and there had been a mistrial.

From these cases it is clear that criminal proceedings which are instituted without the necessary authority or consent are a nullity and any trial that follows is a mistrial. They cannot be adopted or ratified by the Attorney-General because there is nothing to adopt or ratify. The whole proceedings and any ensuing conviction have to be quashed. The court cannot allow them to stand even if there is evidence that a police officer had to prosecute because the Attorney-General’s office did not have the necessary manpower to initiate and conduct the prosecution. That would not change the

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fact that the person who prosecuted the case had no authority to do so.

In the case before us there can be no doubt that the prosecutor, Chief Inspector E K Baidoo, had no authority from the Attorney-General to initiate and conduct prosecutions of criminal offences in the Regional Tribunal. The whole proceedings were a nullity. Consequently, the conviction of the appellant is hereby quashed and any sentence imposed upon him is set aside.

Although the court has power to order a re-trial, I do not think it should do so in the circumstances of this case. The appellant has already spent one year in prison. Having regard to the amounts involved, and the fact that he is a first offender, I think it will be oppressive for him to be retried for these same offences.

Akoto Bamfo JA. I agree.

Amonoo Monney JA. I also agree.

Appeal allowed.

LSNA