Criminal law and procedure
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Trial
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Summary trial
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Suitability
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Procedure where summary trial
unsuitable
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Criminal Procedure Code 1960
(Act 30) s 179.
The accused were arraigned
before a circuit court on
charges of conspiracy to kidnap
and kidnapping. Before the
hearing commenced, defence
counsel objected to the summary
trial of the accused. The trial
judge dismissed the objection
but ordered the prosecution to
serve copies of prosecution
witness statements on the
defence. The High Court reversed
the direction on appeal and the
accused appealed to the Court of
Appeal.
Held,
section 179 of the Criminal
Procedure Code 1960 (Act 30)
empowered the court at any stage
of a summary trial of an offence
triable on indictment to inform
the Attorney General if the case
was unsuitable for summary
trial. Plainly the defence
counsel’s application derived
from the section but the judge
erred in not referring the
matter to the Attorney General.
The appeal would be allowed, the
rulings of the circuit court and
the High Court set aside and the
case remitted to the circuit
court for the judge to inform
the Attorney General
accordingly. McFoy v UAC
[1962] AC 52, PC referred to.
Case referred to:
McFoy v UAC
[1962] AC 152, [1961] 3 WLR
1405, [1961] 3 All ER 1169, 105
SJ 1067, PC.
APPEAL against the judgment of
the High Court to the Court of
Appeal.
Quaynor
for Nana Akufo-Addo for
the appellant.
Osafo Sampong,
Chief State Attorney (with him
Nerquaye-Tetteh, State
Attorney) for the respondent.
LAMPTEY JA.
Sometime in early 1993, James
Scott Benin and three named
accused persons were arraigned
before an Accra Circuit Court on
charges of conspiracy to kidnap
and kidnapping (four counts in
all). Before the hearing on the
merits could commence, learned
counsel appearing for the
accused persons raised a
preliminary objection to their
being tried summarily. The trial
judge recorded the reasons urged
in support of an application for
trial of the accused persons on
indictment as follows:
“(a) The charge is a serious
one, a second degree felony and
too serious to merit summary
trial.
(b) If tried on indictment, the
accused persons would have the
opportunity to know the
prosecution’s evidence against
them from the outset and able to
instruct counsel on their
defenses since they would be
served advance copies of the
summary of evidence; and
(c) Trial on indictment would
enable them to know the
background of prosecution
witnesses who may well be
foreign nationals of whom
practically nothing would be
known from the outset by the
defence.”
The application was vehemently
resisted and opposed by learned
counsel for the Republic. After
hearing the lawyers for the
parties, the trial judge in a
ruling dated 15 March 1993,
dismissed the application but
ordered that “within 7 days, the
prosecution serve copies of all
prosecution witness statements
on the defence.” She had made
the order because, according to
her, “the defence application
should be taken as though it was
an application for those
statements.”
The Republic was aggrieved by
the order made by the trial
judge and promptly appealed to
the High Court. Two grounds of
appeal were stated in the notice
of appeal. These were:
“(1) The learned circuit judge
erred in law when she ruled that
the summary of evidence should
be supplied to the defence in a
summary trial; and that
(2) The learned circuit judge
erred in law when she ruled that
the power to effect (sic) the
mode of trial rested primarily
with the court.”
In due course, the appeal was
heard on the merits by the High
Court, Accra. On 4 May 1993, the
High Court, in a reasoned
ruling, allowed the appeal of
the Republic and made the
following order:
“The case should go back to the
Circuit Court, Accra to be tried
summarily and without insisting
that the defence is entitled to
a summary of evidence.”
The accused persons were
aggrieved and dissatisfied with
the decision and the
consequential order made by the
appellate judge and appealed to
this court. One ground of appeal
was stated on the notice of
appeal. It reads thus:
“The Accra High Court (Coram:
Lartey J) erred in law when it
reversed and set aside the
decision of the Accra Circuit
Court, (Coram: Judge Ivy Ashong)
ordering the prosecution to
furnish the appellants with a
summary of evidence that the
prosecution intended to call in
this case, thereby occasioning
to the appellant substantial
miscarriage of justice.”
I must immediately point out
that the ground of appeal as
formulated is inelegant and
breached the operative rule. The
defect was however cured by the
submissions and arguments of
counsel for the appellant when
he argued the appeal. Before I
proceed to consider the merits
of the present appeal, I feel
obliged to make some preliminary
observations.
It seems to me the trial circuit
judge misconceived her duty in
the circumstances in which she
found herself after she had
firmly overruled the application
by the accused persons. As soon
as she declared that she had
dismissed the application, she
clearly and plainly became
functus officio. She no longer
had jurisdiction in respect of
the application. The order she
purported to make was made
without jurisdiction. In my
opinion the error of law
committed by the circuit judge
was a ground of appeal at the
instance of the Republic, that
is, to appeal to the appropriate
court to have the offending
order set aside. The remedy for
the accused persons in the
circumstances was to exercise
their right of appeal against
the dismissal of their
application. Regrettably to
state, the case went to the High
Court on appeal on other
grounds. The High Court did not
advert to the above error of law
apparent on the face of the
record of appeal. The court's
attention was also not drawn to
it.
It does not therefore surprise
me that the appellate High Court
made an order when there was no
need to do so because the order
of the circuit court could not
be supported in law. The judge
had ordered that the case be
tried summarily. She did not
stop there as she was enjoined
to do, but continued as follows:
“and without insisting that the
defence is entitled to a summary
of evidence.”
It is needless for me to state
that the procedure governing
summary trials is spelt out at
great length in Part III,
sections 163 to 180 of the
Criminal Procedure Act 1960 (Act
30). It was therefore sufficient
for all purposes for the judge
to rule that the case be tried
summarily, meaning according to
Part III of the Act 30.
This leads me naturally to the
merits of the appeal before me.
Learned counsel for the
appellants submitted that the
circuit judge by her ruling had
as it were ordered that the
trial be on indictment. He
argued that the appellate judge
was wrong in law setting aside
the decision of the circuit
judge. For the Republic, it was
submitted that the judge of the
High Court was right in the
decision he reached. During
submissions and arguments of
counsel for parties, their
attention was drawn by this
court to section 179 of Act 30.
That section provides as
follows:
“(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 15
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 Circuit Court,
shall have the power of a
District Court under that part.
(3) In any other case, the Court
shall proceed with the summary
trial of the offence.”
It is plain from the provisions
of section 179 of Act 30 that
the accused persons’ right to
make the application before the
circuit court derived from that
section. The circuit court was
enjoined to follow the procedure
laid down at section 179(1). The
learned judge erred in law when
she breached her duty in not
referring the matter to the
Attorney General. She assumed
jurisdiction, which she did not
in law have. The proceedings
before her on this application
were a nullity ab initio. See on
this McFoy v UAC [1962]
AC 152, PC.
For all the reasons stated above
I will allow the appeal.
AMUAH JA.
This is an appeal brought by the
1st accused against the ruling
of the High Court delivered on 4
May 1993. The facts of the case
are as follows: The first
accused was arraigned before the
circuit court charged with the
following offences: (1)
Conspiracy to kidnap contrary to
sections 23(1) and 89 of the
Criminal Code 1960 (Act 29) and
(ii) Kidnapping contrary to
section 89 of the Criminal Code
1960 (Act 29).
The defence applied to the said
court for the case to be tried
on indictment since:
“(a) The charge is a serious one
- a second degree felony and too
serious to merit summary trial;
(b) If tried on indictment their
clients would have the
opportunity to know prosecution
evidence against them from the
out set and thus be better able
to instruct counsel on their
defence since they would be
served advance copies of the
summary of evidence.
(c) Trial on indictment would
enable them know of the
background of prosecution
witnesses who may well be
foreign nationals of whom
practically nothing would be
known from the on set by the
defence.”
The learned circuit judge
considered the submissions of
both counsel on this issue and
eventually ruled that the case
be tried summarily and that the
prosecution should serve the 1st
accused with summary of
evidence. The prosecution became
dissatisfied and filed an appeal
against this decision on the
following grounds:
“1 The learned circuit judge
erred in law when she ruled that
the summary of evidence should
be supplied to the defence in
summary trial.
2 That the learned circuit judge
erred in law when she ruled that
the power to elect the mode of
trial rests primarily with the
court.”
The appeal was heard by the High
Court judge who after listening
to the arguments allowed the
appeal and remitted the case to
the circuit court to be tried
summarily and without the
defence counsel insisting that
it is entitled to a summary of
evidence. The defence was also
dissatisfied and has appealed to
this court.
By applying for trial on
indictment the accused was
asking for a full trial by a
judge and jury where access to a
summary of evidence was
guaranteed by the Criminal
Procedure Code 1960 (Act 30)
section 182(1)(b). To order a
summary trial was a way of
depriving the accused of the
facilities provided by the said
Act for a fair trial.
On the facts, the learned trial
judge found that the offence of
kidnapping was a second-degree
felony carrying a maximum
sentence of ten years; that even
though the enactment creating
the offence did not prescribe a
mode of trial “it would seem the
applicable provision therefore
was section 2(3) which covered
offences triable either way.” In
other words, it can be tried on
indictment or summarily. She
also found that in view of the
nature of the case the accused
was to be supplied with the
statements of witnesses for the
prosecution, if the trial was to
be fair.
Now having arrived at these
conclusions I fail to understand
why she did not take advantage
of section 179 of the Criminal
Procedure Code 1960 Act 30 which
provided as follows:
“179(1) If it appears to the
court at any stage of the
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 a 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 that
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 power of a District
Court under this Part.
(3) In any other case the Court
shall proceed with the summary
trial of the offence.”
In this case the Attorney
General or a persons acting on
his behalf has not notified the
court what he proposed to do in
the special circumstances of
this case and yet the trial
judge proceeded to give a ruling
indicating that she intended to
hear the case summarily and in
addition ordered the supply of
witnesses’ statements to the
accused by the prosecution,
which facility was not provided
by the Code. For reference see
sections 163-180 of the Criminal
Procedure Code 1960 (Act 30).
In all the circumstances, the
ruling is not warranted by the
rules of procedure and is
therefore a nullity. The ruling
which was made by the circuit
court as well as the one which
was made by the High Court
upholding the ruling of the
circuit court in part is set
aside. The appeal is therefore
allowed and the case is sent
back to the circuit court for
the circuit judge to inform the
Attorney General of her opinion
and adjourn the proceedings and
await his reply.
ESSILFIE-BONDZIE J.
I agree that the appeal should
be allowed and the case be
remitted to the circuit court.
Appeal allowed.
S Kwami Tetteh, Legal
Practitioner |
