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Criminal law -
Articles 11 (7) and 296 -
Constitution - Nolle prosequi -
Invoking the original
jurisdiction of Supreme Court -
Criminal and Other Offences
(Procedure) Act, 1960, Act 60 -
Whether or not the exercise of
the right of nolle prosequi,
under section 54 of the Criminal
and Other Offences (Procedural)
Act, Act 30 of 1960, does not
breach the Constitution -
Whether or not the instant
action properly invokes the
original jurisdiction of the
Supreme Court in accordance with
articles 2 (1)(b) and 130 (1) of
the Constitution - Whether or
not the exercise of the power of
nolle prosequi by the Attorney-
General is subject to the
requirement of articles 296 (c)
and 11(7) of the Constitution -
Whether or not the plaintiff’s
writ raises any real issue for
constitutional interpretation -
Whether or not the the exercise
of the right of nolle prosequi
by the defendant, under section
54 of Act 30 is inconsistent
with article 296 of the
Constitution
HEADNOTES
The brief facts of the case
deduced from the processes filed
before this Court, are that the
plaintiff was arrested on
suspicion of murdering one Adams
Mahama, after pouring acid on
the said Adams leading to his
death. After investigations and
committal proceedings the
plaintiff was arraigned to stand
trial at the High Court, Accra
for the offence of murder. The
trial proceeded and the
plaintiff closed his defence on
the 24th January
2019. The trial Judge then
adjourned the case to the 20th
February 2019 for addresses by
the prosecution and defence,
after which a date was to be
fixed for summing up and then
the final verdict by the jury.
However, on the 28th
January, 2019, the Attorney
-General, the defendant herein
filed a nolle prosequi
indicating her intention to
discontinue the case intituled
Republic v. Gregory Afoko. The
defendant herein subsequently
re-arraigned the plaintiff with
one Asabke Alangdi before the
District Court, Accra for fresh
committal proceedings. The
plaintiff contends that the
exercise of the right of nolle
prosequi by the defendant in his
trial is inconsistent with or is
in contravention of Articles 23,
11, and 296 of the Constitution
HELD
The institution of this case
itself by the plaintiff affirms
this right to ensure due process
as required under article 296
(a) and (b). On the peculiar
facts of this case, however, we
hold the view, as already
indicated, that the plaintiff
has not been able to make out a
case that defendant failed to
measure up to the constitutional
standards stipulated in article
296 (a) and (b).
In answering the second issue
settled by the parties for
determination, we hold that the
exercise of the power of nolle
prosequi is not subject to the
requirements of articles 296(c)
and 11(7) of the Constitution if
the defendant is not required to
adhere to article 296(c) of the
Constitution, then article 11(7)
has not been breached. For the
reasons expressed in this
judgment therefore, we will
dismiss this action commenced by
the plaintiff. The writ is
accordingly dismissed.
STATUTES REFERRED TO IN JUDGMENT
1992
Constitution
Criminal and Other Offences
(Procedure) Act, 1960, Act 30
CASES REFERRED TO IN JUDGMENT
Republic v. Special Tribunal;
Exparte Akosah [1980] GLR 592
Osei -Boateng v. National Media
Commission and Appenteng [2012]
2SCGLR 1038
Kor v. Attorney- General and
Justice Douse & Others
[2015-2016] 1 SCGLR 114[1970]
Captan v. Minister of Interior
[1970] CC 35
Ransford France (No. 3) v.
Electoral Commission &
Attorney-General [2012]1 SCGLR
705
The State v Ilori & Ors (1984) 5
N.C.L.R. 40
Jeewan Mohit v DPP of Mauritius
[2006] UKPC 20
BOOKS REFERRED TO IN JUDGMENT
Criminal Procedure in Ghana”.
1985 Reprint, page 22 by A.N.E.
Amissah
DELIVERING THE LEADING JUDGMENT
MARFUL-SAU, JSC:
COUNSEL
OSAFO BUABENG FOR THE PLAINTIFF.
GODFRED YEBOAH DAME, DEPUTY
ATTORNEY WITH HIM YVONNE
BANNERMAN (MS.) PRINCIPLE STATE
ATTORNEY FOR THE DEFENDANT.
______________________________________________________________________
MARFUL-SAU, JSC:
-
The plaintiff in this writ
before us, is not questioning
the constitutionality of the
power of nolle prosequi vested
in the Attorney- General in
criminal prosecutions in our
courts. The plaintiff in the
main is urging us, through his
writ, to determine whether the
nolle prosequi entered by the
Attorney- General in his case as
an accused person is fair and
just in terms of Articles 11 (7)
and 296 of the Constitution,
particularly, Article 296 (c).
It is thus important, to make it
clear, in this judgment that
this writ is not invoking the
jurisdiction of this court to
determine the constitutionality
or otherwise of the right vested
in the Attorney-General to enter
nolle prosequi in criminal
trials.
The plaintiff by his writ
invoking the original
jurisdiction of this court
sought the following reliefs: -
‘’1. A declaration that the
statutory exercise of the power
to enter a nolle prosequi on the
28th January, 2019, pursuant to
S. 54 of the Criminal and Other
Offences (Procedure) Act, 1960,
Act 30, by the defendant in the
case of Republic v. Gregory
Afoko, Case No. CR 180/16, is
inconsistent and a violation or
infringement of Articles 23 and
296 of the 1992 Constitution and
as a result unconstitutional,
null and void.
2. An order setting aside the
said nolle prosequi and that the
High Court, Accra should
continue to hear the case of
Republic v. Gregory Afoko, Case
No. CR 180/16 to its logical
conclusion.
3. A further order terminating
the purported prosecution of the
plaintiff by the defendant in
the case Republic v. Gregory
Afoko and Asabke v.Alangdi, Case
No. G/AC/DC/B1/05/19 or any
further prosecution of plaintiff
in respect of facts arising and
forming the basis of the
prosecution of the plaintiff in
Republic v. Gregory Afoko Case
No. CR 180/16.
4. Any further order that this
honourable Court may deem fit
for the enforcement of its
orders.’’
The brief facts of the case
deduced from the processes filed
before this Court, are that on
the 21st May 2015,
the plaintiff was arrested on
suspicion of murdering one Adams
Mahama, after pouring acid on
the said Adams leading to his
death. After investigations and
committal proceedings the
plaintiff was arraigned to stand
trial at the High Court, Accra
for the offence of murder. The
trial proceeded and the
plaintiff closed his defence on
the 24th January
2019. The trial Judge then
adjourned the case to the 20th
February 2019 for addresses by
the prosecution and defence,
after which a date was to be
fixed for summing up and then
the final verdict by the jury.
However, on the 28th
January, 2019, the Attorney
-General, the defendant herein
filed a nolle prosequi
indicating her intention to
discontinue the case intituled
Republic v. Gregory Afoko. The
defendant herein subsequently
re-arraigned the plaintiff with
one Asabke Alangdi before the
District Court, Accra for fresh
committal proceedings.
The plaintiff contends that the
exercise of the right of nolle
prosequi by the defendant in his
trial is inconsistent with or is
in contravention of Articles 23,
11, and 296 of the Constitution.
The defendant, first of all, has
argued that the plaintiff’s writ
is incompetent as it does not
properly invoke the original
jurisdiction of this court,
under Articles 2 (1) and 130 (2)
of the Constitution. In the
alternative, the defendant
disputes the claim by the
plaintiff and asserts that the
exercise of the right of nolle
prosequi, under section 54 of
the Criminal and Other Offences
(Procedural) Act, Act 30 of
1960, does not breach the
Constitution and urged this
Court to dismiss the writ issued
by the plaintiff.
On these facts and the reliefs
sought by the plaintiff, the
parties herein jointly filed a
memorandum of agreed issues on
the 25th of April
2019, pursuant to rule 50 of the
Supreme Court Rules, 1996, CI
16. By the said memorandum, the
parties agreed on two issues for
the trial. These are: -
1. Whether or not the instant
action properly invokes the
original jurisdiction of the
Supreme Court in accordance with
articles 2 (1)(b) and 130 (1) of
the Constitution.
2. Whether or not the exercise
of the power of nolle prosequi
by the Attorney- General is
subject to the requirement of
articles 296 (c) and 11(7) of
the Constitution.
We shall now address the two
issues in seriatim. In his
submission on the issue of
jurisdiction of this court,
learned Counsel for the
defendant referred to the
much-adored case of Republic
v. Special Tribunal; Exparte
Akosah {1980} GLR 592,
in which the ambit of the
original jurisdiction of this
court in enforcing or
interpreting the Constitution
was well defined. Learned
Counsel for the defendant also
did refer to the case of Osei
-Boateng v. National Media
Commission and Appenteng
{2012} 2SCGLR 1038, in which
this Court made the requirement
of an ambiguity, imprecision or
lack of clarity in a
constitutional provision, a
condition precedent for the
exercise of this court’s
exclusive original jurisdiction
to enforce or interpret the
Constitution, under articles 2
(1) and 130 of the Constitution.
The defendant’s Counsel
reiterated the time-honoured
need for this Court to guard
against the abuse of this
special jurisdiction, by parties
who would want to camouflage
their cases as enforcement and
interpretative in nature.
It was further argued by Counsel
for the defendant that
plaintiff’s writ does not raise
any real issue for
constitutional interpretation.
Counsel contended that the
plaintiff’s action is a
disguised application for
judicial review of the decision
of the defendant to enter nolle
prosequi and thus not cognisable
within the original jurisdiction
of the court. The defendant
finally argued that the power of
the defendant to enter nolle
prosequi is implied under
article 88(3) of the
Constitution, so if the
plaintiff is aggrieved by the
exercise of that power then his
remedy, if any at all, is for
judicial review or an appeal and
not to invoke the original
jurisdiction of this court.
The plaintiff who set out in his
statement of case to demonstrate
that he had properly invoked the
original jurisdiction of this
court, referred us to the case
of Kor v. Attorney- General
and Justice Douse & Others
{2015-2016} 1 SCGLR 114.
Counsel for plaintiff argued
that the complaint of plaintiff
is that the exercise of the
right of nolle prosequi by the
defendant in the circumstances
of his case is inconsistent with
article 296 of the Constitution.
The plaintiff was therefore
seeking a declaration and
enforcement of his claim under
article 2 (1) and 130 (1) (a) of
the Constitution. Plaintiff
Counsel contended that this
court’s original jurisdiction
has properly been invoked.
At this stage, there is the need
to reproduce the provisions in
articles 2 (1) and 130 (1) (a)
of the Constitution by which the
plaintiff seeks to invoke our
jurisdiction:’
‘’2 (1)A person who alleges
that—
(a)
An enactment or anything
contained in or done, under the
authority of that or any other
enactment; or
(b)
Any act or omission of any
person:
is inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect.’’
‘’130 (1) Subject to the
jurisdiction of the High Court
in the enforcement of the
Fundamental Human Rights and
Freedoms as provided in article
33 of this Constitution, the
Supreme Court shall have
exclusive original jurisdiction
in---
(a)all matters relating to the
enforcement or interpretation of
this Constitution; and
(b)all matters as to whether an
enactment was made in excess of
the powers conferred on
Parliament or any other
authority or person by law or
under this Constitution.’’
Having carefully considered the
submissions by both counsel, we
are of the firm opinion that,
the case set out in the writ by
plaintiff, is one of enforcement
based on the contention that the
exercise of the right of nolle
prosequi by the defendant, under
section 54 of Act 30 is
inconsistent with article 296 of
the Constitution. The plaintiff
by his writ is not inviting this
court to interpret any provision
of the constitution. What the
plaintiff seeks to do in this
action, is to invoke the
enforcement powers of this court
under articles 2(1) and 130 (1)
(a) of the Constitution. The
writ raises a genuine issue in
controversy regarding the
alleged breach of article 296
(c) of the Constitution. For
this reason, we hold that the
writ is properly before this
court and we dismiss the
objection raised to the
jurisdiction of this Court.
Beside the arguments submitted
to us by both Counsel on the
issue of jurisdiction, we
believe appropriately, that once
the nolle prosequi was entered
in a pending proceeding as it
were, Counsel for plaintiff,
could have applied to the trial
High Court, to refer the issue
about the alleged
unconstitutional exercise of the
right to enter nolle prosequi in
terms of article 296, to this
court, under our reference
jurisdiction, under article
130(2) of the Constitution. This
would have saved the plaintiff
from issuing the writ. We do not
think, however, that failure to
apply for a reference to this
court, under article 130 (2),
would be sufficient ground to
bar the plaintiff from taking
the writ. In effect, we hold
that the plaintiff is properly
before this court.
Having assumed jurisdiction in
the matter, we now address the
second issue adopted by the
parties to be tried. That issue
is whether or not the exercise
of the power of nolle prosequi
by the Attorney-General is
subject to the requirements of
articles 296 (c) and 11(7) of
the Constitution. For purposes
of sound reasoning, the said
articles are re-produced below:
-
‘’296. Where in this
Constitution or in any other law
discretionary power is vested in
any person or authority—
a) that discretionary power
shall be deemed to imply a duty
to be fair and candid;
b) the exercise of the
discretionary power shall not be
arbitrary, capricious or biased
either by resentment, prejudice
or personal dislike and shall be
in accordance with due process
of law; and
c) where the person or authority
is not a judge or other judicial
officer, there shall be
published by constitutional
instrument or statutory
instrument, regulations that are
not inconsistent with the
provisions of this Constitution
or that other law to govern the
exercise of the discretionary
power.’’
Article 11(7)
‘’Any Order, Rule or Regulation
made by a person or authority
under a power conferred by this
Constitution or any other law
shall—
(a)be laid before Parliament;
(b)be published in the Gazette
on the day it is laid before
Parliament; and
(c)come into force at the
expiration of twenty-one sitting
days after being so laid unless
Parliament, before the
expiration of the twenty-one
days, annuls the Order, Rule or
Regulation by the votes of not
less than two-thirds of all the
members of Parliament.’’
The processes filed in this case
are evident that the plaintiff
has been in lawful custody since
his arrest on 21st
May 2015 and subsequent
prosecution. His trial by the
High Court, Accra was almost
drawing to a close when the
defendant exercised her right to
enter nolle prosequi to
discontinue the trial, only to
be arraigned before another
District Court, for a fresh
trial. The plaintiff’s case
simply is that, in the
circumstances of his trial, the
exercise of the power of nolle
prosequi by the defendant, is
unfair and as such inconsistent
with article 296 of the
Constitution, particularly
article 296 (c). This therefore
forms the basis of the second
issue to be determined.
The defendant derives its power
to prosecute from article 88 (3)
and (4) of the Constitution,
which provides as follows:
‘’(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.’’
The power of the defendant to
enter nolle prosequi in a
criminal trial is specifically
provided for under section 54
(1) of the Criminal and Other
Offence (Procedure) Act, Act 30
of 1960, as follows: -
‘’ In a criminal case, and at
any stage of a criminal case
before verdict or judgment, and
in the case of preliminary
proceedings before the District
Court, whether the accused has
or has not been committed for
trial, the Attorney- General may
enter a nolle prosequi, by
stating in Court or by informing
the Court in writing that the
Republic does not intend to
continue the proceedings.’’
Now, article 88 (3) of the
Constitution gives the
Attorney-General, the power to
initiate and conduct all
prosecutions of criminal
offences. What then is the scope
of this power vested in the
Attorney-General? The key words
used in article 88 (3) are
‘’ initiation and conduct’’.
What are the meanings of these
words? ‘’The
Chambers 21st Century
Dictionary,’’
gives the ordinary definition of
these words for our purposes as
follows: -
‘’ To initiate means to begin
something- to make something
begin.
Initiation (Noun)—the formal
beginning of something.
Conduct--- to lead or guide;
to manage, or to control.’’
With these definitions on our
minds and upon careful reading
of article 88(3) and section 54
of Act 30, we are convinced that
the power of the defendant to
enter nolle prosequi is implied
and inherent in article 88(3).
Our assertion is based on the
fact that, the Constitution has
not by any express provision
taken away the power of nolle
prosequi, provided under section
54 of Act 30. It is also an
undisputed fact, that the entry
of nolle prosequi, is one of
many acts that the defendant is
legally entitled to engage in
during criminal prosecutions. By
the said article, the defendant
herein is constitutionally
mandated to initiate and conduct
all criminal prosecutions in the
country. It must be reckoned
that the act of conducting
criminal prosecution involves
the exercise of diverse acts of
discretion. In conducting
criminal prosecutions, the
defendant may exercise any of
the following acts of
discretion, which may not be
exhaustive;
a. the discretion whether or not
to prefer charges and arraigne
accused before a court;
b. discretion to charge accused
persons separately or to charge
accused persons jointly on one
charge sheet;
c. discretion to withdraw
charges and substitute new
charges;
d. discretion to call a
particular witness or not;
e. discretion to discontinue
prosecution.
Clearly, therefore we hold the
view that the power of the
defendant to enter nolle
prosequi forms part of
defendant’s constitutional
mandate, under article 88(3) and
for that matter, it cannot be
denied the defendant. Indeed,
this point is conceded by
learned Counsel for the
plaintiff at paragraph 17 of his
Statement of Case, in which he
stated thus: -
‘’17. But my Lords, the case of
the plaintiff is not that the
defendant has no power to
exercise her right of filing a
nolle prosequi in a criminal
trial such as the one in the
trial Court involving the
plaintiff. The plaintiff’s
plaint here is that the exercise
of the power of filing the nolle
prosequi is subject to
Constitutional Provisions, with
the coming into force of the
1992 Constitution and therefore
any such exercise of the power
of filing nolle prosequi must be
consistent with the Constitution
or else it is unconstitutional.
In this instance, the nolle
prosequi filed fell short of
these Constitutional
provisions.’’
The question then is; did the
filing of the nolle prosequi in
Case No. CR 180/ 2016, in which
the plaintiff herein was the
accused person, breach any
provisions of the Constitution?
We note that the plaintiff in
his writ and statement of case
sought to show that the nolle
prosequi filed by the defendant
in his case violated articles
23, 296 and 11 of the
Constitution. However, in
settling the memorandum of
issues, the plaintiff seems to
have abandoned article 23 and
even with article 296, plaintiff
counsel narrowed in on article
296 (c).
In our candid opinion, article
23 was rightly abandoned by the
plaintiff, since that provision
has no relevance to the
determination of this writ.
Article 23 of the Constitution
deals with Administrative
actions and even where a breach
of that provision is alleged the
remedy lies to the High Court
and not this court. Article 23
is part of Chapter 5 of the
Constitution, dealing with
Fundamental Human Rights and
Freedoms, which by article 33
(1) and (2) of the Constitution
ought to be enforced in the High
Court. That article could not
have offered any assistance to
the plaintiff.
As already observed, the issue
agreed to be tried regarding
article 296 is restricted to
whether the defendant in
exercising the right of nolle
prosequi had to comply with
article 296 (c), requiring the
publication of Constitutional or
Statutory Instrument by persons
or authorities who exercise
discretionary powers other than
Judges and other Judicial
Officers. We will soon address
the issue raised concerning
article 296(c), but before then
we shall briefly comment on how
Counsel for plaintiff failed in
his reliance on article 296 (a)
and (b), which insist that such
discretionary powers are
exercised fairly and not
arbitrarily, capriciously and
biased. The plaintiff did not in
his statement of case properly
make out a case of bias,
unfairness, arbitrariness or
capriciousness in the entry of
nolle prosequi by the defendant.
Indeed, from the processes filed
in this case, the plaintiff
failed to adduce any evidence or
allege any conduct on the part
of the defendant in the exercise
of her mandate, that could be
used to measure the standard set
by article 296 (a) and (b) of
the Constitution.
The plaintiff only seemed
aggrieved that the defendant
exercised the right of nolle
prosequi virtually at the end of
his trial, but the defendant in
so doing, acted within the law.
The Criminal & Other Offences
(Procedure) Act, Act 30, by its
section 54, gave defendant the
right to file nolle prosequi in
a criminal trial at any time
before the verdict or judgment.
In plaintiff’s case the nolle
prosequi was entered, by his own
account, before judgment. The
defendant therefore did no wrong
against the law, when she
entered the nolle prosequi. The
fact that plaintiff’s trial was
almost at the tail end, could
not legally bar or restrain the
defendant from exercising her
right to enter nolle prosequi.
Though, we sympathise with the
plaintiff that his trial was not
completed, but terminated as it
were, for a new trial to begin,
that in law does not amount to
unfairness, arbitrariness, bias
or capriciousness. In effect,
the plaintiff failed to show how
defendant breached article
296(a) and (b), of the
Constitution.
Now we turn to address the issue
as to whether the defendant in
exercising the right to enter
nolle prosequi needed to publish
a Constitutional or Statutory
Instrument, consistent with the
Constitution, to regulate the
exercise of that discretion, as
required under article 296 (c).
In this judgment, we have
already alluded to the fact that
the power to enter nolle
prosequi vested in the defendant
by section 54 of Act 30, is
inherent in the constitutional
mandate of the defendant under
article 88(3) of the
Constitution, to initiate and
conduct criminal prosecutions in
the country. The Attorney-
General by article 88(1) is a
Minister of State and the
principal Legal Adviser to the
Government. The Attorney-
General is therefore a member of
the Executive arm of Government,
for that matter, the initiation
and conduct of criminal
prosecution is an executive act
vested in the Attorney- General,
who is the defendant in this
case.
The power to enter nolle
prosequi, just like, the power
to determine who is to be
charged or who becomes a
prosecution witness, and the
power to withdraw a charge, by
the defendant are clearly
executive acts, which are
exercised legally in accordance
with article 88(3) and section
54 of Act 30. Now, if the
argument by the plaintiff is
allowed then what it will mean
is that anytime, the defendant
intends to exercise any of the
above powers conferred on her by
the Constitution, she had to
first publish a Constitutional
or Statutory Instrument, in
accordance with articles 296 (c)
and 11(7), to regulate the
exercise of those acts of the
defendant.
A decision such as what the
plaintiff wants from this court
will obviously stifle the
mandate given to the defendant
to perform by the very
Constitution and will obstruct
the prosecution of criminal
cases. It is for this very
reason that we agree with
Akuffo- Addo, CJ, when he held
in the case of Captan v.
Minister of Interior
{1970} CC 35, cited by
Counsel for the defendant as
follows: -
‘’There is a very loose sense in
which it can be said that most
decisions taken by ministers in
the day to day performance of
their ministerial duties involve
the exercise of some discretion,
and it is in this sense that the
minister’s act in revoking a
residence permit may be said to
involve the exercise of
discretion. But can it be
seriously argued that the
exercise of discretion in this
sense by ministers must comply
with the requirements of article
173, and in particular, with
article 173 (c) which requires
that the minister shall ‘make
and publish Regulations… which
shall govern the exercise of
that discretionary power? The
government could hardly govern
if this were so…’’
Now, with the coming to force of
the 1992 Constitution, this
court has had the opportunity to
pronounce on the scope of
article 296 (c) as it relates to
the exercise of discretionary
power. In the case of
Ransford France (No. 3) v.
Electoral Commission &
Attorney-General {2012} 1 SCGLR
705, this court speaking
through Dr. Date-Bah, JSC,
delivered at page 723 as
follows: -
‘’We would continue to be
persuaded of the need for the
Supreme Court to interpret the
Constitution as a living
document, so to speak. This
remains the preferable route to
distilling the right meaning
from the 1992 Constitution.
Accordingly, article 296(c) has
to be interpreted as part of a
living Constitution that
provides a workable and
functional framework for
governance in Ghana. An
interpretation that leads to
nuclear meltdown, as it were, of
government should be avoided.
That is why the cue given by
Akufo- Addo, CJ in the Captan
case(supra) needs to be taken
up. This court should follow the
highly persuasive authority of
Captan. The obligation to make
regulations should be limited to
discretion which is
quasi-judicial situations. By
that we mean where adjudication
is involved.’’
The issue that confronted this
court in the Ransford France
case, among others was whether
the Electoral Commission in the
exercise of its functions and
discretionary power in creating
new constituencies, was required
to make by constitutional
instrument, regulations not
inconsistent with the
Constitution or any other law to
govern the exercise of its
discretionary power, as required
under article 296 (c). This
court as demonstrated above held
that it is not with the exercise
of every discretionary power
that must meet the requirement
of article 296 (c) of the
Constitution. This court rightly
in our minds resorted to a
purposive interpretation of
article 296 (c) to avoid the
absurdity that will occur with
any literal interpretation of
the said article, that every
exercise of discretionary power,
as a condition precedent, ought
to meet the requirement of
article 296 (c), with the
publication of a Constitutional
Instrument, before the
discretion is exercised.
There is no dispute that the
Ransford France case fits the
facts of this case, affirming
the position we had earlier
taken, that, the discretion
exercised by the defendant to
file nolle prosequi, among
others, is executive in nature
and should not be subject to
article 296 (c), of the
Constitution. To hold otherwise,
as indicated, will impede
criminal prosecutions, since
every discretion to be exercised
in the conduct of criminal
trials, will have to be preceded
by the publication of a
Constitutional Instrument. We
are therefore, in accord with
the decision of this court in
the Ransford France case, that
article 296(c), should be
restricted to the exercise of
discretion in the nature of
quasi-judicial. In effect it
should not be expanded to the
exercise of executive acts, such
as the power to file nolle
prosequi.
At page 723 of the Ransford
France case (supra), Dr. Date-
Bah, JSC concluding his opinion
stated thus: -
‘’Restricting the scope of
article 296 (c) by purposive
interpretation is not equivalent
to removing due process from the
exercise of discretionary power.
Clauses (a) and (b) of article
296 contain the standards for
the application of such process.
Those two clauses of article
296, read in conjunction with
article 23, assure residents in
Ghana of fairness and
impartiality in administrative
processes. Limiting the scope of
the obligation to publish
regulations before the exercise
of discretionary power does not
significantly impair due process
in administrative powers in
Ghana; rather it avoids the
unravelling of the system of
government as we have known it
since 1969. The standard
embodied in article 296 (c) may
well offer a desirable benchmark
for good practice and we commend
it to those who exercise
discretion to adhere to it
whenever practicable, but
non-compliance with it should
not be treated as resulting in
invalidity, for reasons already
explained above.’’
We are very much persuaded by
the above opinion and endorse
same in this judgment, for the
very reason that even though no
regulations were published by
the defendant before exercising
the right to enter nolle
prosequi, in the trial, the
subject matter of this case, the
plaintiff has had the right to
subject the exercise of the
discretion, to the standard of
fairness, impartiality,
arbitrariness and capriciousness
under the article 296 (a) and
(b) of the constitution. The
institution of this case itself
by the plaintiff affirms this
right to ensure due process as
required under article 296 (a)
and (b). On the peculiar facts
of this case, however, we hold
the view, as already indicated,
that the plaintiff has not been
able to make out a case that
defendant failed to measure up
to the constitutional standards
stipulated in article 296 (a)
and (b).
In answering the second issue
settled by the parties for
determination, we hold that the
exercise of the power of nolle
prosequi is not subject to the
requirements of articles 296(c)
and 11(7) of the Constitution.
As demonstrated in this
judgment, the exercise of the
power of nolle prosequi is an
executive act and not a
quasi-judicial act for which, as
this court has held, need to
satisfy the requirements of
article 296 (c) of the
Constitution. Indeed, if the
defendant is not required to
adhere to article 296(c) of the
Constitution, then article 11(7)
has not been breached. For the
reasons expressed in this
judgment therefore, we will
dismiss this action commenced by
the plaintiff. The writ is
accordingly dismissed.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
In this case, the plaintiff, an
accused person who was standing
trial on a charge of murder in
the High Court, Accra, has
complained against the filing by
the defendant of a nolle
prosequi in the case, only
for her to immediately
re-arraign him before a District
Court for fresh committal
proceedings. The trial of the
plaintiff was almost at an end
as the prosecution and the
accused person had closed their
respective cases and what
remained was addresses by
counsel, summing up by the trial
judge and rendering of a verdict
by the jury. Though, by his writ
of summons, the plaintiff
limited his reliefs to his
particular case, the briefs
written by both parties raised
substantial points of law with
regard to the general nature and
constitutional limitations of
the defendant’s authority to
enter nolle prosequi in
any criminal case as provided by
Section 54 of the Criminal
and Other Offences (Procedure)
Act, 1960 (Act 30). Nolle
prosequi is a Latin term
which means that there would be
no prosecution and it is filed
to terminate pending criminal
proceedings against an accused
person. When it is filed in a
case or stated by the
Attorney-General during court
proceedings, the accused person
is discharged by the court.
However, it does not bar his
subsequent prosecution for the
same offence on the same facts.
By Section 54 of Act 30,
nolle prosequi may be filed
at any time before judgment.
If I understand the plaintiff
well, his case is that, having
regard to the stage his trial
before the High Court had
reached, the defendant was
unfair, unreasonable and not
candid towards him by filing a
nolle prosequi to
discontinue the prosecution only
to turn round and take him
through another trial on the
same facts. That being the stand
of the plaintiff, it was
expected that, in addition to
the enactments relied upon by
him, he would have called in aid
Article 19 of the 1992
Constitution on fair trials but
he did not. The plaintiff
grounded his reliefs on Articles
23 and 296 of the Constitution.
Article 296 is the more
appropriate provision that is
applicable on the facts of
plaintiff’s case and it provides
as follows;
“Where in this Constitution or
in any other law discretionary
power is vested in any person or
authority –
(a) that discretionary power
shall be deemed to imply a duty
to be fair and candid;
(b) the exercise of the
discretionary power shall not be
arbitrary, capricious or biased
wither by resentment, prejudice
or personal dislike and shall be
in accordance with due process
of law; and
(c) where the person or
authority is not a judge or
other judicial officer, there
shall be published by
constitutional instrument or
statutory instrument,
regulations that are not
inconsistent with the provisions
of this Constitution or that
other law to govern the exercise
of the discretionary power.”
It is obvious from these
provisions that the charges of
unfairness and unreasonableness
against the defendant in this
case are founded on clauses (a)
and (b) of Article 296. When
clause (b) talks of due process,
it must be remembered that it
covers the two components of the
term namely; procedural and
substantive due process.
However, when the parties filed
a joint memorandum of issues to
be tried by the court, no issue
on whether the particular
nolle prosequi entered on 28th
January, 2019 was unfair or
unreasonable was set down by the
parties for trial by the court.
The issues agreed between the
parties are as follows;
1.
Whether or not the instant
action properly invokes the
original jurisdiction of the
Supreme Court in accordance with
articles 2(1) (b) and 130 (1) of
the Constitution.
2.
Whether or not the exercise of
the power of nolle prosequi
by the Attorney-General is
subject to the requirements of
articles 296(c) and 11(7) of the
Constitution.
With the above as the agreed
issues, I am intrigued that both
parties spilt substantial ink on
fundamental issues with regard
to the architecture of 1992
Constitution which issues, in my
opinion, require definitive
determination by the Supreme
Court. The issues touched on in
the written briefs included;
whether the power of the
Attorney-General to enter
nolle prosequi derives from
Article 88 of the Constitution
or from Section 54 of Act 30
alone; whether the power of the
Attorney-General to enter
nolle prosequi takes the
nature of a royal prerogative or
it is a discretionary power
subject to the regular
jurisdiction of the courts for
judicial review, and; whether,
in view of Article 296(a) and
(b), Republic v Abrokwa
[1989-90] 1 GLR 385 is still
good law. It appears to me that
it is after the court has
decided these fundamental
constitutional questions that it
can, in a comprehensive way,
determine issue (ii) in this
case, which is the only
substantive issue for trial
placed before the court by the
parties.
I draw attention to these
matters because I have observed
that at times lawyers do not pay
sufficient attention in the
drawing up of issues for trial
on the basis of their pleadings
in a case. But what must be
recognized is that, in Ghana,
our law is founded on the common
law system and the
identification of issues for
trial in each case is critical
because of the doctrine of
precedent. A determination by a
court of an issue which was not
joined by the parties for trial
in a case becomes obiter dicta
and can be distinguished as non
binding. Therefore, for now, I
do not intend to expend mental
effort on the fundamental issues
I have referred to above as the
parties have only touched on
them without setting them down
for trial. It would have been a
different matter if the court
had directed the parties to
address us along the lines of
these fundamental questions.
Nonetheless, I will express
myself briefly on the
substantive issue before the
court. But before doing so, I
wish to record my agreement with
the lead opinion that the
plaintiff by his writ of summons
has properly invoked the
jurisdiction of the court so the
case is properly before us. On
the substantive issue, I have
noted from the statement of case
of the defendant that she
appears to concede that in the
current legal framework in
Ghana, the Attorney-General’s
authority to enter nolle
prosequi is a discretionary
power and is subject to
judicial review. At paragraph 16
of her statement of case, the
defendant submitted as follows;
“16. It is our respectful
submission that to the extent
that the burden of the complaint
of the plaintiff is about the
manner in which the prerogative
of nolle prosequi was exercised
by the Attorney-General without
regard to the requirements of
fairness, the instant action
lies in the realm of a judicial
review action. The court will
note that most of the foreign
decisions relied upon by the
counsel for plaintiff in the
plaintiff’s statement of case
dealt with judicial review
applications. The essence of the
holdings in those cases was that
the Attorney-General’s entry of
nolle prosequi was subject to
the judicial review powers of
the court. In our respectful
submission, articles 88 and 296
are clear. No ambiguity exists
about it. Thus, if plaintiff is
aggrieved by an exercise of the
prerogative of nolle prosequi by
the Attorney-General, he ought
to have applied for judicial
review at the High Court. In the
alternative, plaintiff could
have applied to the trial court
for an order setting aside the
decision to enter nolle
prosequi. This, he failed to do
and rushed to this Honourable
Court invoking the original
jurisdiction of the Court.”
(emphasis supplied)
That notwithstanding, the
defendant argued that the entry
of nolle prosequi is a
purely executive discretionary
power and that Article 296(c)
does not apply in the case of
purely executive powers. She
relied on the Supreme Court case
of Captan v Minister of
Interior (1970) CC 35. What
ought to be noted about that
decision is that the court held
in that case that the day to day
decisions of the executive in
the performance of their
ministerial duties would not
require the publication of
regulations. Similarly, in the
case of Ransford France (No
3) v Electoral Commission &
Attorney-General [2012]1 SCGLR
705, this court was of the
same view that, not all
discretionary power is subject
to the requirement to publish
regulations as provided for by
Article 296(c). But it cannot be
contested that there are certain
species of executive
discretionary powers that were
intended to be covered when the
framers of the Constitution,
1992 inserted the provision in
Article 296(c). After all, the
provision excluded judicial
discretionary power. So, the
relevant question that arises on
this issue is, whether the power
of the Attorney-General to enter
nolle prosequi, which
both parties have agreed is a
discretionary one, can be said
to be within the intendment of
Article 296(c). This question
can be answered without
determining whether the power of
nolle prosequi derives
from the Constitution or Act 30
because, Article 296 is
expressed to apply to
discretionary power conferred by
the Constitution or any other
law.
There are varied circumstances
that may lead to, or better
still, have led to,
Attorney-Generals filing
nolle prosequi in criminal
cases in Ghana and in other
common law jurisdictions. It may
be entered by an
Attorney-General to terminate a
private prosecution embarked
upon by a complainant who was
compelled to initiate
prosecution because the
Attorney-General failed to act
on her complaint for reasons
best known to the
Attorney-General. For now, I am
not aware of such a case in
Ghana but such circumstances led
to some of the international
jurisprudence on nolle
prosequi that the parties
referred to in their written
briefs. Such were the
circumstances in the Nigerian
case of The State v Ilori &
Ors (1984) 5 N.C.L.R. 40 and
the Privy Council case of
Jeewan Mohit v DPP of Mauritius
[2006] UKPC 20. In the case
of Jeewan Mohit v DPP of
Mauritius (supra) the Board
observed that the recent
experience of the United Kingdom
showed that it was only on two
occasions that the
Attorney-General entered
nolle prosequi to terminate
pending criminal proceedings and
in both cases it was because the
accused persons were too sick to
go through prosecution. Another
reason for which prosecution of
offenders may be terminated is
on account of international
relations such as the BAE
Systems plc case in the UK in
2006, but in that case the
discontinuance was not by way of
nolle prosequi. In all of
the above situations, the
accused persons are not
subsequently put on trial.
Then there are those cases where
the Attorney-General, upon a
review of the proceedings in a
case, detects fatal flaws in the
case of the prosecution which
may lead to the acquittal of an
accused person so, in order to
avoid a possible verdict against
the prosecution, she may enter a
nolle prosequi. See
A.N.E. Amissah; “Criminal
Procedure in Ghana”. 1985
Reprint, page 22. In such
cases, the accused person may be
re-presented to another court
for prosecution on the same
facts after the technical defect
in the prosecution’s case has
been rectified. It appears from
the record that the case of the
plaintiff may fall into this
category. As mentioned above, in
recent times, technical defects
is not used as the ground for
nolle prosequi in England
and Wales where our rule
originated from. In such
circumstances, prosecutors, with
the consent of the
Attorney-General, would instead
seek the leave of the court to
withdraw from the prosecution of
the accused person.
Section 59 of Act 30 contains
the provisions on withdrawal
from prosecution in Ghana and
the legal incidents of
withdrawal, depending on the
stage the case has reached, are
different from termination by
nolle prosequi.
Unfortunately, Section 59 of Act
30 limits the exercise of the
discretion to only trials and
proceedings before a District
Court whereas most of the
prosecutions that the
Attorney-Generals in Ghana have
had cause to terminate are cases
before the High Court. Section
59 of Act 30 appears to me to be
the provision intended to be
called upon when, midway in a
case, the prosecution entertains
doubts about the technical
propriety of the prosecution. In
2002, the Federal Rules of
Criminal Procedure of the United
States were amended and
dismissal of charges and
indictments, which is equivalent
to nolle prosequi in that
jurisdiction, made subject to
leave of the court and consent
of the accused person. Whenever
there is a review of our
Criminal and other Offences
(Procedure) Act, Section 59
should be taken a look at and
possibly amended to cover cases
in the High Court as well.
Whenever prosecution of a
suspected offender is a matter
of high public interest and the
prosecution is terminated either
by nolle prosequi or
other means, it has generated a
lot of controversy within the
public domain. In my view
therefore, nolle prosequi
is not one of those regular
duties that an Attorney-General
performs in the course of her
daily work. It is a
discretionary power that is
exercised only from time to
time, supposedly in the public
interest, and after taking into
consideration a number of
weighty factors. In the instant
case, the exercise of the
discretion has substantial
effects on the criminal justice
rights of the plaintiff who is
being subjected to another
arduous trial after four years
of a first one. It is equally of
interest to the relations of the
victim of the offence and has
consequences for public
confidence in the fairness and
independence of our of criminal
justice system in general.
The purpose of Article 296(c) is
to infuse transparency in the
exercise of discretionary powers
and thereby check abuse of
discretion by those upon whom it
is conferred. In the case of
nolle prosequi, with which
we are concerned in this case,
published regulations would
assure the public that the
Attorney-General can be held
legally accountable and
furthermore, published
regulations would provide a
framework within which, if the
exercise of the discretion of
nolle prosequi is
challenged, a court can judge
the fairness and reasonableness
of the nolle prosequi on
a case by case basis. In fact,
there have been instances where
Attorney-Generals under public
pressure, have disclosed the
considerations that led to the
entry of nolle prosequi.
In October 1976, the
Attorney-General of Ghana went
public to explain the factors
that led to the entry of
nolle prosequi in the case
of The Republic v El Helou &
Ors which involved high
public interest. In recent
times, the Attorney-General
offered an explanation for the
nolle prosequi entered to
terminate the prosecution of
Kwasi Kyei Darkwa, a popular
Ghanaian broadcaster. Is a
person in the situation of the
plaintiff in this case, who is
directly affected by the
Attorney-General’s exercise of
her discretion, not entitled to
know beforehand the factors that
were taken into consideration in
filing the nolle prosequi
in his case?
The decisions to prosecute and
to terminate prosecution of
suspected offenders is a matter
of immense public interest.
Furthermore, it affects the
rights of the suspected
offenders who may be compelled
to suffer the indignation of
prosecution when there is
seriously no point in mounting
prosecution on the facts of the
case. It is because of these
considerations that the modern
trend in democracies is for
prosecutorial authorities to be
open about the factors on which
they take the decisions to
initiate or terminate
prosecutions. In Canada, the
Attorney-General of Canada in
2008 and 2014, acting in
consultation with the Director
of Public Prosecutions (Federal)
and under provisions of their
Director of Public Prosecutions
Act, issued directives to guide
prosecutors as to the factors to
consider when exercising
prosecutorial powers. These
directives are to ensure that
prosecutors act fairly and
reasonably to all persons
affected by their decisions.
England and Wales adopted and
published a Code for Crown
Prosecutors that must be
strictly observed by
prosecutors. Permit me to quote
an introductory part of the
revised code of 2004;
“The decision to prosecute an
individual is a serious step.
Fair and effective prosecution
is essential to the maintenance
of law and order. Even in a
small case a prosecution has
serious implications for all
involved — victims, witnesses
and defendants. The Crown
Prosecution Service applies the
Code for Crown Prosecutors so
that it can make fair and
consistent decisions about
prosecutions.”
I am aware that the code would
not apply in the case of
exercise of the power of
nolle prosequi by
Attorney-General of England and
Wales who, by their unwritten
constitution, is vested with the
power to enter nolle prosequi.
That is understandable because
there, prosecutions are not at
the suit of the Attorney-General
as we have in Ghana by virtue of
Article 88(4). Prosecutions are
by the Crown Prosecution Service
pursuant to the Prosecution of
Offences Act 1985 and Crown
Prosecutors have power to
discontinue criminal
prosecutions. Though the power
to terminate criminal
proceedings in any case by entry
of nolle prosequi is
vested in the Attorney-General
of England and Wales, it is
rarely exercised.
Thus, it is now globally
accepted that the power to
initiate and terminate criminal
prosecutions must be exercised
in accordance with published
guidelines that ensure
consistency in decisions,
accountability of those on whom
the power is conferred and
guarantees transparency in its
exercise. I am therefore of the
firm opinion that the power of
entry of nolle prosequi
by the Attorney-General is
subject to the requirements of
Article 296 (c) and 11(7) of the
Constitution and I so hold on
issue (ii) in this case.
However, that holding does not
mean that the defendant was
bereft of legal authority to
file the nolle prosequi
in the case involving the
plaintiff in the High Court. I
am in agreement with the lead
opinion that she had authority
to file it. My view is that,
even without the regulations
that the defendant is required
by Article 296 (c) to publish
have not yet been enacted, her
exercise of the power under
Section 54 of Act 30 was lawful
but it is subject to the court’s
jurisdiction to review its
exercise in appropriate
proceedings.
Flowing from my decision on
issue (ii), I direct the
defendant to draft and lay
before parliament regulations on
the filling of nolle prosequi.
By way of Law Reform, I
recommend that the defendant
should give serious
consideration to publishing
regulations in respect of her
other functions with regard to
initiation, conduct and
discontinuance of criminal
prosecutions.
To conclude, I am unable to
consider the reliefs prayed for
by the plaintiff in his writ of
summons as the issues agreed for
trial did not cover them. I
therefore concur in the
conclusion reached in the lead
opinion but on different
grounds.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
ANSAH, JSC:-
I agree with the conclusion and
reasoning of my brother
Marful-Sau, JSC.
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
DOTSE, JSC:-
I agree with the conclusion and
reasoning of my brother
Marful-Sau, JSC.
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
YEBOAH, JSC:-
I agree with the conclusion and
reasoning of my brother
Marful-Sau, JSC.
A. YEBOAH
(JUSTICE OF THE SUPREME COURT)
DORDZIE (MRS.), JSC:-
I agree with the conclusion and
reasoning of my brother
Marful-Sau, JSC.
A. M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
KOTEY, JSC:-
I agree with the conclusion and
reasoning of my brother
Marful-Sau, JSC.
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
OSAFO BUABENG FOR THE PLAINTIFF.
GODFRED YEBOAH DAME, DEPUTY
ATTORNEY WITH HIM YVONNE
BANNERMAN (MS.) PRINCIPLE STATE
ATTORNEY FOR THE DEFENDANT |
