Case stated by Divisional Court
Summary trial of offences
appropriated for trial with a
jury under section
116 of Criminal Procedure
Ordinance-Jurisdiction to hem'
such cases summary or commit for
trial given by sect1'ons 17
and 18 of
Commissioner's Ord1:nance (Cap.
23)Porm of trial within
discretion of Magistrate not at
election of Accused.
Held: Magistrate was right in
determining case summarily.
K. A. Bossman
for Accused.
G.
L. Howe
for Crown.
The following joint
judgment was delivered
KINGDON, C.J., NIGERIA, AITKEN
AND GRAHAM PAUL, J.J
The question submitted in this
case stated by Yates, J. is "
whether a person charged in an
inferior Court with an offence "
that is triable either summarily
or upon information may elect "
whether he will be triable
summarily or upon information".
The accused stands charged
before the Police Magistrate,
Koforidua, with two offences,
viz:-
(a)
Forgery under section 306 of
Cap. 29.
(b)
Stealing under section 276 of
Cap. 29.
Forgery is an offence
appropriated by Order of the
Governor in Council to be tried
with a jury under the provisions
of section 116 of the Criminal
Procedure Ordinance (Cap. 31);
so also is stealing unless the
charge is laid under sub-section
(1) of section 276.
Section 116 of Chapter 31
provides that "the Governor in
"Council may .... provide by
order for appropriating any "
offence or class of offences not
punishable by death to be tried
"with a jury, .... and any
person charged with an offence "
(Erected by any such order to be
tried with a jury shall be so "
tried accordingly".
It is contended on behalf of the
accused person that he has the
right to claim to be tried by a
jury in accordance with the
provisions of that section
instead of being tried
summarily, although the Police
Magistrate may have jurisdiction
to deal with the case summarily.
Such a right is given to an
accused person in similar cases
in England by section 17 of the
Summary Jurisdiction Act, 1879.
and it is contended that a
similar right must be taken as
existing in the Gold Coast, the
local law being silent upon the
point. The question is purely
one of procedure, and section
116, from which the above
quotation is taken, comes under
Division 2 of Part 5 of the
Criminal Procedure Ordinance,
which division deals with the
mode of trial upon information.
The section provides how a trial
shall be conducted when it takes
place upon information; it does
not confer upon an accused
person a general right of trial
by jury in the case of the
appropriate offences.
Matters of procedure are
governed entirely by local laws,
and this is made clear by
section 15 of the Supreme Court
Ordinance (Cap. 158) which
reads:-
"The jurisdiction by this
Ordinance vested in the "
Supreme Court shall be exercised
(so far as regards " procedure
and practice) in the manner
provided by " this and the
Criminal .Procedure Ordinance,
or by ;, such rules and orders
of Court as may be made "
pursuant to this Ordinance".
The Police Magistrate's Court
forms part of the Supreme Court
by virtue of section 3 (1) of
the Police Magistrates'
Ordinance (Cap. 132) and by
section 4 of the same Ordinance
every Police Magistrate enjoys
all the judicial and magisterial
powers and functions of a
District Commissioner, subject
to modifications increasing his
powers.
The section of the Commissioners
Ordinance (Cap. 23) dealing with
the procedure when an offence is
triable either summarily or
upon information is number 18
and reads: - '.
" If any offence in respect
whereof a District Commissioner
has jurisdiction under section
17 hereof is " also triable on
information, he may, if he
thinks "fit, commit the accused
for trial on information "
instead of determining such
offence summarily ".
If the legislature had intended
to give every person accused of
an indictable offence the right
to elect to be committed for
trial by the Supreme Court it
would have been easy to have
added the appropriate words to
that section as was done in
England in 1879, but no such
provision was added.
Section 17 of the same Ordinance
confers upon a District
Commissioner jurisdiction to
hear and determine in a summary
manner the offences now under
consideration provided that he
is of opinion that the case will
be adequately dealt with by
imprisonment of the description
or either of the descriptions
applicable by law to the
offences for a term not
exceeding six months or with e.
fine not exceeding fifty pounds
or with both.
The Police Magistrate enjoys a
District Commissioner's powers and
therefore clearly has jurisdiction
to hear and determine the case in
a summary manner if he is of the
opinion above indicated. There is
nothing in the law to deprive him
of that jurisdiction or to compel
him to commit the accused for
trial if he does not think fit to
do so.
The answer to the question
submitted to us is therefore in
the negative. |