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Criminal
law – Supreme Court –
Constitutional law –
Interpretation - offences of
conspiracy Causing financial
loss to the state - Invoking the
original jurisdiction of the
court – Whether or not
Prosecution has failed to
provide sufficient details, as
required by Section 112 of the
Criminal and Other Offences
(Procedure) Act, 1960 (Act 30)
Whether or not an accused
person will be entitled to
disclosures, both pre-trial and
in the course of trial --
Article 19(2)(d) of the
1992
Constitution - Section of
179A (3)(a) of the Criminal
Offences Act, 1960 (Act 29) -
HEADNOTES
The facts relating to the
instant appeal are that, the
Respondent together with four
other persons were arraigned
before the High Court Accra on
counts of various offences. All
accused persons together with
the Respondent pleaded not
guilty to the various charges
preferred against them.
Thereafter, by an application
filed, the Respondent prayed the
trial High Court for an order to
compel the prosecution to
provide details of the actus
reus in terms of the acts
and/or omissions the Respondent
is directly responsible for,
which will provide the basis for
the charges preferred against
him as set out in the charge
sheet. In contesting the
said application, the
prosecution argued that it had
complied with its constitutional
obligation in terms of article
19(2)(d) of the constitution and
contended further that a reading
of the charges preferred against
the Respondent will reveal that
the prosecution had provided the
necessary information required
for the Respondent to
adequately put up a defence to
the charges preferred against
him. while the Trial High Court
is of the view that the offences
set out in the Charge Sheet and
in respect of which the
Respondent was arraigned before
the High Court, contain the
necessary details and/or
particulars in order for the
Respondent to appreciate the
nature and consequences of the
offences for which he was
charged, the majority of the
Learned Justices of the Court of
Appeal held to the contrary.
HELD
At the risk of being repetitive,
it must be made clear that the
Respondent has not been charged
under the facts but under the
charge sheet which includes the
particulars of offence. Thus
although the facts of the case
as narrated by the Prosecution
may be quite illuminating for
the accused, it does not absolve
the Prosecution of its
obligation to sufficiently and
reasonably set out the
particulars of offence in the
charge sheet. Whether or not
reasonable information has been
given an accused person in the
particulars of offence is on a
case by case basis. Each case
will have to be examined within
its own peculiar facts and
circumstances. The particulars
of offence should provide the
basic facts which will have to
be proved at the trial.
From my examination
of the record and the
application of the relevant law,
I do not find that a meritorious
case has been made by the
Prosecution to establish that
the Court of Appeal misconstrued
the import and purport of
article 19(2) (d) of the 1992
constitution and section 112 of
the Criminal and Other Offences
(Procedure) Act, 1960 (Act 30)
(as amended). The appeal
in my view fails for all the
reasons hereinbefore set out,
and I accordingly dismiss same.
The judgment of the Court of
Appeal dated 3rd
April 2020 is hereby affirmed
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Courts Act, 1993 (Act 459
Criminal Code (Amendment) Act,
1993 (Act 4580)
Criminal and Other Offences
(Procedure) Act, 1960 (Act 30)
Procurement Act 2003 (Act 663).
CASES REFERRED TO IN JUDGMENT
Ali Yusif Issa Vs. The Republic
(No.1) (2003/4) 2 SCGLR 289
Ali Yusuf Issa (No.1) Vs. The
Republic [2003-2004] 1 SCGLR
189
Yusuf Issa (No.2) Vs. The
Republic [2003-2004] 1 SCGLR 174
The Republic [2003-4]2 SCGLR
174,)
Republic Vs. Eugene Baffoe
Bonnie & 4 Others Suit No.
J6/1/2018 of 7th
June, 2018
Republic Vs. High Court, Accra
(Commercial Division); Ex parte
Hesse (Investcom Consortium
Holdings SA & Scancom Ltd. -
Interested Parties) [2007-2008]2
SCGLR 1230,
Republic Vs. High Court, Accra;
Ex-parte Yalley (Gyana & Attor
Interested Parties) [2007–2008]
SC GLR 512
Osei Kwadjo II Vs. The Republic
[2007-2008]2 SCGLR 1148
Osei Vs. The Republic (No.2)
[1971] GLR 449 HC
Hodgson Vs. The Republic [2009]
SCGLR 642
Francis Yirenkyi Vs. The
Republic Criminal Appeal
No.J3/7/2015 dated the 17th day
of February 2016
Republic Vs. Adam and Others
[2003-2005] 2 GLR 661
Kandy Vs. Government of Malaya
[1962] AC 322
Republic Vs. Eugene Baffoe
Bonnie & 4 Others; J6/06/2018
dated 7th June 2018
BOOKS REFERRED TO IN JUDGMENT
A.N.E Amissah “Criminal
Procedure in Ghana
Fifth Edition of Halsbury’s Laws
of England, Volume 27
DELIVERING THE LEADING JUDGMENT
AMADU JSC:-
COUNSEL
YVONNE ATAKORA-OBUOBISA
(DIRECTOR PUBLIC PROSECUTIONS
FOR THE RESPONDENT/APPELLANT.)
SAMUEL CUDJOE ESQ. (FOR THE 1ST
ACCUSED/APPELLANT/RESPONDENT.)
MUJEEB RAHMAN AHMED ESQ. (FOR
THE 2ND
ACCUSED/INTERESTED PARTY/ AMICUS
CURIA.)
THADDEUS SORY ESQ. (FOR THE 3RD
ACCUSED/INTERESTED PARTY/AMICUS
CURIA.)
AMADU JSC:-
(1)
The key question for
determination in this appeal is,
whether the offences for which
the Respondent was arraigned
before the High Court, satisfy
the constitutional requirements
of article 19(2)(d) of the 1992
Constitution and the relevant
law relating to preferring
charges against accused persons.
In the exercise of this Court’s
appellate jurisdiction which has
been invoked in the instant
proceedings by the Prosecution,
the Court has to determine which
of the two lower courts had
properly applied the
constitutional provisions just
referred to, as well as the
relevant law, to the facts on
record.
(2)
The appeal record discloses
that, whereas the Learned Trial
Judge found and held contrary to
the contention of the Respondent
that the offences for which he
was arraigned before the High
Court, as set out in the charge
sheet, satisfied the necessary
details and/or particulars
required by the constitutional
provisions of article 19(2)(d)
of the Constitution and the
relevant law and accordingly
well laid, the majority of the
Learned Justices of the Court of
Appeal held otherwise.
(3)
In other words, while the Trial
High Court is of the view that
the offences set out in the
Charge Sheet and in respect of
which the Respondent was
arraigned before the High Court,
contain the necessary details
and/or particulars in order for
the Respondent to appreciate the
nature and consequences of the
offences for which he was
charged, the majority of the
Learned Justices of the Court of
Appeal held to the contrary.
(4)
This appeal therefore arises out
of the majority decision of the
Court of Appeal dated 3rd
April 2020. Following the
delivery of the decision
aforesaid, the Appellant herein
which shall hereafter
conveniently be referred to as
“the Prosecution”,
filed an appeal on 9th
April 2020 against the judgment
of the Court of Appeal in its
expression of dissatisfaction
with the said judgment.
(5)
The notice of appeal contains
five main grounds of appeal
formulated and set out as
follows:-
“(a) That the Court of
Appeal erred when it refused to
follow its own
previous decision affirmed by
the Supreme Court, which is
binding on the Court.
(b) The Court of Appeal
erred when it held that the
Prosecution has
failed to provide sufficient
details, as required by Section
112 of the Criminal and Other
Offences (Procedure) Act, 1960
(Act 30) in the particulars of
the charges against the
Appellant/ Respondent.
(c) The Court
misconstrued the import and
purport of article
19(2)(d) of the 1992
Constitution and Section 112 of
the Criminal and Other Offences
(Procedure) Act, 1960 (Act 30).
(d) The Court erred when
it held that the prosecution
must
provide evidence of
the basic facts to be adduced at
the trial in the
particulars of the
charge sheet.
(e) The Court erred when
it held that the particulars of
the charges
against the
Appellant/Respondent as laid in
the charge sheet are the same as
the statements of offence.
(6)
In my view, to the extent that
one of the grounds of appeal
requires the Court to determine
the “import and purport of
article 19(2)(d) of the 1992
Constitution” in
relation to “Section 112
of the Criminal and Other
Offences (Procedure) Act,1960
(Act 30)”, as stated in
the third ground of the
prosecution’s appeal, I take the
view that the interpretation
jurisdiction of the court has
been invoked in this appeal for
the determination of the true
meaning and effect of article
19(2)(d) of the 1992
Constitution.
(7)
There can be no doubt that the
determination of the true and
proper meaning and effect of
article 19(2)(d) of the 1992
Constitution in relation Section
112 of Act 30 will illuminate
the path towards the
determination some of the other
grounds of appeal, such as the
second and fifth grounds of
appeal, which question the
majority decision of the Court
of Appeal on the grounds that
the prosecution failed to
provide sufficient details in
the particulars of the charges
against the Respondent. Further
that, the particulars of the
charges against the Respondent
as laid in the charge sheet are
the same as contained in the
statements of offence. This
judgment will therefore focus
mainly on the third ground of
the appeal while the rest of the
grounds of appeal, become
determined mutatis mutandis.
BACKGROUND
(8)
The facts relating to the
instant appeal are that, the
Respondent together with four
other persons were arraigned
before the High Court Accra on
24th July 2018 on 29
counts of various offences. All
accused persons together with
the Respondent pleaded not
guilty to the various charges
preferred against them.
Thereafter, by an application
filed on 15th January
2019, the Respondent prayed the
trial High Court for an order to
compel the prosecution to
provide details of the actus
reus in terms of the acts
and/or omissions the Respondent
is directly responsible for,
which will provide the basis for
the charges preferred against
him as set out in the charge
sheet.
(9)
I take notice that the
Respondent’s prayer to the trial
High Court to compel the
prosecution to provide details
of the acts and/or omissions on
the basis of which the
Respondent is being prosecuted
for the offences set out in the
charge sheet was raised by some
of the other accused persons.
The ruling of the trial High
Court against which the
Respondent successfully appealed
to the Court of Appeal bears
this out.
(10)
The Respondent’s case for an
order to compel the prosecution
to provide details of the acts
and/or omissions which form
the actus reus of the
offences in respect of which he
is facing prosecution in the
High Court is contained in an
affidavit in support of his
application in the trial High
Court.
(11)
In that application, the
Respondent deposed inter alia
that he was entitled to be
informed in detail of the nature
of the acts and/or omissions
which provide basis for the
offences in respect of which he
has been charged and for which
has been arraigned before the
trial High Court. The Respondent
submitted to the trial High
Court that his demand for the
details is justified by the
provisions of article 19(2)(d)
of the 1992 Constitution.
(12)
In contesting the said
application, the prosecution
argued that it had complied with
its constitutional obligation in
terms of article 19(2)(d) of the
constitution and contended
further that a reading of the
charges preferred against the
Respondent will reveal that the
prosecution had provided the
necessary information required
for the Respondent to
adequately put up a defence to
the charges preferred against
him.
(13)
To ensure a full appreciation of
the issues raised by the rival
contentions of the parties to
this appeal, I deem it pertinent
to reproduce in extenso
the charges preferred against
the Respondent. These are set
out in counts 1 to 18, 20 and 22
of the charge sheet. The
offences in these counts are the
offences of conspiracy to cause
and causing financial loss to
the Republic and contravention
of the Public Procurement Act
2003 (Act 663). They are as
follows:-
“Count One
Statement of Offence
Conspiracy to commit crime
namely, Wilfully Causing
Financial Loss to the State
contrary to Sections 23(1) and
179A (a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
1) Ernest Thompson, 2) John
Hagan Mensah, 3) Juliet Hassana
Kramer between September 2013
and January 2014 in Accra in the
Greater-Accra Region agreed to
act together with a common
purpose to wilfully cause
financial loss to the State.
Count Two
Statement of Offence
Wilfully Causing Financial Loss
to the State contrary to Section
179(A)(3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
1) Ernest Thompson, 2) John
Hagan Mensah, 3) Juliet Hassana
Kramer between September 2013
and January 2014 in Accra in the
Greater-Accra Region, wilfully
caused financial loss of
$28,500.00 to the State.
Count Three
Statement of Offence
Conspiracy to commit crime
namely, Wilfully Causing
Financial Loss to the State
contrary to Sections 23(1) and
179A (3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
1)Ernest Thompson, 2) John
Hagan Mensah, 3) Juliet Hassana
Kramer between July 2013 and
February 2014 in Accra in the
Greater-Accra Region agreed to
act together with a common
purpose to wilfully cause
financial loss to the State.
Count Four
Statement of Offence
Wilfully Causing Financial Loss
to the State contrary to Section
of 179A (3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
1)Ernest Thompson, 2) John Hagan
Mensah, 3) Juliet Hassana Kramer
between July 2013 and February
2014 in Accra in the
Greater-Accra Region, wilfully
caused financial loss of
$2,292,048.23 to the State.
Count Five
Statement of Offence
Conspiracy to commit crime
namely, Wilfully Causing
Financial Loss to the State
contrary to Sections 23(1) and
179A (3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
1) Ernest Thompson, 2) John
Hagan Mensah, 3) Juliet Hassana
Kramer between October 2013 and
April 2014 in Accra in the
Greater-Accra Region agreed to
act together with a common
purpose to wilfully cause
financial loss to the State.
Count Six
Statement of Offence
Wilfully Causing Financial Loss
to the State contrary to Section
179A (3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
1)Ernest Thompson, 2) John
Hagan Mensah, 3) Juliet Hassana
Kramer between October 2013 and
April 2014 in Accra in the
Greater-Accra Region, wilfully
caused financial loss of
$1,079,344.00 to the State.
Count Seven
Statement of Offence
Conspiracy to commit crime
namely, Wilfully Causing
Financial Loss to the State
contrary to Sections 23(1) and
179A (3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
1)Ernest Thompson, 2) John
Hagan Mensah, 3) Juliet Hassana
Kramer between January 2014 and
April 2014 in Accra in the
Greater-Accra Region agreed to
act together with a common
purpose to wilfully cause
financial loss to the State.
Count Eight
Statement Of Offence
Wilfully Causing Financial Loss
to the State contrary to section
179A (3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
1) Ernest Thompson, 2) John
Hagan Mensah, 3) Juliet Hassana
Kramer between January 2014 and
April 2014 in Accra in the
Greater-Accra Region, Wilfully
caused financial loss of
S12,469.80 to the State.
Count Nine
Statement of Offence
Conspiracy to commit crime
namely, Wilfully Causing
Financial Loss to the State
contrary to Sections 23(1) and
179A (3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
1)Ernest Thompson , 2) John
Hagan Mensah, 3) Juliet Hassana
Kramer between June 2014 and
January 2015 in Accra in the
Greater-Accra Region agreed to
act together with a common
purpose to wilfully cause
financial loss to the State.
Count Ten
Statement of Offence
Wilfully Causing Financial Loss
to the State contrary to Section
179A (3)(a) of the Criminal
Offences Act 1960 (Act 29).
Particulars of Offence
1) Ernest Thompson, 2) John
Hagan Mensah, 3) Juliet Hassana
Kramer between June 2014 and
January 2015 in Accra in the
Greater-Accra Region, wilfully
caused financial loss of
$100,895.70 to the State.
Count Eleven
Statement of Offence
Conspiracy to commit crime
namely, Wilfully Causing
Financial Loss to the State
contrary Sections 23(1) and 179A
(3)(a) of the Criminal Offences
Act, 1960 (Act 29).
Particulars of Offence
1) Ernest Thompson, 2) John
Hagan Mensah, 3) Juliet Hassana
Kramer between January 2015 and
March 2015 in Accra in the
Greater-Accra Region agreed to
act together with a common
purpose to wilfully cause
financial loss to the State.
Count Twelve
Statement of Offence
Wilfully Causing Financial Loss
to the State contrary to Section
179A (3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
1) Ernest Thompson, 2) John
Hagan Mensah, 3) Juliet Hassana
Kramer between January 2015 and
March 2015 in Accra in the
Greater-Accra Region, wilfully
caused financial loss of
$180,000.00 to the State.
Count Thirteen
Statement of Offence
Conspiracy to commit crime
namely, Wilfully Causing
Financial Loss to the State
contrary to Sections 23(1) and
179A (3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
1) Ernest Thompson, 2) John
Hagan Mensah, 3) Juliet Hassana
Kramer, 4) Caleb Kwaku Afaglo
between December 2015 and April
2016 in Accra in the
Greater-Accra Region agreed to
act together with a common
purpose to wilfully cause
financial loss to the State.
Count Fourteen
Statement of Offence
Wilfully Causing Financial Loss
to the State contrary to Section
179A (3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
1)Ernest Thompson, 2) John
Hagan Mensah, 3) Juliet Hassana
Kramer, 4) Caleb Kwaku Afaglo
between December 2015 and April
2016 in Accra in the
Greater-Accra Region, willfully
caused financial loss of
$5,465,909.14 to the State.
Count Fifteen
Statement of Offence
Conspiracy to commit crime
namely, Wilfully Causing
Financial Loss to the State
contrary to Sections 23(1) and
179A (3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
1) Ernest Thompson, 2) John
Hagan Mensah, 3) Juliet Hassana
Kramer between August 2015 and
September 2015 in Accra in the
Greater-Accra Region agreed to
act together with a common
purpose to wilfully cause
financial loss to the State.
Count Sixteen
Statement of Offence
Wilfully Causing Financial Loss
to the State contrary to section
179A (3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
Ernest Thompson 2) John Hagan
Mensah 3) Juliet Hassana Kramer
between August 2015 and
September 2015 in Accra in the
Greater-Accra Region, wilfully
caused financial loss of
$502,227.00 to the State.
Count Seventeen
Statement of Offence
Conspiracy to commit crime
namely, Wilfully Causing
Financial Loss to the State
contrary to Sections 23(1) and
179A (3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
(1)Ernest Thompson, (2) John
Hagan Mensah, (3) Peter Hayibor
between January 2016 and
September 2016 in Accra in the
Greater Accra Region agreed to
act together with a common
purpose to wilfully cause
financial loss to the State.
Count Eighteen
Statement of Offence
Wilfully Causing Financial Loss
to the State contrary to section
179A(3)(a) of the Criminal
Offences Act, 1960 (Act 29).
Particulars of Offence
1) Ernest Thompson, 2) John
Hagan Mensah, 3) Peter Hayibor
between January 2016 and
September 2016 in Accra in the
Greater-Accra Region, wilfully
caused financial loss of $5,141
,905.66 to the State.
Count Twenty
Statement of Offence
Contravention of the Public
Procurement Act contrary to
Section 92(2)(a) of the Public
Procurement Act, 2003 (Act 663).
Particulars of Offence
1) Ernest Thompson, 2) Juliet
Hassana Kramer in September 2013
in Accra in the Greater-Accra
Region colluded to quote the
price for the supply of two
servers for the Contact Centre
Avaya Solution at $28,500.00,
instead of the original
quotation of $50,000.00 in order
to obtain unfair advantage in
the award of a contract to PBS
Limited.
Count Twenty-Two
Statement of Offence
Contravention of the Public
Procurement Act contrary to
Sections 18(4)(a) and 92(1) of
the Public Procurement Act, 2003
(Act 663).
Particulars of Offence
Ernest Thompson between November
2015 and December 2016 in Accra
in the Greater Accra Region
approved the sum of
$9,536,652.50 an amount which is
above the threshold of the head
of an entity.”
(14)
The trial High Court after
hearing arguments from the
parties herein, as well as the 2nd
and 3rd accused
persons who had separately filed
similar applications before the
trial High Court, (having
consolidated same) ruled on
16th April, 2019
declining the Respondent’s
application in its entirety.
(15)
The Trial Judge opined that the
charges as laid contained
adequate and reasonable details
and particulars to enable the
accused persons appreciate the
nature of the charges brought
against them. Dissatisfied with
the ruling of the trial High
court, the Respondent escalated
his prayer for an order
compelling the prosecution to
provide details of the acts and/
or omissions the reason for
which he is being prosecuted
with the offences the subject
matter of the proceedings,
before the trial High Court by
an appeal to the Court of
Appeal.
(16)
APPEAL TO THE COURT OF APPEAL
In his appeal to the Court of
Appeal by notice of
interlocutory appeal filed on 26th
April 2019, the Respondent
prayed the Court of Appeal to
set aside the ruling of the
trial High Court refusing his
prayer for an order compelling
the prosecution to provide
details of the acts and/or
omissions, the reason for which
he is being prosecuted. In the
said notice of appeal to the
Court of Appeal, the
Respondent attacked the decision
of the trial High Court on the
following grounds:
“ i. The Learned Judge
committed an error of law when
he held
that Section 112 of Act 30 (as
amended) has been complied with
by the Prosecution.
PARTICULARS OF ERROR OF LAW
i. By the provision of
Article 19(2)(d) of the 1992
Constitution the
Prosecution is required
by law to provide details of a
charge
and not to provide
"sufficient" information of the
charge to
Appellant.
ii. The Learned judge
misdirected himself on the duty
imposed on
the Prosecution
under Article 19(2)(d) of the
1992 Constitution
by equating
provision of "details" to an
accused to provision of
"evidence".
iii. The Learned Judge
committed an error of law when
he upheld
the Court of Appeal's
decision interpreting Article
19(2)(d) of the
1992 Constitution.
PARTICULARS OF ERROR OF LAW
i. By law, it is only the
Supreme Court which has the
power to
interpret the constitution.
ii. That the
interpretation by the Court of
Appeal of article
19(2)(d) is null and void and
not binding on the High Court.
iii.The Learned Judge erred when
he interpreted article 19(2)(d)
of the 1992 Constitution.
(17)
The grounds of appeal on which
the Respondent challenged the
decision of the trial High Court
to the Court of Appeal,
reaffirms the earlier
observation that the appeal
before this court turns on the
true and proper interpretation
to be placed on the provisions
of article 19(2)(d) of the
Constitution. This is obvious
from the Respondent’s first
ground of appeal before the
Court of Appeal. This ground
assails the decision of the
trial High Court on the ground
that the High Court committed an
error of law when it held that
Section 112 of Act 30 (as
amended) has been complied
with by the Prosecution.
(18)
In particularizing his first
ground of appeal to the Court of
Appeal, the Respondent contended
that by the provisions of
article 19(2)(d) of the 1992
Constitution the prosecution is
required by law to provide “details”
of a charge and not to provide "sufficient"
information of the charge to the
Respondent. The Respondent
proceeded to contend in second
ground of appeal before the
Court of Appeal that, the trial
High Court misdirected itself on
the duty imposed on the
prosecution under Article
19(2)(d) of the 1992
Constitution by equating
provision of "details"
to an accused to provision of
"evidence".
(19)
The issue of interpretation was
more forcefully canvassed in the
third ground of the Respondent’s
grounds of appeal to the Court
of Appeal wherein he alleged
that the trial High Court
committed an error of law when
it upheld the Court of Appeal's
decision interpreting Article
19(2)(d) of the 1992
Constitution. The Respondent
explained this error in the
particulars of error of law by
contending that, it is only the
Supreme Court which has the
exclusive jurisdiction to
interpret the constitution for
which reason any interpretation
by the Court of Appeal of
article 19(2)(d) of the
constitution is null and void
and not binding on the High
Court.
(20)
This issue of interpretation is
repeated in the Respondent’s
fourth ground of appeal to the
Court of Appeal in which the
Respondent again assails the
decision of the trial High Court
on the ground that the said
court erred when it interpreted
article 19(2)(d) of the 1992
Constitution.
(21)
JUDGMENT OF THE COURT OF APPEAL
On 3rd April 2020,
the Court of Appeal by a
majority decision upheld the
Respondent’s appeal and
consequently directed the
Prosecution to amend the Counts
in the charge sheet and provide
additional details to enable the
Respondent have reasonable
information to enable him
prepare adequately for his
defence. In coming to its
decision, the majority of the
Learned Justices of the Court of
Appeal made the following
observations:
“(a) In the view of the
Court, from the grounds of
appeal and the
submissions of the Respondent
all that he is complaining about
is that the particulars of
offence of some the charges do
not provide him with adequate
information to enable him
organize his defence.
(b) What is needed and
should be supplied to the
Accused Persons on
application of both Article
19(2) (d) and Section 112 (1)
and (2) is information on a
charge sheet considered detailed
and therefore reasonable in the
peculiar facts of each case to
enable accused prepare his
defence. Understood in this way,
both provisions can co-exist
without descending into any
intricate interpretation
exercise.
(c) What may be mentioned
in the facts of the case by the
prosecution
may not necessarily be part of
the particulars of offence which
the prosecution is obliged to
prove. The Accused is not
charged under the facts but
under the charge sheet which
includes the particulars of
offence. To contend therefore
that the facts of the case as
narrated by the prosecution is
necessarily part of the
information channels from which
the Accused must know the
particulars of offence for which
he has been charged for which
reason the Accused need not
insist on anything more, should
not be an appealing proposition
to make.
(d) Section 112 of Act 30
does not make the facts
supplemental to the
particulars provided in the
charge. Whether or not
reasonable information has been
given the Accused Person in the
particulars of offence is on a
case by case basis.
Each case will have to be
examined within its own facts
and circumstances. The
particulars of offence should
provide the basic facts which
will have to be adduced at the
trial.
(e) Where the facts are
intricate it may be necessary to
provide more
detailed particulars than where
the case is devoid of any
intricacies.
(d) In the case of Ali
Yusif Issa Vs. The Republic
(No.1) (2003/4) 2
SCGLR 289 & The Republic
[2003-4]2 SCGLR 174,) (Issa
case)
their Lordships were considering
the charge faced by the Accused
within the factual circumstance
of that case when they held that
the particulars of offence
disclosed reasonable information
for his defence. We do not
understand their Lordships in
the Issa case to have settled
the principles regarding the
particulars of offence in every
charge and that it is sufficient
if the charge laid contained
information on;
1. The name of the Accused.
2. The date of the alleged
commission of the offence.
3. The region.
4. The amount of loss and no
other details or information as
we have in the Issa case.
(e) Understood as such we
are of the opinion that the case
cannot be
Be a binding authority on what
the particulars of offence
should contain, as the Trial
Judge appears to have concluded.
The Court of Appeal and Supreme
Court in the Issa case could not
have determined what the
particulars of offence should be
in every charge under Section
179A (3) (a).
(f) In each case under
Section 179A (3)(a) of causing
financial loss to
the state, the nature of the
particulars of
offence will have to be
determined based on the facts
and complexity of each case. The
basic facts of the case
should be provided
in the particulars of the
offence.
(g) What evidence needs to
be provided is dependent on the
peculiarities of each case. It
will be defeating of our present
day anti-ambush litigation to
feel threatened providing
requisite particulars on a
contention that, that will be
providing evidence.
(h) Provision of
reasonable particulars in a
charge sheet should be
seen as one of the disclosure
mechanisms emphasized in
the case of the Republic Vs.
Eugene Baffoe Bonnie & 4 Others
Suit No. J6/1/2018 of 7th
June, 2018 aimed at balancing
the scales between the Accused
Person and the State.
(i)
From the Republic Vs. Eugene
Baffoe Bonnie & 4 others
case’ it is clear to us that
where further particulars of
offence ought to be provided to
the Accused, that will have to
be done unhesitantly. It should
not always be the prosecution
that should lead and decide what
to disclose for the trial.
(j) The Accused also has
the right to demand disclosure
if what he
deems necessary to properly
inform him of the particulars of
the offence in respect of which
he has been charged have not
been supplied by the prosecution
and must not necessarily rely on
what the prosecution provides.
(k) The facts or
disclosures cannot be a source
of information to
supply reasonable information
before the Accused pleads to the
charge. This is so because in
the sequel of events the Accused
pleads to the charge before the
facts are read out and also
before any disclosures are made.
(l) Section 112 of Act
30 does not admit of any
assistance from facts
of the case or disclosures as
part of the requisite
particulars of offence.
(m) Failing to provide the
necessary particulars has the
potential of
Prejudicing the Accused’s right
to seek for appropriate
disclosures.
(n) The right to
disclosure does not dispense
with the duty placed on
the Prosecution to provide an
accused person with sufficient
information of the charges
against him in the particulars
of the charge under Section 112
of Act 30 neither does it
take away the right of an
Accused to demand sufficient
particulars of the charge
against him where the
information contained in the
particulars is deficient.
(o) That an accused person
will be entitled to disclosures,
both pre-
trial and in the course of
trial, should not be sufficient
reason to deny him the requisite
particulars the section has
demanded he be given,
particularly at the beginning of
the trial to enable him organize
his defences.
(p) There is a difference
between the statement of offence
and the
particulars of offence. The
difference lies in the
further particulars
that will make it clearer to the
Applicant what exactly he is
being charged for.
(q) We are of
the view that the particulars of
offence in Counts
2, 4, 8, 10, 12, 14, 16, 18 and
22 do not meet the requirement
of sufficient particulars as
demanded by Section 122 of Act
30.
(r) Counts 1,
3, 5, 7, 9, 11, 13, 15 and 17
are conspiracy charges for
which there could be conviction
separate from the substantive
offices. It behoves on the
prosecution to provide further
information in the particulars
of these offences to enable the
Respondent know for what he is
alleged to have conspired.”
(22)
The Prosecution being
dissatisfied with the majority
decision of the Court of Appeal
aforesaid, appealed from the
said decision. This appeal
therefore raises an important
issue in our criminal law
jurisprudence particularly on
the practice and procedure in
formulating charges and the
extent to which it is impacted
by the provisions of article
19(2)(d) of the 1992
Constitution. It is in this
context that the appeal before
this court must be appreciated
and understood. But for the
clarity that this case will
provide to the preferment of
charges in our jurisdiction, the
first obstacle that the appeal
would have been required to
surmount is the question whether
or not the Court of Appeal’s
decision on appeal to this Court
serves the interest of justice
or otherwise. In other words,
what harm would the prosecution
suffer or how is the
administration of justice
undermined by providing the
details of the charges requested
by the Respondent to enable him
prepare in defence of the
charges brought against him?
(23)
APPEAL TO SUPREME COURT
The grounds on which the
prosecution has invoked the
appellate jurisdiction of this
court have already been fully
set out in this judgment. As
earlier observed with regard to
the grounds formulated, ground
(c) encapsulates the crux of the
appeal to this court. The said
ground raises the question as to
the extent to which the
provisions of Section 112 of the
Criminal and Other Offence
(Procedure) Act, 1960 (Act 30)
are affected by the provisions
of Article 19(2)(d) of the 1992
Constitution. I shall therefore
proceed to discuss the
constitutional provisions of
article 19(2)(d) of the 1992
Constitution first. Thereafter,
I shall examine the grounds of
appeal urged on this court. This
approach is inevitable since the
court has to consider the
meaning and effect of the said
constitutional provision.
(24)
INTERPRETATION OF ARTICLE
19(2)(d) OF THE 1992
CONSTITUTION.
Article 19(2)(d) of the
Constitution provides as
follows;
“(2) A person charged with a
criminal offence shall
(d) be informed
immediately in a language that
he understands,
and in detail of the nature of
the offence charged”.
The basic rule in the
interpretation of statutes
including the Constitution is
that, courts must strive to
uphold the plain meaning of the
statutory provisions under
construction. In the case of
Republic Vs. High Court, Accra
(Commercial Division); Ex
parte Hesse (Investcom
Consortium Holdings SA & Scancom
Ltd. - Interested Parties)
[2007-2008]2 SCGLR 1230,
Wood CJ referred to her earlier
decision in the case of
Republic Vs. High Court, Accra;
Ex-parte Yalley (Gyana & Attor
Interested Parties)
[2007–2008] SC GLR
512 in which her ladyship
examined the case law on
statutory interpretation and
observed that in the
construction of statutes, the
literalist, ordinary, plain, or
grammatical meaning, should be
adhered to, if it clearly
advances the legislative purpose
or intent and does not lead to
any outrageous or absurd
consequences.
(25)
Bearing in mind the rule of
interpretation just referred to,
the question that arises is
simple; what is the plain
meaning of article 19(2)(d) of
the 1992 Constitution? The
first thing to note in article
19(2)(d) of the 1992
Constitution is the fact that it
is mandatorily couched. This is
confirmed by the use of the word
“shall” appearing
in the provision. Section 42 of
the Interpretation Act requires
the Court to place a mandatory
meaning on the word
“shall” wherever it
appears in a statutory provision
unless the context otherwise
requires.
(26)
Thus, the plain meaning of
article 19(2)(d) of the
Constitution clearly is that a
person charged with a criminal
offence must be informed, “in
detail” of the nature of
the offence charged. The words
“in detail”
appearing in the constitutional
provision emphasises the extent
of information required for
purposes of complying with the
said constitutional provision.
The plain meaning ascribed to
the provisions of article
19(2)(d) of the 1992
Constitution is more compelling
when account is taken of the
general purpose of article 19
itself. Its side notes indicate
that it has to do with fair
trial. The whole of Article 19
of the Constitution is therefore
devoted to ensuring that accused
persons enjoy the fundamental
right to a fair tria. In the
first clause therefore, it
provides that;
“19.(1) A person charged with a
criminal offence shall be given
a
fair hearing
within a reasonable time by a
court.”
(27)
All of the subsequent provisions
of the article then set out the
various matters necessary for
ensuring that, from the time the
criminal process is initiated
against a person, all steps
taken must ensure safeguard this
right to a fair trial. This is
the context in which the
provisions of article 19 Clause
(2) (d) of the 1992 Constitution
must be applied
(28)
Interestingly, this position is
not without precedent as this
court has previously taken the
same view. When in determining
the requirement of the charge
sheet, the two specific matters
of the statement of the offence
and the particulars thereof, the
majority in the case of Osei
Kwadjo II Vs. The Republic
[2007-2008]2 SCGLR 1148 held
to the same effect. It
must be pointed out however that
the part of the judgment in
which the issue raised by the
instant appeal was decided are
omitted from the report but are
contained in the unreported
judgment. (See the unedited
judgment in Criminal Appeal
No.2/2000 dated 11th
July, 2008).
(29)
In identifying the very issue
before us in this appeal Kpegah
JSC in delivering the majority
decision of this court in the
case under reference observed
that, the court had raised
suo motu an issue regarding
defective particulars contained
in the charges the appellant was
required to defend. The majority
of the court had taken the view
that, the defective charges
could undermine the whole trial.
In interpreting article 19(2)(d)
of the 1992 Constitution, Kpegah
JSC in characteristic detailed
erudition held inter alia
that:- “...the comma
before the “and” makes the “and”
disjunctive and clearly
indicates that the person
charged must not only be
immediately informed of the
nature of the offence in a
language he understands, but
also “IN DETAIL.”
The majority of the court noted
that an indication as to the
true and proper meaning and
effect of the constitutional
provision in issue before the
court was provided by the
earlier case of Osei Vs. The
Republic (No.2) [1971] GLR 449
HC. In the said case, the
High Court relied on the
provisions of article 20(2)( c)
of the 1969 Constitution which
is in pari materia with
article 19(2)(d) of the 1992
Constitution and allowed an
appeal against a conviction for
want of sufficient particulars
to meet the constitutional and
statutory requirement.
(30)
In determining the instant
appeal therefore, I am guided by
the meaning ascribed to article
19(2)(d) of the 1992
Constitution by the majority
decision in the Osei Kwadjo
II case (supra). The
Court’s decision therefore is
that article 19(2)(d) of the
constitution cannot mean more or
less than its plain and
unambiguous words present.
Accordingly, article 19(2)(d) of
the constitution having been
already interpreted by this
court, it paves the way for the
court to examine the arguments
canvassed by the prosecution on
the grounds of appeal on which
basis the prosecution has
invoked the appellate
jurisdiction of this Court.
(31)
APPELLANT’S ARGUMENTS.
GROUNDS (A)
“the Court of Appeal erred when
it refused to follow its own
previous decision affirmed by
the Supreme Court, which is
binding on the Court.”
In support of this ground of
appeal, the prosecution argues
that the Court of Appeal erred
when it refused to follow its
own previous decision in Ali
Yusuf Issa (No.1) Vs. The
Republic [2003-2004] 1 SCGLR
189 (hereinafter
conveniently referred to as Issa
No.1) which was affirmed by
this Honourable Court in the
case of Ali Yusuf Issa
(No.2) Vs. The Republic
[2003-2004] 1 SCGLR 174 (hereinafter
conveniently referred to as Issa
No. 2). The prosecution
contends that even though these
two decisions (Issa No.1)
and (Issa No.2) were
brought to the attention of the
Court of Appeal and were
respectfully urged on that
court, it refused to follow the
said decisions.
(32)
The prosecution has argued
further that, the majority of
the Court Appeal declined the
invitation to tread the path of
the decisions aforesaid though
in the case under reference, the
Court of Appeal was called upon
in (Issa No. 1) to
determine the legality of the
charge laid under Section 179 of
the Criminal Offences Act,1960
(Act 29) within the context of
articles 19(11) and article
19(2)(d) of the 1992
Constitution. The prosecution
further contends that, since
(Issa No.1) determined that
the charge as laid had met the
legal and constitutional
requirements, the Court of
Appeal in the instant case could
not depart from that decision to
hold that, the charges which
have been drafted in the same
material manner, did not meet
the constitutional and other
legal requirements. The
prosecution argues that that the
Court of Appeal was bound not
just by its own previous
decision but by the decision of
this Court in (Issa No.2)
as well. The question then is:
Have the Provisions of
article 19(2)(d) of the
Constitution been interpreted
previously?
(33)
A reading of the decision of
this Court in (Issa No.2)
will reveal that the only part
of the judgment of this Court
which discussed the provisions
of article 19(2)(d) of the
Constitution is that which
appears in page 187 of the
report where Sophia Akuffo JSC
(as she then was) held as
follows; “In coming to the
foregoing conclusions, we would
state that, in a nutshell, we
have taken into consideration
all the proceedings in this case
and all papers filed on behalf
of the parties, including
interlocutory proceedings, the
grounds of appeal filed and
everything laid before this
court and we have determined
that:-
a.
The charge based on the Criminal
Code, (Act 29) as amended,
i.e. Section 179A (3)(a), is
constitutional and has been
legitimately laid under the
Criminal Code. The charge and
the provisions under which it
was brought have in no way
violated the provisions of
article 19 of the Constitution.
We fully adopt and affirm the
reasons and opinions of the
Justices of the Court of Appeal
(Coram: Brobbey, Baddoo and
Amonoo-Monney JJA) in Ali Yusuf
(No.1) Vs. The Republic (No.1),
CRA 22/2001, 25 June 2001
(reported in [2003-2004] 1 SCGLR
189 post).”
(34)
In reporting on the nature of
the proceedings, it is clear
from a reading of the report
that the judgment of this Court
in the (Issa No.2) case
resulted from an appeal from the
judgment of the Court of Appeal
which had affirmed the
Appellant’s conviction. The
report is therefore clear that
the judgment of this Court in (Issa
No.2) resulted from the
appeal to this court. At page
181 of the report, the judgment
of this Court on the nature of
the proceedings is confirmed in
the following words:-“At
the hearing of this appeal, we
drew the attention of counsel
for the Appellant to the
interlocutory appeal in which he
had raised the issue as to the
constitutionality of the charge
brought against the Appellant in
count two. Counsel's reply was
that, once an appeal is by way
of a rehearing, the Court of
Appeal's decision on the
constitutionality of the charge,
together with its decision on
all other issues, are all before
us. He, therefore, invited us to
consider all of the record
before us.” In
delivering itself this Court
particularly noted as follows:-
“Regarding the evidence,
we have reviewed the entire
record of proceedings and have
no doubt that the Appellant's
conviction, as well as the
confirmation thereof by the
Court of Appeal and the
respective reasons, given by the
learned Justices of Appeal for
their conclusions, are amply
supported by the evidence
adduced by the prosecution.”
(35)
It is undoubtedly apparent that
the decision of this Court
therefore turned on the view
taken that, the Appellant's
conviction in that case was
amply supported by the evidence
adduced by the prosecution. The
decision therefore can be fairly
said to have resulted from the
peculiar facts of the case
before this Court which in the
exercise of its appellate
jurisdiction is confined to the
record before it in exercise of
its power of rehearing. To the
extent that this Court adopted
and affirmed the opinions of the
Justices of the Court of Appeal
in Ali Yusuf (No.1)
regarding the charge based on
the Criminal Code, (Act 29) as
amended, i.e. Section 179A
(3)(a) as legitimately laid
under the Criminal Code and in
no way violative of the
provisions of article 19 of the
Constitution, I shall briefly
examine the decision of the
Court of Appeal in the (Ali
Yusuf No.1) case.
(36)
From my reading of the judgment
of the Court of Appeal in the
(Ali Yusuf No.1) case, there
is no doubt whatsoever that the
judgment turned on the peculiar
facts of the case. The judgment
Brobbey JA (as he then was)
bears this out. The Learned
Justice noted that in so far as
the peculiar facts of the case
were concerned, the Appellant
knew the details of the charges
he was facing. He particularly
pointed out in page 200 of the
report as follows:- “If
charges have been preferred
against him, and which he will
be required to answer by way of
his defence. If the particulars
were not detailed to the
appellant, the questions that
may be asked are these three:
was the Appellant given
US$46,000 belonging to a public
body; Secondly, has he
produced it to its owner; and
thirdly, is it lost? These
questions in no way imply that
the Appellant has stolen the
money or has misappropriated the
moneys. However, the Appellant
knows that he was given
US$46,000 and he also knows that
the money was lost at a time
when the rightful owner had not
received it from him. If he is
charged with an act or omission
that has resulted in the loss of
the US$46,000 what other detail
does he need in order to prepare
his defence to the charges?”
His Lordship had earlier
in the judgment pointed out as
follows:- “Needless to
say, the essence of reasonable
information is to enable the
accused to know the nature of
the charge he faces so as to
enable him to adequately prepare
his defence to the charge.
Therefore, what one should ask
is whether or not from the
particulars, the appellant or
any objective reader of the
charge will know what kind of
allegations have been levelled
against the appellant for which
the charges have been preferred
against him, and which he will
be required to answer by way of
his defence.”
(37)
From a review of the judgment of
Brobbey JA (as he then was)
there is no doubt in my mind
that, the Court of Appeal based
its decision on the peculiar
facts before the Court. The
Court of Appeal in that case
therefore reached the conclusion
after a review of the charges
preferred against the Appellant
and held that:- “The
particulars surely inform the
appellant that he was given
US$46,000 which were lost and it
was for that loss that he was
charged and so he was required
to prepare and make his defence
to that allegation of the loss
of the US$46,000. That is all.
In other words, the information
contained in the particulars of
the second charge are reasonable
enough for the appellant to know
why he had been charged in
court. No more detailed
particulars are required to
inform the Appellant of the
facts constituting the second
charge.”
(38)
The observation just made is
also obvious from the judgments
of the other Learned Justices of
the Court of Appeal. Each of
them examined the charge sheet
and reached the conclusion that
the charges contained sufficient
information to enable the
Appellant prepare his defence.
In the judgment of Baddoo JA
(as he then was), it is
reported in pages 205-206 as
follows:- “Now the
question is, does the
particulars in count two comply
with the provisions of Section
112 of Act 30? Do the
particulars give the appellant
reasonable information as to the
offence he has committed? Yes,
the particulars do give
reasonable information to the
appellant of the charge brought
against him. The particulars
state that through his
fraudulent action, the Ghana
Football Association incurred a
loss of $46,000.”
(39)
This conclusion resulted from an
examination of the charge sheet.
The judgment of Amonoo-Monney
J.A is also instructive on this
point. For his part, the learned
Justice took the view that given
the extensive nature of the
investigations by the
Appellant’s interaction with the
police, the details of the
offence in respect of which he
was charged, must have been
clear to him by the time he
was arraigned before the trial
court for trial. It must be
noted that, the judgment of
Amonoo-Monney JA may be
contrasted with that of
Hodgson Vs. The Republic [2009]
SCGLR 642 decided by this
court. In that case, this Court
also considered the effect of
the provisions of article
19(2)(d) of the Constitution in
an appeal before the Court. This
court noted at page 658 as
follows:- “On the first
ground of appeal, counsel for
the respondent, Evelyn Keelson,
contends that what the Appellant
needed was reasonable
information to enable him
prepare and defend himself. She
referred to Section 112(1) the
Criminal and Other Offences
(Procedure) Act, 1960 (Act 30).”
On the same page of the
report, this court noted as
follows:- “Counsel also
made reference to Section 406(1)
of the same Act 30 and submits
that by this section, a finding,
sentence or order passed by a
court of competent jurisdiction
cannot be altered or reversed or
altered on appeal or review on
account of error, omission or
irregularity in the complaint,
summons, charge, judgment,
order, etc. unless such error,
omission, irregularity or
misdirection, has in fact
occasioned a substantial
miscarriage of justice. Counsel
also referred to Section 31(2)
of the Courts Act, 1993 (Act
459)....” This Court
then proceeded to note at page
664 as follows:- “On article
19(2)(d) of the 1992
Constitution,... What the
article 19(2)(d) states is “
A person charged with a criminal
offence shall be informed
immediately in a language that
he understands, and in detail of
the nature of the offences
charged.” In the light of
the wording in the statement of
offence as stated in the charge
sheet, Exhibit AA, the Appellant
was informed of the offences
with which he was being charged
and, indeed, this was in the
presence of his counsel lawyer
Addo- Atuah. He had relied on an
earlier statement he had made to
the police. At the trial, he
knew the nature of the offences
he was being tried for and from
the first count and, on the
evidence, the particular offence
which he conspired to commit was
made clear to him. We therefore
do not agree that article
19(2)(d) was infringed upon”.
(40)
In all of these cases therefore,
this Court examined the evidence
before the Court in determining
the fundamental human rights
provisions of the Constitution
in relation to the Appellant’s
right to a fair trial. In the
instant case however, the
objection has been raised in
limine. Having regard to the
consideration given to the
Issa cases and that of
Hodgson, it is
legitimate to say that the only
real case in which the court may
be said to have laid down
principles of interpretation of
article 19 of the 1992
Constitution is the Osei
Kwadjo II case. Although
that case was also decided in
the context of an appeal, this
court took time to explain the
meaning of the constitutional
provision in issue. In this
judgment part of that
interpretation has already been
referred to.
(41)
Did the Court of Appeal in the
instant appeal refuse to follow
the Issa decisions?
In contrasting the decisions of
the Court of Appeal and that of
the Supreme Court in the Issa
cases with the decision of
the Court on appeal in the
instant appeal, it is difficult
to agree with the Prosecution
that the Court of Appeal refused
to follow the said decisions. As
already pointed out, the
decision of this court in the
Issa case on the point under
discussion affirmed the decision
of the Court of Appeal after
re-hearing the appeal without
adding anything. A careful
reading of the judgment of the
Court of Appeal in the Issa
case confirms without a
shadow of doubt that all three
Learned Justices of the Court of
Appeal affirmed the fundamental
human right enshrined in article
19(2)(d) and stated
unequivocally that every accused
person is entitled to reasonable
information to enable him know
the nature of the charge he
faces so as to enable him
adequately prepare his defence
to the charge. The Learned
Justices however took the view
that on the evidence before the
court, the Appellant’s complaint
that his fundamental human
rights guaranteed by article
19(2)(d) of the Constitution had
been violated had not been made
out.
(42)
In the instant appeal, I donot
accept the contention of the
prosecution that the Court of
Appeal committed any error of
law as alleged in first ground
of appeal. The conclusion
reached by the Court of Appeal
in this case is in tandem with
that of the Court of Appeal in
the Issa case in so far
as the principles for
formulating charges are
concerned. I hold the view that
the proper formulation of
criminal charges requires the
prosecution to sufficiently
indicate to the accused person
the nature of the acts the
commission or omission of which
has led to the event which the
law has prohibited with penal
consequences for its violation.
(43)
I take note that in the instant
appeal, although the Court of
Appeal applied the principles in
the Issa case as therein
declared, it reached a different
conclusion from that in the
Issa case because the facts
and circumstances
of the two cases
are peculiarly different.The
doctrine of stare decisis
as enshrined in articles 129
clause (3) and 136 clause (5) of
the 1992 Constitution requires
that the principles of law
settled in by the Court of
Appeal and the Supreme Court be
followed. In following and
applying the same principles
however, the Supreme Court and
the Court of Appeal may reach
the opposite conclusion of the
case whose principles were
followed and applied on the
basis of the varying facts that
are considered in each case as
the court is not
constitutionally enjoined to
walk into the full jacket of
judicial precedent irrespective
of the peculiar facts giving
rise to a dispute. It cannot
therefore be overemphasized that
judicial decisions are made to
resolve particular disputes.
Thus each decision derives its
peculiar quality of justice,
soundness and profoundness from
the surrounding factual
circumstances peculiar to the
case it is presumed to
adjudicate within the context of
the relevant applicable law.
(44)
Ground b
In the Prosecution’s second
ground of appeal, the
prosecution assails the judgment
of the Court of Appeal as
follows:- “The Court of
Appeal erred when it held that
the Prosecution has failed to
provide sufficient details as
required by Section 112 of the
criminal and other offences
(Procedure) Act 1960 (Act 30),
in the particulars of the
charges preferred against the
Appellant/ Respondent”.
It is noted that, in the Issa
No.1 case, Brobbey JA (as
he then was) explained
Section 112 of Act 30 as
follows:- “That ground raised
the perennial issue as to what
particulars should be included
in a criminal charge. The
well-settled rule is that the
charge should contain sufficient
particulars that will enable the
accused person to know the
nature of the charge he faces.
This principle was well settled
by the Criminal Procedure Code
(Amendment) Act, 1965 (Act 261),
which amended the original
provision in section 112 of Act
30. The relevant provisions of
section 1 of Act 261 read as
follows:-
“(1) Subject to the special
rules as to indictments
hereinafter
mentioned, every charge,
complaint, summons, warrant or
other document laid, issued or
made for the purpose of or in
connection with any proceedings
before any court for an offence
shall be sufficient if it
contains a statement of the
offence with which the accused
person is charged together with
such particulars as may be
necessary for giving reasonable
information as to the nature of
the charge and notwithstanding
any rule of law to the contrary
it shall not be necessary for it
to contain any further
particulars than the said
particulars.”
(45)
Therefore, the earlier decision
of the Court of Appeal clearly
affirms the requirement of law
that, the charge must contain
sufficient particulars that will
enable the accused person to
know the nature of the charge he
faces. The Court of Appeal
confirmed that the emphasis on
the section is the fact that the
particulars should be such as
are necessary to give reasonable
information to the accused.
The meaning and effect of the
section was considered in the
Osei Kwadjo II case where
the court referred to one of the
leading textbooks in Criminal
Procedure by a respected jurist
on the particulars required by
Section 112 of Act 30; Justice
A.N.E Amissah’s academic work “CRIMINAL
PROCEDURE IN GHANA” which
treats the subject of the
contents of a properly laid
charge relating to the:-
(i) statement of offence, and
(ii)particulars of offence.
(46)
In respect of the statement of
offence, the Learned Jurist and
author stated at page 76 thus:-
“The statement must describe the
offence shortly in ordinary
language, avoiding as far as
possible the use of technical
terms, and without necessarily
stating all the essential
elements of the offence, and, if
the offence is one created by
enactment must contain a
reference to the enactment. In
meeting this latter requirement
care must be taken to
distinguish between two types of
statutory provision which
usually deal with an offence:
the one which creates the
offence and the other which
defines it. As between these two
it is the provision creating the
offence which has to be referred
to, not the provision defining
it. Thus in the case of murder,
Section 46 of the Criminal Code
provides that: ‘whoever commits
murder shall be liable
to suffer death. Then
Section 47 of the Code defines
murder”.
The Learned Jurist then
continues: “It is the
section which creates the
offence which must be referred
to in the statement of offence
not the section which defines
it. A charge of murder,
therefore, must refer in its
statement of offence to Section
46 of the Criminal Code and not
to Section 47”.
(47)
On the particulars of offence,
the Learned Justice and author
stated at page 77 as follows:-“It
is necessary to state under this
head such particulars of the
offence as may be necessary for
giving reasonable information as
to the nature of the charge.
The necessary particulars must
be set out after the statement
of offence in ordinary language.
The use of technical terms is
not required…. Drafting of the
particulars of offence charged
often involves following with
some precision the wording of
the section defining the crime
and alleging that the accused
did an act having the
ingredients of the offence.
Supplying the defective
particulars have often led, and
may still lead……. to the
quashing of a conviction based
on a charge”. On what
the written charge against the
accused person must contain, the
learned editors of the Fifth
Edition of Halsbury’s Laws of
England, Volume 27 write in paragraph
126 under the rubric :-
“126. The written charge
and requisition. Under the
Criminal Procedure Rules, an
allegation of an offence in a
charge must contain:
(1)
a statement of the offence that
describes the offence in
ordinary language, and
identifies any legislation that
creates it; and
(2) such particulars of the
conduct constituting the
commission
of the offence as to make it
clear what the prosecutor
alleges against the Defendant.”
(48)
I have taken note of the
position of the Learned Jurist
ANE Amissah whose work is above
referred to where he stated that
the particulars of offence must;
“allege the act which the
accused did relative to the
ingredients of the offence”.
In the same vein, I also
take note of the explanation
given by the learned editors of
Halsbury’s of England that the
allegation of the
offence in a charge; “must
contain such particulars of the
conduct constituting the
commission of the offence as to
make it clear what the
prosecutor alleges against the
Defendant.” The
authorities just reviewed are
all in agreement that in
criminal procedure, the only
circumstances in which a charge
can be deemed to be properly
laid is where the particulars of
the charge sufficiently inform
the accused person of the
specific acts and/or omissions
that the accused person engaged
in which resulted in the event;
the reason for which he is being
prosecuted.
(49)
It must be clarified here that
specifying the acts and/or
omissions constituting the
offence is completely different
from making available the
evidence required to prove those
acts and/omissions. Thus, in the
context of the issue in the
instant appeal, the questions
which logically arise for
determination are as follows:-
i.
Do the particulars of the
offence of conspiracy to commit
crime,
stated in counts 1, 3, 5, 7, 9,
11, 13 and 15 of the charge
specify any an particular act
and/or omission committed by the
Respondent which constitutes the
offence of conspiracy?
ii. Do the particulars
of the crime of willfully
causing financial loss
to the Republic stated in counts
2, 4, 6, 8, 10, 12, 14 and 16 of
the charge sheet specify any act
and/or committed by the
Respondent which constitutes the
offence
of willfully causing
financial loss to the Republic?
(50)
CONSPIRACY TO WILLFULLY CAUSE
FINANCIAL LOSS
Counts 1, 3, 5, 7, 9, 11, 13 and
15 set out in the charge sheet
allege that the Respondent as
well as the second and third
Accused persons, conspired to
willfully cause financial loss
to the State. It is in counts 2,
4, 6, 8, 10, 12, 14, 16 and 18
that the Respondent is then
alleged to have willfully caused
financial loss to the state. In
the case of Francis Yirenkyi
Vs. The Republic Criminal Appeal
No.J3/7/2015 dated the
17th day of February 2016,
this court discussed the current
law on conspiracy. The Court,
speaking through Dotse JSC noted
the amendment of the definition
of the offence of conspiracy
under the Criminal and other
Offences Act, (Act 29) of 1960
by the Statute Law Review
Commissioner. Under the old
definition of the offence of
conspiracy a conviction could be
secured upon proof of the
following ingredients;
i. Prior agreement for
the commission of a substantive
crime.
ii. Acting together in
the commission of the crime in
circumstances which show that
there was a common criminal
purpose.
iii. Previous concert
even if there was evidence that
there was
previous meeting to carry out
the criminal conduct.
Whereas the old formulation of
the provision on the offence of
conspiracy under Section 23(1)
of Act 29 therefore provided as
follows:- “If two or more
persons agree or act together
with a common purpose for or in
committing or abetting a crime,
whether with or without any
previous concert or
deliberation, each of them is
guilty of conspiracy to commit
or abet that crime, as the case
may be,” the new
formulation is as follows:-
“Where two or more persons
agree to act together with a
common purpose for or in
committing or abetting a
criminal offence, whether with
or without any previous concert
or deliberation, each of them is
guilty of conspiracy to commit
or abet the criminal offence”.
(51)
In this new formulation, this
court noted that the only
ingredient that had been
preserved is “the
agreement to act to commit a
specific crime, to commit or
abet commission of that crime”.
The effect of the new
formulation of the offence of
conspiracy as defined by this
court is that the persons must
not only agree or act,
but must agree to act
together for a common purpose.
Having regard to this new
formulation of the offence of
conspiracy a person could
no longer be guilty of
conspiracy in the absence of any
prior agreement. At this
stage, it is necessary to repeat
for purposes of re-emphasizing
the point raised in this ground
of appeal the question I had
posed earlier. The question is;
Do the particulars of the
offence of conspiracy to commit
crime, stated in counts 1, 3, 5,
7, 9, 11, 13 and 15 of the
charge specify any a particular
act and/or omission committed by
the Respondent which constitutes
the offence of conspiracy? The
question posed above may be
reformulated thus; in what way
did the Respondent act together
with the second and third
accused person to willfully
cause financial loss to the
Republic? What did he do
together with the second and
third accused persons to
willfully cause this loss? I
shall now proceed to examine the
offence of willfully causing
financial loss to the Republic
itself.
(52)
WILLFULLY CAUSING FINANCIAL LOSS
TO THE REPUBLIC.
The case of Republic Vs. Adam
and Others
[2003-2005] 2 GLR 661
provides a more illuminating
discussion of the offence of
willfully causing financial loss
to the Republic. In that case,
five accused persons were tried
before the then Fast Track
Division of the High Court on
charges of conspiracy to cause
financial loss to the state.
Head note (2) of the report
records the holding of the Court
expounding the essential
elements of the offence of
causing financial loss to the
State. It states that:-
"(2) The essential elements of
the offence of causing financial
loss to the State under Section
179(A)(3)(a) of the Criminal
Code, 1960 (Act 29), as amended
by the Criminal Code (Amendment)
Act, 1993 (Act 458) were (a) a
financial loss; (b) to the
State; (c) caused through the
action or omission of the
accused; (d) that the accused
(i) intended or desired to cause
the loss; or (ii) foresaw the
loss as virtually certain and
took an unjustifiable risk of
it; or (iii) foresaw the loss as
the probable consequence of his
act and took an unreasonable
risk of it; or (iv) if he had
used reasonable caution and
observation it would have
appeared to him that his act
would probably cause or
contribute to cause the loss"
In his judgment Afreh
JSC of blessed memory held
that:-"For the prosecution
to succeed it must show that the
State incurred a financial loss
through the action or omission
of the accused person. Of the
more than a dozen meanings of
the word 'through', the most
appropriate or relevant for this
case are those indicating cause,
reason or motive, in consequence
of, by reason of, on account of,
owing to, as a result of; by
means of. In other words, it
must be proved that the cause of
the State's financial loss is
the action or omission of the
accused. There must be a direct
causal link between the action
or omission of the accused and
the financial loss incurred by
the State. It is not enough for
the prosecution to show that the
accused's action or omission
could have caused or contributed
to the loss."
In
the judgment under reference,
the Learned Justice referred to
the case of Republic Vs.
Selormey in which Baddoo JA
(as he then was) held
that:- "In plain ordinary
language, it means any
deliberate act or omission of
any person which results in a
financial loss to the State
constitutes an offence.
Therefore for the prosecution to
succeed in proving this charge
against the accused person they
must show that: (a) the accused
person took certain actions; and
(b) those actions resulted in
financial loss to the State."
(53)
The question earlier posed in
respect of the offence of
willfully causing financial loss
to the Republic was this; do the
particulars of the crime of
willfully causing financial loss
to the Republic stated in counts
2, 4, 6, 8, 10, 12, 14 and 16 of
the charge sheet specify any act
and/or committed by the
Respondent which constitutes the
offence of willfully causing
financial loss to the Republic?
(54)
CHARGES AGAINST THE RESPONDENT
I observe that there is nothing
in the particulars of the
offence from which the
Respondent who was Director
General of Social Security and
National Insurance Trust (SSNIT)
may reasonably infer exactly
what acts he engaged together
with the second and third
accused persons either by
omission or commission to
willfully cause financial loss
to the Republic. A reading of
the charge sheet will disclose
that the statement of the
offence describes the offences
of conspiracy to cause financial
loss on the one hand and the
causing of financial loss itself
on the other. This is done by
reference to the enactment
creating the said offences
without stating the essential
elements of the said offences. I
further observe that, with
respect to the particulars of
the said offences however, the
charge sheet does not contain
any information in the
particulars of the said offences
such as to give the Respondent
any reasonable information in
terms of the details of the acts
from which constitute the
offences of conspiracy and the
commission of the offence of
willfully causing financial loss
to the Republic.
(55)
Indeed, this court, as did the
Court of Appeal in the Issa
case, has made it clear that
the necessary details required
to fulfil the constitutional
requirement of providing the
requisite information necessary
to give the person charged with
a criminal offence, information
in terms of the details of the
offence for which the person has
been charged, “must allege
that the Accused person did or
omitted to do a specific act
having the ingredients of the
offence”. In the
instant case, one of the charges
states that the Respondent as
well as second and third accused
persons committed the offence of
conspiracy to wilfully cause
financial loss to the Republic
contrary to Sections 23(1) and
179A(3)(a) of the Criminal
Offences Act, 1960 (Act 29). The
details of this offence are
stated in the particulars of
offence that the Respondent and
the second and third Accused
persons agreed to
act together with a common
purpose to wilfully cause
financial loss to the Republic.
(56)
Undoubtedly, the question I have
been struggling to answer is;
from which part of the
particulars of the offence has
the Respondent been given the
details of the offence of
conspiracy? What the prosecution
merely does is to repeat the
definition provided for in the
statute as the particulars.The
Osei Kwadjo case (supra)
encapsulates the position of the
courts on what the particulars
of the offence in respect of
which a person is charged must
contain in order to comply with
the constitutional requirement
that the person charged is
entitled to and must be given
details of the offence the
subject matter of the charge
before he can be properly
prosecuted on the charge(s). The
particulars of the offence as I
have earlier pointed out must
state such particulars of the
offence as may be necessary for
giving reasonable information as
to the nature of the charge.
This requires that the
particulars of offence charged
must state with some precision
the wording of the section
defining the crime and
alleging that the accused did an
act or omitted to do an act
having the ingredients of the
offence.
(57)
In the instant case, from an
examination of the charge sheet,
it is clear that there is simply
no difference between the
statement of the offence and the
particulars of the offence in
the manner in which the two are
formulated by the prosecution.
One wonders how the Respondent
(as the Director General of
SSNIT) together with the
third accused person who is the
Chief Executive Officer of a
company which did business with
SSNIT agreed to act
together with the third
accused person to cause
financial loss to the Republic.
(58)
The point I have made is better
illustrated by the following
question; from what facts is the
Respondent to know how he agreed
to act together with the second
and third accused persons the
result of which is prohibited by
the offence of conspiracy? It is
the same with count three of the
charge sheet which alleges the
offence of conspiracy against
the Respondent. The question
which arises there is; from what
facts is the Respondent to know
how he agreed to act
together with the second
and third Accused persons to
achieve the result prohibited by
the offence of conspiracy?
(59)
From my examination of the
charge sheet, this offence of
conspiracy runs through counts
five, seven, nine, eleven,
thirteen and fifteen where the
Respondent is also alleged to
have committed the offence of
conspiracy. The particulars of
the offence stated in each of
these counts repeat the same
thing. They all say that the
Respondent and the second and
third accused persons, between a
particular period and in Accra
in the Greater Accra Region of
the Republic of Ghana,
agreed to act together
with a common purpose to
wilfully cause financial loss to
the State. There is nothing in
the particulars of offence
stated in respect of the
aforesaid counts which gives the
Respondent the details of the
offence of specific acts and/or
omissions from which this
conspiracy can be inferred. The
prosecution merely repeats the
statutory definition of the
offence. The particulars of the
offence do not state such
particulars of the offence as
are necessary for giving
reasonable information as to the
nature of the charge. These
observations I have made apply
to the offence of wilfully
causing financial loss to the
Republic stated in counts 2, 4,
6, 8, 10, 12, 14 and 16 of the
charge sheet where it is alleged
against the Respondent that he
caused financial loss to the
State in the specific sums
mentioned in those counts. In
none of those counts is it
stated how and what acts or
omissions caused the financial
loss. They only state the result
which is clearly insufficient to
meet the constitutional and
statutory threshold.
(60)
In the light of the ingredients
of willfully causing financial
loss discussed in the Adam
case, it is not clear from
the particulars of the offence
stated in counts 2, 4, 6, 8, 10,
12, 14 and 16 of the charge
sheet as to what, or the nature
of the act(s) or omission(s) the
Respondent is alleged to have
engaged in, as a result of which
financial loss, was
willfully caused to the
State. It is also observed that
the particulars of the offences
disclose no facts from which the
Respondent’s willfulness in
terms of his;
"(i) intention or desire to
cause the loss; or
(ii) foresight of the loss as
in virtually certain that the
loss will
occur but took an
unjustifiable risk of it; or
(iii) having foreseen the loss
as the probable consequence of
his act
and took an unreasonable
risk of it; or
(iv) that if he had used
reasonable caution and
observation it
would have appeared to
him that his act would probably
cause
or contribute to cause
the loss."
(61)
It must be pointed out here that
specifying the acts and/or
omissions constituting the
offences charged is a totally
different incident from
providing the evidence required
to prove the particularised act
and/or omission. Informing the
accused person of the very act
and/or omission that he has
engaged in and which is the
reason for which he has been
charged with the offences does
not amount to making available
to the accused person the
evidence required to prove those
acts and/or omissions. Providing
the details of the acts and/or
omissions on the basis of which
the person is facing prosecution
will enable the person prepare
well to defend the charges. It
is in the light of the
observation just made that the
Prosecution’s third ground of
the appeal which contends that
the Court of Appeal erred when
it held that the prosecution
must provide evidence or the
basic facts to be adduced at the
trial in the particulars of the
charge sheet will be briefly
examined.
(62)
In the Issa No.1 case,
the Court of Appeal took the
view that the Appellant’s
complaint was that he required
the evidence on the basis of
which he will be prosecuted. The
Court of Appeal disagreed. This
is however not the same
situation in the instant case
where the Respondent’s complaint
before the trial High court was
simple. He was the Director
General of SSNIT. If it is
alleged that he conspired with
others and caused financial loss
to the State, he must know the
acts he engaged
in from which the conspiracy
with the third accused person
who is not an employee of SSNIT
or even the second accused
person (a SSNIT employee)
can be inferred. Even then, how
was this loss caused? How much
loss was caused?
(63)
In the context of the factual
background to this appeal, let
me pause for a moment and ask;
What prejudice does the
Prosecution suffer by just
making available to the
Respondent the information
relating to the specific acts he
is alleged to have engaged in
and from which the offences of
conspiracy and willfully causing
financial loss to the State can
be inferred? I am not convinced
by the simple argument that
informing the Respondent as to
the acts and/or omissions he is
alleged to have engaged in and
from which the offences of
conspiracy and willfully causing
financial loss to the State can
be inferred will entail giving
the Respondent the very evidence
it intends to rely on at the
trial. Granted for the sake of
argument that the prosecution’s
view that the request made
amounted to a request for the
evidence from which the
prosecution will prove it’s case
were established as correct,
the prosecution of the
Respondent will certainly not be
undermined by making available
the evidence from which his
guilt or otherwise will be
determined. The Respondent will
be deemed to have been given
every opportunity and facility
within the meaning of the fair
trial provisions of the
Constitution to prepare and
defend the charges brought
against him.
(64)
The argument about the
Respondent requesting evidence,
although has been demonstrated
to be incorrect, is weakened by
the fact the current practice
direction on criminal trials
requires the prosecution to file
witness statements for witnesses
they intend to call at the
trial. The effect is that the
accused person has the benefit
of the evidence the prosecution
intends to rely on at the trial
to prove their case anyway. The
argument therefore that
complying with the Respondent’s
request will amount to making
available to the Respondent the
evidence to be deployed in
proving the Respondent’s guilt
at the trial is clearly
untenable as it is
misconceived. In any event, it
is the court of trial which
examines and evaluates the
evidence and if credible will
convict on the basis of the
evidence and ascription of
probative value to the standard
prescribed by statute.
(65)
This significant benign advance
in ensuring fair trial in the
criminal justice system through
constitutional or other
statutory or case law evolution
is not limited to our
jurisdiction. Therefore any
proposition for a judicial
intervention to rather limit or
narrow and not expand its scope,
should not be countenanced. The
requirement of ensuring fair
trials had decades ago been
expressed by the Privy Council
in the case of Kandy Vs.
Government of Malaya [1962] AC
322 where it was held that;
“if the right to be heard is
to be real right which is worth
anything, it must carry with it,
right in the accused man to know
the case which is made against
him. He must know which evidence
has been given and what
statements have been made
affecting him, and then he must
be given a fair opportunity to
correct or contradict them”.
Where therefore the accused
person does not know or is not
given the full statement of
facts against him, the court
could declare it as being
contrary to the concept of fair
hearing.
(66)
In my view, the court’s
consideration of the arguments
canvassed by the Prosecution to
support the grounds of appeal
relied on in this appeal
suffices to dispose of the
third, fourth and fifth grounds
of the appeal which contend that
the Court of Appeal:-
a.
misconstrued the import and
purport of Article 19(2)(d) of
the 1992 Constitution and
Section 112 of the Criminal and
Other Offences (Procedure) Act,
1960 (Act 30).
b.
erred when it held that the
prosecution must provide
evidence or the basic facts to
be adduced at the trial in the
particulars of the charge sheet.
c.
erred when it held that the
particulars of the charges
against the Appellant/Respondent
as laid in the charge sheet are
the same as the statements of
offence.
(67)
In their statement of case, the
prosecution attacked the
majority decision of the Court
of Appeal arguing that although
the said court observed that
whereas the facts recounted by
the prosecution are not always
accurate and reliable and that
the facts do not assist in
determining the sufficiency of
the particulars of the charge,
the same court relied on the
very facts it considered
unreliable to condemn the
prosecution’s formulation of the
charges against the Respondent.
The prosecution’s submission on
the Court of Appeal’s decision
on the significance of the facts
recounted by the prosecution
during criminal trials does not
do justice to the substance of
the decision. It may well be
true that in some instances, the
course of the trial will expose
the inadequacy of the facts on
which the prosecution instituted
the proceedings, but it is a
totally different situation to
suggest that the court and the
accused person should assume
such facts as inaccurate or that
the prosecution deliberately
presented unreliable facts to
the court.
(68)
As justice is the ultimate aim
in all criminal trials, the
practice enjoins the Court and
the Accused person to rely on
the facts recounted by the
prosecution as fairly
representing the foundation of
the prosecution’s case. It is on
the basis of the facts recounted
by the prosecution that the
court will form a preliminary
opinion on the decision to grant
bail. If the court were to
operate from the premises that
the facts recounted by the
prosecution must be presumed to
be unreliable, then it will put
the court itself in a difficult
position with respect to the
directions to make for the
future conduct of the case. An
accused person is also required
and enjoined to rely on the
facts recounted by the
Prosecution to prepare his
defence. The prosecution’s
submissions therefore on the
value placed by the Court of
Appeal on the facts recounted by
the prosecution implicitly does
not credit the majority decision
of the Court of Appeal with a
basic understanding of the
criminal process. The statements
relied on by the prosecution to
advance this argument does not
deal with the substance of the
appeal before the court. It has
also been argued by the
prosecution that all the issues
raised by the majority decision
show that they are matters to be
determined at the trial where
the case of the prosecution will
be made and the Respondent would
have the opportunity to defend
same. This argument is
superficial and untenable having
regard to the clear provisions
of article 19(2)(d) of the 1992
Constitution as well as Section
112 of Act 30 which require that
the criminal process be
conducted in a manner that gives
the accused person the
opportunity to prepare for the
trial but not wait to be
surprised at the trial.
(69)
It is observed that given the
current state of criminal
procedure and practice which
requires the prosecution to make
available to the accused person
in advance the evidence it
intends to rely on at the trial,
the reliance on the statements
made by the Court of Appeal in
the Issa case that the
accused person is not entitled
to request the evidence to be
relied on at the trial against
him, is with all due respect
questionable. In any case, the
Prosecution’s arguments that to
the extent that an accused
person has the benefit of the
documents intended to be relied
upon must by implication be
deemed that he has been informed
of the very acts and omissions
on the basis of which he is
being prosecuted has potential
limitations and consequences.
The reason is not farfetched.
Firstly the prosecution is not
compelled to rely on these
documents at the trial. Further
to this observation, there will
be no clarity on the reason for
which the prosecution intends to
rely on those documents unless
and until the very acts and/or
omissions on which the charges
are grounded are disclosed. The
effect is that an accused person
is then damnified with the
responsibility of guessing what
acts and/or omissions relative
to the mass of documents
submitted to him the prosecution
considers criminal thereby
justifying prosecution. That
cannot be fair to the accused
person and definitely
inconsistent with the
constitutional and other
statutory provision on fair
trials.
(70)
There is no gainsaying that the
protection and guarantee of
civil liberty, rights and
freedoms is of prime
consideration in criminal
trials; under the 1992
Constitution. This aspiration is
variously epitomized in our
criminal jurisprudence. Very
notable is the statutory
standard set for proving crime
which is prove beyond a
reasonable doubt. I donot think
that it will be far from right
when I say that it is this ideal
which is also a constitutional
prescription that informed the
celebrated decision of this
Court in the case of Republic
Vs. Eugene Baffoe Bonnie & 4
Others; J6/06/2018 dated
7th June 2018 as
a significant watershed in our
criminal jurisprudence. The
rights of an accused person in a
criminal trial received a major
boost in the Baffoe Bonnie
case when this Court upheld the
right of an accused person to
demand that all that the
prosecution intends to rely on
should be disclosed to him
before the trial.
(71)
In elucidating the principle,
Sophia Adinyira JSC at page 14
of the judgment stated thus:-
“Accordingly we hold that an
accused person must be given and
afforded opportunities and means
so that the prosecution does not
gain an unfair advantage so that
the accused is not impeded in
any manner and does not suffer
disadvantage in preparing his
defence, confronting his
accusers and arming himself in
defence, so that no miscarriage
of justice is occasioned.
Non-disclosure is a potent
source of injustice as it is
often difficult to say whether
an undisclosed item of evidence
might have shifted the balance
or opened up a new line of
defence.”
From my careful reading of the
judgments in the Issa cases,
I am unable to agree with the
Prosecution that both the Court
of Appeal and Supreme Court in
the said cases stated
emphatically that a charge
drafted without those material
particulars as in the instant
case, will be sufficient to meet
the constitutional and statutory
requirements of fair trial.
(72)
Consequently, it is my view that
the majority of the Learned
Justices of the Court of the
Appeal did not err when they
held in the instant case that
the Court of Appeal and Supreme
Court in the Issa cases
could not have determined what
the particulars of offence
should be in every charge under
Section 179A (3)(a) of the
criminal and other offences Act.
As they rightly stated, in each
case of a charge under Section
179A (3)(a) of causing financial
loss to the state, the nature of
the particulars of offence will
have to be determined based on
the peculiar facts and
complexity of the case. The
position of the law in the
Issa cases pronounced nearly
two decades ago cannot be said
to wholly represent the current
position of our criminal
jurisprudence on the issue.
(73)
In my considered view, the rules
and accepted principles of law
established by this court and
given constitutional effect
cannot be considered in the
abstract and slavishly applied
without proper attention to and
adequate consideration placed on
the peculiar facts of each case.
The facts of each case are
material and fundamental and
must assume a crucial role in
the process of adjudication.
Consequently, I dare say that,
the contention that the same
material particulars were
sufficient to meet the
constitutional and statutory
requirements in every case in
which there is a charge under
Section 179A (3)(a) will in my
opinion result in injustice to
the detriment of a person
charged for an offence whose
innocence is constitutionally
presumed.
(74)
At the risk of being repetitive,
it must be made clear that the
Respondent has not been charged
under the facts but under the
charge sheet which includes the
particulars of offence. Thus
although the facts of the case
as narrated by the Prosecution
may be quite illuminating for
the accused, it does not absolve
the Prosecution of its
obligation to sufficiently and
reasonably set out the
particulars of offence in the
charge sheet. Whether or not
reasonable information has been
given an accused person in the
particulars of offence is on a
case by case basis. Each case
will have to be examined within
its own peculiar facts and
circumstances. The particulars
of offence should provide the
basic facts which will have to
be proved at the trial.
(75)
From my examination of the
record and the application of
the relevant law, I do not find
that a meritorious case has been
made by the Prosecution to
establish that the Court of
Appeal misconstrued the import
and purport of article 19(2) (d)
of the 1992 constitution and
section 112 of the Criminal and
Other Offences (Procedure) Act,
1960 (Act 30) (as amended).
The appeal in my view fails for
all the reasons hereinbefore set
out, and I accordingly dismiss
same. The judgment of the Court
of Appeal dated 3rd
April 2020 is hereby affirmed.
I. O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
A. LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
G. TORKONOO (MRS.)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
YVONNE ATAKORA-OBUOBISA
(DIRECTOR PUBLIC PROSECUTIONS
FOR THE RESPONDENT/APPELLANT.)
SAMUEL CUDJOE ESQ. (FOR THE 1ST
ACCUSED/APPELLANT/RESPONDENT.)
MUJEEB RAHMAN AHMED ESQ. (FOR
THE 2ND
ACCUSED/INTERESTED PARTY/AMICUS
CURIA.)
THADDEUS SORY ESQ. (FOR THE 3RD
ACCUSED/INTERESTED PARTY/AMICUS
CURIA.) |
