BOAHENE AND ANOTHER vs. THE STATE [1965]DLSC1787

Date	1965-04-15
Suit No.
Citation No.	[1965]DLSC1787

SARKODEE-ADOO C.J.

MILLS-ODOI JSC

OLLENNU JSC

BRUCE-LYLE JSC

SIRIBOE J.S.C.

VICTOR OWUSU FOR THE FIRST APPELLANT.

OSEI FOR THE SECOND APPELLANT.

A. N. E. AMISSAH DIRECTOR OF PUBLIC PROSECUTIONS (WITH HIM GYEKE-DAKO SENIOR STATE ATTORNEY) FOR THE RESPONDENT.

[1965]DLSC1787
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													<main id="main" class="content" style="min-height: 60rem" >BOAHENE AND ANOTHER<o:p></o:p>&nbsp;vs. <o:p></o:p>THE STATE <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 279<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
15 APRIL 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

VICTOR OWUSU FOR THE FIRST APPELLANT.<o:p></o:p>

OSEI FOR THE SECOND APPELLANT.<o:p></o:p>

A. N. E. AMISSAH, DIRECTOR OF PUBLIC PROSECUTIONS
(WITH HIM GYEKE-DAKO, SENIOR STATE ATTORNEY), FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SARKODEE-ADOO C.J., MILLS-ODOI,
OLLENNU, <o:p></o:p>

BRUCE-LYLE AND SIRIBOE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C<o:p></o:p>Ollennu
J.S.C. delivered the judgment of the court. The two appellants were tried by
Sowah J. in the High Court with the aid of assessors, on an indictment which
charged the two of them jointly on two counts of conspiracy to commit a crime,
to wit, forgery of Ghana currency notes contrary to section 23 of the Criminal
Code, 1960,1 and section 16 of the Currency Act, 1960,2 now repealed, and
charged the first appellant alone with the substantive offence of forgery of a
Ghana currency note contrary to section 16 of Act 17 aforesaid. The assessors
were unanimous in their opinion that the appellants were not guilty on each of
the offences of which each stood charged; but the learned judge with whom rests
the final decision in such a trial, as provided by section 287 (2) of the
Criminal Procedure Code, 1960,3 found each of the appellants guilty, convicted
him accordingly and sentenced the first appellant to a term of five years’
imprisonment with hard labour on each of the three counts, the sentences to run
concurrently, and the second appellant to two years’ imprisonment with hard
labour on each of the two counts on which he was charged, the sentences also to
run concurrently. Each of the appellants has appealed against his conviction
and the sentences passed upon him.<o:p></o:p>Five
original grounds of appeal were filed on behalf of the first appellant, and
with the leave of the court, a large number of additional and further
additional grounds of appeal were argued together with those originally filed.
With the leave of the court additional grounds were argued on behalf of the
second appellant also in addition to the two grounds originally filed. It is
not necessary to set out all the grounds of appeal; the gist of the most
important of them will be set out at appropriate stages in the course of the
judgment.<o:p></o:p><o:p>&nbsp;</o:p>Two of
the first appellant’s grounds of appeal complained that the committing district
court failed to comply with the mandatory provisions of section 191 of the
Criminal Procedure Code, 1960, which requires that upon committing an accused
person for trial upon an indictment where the charge is one in which an option
is given to the accused, “the Court. . . shall ask him whether he desires to be
tried with a jury or by the Court with the aid of assessors and shall record
and attest by his signature the answer of the accused,” and also that the High
Court erred in acceding to the request made by the Attorney-General under
section 242 (2) of the Act and directing that the trial should be with the aid
of assessors instead of by jury. These grounds, it is said, raise
constitutional issues as to rights of a citizen under the law to be tried by
jury. In consequence of this view expressed by learned counsel for the first
appellant, the learned Director of Public Prosecutions requested a full court
for the hearing of the appeal, and his lordship the Chief Justice in
consequence accordingly constituted a full bench of the court for the hearing
of the appeal. Having heard full arguments on both sides on these grounds we
would say that in our opinion the issues involved are no more constitutional
than a complaint in a habeas corpus proceedings that an arrest and detention of
a citizen without a warrant or order of a court are not in conformity with the
law of the land for the time being in force.<o:p></o:p><o:p>&nbsp;</o:p>In
support of the contention that the appellants were deprived of their right to
be tried by jury, counsel referred to (a) section 242 (1) of the Criminal
Procedure Code, 1960, which provides that certain offences specified by the
minister in a legislative instrument shall be tried by jury; (b) to Order No.
41 of 1948 made under section 254 of the Criminal Procedure Code, now
repealed,4 which provides that in Southern Ghana, all offences punishable by
imprisonment for life shall, in addition to offences punishable by death be
tried by jury; and (c) to section 16 of Act 17 which makes the offences in this
case first degree felonies and therefore punishable by imprisonment for life.
Order No. 41 of 1948 aforesaid is still in operation by virtue of section 413
(2) of Act 30 which says, “Any regulations or other instruments made under any
enactment hereby repealed shall remain in force and be deemed to have been made
under the corresponding provisions of this Code.” Counsel submitted that by
reason of these provisions of the law, the trial should have been by jury and
not with assessors. He submitted that subsection (2) of section 242 of Act 30
is not a proviso to subsection (1) of section 242, and therefore it is not a
case whe</main>