REPUBLIC vs. ADU KWABENA [1971]DLHC2149

Date	1971-06-30
Suit No.
Citation No.	[1971]DLHC2149

ANTERKYI J.

STATE ATTORNEY FOR THE REPUBLIC.

DR. OHENE-DJAN FOR THE ACCUSED.

[1971]DLHC2149
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>ADU KWABENA <o:p></o:p>[HIGH COURT,
SUNYANI]<o:p></o:p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; [1971] 2 GLR 323<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:
30 JUNE 1971.<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">

STATE ATTORNEY, FOR THE REPUBLIC.<o:p></o:p>

DR. OHENE-DJAN FOR THE ACCUSED.<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">

ANTERKYI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANTERKYI J.<o:p></o:p>The
accused in this case stood charged with murder, contrary to section 46 of the
Criminal Code, 1960 (Act 29). Mr. Agbettor, State Attorney, appeared for the
Republic and Dr. Ohene-Djan for the accused.<o:p></o:p><o:p>&nbsp;</o:p>After the
first twelve (out of the proposed seventeen) witnesses for the prosecution had
finished their evidence, the thirteenth witness, Adu Gyamfi, during the course
of his evidence-in-chief was treated as a hostile witness on the application of
the prosecuting state attorney and with the leave of the court; and at the end
of his evidence on 18 June 1971, adjournment of the case was granted at the
request of counsel for the prosecution to enable him to seek further
instructions.<o:p></o:p><o:p>&nbsp;</o:p>When
hearing resumed on 28 June 1971 the court observed that a notice of nolle
prosequi (in writing) signed by the state attorney himself “for
Attorney-General” had been filed. And the court took occasion to question the
validity of this document by requiring the production by the state attorney of
an earlier order in writing empowering him in that regard as required by
section 55 (1) of the Criminal Procedure Code, 960 (Act 30).<o:p></o:p><o:p>&nbsp;</o:p>The state
attorney, conceding the absence of such an order in writing in his favour under
that section, contended that such order in writing by the Attorney-General in
his favour was not necessary, for reasons he gave and which were substantially
thus:<o:p></o:p>Even
though under the provisions of section 55 (1) of Act 30 [His lordship here read
the provisions as set out in the headnote and continued:] yet there was no
necessity, at the time of his filing the notice of nolle prosequi, for such a
prior order in writing required under Act 30 in that regard; for, as contended
by him, the result of the provisions of section 1 of the later Act, i.e. the
Law Officers Act, 1964 (Act 225), was to vest in him as a state attorney the
power of the Attorney-General to enter a nolle prosequi, and that he could
therefore perform that function on behalf of the Attorney-General “subject to his
directions.” He submitted that under subsection (2) of section 1 of Act 225,
“Evidence shall not be required to be produced that a direction has been given
by the Attorney-General in regard to any matter.” He therefore argued that
failure to produce an order in writing, as required under the provisions of
section 55 (1) of Act 30, could not be called to question.<o:p></o:p><o:p>&nbsp;</o:p>Moreover
(he contended) that Act 225 (The Law Officers Act, 1964) was posterior to Act
30 (Criminal Procedure Code, 1960), and Act 225, as a later Act, by its
provisions impliedly repealed the relative provisions of Act 30 (the earlier
Act) with regard to the requirement of an order in writing under section 55 (1)
of Act 30.<o:p></o:p><o:p>&nbsp;</o:p>Apart
from this, as contended by him, by the provisions of article 174 (h) of the
Constitution, “words directing or empowering [the Attorney-General] to do any
act o</main>