REPUBLIC vs. MAIKANKAN AND OTHERS [1973]DLCA2266

Date	1973-06-22
Suit No.
Citation No.	[1973]DLCA2266

AZU CRABBE C.J

LASSEY JA

KINGSLEY-NYINAH J.A.

AKYEA-DJAMSON FOR THE ACCUSED.

ASAMOAH SENIOR STATE ATTORNEY FOR THE REPUBLIC.

[1973]DLCA2266
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>&nbsp;vs. <o:p></o:p>MAIKANKAN AND OTHERS<o:p></o:p>&nbsp;[COURT OF APPEAL, ACCRA]<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;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1973]
2 GLR 222<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
22 JUNE 1973.<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">

AKYEA-DJAMSON FOR THE ACCUSED.<o:p></o:p>

ASAMOAH, SENIOR STATE ATTORNEY, FOR THE REPUBLIC.<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">

AZU CRABBE C.J., LASSEY AND
KINGSLEY-NYINAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AZU CRABBE C.J.<o:p></o:p>Azu
Crabbe C.J. delivered the ruling of the Court. Section 95 (3) (b) of the
Courts. Act, 1971 (Act 372), under which Aboagye J. has stated this case for our
consideration reads as follows: “(3) A judge of the High Court . . . may at any
time before judgment - (b) . . . on the trial of any criminal case . . .
reserve for the consideration of the Court of Appeal on a case stated by him
any question of law which may arise in the trial.”<o:p></o:p><o:p>&nbsp;</o:p>The case
stated is as follows:<o:p></o:p>“The ten
accused persons were on 20 May 1971, committed by His Worship Mr. E. T. A.
Torto, District Magistrate, to the High Court, Accra for trial on charges of
conspiracy to defraud contrary to sections 23 (1) and 131 of the Criminal Code,
1960; defrauding by false pretences contrary to section 131 of the Criminal
Code, 1960; forgery of document contrary to section 158 of the Criminal Code,
1960; uttering forged document, contrary to section 169 of the Criminal Code,
1960; and making illegal payments outside Ghana contrary to section 6 and
paragraph 5 (1) of Part II, Exchange Control Act, 1961. On 5 September 1972,
the first, fourth, fifth, seventh, eighth and ninth accused persons were
acquitted and discharged on all charges against them following a submission of
no case made on their behalf. The second, third, sixth and tenth accused
persons were called upon to answer some of the charges preferred against them.
On 28 November 1972, a subpoena was filed on behalf of the second accused for
service on nine persons to give evidence on behalf of the second accused. On
the same date another subpoena was filed for service on ten persons to give
evidence on behalf of the third accused. On 1 December 1972, copies of the
subpoenas filed on behalf of the second accused was served on three of his
proposed witnesses, namely, Abi Babarinde, J. A. Mingle and Alhaji Imoro. On
the same date copies of the subpoena filed on behalf of the third accused was
served on three of his proposed witnesses, namely, S. Ade Okedina, A. A.
Sengekye and Asare Lartey. On 4, 5 and 6 December 1972, the second accused gave
evidence in his defence. At the close of his evidence his counsel Mr. J. B.
Quashie-Idun, informed the court that none of his witnesses (including those
served with subpoenas) had turned up. This was checked up and found to be
correct. Upon counsel’s application warrants were issued for the arrest of the
three witnesses who had been served with the subpoenas but the bailiff informs
the court that the people cannot be traced. On 11 and 12 December 1972, the
third accused gave evidence in his defence and it was also found that none of
his witnesses (including those served with the subpoenas) had appeared in
court. They too cannot be traced. Mr. Quashie-Idun has stated that the evidence
to be given by the witnesses served with the subpoenas is so vital to the
defence that he is not disposed to close the cases for the second and third
accused persons without the evidence of their witnesses. I therefore state a
case for the determination of the Court of Appeal as to whether a trial court
should stay further hearing of a case if witnesses for the defence who have
been served with subpoenas cannot be traced to give evidence. (Sgd.) I. R.
Aboagye Judge.”<o:p></o:p><o:p>&nbsp;</o:p>This case
came before the High Court upon committal for trial by indictment by a district
court. Section 188 of the Criminal Procedure Code, 1960 (Act 30), makes special
provisions relating to witnesses for the defence, and these read as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1) The
Court, on committing the accused for trial, shall ask him whether he desires to
call witnesses at the trial. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) If
the accused states that he wishes to call witnesses the Court shall cause to be
taken down in writing the name, address and other necessary partic</main>