OKOE vs. THE REPUBLIC [1975]DLHC415

Date	1975-12-01
Suit No.
Citation No.	[1975]DLHC415

TAYLOR J.

BANNERMAN-WILLIAMS FOR THE APPLICANT.

MISS OKINE ASSISTANT STATE ATTORNEY FOR THE RESPONDENT.

[1975]DLHC415
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													<main id="main" class="content" style="min-height: 60rem" >OKOE<o:p></o:p>&nbsp;vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[HIGH
COURT, ACCRA]<o:p></o:p>[1976] 1 GLR 80<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:
1 DECEMBER 1975.<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">

BANNERMAN-WILLIAMS FOR THE APPLICANT.<o:p></o:p>

MISS OKINE, ASSISTANT 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>On 25
November 1975, I granted this application for bail, but in view of the
apparently impressive arguments advanced by counsel very vehemently against the
grant, I decided to reserve the full reasons for my decision today. I did so
also because it seems to me that the principles governing the court’s
discretionary power to grant bail before trial have hitherto received little or
no attention by our courts, and if I had attempted to give any reason it would
have been most perfunctory. I think the matter deserves a considered ruling for
the guidance of the courts in the lower hierarchy of our judiciary; for it
seems to me that the bail power is now being used by inferior tribunals in a
way contrary to the whole philosophy on which bail is founded.<o:p></o:p><o:p>&nbsp;</o:p>I have
since granting the application examined many of our court records and in case
after case the decision to grant bail has merely followed a formula typical of
which is this random example from the decision of Sarkodee J. in the Republic
v. Mensah, High Court, Accra, 28 October 1974, unreported: “I think this is a
proper case in which bail should be granted. The accused is granted bail in the
sum of ¢2,000.00 with two sureties to be justified.”<o:p></o:p><o:p>&nbsp;</o:p>In truth
but for the fact that I decided to give full reasons I would no doubt have
followed this traditional pattern as I have done in many cases before now; for
even in this case, leaving aside the last sentence of the ruling which was an
afterthought, the ruling I gave on 25 November 1975 was in faithful conformity
with the practice. I said: “The application for bail is granted. The applicant
will be admitted to bail in the sum of ¢1,000.00 in his own recognisance
without sureties. Full reasons for this will be given on 1 December 1975.”<o:p></o:p>At the
moment the only detailed statutory provision dealing with the grant of bail is
section 96 of the Criminal Procedure Code, 1960 (Act 30), as amended by the
Criminal Procedure Code (Amendment) Decree, 1975 (N.R.C.D. 309); this provision
as can be seen when read carefully is not the enabling provision giving power
to the High Court to grant bail before trial to persons in custody on a
criminal charge in inferior courts. It merely regulates the exercise of the
power, conceding by implication that the power is already there.<o:p></o:p><o:p>&nbsp;</o:p>This
right to bail so tacitly taken to exist by the legislature would seem to be
inextricably wound up with the idea inherent in the very foundation of our
adversary system of criminal justice, which decrees that an accused person must
be presumed innocent until he is proved guilty. This idea so basic to the
system of jurisprudence which we inherited from the common law has now come to
rest in article 20 (2) (b) of our Constitution, 1969, as a fundamental
constitutional rule of law, has been given a new lease of life in spite of the
suspension of the operation of the Constitution, in section 3 (2) of the
Proclamation, 1972.<o:p></o:p><o:p>&nbsp;</o:p>The
actual right, however, almost inviolable of an accused person to be granted
bail has had a chequered career; commencing in the dim and hazy dawn of English
legal history and coming to us in this country at the time of the reception of
English law in 1876 as a discretionary power exercisable by courts of justice,
it has ended here as a mandatory constitutional rule of law of the utmost
importance although its significance has been lost on the legal profession and
probably because the constitutional provision has not been properly
appreciated; it has now had engrafted on it statutory provisions of doubtful
utility to the fair and efficient administration of criminal justice. I shall
return to this theme later on in this ruling. For the moment however I propose
in this ruling to trace the history and thus highlight the principles governing
the courts’ power to grant bail.<o:p></o:p>