DONKOR vs. THE REPUBLIC [1977]DLHC1313

Date	1977-05-06
Suit No.
Citation No.	[1977]DLHC1313

OSEI-HWERE J.

BONSU FOR THE APPLICANT.

AGBANU FOR THE RESPONDENT.

[1977]DLHC1313
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													<main id="main" class="content" style="min-height: 60rem" >DONKOR <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[HIGH COURT, SUNYANI]<o:p></o:p>[1977] 2 GLR 383<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:
6 MAY 1977<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">

BONSU FOR THE APPLICANT.<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">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>The
affidavit in support of the application for bail discloses that the applicant
was arrested on 29 January 1976 and on 17 February 1976 he was put before the
Duayaw-Nkwanta District Court Grade II on a charge of subversion contrary to
section 1 (p) of the Subversion Decree, 1972 (N.R.C.D. 90). He was remanded in
police custody the same day he was put before the court and since then he has
not only remained in custody awaiting trial but also no date has been fixed for
his trial. He further complains that since 18 May 1976, he has not been brought
before the court at all. He prays for bail because he is advised and verily
believes that the district court grade II has no jurisdiction to entertain the
case and also that his continued detention violates “his rights of freedom or
movement and liberty.” The record of proceedings which the applicant has filed
actually shows that the last time he was brought before the court in 1976 was
on 16 July and that he has made two appearances this year. These last two appearances
were in obvious anticipation of the outcome of his motion for bail.<o:p></o:p><o:p>&nbsp;</o:p>Although
conceding that a person charged with subversion should not be granted bail by
reason of section 96 (7) of the Criminal Procedure Code, 1960 (Act 30), as
amended by the Criminal Procedure Code (Amendment) Decree, 1975 (N.R.C.D. 309),
s. 2, yet the applicant’s counsel invited the court to depart from the
mandatory provisions of that subsection because the court, in so granting his
client bail, will not only be sheltered by article 15 (3) and (4) of the
Constitution, 1969, but it will find support in the decision of Taylor J. in
Dogbe v. The Republic [1976] 2 G.L.R. 82. Counsel further argued that the
charge preferred against his client is one triable only by a military tribunal
and that the magistrate at the court below had no jurisdiction to entertain it.
In opposing the application the principal state attorney invited the court to
abide by the exhortation contained in Ennin v. The Republic [1976] 1 G.L.R.
326, C.A. that the courts must resist the temptation of pronouncing on
constitutional questions if the case could be decided on some other grounds. He
referred to section 2 (1) of the National Redemption Council (Establishment)
Proclamation, 1972, which suspends the 1969 Constitution and also to section 3
(2) of the same Proclamation which continues any enactment or rule of law in
force in Ghana immediately before the Proclamation unless subsequently revoked,
repealed, amended or suspended by a Decree of the Council and argued that by
N.R.C.D. 309 which was made in pursuance of the Proclamation, the power of the
court to grant bail in a case of subversion has been prohibited. According to
him there is nothing in the Proclamation to save the articles dealing with
fundamental human rights in the Constitution of which article 15 is one.
Touching on the delay of the trial of the applicant he explained that this has
sprung from the unco-operative attitude of the Co-operative Bank which was to
supply an audit report for the applicant’s prosecution. The report has now been
submitted and there is no reason now for the delay in his trial. On the issue
of absence of jurisdiction he contended that the applicant was placed before
the court below on a provisional charge as the police could not remand the
applicant for more than 48 hours. He further argued that he was not taken
before that court for trial but only on a provisional charge to be remanded in
custody.<o:p></o:p><o:p>&nbsp;</o:p>The
headnote to Dogbe v. Republic [1976] 2 G.L.R. 82 at p. 83 reads in part:<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)
Although by virtue of Act 30, s. 96 (7) as amended by N.R.C.D. 309 the court
was enjoined generally to refuse bail in all murder cases, having regard to the
language of the provisions of the Constitution, 1969, art. 15 (3) (b) and (4)
it was quite clear that in all cases, murder cases included, if an accused
person in custody was not tried ‘within a reasonable time’ then he was entitled
to be released.”<o:p></o:p><o:p>&nbsp;</o:p>The
principle of law stated by Taylor J. as summarised in this headnote is, of
course, an amplification of his earlier decision in Okoe v. The Republic [1976]
1 G.L.R. 80. In that case he had held that article 15 (3) (b) and (4) of the
Constitution, 1969, were still operative under section 3 (2) of the National
Redemption Council (Establishment) Proclamation, 1972. He however left at large
the specific issue whether in an application for bail in a murder case, which
is brought under article 15 (3) (b) and (4) of the Constitution, 1969, section
96 (7) of Act 30 as amended by N.R.C.D.309 can oust the power of the court to
grant bail. At p. 96 of the report he thus refrained from making any
pronouncement on that issue:<o:p></o:p>