REPUBLIC vs. ABROKWA [1988]DLHC656

Date	1988-01-18
Suit No.
Citation No.	[1988]DLHC656

ABAKAH J.

S. Y. ANIM SENIOR STATE ATTORNEY FOR THE REPUBLIC.

KWAKU BOATENG (WITH HIM OKYERE-BOATENG) FOR THE RESPONDENT.

[1988]DLHC656
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>&nbsp;vs. <o:p></o:p>ABROKWA<o:p></o:p>[HIGH COURT, KOFORIDUA] <o:p></o:p>[1989-90] 2 GLR 385<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:
18
JANUARY 1988<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">

S. Y. ANIM, SENIOR STATE ATTORNEY, FOR THE
REPUBLIC.<o:p></o:p>

KWAKU BOATENG (WITH HIM OKYERE-BOATENG) 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABAKAH J.<o:p></o:p>The
Republic appeals to this court against a ruling given by the Circuit Court,
Koforidua on 27 October 1987. By the ruling in question the circuit court
purported to rescind an earlier order made by that court at the same sitting,
discharging the respondent upon the entry of a nolle prosequi by the Republic.
The sole ground of appeal filed on 6 November 1987 reads:<o:p></o:p>“The
trial judge erred in law when he vacated an earlier order made by him on the
grounds that a copy of the nolle prosequi ought to be filed at the Court of
Appeal before the accused could be discharged.”<o:p></o:p><o:p>&nbsp;</o:p>Before
arguing the substantive appeal, learned Mr. S. Y. Anim, Senior State Attorney,
for the Republic, made some observations on certain submissions which he said
were made in the circuit court in connection with the matter culminating in
this appeal but which were not recorded. On the right of the Attorney-General
to enter nolle prosequi Mr. Anim referred me to section 54 of the Criminal
Procedure Code, 1960 (Act 30) and then section 27 of the Interpretation Act,
1960 (C.A. 4) on the definition of “shall” and “may.” Mr. Anim then argued that
when nolle prosequi is duly entered a court has no discretion but to order the
discharge of the accused. The reason for the entry of nolle prosequi was not
open to any question, argued Mr. Anim, and citing as he did so, Amissah,
Criminal Procedure in Ghana at 22.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>On behalf
of the respondent, Mr. Kwaku Boateng, learned counsel (with him Dr.
Okyere-Boateng), replied. In respect of the preliminary observations made by
Mr. Anim, Mr. Kwaku Boateng argued that the facts allegedly omitted from the
record should have been deposed to in an affidavit if they were intended to be
relied upon. True, these facts do not appear in the record, and they, not
having been sworn to in an affidavit and incorporated in the record, I shall
take no notice of them but go strictly by the record before me. Mr. Kwaku
Boateng referred me to section 10 (5) (b) of the Courts Act, 1971 (Act 372) and
submitted that the ruling appealed against was an interlocutory one and so an
appeal against it could only have been brought with leave. I dismiss this
submission in limine. Section 10 (5) (b) relates to appeals from civil causes
or matters decided by a circuit court. The matter under review is a criminal
one and the relevant provision of Act 372 is section 14 (1) (b).<o:p></o:p><o:p>&nbsp;</o:p>Next, Mr.
Kwaku Boateng submitted that the ruling sought to be reversed should have been
attacked by certiorari. That may very well be so but it has to be borne in mind
that the remedies of certiorari and appeal are not, as stated in the case of
Republic v. District Magistrate, Keta; Ex parte Hedo [1971] 2 G.L.R. 459,
mutually exclusive one of the other, but can be both exercised by an aggrieved
party. It is therefore my view that the matter was properly brought on appeal.<o:p></o:p><o:p>&nbsp;</o:p>Mr. Kwaku
Boateng contended also that the entry of the nolle prosequi was not made
personally by the Attorney-General. There should therefore have been a writing
by the Attorney-General showing a delegation of his power in that behalf to the
state attorney who entered it. Mr. Kwaku Boateng relied on section 55 (1) of
Act 30 and cited the case of Republic v. Adu Kwabena [1971] 2 G.L.R. 323 at
324. In reply, Mr. S. Y. Anim asked me to ignore the case cited because it is a
case decided by a High Court which is a court of co-ordinate jurisdiction.<o:p></o:p><o:p>&nbsp;</o:p>This
submission on the want of written order in the circumstances of the case does
not attract me. This point d</main>