BENNIN AND OTHERS vs. REPUBLIC [1994]DLCA5289

Date	1994-05-12
Suit No.	[1994 - 95] 2 G B R 595 – 602 C A
Citation No.	[1994]DLCA5289

LAMPTEY JA

AMUAH JA

ESSILFIE-BONDZIE JA

QUAYNOR FOR NANA AKUFO-ADDO FOR THE APPELLANT

OSAFO SAMPONG

CHIEF STATE ATTORNEY (WITH HIM NERQUAYE-TETTEH

STATE ATTORNEY) FOR THE RESPONDENT

[1994]DLCA5289
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													<main id="main" class="content" style="min-height: 60rem" >BENNIN AND OTHERS<o:p></o:p>vs.<o:p></o:p>REPUBLIC<o:p></o:p>[COURT
OF APPEAL]<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">

[1994 - 95] 2 G B R 595 – 602&nbsp; C A&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; DATE: 12 MAY 1994<o:p></o:p>

OSAFO
SAMPONG, CHIEF STATE ATTORNEY (WITH HIM NERQUAYE-TETTEH, 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 1.0pt 0in">

LAMPTEY
JA, AMUAH JA, ESSILFIE-BONDZIE JA<o:p></o:p>

</div>LAMPTEY JA. <o:p></o:p>Sometime
in early 1993, James Scott Benin and three named accused persons were arraigned
before an Accra Circuit Court on charges of conspiracy to kidnap and kidnapping
(four counts in all). Before the hearing on the merits could commence, learned
counsel appearing for the accused persons raised a preliminary objection to
their being tried summarily. The trial judge recorded the reasons urged in
support of an application for trial of the accused persons on indictment as
follows:<o:p></o:p>“(a) The charge is a serious one, a
second degree felony and too serious to merit summary trial.<o:p></o:p>(b) If tried on indictment, the
accused persons would have the opportunity to know the prosecution’s evidence
against them from the outset and able to instruct counsel on their defenses
since they would be served advance copies of the summary of evidence; and<o:p></o:p>(c) Trial on indictment would enable
them to know the background of prosecution witnesses who may well be foreign
nationals of whom practically nothing would be known from the outset by the
defence.”<o:p></o:p>The
application was vehemently resisted and opposed by learned counsel for the
Republic. After hearing the lawyers for the parties, the trial judge in a
ruling dated 15 March 1993, dismissed the application but ordered that “within
7 days, the prosecution serve copies of all prosecution witness statements on
the defence.” She had made the order because, according to her, “the defence
application should be taken as though it was an application for those
statements.”<o:p></o:p>The
Republic was aggrieved by the order made by the trial judge and promptly
appealed to the High Court. Two grounds of appeal were stated in the notice of
appeal. These were:<o:p></o:p>“(1) The learned circuit judge erred
in law when she ruled that the summary of evidence should be supplied to the
defence in a summary trial; and that<o:p></o:p>(2) The learned circuit judge erred in
law when she ruled that the power to effect (sic) the mode of trial rested
primarily with the court.”<o:p></o:p>In
due course, the appeal was heard on the merits by the High Court, Accra. On 4
May 1993, the High Court, in a reasoned ruling, allowed the appeal of the
Republic and made the following order:<o:p></o:p>“The case should go back to the
Circuit Court, Accra to be tried summarily and without insisting that the
defence is entitled to a summary of evidence.”<o:p></o:p>The
accused persons were aggrieved and dissatisfied with the decision and the
consequential order made by the appellate judge and appealed to this court. One
ground of appeal was stated on the notice of appeal. It reads thus:<o:p></o:p>“The Accra High Court (Coram: Lartey
J) erred in law when it reversed and set aside the decision of the Accra
Circuit Court, (Coram: Judge Ivy Ashong) ordering the prosecution to furnish
the appellants with a summary of evidence that the prosecution intended to call
in this case, thereby occasioning to the appellant substantial miscarriage of
justice.”<o:p></o:p>I
must immediately point out that the ground of appeal as formulated is inelegant
and breached the operative rule. The defect was however cured by the
submissions and arguments of counsel for the appellant when he argued the
appeal. Before I proceed to consider the merits of the present appeal, I feel
obliged to make some preliminary observations.<o:p></o:p>It
seems to me the trial circuit judge misconceived her duty in the circumstances
in which she found herself after she had firmly overruled the application by
the accused persons. As soon as she declared that she had dismissed the
application, she clearly and plainly became functus officio. She no longer had
jurisdiction in respect of the application. The order she purported to make was
made without jurisdiction. In my opinion the error of law committed by the
circuit judge was a ground of appeal at the instance of the Republic, that is,
to appeal to the appropriate court to have the offending order set aside. The
remedy for the accused persons in the circumstances was to exercise their right
of appeal against the dismissal of their application. Regrettably to state, the
case went to the High Court on appeal on other grounds. The High Court did not
advert to the above error of law apparent on the face of the record of appeal.
The court's attention was also not drawn to it.<o:p></o:p>It
does not therefore surprise me that the appellate High Court made an order when
there was no need to do so because the order of the circuit court could not be
supported in law. The judge had ordered that the case be tried summarily. She
did not stop there as she was enjoined to do, but continued as follows: “and
without insisting that the defence is entitled to a summary of evidence.”<o:p></o:p>It
is needless for me to state that the procedure governing summary trials is spelt
out at great length in Part III, sections 163 to 180 of the Criminal Procedure
Act 1960 (Act 30). It was therefore sufficient for all purposes for the judge
to rule that the case be </main>