THE REPUBLIC vs. DR. ADU TUTU GYAMFI AND TWO OTHERS [2010]DLCA3652

Date	2010-03-26
Suit No.	CRIMINAL APPEAL NO. H2/20/2005
Citation No.	[2010]DLCA3652

MARIAMA OWUSU (MISS) J.A. (PRESIDING

F.G. KORBIEH J.A.

IRENE C. DANQUAH (MS.) J.A.

STATE ATTORNEY FOR THE APPELLANT

ASANTE KROBEA ESQ. COUNSEL FOR THE RESPONDENTS

[2010]DLCA3652
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>DR. ADU TUTU GYAMFI AND
TWO OTHERS<o:p></o:p>&nbsp;[COURT OF APPEAL, KUMASI]<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">

CRIMINAL
APPEAL NO. H2/20/2005&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; &nbsp;&nbsp;DATE: 26TH
MARCH, 2010<o:p></o:p>

</div>COUNSEL:&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; <o:p></o:p>STATE ATTORNEY FOR THE
APPELLANT<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">

ASANTE
KROBEA ESQ. COUNSEL FOR THE RESPONDENTS<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">

MARIAMA
OWUSU (MISS), J.A. (PRESIDING), F.G. KORBIEH, J.A. AND IRENE C. DANQUAH (MS.),
J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

JUDGEMENT<o:p></o:p>

</div>F.G.KORBIEH, J.A.<o:p></o:p>The
facts leading to this appeal are rather simple; they are as follows: on the
24/7/2000 the three respondents were arraigned before the Ashanti Regional
Tribunal on various counts; the first respondent to one count of forgery of
document, one count of uttering forged document and one count of possessing
forged document; the two others to one count of abetment of forgery. They all
pleaded not guilty to all the charges and the case went to trial. The
prosecution called six witnesses in all after which it tried to recall P.W.5
(Det. Sgt.Godwin Lavoe) who had earlier on testified as a hand-writing expert.
Counsel for the first respondent counsel and counsel for the second and third
respondents respectively objected to the prosecutor’s attempt to recall P.W.5. The
tribunal adjourned its sitting and subsequently delivered a written ruling
sustaining the objection. At the next adjourned date, before proceedings could
continue, counsel for the appellant referred the trial tribunal to a nolle
prosequi the appellant had filed. The two counsels on the other side again
raised an objection, contending that the nolle prosequi was not properly before
the tribunal in so far as it had not been either signed by the Attorney-General
himself or authorized by the Attorney-General in writing. Both sides argued for
their respective positions and the tribunal adjourned proceedings. This was on
the 8/9/2003. On the next adjourned date further arguments were taken from both
sides and the tribunal adjourned the matter sine die. On the 3/9/2004 the
tribunal delivered a written ruling, not only sustaining the objection taken to
the entry of the nolle prosequi by the appellant but dismissing the entire case
against the respondents and accordingly acquitting and discharging them.
Basically the reasoning of the trial tribunal in sustaining the objection and
acquitting and discharging the respondents was that it was inclined to follow
the authority of the case of the Republic v. Adu Kwabena [1971] 2 GLR 323
rather that of Republic v. Abrokwa [1989-90] 1 GLR which two cases had been
cited by the respective counsels for the respondent and the appellant. In the
first case, Anterkyi, J (as he then was) had held as follows: (i) that unless
the Attorney-General signed a nolle prosequi himself or authorized a person in
writing to sign the nolle prosequi, then the entry of such nolle prosequi was
null and void and (ii) that where the prosecution of the case had reached, the
entry of a void nolle prosequi implied that the prosecution was resting its case
at that juncture and this entitled the trial court to look at the evidence
adduced against the accused person and decide whether the evidence was
sufficient to convict or acquit the accused person. Anterkyi, J had also
rejected the argument that section 1(2) of the Law Officers Act, 1974 (NRCD
279) precluded a trial court from requiring evidence that an officer of the
Attorney-General’s Department had been directed to enter a nolle prosequi. The
trial tribunal therefore refused to follow the authority in the case of the
Republic v. Abrokwa (supra) where Abakah, J had held that a trial court had to
act in accordance with the provision of 1(2) of the Law Officers Act, 1974
(NRCD 279) and refrain from requiring evidence that an officer of the
Attorney-General’s Department had been directed to enter a nolle prosequi. It
is this ruling that the Republic (the appellant) has appealed against. There
were three original grounds of appeal which were as follows:<o:p></o:p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The
Tribunal erred in law when it held that the nolle prosequi entered by the
Attorney-General’s Department in the case was null and void.<o:p></o:p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;The Tribunal erred in law when it acquitted
and discharged the accused/respondents.<o:p></o:p>(iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbs</main>