Hayford Ofosu Amaning v. The Republic: A Case of Judicial Heterodoxy?
The Facts of the Case
In the case of Hayford Ofosu Amaning v. The Republic[i], the High Court had tried summarily an accused person who was charged with robbery and attempted murder. The accused was convicted on both counts and sentenced to a term of twenty-five years. The sentences were to run concurrently. Consequently, the accused person filed an appeal to the Court of Appeal on the ground that the High Court lacked jurisdiction to hear the charge of attempted murder summarily. The second ground was on mitigation of sentence. The Court of Appeal upheld the appeal by striking out the conviction on the attempted murder and further reduced the sentence imposed on the appellant for the charge of robbery.
Critique of the Decision
The decision of the Court of Appeal has not been spared some bashing. The distinguished author, His Lordship Professor Sir Dennis Adjei at pages 108 and 109 of his book, Criminal Procedure and Practice in Ghana[ii], harangued that the decision is contrary to law. He relied heavily on section 45 (e) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) to arrive at his conclusion. He noted as follows:
“The Court of Appeal’s attention was not drawn to section 45 (e) of Act 30 which is on when offences bind; it is the court with jurisdiction to handle all the offences on the charge sheet or the indictment which is the proper court to assume jurisdiction and hear them. The Court of Appeal acted contrary to statute and the decision rendered by it in the appeal was given per incuriam”.
The Issue raised in this Article
The issue for consideration in this article is whether the opinion by the learned author is justifiable or put differently, whether the Court of Appeal committed a serious legal blunder by striking out the charge of attempted murder and reducing the sentence for robbery when the High Court had heard the case summarily even though the charge of attempted murder required a trial on indictment?
Evaluation of the position held by the learned writer
When one carefully examines the law on the subject in totality, the person is likely to agree more with the decision of the Court of Appeal than the view held by the learned writer based on the following reasons:
The learned author in his discussion of section 45 (e) of Act 30 authoritatively surmised: “It is binding on a court which assumes jurisdiction over a charge sheet to have jurisdiction to try all the offences on the charge sheet”.
Conversely, it may appear that section 45 (e) does not speak in mandatory terms in the manner the learned writer put it. The section reads:
“Where a person is charged with more than one offence in the same complaint, charge sheet or indictment, a Court which enquires into or tries any of those offences may at the same time enquire into or try any other offences in the same complaint, charge sheet or indictment, which may, under this Act, be enquired into or tried at the same time as the first mentioned offence”[iii]. (My Emphasis).
Apart from the fact that section 45 (e) of Act 30 does not speak in mandatory terms, it does not also appear to be a jurisdictional question as claimed by the learned prolific writer when he elaborated on the effect of the breach of the section thus: “Where it (the court) lacks jurisdiction to try even one of the counts on the same charge sheet, it must decline jurisdiction for want of jurisdiction”.
He, therefore, argued that the High Court in the case of Hayford Ofosu Amaning v. The Republic case lacked jurisdiction to deal with the entire case (including the charge of robbery) because the attempted murder should have been tried on indictment.
It is debatable whether the High Court actually lacked jurisdiction to try the matter as contended by the learned Judge. Article 140 clause 1 of the 1992 Constitution generally provides that the High Court has jurisdiction in all civil and criminal matters.[iv] The learned writer at page 25 of his book reiterated the point in his discussion of the jurisdiction of the High Court when he stated: “The High Court has original jurisdiction in all criminal matters irrespective of the mode of trial”. And at page 27 of the same book supra, he rightly classified the mode of trial into summary and indictable.
Therefore, if the High Court has original jurisdiction to try all criminal matters, the mode of trial notwithstanding, then the issue of jurisdiction does not arise at all in the case under consideration. This is because both robbery and attempted murder are criminal matters which fall under the purview of the High Court.
It is respectfully submitted that the provision in section 45 (e) of Act 30 hinges on procedure and not jurisdiction. Act 30 is only a procedural statute[v] that does not confer jurisdiction on a court. The jurisdiction of the Superior Courts are established by the Constitution, while that of the lower Courts are established by Parliament[vi] as acknowledged by the learned author at page 23 of his book supra.
Therefore, the procedural provisions in Act 30 cannot oust the jurisdiction conferred on the High Court by the Constitution.[vii] Should there be any inconsistency between the procedural statute and the Constitution; obviously, the former may have to give way to the latter and the same deemed unconstitutional.
The jurisdiction of the High Court and the procedural requirements can be differentiated by comparing Article 140 (1) and Article 139 (2) of the 1992 Constitution. Whereas the former provision deals with the jurisdiction of the High Court, the latter spells out how the Court is constituted in its sittings. In the case of Richard Banousin v. The Republic, the Supreme Court after deciding that the offence of rape is a first degree felony offence triable on indictment proceeded to state: “ … the High Court is differently constituted as and when the need arises”[viii].
For ease of reference, I refer to Article 139 (2) of the Constitution which provides as follows:
“The High Court shall be constituted –
(a) by a single Justice of the Court; or
(b) by a single Justice of the Court and jury; or
(c) by a single Justice of the Court with assessors; or
(d) by three Justices of the Court for the trial of the offence of high treason or treason as required by article 19 of this Constitution”.
Therefore, if a single Judge of the High Court hears a case that is supposed to be tried on indictment such as murder without any jury or assessors; or if a single Judge hears a charge of treason or high treason all alone, the trial will be a nullity, not because the High Court lacked jurisdiction to hear the murder, treason or high treason cases, but because the Court was not properly constituted.
Since the issue that confronts us in the case under consideration is the adoption of the wrong mode of trial for one of the charges, the question that arises is: does the adoption of the wrong procedure or the application of the wrong mode of trial by the High Court render the entire trial a nullity?
I think not, especially where the error complained of is a mere technical or procedural blunder which does not work out injustice to affect the entire trial.
Statute, Case law and the author’s book supra all tend to support my position.
Although section 31 of the Courts Act, 1993 (Act 459) provides that an appellate Court is required to grant an appeal in criminal matters where there is a substantial miscarriage of justice, sub-section (2) is emphatic that mere technical or procedural errors or defects in the charge or indictment generally fall outside the scope for which an appeal can succeed. The section reads:
“The court shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted upon that charge or indictment.
The Courts have moved away from annulling a conviction merely on procedural or technical grounds. For instance, the courts used to maintain that the failure to record a conviction was fundamental that rendered the whole trial a nullity[ix]. However, in the recent case of Kingsley Kuchama a.k.a Friday v. The Republic[x], the Supreme Court per Anin Yeboah JSC (As he then was) relying on the case of Seedi v. Commissioner of Police[xi] held such failure to record a conviction as a mere omission and not a fatality.
Also, in the case of Clement Okyere v. The Republic[xii] the Sekondi High Court dismissed an appeal grounded on a procedural and technical error. In the said case, the police prosecuted the accused person for robbery summarily without the authorization from the Attorney-General, contrary to the express provisions of Act 646 which exclusively vests the Attorney-General with the power to determine whether a robbery case should be heard summarily or on indictment.
Sir Dennis Book on Criminal Procedure and Practice in Ghana
At page 29 of the said book, the learned author justified the dismissal of the appeal which was premised on technical and procedural errors by the Sekondi High Court Judge in the Clement Okyere v. The Republic supra. He emphasized that an appellate court is to dismiss any ground of appeal based on a technical or procedural error, unless there was evidence that it occasioned a miscarriage of justice.
Besides, the Court of Appeal seemed to be clothed with special powers under section 13 of the Courts Act to take the course it took in the case in point. The section reads:
“Section 13—Powers of the Court of Appeal in Special Cases.
If it appears to the Court of Appeal that an appellant, though not properly convicted on some count or part of the indictment or charge, has been properly convicted on some other count or part of the indictment or charge, the Court may either confirm the sentence passed on the appellant cases at the trial, or pass a sentence in substitution for it as it thinks proper and as may be warranted in law by the verdict on the count or part of the indictment or charge on which the Court considers that the appellant has been properly convicted”.
Since the charge of attempted murder in the Hayford Ofosu Amaning case at the High Court should have been tried on indictment and not summarily, the Court was not properly constituted to hear the matter and it was right for the Court of Appeal to strike out the conviction regarding the charge.
However, on the charge of robbery, the High Court was properly constituted to deal with the matter in a summary form. Thus, it may appear that section 13 (1) of Act 459 allows the Court of Appeal to sever the two convictions by striking out the void one on the attempted murder and sustaining the conviction on the robbery.
Based on the above analysis, it appears plausible that the decision of the Court of Appeal in Hayford Ofosu Amaning v. The Republic is neither incorrect nor made per incuriam as is being contended by His Lordship Justice Dennis Adjei.
[i] Hayford Ofosu Amaning v. The Republic; Suit No. H2/1/2017, delivered by the Court of Appeal on 11th May, 2017.
[ii] Dennis Dominic Adjei: ‘Criminal Procedure and practice in Ghana’ (2018)
[iii] Under section 42 of the Interpretation Act, 2009 (Act 792, the word ‘may’ when found in an enactment is to be construed as permissive and empowering, while the word ‘shall’ is to be construed as ‘imperative and mandatory.
[iv] Article 140 (1) of the 1992 Constitution reads: “The High Court shall, subject to the provisions of this Constitution, have jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by the Constitution or any other law”. See also section 15 of the Courts Act, 1993 (Act 459).
[v] See endnote ii at pages 2 & 3.
[vi] Specifically, the Courts Act, 1993 (Act 459).
[vii] The jurisdiction of the High Court is incorporated in the Courts Act, 1993 (Act 459)
[viii] Richard Banousin v. The Republic; No. J3/2/2014, dated 18th March 2014, S.C. (Unreported)
[ix] Commissioner of Police v. Mateifio & Others 9 WACA 40
[x] Criminal Appeal No. J3/02/2018, dated 8 March, 2018, S.C. (Unreported)
[xi] Seedi v. Commissioner of Police  12 WACA 29
[xii] Clement Okyere v. The Republic; Suit No. F/17/4/16 delivered on 27th July 2016 (Unreported).
The author is a Justice of the High Court of Ghana and is currently on secondment in the Gambia. He obtained his LLB at the University of Ghana in 2000 and was called to the bar in 2002. In 2010, he joined the bench as a circuit court judge – after 8 years in private practice. He became a High Court Judge in 2013. Justice Alexander Osei Tutu holds an LLM in International Human Rights from the Fordham University and a Diploma in Transnational Criminal Law from the International Law Enforcement Academy at Roswell, USA.