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  • appeal
  • 1960-02-05
  • GLR 15-17
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Criminal Law?-Committal for trial?-Irregularities?-Committal vitiated?-Trial vitiated?- Criminal Procedure Code, Cap. 10, s. 176.


The appellant, a destooled chief, was charged in the district magistrate?'s court (case No. 177/59) with offences of stealing and attempted stealing of stool properties. These charges were withdrawn and the appellant discharged. He was subsequently charged (under the same case number) jointly with one Kyem. By leave of the court these charges were again withdrawn for substitution and the accused persons discharged. They were later brought again before court on case No. 208/59 charging the appellant with attempted stealing and stealing and Kyem with dishonestly receiving. They pleaded not guilty. On the day of the trial the charge against Kyem was withdrawn and he was discharged. The charge of stealing against the appellant was also withdrawn and he was discharged on that count. The sole charge against the appellant was therefore one of attempted stealing. At a resumed hearing the district magistrate decided that the case should be taken on depositions for a committal. Without any application on behalf of the Commissioner of Police he deleted from the charge sheet the remaining charge of attempted stealing and substituted therefore a charge of stealing, altering the date of the alleged offence from the 31st to the 24th December, 1958. The case was committed for trial and the appellant was convicted for stealing by the Commissioner of Assize and Civil Pleas and sentenced to two years I.H.L.He appealed.


APPEAL against a conviction for stealing by the Commissioner of Assize and Civil Pleas (D. E. Gwira, Esquire) on October 1, 1959 at Kumasi Assizes.


Van lare, J. A. delivered the judgment of the court. (He referred to facts and continued):

There was in fact no charge of stealing brought against the appellant before the magistrate to warrant any committal proceedings as provided by section 177 of Cap. 10, the charge of stealing in case No. 177/59, having been withdrawn and changed to a charge of attempted stealing in case No. 208/59 upon which the magistrate proceeded. [p.16]

It appears that the learned magistrate did not proceed under section 177, but attempted to follow the procedure contained in section 176 at the time, as (presumably) it appeared to him that it was undesirable that the case should be tried summarily. The letter section reads as follows:

?"Where in the course of the summary trial of an indictable offence it appears to the Court at any stage of the proceedings that the case is one which is of a character which renders it undesirable that it should be tried summarily the Court shall stop further proceedings and expunge the plea and shall thereupon proceed de novo in the manner provided in part V of this Code for enquiring into charges preliminary to committal for trial upon information."

The learned magistrate wholly failed to follow the peremptory direction that he should stop further proceedings, and expunge the plea, before proceeding de novo in the matter. There is, further, nothing in his record to indicate that even the irregularly amended charge of stealing was read over to Sarpong (as required by section 179) before the committal proceedings commenced. Nor is there any note that Sarpong had not been required to make any reply thereto.

The case of R. v. Gee and Others ([1936] 2 K.B. 442) was one in which the justices had failed to follow strictly the provisions of the Indictable Offences Act, 1848, which regulated the procedure to be followed by examining justices before committal. Goddard, J. (as he then was) delivering the judgment of the Court of Criminal Appeal pointed out that (at p.445) ?"one of the objects of the Act of 1848 was to standardise the procedure, and it is of the utmost importance that magistrates should understand that there should be strict compliance with the provisions of the Act." The question posed by Goddard, J. was " whether the persons charged had been legally committed for trial." He answered it by stating the opinion of the court as follows (at p.445).

"It appears to the Court that these proceedings were so defective that there was no lawful committal for trial . . . no bill of indictment could be preferred against the appellants . . . Though the appellants might have moved by certiorari to quash the indictment, the fact that they did not do so did not make a bad indictment a good one."

The court therefore declared the trial a nullity, and quashed the convictions, refusing to exercise the power (which this court also possesses) to order that the proceedings begin de novo. The court further emphasised their view that " it is of the greatest importance that there should be no deviation from the requirements of the Statute."

In this case it is abundantly clear that there was no compliance with the provisions of the Criminal Procedure Code. There can be no doubt, therefore, that the proceedings in the course of which the appellant was convicted were a nullity. [p.17]

The question arises whether this court should exercise its powers under section 11 (5) of the Court of Appeal Ordinance, 1957 to direct that Sarpong be tried by a court of competent jurisdiction. We have come to the conclusion that this is not a case in which we should exercise this power, particularly as the evidence on the record (which we have read) seems to us to fall short of that degree of certainty that is necessary to warrant a conviction, and also in view of the fact that the appellant has been in custody since his conviction of October 1, 1959.

In the result we allow the appeal, and we quash the conviction and sentence. The appellant is therefore acquitted and discharged.


<P>Appeal allowed</P>

Plaintiff / Appellant


Defendant / Respondent



R.v. Gee & Others [1936] 2 K.B. 442.

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