KWADU v.

THE REPUBLIC
[1971] 1 GLR 272

Division: IN THE HIGH COURT, KUMASI

Date: 9 FEBRUARY 1971
Before: TAYLOR J.

Criminal law and procedure—Summary proceedings—Commencement—Whether summary proceedings

can only be instituted in district courts— Whether circuit and High Courts have power to issue a
commencement process for summary trials—Whether circuit and High Courts sit in their own right when
proceeding summarily—Criminal Procedure Code, 1960 (Act 30), ss. 2, 60 and 164—Courts Decree,
1966 (N.L.C.D. 84), para. 56.

Criminal law and procedure—Punishment—Circuit Court—Summary trial—Maximum sentence provided

by the law imposed in the circuit court—Whether the power of punishment of circuit court
restricted—N.L.C.D. 84, para. 56—Criminal Procedure Code (Amendment) Decree, 1968 (N.L.C.D.
276).

Criminal law and procedure—Sentencing—Mitigation—Necessity of imposing a term that will be harsh

enough to be a deterrent and short enough to satisfy the reformative element in criminal justice.

Constitutional law—Retroactive legislation—Severer penalty—Mandatory prohibition

against—Constitution, 1969, article 20 (5).

HEADNOTES
The appellant was tried summarily and convicted in the circuit court, having been found guilty of
possessing three forged Bank of Ghana ten new cedi notes contrary to section 18 (2) of the Currency Act,
1964 (Act 242). When he admitted to one previous conviction for stealing, and one for attempted stealing,
he was sentenced to seven years’ imprisonment with hard labour. On appeal against the sentence it was
submitted that since the case had been tried summarily the circuit court had no jurisdiction to impose a
sentence of more than two years’ imprisonment, i.e. a sentence higher than that which a district court
trying the same case could pass.

[p.273] of [1971] 1 GLR 272

Held, allowing the appeal against sentence:

(1) the submission that according to section 60 of Act 30 summary proceedings could only be
instituted in district courts because circuit and High Courts had no power to issue a commencement
process for summary trials was unfounded. Circuit and High Courts can issue a process to
commence summary trials before them by virtue of paragraph 56 of N.L.C.D. 84. When these
courts do issue such a process they sit in their own right having regard to sections 2 and 164 of Act
30 and not by reason of possessing concurrent jurisdiction with the district court.
(2) The effect of N.L.C.D. 276 which substituted a new section 44 of Act 30, is to enable the circuit
and High Courts in a summary trial to impose the maximum sentence that is provided by the law
without any limitation such as was erroneously believed to have been imposed by paragraph 56 of
N.L.C.D. 84 with respect to the concurrent jurisdiction argument. Republic v. Asare (T.O.), Court
of Appeal, 29 July 1968, unreported; digested in (1968) C.C. 137 and Fulani v. The State, High
Court, 19 January 1968, unreported; digested in (1968) C.C. 67 doubted. Republic v. Fulani [1971]
1 G.L.R. 44, C.A. considered.
(3) Although the circuit court judge had the jurisdiction to impose a sentence of seven years’
imprisonment with hard labour, such a term was too harsh in the circumstances. A term of three
years’ imprisonment with hard labour would be harsh enough to be a deterent and short enough to
satisfy the reformative element in criminal justice.
Obiter. Because of the mandatory prohibition in article 20 (5) of the Constitution, 1969, on retroactive
penal legislation it is not all of the cases that were decided before N.L.C.D. 276 that will be affected.

CASES REFERRED TO
(1) Fulani v. The State, High Court, 19 January 1968, unreported; digested in (1968) C.C. 67.
(2) State v. Boye, High Court, 26 January 1966, unreported; digested in (1966) C.C. 54.
(3) Commissioner of Police v. Anum, Supreme Court, 28 June 1965, unreported.
(4) Kofi v. Commissioner of Police [1961] G.L.R. 184, S.C.
(5) State v. Grunshie (Abu), Supreme Court, 20 June 1966, unreported.
(6) Essandoh v. The Republic, Court of Appeal, 4 April 1969, unreported; digested in (1969) C.C. 63.
(7) Republic v. Asare (T.O.), Court of Appeal, 29 July 1968, unreported; digested in (1968) C.C. 137.
(8) Republic v. Fulani (Amadu) [1971] 1 G.L.R. 44, C.A.
(9) Woolmington v. Director of Public Prosecutions [1935] A.C. 462; 104 L.J.K.B. 433; 153 L.T. 232;
25 Cr.App.R. 72, H.L.
(10) Magor and St. Mellons R.D.C. v. Newport Corporation [1952] A.C. 189; [1951] 2 T.L.R. 935; 115
J.P. 613; [1951] 2 All E.R. 839, H.L.; affirming [1950] 2 All E.R.1226, C.A.
(11) Koomson v. The Republic, High Court, 3 December 1968, unreported; digested in (1969) C.C. 29.
(12) Sarpong v. The Republic, High Court, 25 November 1969, unreported; digested in (1970) C.C. 27.

[p.274] of [1971] 1 GLR 272

NATURE OF PROCEEDINGS
APPEAL from a decision of the Circuit Court, Kumasi, on 30 May 1968 in which the appellant was
sentenced to seven years’ imprisonment with hard labour after having been convicted of possessing
forged Bank of Ghana notes contrary to section 18 (2) of the Currency Act, 1964 (Act 242).

COUNSEL
D. M. Adusei for the appellant.
J.C Amonoo-Monney, State Attorney, for the respondent.
JUDGMENT OF TAYLOR J.
On 30 May 1968, the appellant was convicted in the Circuit Court, Kumasi, on one count of possessing
three forged Bank of Ghana ten new cedi notes, contrary to section 18 (2) of the Currency Act, 1964 (Act
242). He admitted to one previous conviction for stealing and one for attempted stealing for which he had
been sentenced to three months’ imprisonment with hard labour on 28 May 1966 in the Circuit Court,
Kumasi. The circuit court thereupon sentenced the appellant to seven years’ imprisonment with hard
labour and remarked that the appellant “has criminal propensities and must be dealt with severely.” It is
against the conviction and sentence that the appellant appealed to this court. At the summary hearing the
appellant abandoned the appeal against his conviction and sought to appeal against the sentence on the
ground that the sentence was excessive. I took the view at the hearing that, like many cases of its kind
pending before me, the appeal against the sentence entailed a consideration of the validity of the
reasoning of Amissah J.A. (sitting as an additional judge in the High Court) in the case of Fulani v. The
State, High Court, 19 January 1968, unreported; digested in (1968) C.C. 67. I was in some difficulty as I
found the matter a little confusing having regard to previous decisions of the Court of Appeal. I therefore
made the following order, after granting leave to appeal against the sentence, since the appellant was not
represented by counsel:
“I want legal argument touching on this problem as I find the matter one of extreme difficulty. Although I do
not seem to find myself in agreement with Amissah J.A., I think his opinion is entitled to the greatest respect
and because the decision may very well be right I am anxious that learned counsel assist me in resolving the
matter. For this reason I will assign the conduct of this appeal on behalf of the appellant to counsel D. M.
Adusei.”

Thereafter I heard arguments from counsel for the parties and I must say that I have been tremendously
assisted by the able and painstaking efforts of both counsel.
Before considering the decision in Fulani v. The State (supra) it may be necessary to remember that that
decision was not the first High Court decision which laid down the proposition that a circuit court trying a
case summarily must not pass a higher sentence than a district court trying the same case could pass. In
State v. Boye, High Court, 26 January 1966,unreported; digested in (1966) C.C. 54 Wiredu J. held that
whenever a case was tried summarily by a circuit court judge, he must consider himself

[p.275] of [1971] 1 GLR 272

as exercising concurrent jurisdiction with a magistrate and he must not therefore pass a higher sentence
than a magistrate. This must be a remarkable decision indeed because in the case of Commissioner of
Police v. Anum, Supreme Court, 28 June 1965, unreported, that court in effect held that sentences of
eighteen and thirteen months’ imprisonment with hard labour imposed on the appellants by the circuit
court, in a summary trial were adequate and dismissed the appeals which had previously been dismissed
by the High Court. I have studied the record of proceedings in the circuit court in that case and the record
shows that the appellants, all police officers, were first offenders, and so if the view of Wiredu J. or the
subsequent view of Amissah J.A. is right, then the sentences of eighteen months and thirteen months were
wrong and the decision of the Supreme Court in the case would seem to have been given per incuriam.
Indeed if the decision in Fulani v. The State (supra) is right then quite a number of decisions of the
Supreme Court must be considered to have been given per incuriam. As a random example: In the case of
Kofi v. Commissioner of Police [1961] G.L.R. 184, S.C., a sentence of three years’ imprisonment with
hard labour imposed on the appellant was held to be in order. This was a case which was decided very
soon after the 1960 legislation was passed. In the case of the State v. Grunshie (Abu), Supreme Court, 20
June 1966, unreported, the erstwhile Supreme Court considered sentences of five and seven years’
imprisonment with hard labour imposed on the appellants in a summary trial before the Circuit Court,
Takoradi, in a case in which the appellants were appealing against the sentences. Assuming that the 1960
legislation which created the circuit courts limited their power of punishment to twelve months’
imprisonment with hard labour or 24 months’ imprisonment with hard labour in cases involving previous
convictions, then it is amazing indeed that this escaped the attention of three Supreme Court judges. This
is what the Supreme Court unanimously said, “After considering the facts and all the circumstances
surrounding this case we are of the opinion that the sentence passed upon each appellant by the circuit
court judge is warranted by law and is not manifestly excessive.” It is noteworthy that in the view of the
Supreme Court the sentences passed on each of the appellants were “warranted by law.” Is it to be
assumed that the highest court in the land at that time would so decide without looking at the relevant
law? I think not, but if that is so then this decision of the Supreme Court was also decided per incuriam.
Coming however to very recent times, a strongly constituted Court of Appeal on 4 April 1969 dealt with
the case of Essandoh v. The Republic,Court of Appeal, 4 April 1969, unreported; digested in (1969) C.C.
63. In that case the appellant was tried summarily in the Circuit Court,Kumasi, and he was acquitted on
ten counts of stealing. The Court of Appeal’s decision was given after the case of Fulani v. The State
(supra).The State appealed against the acquittal and the High Court allowed the appeal and imposed a
sentence of four and half years on each count with the sentences to run concurrently. There was no
question of a previous conviction and the inference is inevitable that the High Court considered,

[p.276] of [1971] 1 GLR 272

and the Court of Appeal agreed, that four and half years was the appropriate sentence which the circuit
court should have imposed. This is so because the appeal was dismissed which in effect confirmed the
sentence of four and half years on each count to run concurrently. Is it to be assumed that a court
composed as this court was, of Akufo-Addo C.J.(as he then was), Azu Crabbe J.A. and Archer J. (as he
then was) was unaware of the provision limiting the jurisdiction of the circuit court to sentence convicted
persons? I think not; but if I am wrong then once again the decision of the Court of Appeal in this case
was decided per incuriam.
I have adverted to these authorities to show that the view of the law held by Wiredu J. and Amissah J.A.
is not free from doubt; that their decisions unsettled what was apparently considered to be a settled legal
position and that it was a revolutionary view. If it is supported by authorities or it is the only logical
inference deducible from construction of the relevant statutory provisions having regard to the intention
of the legislature as spelt out in those statutory provisions then it ought to prevail and all of the many
decisions of the erstwhile Supreme Court and its successor the Court of Appeal, must be taken to have
been decided per incuriam. This is because in all the cases decided by the Court of Appeal and the
erstwhile Supreme Court, no reasons were advanced for the sentences. It was assumed by the provision
creating the offence. The decision in Fulani v. The State (supra), however, for the first time considered
the matter very closely and meticulously and gave very plausible reasons based,inter alia, on the
construction of sections 44 and 60 of the Criminal Procedure Code, 1960 (Act 30), and section 56 of the
Courts Decree, 1966 (N.L.C.D. 84). The construction of section 44 of Act 30 spelt out in the decision
would seem to have been subsequently vindicated in the case of Republic v. Asare (T.O.), Court of
Appeal, 29 July 1968, unreported; digested in (1968) C.C. 137, a decision which will be discussed later
on in this judgment.
While writing this judgment, I was informed that the decision in Fulani v. The State (supra) was on
appeal and was being argued in the Court of Appeal. I therefore suspended consideration to await the
result of the appeal. The appeal by the state was allowed: See Republic v. Fulani(Amadu) [1971] 1 G.L.R.
44, C.A. Unfortunately the arguments which dominated the reasoning of Amissah J.A. did not seem to
have been dealt with by the Court of Appeal. Furthermore although the view of Amissah J.A. was indeed
revolutionary in the sense that no previous decision of the Court of Appeal can be found supporting it,
nevertheless as I have already indicated the subsequent decision of the Court of Appeal in Republic v.
Asare (T.O.) (supra) would seem to have supported the reasoning. Consequently a decision overruling it
without adverting to the case of the Republic v. Asare case (supra) may be thought to be of doubtful
validity. It is for these reasons that I propose to examine fully the decision of the High Court in Fulani v.
The State. In my view the decision of the Court of Appeal allowing the appeal by the State in that case
conflicts diametrically

[p.277] of [1971] 1 GLR 272

with the decision in Republic v. Asare (T.O.) (supra). It is my further view that of the two conflicting
decisions, the decision of the Court of Appeal in the case of the Republic v. Fulani (supra) is to be
preferred to its previous decision in the Republic v. Asare (T.O.) (supra).
Now to the reasoning of the High Court in Fulani v. The State (supra). One aspect of the 1960 criminal
legislation which is obvious on a reading of the Criminal Code, 1960 (Act 29), and the Criminal
Procedure Code, 1960, is, as Amissah J.A. remarked at the commencement of his judgment, “its drive for
simplicity and economy of expression.” This must not be lost sight of as it is very relevant when one
considers the proper construction to be placed on, say, section 44 of Act 30 before it was amended by the
Criminal Procedure Code (Amendment) Decree, 1968(N.L.C.D. 276). The said section 44 is the provision
upon which the decision in Fulani v. The State was founded in the High Court. I shall advert to this point
later on in this judgment. It is a matter for regret that this was ignored by the Court of Appeal. The
judgment commenced by posing this question: “Is there no more correlation between the gravity of an
offence and its mode of trial and punishment?” It then endeavoured to answer this question by examining
the criminal legislation existing before the 1960 legislation was passed and concluded after examining the
said legislation as follows (the emphasis is mine):”
“One thing was quite clear from the arrangements which existed up till 1960. Where an accused was tried by
a magistrate or a judge, once his trial was summary, the maximum sentence he faced was by law set at a
lower level than what he would other wise have faced if the trial for the same offence had been on
indictment. As a consequence the prosecution would only present the less serious of the offences which
could be tried by either mode for trial summarily. The most serious offences they had to reserve for the more
majestic mode of trial which carried the more serious consequences.”

It must be noted that inherent in this apparently innocuous conclusion are two propositions:
(1) That the maximum punishment provided by law is more in trials on indictment than in all cases of
summary trials
(2) That the decision to try a person summarily or on indictment rests with the prosecution, and that it
is a discretion apparently exercisable by considering the gravity of the offence.
The first proposition had statutory support, it is the result of the combined effect of the provisos to section
49 (1) of the Courts Ordinance, Cap. 4 (1951 Rev.), and section 159 of the Criminal Procedure Code,
Cap.10 (1951 Rev.). These unambiguously limited the powers of punishment of the district courts and
High Court in summary trials but in both Cap. 4 and Cap. 10 there were no provisions limiting the powers
of the High Court in trials on indictment. It is remarkable that a somewhat similar situation was to exist in
the subsequent N.L.C.D. 84 and Act 30 with regard to summary trials in the circuit and High Courts. In
both of these enactments

[p.278] of [1971] 1 GLR 272

there were no provisions limiting the sentencing power of the High Court or circuit courts in summary
trials.
The proposition involves the exercise of a discretion and although it is a view which would seem to
disclose that the discretion is exercised by merely considering the gravity of the offence, the most serious
being triable on indictment and the less serious being tried summarily, there would seem in actual fact to
be legally no authority which could be said to support, or which gives the principles governing the
exercise of the discretion as is disclosed here. In fact the question of whether a crime, say a felony, is
serious or not, would seem to be a very difficult one indeed for which there is no ready legal answer. To
suggest therefore that the prosecution had to reserve the most serious offences for a so-called majestic
mode of trial is to impute to the prosecution a duty for which there is no legal basis or justification.
Consider the case of A. stealing ten new pesewas from B. by force and the case of D. stealing
N¢1,000,000 from Barclays Bank. One would have thought, applying common sense, that the million
cedis case is more serious than the ten new pesewas case; and yet under the law the ten new pesewas case
is a first degree felony punishable by imprisonment for life and the million cedi case is only a second
degree felony punishable by imprisonment not exceeding 25 years.
It seems to me that the question as to whether a case should in fact be tried summarily or not, where the
case is one triable summarily or on indictment, involves the exercise of a discretion by or on behalf of the
Attorney-General and there are, as far as I know, no decided cases, and there could in the nature of things
be no decided cases governing the exercise of this discretion. To attempt to give the principles governing
this exercise as was attempted in Fulani v. The State (supra) is, if I may say so with respect, mere
speculation. In the final analysis, and this is important, the court is the ultimate authority on the matter
and in a case tried on indictment by the High Court or a circuit court an imprisonment for two months
may be imposed, while in a case tried summarily by the district court an imprisonment for twelve months
may be given thus upsetting the inference that the one crime is more serious than the other for which
reasons perhaps the respective modes of trial had been chosen by the prosecution. It is probable, and this
would also be speculative, that the decision to have a case tried summarily or on indictment may be
dictated not by its gravity but by its complexity or even by a desire for speedy trial only.
It is now necessary to consider the argument which was rejected by the court and which Mrs. Amankwah,
counsel for the State, put forward in Fulani v. The State (supra) in the High Court and which the Court of
Appeal did not consider “impressive.” The appellant in that case had been sentenced to seven years’
imprisonment with hard labour on charges of conspiracy to steal, unlawful entry and stealing. Before the
1960 legislation, unlawful entry (then known as burglary or house breaking, depending on the time of the
offence) was an indictable offence and was never tried summarily. The 1960 legislation converted it to a
second

[p.279] of [1971] 1 GLR 272

degree felony triable either on indictment or summarily. The amount of money involved was ¢3,462.00.
The argument of counsel for the State was that on a summary conviction by the circuit or High Court,
there was nothing which prevented the trial judge from imposing a sentence up to and including the
maximum that the provisions which created the offence imposed. This argument, which in my humble
opinion would seem to be impressive and well-founded, was rejected by the courts and it becomes
necessary to examine the reasons for rejecting it. It was said that the argument “does away with any
distinction between the summary trial as the machinery for the more serious offence.” With the utmost
respect I do not see how the argument can be said to do away with the distinction. As has been observed
already in this judgment, a trial on indictment may result in imprisonment for two months and summary
trial may end up in imprisonment for twelve months. The deciding factor is the view that the tribunal
takes of the gravity of the offence and not the view which the prosecution may take, however
well-intentioned, of the seriousness of the offence.
Then it was further said that if the argument is right then “we are faced with a most serious situation
indeed,” because a number of misdemeanours have been made punishable by imprisonment for 25 years
and our citizens are therefore “liable to such vicious penalties after a trial which is only summary.” This
argument seems to postulate the proposition that summary trials are inferior and not as safe as trials on
indictment. With the greatest respect, it seems to me that this cannot be right. Whatever superiority people
may see in trials on indictment the principles which govern the trial and reception of evidence in our
courts in criminal cases and the legal requirement made famous in the oft-quoted dictum of Viscount
Sankey L.C. in Woolmington v. Director of Public Prosecutions [1935] A.C. 462, H.L. make it absolutely
essential that the prosecution can only succeed in obtaining a conviction after discharging the burden of
proof by satisfying the standard of proof which is the same in a trial on indictment as in a summary trial.
With respect therefore, to talk about “vicious penalties after a trial which is only summary” is to whittle,
so to speak, down the standard of proof in summary trials and to lose sight of the warning of Viscount
Sankey L.C. in the Woolmington case (supra) at pp. 481-482 that, “No matter what the charge or where
the trial, the principle that the prosecution must prove the guilt of the prisoner is part of common law of
England and no attempt to whittle it down can be entertained.” The emphasis in the above quotation
shows that regardless what the court, and we may add what mode of trial, the principle is unaffected.
It must be noted that the effect of the argument of Mrs. Amankwah is that there is no legal provision
which limits the sentencing power of the circuit and High Courts and so far no specific provision was
indicated in the judgment. Indeed in the Fulani v. The State decision itself, the High Court would seem to
have conceded this point, because after comparing the pre-1960 criminal legislation with the 1960
legislation the judge

[p.280] of [1971] 1 GLR 272

observed (the emphasis is mine):

“In comparison with the old, we find that the magistrate under our present criminal legislation still has the
same limited power of sentencing. The judge of the High Court or the circuit court on the other hand has no
limit other than the maximum that the offence itself calls for imposed on his powers.”

This, of course, is perfectly correct because under section 53 of the Courts Act, 1960 (C.A. 9), now
paragraph 51 of N.L.C.D. 84, the sentencing power of the district courts has been limited. The relevant
sub-paragraphs (2) and (3) read as follows:
“(2) Subject to sub-paragraph (3), a District Court (Grade I or Grade II) shall not impose imprisonment for
a term exceeding twelve months or a fine exceeding ¢240.
(3) Where under any enactment increased punishment may be imposed upon any person previously
convicted of a crime, a District Court (Grade I or Grade II) may impose such increased punishment,
or twice the maximum punishments prescribed by sub-paragraph (2), whichever is the lesser.”

It must be noted that the sub-paragraphs specifically mention “District Court (Grade I or Grade II).”
There is nowhere in the decree or in Act 30 where a similar provision can be found spelling out a similar
limitation touching the circuit or High Courts and so it becomes necessary to examine first the logical
steps or the process of reasoning by which a limitation as specific as is advocated in Fulani v. The State
(supra) came to be attached by the High Court to the sentencing power of the circuit and High Courts,and
second whether it was open to the High Court after conceding that the sentencing power of a judge of the
High or circuit court “has no limit other than the maximum the offence itself calls for” to endeavour by
interpretation to fasten a limitation on the power of a circuit court judge.
In arriving at the conclusion that the sentencing powers of a circuit or High Courts in summary trials are
as circumscribed in the same way as those of district courts, the judge after examining both the old and
the new criminal legislation of 1960, particularly section 2 of Act 30, came to the conclusion that in the
new order the “legislature accepted the basic distinction between the modes of trial for the varying
degrees of offences,namely, that serious offences should be tried on indictment and less serious ones tried
summarily.” Furthermore the court held that it is difficult to find a reason for the provisions of section
178 (2) of Act 30 if the circuit court is otherwise able after trying a case summarily to award the same
penalty that it may award after trying that same case on indictment.” Now section 178 of Act 30 reads as
follows:
“(1) Where, upon the summary conviction of a person for any offence, the District Court is of opinion that,
having regard to the evidence, and to the character and record of the offender, the maximum
punishment which the District Court is empowered to impose

[p.281] of [1971] 1 GLR 272

would be insufficient, the Court may commit the offender for sentence to a Circuit Court and any
enactment relating to the powers of any Court upon committal for trial shall apply so far as relevant to
such committal for sentence.
(2) The Circuit Court shall have power to deal with the offender as if he had been convicted on
indictment by that Court of the offence, and the conviction and sentence shall be subject to appeal as
if he had been so convicted.”

I have had great difficulty in appreciating why, in the first place, it was thought necessary to find a reason
why the legislature enacted section 178 (2) of Act 30 and why it would be difficult to find a convincing
reason for the said provision if the “circuit court is otherwise able after trying a case summarily to award
the same penalty that it may award after trying that same case on indictment.” I would have thought, with
respect, that the reason for the provision is clear from a reading of the subsection and that the said section,
no matter how it is read, can have no relevance to the question of the limitation of the sentencing power
of the circuit court. I think it ought to be borne in mind that one objective of the 1960 criminal legislation,
which is obvious from reading it, would seem to be that apart from trying cases on indictment and
perhaps some cases summarily, the High Court was to have little to do with criminal cases before inferior
courts. Appeals from district courts were to go to the circuit court, the monthly lists from the district
courts were to go to the circuit court, and the circuit courts were to supervise the district courts in the
exercise of their criminal jurisdiction. Is it not natural that section 178 of Act 30 should take the form
which it took, particularly as the High Court, apart perhaps in the matter of the prerogative writs, had no
contact whatsoever with the exercise of criminal jurisdiction by the circuit courts? Appeals from the
circuit court in criminal matters, moreover, went to the Court of Appeal.
It seems to me that the ratio decidendi in the Fulani case runs thus: There is no provision in Act 30 for the
institution of criminal cases summarily before the circuit court or High Court. The only provision is
section 60 (1) of Act 30 and it is confined to proceedings before the district courts. It reads as follows:
“(1). Criminal proceedings may be instituted before a District Court in either of the following ways-
(a) by making a complaint and applying for the issue of either a warrant or a summons in the
manner hereinafter mentioned; or
(b) by bringing a person arrested without a warrant before the Court upon a charge contained in a
charge sheet specifying the name and occupation of the person charged, the charge against
him, and the time when and the place where the offence is alleged to have been committed.
The charge sheet shall be signed by the police officer or public prosecutor in charge of the
case.”
[p.282] of [1971] 1 GLR 272

The argument therefore runs thus: Summary trials strictly speaking can only be held by district courts. On
the other hand under paragraph 65 of N.L.C.D. 84 the circuit and High Courts have concurrent
jurisdiction with the district courts. Paragraph 56 is as follows:
“No jurisdiction conferred upon any District Court shall in anyway restrict or affect the jurisdiction of the
High Court or a Circuit Court and each of those Courts shall have in all causes and matters,civil and
criminal, or original jurisdiction concurrent with the jurisdiction of a District Court.”

Furthermore section 44 of Act 30, before it was amended by N.L.C.D. 276,provided as follows:
“Subject to the provisions of any enactment a criminal case shall not be brought before the High Court or a
Circuit Court, unless it has been previously brought before a District Court and the accused person has been
committed for trial to the High Court or Circuit Court, as the case may be.”

After the Republic v. Asare (T.O.) (supra) was decided section 44 of Act 30 was replaced by a new
provision which sought to reverse the implication of the decisions in the Republic v. Asare (T.O.) and
Fulani v. The State. The ratio of the decision in Fulani v. The State (supra), however, must be examined
uninfluenced by this amendment since it could not have had any effect on the reasoning at the time of the
decision. In view of these provisions it was held in Fulani v. The State (supra) that unless a criminal case
passes through the district court it cannot be dealt with by the circuit or High Court. This conclusion had,
independently of Fulani v. The State, been reached by the Court of Appeal in the Republic v. Asare
(T.O.) (supra). Therefore, the argument continues, when exercising jurisdiction in summary cases circuit
courts and High Courts must be taken to be proceeding by virtue of the concurrent jurisdiction mentioned
in paragraph 56 of N.L.C.D. 84 and consequently the power to punish must be the same as the power of
the district magistrate. It is remarkable and rather unfortunate that the Court of Appeal in allowing the
appeal was completely silent as to this ratio decidendi. Since this ratio would appear to have the support
of the Court of Appeal in Republic v. Asare (T.O.)(supra), it is, in my humble view and with the utmost
respect, vital to the decision of the Court of Appeal that it should have been dealt with. I propose to deal
therefore with the reasoning.
As I have already indicated an important feature of the 1960 criminal legislation was “its drive for
simplicity and economy of expression” to use the words of Amissah J.A. at the commencement of his
judgment. When the comparative table which accompanied Act 30 is studied very closely it becomes
clear that the original section 44 of Act 30 replaced section 49 of Cap. 10. And the question this poses is
this: Is the original section 44 of Act 30 the same as section 49 of Cap. 10 or did the legislature intend a
change in the law? In this respect it must be remembered that

[p.283] of [1971] 1 GLR 272

the 1960 Criminal Procedure Code consolidated all of the existing legislation on the matter with minor
alterations and introduced a radical innovation in the committal for trial procedure. Those sections of
Cap.10 which were repealed did appear in the comparative table as abolished and examples are: sections
25, 45, 55, 56, 57, 152, 180, 187, 198, 202, 203, 207,209, 210, 224, 258, 281, 282, and 343-351. Section
49 of Cap.10 was in the following form:
“The Supreme Court may, subject to any order made under section 27 of the Courts Ordinance forming
divisions for the purposes of jurisdiction and to the power of transfer provided by section 34 of the Courts
Ordinance, enquire of and try any offence subject to the jurisdiction at any place where it has power to hold
sittings:
Provided that, except under sections 60, 149, 159, and 333 of this Ordinance and in the case of a Coroner’s
 inquisition no criminal case shall be brought under the cognizance of the Supreme Court unless the same
shall have been previously investigated by a Magistrate’s Court and the accused person shall have been
committed for trial before the Supreme Court.”

It would seem from a careful comparison of section 44 of Act 30 and section 49 of Cap. 10 that the
draftsmen intended no more than “simplicity and economy of expression” when in the original section 44
of Act 30 they drafted the provision that a criminal case shall not be brought before the High Court or
circuit court as aforesaid, etc. “subject to the provisions of any enactment.” An “enactment” is defined in
section 32 of the Interpretation Act, 1960 (C.A. 4.), as amended by the Second Schedule to the
Constitution (Consequential and Transitional Provisions) Decree, 1969(N.L.C.D. 406), to mean: “. . . an
Act, a constitutional instrument or a statutory instrument or any provision of an Act, a constitutional
instrument or a statutory instrument.”
There are statutory provisions which make it clear that summary trials can be held in the circuit or High
Courts: Section 2 (4) (b) of Act 30 provides that (the emphasis is mine), “Subject to any limitations on the
jurisdiction of the Court - . . . (b) a summary trial shall be by a court of summary jurisdiction, or by the
High Court or a Circuit Court.” Section 164 of Act 30 in dealing with summary trials provides that: “This
Part applies to the summary trial of an offence by a District Court, a Circuit Court or the High Court.”
I cannot understand why the original section 44 of Act 30 cannot be interpreted as a provision made
subject to sections 2 and 164 thereof and any other enactment. It seems so clear that I am at a loss to
understand how its implication can be resisted by any conceivable argument. Can it be seriously argued
that Act 30 limited the sentencing power of circuit and High Courts? Where in the whole of Act 30 is the
provision achieving this limitation? I think the memorandum to Act 30 offers a guide of a sort. At p. 46 of
Memoranda on Acts of the Republic beginning from the Constitution to Act 223 (1964,
Attorney-General’s Department) it is stated:

[p.284] of [1971] 1 GLR 272

“There are also a number of minor alterations, the most important of which are as follows. The mode of trial,
i.e. summary or indictable,is to depend on the maximum sentence which the offence carries (clause 2).
District Courts will have power to try summarily offences carrying a ten-year sentence (i.e. up to second
degree felonies) although they will still normally only be able to impose a one-year sentence themselves.
Circuit Courts will have power to try offences (summarily or on indictment) not carrying the death penalty or
life imprisonment and the High Court will, as now, normally try offences on indictment only, including
capital offences. This necessitates minor amendments to the Courts Act, 1960 (see clause 416 of the Criminal
Procedure Code Bill).”

Obviously if it is the intention to restrict the sentencing power of the circuit or High Courts in summary
trials the memorandum would have stated it as it stated clearly the limitation on the sentencing power of
the district courts. This cannot be a matter to be left for inference by subtle and ingenious interpretation.
In my view the recourse to section 60 of Act 30 and the suggestion by interpretation that proceedings can
only be instituted summarily in the district courts because the circuit and High Courts have no power to
issue the commencement process for a summary trial is uncalled for. If anything, paragraph 56 of
N.L.C.D. 84 which gives the circuit and High Courts concurrent jurisdiction with the district courts,
would enable a circuit or High Court to issue processes to commence actions before the circuit or High
Court as the case may be just in the same way as in my opinion committal proceedings in accordance with
Part IV of Act 30 can be commenced in a circuit or High Court by virtue of paragraph 56 of N.L.C.D. 84.
In my opinion when a circuit or a High Court sits to hear a case summarily it sits in its own right having
regard to sections 2 and 164 of Act 30, and not because of any supposed concurrent jurisdiction. The
sections say so and their provisions are so clear that it is difficult to appreciate by what cannons of
interpretation these clear provisions can be ignored. In his well reasoned arguments in the Fulani decision
the judge in the High Court ostensibly set out to discover through the Criminal Procedure Code, 1960, the
Criminal Code, 1960, and the Courts Decree, 1966 (N.L.C.D. 84), the intention of the legislature in
enacting the 1960 legislation. Did the legislature intend to limit the sentencing power of the circuit and
High Courts in summary trials as it specifically limited that of district courts in paragraph 51 (2) and (3)
of N.L.C.D. 84? Although he found no specific provision directly or impliedly achieving this limitation
he nevertheless answered the question in the affirmative by a process of interpretation. It is submitted
with respect that it is here that he fell into error. This journey of discovery recalls to mind the warning of
Lord Simonds. In Magor and St. Mellons R.D.C. v. Newport Corporation [1950]2 All E.R. 1226 at p.
1236, C.A. the inimitable Denning L.J. (as he then was) for once blasphemed. He said, inter alia, in a
dissenting judgment: “We sit here to find out the intention of Parliament and of Ministers and

[p.285] of [1971] 1 GLR 272

carry it out, and we do this better by filling in the gaps and making sense of the enactment than by
opening it up to destructive analysis.” This heresy was condemned by Lord Simonds when the case went
on appeal to the House of Lords, in no uncertain terms, in [1952] A.C. 189 at p. 191;
“[T]he general proposition that it is the duty of the court to find out the intention of Parliament ... cannot by
any means be supported. The duty of the court is to interpret the words that the legislature has used; those
words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a
voyage of discovery are strictly limited ...
The second part of the passage ... is no doubt the logical sequel of the first. The court, having discovered the
intention of Parliament... must proceed to fill in the gaps. What the legislature has not written, the court must
write. This proposition.... cannot be supported. It appears to me to be a naked usurpation of the legislative
function under thin disguise of interpretation.”

Clearly when the High Court or circuit courts sit to hear cases summarily they are not converted into
dignified district courts. Will they be under the metamorphosis grade I or grade II district courts? I think it
is the circuit court or the High Court sitting. And the relevant question to ask is whether the power of the
circuit or High Court so sitting is in anyway limited by legislation. In this regard I think it is worthwhile
to examine the language of paragraph 51 (2) and (3) of N.L.C.D. 84 already referred to. It will be noted
that the language is clear and unambiguous. It deals only with district courts grades I and II. Why did the
legislature not mention circuit and High Courts if these courts are supposed to be affected by these
provisions? I have not succeeded in finding any answer to that question. And here the matter would have
ended but for the decision of the Court of Appeal in the Republic v. Asare (T.O.) (supra). In that case the
court held, inter alia, upholding the ruling of the High Court: “That by virtue of section 44 of the Criminal
Procedure Code, 1960 (Act 30), the circuit court and the High Court cannot exercise jurisdiction in a
criminal case summarily or on indictment unless the accused person has been committed to it by a district
court.”
In Fulani v. The State (supra), because the appellant was not so committed the High Court judge held that
for that reason the circuit court must be taken to have exercised jurisdiction concurrent with that of the
district court as is spelt out in paragraph 65 of N.L.C.D. 84. Consequently he held that the circuit court’s
power of sentencing would be the same as the sentencing power of the district courts. If the decision in
the Republic v. Asare (supra) is right then the reasoning of the High Court in Fulani v. The State is
unexceptionable, and the decision of the Court of Appeal setting aside that decision would be wrong. It is
a pity that the attention of the Court of Appeal was not called to the case of the Republic v. Asare (T.O.)
(supra). It is noteworthy that the holding in the Republic v. Asare categorically admits apparently, of no
exceptions. But since the
[p.286] of [1971] 1 GLR 272

court did not direct its attention to the effect of paragraph 56 of N.L.C.D.84 as was done by the High
Court in the Fulani case it would seem that the decision is of doubtful validity.
Be that as it may, having regard to the view which I have expressed,it seems to me that of the two
conflicting decisions the decision reversing Fulani v. The State is to be preferred to the decision in
Republic v. Asare. Before the Court of Appeal’s decision in Republic v. Fulani [1971] 1 G.L.R. 44, C.A. I
had considered myself bound by the Court of Appeal’s decision in Republic v. Asare. I took the view that
the decision in the Asare case would seem to support the reasoning of the High Court in the Fulani case
and although I disagreed rather strongly with the decision, I felt bound to follow it compelled by the
doctrine of judicial precedent. In the result, I gave a number of decisions reducing circuit court sentences
to twelve months or below in cases where there were no previous convictions and to 24 months or below
in cases involving previous convictions. It seems that these decisions must be considered to be erroneous.
The original section 44 of Act 30 was amended on 28 August 1968 and was given retrospective effect to
the date of the Criminal Procedure Code, 1960 (Act 30), by the Criminal Procedure Code
(Amendment)Decree, 1968 (N.L.C.D. 276). The enactment provides that:
“1. The Criminal Procedure Code, 1960 (Act 30) is hereby amended by the substitution for section 44
thereof the following new section:-
44. (1) A criminal case which is being tried on indictment shall not be brought before the High
Court or Circuit Court,unless it has previously been brought before a District Court and
the accused person has been committed for trial to the High Court or Circuit Court as
the case may be.
(2) Subject to the provisions of subsection (1) of this section, the High Court or a Circuit
Court shall have power to issue any summons or warrant for the commencement of any
criminal case (whether the case is to be tried before the High Court, a Circuit Court or
any other court of competent jurisdiction) and, accordingly subject as aforesaid,
sections 60 to 87 of this Code shall, with the necessary modifications, apply in relation
to the High Court and a Circuit Court in the same manner as they apply to the District
Court; so however that a criminal case may be heard and determined by the High Court
or a Circuit Court notwithstanding that the summons or warrant for the commencement
thereof was issued by a District Court.
2. This Decree shall be deemed to have come into force at the same time as the said Criminal Procedure
Code, 1960 (Act 30).”

It seems therefore that even if the decision of the High Court in Fulani v. The State is right then N.L.C.D.
276 must be taken to have altered the position so that on the date of the appeal the ratio decidendi of both
the Fulani and Asare cases had disappeared and the decisions had ceased to be good law. If this is so then
a very serious constitutional problem will

[p.287] of [1971] 1 GLR 272

arise for decision. The High Court decision in Fulani v. The State ruled that on a summary trial in the
circuit court where the accused had a previous conviction the maximum punishment to which he could be
subjected was two years and that term was imposed. The effect of N.L.C.D. 276 is to enable the court in a
summary trial to impose a sentence that is within the maximum provided by the law without any
limitation which paragraph 56 of N.L.C.D. 84 was thought to impose because of the concurrent
jurisdiction. Therefore in the case of Fulani v. The State (supra) imprisonment for seven years would be
in order. Now under article 20 (5) of the Constitution, 1969, it is provided as follows, “No penalty shall
be imposed for any criminal offence that is severer in degree or description than the maximum penalty
that might have been imposed for that offence at the time when it was committed.” It seems to me that if
the High Court decision in Fulani v. The State is right, then with the promulgation of the Constitution all
these cases decided before the coming into force of N.L.C.D. 276 would not be affected in any way at all
by the said N.L.C.D.276 despite its retroactive provision; and this would be so because of the mandatory
prohibition of this type of retrospective legislation by article 20 (5) of the Constitution. Of course all
cases decided after N.L.C.D. 276 would be unaffected by the principle in Fulani v. The State (supra).
Indeed on 3 December 1968, Aboagye J. in the High Court, Sekondi, in Koomson v. The Republic,
unreported; digested in (1969) C.C. 29 observed after considering the Fulani case and N.L.C.D. 276 that:
“I fully share the view of Amissah J.A. that when a High Court or circuit court tries a case summarily its
sentence must be less severe than when it tries the same case on indictment. But in view of the amendment of
section 44 of Act 30 by N.L.C.D. 276 I hold that in a summary trial the High or circuit court is not restricted
to pass a sentence which a district court trying the case would be entitled to pass ... ;”

Mensa Boison J. in the case of Sarpong v. The Republic, High Court, 25 November 1969, unreported;
digested in (1970) C.C. 27 came to the same conclusion after examining the decision in Fulani v. The
State and N.L.C.D 276. It is easy to think that N.L.C.D. 276 had so affected the Fulani decision that all
consideration of the matter would be academic. It seems that this cannot be right in view of article 20 (5)
of the Constitution and it is regrettable that the attention of the Court of Appeal was not drawn to these
matters.
However, the instant case was decided before the passing of N.L.C.D. 276 and therefore if the reasoning
in Fulani v. The State had been valid and the decision in Republic v. Asare (supra) was right, then
N.L.C.D. 276 would have had no effect in increasing, as it were, the maximum punishment indicated in
the judgment of Fulani v. The State (supra) for offences committed before 28 August 1968. As it is we
have lost an authoritative pronouncement of the Court of Appeal on the matter.

[p.288] of [1971] 1 GLR 272

Be that as it may, in the appeal before me now, having regard to the views that I have expressed and the
reasons I have given, I hold that the circuit court judge had the jurisdiction to impose the sentence which
she did. The only question is whether the sentence was harsh. Although the appellant had two previous
convictions two years ago at which time he was sentenced to three months’ imprisonment with hard
labour, it seems to me that the highest punishment he was shown to have been given was only three
months’ imprisonment with hard labour. To jump from a pattern of a prison term sounding in a few
months to imprisonment for seven years is very grave indeed and there must be very good reasons why
the appellant was so harshly treated. I see none here: The details of the previous convictions which the
circuit court thought showed criminal proclivities were not apparently given to the court. The case itself
has no aggravating circumstances. It is of course right that the appellant be tried in the circuit court as it
seems that these currency offences were becoming rampant and the restriction on the powers of district
courts aforesaid makes a recourse to the district courts inadvisable in this case. In my view, imprisonment
for a term exceeding the limits of the district court is called for in this case. It ought to be a term harsh
enough to be a deterent and short enough to satisfy the reformative element in criminal justice. It is for
these reasons and not because the circuit court lacks jurisdiction to impose the sentence that it imposed,
that I allow the appeal against sentence. The appeal against sentence is allowed. The sentence of seven
years’ imprisonment with hard labour is quashed and in its place is substituted a sentence of three years’
imprisonment with hard labour. The appeal against conviction has already been dismissed summarily as
abandoned but the appeal against sentence is allowed to the extent appearing in this judgment.

DECISION
Appeal against sentence allowed.
T. G. K