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E. B. K. SEY
V.
THE KING
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
23RD DAY OF DECEMBER, 1950
2PLR/1950/44 (WACA)
OTHER CITATION(S)
2PLR/1950/44 (WACA)
(1950) XIII WACA PP. 128-131
LEX (1950) – XIII WACA 128-131
BEFORE THEIR LORDSHIPS:
BLACKALL, P.
WILSON, C.J., GOLD COAST
LINGLEY, Ag. J.
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BETWEEN:
E. B. K. SEY – Appellant
AND
THE KING – Respondent
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ORIGINATING COURT(S)
Appeal from the Divisional Court, Eastern Judicial Division, W.A.C.A. CR.APP.28/50.
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REPRESENTATION
Koi-Larbi — for the Appellant
P. Holland, Crown Counsel — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Nolle prosequi entered by the Crown after information filed – Fresh information subsequently filed on original committal proceedings – Validity of second information challenged on grounds that depositions extinct and fresh committal proceedings necessary.
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CASE SUMMARY
The appellant was committed for trial on 14th July, 1949, and an information was filed by the Crown. He was brought up for trial at the October, 1949, Assizes when the Crown entered a nolle prosequi. The appellant was subsequently arraigned on the same charges in May, 1950, on a fresh information based on the original depositions.
Counsel for the appellant argued that, upon the entering of a nolle prosequi, not only is the accused discharged in respect of the information for which the nolle prosequi was entered, but that also the depositions on which the accused was committed for trial became, as it were, extinct, and cannot be used again to found a fresh information. Counsel based his arguments on sections 47 and 53 of the Criminal Procedure Code (Cap. 10).
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. Section 53 of the Criminal Procedure Code provides that when a nolle prosequi is entered the discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts.
2. There can be no hardship or prejudice to an accused person in standing his trial at any time on charges based on depositions properly taken according to law, and to bold otherwise would be entirely contrary to the spirit and letter of section 53.
3. When a nolle prosequi has been entered a fresh information can be filed on any charge enquired into on the original preliminary enquiry, without the holding of a fresh preliminary enquiry.
Case referred to:
(1) Rex v. Noormahomed Kanji, 4 E.A.C.A. 34.
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MAIN JUDGMENT
The following is the material part of the Judgment delivered:
WILSON, C.J.
The appellant was convicted by Mr Justice Coussey at the Accra Assizes in May, 1950, on two charges: (1) Falsification of accounts: contrary to section 278 of the Criminal Code, and (2) Stealing contrary to section 271(1) of the Criminal Code (Cap. 9, Gold Coast Laws) He had been tried jointly with another man named R. B. Kyei on a charge of Conspiracy to steal: contrary to section 49(1) and 271(1) of the Criminal Code, but was acquitted on this count. R. B. Kyei was at the same trial convicted of several charges of falsification of accounts and has not appealed against his convictions.
Both accused persons were employed by the Asamankese Stool as clerks and the transactions in respect of which they were charged related to the collection of rents from farmers cultivating Stool lands under the “Abusa” form of tenure. The appellant and his co-accused had been committed for trial on the 14th July, 1949, and having been brought up for trial at the October Assizes in that year, were discharged by the Court on the entry by the Crown of a nolle prosequi for reasons which need not be discussed here. They were subsequently arraigned on the same charges in May, 1950, upon an information based on the original depositions taken in July, 1949, no fresh preliminary inquiry having been held after the entry of the nolle prosequi in October, 1949.
The question raised on the first and second grounds of appeal was whether the Crown, when it enters a nolle prosequi at a trial before the Supreme Court can subsequently file a fresh information of charges arising from the same facts, unless the accused person has been committed for trial anew at a second preliminary inquiry.
Appellant’s Counsel based his argument on section 47 of the Criminal Procedure Code, which provides that, except under certain sections of the Code (here irrelevant) “no criminal cause shall be brought under the cognisance 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” and on the wording of section 53 of the Criminal Procedure Code, the relevant part of which reads:
”In any criminal case, and at any stage thereof before verdict or judgment, and in the case of a preliminary inquiry whether the accused has or has not been committed for trial, the Attorney-General may enter a nolle prosequi, either by stating in Court or by informing the Court in writing that the Crown intends that the proceedings should not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognisances shall be discharged; but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts.”
It was argued that, upon the entering of a nolle prosequi, not only is the accused discharged in respect of the charge for which the nolle prosequi was entered, as section 53 says, but that also the depositions on which the accused was committed for trial become, as it were, extinct and cannot be used again to found a fresh information against the accused. Counsel admitted that section 53 does not specifically say this, but he contended that to allow the Crown this liberty would or might be to the prejudice of an accused person, for in the interval between the preliminary inquiry and the discharge of the accused, some of the Crown witnesses (as occurred in the present case) might become unavailable and the Crown might not be able to establish a case for committal for trial if a new preliminary inquiry had to be held, and the accused would thus escape trial. Such a proposition seems to this Court to be entirely divorced from both the spirit and the letter of the provision in section 53 that “such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts.” It would also, if acceded to, involve a considerable amount of public inconvenience and expense for which no countervailing advantage to the interests of justice would accrue. And we cannot see any hardship or prejudice to an accused person in standing his trial at any time on charges based on depositions properly taken according to law.
There is no English authority on the precise point, but the point was considered and decided by the Court of Appeal for Eastern Africa in the case of Rex v. Noormahomed Kanji (1). After quoting the corresponding section of the local Criminal Procedure Code (which is substantially identical with section 53 of the Criminal Procedure Code of the Gold Coast) the judgment in that case goes on:-
“It is convenient to state here that it is within the knowledge of the members of this Court that the practice adopted by the Crown in this case has been, in the past, the practice in the East African dependencies and, further, it is within the knowledge of one member of the Court that a similar practice was observed in West Africa on a section similarly worded.
“On a close reading of the section in question, it will be observed that the accused person is to be discharged in respect of the charge for which the nolle prosequi is entered. It seems clear that these words refer to the charge in the information, as the information is ‘ the charge ‘ on the trial before the High Court and the nolle prosequi is entered in the High Court in respect of that information. The Attorney-General states that the proceedings should not continue. If, then, the information is the charge, the proceedings are the High Court proceedings, and the nolle prosequi puts an end to these proceedings.
“Crown Counsel has conceded that, in view of the wording of the section, a nolle prosequi may be entered in respect of the proceedings in Subordinate Courts as well as the High Court. This may be so, but we do not consider that this fact in any way interferes with the reasoning set forth supra. We are of opinion, therefore, that after a nolle prosequi has been entered in respect of any given charge contained in an information, there is no necessity for a fresh preliminary inquiry to be held before a further information is filed.”
We adopt the reasons given above in addition to those which we have already given for rejecting the first and second grounds of appeal. We are satisfied that when a nolle prosequi has been entered by the Crown in a criminal case before the Supreme Court in respect of any charge contained in an information, a fresh information on a charge arising out of the facts inquired into in the original preliminary inquiry may be filed without the holding of a fresh preliminary inquiry. The trial of the present appellant was therefore held with jurisdiction and was not a nullity.
The other ground of appeal was misdirection. The learned trial Judge, although stating in his judgment that there was evidence of a conspiracy between the two accused persons to steal the Stool money coming into their bands in the course of their duties, yet held that they should be acquitted on the charge of conspiracy for the reasons which are stated in the judgment as follows:-
“But there is a conflict, sufficient in the evidence for the Crown, to lead to the conclusion that it is not right to convict on the evidence, for the simple reason that the conspiracy alleged is in December, 1948, and the first overt act proved of a conspiracy is on the 8th January, 1949, when the defendants went to a printer at Cape Coast and procured him to print the duplicate receipt book with the serial numbers and colour and size corresponding to those actually in use at the time. It may be that Aidoo, the Crown witness who speaks of the printing of the book at the defendants’ request, has made a mistake as to the date when they visited him, but there is a doubt as to the date and the defendants are entitled to the benefit of the doubt. I therefore find both defendants not guilty on Count 1.”
We are far from agreeing that an overt act manifesting a conspiracy may not take place a considerable time after the formation of the actual conspiracy when such formation is proved by other evidence to have taken place sometime earlier. But we think the meaning of the above passage is that the learned Judge formed the view that it would be unsafe to convict because the documentary evidence showed that false receipts were being issued in December, 1948, while the evidence of Aidoo, on which the implication of the present appellant in the conspiracy to steal largely depended, suggested that the false receipts book was not obtained until the 8th January, 1949, and therefore could not have been used in December, 1948. It is unnecessary to say whether we consider this discrepancy as to the dates to be a good reason for the acquittal of the accused persons on the conspiracy charge, because the acquittal is not and cannot be the subject of appeal. But the acquittal is important in that the appellant’s Counsel has argued that once the conspiracy charge went by the board there was no ground on which to convict his client on either the falsification or the stealing charges, for in the absence of a conspiracy to commit the offence of stealing the Stool money the most that can be imputed to the appellant is negligence in supervising the work of his office subordinate, the first accused, who, by filing no appeal, has accepted his conviction.
We content ourselves with saying that if the learned trial Judge had found the appellant guilty of conspiracy this Court would not have reversed that decision, but as he cast doubt upon the evidence of Aidoo and acquitted him on that count we think he thereby negatived the validity of the conclusions he subsequently arrived at on the falsification and stealing charges on which he convicted the appellant.
Examination of the appellant’s accounts does not reveal anything which would lead to the inevitable conclusion that the appellant had knowledge of the fraudulent operations of the first accused. For these reasons we think the conviction of the appellant cannot stand. The appeal is allowed, the judgment of the trial Court set aside and an acquittal entered on both charges of which the appellant was convicted.
Appeal allowed.
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