AMADU FULANI v. THE REPUBLIC

JUDGMENT OF AMISSAH J. A.

In its drive for simplicity and economy of expression the criminal legislation of 1960 embodied in the Criminal Code, 1960 (Act 29), and the Criminal Procedure Code, 1960 (Act 30), has posed a fundamental question in the administration of criminal justice. It arises in connection with the modes of trial and the attendant powers of punishment. The question put simply is this: is there no more correlation between the gravity of an offence and its mode of trial and punishment?

Up till 1960 such inquiry could have been disposed of in a few words. Our criminal legislation recognised that the more serious offences should be trial on indictment and the less serious ones, summarily. Thus the Criminal Code, Cap. 9 (1951 Rev.), then in operation created in Book 2 of its provisions, summary offences and in Book 3, indictable offences. This led in some cases to a duplication of offences. Stealing and fraud by false pretences, for example appeared twice in the Code, in Book 2 as summary offences and in Book 3 as indictable offences. The penalties provided for the summary offences were quite small when compared with those for the indictable offences. The summary offence of defrauding by false pretences, being punishable by three months' imprisonment whilst its indictable counterpart was liable to a five year term. The summary trial which as its name indicates was a trial which proceeded without much formality and with some dispatch could be held by a magistrate or a judge of the superior courts. If held by the magistrate the offender faced the possibility of no greater punishment than the maximum that the magistrate by general limitation on his powers, had jurisdiction to impose. In ordinary circumstances this was a fine not exceeding £G100 or imprisonment for twelve months or both. In certain situations where the offender had previous convictions the maximum could be doubled. The judge could also try a [p.69] case summarily. In his case, section 159 of the Criminal Procedure Code, Cap. 10 (1951 Rev.), provided that he should do so only if the offence appeared to him to be of such a nature that if proved it would be adequately punished by fine, or by imprisonment not exceeding two years or both.

The magistrate was empowered to try a number of offences appearing in the Book of Indictable Offences. But he could do so only after deciding that having regard to any representation made in the presence of the accused by or on behalf of the prosec