CLERK OF AXIM LOCAL COUNCIL v. TANDOH

JUDGMENT OF EDUSEI J.

The Axim Local Council by their clerk of council instituted criminal proceedings against the respondent, P. K. Tandoh, for refusing to give information to the Axim Local Council as a rating authority.

When the case came on for hearing before the district court grade II, Axim, the prosecutor did not appear and on representation by the respondent's counsel the case was struck out and the respondent was discharged. The court awarded N¢40.00 costs to the [p.775] respondent against the Axim Local council. Against this order for costs the council has appealed to this court.

The learned state attorney argued that the clerk of council was acting in his official capacity and therefore was a public prosecutor. In the circumstances it was wrong in law for the district magistrate to have awarded costs to the accused-respondent. The learned state attorney relied on section 139 (3) of the Criminal Procedure Code, 1960 (Act 30), and submitted that the Axim Local Council was not a private prosecutor. He invited the court to consider section 139 (5) of Act 30 and to hold that the Axim Local Council was not a private prosecutor. This subsection states that, "No order shall be made if the Court considers that the private prosecutor had reasonable grounds for making his complaint." Mr. Bentsi-Enchill, counsel for the accused-respondent maintained that the Axim Local Council was a private prosecutor and the only persons who could be described as public prosecutors are the Attorney-General and his team of state attorneys as well as police prosecutors.

There is no definition of a public prosecutor in the Criminal Procedure Code, though section 139 (7) of Act 30 defines "private prosecutor" as "any person who is not prosecuting as public prosecutor." This definition does not assist us much. However, a careful reading of section 56 of Act 30 may offer some assistance as to whether a clerk of council is a public prosecutor or not. It is to be observed that the Attorney-General may under section 56 of Act 30 appoint public officers to be public prosecutors. The said section 56 of Act 30 states:

"The Attorney-General may, by executive instrument appoint generally, or for any specified class of criminal causes or matters, or for any specified area, one or more public officers to be public prosecutors, and may by writing under his hand appoint any legal practitioner or public officer to be a public prosecutor in any particular criminal cause or matter. Any