June 19, 2019
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Ghana Supreme Court, per Marful-Sau JSC delivering the lead opinion, addressed Gregory Afoko’s original jurisdiction challenge to the Attorney-General’s entry of nolle prosequi after his murder trial had reached the address stage and her subsequent re-arraignment of him with Asabke Alangdi for fresh committal. The Court first held the writ properly invoked enforcement jurisdiction under Articles 2(1) and 130(1)(a), distinguishing interpretation claims. Substantively, the Court determined that the Attorney-General’s power to enter nolle prosequi is an executive prosecutorial discretion inherent in Article 88(3) and preserved by Section 54 of Act 30, and that Article 296(c) and Article 11(7)’s regulation-publication requirements apply only to quasi-judicial discretions, not executive acts. Finding no evidence of unfairness, arbitrariness, bias or capriciousness under Article 296(a)-(b), the Court dismissed the action. Pwamang JSC concurred in the result but advocated for published regulations governing nolle prosequi.
J U D G M E N T
MARFUL-SAU, JSC: - The plaintiff in this writ before us, is not questioning the constitutionality of the power of nolle prosequi vested in the Attorney- General in criminal prosecutions in our courts. The plaintiff in the main is urging us, through his writ, to determine whether the nolle prosequi entered by the Attorney- General in his case as an accused person is fair and just in terms of Articles 11 (7) and 296 of the Constitution, particularly, Article 296 (c). It is thus important, to make it clear, in this judgment that this writ is not invoking the jurisdiction of this court to determine the constitutionality or otherwise of the right vested in the Attorney-General to enter nolle prosequi in criminal trials.
The plaintiff by his writ invoking the original jurisdiction of this court sought the following reliefs: -
‘’1. A declaration that the statutory exercise of the power to enter a nolle prosequi on the 28th January, 2019, pursuant to S. 54 of the Criminal and Other Offences (Procedure) Act, 1960, Act 60, by the defendant in the case of Republic v. Gregory Afoko, Case No. CR 180/16, is inconsistent and a violation or infringement of Articles 23 and 296 of the 1992 Constitution and as a result unconstitutional, null and void.
2. An order setting aside the said nolle prosequi and that the High Court, Accra should continue to hear the case of Republic v. Gregory Afoko, Case No. CR 180/16 to its logical conclusion.
3. A further order terminating the purported prosecution of the plaintiff by the defendant in the case Republic v. Gregory Afoko and Asabke v.Alangdi, Case No. G/AC/DC/B1/05/19 or any further prosecution of plaintiff in respect of facts arising and forming the basis of the prosecution of the plaintiff in Republic v. Gregory Afoko Case No. CR 180/16.
4. Any further order that this honourable Court may deem fit for the enforcement of its orders.’’
The brief facts of the case deduced from the processes filed before this Court, are that on the 21st May 2015, the plaintiff was arrested on suspicion of murdering one Adams Mahama, after pouring acid on the said Adams leading to his death. After investigations and committal proceedings the plaintiff was arraigned to stand trial at the High Court, Accra for the offence of murder. The trial proceeded and the plaintiff closed his defence on the 24th January 2019. The trial Judge then adjourned the case to the 20th February 2019 for addresses by the prosecution and defence, aft