GH - REPUBLIC v. ADU KWABENA

JUDGMENT OF ANTERKYI J.

The accused in this case stood charged with murder, contrary to section 46 of the Criminal Code, 1960 (Act 29). Mr. Agbettor, State Attorney, appeared for the Republic and Dr. Ohene-Djan for the accused.

After the first twelve (out of the proposed seventeen) witnesses for the prosecution had finished their evidence, the thirteenth witness, Adu Gyamfi, during the course of his evidence-in-chief was treated as a hostile witness on the application of the prosecuting state attorney and with the leave of the court; and at the end of his evidence on 18 June 1971, adjournment of the case was granted at the request of counsel for the prosecution to enable him to seek further instructions.

When hearing resumed on 28 June 1971 the court observed that a notice of nolle prosequi (in writing) signed by the state attorney himself "for Attorney-General" had been filed. And the court took occasion to question the validity of this document by requiring the production by the state attorney of an earlier order in writing empowering him in that regard as required by section 55 (1) of the Criminal Procedure Code, 960 (Act 30).

The state attorney, conceding the absence of such an order in writing in his favour under that section, contended that such order in writing by the Attorney-General in his favour was not necessary, for reasons he gave and which were substantially thus:

Even though under the provisions of section 55 (1) of Act 30 [His lordship here read the provisions as set out in the headnote and continued:] yet there was no necessity, at the time of his filing the notice of nolle prosequi, for such a prior order in writing required under Act 30 in that regard; for, as contended by him, the result of the provisions of section 1 of the later Act, i.e. the Law Officers Act, 1964 (Act 225), was to vest in him as a state attorney the power of the Attorney-General to enter a nolle prosequi, and that he could therefore perform that function on behalf of the Attorney-General "subject to his directions." He submitted that under subsection (2) of section 1 of Act 225, "Evidence shall not be required to be produced that a direction has been given by the Attorney-General in regard to any matter." He therefore argued that failure to produce an order in writing, as required under the provisions of section 55 (1) of Act 30, could not be called to question.

Moreover (he contended) that Act 225 (The Law Officers Act, 1964) was posterior to Act 30 (Crimin

JUDGMENT OF ANTERKYI J.

Moreover (he contended) that Act 225 (The Law Officers Act, 1964) was posterior to Act 30 (Crimin

REPUBLIC v. ADU KWABENA

Areas of Law

JUDGEMENT