REPUBLIC v. ASIAMAH

JUDGMENT OF BANNERMAN C.J.

Bannerman C.J. delivered the judgment of the court. In this case referred to this court by way of a case stated under article 106 (2) of the Constitution, 1969, the points raised for determination are as to:

“(1) Whether by virtue of article 20 (2) (a) of the Constitution, 1969 this court has no jurisdiction to try this case on indictment with a jury;

(2) Whether article 1 (2) of the Constitution overrides section 404 of the Criminal Procedure Code, 1960 (Act 30), as a provision of the Criminal Procedure Code.

(3) Whether article 20 (2) (a) of the Constitution overrides the provisions of the Criminal Procedure (Trial by Jury) Instrument, 1966 (L.I. 499), and section 204 of Act 30 as provisions of the Criminal Procedure Code.”

These issues arose during the trial on indictment of the accused person on various counts of conspiracy to steal contrary to section 23 (1) and [p.480] 124 of the Criminal Code, 1960 (Act 29), stealing contrary to section 124 of Act 29 and forgery contrary to section 159 of Act 29. The trial was before a judge of the High Court with a jury and proceeded until the close of the case for the defence when, in opening his address to the court prior to summing-up by the judge, defence counsel for the first time referred to article 20 (2) of the Constitution, 1969, and submitted that the trial by jury was a nullity since the offences with which the accused person was charged were not punishable with death or life imprisonment. He referred to section 243 (1) of the Criminal Procedure Code, 1960 (Act 30), and argued that the accused person was not charged with any offence punishable with death or life imprisonment and the minister has not, by legislative instrument made under section 242 (1) of Act 30, appropriated the offences with which the accused person was charged to be tried by jury, and therefore the trial could only be with assessors, unless the court, under section 243 (2) of Act 30, for stated reasons, decided to try the case with a jury instead of with the aid of assessors. He concluded that since no reasons were stated by the court in the minutes before deciding to try the accused person with a jury, section 243 (2) could not be said to have been properly applied and the trial so far was a nullity. Counsel for the prosecution, in reply, contended that article 20 (2) makes all offences other than treason (and including those with which the accused is charged) triable by a judge with a jury, and that