JUDGMENT OF ANNAN J.
The applicant was surety for one Kojo Kyei who was on trial before the district court. Kojo Kyei absconded when he was on bail and as a result the court made an order of forfeiture against the applicant of the sum of N¢100.00 expressed on the applicant's recognisance. Subsequently the personal effects of the applicant were seized under a writ. Soon afterwards the absconding accused was apprehended. An application was then made on behalf of the applicant to the trial court to secure the release of the properties of the applicant from attachment. That application was refused. The applicant then made this application to this court by way of motion.
The order of the trial court was made in terms of section 104 of the Criminal Procedure Code, 1960 (Act 30), and by section 105 thereof as amended by the Criminal Procedure Code (Amendment) (No. 2) Act, 1962 (Act 116), s. 3: "All orders passed under section 104 by any Magistrate shall be appealable to and may be reviewed: by the High Court." Section 104 (5) of the Code states that the trial court may at its discretion remit any portion of the penalty mentioned and enforce payment in part only.
The applicant has not, either in his affidavit or by his counsel in argument before me, set out any grounds upon which this court is being asked to interfere with the order of the court below other than [p.1091] that the accused person has been apprehended. That fact cannot, per se, entitle a surety against whom an order has been made by virtue of section 104 of Act 30 to have that order set aside or varied. The penalty set out in the recognisance becomes payable when the court is satisfied that the recognisance has been forfeited, subject however to sufficient cause being shown by the person bound by the recognisance. If no sufficient cause is shown, the matter is one of discretion in the trial court to order full or partial payment of the penalty and the court may remit any portion of the penalty. On the applicant's affidavit there is no suggestion of any sufficient cause shown to the court below and no cause has been shown to me. There is therefore no ground for interfering with the exercise of the discretion of the trial court.
Counsel for the State raised an objection in limine to the motion and argued that by the express language of section 105 of Act 30 an order made under section 104 of the same Act is said to be appealable to this court and that this means that any application to this court
