STATE v. YAO BOAHENE

JUDGMENT OF SOWAH J.

It is necessary in this trial to consider the submission which was made by counsel for the first accused as to the competency of this court to hear the case upon the bill of indictment before this court.

Counsel for the first defendant submitted that on the 4th October, 1963, the accused persons were committed for trial to the High Court, and that on or about the 12th November, 1963, a nolle prosequi was entered in the course of the trial stopping further hearing. Learned counsel submitted that the nolle prosequi affected only the trial before the High Court and that the proceedings which were transmitted to the High [p.557] Court were of full force and effect and therefore the State cannot go back to the magistrate to start fresh proceedings on the same matter; further, he said inasmuch as the magistrate had already committed the accused person for trial he was functus officio.

Counsel submitted that the only course open to the State was to file a fresh information or bill of indictment upon the proceedings already taken when the accused persons were first committed. For this proposition counsel cited the case of Poole v R.1 and also the case of Sey v. R.2

I have considered rather carefully the case cited by learned counsel and do not think that I could spell out the proposition urged upon me by counsel, namely, because in Sey's case it was held that the State was entitled to file a fresh information upon the original proceedings from the magistrate's court, after the entry of a nolle prosequi in the High Court, therefore if the State adopted the other alternative, that is the inconvenience and expense of going through a fresh investigation in the magistrate's court, that ipso facto makes the proceedings in the High Court a nullity.

Indeed it is absolutely clear from the judgment in Sey's case that the prosecution has two courses opened to it on the entry of a nolle prosequi in the proceedings in the High Court. It may file a fresh information upon the proceedings or may go the whole hog of starting afresh. Vide Sey's case3 where it was stated that:

"We are satisfied that when a nolle prosequi has been entered by the Crown in a criminal case before the Supreme Court in respect of any charge contained in an information, a fresh information on a charge arising out of the facts inquired into in the original preliminary inquiry may be filed without the holding of a fresh preliminary inquiry."

I therefore hold, even on the basis o