THE REPUBLIC vs CIRCUIT COURT ACCRA & ORS
June 2, 2016
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP DENNIS ADJEI, J. A, SITTING AS AN ADDITIONAL HIGH COURT JUDGE
Areas of Law
- Civil Procedure
- Criminal Law and Procedure
- Constitutional Law
June 2, 2016
HIGH COURT
GHANA
CORAM
AI Generated Summary
An interested party who had advanced loans to INTECELL INVESTMENTS LTD and others sought to set aside a 9 July 2014 High Court judgment that had halted a criminal prosecution arising from unpaid loans. After the borrowers allegedly defaulted, the police investigated and charged Kudjo Anku, David Fameye, and David Osei Manu in Circuit Court case D2/175/13 with conspiracy related to operating a non-bank financial institution without a licence and defrauding by false pretences. A differently constituted High Court had treated the transaction as purely civil, prohibited the Circuit Court and the prosecution, and quashed the proceedings by certiorari. In this ruling, Dennis Adjei JA, sitting as an additional High Court judge, held that the earlier court lacked jurisdiction to truncate the criminal process where no jurisdictional excess, breach of natural justice, or Wednesbury error was shown. Applying authorities on nullities, he set aside the 2014 judgment and orders as void and directed reassignment of the criminal case.
The Interested Party herein is praying this Court to set aside its judgment delivered on 9th July, 2014 as void.
The brief facts of the case are that the Respondents herein took loans from certain people including the interested party/Applicant herein to expand their business.
The Respondents failed to pay the sums of money it took from those people.
The matter was reported to the police and the police after their fullest independent investigation into the matter preferred charges inter alia, defrauding by false pretence against the Respondents.
The Respondents dissatisfied with the criminal offence preferred against them brought an application to this Court to question the procedural fairness and the lawfulness in preferring criminal charges and in prosecuting them in the criminal court in respect of the transaction which to them was purely contractual and ought to be handled in Civil Court.
The offences preferred against the Respondents before the Circuit Court were
“1. Conspiracy to commit crime to wit operating Non-Banking Financial Institution without licence contrary to Section 23 (1)of Act 29/60 and Section 2 (1) of Act 7741/2008.
2. Operating Non-Bank Financial Institution without licence from Bank of Ghana contrary to Section 2 (1) of Act 774 2008; and
3. Defrauding by False Pretences contrary to Section 131 of Act 29/60. Particulars of all the offences were given as could be gleaned from the judgment of this Court dated 9th July, 2014 which the Applicant herein is seeking to set aside as void”. This Court differently constituted assumed jurisdiction over the matter and discussed the charges without evidence which was to be adduced by the prosecution and came to the conclusion that there was no criminal offence committed by the Respondents.
This Court finally arrived at the following conclusion:
“I hold therefore that:
1. The transaction between INTECELL INVESTMENTS LTD and the interested party is a purely civil transaction that does not give rise to a criminal prosecution.
2. That the trial of the Applicants at the Circuit Court in Court Case No. D2/175/13 entitled: THE REPUBLIC VRS. 1. KUDJO ANKU, 2. DAVID FAMEYE 3. DAVID OSEI MANU Is wrongful, unlawful and an infringement of the fundamental rights of the Applicants, the same offending Article 11 of the International covenant on Civil and Political rights.
3. The trial Circuit Court and the Prosecution are prohibited from hearing the criminal matter and from prosecuting the sam