HUGHES VRS. REPUBLIC (CR/0250/2024) [2024] GHAHC 255 (18 April 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX (CRIMINAL DIVISION “2”) HELD IN ACCRA ON THURSDAY, 18TH DAY OF APRIL, 2024 BEFORE HER LADYSHIP JUSTICE MARIE-LOUISE SIMMONS (MRS.), JUSTICE OF THE HIGH COURT SUIT NO.: CR/0250/2024 BAWA HUGHES VRS. THE REPUBLIC ========================================================================== RULING ON APPLICATION FOR BAIL PENDING TRIAL ========================================================================== This present application was filed on the 10th April 2024, the supporting affidavit was deposed to by the Applicant himself with annexures being the Charge Sheet, Facts of the case, a letter of the Chief Justice to judges on the Notice of Prosecutorial Limits of Police Prosecutors and a Letter of the Attorney General to the Chief Justice on the said Notice. A copy of the Application has been served on the Office of the Attorney General on the 12th April 2024 per an affidavit of service. The Republic/Respondent has filed an affidavit in opposition on the 17th April 2024. The Applicant further filed a supplementary affidavit on the 12th April 2024, attaching the proceedings on the case of the Circuit Court 10, Accra. Page 1 of 6 Per the charge sheet, the Applicant has been charged with two (2) counts of Forgery of Documents contrary to Section 158 of Act 29 and Defrauding by False Pretenses contrary to Section 131 of Act 29. It is important to state that the Applicant is said to have defrauded the complainant of an amount worth about GHC1.6 million. The facts of the case as presented by the Police indicates that the Applicant and the complainant are both businessmen. That in 2021, through a common friend of the Applicant and the complainant, the Applicant informed the complainant that as a businessman, he had secured a contract from a company called MAWUMS Company at Spintex, Accra to supply lubricants. However, he did not have sufficient funds to fulfill the contract. The Applicant is said to have convinced the complainant to lend him money to support this contract and he will pay back. It is further stated that the Applicant showed to the complainant documents of the said contract obtained from the above named company based on which the compliant parted with an amount of GHC1.6 million. The Applicant upon receipt of the money could not confirm the existence of this transaction about a year after. This led the complainant to seek verification from MAWUMS Company who denied knowledge of any such contract and further denied any knowledge of the documents produced by the Applicant. Complaint therefore lodged a report with the police who invited the Applicant to report for investigations, which he failed to honor. According to the facts, the Applicant later made two (2) payments of GH100,000.00 each to the complainant with the rest of the money yet to be paid. The Applicant also failed to honors the invitation of the police until he was arraigned before the Circuit Court, Accra and arrested on bench warrant. In his supporting affidavit and supplementary affidavit, the emphasis of the application though one on bail, has been the challenge to his Prosecution by Police Prosecutors at the said trial Court and the presumed lack of capacity of the Court to hear the case. The Applicant argues that the Police Prosecutor lacked the capacity to Page 2 of 6 charge him for an offence whose monetary value exceeds GHC500,000.00 without submitting the case docket to the Attorney General for study and advice. This he argues is as a result of a recent letter of the Attorney General to the Chief Justice dated 7th February 2024 requesting the Honourable Chief Justice to direct and remind all Courts that hear cases presented by Police Prosecutors to insist on not hearing cases with monetary limits above GHC500,000.00 brought by Police Prosecutors as well as the directive of the Chief Justice to all judges accordingly. Of course, being an application for bail, the Applicant also deposes inter alia, that he is prepared to stand trial if granted bail and that he has a fixed place of abode at Obgojo in Accra. The Applicant also states that he has persons of good character, of sufficient means, and independent to stand as surety for him. Again, the Applicant deposes that he was arrested on the 8th April 2024 and presented in the Circuit Court, Accra on the 9th April 2024. In addition, the Applicant states that he was arrested on bench warrant but that no Police Officer called him to appear before any Court for trial prior to his arrest on bench warrant. I have read and considered the application, its affidavit in support and annexures as well as the affidavit in opposition of the Republic/Respondent. I have taken note of the argument made by the Applicant through his counsel at the trial Court and before this Court through his supporting affidavit challenging his prosecution by Police Prosecutors in consideration of the Attorney General’s directive on the money limits to cases they can prosecute. I must confess that it was a good observation made by counsel for the Applicant which has rightly prompted the Trial Circuit Court Judge to direct the Police to suspend the case and forward the docket to the Office of the Attorney General for advice. However, there is no doubt that the Court had jurisdiction to try the case as per the Courts Act, 1993 (Act 459) as amended. There is also no doubt that Police Prosecutors Page 3 of 6 once appointed pursuant to Section 56 of Act 30 and under the appointment of Public Prosecutors Instrument, 1976 (E. I 4) have the capacity to prosecute on behalf of the Attorney General. The directive of the Attorney General on the monetary limits only enjoins the Courts to “refuse to entertain criminal cases brought by the police beyond the permissible limits without an advice from the Office of the Attorney General”. What that implies is that, once the advice is ought, it may well be that the Police Prosecutor can prosecute the case even with the same limit. Therefore the words, lack of “capacity” or “jurisdiction” are not the appropriate words to use as they are technical legal words with deeper meaning and usage than are being used. It is important that the point is reiterated that the grant of bail is at the discretion of the Court. Discretion under Article 296 of the 1992 Constitution is to be exercised fairly and candidly, not capriciously or by being biased either by resentment, prejudice or personal dislike by due process. I have taken note of the Constitutional rights of all persons arrested and charged with an offence under Article 19 (2) (c) of the 1992 Constitution to be presumed innocent until proven guilty. Consideration have also been given to Article 14 (1) (g) of the 1992 Constitution which is one of the exceptions to the Right of personal liberty. Under Article 14 (1) of the 1992 Constitution, liberty can be curtailed upon reasonable suspicion of having committed or being about to commit a committal offence. In the celebrated case of MARTIN KPEBU VS. THE ATTORNEY GENERAL, WRIT NO. JI/13/201, the Supreme Court stated inter alia that there must be a balance by the Court in the exercise of the rights of individual, Accused and that of the entire society. Relying on the foregoing, the affidavits filed, the charges and facts, it is my opinion that from the 8th April 2024 when the Applicant was arrested (being after about three (3) years of the police looking for him) till today about 10 days of arrest and considering the opinion of Taylor J. (as he then was) in DOGBE VS. THE REPUBLIC Page 4 of 6 (1975) GLR, I consider that there has not been any delay, much more an unreasonable delay in the trial of the Applicant. In addition, I do not see any illegality in the arrest of the Applicant on bench warrant. Since a charge sheet had been filed before the Court, any further decisions on him had to be taken in consideration with the Court and his arrest therefore had to be under the authority of the Court per a bench warrant. As to whether the Applicant failed to honour the invitation of the Police to appear before them on previous occasions, it was for the trial Court to convince itself that the facts existed, before issuing a bench warrant. I do not have the benefit of the proceedings that led to the Court to issue the warrant and therefore not in a position to subject her discretionary decision to scrutiny. In considering the nature of the charges against the Applicant, the amount of money involved and the fact that the case is still under investigations with the Applicant having been put before the Court just a day after his arrest less than two (2) weeks ago, I will not entertain this application for bail. From the foregoing, the application for bail is refused and accordingly dismissed. (SGD) JUSTICE MARIE-LOUISE SIMMONS (MRS) (JUSTICE OF THE HIGH COURT) COUNSEL: THEOPHILUS DONKOR FOR THE APPLICANT PRESENT. ISAAC WILBERFORCE MENSAH FOR THE REPUBLIC/RESPONDENT PRESENT. Page 5 of 6 Page 6 of 6