IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION 7)
ACCRA - A.D 2018
THE REPUBLIC - (Plaintiff)
EUGENE BAFFOE-BONNIE AND 4 OTHERS - (Defendants)
DATE: 1 ST FEBRUARY, 2018
CASE NO: CR904/2017
JUDGES: KYEI BAFFOUR (J) (JUSTICE OF THE HIGH COURT)
PROSECUTION REPRESENTED BY MS. GLORIA AFUA AKUFFO (ATTORNEY-GENERAL) WITH YVONNE
ATAKORA OBUOBISA (DPP), EVELYN KEELSON (CSA), FRANCES MULLEN ANSAH (PSA), SEFAKOR BATSE
(SSA) AND PENINNAH ASAH DANQUAH (SSA)
COUNSEL FOR 1ST ACCUSED – ABU JUAN JAGIARA FOR THADDEUS SORY PRESENT
COUNSEL FOR 2ND ACCUSED – AGBESI KWADZO DZAKPASU PRESENT
COUNSEL FOR 3RD ACCUSED – JOHNSON NORMESINU FOR SAMUEL CODJOE PRESENT
COUNSEL FOR 4TH ACCUSED – KODWOE YANKSON PRESENT WITH GODWIN TAMAKLOE AND BEING LED
BY BAFFOUR ASSASIE GYIMAH
COUNSEL FOR 5TH ACCUSED – REINDORF TWUMASI ANKRAH PRESENT WITH SANJA ANITA MORRISON
FOR OSAFO BUABENG
‘For one of the basic principles of any civilized system of justice is that a person is entitled to a fair trial free from prejudice. No system of justice can be effective unless a fair trial to both sides is ensured.... This common law right to a fair trial is now elevated to a fundamental right in the 1992 Constitution of Ghana: see article 19(2) (e) ...”
Per Acquah JSC ( as he then was) in the case of IN RE EFFIDUASE STOOL AFFAIRS (NO 2) REPUBLIC v ODURO NIMAPUA, PRESIDENT OF THE NATIONAL HOUSE OF CHIEFS; EX PARTE AMEYAW II [1998-99] SCGLR 639 @670.
What has been noted to be the basic elements of a fair trial has been stated by Curtis Doebbler, an International Human Rights lawyer in his book, Introduction to International Human Rights Law at page 106 as the right to be heard by a competent, independent and impartial tribunal, the right to a public hearing, the right to be heard within a reasonable time, the right to counsel and the right to interpretation. Does fair trial mean more than these and if it does what are the other components necessary to move it beyond the minimum? The true meaning, scope and ambit of article 19(2)(e) and (g) is at the heart and centre of the two consolidated motions. The two consolidated motions are bewailing that the right to a fair trial has been breached and seeks Janus face reliefs; some looking back for declarations that there had been breaches by the prosecution of the constitutional right to fair trial under article 19(2)(e)(g) of the Constitution and forward looking reliefs towards the future course of the trial for an order directed at the prosecution to produce all documents they will rely on in this trial. In the first of the two applications, filed on behalf of the 4th Accused person it prays for an order directed at the Attorney General to furnish counsel for 4th accused in advance all documents the prosecution intends to rely on at the trial and to release to 4th accused the list of witnesses for the prosecution and their statements. The application also prays for the following:
a) Declaration that the refusal by the Respondent to furnish the 4th Accused with copies of the documents and other materials that the Respondent intends to rely on in the trial constitutes a violation of the human right of the 4th accused to fair trial.
b) Order the Respondent to at all material times to submit copies and other documents they intend to rely on in the trial to 4th accused at least three clear days before attempt to tender same into evidence.
c) Order the Respondent to furnish the Applicant copies of the list of witnesses and a summary of their evidence or testimony.
d) A declaration that any document or other material evidence that the Respondent may attempt to tender into evidence without first giving access of same to the 4th accused at least three clear days before attempting to tender such into evidence is inadmissible.
In respect of the second motion filed by Osafo Buabeng, Esq. counsel for 5th accused on behalf of his client on the 23rd of January, 2018, he also prays for the following reliefs:
a) For an order compelling the prosecution to furnish the 5th Accused with the list of witnesses whom the prosecution proposes to call.
b) the witnesses investigations statements
c) a summary of the evidence to be given by each witness.
d) a list of the documents and things it proposes to put in evidence at the trial.
e) and/or any other documents in their custody which will assist the Applicant in the preparation of his defence irrespective of whether or not the prosecution shall rely on those documents at the trial.
In the affidavit in support of the first of the two applications, Godwin Kudzo Tameklo, Esq concede that the court made an order for the prosecution to furnish the accused persons with documents the prosecution intended to rely on at the trial on the 9th of January, 2018. The documents delivered to 4th accused was only in respect of the investigative cautioned statement of the 4th accused provided to the Police and that the documents tendered in evidence so far had not earlier been furnished to the 4th accused. To the Applicant the supplying to him of documents just before the commencement of the trial does not meet the constitutional requirement to “be afforded adequate time and facilities to prepare for his defence” as required under article 19(2)(e) (g)of the Constitution.
And that a right to fair trial also entails being provided with a list of witnesses whom the prosecution intends to call and a summary of their evidence or witness statements to be given by each witness and that the admission of Ex ‘C’ and ‘D’ did not accord with fair trial. And without the provision of a list of witnesses and their witness statements and all the documents, the right of an accused to fair trial has been breached.
THE CASE OF THE 5TH ACCUSED
In the affidavit deposed to by the 5th Accused in the second application, he claims that notwithstanding the order of the court for the prosecution to furnish the accused persons with the documents it would tender at the trial on the 9th of January, 2018, it was not until the 16th of January, 2018 when the prosecution was about to call its first witness that the court clerk delivered some of the documents to him at the court room. To 5th Accused, it was imperative that he is informed of the nature of the offences he has been charged, the need to provide him adequate time and facilities for the preparation of his defence, the need to furnish him with the list of documents and the evidence to be given by them. And that the right to fair trial, adequate time and facilities to prepare for a defence under the Constitution entails this court making a further order compelling prosecution to provide him with all the documents and information listed supra.
The Republic has fiercely opposed the application as unmeritorious and called for their dismissal. First prosecution contend that the claim of the Applicants is moot as the demands they are placing on them have been met with the order of the court for them to be provided the necessary documents prosecution will rely on at the trial. That the documents were made available to the Registrar of the court on the 10th of January, 2018 and as the trial proceeds, the documents that come into their possession would be made available to the accused persons before a witness tenders them in court. And this to prosecution is in accord with the nature of the trial which is a summary one that does not require laborious preparation of summary of evidence and a list of witnesses together with all the documents they will rely on at the trial. The two applications are founded on article 19 (2)(e) and (g) of the Constitution. The court in its wisdom consolidated the two applications more so when the court found that some common questions of law or fact arises in both applications.
The questions of fact that arises are the allegation of the failure of prosecution to furnish the accused persons with all the documents prosecution witnesses to be called intends to tender and the demand to be provided a foretaste of the essence of the testimony of each prosecution witness. The common questions of law that arises is whether the constitutional right of the accused persons before me under article 19(2)(e) and (g) entitles them to an order of the court that without the summary of evidence, the witness statements of all the prosecution witnesses, documents to be used as exhibits, those not to be used being furnished to the accused persons days before they are tendered in evidence, their constitutional right to fair trial entrenched under the Constitution had been breached. Two that without the accused persons being supplied with the documents that the prosecution intends to tender at least three days earlier that document becomes inadmissible. And three whether the Republic has breached the right of the accused persons to a fair trial for what the applicants’ claim of having been supplied documents in court. Four whether article 19(2)(e)(g) blurs the distinctive mode of trials spelt out for summary and trial on indictments under the Criminal Offences and Other Procedure Act, 1960, Act 30 in respect of the documents that prosecution must furnish an accused.
SUBMISSIONS OF COUNSEL FOR 4TH ACCUSED
Moving the motion in court, counsel for 4th accused has argued, among others, that adequate time and facilities has not been provided his client in respect of the trial he faces as documents requested for were only supplied in court and besides many more are still in the custody of the prosecution. And that their right to a fair trial requires that the accused persons are provided all the necessary documents irrespective of the fact that this trial is a summary trial. It has further been submitted that the requirement of time as it appears in article 19(2)(e) requires it to be reasonable and making the documents available in court on the date of the trial cannot be a reasonable time.
Again, it has been contended that the practice of lawyers consulting their clients in court regarding a document that has been put up by the prosecution for admission cannot be said to have met the constitutional requirement as the facilities necessary for the prosecution of the case has not been afforded the accused persons. Relying on cases from commonwealth countries such as JUMA & OTHERS v ATTORNEY-GENERAL  AHRLR 179 (KEHC 2003) the accused persons requested for pre-trial disclosures which was turned down and they ran to the Constitutional Court by way of reference complaining of the danger of violation of sections 70, 77(1)(2) of the Constitution of Kenya. The Kenyan court interpreting the word ‘fair trial’ in the Kenyan Constitution stated as follows:
“the adjective ‘fair’ describing the requisite hearing requires the court to ensure, that every hearing or trial is reasonable, free from suspicion of bias, free from the claws of prejudice, that every step is not obscured, and in whatever is done, it is imperative to weigh the interest of both parties ...”.
To counsel, the documents provided them in court did not even include Ex ‘C’ series which they saw for the first time when PW1 offered them as exhibit in her testimony in court and this in his view constitutes ambush litigation. To counsel, the best practices in commonwealth jurisdictions that have allowed pre-trial discoveries in criminal trial irrespective of the mode of trial must be followed as the Supreme Court emphasized in the of GABRIEL JOAN v THE REPUBLIC  1 SCGLR 560. Finally, counsel addressed the contents of the affidavit in opposition filed by the prosecution that the prosecution has contended that the motions of the Applicants raises constitutional issues and if prosecution has agreed with them that the matters are constitutional then, this court is mandated to stay the proceedings and refer the issues of interpretation to the Supreme Court. Counsel for 5th accused also support the assertion that this court is bereft of the power to attempt to interpret the constitution as the meaning and scope of article 19(e) has arisen in this court. And as rival meanings are being placed on article 19(2)(e), the court has no choice than to proceed under article 130 and refer the matter for the interpretation of the Constitution to the Supreme Court. I have also received written submissions filed by counsel for Sory, Esq as well as an affidavit in support of the motions deposed to by 1st accused.
Counsel for 1st accused has found umbrage in the unreported decision of the High Court, coram Ajet Nassam J. in the case of THE REPUBLIC v EVANS RAYBON ANYADI Suit No FTRM/99/14 where the court was of the view that holding on to the documents of the prosecution would amount to ambush litigation. Other authorities also relied on include R v WARD  2 ALL ER 577; LEPOQO SEOEHLA MOLAPO v DIRECTOR OF PUBLIC PROSECUTION, HIGH COURT OF LESOTHO (1997), EDWARD X LOUIS v UNITED KINGDOM (2005) 40 EHRR 593; DAVIS v UNITED KINGDOM.
I appreciate the profound industry invested by Sory Esq in cases he conducts before the courts and I am full of gratitude for the scholarship exhibited. Nonetheless, I think that counsel in as much as he relied on Evans Anyadi case should have also drawn the attention of the court to contrary decisions coming from my learned brother Bright Mensah J. in the case of REPUBLIC v DR. RICHARD ANANI & OTHERS (Unreported) High Court, Financial Division II, dated 16th July, 2010. I am also unmindful of the Court of Appeal decision in REPUBLIC v APALOO  GLR 156. These two cases are to the effect that there is no mandatory requirement on the prosecution to furnish an accused with the documents the lawyers are demanding in a summary trial of this nature. I have also read the written submission filed by Samuel Cudjoe, Esq. The legal arguments made by the two lawyers in the submissions filed are not dissimilar to their colleagues for the 4th and 5th accused persons.
SUBMISSIONS OF PROSECUTION
To prosecution the concerns of the applicants have adequately been addressed by the court as prosecution has duly furnished the accused persons with the documents in its possession at the moment. And the trial being a summary one, prosecution could only furnish the accused persons with what it had in its custody at the moment and as some of the documents become available to the prosecution, it would make them available to the accused persons. To prosecution, their paragraph 5 of the affidavit in opposition only restated what the accused persons had stated and it found no question of interpretation necessitating a reference to the Supreme Court. That summary trial is conducted in accordance with Part III of the Criminal and Other Offences Act, Act 30 which did not make any provision for mandatory furnishing of an accused with the documents prosecution would rely on and as far as prosecution was concerned, article 19(2)(e)(g) did not impose an obligation on them to furnish an accused with the documents they are demanding. With Act 30, making clear provisions on how the two trials (summary and indictment) should be conducted, there is nothing that infringe the rights of an accused if summary trial has been adopted and there had not been full pre-trial disclosures, prosecution submitted. Before delving into the issues of whether the questions posed raises constitutional issues and if there was the need to make a reference to the Supreme Court, I find it necessary to answer some questions of law and fact that have been raised in these applications.
ALLEGATION OF SUPPLY OF DOCUMENTS ON THE 18TH OF JANUARY, 2018
The first is the claim that upon application by the defence lawyers the documents of prosecution was only made available on the 18th of January, 2018 the day prosecution called its first witness. On the 18th of January, 2018 when prosecution raised this same objection, I ruled that I had seen the documents on the docket at least on the 12th of January as well as letters of requests for those documents from the lawyers. And the fact that the lawyers wrote requesting them was an admission that the lawyers knew that they never had any expectation that prosecution was to file them and have same served on them by the bailiffs of the court and hence their application letters. And having written for the documents it was their task to have sent their clerks to find out if the documents were ready and failing which they could not blame the prosecution for supplying them the documents on the 18th of January, 2018. Therefore the claim that the prosecution did not make the documents available to defence until the 18th of January, 2018 is unfounded.
DECLARATION THAT DOCUMENTS NOT DELIVERED TO ACCUSED PERSONS AT LEAST THREE DAYS BEFORE TENDERING THEM IN COURT BECOMES INADMISSIBLE
Among the reliefs being sought in this application is a declaration that failure to supply documents at least three days before trial should make the documents inadmissible. This prayer for such a declaration can be rested without plentiful words. Admissibility of a writing is a matter of evidence and the rules governing admissibility. By section 6 of the Evidence Act, NRCD 323, any objection to the admissibility of evidence is made at the time the evidence is offered and the court is mandated to rule on it as a matter of course. There is no rule of law or practice and little wonder that no authority at all was cited in support of this three day mandatory fiat that without an opponent being supplied documents three days before such documents are tendered in court renders the document inadmissible. To urge the court to make a declaration of inadmissibility would be seriously prejudicial more so when that document has not yet been offered by a witness in the box as evidence. I have no difficulty at all in dismissing a call for this declaration as lacking merit.
HAS A QUESTION OF INTERPRETATION ARISEN?
The Applicants have urged the court to stay the trial and refer the interpretation and meaning of 19 (2) and (g) to the Supreme Court for interpretation. Article 19(2)(e)(g) states that: “A person charged with a criminal offence shall
(e) be given adequate time and facilities for the preparation of his defence.
(g) be afforded facilities to examine, in person or by his lawyer, the witnesses called by the prosecution before the Court, and to obtain the attendance and carry out the examination of witnesses to testify on the same conditions as those applicable to witnesses called by the prosecution”.
It would be helpful to be guided on the principles governing reference to the Supreme Court and to test it as to whether a genuine question of interpretation has arisen in this case. It is stated under Article 130 of the Constitution as follows:
Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in –
(a). all matters relating to the enforcement or interpretation of this Constitution; and
(b). all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.
Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.
The circumstances that calls for a referral to the Supreme Court has adequately been captured in REPUBLIC v SPECIAL TRIBUNAL; EX PARTE AKOSAH  GLR 592 @ 604 in relation to the 1979 Constitution as follows:
“... we would conclude that an issue of enforcement or interpretation of a provision of the Constitution under article 118(1)(a) arises in any of the following eventualities:
a. where the words of the provision are imprecise or unclear or ambiguous. Put in another way, it arises if one party invites the court to declare that the words of the article have a double-meaning or are obscure or else mean something different from or more than what they say;
b. where the rival meanings have been placed by the litigants on the words of any provision of the Constitution;
c. where there is a conflict in the meaning and effect of two or more articles of the Constitution, and the question is raised as to which provision should prevail;
d. where on the face of the provisions, there is a conflict between the operation of particular institutions set up under the Constitution, and thereby raising problems of enforcement and of interpretation.
On the other hand, there is no case of “enforcement or interpretation” where the language of the article of the Constitution is clear, precise and unambiguous. In such an eventuality, the aggrieved party may appeal in the usual way to a higher court against what he may consider to be an erroneous construction of those words; and he should certainly not invoke the Supreme Court’s original jurisdiction under article 118. Again, where the submission made relates to no more than a proper application of the provisions of the Constitution to the facts in issue, this is a matter for the trial court to deal with; and no case for interpretation arises.”
See also NARTEY v GATI JI/1/2010 BIMPONG-BUTA v GENERAL LEGAL COUNCIL [2003-2004] 1 GLR, REPUBLIC v HIGH COURT, GENERAL JURISDICTION 6; EX PARTE DR. ZENATOR RAWLINGS, J5/19/2016 dated 19th May, 2016. The question posed for my own consideration is has any of the four eventualities spelt out in Ex Parte Akosah supra happened in this suit in respect of unclear, imprecise provision of article 19 (2)(e)(g)? Or has there been an attempt by both accused persons and the prosecution to put rival meanings to the said article in these consolidated applications? Or has there been a conflict in the meaning and effect of the article referred to above more so when juxtaposed against Part III and Part IV of the Criminal and Other Offences Act, Act 30?
An examination of the substance of the applications, the affidavit in opposition and the essence of the legal submissions in court should lead me to answer the questions I have posed and to conclude in respect of acceding or not to the invitation to refer the questions for interpretation. From the affidavit evidence and the legal submissions made it appears to me that the Applicants have placed a meaning on article 19 (2)(e)(g) of the right to be afforded adequate time the facilities to prepare their defence to mean and encompass the right to be made available to them and be furnished every document prosecution intends to rely on at the trial and even those prosecution will not use but came into their custody. If this is the interpretation, it would mean that even the pre-trial disclosure spelt out under Part IV of Act 30 would not even be enough as the documents made available under trial on indictment does not include police witness statements and documents to be used as exhibits. Prosecution on the other hand claim that summary trials does not call for such elaborate disclosures due to its expedition and speed. Clearly then, the two sides have placed rival meanings on article 19(2)(e). Though learned Chief State Attorney argued that there was nothing to submit to the Supreme Court. However, paragraphs 5 and 12 of the affidavit in opposition joined issues for reference despite the volte face that prosecution attempted to make in court. For paragraph 5 and 12 states as follows:
“5. That the Applicant is seeking an interpretation of the Constitution which is outside the jurisdiction of this court
12. That contrary to paragraph 9 of the Applicant’s affidavit in support, there is no rule of law or practice in our jurisdiction or in the Constitution that requires the Respondent to furnish the Applicant with these documents”.
From the above, I hold that in as much as rival interpretations are being placed on the meaning and the extent of pre-trial disclosures, the prosecution itself admits that a question of interpretation arises in respect of article 19(2)(e) in relation to whether prosecution must furnish them with police witness statements, summary of evidence, documents to be relied on by prosecution, documents not even to be relied on by prosecution. And this must be examined against the non- mandatory production of such documents by prosecution to the accused in a summary trial under Part III of Act 30. This squarely fall within the exclusive jurisdiction of the Supreme Court. The Applicants succeeds on this point. On the other hand throughout the submissions of the lawyers in court and in their written addresses, it seems little attention was paid to article 19(2)(g), that they themselves cited in respect of the accused persons, save perhaps the written submissions of learned counsel for 1st Accused, being afforded facilities to examine, in person or their lawyer, the witnesses called by the prosecution before the Court, and to obtain the attendance and carry out the examination of witnesses to testify on the same conditions as those applicable to witnesses called by the prosecution.
The lawyers have not complained that this court has denied them the opportunity to cross examine the witness called by prosecution. In fact PW1 was subjected to exhaustive and prolong cross examination by the defence lawyers. I am of the candid view that there is no mysticism at all about the meaning of article 19(2)(g) more so when no rival interpretation has been placed on that clause save to link it generally with clause (e) of (2) of article 19. Nonetheless, guided by the whittling down in the case of REPUBLIC v HIGH COURT; EX PARTE ZENATOR RAWLINGS, supra of the received learnings about the application of clear and unambiguous provisions of courts lower than the Supreme Court, as espoused in REPUBLIC v MAIKANKAN  2 GLR 473, S.C, REPUBLIC V SPECIAL TRIBUNAL; EX-PARTE AKOSAH, supra; ADUAMOA II V ADU TWUM II  SCGLR 165, I will, ex abundanti cautela, refer the clause (g) as well together with clause (e) of (2) of article 19 of the Constitution as I may stand in danger of interpreting that provision alone rather than an approach that is purposive and which looks at a provision together with other provisions of the Constitution as whole, which Supreme Court alone can do and shares that jurisdiction with no other court.
Accordingly I stay my proceedings and refer the following questions for interpretation and authoritative pronouncement of the apex court in compliance with article 130 (2) of the Constitution.
1. Whether on a true and proper interpretation and/or construction of article 19(2)(e)(g) an accused person in a summary trial conducted in accordance with Part III of the Criminal and Other Offences Procedure Act, Act 30, was entitled to comprehensive pre-trial disclosures as the accused persons have argued.
2. If the answer is yes, then at what point should prosecution make the disclosures available to the accused person in view of the fact that summary trial may commence within 48 hours upon arrest and charges being proffered against the accused.
3. Whether on a true and proper interpretation and construction of article 19(2)(e)(g) of the Constitution, an accused in a summary trial was entitled to full disclosure of documents in the possession of prosecution that would not even be tendered by the prosecution as exhibits before a trial court.
The court will by way of case stated forward the reference to the Registrar of the Supreme Court latest by Friday, 2nd of February, 2018 after it has duly complied with the procedure spelt out in Order 67 of the Supreme Court Rules, C. I. 16 as amended.
Proceedings stayed to await the interpretation of the Supreme Court.