Re: Hayford Ofosu Amaning v. The Republic: A Case of Judicial Heterodoxy?

Anyone who has followed Justice Osei-Tutu’s Friday “Friday Legal Corner” will agree that the Learned Judge is making great contribution to legal education and legal practice, even as he serves in the country in the diaspora. The quality of research and the depth of knowledge exhibited by the Learned Judge in his writings make it impossible to stop reading him. Since I started following his erudite writings, courtesy the global pandemic, I always wait in eagerness to read on Fridays, today not being different. His Lordship’s piece on the case of Hayford Ofosu Amaning v. The Republic^[1] published on the Ghana Law Hub this morning has rather necessitated this short rejoinder which I believe will contribute to the discourse and enrich the jurisprudence of our justice system. 

The simple facts of the case are that the accused person was tried summarily for attempted murder and robbery and convicted on both counts. On appeal to the Court of Appeal, the Court set aside the conviction for attempted murder on the ground that the High Court could not have tried the accused summarily for attempted murder, the offence being a first degree felony. But the court affirmed the conviction for murder and reduced the sentence imposed by the High Court. The decision of the Court of Appeal received some critique from Professor Sir Dennis Adjei, JA who argued that the court ought to have set aside the entire proceedings for want of jurisdiction. It is this conclusion of Sir Dennis which the Learned Judge sought to critique, and it is to this critique that this short piece also seeks to critique.

First, His Lordship disagrees with Justice Sir Dennis that the High Court “lacked jurisdiction” to trial the offence of attempted murder on summarily. He argues that since Article 140 of the 1992 Constitution confers jurisdiction on the High in in all cases civil, and criminal, the High Court cannot be said to lack jurisdiction under such circumstances. In his opinion, the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) “is only a procedural statute” and therefore, “the procedural provisions of Act 30 cannot oust the jurisdiction conferred on the High Court by the Constitution.” He buttresses this point by distinguishing between the jurisdiction of a Court and how the Court is constituted and concludes as follows:

Therefore, if a single Judge of the High Court hears a case that is supposed to be tried on indictment such as murder without any jury or assessors; or if a single Judge hears a charge of treason or high treason all alone, the trial will be a nullity, not because the High Court lacked jurisdiction to hear the murder, treason or high treason cases, but because the Court was not properly constituted.

While it is true that the jurisdiction of a court conferred by the Constitution cannot be ousted by statute, the distinction being drawn between the jurisdiction of a court and its composition, though appealing, with respect, is only a matter of semantics. Indeed, jurisdiction attaches to a court not a judge.^[2] But the Court, properly so called, is not the building which has been named a “High Court” but includes the composition of the Court. Thus, a court which is not properly constituted lacks jurisdiction to entertain a particular action even if it has subject matter jurisdiction. 

If a person  who is not qualified to sit as a High Court Judge (e.g. a Magistrate) purports to sit in the High Court and determines any matter in the High Court, that particular High Court, for the purposes that decision, will lack jurisdiction because the Court was not properly constituted. Similarly, if two, or three, or four, Justices of the Supreme Court sit to exercise the original jurisdiction of the Supreme Court, the Supreme Court, for the purposes of that sitting, will lack jurisdiction because it was not properly constituted. 

Thus in Konadu v Yiadom^[3] where  Francois JSC, who had reached the compulsory retirement age of 70 and was thus not qualified to hear any fresh matter, sat on a fresh matter, the decision of the Supreme Court was declared a nullity, the court lacking jurisdiction resulting from the deficiency in its composition. 

Therefore, while it is semantically possible to distinguish between jurisdiction of a court and its composition, the jurisdiction of a court is intrinsically intertwined with its composition. Perhaps we may seek to simplify it by differentiating between the jurisdiction of the Court and that of the judge. But the Judge is the embodiment of the Court, and if the Judge lacks capacity, or the bench is not duly constituted as required by law, that particular court, under those particular circumstances, lacks jurisdiction and everything that follows is a nullity. This does not affect the general jurisdiction of the court as conferred by the Constitution or by statute. 

Consequently, when statute requires that for the purposes of a particular trial, the Judge shall sit with a jury (in the case of capital offences and first degree felonies) or be composed of three Judges of the High Court (in the case of treason or high treason), a single Judge sitting alone to trial such cases will lack jurisdiction and his decision will be a nullity. The High Court therefore has jurisdiction to trial the offence of attempted murder, but it has no jurisdiction to trial such charge summarily. 

The second issue deals with the decision of the Court of Appeal to strike out the charge of attempted murder, confirm the conviction for robbery and reduce the sentence imposed for the robbery. It is true, as his Lordship points out, that the power to try multiple offences together under section 45(e) of Act 30 is discretionary. The said provision states as follows: 

Where a person is charged with more than one offence in the same complaint, charge sheet or indictment, a Court which enquires into or tries any of those offences may at the same time enquire into or try any other offences in the same complaint, charge sheet or indictment, which may, under this Act, be enquired into or tried at the same time as the first mentioned offence [Emphasis added]

As can be seen, there are two “may” is the provision. While the first may can rightly be construed as discretionary, same cannot be said of the second. In other words, the first “may” grants the court the liberty to try multiple offences on the same charge sheet separately or at the same time. However, once the court opts to try the offence at the same time, the offences in question must be offices which may be “tried at the same time as the first offence.” Thus, where such offences cannot be tried at the same time, as in case of an indictable offence and a summary offence, the discretion of the court is ousted. The second “may” does not confer the same level of discretion as the first. It will under such circumstance be justified to say that the trial court acted contrary to law and thus its decision void for no court can  grant immunity to breaches of statute. 

The last point to be addressed is whether the procedure adopted by the High Court resulted in any miscarriage of justice. His Lordship rightly states that an appeal may be dismissed where no substantial miscarriage of justice has occasion. In this case, the trial Judge having heard evidence of the robbery and the attempted murder (which he had no jurisdiction to trial summarily) together, there is no doubt that the evidence in respect of the attempted murder would influence the judge and indeed any trial of fact. It is this same evidence which the Court of Appeal reviewed to confirm the conviction. It would therefore be very difficult to contend that there has be no substantial miscarriage justice. 

In conclusion, I would respectfully disagree with the Learned Judge that the decision of the Court of Appeal in Hayford Ofosu Amaning v The Republic (supra) was correct. In my humble opinion, this is a case where the Court of Appeal ought to have set aside the entire proceedings as being a nullity. It is important for prosecutors and Judges to be attentive to proceedings to ensure the sanctity of our criminal justice system.

^[1] Unreported, Suit No. H2/1/2017, dated 11^th May, 2017 (Court of Appeal)

^[2] See Standard Chartered Bank v Western Hardwood Ltd [2009] SCGLR 196; Asare v The Republic [1968] GLR 37; Aidoo v Commissioner of Police (No 2) [1964] GLR 344

^[3] [1995-96] 1 GLR 8