The Civil Aspect of Criminal Procedure: Enforcing Restitution Orders in a Criminal Case

In a criminal case, a judge may make orders such as the payment of money or the return of property found to have been stolen by the accused person. This is what is referred to as restitution in criminal procedure.

Traditionally, a judge in a criminal case could only make restitution orders against an accused person. Section 146 of Act 30, therefore, provides that where a person is convicted of having stolen or having obtained property fraudulently or by false pretences, the Court convicting that person may order that the property or a part of the property be restored to the person who appears to the Court to be entitled to it.

And so in The Republic v Circuit Court Judge Hohoe; Ex Parte Atalu and Another[1] , the High Court in quashing the purported restitution orders of the Circuit Court held that restitution orders could only be made against convicted persons and not against strangers to the criminal charge. However, with the passage of the Criminal Procedure Code (Amendment) (No.2) Act, 1964 (Act 254), a number of inroads have been made in the law of restitution in criminal proceedings[2].

Under this legislation, where money or any property in respect of which a person is charged before a court with an offence involving dishonesty is in the custody or possession of a person other than the accused, the trial court or any other court may suo motu or on the application of the prosecutor or the alleged victim of the offence, order that person in whose custody or possession the money or property is, not to part with or dispose of the money or property until directed by the court. This in effect gives the court power to make the appropriate restrictive orders either on its own volition or upon application by the prosecutor or the victim.

Another innovation brought by Act 254 was the provision that where a person convicted of an offence involving dishonesty has since the commission of the offence, made payments of money or transferred property to any other person, the payments or transfers shall be considered to have been made out of the proceeds of the offence, and accordingly the court may on the application of the prosecutor or the victim, order the person to whom the payments or transfers have been made to return the money or property to the person specified by the court. However, such an order may not be made if the person against whom the order is being made, is able to demonstrate to the satisfaction of the court that valuable consideration was given commensurate with the payments of money or transfers of property made to that person, or that that person is a dependent of the person convicted and that the payments of money were that person’s reasonable living expenses made as dependent.

It is also worthy to note that under Act 254, where sentence is imposed for an offence involving dishonesty and property including money is not recovered, the Court on sentencing the offender, suo motu or on the application of the prosecutor or the victim, may make an order for the return by the offender to the victim of the property not recovered and for payment, in default, of the value of the property not returned.

Such restitution orders are made in exercise of the civil jurisdiction of the court and are enforceable in the manner as are orders for the return of money or chattels[3]. Restitution orders are subject to an appeal just like an appeal in a civil case. The court shall still have jurisdiction to make such orders even if the value of the property or the money exceeds the court’s monetary jurisdiction.

It ought to be emphasized however that such restitution orders may be enforced during the term of the sentence imposed, which is while the convicted offender is still incarcerated, or at any time within ten years after the convicted offender is released from prison.

From the foregoing discussion, the following can be deduced. Firstly, a court in a criminal trial involving dishonesty[4], can make restitution orders for the return of property including money on the court’s own motion or upon application by the prosecutor or the victim of the offence. Secondly,  such orders are made in exercise of the court’s civil jurisdiction, in which case the victim is treated as Plaintiff and the offender as Defendant. Thirdly, restitution orders can be enforced in the same way as an order for the payment of money or the return of chattels and are subject to appeal in the same manner.

The question now is how does a party in whose favour a restitution order has been made, proceed to enforce the order. A careful reading of Order 43(9) of the High Court (Civil Procedure) Rules, 2004, CI 47, will reveal that the provision falls in tandem with section 146, 147, 147A and 147B of the Criminal Procedure Act, 1963 (Act 30) (as amended by Act 254). Order 43(9) provides as follows:

“Any person, not being a party to the cause or matter, who obtains any order or in whose favour any order is made, is entitled to enforce obedience to the order by the same process as if the person were a party.“

It goes further to say that any person against whom such an order is made, is liable to the same processes for enforcing obedience to the judgment or order as if the person were a party[5]. And so in Republic v Accra Circuit Court Judge; Ex Parte Ashanti Furniture Co Ltd [1977] 2 GLR 82, the Court of Appeal delivering itself through the learned   Sowah JA (as he then was), had this to say on Order 42 rule 24 of LN 140A (which is the same as Order 43 rule 9 of CI 47):

“It seems to me that the rule is applicable where it can be spelled out of a judgment, an order in favor of a third party who was no party to the action, such third party may in certain circumstances enforce the order in his favour without necessarily taking out a fresh action.”[6]

The combined effect of the provisions under Act 30 already referred to as well as Order 43 rule 9 of CI 47 is that, where in a criminal trial, a court makes restitution orders, the person in whose favour such orders are made may enforce the order in the same way as in a civil suit without necessarily taking out a fresh action. It is my humble submission that the above exposition of the law is congruent with the hallowed principles of substantial justice and judicial economy which is enacted in Order 1 rule 2 of CI 47 that the rules of court shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matters in dispute between the parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.

[1] [1974] 2 GLR 138

[2] For a detailed discussion on Act 254, see Sekyi K.A., LEGISLATION: CRIMINAL PROCEDURE (AMENDMENT) (No. 2) ACT, 1964 (ACT 254) [1965] VOL. II NO.2 UGLJ 138. 2

[3] See Baah v The Republic [1991] 1 GLR 483

[4] Offences involving dishonesty include stealing, fraudulent breach of trust, robbery, extortion, defrauding by false pretences and dishonest receiving.

[5] A similar provision could be found under Order 42 rule 24 of the old civil procedure rules, LN 140A. Order 43 rule 9 has its counterpart in Rule 70(4) of the English Civil Procedure Rules. See also Republic v Accra Circuit Court Judge; Ex Parte Ashanti Furniture Co Ltd [1977] 2 GLR 82 where the Court of Appeal affirmed the decision of the High Court to quash an order of the Circuit Court directing a third party company to pay the judgment debt into court in order to preserve the subject-matter of the litigation.

[6] Ibid at page 88

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