Seidu Vrs The Republic (H2/8/2008) [2008] GHACA 26 (24 July 2008);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - GHANA
CORAM: KUSI-APPIAH, J.A. (PRESIDING)
GYAESAYOR, J.A.
AYEBI, J.A.
CRIMINAL APPEAL
NO:H2/8/2008
24TH JULY 2008
ABDUL SOMED SEIDU … APPELLANT
VRS.
THE REPUBLIC … RESPONDENT
R U L I N G
KUSI-APPIAH, J.A.: This appeal is from the decision of the High Court, Tamale, given on 11th July, 2007 per DOEGAH J. by which the Learned Judge refused and dismissed an application for bail by the applicant ,now the appellant herein. Dissatisfied with the said ruling the appellant has appealed to this court on the following grounds:
- That the ruling was unreasonable having regard to the circumstances.
- That the trial Judge exercised his discretion improperly and wrongfully.
- That the continued detention of the appellant contravenes Articles 14 and 19 of the Constitution of the Republic of Ghana.
Before I discuss these grounds of appeal, I would give a brief background information of this case. The facts of the appellant’s case may be gathered from the affidavit in support of his application for bail at the High Court containing the following relevant averments:
“2. I am a Ghanaian by birth and ordinarily resident in Canada where I am
a citizen.
3. Abdul-Somed Seidu is a friend of mine and my name sake and he lives
in Ghana.
4. While in Canada I sent him money to complete my house for me in
Tamale.
5. On 10/05/07 I arrived in Tamale from Canada on a visit and stayed
with my friend Abdul-Somed Seidu in his house at Kalpohine estate,
Tamale.
6. During my stay with Abdul-Somed, I asked him about the house he was
to complete for me and to explain the short fall of about ¢140 million
but he could not explain but later apologized.
7. I later asked him for ¢30million out of the amount since he agreed with
me that he had not spent the whole amount on the project and he
agreed to give it to me.
8. He later brought me ¢5million which I considered inadequate.
9. He later told me to take documents on his house and other items as
security to assure me he would refund the money he could not account
for.
10. Abdul-Somed later left the house and did not return and has not
returned as at now. He did not tell me when he was leaving.
11. I made a report to the Police concerning the way Abdul-Samed had
treated me after I left the house.
12. I had to return to Canada so I took along with me the items I have
mentioned.
13. I was arrested on warrant at the Airport and taken to the District
Court, Tamale presided over by His Worship K.A. Kapouchieneh on
24/5/2007 where I was remanded into prison custody to appear on
7/6/2007.
14. That court said that I was being remanded to enable Police do proper
investigation.
15. I have also informed the Police that the said Abdul-Somed is alive and
not dead and he is running away because of the amount he owes
me…”
The application for bail was however stoutly opposed by the respondents. They are contained in their affidavit in opposition the relevant parts of which reads:
“5. That the applicant who is a Canadian citizen was accommodated by
Abdul-Somed Seidu in his house at Kalpohin Estates in Tamale till
14/05/07 when Abdul-Somed Seidu disappeared and has since not
been found nor has he made contact with friends, family or police.
6. That the applicant who was living with Abdul-Somed Seidu denied
knowledge about his where abouts and when the family of Abdul-
SAMED Seidu demanded that the applicant should accompany them to
make a complaint to Police, the applicant refused only to turn up at the
Police Station alone the next day where he reported that Abdul-Somed
Seidu owed him an amount of ¢140,000,000 but failed to pursue that
case any further.
7. That whilst investigations into the disappearance of Abdul-Somed
Seidu were going on the applicant suddenly moved out of the house
of Abdul-Somed Seidu and checked into a Hotel and when Police made
attempts to get the applicant to assist them in investigation, the
applicant abandoned the Hotel for an unknown destination.
8. That contrary to the applicant’s assertion through phone calls that he
was on his way to Tamale to assist Police in their investigation into the
disappearance of Abdul-Somed Seidu, it was discovered that the
applicant was making feverish efforts to leave Ghana for his homeland –
Canada.
9. That the Police acted timelously by getting an arrest warrant and the
applicant arrested whilst he was on a plane about to fly out of Ghana.
10. That upon the arrest of the applicant, his luggage was searched and 1
laptop computer, 1 ipod, 2 Motorola phone batteries, 1 Motorola phone
charger, 1 digital camera, two pen drives and documents of a house all
belonging to Abdul-Somed Seidu were found on the applicant.
11. That the allegation by the applicant that Abdul-Somed Seidu owed him
¢140,000,000 of which he asked for ¢30,000,000 is false and a ploy to
mislead the court.
12. That after Abdul-Somed Seidu disappeared, his room was searched by
the Police and €3000, £700, ¢5,000,000 and a Stanbic Bank cheque
with the face value of ¢7,500,000 from Metro TV were found, which is
an indication that if Abdul-Somed Seidu truly owed the applicant as he
claims Abdul-Somed Seidu could have settled any such debt
comfortably.
13. That it is also not true that Abdul-Somed Seidu gave the applicant his
house documents or any other property to keep till he settled the debt
since there would have been no justification for Abdul-Somed Seidu
to be on the run for the same debt he had given out his property as
security…”
Arguing on behalf of the appellant, Nana Adjei Ampofo began with grounds 1 and 2 together, and submitted that the trial Judge erred in refusing and dismissing the application for bail in the circumstance of this case as there was no evidence or indication of death and when from all indications the fundamental rights of the applicant/appellant were being abused. He is thus enabled to argue that in the absence of evidence, suggesting or indicating the death of the alleged victim of the offence, the trial Judge acted on mere suspicion and conjecture which amounted to an improper and or wrongful exercise of discretion.
By way of reply, Learned Counsel for the Republic/ Respondent contended otherwise. She argued that the circumstances of the case as stated in the trial Judge’s ruling is such that it leads to one and only one irresistible conclusion that the disappeared victim had been murdered by the appellant and his body dumped somewhere.
I however, disagree. Properly read and examined, it appears to me that the facts and circumstances leading to the disappearance of the victim may lead to more than one conclusion.
Learned Counsel for the respondent submitted that a conviction based on murder can be sustained against an accused even though the body of the deceased is yet to be found. She cited the case of R v. HORRY [1952] New Zealand Law Report, 2nd Edition which was quoted with approval by SARKODIE ADDO, J. in the Ghanaian case of STATE v. ANANE [1961] GLR 46 S.C. to support her stand. Counsel maintained that the trial Judge exercised his discretion judiciously before dismissing the appellant’s application for bail. She, therefore, concluded that the fact that the verdict did not favour the appellant is not a ground to accuse the trial Judge of improper use of discretionary power.
I must state that the state of the law with regard to grant of bail in respect of offences specified in section 96(7) of Act 30, introduced by the Criminal Procedure Code (Amendment) Decree, 1975 (NRCD 309) is not satisfactory, especially to the legal practitioner, the law student and to the lower courts. This is because there is no consistency in the various decisions of the High Court. It is therefore not surprising that lawyers have argued for bail even in murder cases when the police have not yet completed their investigations. This is so because going by the reasoning in cases like SEIDU v. THE REPUBLIC [1978] GLR 65 and OWUSU v. THE REPUBLIC [1980] GLR 460, that the court if satisfied on the facts or summary of evidence that no proper charge of say murder exists, can grant bail, it appears that an application for bail can be granted at any time depending on the view a particular judge takes of the charge before him. I think the reasoning in those cases requiring the Judge to decide whether there is a proper charge in order to grant bail is doubtful. This is because at that stage the Judge is not deciding on the merits of the issues before him. The duty of examining the summary of evidence and taking a decision thereon is that of the committal magistrate only by virtue of sections 184(4) and (5) of the Criminal Procedure Code (Act 30). The trial Judge is to try the case after the committal has been concluded. It is not part of the duty of the trial Judge to examine the summary of evidence to determine whether or not there is a charge competent before the court. I venture to suggest that any decision on bail by the trial Judge based on the summary of evidence before the trial will be wrong.
I must point out that I must be understood to be expressing these views within the context of section 96(7) of Act 30 only. What I am saying in effect is that if a trial court wants to grant bail under section 96(7) of Act 30, it cannot rely on the facts of the case to conclude that the prosecution has no competent charge and so the accused is entitled to bail. To do so will be circumventing the unambiguous provisions of the sub-section. And even in the case of the Committal Magistrate, he cannot grant bail on the basis that the summary of evidence discloses no triable offence, all he can do is to discharge the accused at that stage which he has power to do by virtue of section 184(5) of Act 30. Hence, I reject the arguments of Learned Counsel for the appellant on grounds 1 and 2 of the appeal which is based on the reasoning in SEIDU v. THE REPUBLIC (supra) that the court if satisfied on the facts or summary of evidence that no proper charge of say murder exists, can grant bail.
The next ground of appeal is that, the continued detention of the appellant contravenes Articles 14 and 19 of the Constitution of the Republic of Ghana. This appears to be the main ground canvassed in this application.
Counsel for the appellant argued that by Article 14(4) of the 1992 Constitution where a person arrested, restricted or detained cannot have his trial within a reasonable time, he ought to be released on bail, and this was a mandatory requirement. He lamented that the appellant has been in custody since 24th May, 2007 (over a year now) and has not been charged with any offence. The result is that he does not know when he will be tried. Counsel maintained that the appellant is being denied his right to a fair trial under Article 19 of the 1992 Constitution.
For her part, Learned Counsel for the respondent submitted that the appellant is being held for murder for which under the Laws of Ghana, bail is not granted. She contended that the appellant has been placed in custody by a court of competent jurisdiction based on reasonable grounds that the appellant had murdered the victim.
By Article 14(4) of the 1992 Constitution, the courts can grant bail in any case in which the accused is not tried “within a reasonable time”. This provision does not enable the court to consider whether there is a proper charge of murder before the court or otherwise and this buttresses my earlier views expressed in this ruling. I, therefore, entirely agree with those decisions where the trial not taking place within a reasonable time was the yardstick used in granting or refusing bail. And here, I do not think that the question of reasonable time should be limited to only the trial. If that is accepted it will allow the committal court, if it is mindful so to do, to detain suspects for any length of time; it will also enable the Republic acting per the State Counsels to take any length of time they deem fit to prepare the Bill of Indictment and Summary of Evidence whilst the accused languish in jail without trial. The provision of reasonable time comes into play from the moment of restriction whether by the Police or by the committal court or by the trial court. Acceptance of the submission that reasonable time should be limited to only the trial will also mean that the High Court can only grant bail when the accused is before it on trial, a situation which is clearly wrong in law.
In the instant case, the question to be answered is this: Is the appellant likely to be tried within a reasonable period of time? I do not think so. This is because from the record of proceedings exhibited the appellant has been in custody since 24th May, 2007 (a little over a year now) but he does not know when he will be tried as the District Court, Tamale is yet to receive the Bill of Indictment from the Attorney General’s Department. In effect, the appellant has not been charged. For these reasons, I am satisfied that the appellant is not likely to be tried within a reasonable period of time. I therefore have no option than to have recourse to the provisions of the Constitution, 1992, Article 14(4) and accordingly order the release of the appellant on bail. The appeal for bail therefore succeeds and the ruling of the High Court, Tamale dated 11th July, 2007 refusing and dismissing the appellant’s application for bail is set aside.
F. KUSI APPIAH
JUSTICE OF APPEAL
P. K. GYAESAYOR: I agree entirely with the decision to release the suspect on bail since his continued detention is based on suspicion. The prosecution although is alleging murder has not been able to charge him with the offence yet continues to demand his detention in Prison. That is obviously an abuse of the liberties of the prisoner and an infringement of Article 14(4) which provides that “where a person, arrested, restricted or detained under paragraph (a) of (b) or clause (3) of this article is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular, conditions reasonable necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial”.
In this situation the prosecution claims it is still investigating the matter one year after the disappearance of the alleged victim of the murder. There is no real indication that the suspect will be tried now. The argument advanced by the state for the continued detention of the suspect does not find favour with me. For this reason, I also agree that bail be granted on conditions which shall ensure his attendance in court.
P. K.GYAESAYOR
JUSTICE OF APPEAL
AYEBI, J.A: I also agree
E. K. AYEBI
JUSTICE OF APPEAL
