KOFI SARFO & ANOR VRS THE REPUBLIC (D16/03/2025) [2024] GHAHC 393 (14 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD AT KIBI ON 14TH DAY OF NOVEMBER, 2024 BEFORE HER LADYSHIP RUBY NAA ADJELEY QUAISON (MRS) HIGH COURT JUDGE. SUIT NO: D16/03/2025 1. KOFI SARFO 2. JACOB THOMPSON NII AYITEY …. ACCUSED/APPLICANT VRS THE REPUBLIC ….. REPUBLIC/ RESPONDENTS -------------------------------------------------------------------------------------------------- 1st Accused/Applicant absent in lawful custody Accused/Applicant absent in lawful custody Stephanie Asantewaa Agyemang holding brief for Dr. Dennis Ofori Appiah for Accused present Samuel Baffour Awuah holding the brief for Dickson Donkor for the Republic/Respondent absent ----------------------------------------------------------------------------------------------- RULING -------------------------------------------------------------------------------------------------- This is an application brought by the first accused/applicant herein seeking an order for bail pending trial. The first accused/applicant (herein after referred to as applicant) tendered exhibit “A”, exhibit “B” and exhibit ‘’C’’ which is the charge sheet and the facts of the case as well as court proceedings dated 15th August 2024. The applicant together with the other accused person who are both workers of complainant company were arraigned before the District Court, Osino in the Eastern Region for the offences of ABETMENT OF CRIME TO WIT’ COMMIT MURDER; CONTRARY TO SECTION 20(1) and SECTION 46 OF THE CRIMINAL OFFENCES ACT, (ACT 29) 1960. The applicant has been in custody since August 2024. The counsel for the applicant contends that the applicant should not be made to suffer in custody when his guilt has not been proven. That they are not aware whether the duplicate docket in respect of this case has been forwarded to the Office of the Attorney 1 General for advice although prosecution reiterated that investigation is almost done at the first sitting on the matter. The applicant herein has been in the Lawful Custody for more than a month now, meanwhile the trial has not commenced and they are not sure when the trial will start which amounts to unreasonable delay. The applicant is married with six children, three of them are minors including 4 months old baby and the rest are in school. The period the applicant has spent in Lawful Custody, his family is going through challenges as far as their survival is concerned since the wife is nursing a four months old baby. The applicant will not abscond when admitted to bail, taking into account, the fact that he has a wife and his children are minors. The question is who would take care of them in the unlikely event that he absconds? The issue of bail is discretionary in nature and pray with the Honourable Court to exercise its unfettered/unlimited discretion in favour of the Applicant. The 1st accused person/applicant has his fixed place of abode at Asamang Tamfoe and would always avail himself in court when needed. When granted bail, he will not interfere with investigations by the police as well as witnesses in this case. The 1st accused person/applicant has men and women of substance to stand as surety or sureties for the applicant. The applicant is prepared to abide by the conditions that would be set by the Honourable court to enable him appear in court always till the final determination of the case. BY COURT: Per the rules of court the primary conditions to determine a grant of bail includes whether the person when granted would not abscond. That the applicant is not a flight risk and is willing to appear in court to stand for trial to prove his innocence. The guiding principles upon which an accused may be admitted or refused bail are articulated in various decisions by the courts as follows: 2 i. The nature of the offence charged. ii. The type of evidence at the disposal of the prosecution. iii. The severity of the punishment if the charge is proved and iv. Whether or not the accused is likely to appear to stand trial. Suffice it to say that per section 96 (5) (a), (6) of Act 30, the Court shall refuse to grant bail if it is satisfied an applicant may not appear to stand trial. In REPUBLIC V FRANCIS IKE UYANWURE [2013] 58 GMJ page162 @ 176 it was held that “section 96(5) and (6) of the Criminal and other offences (Procedure) Act 1960, Act 30 provides instances under which a person may not be granted bail and one of them is that the court should satisfy itself that if the accused person is granted bail, he will come to stand trial. In considering whether it is likely that the accused person may not appear to stand trial, the court shall take into consideration a lot of factors including whether or not the accused person has fixed place of abode in Ghana and is gainfully employed...” See: Legal Resource Book; The Law as decided by the Supreme Court of Ghana (2016 edition), Fred Obikyere page 49 See also: MIREKU & ORS. V THE REPUBLIC [1997-98] 1 GLR 915@ 920. See also: Dennis Dominic Adjei, Criminal Procedure and Practice in Ghana, page 168 - 174. Again the Court would have to consider whether the period accused/applicant has been in custody and not tried constitute unreasonable delay; taking into cognizance that it takes quite some time to investigate cases of this nature. What constitutes unreasonable delay to the Courts varied from one case to another. In the case of OWUSU V THE REPUBLIC [1980] GLR 460 the court held that the period of three (3) years after the charge of attempted murder had been preferred against the accused person and hearing had not commenced constituted unreasonable delay and 3 admitted accused person to bail. However in the case of REPUBLIC V ARTHUR [1982- 83] GLR 249 the high court held that it takes quite some time, to investigate a case of murder and to conclude that the case has been unreasonably delayed, the Court should take into consideration the nature of the offence, the circumstances under which the offence was committed and the particular context under which the offence was committed. In DOGBE V THE REPUBLIC (supra) Taylor J stated that “… There may be delay but is the delay unreasonable? In my view an unreasonable delay necessarily means that the person on whom it is incumbent to act has been unreasonable in not acting timeously… Such a person must necessarily be at fault. Is the delay in trying the applicants the fault of the court or the Attorney-General, because these are the organs responsible for timeous prosecution? I think not.…” Taylor J. further stated that “…In view of the authorities it can safely be said that reasonable time for an act is such period of time the duration of which may be fairly conceded by any reasonable person having regard to the purpose for which the time is required, the nature of the act or duty to be performed and all the attendant circumstances reasonably existing or anticipated or supervening…” Reasonable time cannot be definite/fixed time, one should allow for the consideration of circumstances to be taken into account, so long as the party upon whom it is incumbent to fulfill an obligation, notwithstanding the protracted delay, so long as such delay is attributable to causes beyond his control and he has neither acted negligently nor unreasonably. See: Criminal Procedure In Ghana, A.N.E. Amissah pages 186 & 209 It can therefore be inferred that unreasonable delay cannot be determined in a vacuum. It has to be situated in a proper context and taking all the circumstances into consideration. Reasonable time is not in the abstract. It should depend upon circumstances which actually exist. 4 CONCLUSION After considering the affidavits filed and exhibits as well as the oral arguments submitted, it is the view of the Court that the charge brought against the accused person is grave for which the punishment is very severe. Again in a case, considering what process goes into preparation for hearing to commence less than three months does not constitute unreasonable delay. Clearly this case has not delayed unreasonably. Application for bail is refused. H/L RUBY N.A. QUAISON (MRS) (JUSTICE OF THE HIGH COURT) 5