The Republic Vrs Ernest Thompson & 3 Ors.

IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT

ACCRA- A.D. 2021
CORAM: APPAU, JSC (PRESIDING)

DORDZIE (MRS.), JSC
LOVELACE-JOHNSON (MS.), JSC
TORKORNOO (MRS.), JSC
AMADU, JSC
CRIMINAL APPEAL
NO. J3/05/2020
17TH MARCH, 2021
THE REPUBLIC …… RESPONDENT/APPELLANT
VRS
1. ERNEST THOMPSON …… 1ST ACCUSED/RESPONDENT/APPELLANT

2. JOHN HAGAN MENSAH …… 2ND ACCUSED/INTERESTED PARTY/AMICUS CURIA
3. JULIET HASSANA KRAMER …… 3RD ACCUSED
4. CALEB KWAKU AFAGLO ……. 4TH ACCUSED
5. PETER HAYIBOR ……. 5TH ACCUSED
JUDGMENT
AMADU JSC:-
(1) The key question for determination in this appeal is, whether the offences for
which the Respondent was arraigned before the High Court, satisfy the
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constitutional requirements of article 19(2)(d) of the 1992 Constitution and the
relevant law relating to preferring charges against accused persons. In the
exercise of this Court’s appellate jurisdiction which has been invoked in the
instant proceedings by the Prosecution, the Court has to determine which of the
two lower courts had properly applied the constitutional provisions just referred
to, as well as the relevant law, to the facts on record.
(2) The appeal record discloses that, whereas the Learned Trial Judge found and
held contrary to the contention of the Respondent that the offences for which he
was arraigned before the High Court, as set out in the charge sheet, satisfied the
necessary details and/or particulars required by the constitutional provisions of
article 19(2)(d) of the Constitution and the relevant law and accordingly well laid,
the majority of the Learned Justices of the Court of Appeal held otherwise.
(3) In other words, while the Trial High Court is of the view that the offences set out
in the Charge Sheet and in respect of which the Respondent was arraigned
before the High Court, contain the necessary details and/or particulars in order
for the Respondent to appreciate the nature and consequences of the offences
for which he was charged, the majority of the Learned Justices of the Court of
Appeal held to the contrary.
(4) This appeal therefore arises out of the majority decision of the Court of Appeal
dated 3rd April 2020. Following the delivery of the decision aforesaid, the
Appellant herein which shall hereafter conveniently be referred to as “the
Prosecution”, filed an appeal on 9th April 2020 against the judgment of the
Court of Appeal in its expression of dissatisfaction with the said judgment.
(5) The notice of appeal contains five main grounds of appeal formulated and set
out as follows:-
“(a) That the Court of Appeal erred when it refused to follow its own
previous decision affirmed by the Supreme Court, which is binding on the
Court.
(b) The Court of Appeal erred when it held that the Prosecution has
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failed to provide sufficient details, as required by Section 112 of the
Criminal and Other Offences (Procedure) Act, 1960 (Act 30) in the
particulars of the charges against the Appellant/ Respondent.
(c) The Court misconstrued the import and purport of article
19(2)(d) of the 1992 Constitution and Section 112 of the Criminal and
Other Offences (Procedure) Act, 1960 (Act 30).
(d) The Court erred when it held that the prosecution must
provide evidence of the basic facts to be adduced at the trial in the
particulars of the charge sheet.
(e) The Court erred when it held that the particulars of the charges
against the Appellant/Respondent as laid in the charge sheet are the
same as the statements of offence.
(6) In my view, to the extent that one of the grounds of appeal requires the Court to
determine the “import and purport of article 19(2)(d) of the 1992
Constitution” in relation to “Section 112 of the Criminal and Other
Offences (Procedure) Act,1960 (Act 30)”, as stated in the third ground of
the prosecution’s appeal, I take the view that the interpretation jurisdiction of
the court has been invoked in this appeal for the determination of the true
meaning and effect of article 19(2)(d) of the 1992 Constitution.
(7) There can be no doubt that the determination of the true and proper meaning
and effect of article 19(2)(d) of the 1992 Constitution in relation Section 112 of
Act 30 will illuminate the path towards the determination some of the other
grounds of appeal, such as the second and fifth grounds of appeal, which
question the majority decision of the Court of Appeal on the grounds that the
prosecution failed to provide sufficient details in the particulars of the charges
against the Respondent. Further that, the particulars of the charges against the
Respondent as laid in the charge sheet are the same as contained in the
statements of offence. This judgment will therefore focus mainly on the third
ground of the appeal while the rest of the grounds of appeal, become
determined mutatis mutandis.
BACKGROUND
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(8) The facts relating to the instant appeal are that, the Respondent together with
four other persons were arraigned before the High Court Accra on 24 th July 2018
on 29 counts of various offences. All accused persons together with the
Respondent pleaded not guilty to the various charges preferred against them.
Thereafter, by an application filed on 15 th January 2019, the Respondent prayed
the trial High Court for an order to compel the prosecution to provide details of
the actus reus in terms of the acts and/or omissions the Respondent is directly
responsible for, which will provide the basis for the charges preferred against
him as set out in the charge sheet.
(9) I take notice that the Respondent’s prayer to the trial High Court to compel the
prosecution to provide details of the acts and/or omissions on the basis of which
the Respondent is being prosecuted for the offences set out in the charge sheet
was raised by some of the other accused persons. The ruling of the trial High
Court against which the Respondent successfully appealed to the Court of Appeal
bears this out.
(10) The Respondent’s case for an order to compel the prosecution to provide details
of the acts and/or omissions which form the actus reus of the offences in
respect of which he is facing prosecution in the High Court is contained in an
affidavit in support of his application in the trial High Court.
(11) In that application, the Respondent deposed inter alia that he was entitled to be
informed in detail of the nature of the acts and/or omissions which provide basis
for the offences in respect of which he has been charged and for which has been
arraigned before the trial High Court. The Respondent submitted to the trial High
Court that his demand for the details is justified by the provisions of article 19(2)
(d) of the 1992 Constitution.
(12) In contesting the said application, the prosecution argued that it had complied
with its constitutional obligation in terms of article 19(2)(d) of the constitution
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and contended further that a reading of the charges preferred against the
Respondent will reveal that the prosecution had provided the necessary
information required for the Respondent to adequately put up a defence to the
charges preferred against him.
(13) To ensure a full appreciation of the issues raised by the rival contentions of the
parties to this appeal, I deem it pertinent to reproduce in extenso the charges
preferred against the Respondent. These are set out in counts 1 to 18, 20 and
22 of the charge sheet. The offences in these counts are the offences of
conspiracy to cause and causing financial loss to the Republic and contravention
of the Public Procurement Act 2003 (Act 663). They are as follows:-
“Count One
Statement of Offence
Conspiracy to commit crime namely, Wilfully Causing Financial Loss to the State
contrary to Sections 23(1) and 179A (a) of the Criminal Offences Act, 1960 (Act
29).
Particulars of Offence
1) Ernest Thompson, 2) John Hagan Mensah, 3) Juliet Hassana Kramer between
September 2013 and January 2014 in Accra in the Greater-Accra Region agreed
to act together with a common purpose to wilfully cause financial loss to the
State.
Count Two
Wilfully Causing Financial Loss to the State contrary to Section 179(A)(3)(a) of
the Criminal Offences Act, 1960 (Act 29).
September 2013 and January 2014 in Accra in the Greater-Accra Region, wilfully
caused financial loss of $28,500.00 to the State.
Count Three
contrary to Sections 23(1) and 179A (3)(a) of the Criminal Offences Act, 1960
(Act 29).
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1)Ernest Thompson, 2) John Hagan Mensah, 3) Juliet Hassana Kramer between
July 2013 and February 2014 in Accra in the Greater-Accra Region agreed to act
together with a common purpose to wilfully cause financial loss to the State.
Count Four
Wilfully Causing Financial Loss to the State contrary to Section of 179A (3)(a) of
July 2013 and February 2014 in Accra in the Greater-Accra Region, wilfully
caused financial loss of $2,292,048.23 to the State.
Count Five
(Act 29).
October 2013 and April 2014 in Accra in the Greater-Accra Region agreed to act
Count Six
Wilfully Causing Financial Loss to the State contrary to Section 179A (3)(a) of
October 2013 and April 2014 in Accra in the Greater-Accra Region, wilfully
caused financial loss of $1,079,344.00 to the State.
Count Seven
(Act 29).
January 2014 and April 2014 in Accra in the Greater-Accra Region agreed to act
Count Eight
Statement Of Offence
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Wilfully Causing Financial Loss to the State contrary to section 179A (3)(a) of the
Criminal Offences Act, 1960 (Act 29).
January 2014 and April 2014 in Accra in the Greater-Accra Region, Wilfully
caused financial loss of S12,469.80 to the State.
Count Nine
(Act 29).
1)Ernest Thompson , 2) John Hagan Mensah, 3) Juliet Hassana Kramer between
June 2014 and January 2015 in Accra in the Greater-Accra Region agreed to act
Count Ten
the Criminal Offences Act 1960 (Act 29).
June 2014 and January 2015 in Accra in the Greater-Accra Region, wilfully
Count Eleven
contrary Sections 23(1) and 179A (3)(a) of the Criminal Offences Act, 1960 (Act
29).
1) Ernest Thompson, 2) John Hagan Mensah, 3) Juliet Hassana Kramer
between January 2015 and March 2015 in Accra in the Greater-Accra Region
agreed to act together with a common purpose to wilfully cause financial loss to
the State.
Count Twelve
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January 2015 and March 2015 in Accra in the Greater-Accra Region, wilfully
Count Thirteen
(Act 29).
1) Ernest Thompson, 2) John Hagan Mensah, 3) Juliet Hassana Kramer, 4) Caleb
Kwaku Afaglo between December 2015 and April 2016 in Accra in the Greater-
Accra Region agreed to act together with a common purpose to wilfully cause
financial loss to the State.
Count Fourteen
1)Ernest Thompson, 2) John Hagan Mensah, 3) Juliet Hassana Kramer, 4) Caleb
Kwaku Afaglo between December 2015 and April 2016 in Accra in the Greater-
Accra Region, willfully caused financial loss of $5,465,909.14 to the State.
Count Fifteen
(Act 29).
August 2015 and September 2015 in Accra in the Greater-Accra Region agreed
State.
Count Sixteen
Wilfully Causing Financial Loss to the State contrary to section 179A (3)(a) of the
Ernest Thompson 2) John Hagan Mensah 3) Juliet Hassana Kramer between
August 2015 and September 2015 in Accra in the Greater-Accra Region, wilfully
Count Seventeen
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(Act 29).
(1)Ernest Thompson, (2) John Hagan Mensah, (3) Peter Hayibor between
January 2016 and September 2016 in Accra in the Greater Accra Region agreed
State.
Count Eighteen
Wilfully Causing Financial Loss to the State contrary to section 179A(3)(a) of the
1) Ernest Thompson, 2) John Hagan Mensah, 3) Peter Hayibor between January
2016 and September 2016 in Accra in the Greater-Accra Region, wilfully caused
financial loss of $5,141 ,905.66 to the State.
Count Twenty
Contravention of the Public Procurement Act contrary to Section 92(2)(a) of the
Public Procurement Act, 2003 (Act 663).
1) Ernest Thompson, 2) Juliet Hassana Kramer in September 2013 in Accra in
the Greater-Accra Region colluded to quote the price for the supply of two
servers for the Contact Centre Avaya Solution at $28,500.00, instead of the
original quotation of $50,000.00 in order to obtain unfair advantage in the award
of a contract to PBS Limited.
Count Twenty-Two
Contravention of the Public Procurement Act contrary to Sections 18(4)(a) and
92(1) of the Public Procurement Act, 2003 (Act 663).
Ernest Thompson between November 2015 and December 2016 in Accra in the
Greater Accra Region approved the sum of $9,536,652.50 an amount which is
above the threshold of the head of an entity.”
(14) The trial High Court after hearing arguments from the parties herein, as well as
the 2nd and 3rd accused persons who had separately filed similar applications
before the trial High Court, (having consolidated same) ruled on 16th April, 2019
declining the Respondent’s application in its entirety.
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(15) The Trial Judge opined that the charges as laid contained adequate and
reasonable details and particulars to enable the accused persons appreciate the
nature of the charges brought against them. Dissatisfied with the ruling of the
trial High court, the Respondent escalated his prayer for an order compelling the
prosecution to provide details of the acts and/ or omissions the reason for which
he is being prosecuted with the offences the subject matter of the proceedings,
before the trial High Court by an appeal to the Court of Appeal.
(16) APPEAL TO THE COURT OF APPEAL
In his appeal to the Court of Appeal by notice of interlocutory appeal filed on 26 th

April 2019, the Respondent prayed the Court of Appeal to set aside the ruling of
the trial High Court refusing his prayer for an order compelling the prosecution to
provide details of the acts and/or omissions, the reason for which he is being
prosecuted. In the said notice of appeal to the Court of Appeal, the
Respondent attacked the decision of the trial High Court on the following
grounds:
“ i. The Learned Judge committed an error of law when he held
that Section 112 of Act 30 (as amended) has been complied with
by the Prosecution.
PARTICULARS OF ERROR OF LAW

i. By the provision of Article 19(2)(d) of the 1992 Constitution the
Prosecution is required by law to provide details of a charge
and not to provide "sufficient" information of the charge to
Appellant.
ii. The Learned judge misdirected himself on the duty imposed on
the Prosecution under Article 19(2)(d) of the 1992 Constitution
by equating provision of "details" to an accused to provision of
"evidence".
iii. The Learned Judge committed an error of law when he upheld
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the Court of Appeal's decision interpreting Article 19(2)(d) of the
1992 Constitution.
PARTICULARS OF ERROR OF LAW

i. By law, it is only the Supreme Court which has the power to
interpret the constitution.
ii. That the interpretation by the Court of Appeal of article

19(2)(d) is null and void and not binding on the High Court.
iii.The Learned Judge erred when he interpreted article 19(2)(d)
of the 1992 Constitution.
(17) The grounds of appeal on which the Respondent challenged the decision of the
trial High Court to the Court of Appeal, reaffirms the earlier observation that the
appeal before this court turns on the true and proper interpretation to be placed
on the provisions of article 19(2)(d) of the Constitution. This is obvious from the
Respondent’s first ground of appeal before the Court of Appeal. This ground
assails the decision of the trial High Court on the ground that the High Court
committed an error of law when it held that Section 112 of Act 30 (as amended)
has been complied with by the Prosecution.
(18) In particularizing his first ground of appeal to the Court of Appeal, the
Respondent contended that by the provisions of article 19(2)(d) of the 1992
Constitution the prosecution is required by law to provide “ details” of a charge
and not to provide "sufficient" information of the charge to the Respondent.
The Respondent proceeded to contend in second ground of appeal before the
Court of Appeal that, the trial High Court misdirected itself on the duty imposed
on the prosecution under Article 19(2)(d) of the 1992 Constitution by equating
provision of "details" to an accused to provision of "evidence".
(19) The issue of interpretation was more forcefully canvassed in the third ground of
the Respondent’s grounds of appeal to the Court of Appeal wherein he alleged
that the trial High Court committed an error of law when it upheld the Court of
Appeal's decision interpreting Article 19(2)(d) of the 1992 Constitution. The
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Respondent explained this error in the particulars of error of law by contending
that, it is only the Supreme Court which has the exclusive jurisdiction to interpret
the constitution for which reason any interpretation by the Court of Appeal of
article 19(2)(d) of the constitution is null and void and not binding on the High
Court.
(20) This issue of interpretation is repeated in the Respondent’s fourth ground of

appeal to the Court of Appeal in which the Respondent again assails the decision
of the trial High Court on the ground that the said court erred when it
interpreted article 19(2)(d) of the 1992 Constitution.
(21) JUDGMENT OF THE COURT OF APPEAL
On 3rd April 2020, the Court of Appeal by a majority decision upheld the
Respondent’s appeal and consequently directed the Prosecution to amend the
Counts in the charge sheet and provide additional details to enable the
Respondent have reasonable information to enable him prepare adequately for
his defence. In coming to its decision, the majority of the Learned Justices of the
Court of Appeal made the following observations:
“(a) In the view of the Court, from the grounds of appeal and the
submissions of the Respondent all that he is complaining about is that
the particulars of offence of some the charges do not provide him with
adequate information to enable him organize his defence.
(b) What is needed and should be supplied to the Accused Persons on

application of both Article 19(2) (d) and Section 112 (1) and (2) is
information on a charge sheet considered detailed and therefore
reasonable in the peculiar facts of each case to enable accused prepare
his defence. Understood in this way, both provisions can co-exist without
descending into any intricate interpretation exercise.
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(c) What may be mentioned in the facts of the case by the prosecution
may not necessarily be part of the particulars of offence which the
prosecution is obliged to prove. The Accused is not charged under the
facts but under the charge sheet which includes the particulars of offence.
To contend therefore that the facts of the case as narrated by the
prosecution is necessarily part of the information channels from which the
Accused must know the particulars of offence for which he has been
charged for which reason the Accused need not insist on anything more,
should not be an appealing proposition to make.
(d) Section 112 of Act 30 does not make the facts supplemental to the
particulars provided in the charge. Whether or not reasonable
information has been given the Accused Person in the particulars of
offence is on a case by case basis. Each case will have to be
examined within its own facts and circumstances. The particulars of
offence should provide the basic facts which will have to be adduced at
the trial.
(e) Where the facts are intricate it may be necessary to provide more
detailed particulars than where the case is devoid of any intricacies.
(d) In the case of Ali Yusif Issa Vs. The Republic (No.1) (2003/4) 2
SCGLR 289 & The Republic [2003-4]2 SCGLR 174,) (Issa case)
their Lordships were considering the charge faced by the Accused within
the factual circumstance of that case when they held that the particulars
of offence disclosed reasonable information for his defence. We do not
understand their Lordships in the Issa case to have settled the principles
regarding the particulars of offence in every charge and that it is sufficient
if the charge laid contained information on;
1. The name of the Accused.
2. The date of the alleged commission of the offence.
3. The region.
4. The amount of loss and no other details or information as we have in
the Issa case.
(e) Understood as such we are of the opinion that the case cannot be
Be a binding authority on what the particulars of offence should contain,
as the Trial Judge appears to have concluded. The Court of Appeal and
Supreme Court in the Issa case could not have determined what the
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particulars of offence should be in every charge under Section 179A (3)
(a).
(f) In each case under Section 179A (3)(a) of causing financial loss to
the state, the nature of the particulars of offence will have to be
determined based on the facts and complexity of each case. The basic
facts of the case should be provided in the particulars of the offence.
(g) What evidence needs to be provided is dependent on the

peculiarities of each case. It will be defeating of our present day anti-
ambush litigation to feel threatened providing requisite particulars on a
contention that, that will be providing evidence.
(h) Provision of reasonable particulars in a charge sheet should be

seen as one of the disclosure mechanisms emphasized in the case of
the Republic Vs. Eugene Baffoe Bonnie & 4 Others Suit No.
J6/1/2018 of 7th June, 2018 aimed at balancing the scales between the
Accused Person and the State.
(i) From the Republic Vs. Eugene Baffoe Bonnie & 4 others case’ it is
clear to us that where further particulars of offence ought to be provided
to the Accused, that will have to be done unhesitantly. It should not
always be the prosecution that should lead and decide what to disclose
for the trial.
(j) The Accused also has the right to demand disclosure if what he
deems necessary to properly inform him of the particulars of the offence
in respect of which he has been charged have not been supplied by the
prosecution and must not necessarily rely on what the prosecution
provides.
(k) The facts or disclosures cannot be a source of information to

supply reasonable information before the Accused pleads to the charge.
This is so because in the sequel of events the Accused pleads to the
charge before the facts are read out and also before any disclosures are
made.
(l) Section 112 of Act 30 does not admit of any assistance from facts
of the case or disclosures as part of the requisite particulars of offence.
(m) Failing to provide the necessary particulars has the potential of
Prejudicing the Accused’s right to seek for appropriate disclosures.
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(n) The right to disclosure does not dispense with the duty placed on
the Prosecution to provide an accused person with sufficient information
of the charges against him in the particulars of the charge under Section
112 of Act 30 neither does it take away the right of an Accused to
demand sufficient particulars of the charge against him where the
information contained in the particulars is deficient.
(o) That an accused person will be entitled to disclosures, both pre-

trial and in the course of trial, should not be sufficient reason to deny him
the requisite particulars the section has demanded he be given,
particularly at the beginning of the trial to enable him organize his
defences.
(p) There is a difference between the statement of offence and the

particulars of offence. The difference lies in the further particulars
that will make it clearer to the Applicant what exactly he is being charged
for.
(q) We are of the view that the particulars of offence in Counts

2, 4, 8, 10, 12, 14, 16, 18 and 22 do not meet the requirement of
sufficient particulars as demanded by Section 122 of Act 30.
(r) Counts 1, 3, 5, 7, 9, 11, 13, 15 and 17 are conspiracy charges for

which there could be conviction separate from the substantive offices. It
behoves on the prosecution to provide further information in the
particulars of these offences to enable the Respondent know for what he
is alleged to have conspired.”
(22) The Prosecution being dissatisfied with the majority decision of the Court of
Appeal aforesaid, appealed from the said decision. This appeal therefore raises
an important issue in our criminal law jurisprudence particularly on the practice
and procedure in formulating charges and the extent to which it is impacted by
the provisions of article 19(2)(d) of the 1992 Constitution. It is in this context
that the appeal before this court must be appreciated and understood. But for
the clarity that this case will provide to the preferment of charges in our
jurisdiction, the first obstacle that the appeal would have been required to
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surmount is the question whether or not the Court of Appeal’s decision on appeal
to this Court serves the interest of justice or otherwise. In other words, what
harm would the prosecution suffer or how is the administration of justice
undermined by providing the details of the charges requested by the Respondent
to enable him prepare in defence of the charges brought against him?
(23) APPEAL TO SUPREME COURT
The grounds on which the prosecution has invoked the appellate jurisdiction of
this court have already been fully set out in this judgment. As earlier observed
with regard to the grounds formulated, ground (c) encapsulates the crux of the
appeal to this court. The said ground raises the question as to the extent to
which the provisions of Section 112 of the Criminal and Other Offence
(Procedure) Act, 1960 (Act 30) are affected by the provisions of Article 19(2)(d)
of the 1992 Constitution. I shall therefore proceed to discuss the constitutional
provisions of article 19(2)(d) of the 1992 Constitution first. Thereafter, I shall
examine the grounds of appeal urged on this court. This approach is inevitable
since the court has to consider the meaning and effect of the said constitutional
provision.
(24) INTERPRETATION OF ARTICLE 19(2)(d) OF THE 1992 CONSTITUTION.

Article 19(2)(d) of the Constitution provides as follows;
“(2) A person charged with a criminal offence shall

(d) be informed immediately in a language that he understands,
and in detail of the nature of the offence charged”.
The basic rule in the interpretation of statutes including the Constitution is that,
courts must strive to uphold the plain meaning of the statutory provisions under
construction. In the case of Republic Vs. High Court, Accra (Commercial
Division); Ex parte Hesse (Investcom Consortium Holdings SA &
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Scancom Ltd. - Interested Parties) [2007-2008]2 SCGLR 1230, Wood CJ
referred to her earlier decision in the case of Republic Vs. High Court, Accra;
Ex-parte Yalley (Gyana & Attor Interested Parties) [2007–2008] SC
GLR 512 in which her ladyship examined the case law on statutory
interpretation and observed that in the construction of statutes, the literalist,
ordinary, plain, or grammatical meaning, should be adhered to, if it clearly
advances the legislative purpose or intent and does not lead to any outrageous
or absurd consequences.
(25) Bearing in mind the rule of interpretation just referred to, the question that
arises is simple; what is the plain meaning of article 19(2)(d) of the 1992
Constitution? The first thing to note in article 19(2)(d) of the 1992 Constitution
is the fact that it is mandatorily couched. This is confirmed by the use of the
word “shall” appearing in the provision. Section 42 of the Interpretation Act
requires the Court to place a mandatory meaning on the word “shall” wherever
it appears in a statutory provision unless the context otherwise requires.
(26) Thus, the plain meaning of article 19(2)(d) of the Constitution clearly is that a
person charged with a criminal offence must be informed, “ in detail” of the
nature of the offence charged. The words “in detail” appearing in the
constitutional provision emphasises the extent of information required for
purposes of complying with the said constitutional provision. The plain meaning
ascribed to the provisions of article 19(2)(d) of the 1992 Constitution is more
compelling when account is taken of the general purpose of article 19 itself. Its
side notes indicate that it has to do with fair trial. The whole of Article 19 of the
Constitution is therefore devoted to ensuring that accused persons enjoy the
fundamental right to a fair tria. In the first clause therefore, it provides that;
“19.(1) A person charged with a criminal offence shall be given a
fair hearing within a reasonable time by a court.”
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(27) All of the subsequent provisions of the article then set out the various matters
necessary for ensuring that, from the time the criminal process is initiated
against a person, all steps taken must ensure safeguard this right to a fair trial.
This is the context in which the provisions of article 19 Clause (2) (d) of the 1992
Constitution must be applied
(28) Interestingly, this position is not without precedent as this court has previously
taken the same view. When in determining the requirement of the charge sheet,
the two specific matters of the statement of the offence and the particulars
thereof, the majority in the case of Osei Kwadjo II Vs. The Republic [2007-
2008]2 SCGLR 1148 held to the same effect. It must be pointed out however
that the part of the judgment in which the issue raised by the instant appeal was
decided are omitted from the report but are contained in the unreported
judgment. (See the unedited judgment in Criminal Appeal No.2/2000
dated 11th July, 2008).
(29) In identifying the very issue before us in this appeal Kpegah JSC in delivering the
majority decision of this court in the case under reference observed that, the
court had raised suo motu an issue regarding defective particulars contained in
the charges the appellant was required to defend. The majority of the court had
taken the view that, the defective charges could undermine the whole trial. In
interpreting article 19(2)(d) of the 1992 Constitution, Kpegah JSC in
characteristic detailed erudition held inter alia that:- “...the comma before
the “and” makes the “and” disjunctive and clearly indicates that the
person charged must not only be immediately informed of the nature
of the offence in a language he understands, but also “IN DETAIL.”
The majority of the court noted that an indication as to the true and proper
meaning and effect of the constitutional provision in issue before the court was
provided by the earlier case of Osei Vs. The Republic (No.2) [1971] GLR
449 HC. In the said case, the High Court relied on the provisions of article 20(2)
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( c) of the 1969 Constitution which is in pari materia with article 19(2)(d) of the
1992 Constitution and allowed an appeal against a conviction for want of
sufficient particulars to meet the constitutional and statutory requirement.
(30) In determining the instant appeal therefore, I am guided by the meaning

ascribed to article 19(2)(d) of the 1992 Constitution by the majority decision in
the Osei Kwadjo II case (supra). The Court’s decision therefore is that article
19(2)(d) of the constitution cannot mean more or less than its plain and
unambiguous words present. Accordingly, article 19(2)(d) of the constitution
having been already interpreted by this court, it paves the way for the court to
examine the arguments canvassed by the prosecution on the grounds of appeal
on which basis the prosecution has invoked the appellate jurisdiction of this
Court.
(31) APPELLANT’S ARGUMENTS.
GROUNDS (A)
“the Court of Appeal erred when it refused to follow its own previous
decision affirmed by the Supreme Court, which is binding on the
Court.”
In support of this ground of appeal, the prosecution argues that the Court of
Appeal erred when it refused to follow its own previous decision in Ali Yusuf
Issa (No.1) Vs. The Republic [2003-2004] 1 SCGLR 189 (hereinafter
conveniently referred to as Issa No.1) which was affirmed by this Honourable
Court in the case of Ali Yusuf Issa (No.2) Vs. The Republic [2003-2004] 1
SCGLR 174 (hereinafter conveniently referred to as Issa No. 2). The
prosecution contends that even though these two decisions (Issa No.1) and
(Issa No.2) were brought to the attention of the Court of Appeal and were
respectfully urged on that court, it refused to follow the said decisions.
(32) The prosecution has argued further that, the majority of the Court Appeal
declined the invitation to tread the path of the decisions aforesaid though in the
case under reference, the Court of Appeal was called upon in (Issa No. 1) to
19
determine the legality of the charge laid under Section 179 of the Criminal
Offences Act,1960 (Act 29) within the context of articles 19(11) and article 19(2)
(d) of the 1992 Constitution. The prosecution further contends that, since (Issa
No.1) determined that the charge as laid had met the legal and constitutional
requirements, the Court of Appeal in the instant case could not depart from that
decision to hold that, the charges which have been drafted in the same material
manner, did not meet the constitutional and other legal requirements. The
prosecution argues that that the Court of Appeal was bound not just by its own
previous decision but by the decision of this Court in (Issa No.2) as well. The
question then is: Have the Provisions of article 19(2)(d) of the
Constitution been interpreted previously?
(33) A reading of the decision of this Court in ( Issa No.2) will reveal that the only part
of the judgment of this Court which discussed the provisions of article 19(2)(d)
of the Constitution is that which appears in page 187 of the report where Sophia
Akuffo JSC (as she then was) held as follows; “In coming to the foregoing
conclusions, we would state that, in a nutshell, we have taken into consideration
all the proceedings in this case and all papers filed on behalf of the parties,
including interlocutory proceedings, the grounds of appeal filed and everything
laid before this court and we have determined that:-
i. The charge based on the Criminal Code, (Act 29) as amended,
i.e. Section 179A (3)(a), is constitutional and has been legitimately
laid under the Criminal Code. The charge and the provisions under
which it was brought have in no way violated the provisions of
article 19 of the Constitution. We fully adopt and affirm the reasons
and opinions of the Justices of the Court of Appeal (Coram:
Brobbey, Baddoo and Amonoo-Monney JJA) in Ali Yusuf (No.1) Vs.
The Republic (No.1), CRA 22/2001, 25 June 2001 (reported in
[2003-2004] 1 SCGLR 189 post).”
20
(34) In reporting on the nature of the proceedings, it is clear from a reading of the
report that the judgment of this Court in the ( Issa No.2) case resulted from an
appeal from the judgment of the Court of Appeal which had affirmed the
Appellant’s conviction. The report is therefore clear that the judgment of this
Court in (Issa No.2) resulted from the appeal to this court. At page 181 of the
report, the judgment of this Court on the nature of the proceedings is confirmed
in the following words:-“At the hearing of this appeal, we drew the
attention of counsel for the Appellant to the interlocutory appeal in
which he had raised the issue as to the constitutionality of the charge
brought against the Appellant in count two. Counsel's reply was that,
once an appeal is by way of a rehearing, the Court of Appeal's decision
on the constitutionality of the charge, together with its decision on all
other issues, are all before us. He, therefore, invited us to consider all
of the record before us.” In delivering itself this Court particularly noted as
follows:- “Regarding the evidence, we have reviewed the entire record
of proceedings and have no doubt that the Appellant's conviction, as
well as the confirmation thereof by the Court of Appeal and the
respective reasons, given by the learned Justices of Appeal for their
conclusions, are amply supported by the evidence adduced by the
prosecution.”
(35) It is undoubtedly apparent that the decision of this Court therefore turned on the
view taken that, the Appellant's conviction in that case was amply supported by
the evidence adduced by the prosecution. The decision therefore can be fairly
said to have resulted from the peculiar facts of the case before this Court which
in the exercise of its appellate jurisdiction is confined to the record before it in
exercise of its power of rehearing. To the extent that this Court adopted and
affirmed the opinions of the Justices of the Court of Appeal in Ali Yusuf (No.1)
regarding the charge based on the Criminal Code, (Act 29) as amended, i.e.
Section 179A (3)(a) as legitimately laid under the Criminal Code and in no way
21
violative of the provisions of article 19 of the Constitution, I shall briefly examine
the decision of the Court of Appeal in the (Ali Yusuf No.1) case.
(36) From my reading of the judgment of the Court of Appeal in the (Ali Yusuf No.1)
case, there is no doubt whatsoever that the judgment turned on the peculiar
facts of the case. The judgment Brobbey JA (as he then was) bears this out. The
Learned Justice noted that in so far as the peculiar facts of the case were
concerned, the Appellant knew the details of the charges he was facing. He
particularly pointed out in page 200 of the report as follows:- “If charges
have been preferred against him, and which he will be required to
answer by way of his defence. If the particulars were not detailed to
the appellant, the questions that may be asked are these three: was
the Appellant given US$46,000 belonging to a public body; Secondly,
has he produced it to its owner; and thirdly, is it lost? These questions
in no way imply that the Appellant has stolen the money or has
misappropriated the moneys. However, the Appellant knows that he
was given US$46,000 and he also knows that the money was lost at a
time when the rightful owner had not received it from him. If he is
charged with an act or omission that has resulted in the loss of the
US$46,000 what other detail does he need in order to prepare his
defence to the charges?” His Lordship had earlier in the judgment pointed
out as follows:- “Needless to say, the essence of reasonable information
is to enable the accused to know the nature of the charge he faces so
as to enable him to adequately prepare his defence to the charge.
Therefore, what one should ask is whether or not from the particulars,
the appellant or any objective reader of the charge will know what
kind of allegations have been levelled against the appellant for which
the charges have been preferred against him, and which he will be
required to answer by way of his defence.”
22
(37) From a review of the judgment of Brobbey JA (as he then was) there is no doubt
in my mind that, the Court of Appeal based its decision on the peculiar facts
before the Court. The Court of Appeal in that case therefore reached the
conclusion after a review of the charges preferred against the Appellant and held
that:- “The particulars surely inform the appellant that he was given
US$46,000 which were lost and it was for that loss that he was
charged and so he was required to prepare and make his defence to
that allegation of the loss of the US$46,000. That is all. In other words,
the information contained in the particulars of the second charge are
reasonable enough for the appellant to know why he had been charged
in court. No more detailed particulars are required to inform the
Appellant of the facts constituting the second charge.”
(38) The observation just made is also obvious from the judgments of the other
Learned Justices of the Court of Appeal. Each of them examined the charge
sheet and reached the conclusion that the charges contained sufficient
information to enable the Appellant prepare his defence. In the judgment of
Baddoo JA (as he then was), it is reported in pages 205-206 as follows:- “Now
the question is, does the particulars in count two comply with the
provisions of Section 112 of Act 30? Do the particulars give the
appellant reasonable information as to the offence he has committed?
Yes, the particulars do give reasonable information to the appellant of
the charge brought against him. The particulars state that through his
fraudulent action, the Ghana Football Association incurred a loss of
$46,000.”
(39) This conclusion resulted from an examination of the charge sheet. The judgment
of Amonoo-Monney J.A is also instructive on this point. For his part, the
learned Justice took the view that given the extensive nature of the
investigations by the Appellant’s interaction with the police, the details of the
23
offence in respect of which he was charged, must have been clear to him by the
time he was arraigned before the trial court for trial. It must be noted
that, the judgment of Amonoo-Monney JA may be contrasted with that of
Hodgson Vs. The Republic [2009] SCGLR 642 decided by this court. In that
case, this Court also considered the effect of the provisions of article 19(2)(d) of
the Constitution in an appeal before the Court. This court noted at page 658 as
follows:- “On the first ground of appeal, counsel for the respondent,
Evelyn Keelson, contends that what the Appellant needed was
reasonable information to enable him prepare and defend himself. She
referred to Section 112(1) the Criminal and Other Offences
(Procedure) Act, 1960 (Act 30).” On the same page of the report, this court
noted as follows:- “Counsel also made reference to Section 406(1) of the
same Act 30 and submits that by this section, a finding, sentence or
order passed by a court of competent jurisdiction cannot be altered or
reversed or altered on appeal or review on account of error, omission
or irregularity in the complaint, summons, charge, judgment, order,
etc. unless such error, omission, irregularity or misdirection, has in fact
occasioned a substantial miscarriage of justice. Counsel also referred
to Section 31(2) of the Courts Act, 1993 (Act 459)....” This Court then
proceeded to note at page 664 as follows:- “On article 19(2)(d) of the 1992
Constitution,... What the article 19(2)(d) states is “ A person charged with a
criminal offence shall be informed immediately in a language that he
understands, and in detail of the nature of the offences charged.” In the
light of the wording in the statement of offence as stated in the charge sheet,
Exhibit AA, the Appellant was informed of the offences with which he was being
charged and, indeed, this was in the presence of his counsel lawyer Addo-
Atuah. He had relied on an earlier statement he had made to the police. At the
trial, he knew the nature of the offences he was being tried for and from the first
count and, on the evidence, the particular offence which he conspired to commit
24
was made clear to him. We therefore do not agree that article 19(2)(d) was
infringed upon”.
(40) In all of these cases therefore, this Court examined the evidence before the
Court in determining the fundamental human rights provisions of the Constitution
in relation to the Appellant’s right to a fair trial. In the instant case however, the
objection has been raised in limine. Having regard to the consideration given to
the Issa cases and that of Hodgson, it is legitimate to say that the only real
case in which the court may be said to have laid down principles of interpretation
of article 19 of the 1992 Constitution is the Osei Kwadjo II case. Although that
case was also decided in the context of an appeal, this court took time to explain
the meaning of the constitutional provision in issue. In this judgment part of that
interpretation has already been referred to.
(41) Did the Court of Appeal in the instant appeal refuse to follow the Issa decisions?
In contrasting the decisions of the Court of Appeal and that of the Supreme
Court in the Issa cases with the decision of the Court on appeal in the instant
appeal, it is difficult to agree with the Prosecution that the Court of Appeal
refused to follow the said decisions. As already pointed out, the decision of this
court in the Issa case on the point under discussion affirmed the decision of the
Court of Appeal after re-hearing the appeal without adding anything. A careful
reading of the judgment of the Court of Appeal in the Issa case confirms without
a shadow of doubt that all three Learned Justices of the Court of Appeal affirmed
the fundamental human right enshrined in article 19(2)(d) and stated
unequivocally that every accused person is entitled to reasonable information to
enable him know the nature of the charge he faces so as to enable him
adequately prepare his defence to the charge. The Learned Justices however
took the view that on the evidence before the court, the Appellant’s complaint
that his fundamental human rights guaranteed by article 19(2)(d) of the
Constitution had been violated had not been made out.
25
(42) In the instant appeal, I donot accept the contention of the prosecution that the
Court of Appeal committed any error of law as alleged in first ground of appeal.
The conclusion reached by the Court of Appeal in this case is in tandem with that
of the Court of Appeal in the Issa case in so far as the principles for formulating
charges are concerned. I hold the view that the proper formulation of criminal
charges requires the prosecution to sufficiently indicate to the accused person
the nature of the acts the commission or omission of which has led to the event
which the law has prohibited with penal consequences for its violation.
(43) I take note that in the instant appeal, although the Court of Appeal applied the
principles in the Issa case as therein declared, it reached a different conclusion
from that in the Issa case because the facts and circumstances of the two cases
are peculiarly different.The doctrine of stare decisis as enshrined in articles 129
clause (3) and 136 clause (5) of the 1992 Constitution requires that the
principles of law settled in by the Court of Appeal and the Supreme Court be
followed. In following and applying the same principles however, the Supreme
Court and the Court of Appeal may reach the opposite conclusion of the case
whose principles were followed and applied on the basis of the varying facts that
are considered in each case as the court is not constitutionally enjoined to walk
into the full jacket of judicial precedent irrespective of the peculiar facts giving
rise to a dispute. It cannot therefore be overemphasized that judicial decisions
are made to resolve particular disputes. Thus each decision derives its peculiar
quality of justice, soundness and profoundness from the surrounding factual
circumstances peculiar to the case it is presumed to adjudicate within the context
of the relevant applicable law.
(44) Ground b
In the Prosecution’s second ground of appeal, the prosecution assails the
judgment of the Court of Appeal as follows:- “The Court of Appeal erred
26
when it held that the Prosecution has failed to provide sufficient
details as required by Section 112 of the criminal and other offences
(Procedure) Act 1960 (Act 30), in the particulars of the charges
preferred against the Appellant/ Respondent”. It is noted that, in the Issa
No.1 case, Brobbey JA (as he then was) explained Section 112 of Act 30 as
follows:- “That ground raised the perennial issue as to what particulars should
be included in a criminal charge. The well-settled rule is that the charge should
contain sufficient particulars that will enable the accused person to know the
nature of the charge he faces. This principle was well settled by the Criminal
Procedure Code (Amendment) Act, 1965 (Act 261), which amended the original
provision in section 112 of Act 30. The relevant provisions of section 1 of Act 261
read as follows:-
“(1) Subject to the special rules as to indictments hereinafter
mentioned, every charge, complaint, summons, warrant or other
document laid, issued or made for the purpose of or in
connection with any proceedings before any court for an offence
shall be sufficient if it contains a statement of the offence with
which the accused person is charged together with such
particulars as may be necessary for giving reasonable
information as to the nature of the charge and notwithstanding
any rule of law to the contrary it shall not be necessary for it to
contain any further particulars than the said particulars.”
(45) Therefore, the earlier decision of the Court of Appeal clearly affirms the
requirement of law that, the charge must contain sufficient particulars that will
enable the accused person to know the nature of the charge he faces. The Court
of Appeal confirmed that the emphasis on the section is the fact that the
particulars should be such as are necessary to give reasonable information to the
accused.
27
The meaning and effect of the section was considered in the Osei Kwadjo II
case where the court referred to one of the leading textbooks in Criminal
Procedure by a respected jurist on the particulars required by Section 112 of Act
30; Justice A.N.E Amissah’s academic work “CRIMINAL PROCEDURE IN
GHANA” which treats the subject of the contents of a properly laid charge
relating to the:- (i) statement of offence, and (ii)particulars of offence.
(46) In respect of the statement of offence, the Learned Jurist and author stated at
page 76 thus:-
“The statement must describe the offence shortly in ordinary language,
avoiding as far as possible the use of technical terms, and without
necessarily stating all the essential elements of the offence, and, if the
offence is one created by enactment must contain a reference to the
enactment. In meeting this latter requirement care must be taken to
distinguish between two types of statutory provision which usually
deal with an offence: the one which creates the offence and the other
which defines it. As between these two it is the provision creating the
offence which has to be referred to, not the provision defining it. Thus
in the case of murder, Section 46 of the Criminal Code provides that:
‘whoever commits murder shall be liable to suffer death. Then Section
47 of the Code defines murder”. The Learned Jurist then continues: “It is
the section which creates the offence which must be referred to in the
statement of offence not the section which defines it. A charge of
murder, therefore, must refer in its statement of offence to Section 46
of the Criminal Code and not to Section 47”.
(47) On the particulars of offence, the Learned Justice and author stated at page 77
as follows:-“It is necessary to state under this head such particulars of
the offence as may be necessary for giving reasonable information as
to the nature of the charge. The necessary particulars must be set out
28
after the statement of offence in ordinary language. The use of
technical terms is not required…. Drafting of the particulars of offence
charged often involves following with some precision the wording of
the section defining the crime and alleging that the accused did an act
having the ingredients of the offence. Supplying the defective
particulars have often led, and may still lead……. to the quashing of a
conviction based on a charge”. On what the written charge against the
accused person must contain, the learned editors of the Fifth Edition of
Halsbury’s Laws of England, Volume 27 write in paragraph 126 under the
rubric :-
“126. The written charge and requisition. Under the Criminal Procedure
Rules, an allegation of an offence in a charge must contain:
(1) a statement of the offence that describes the offence in
ordinary language, and identifies any legislation that creates it;
and
(2) such particulars of the conduct constituting the commission
of the offence as to make it clear what the prosecutor alleges
against the Defendant.”
(48) I have taken note of the position of the Learned Jurist ANE Amissah whose work
is above referred to where he stated that the particulars of offence must;
“allege the act which the accused did relative to the ingredients of the
offence”. In the same vein, I also take note of the explanation given by the
learned editors of Halsbury’s of England that the allegation of the offence in a
charge; “must contain such particulars of the conduct constituting the
commission of the offence as to make it clear what the prosecutor
alleges against the Defendant.” The authorities just reviewed are all in
agreement that in criminal procedure, the only circumstances in which a charge
can be deemed to be properly laid is where the particulars of the charge
sufficiently inform the accused person of the specific acts and/or omissions that
29
the accused person engaged in which resulted in the event; the reason for which
he is being prosecuted.
(49) It must be clarified here that specifying the acts and/or omissions constituting
the offence is completely different from making available the evidence required
to prove those acts and/omissions. Thus, in the context of the issue in the
instant appeal, the questions which logically arise for determination are as
follows:-
i. Do the particulars of the offence of conspiracy to commit crime,
stated in counts 1, 3, 5, 7, 9, 11, 13 and 15 of the charge specify any
an particular act and/or omission committed by the Respondent
which constitutes the offence of conspiracy?
ii. Do the particulars of the crime of willfully causing financial loss

to the Republic stated in counts 2, 4, 6, 8, 10, 12, 14 and 16 of the
charge sheet specify any act and/or committed by the Respondent
which constitutes the offence of willfully causing financial loss to the
Republic?
(50) CONSPIRACY TO WILLFULLY CAUSE FINANCIAL LOSS
Counts 1, 3, 5, 7, 9, 11, 13 and 15 set out in the charge sheet allege that the
Respondent as well as the second and third Accused persons, conspired to
willfully cause financial loss to the State. It is in counts 2, 4, 6, 8, 10, 12, 14, 16
and 18 that the Respondent is then alleged to have willfully caused financial loss
to the state. In the case of Francis Yirenkyi Vs. The Republic Criminal
Appeal No.J3/7/2015 dated the 17th day of February 2016, this court
discussed the current law on conspiracy. The Court, speaking through Dotse JSC
noted the amendment of the definition of the offence of conspiracy under the
Criminal and other Offences Act, (Act 29) of 1960 by the Statute Law Review
Commissioner. Under the old definition of the offence of conspiracy a conviction
could be secured upon proof of the following ingredients;
30
i. Prior agreement for the commission of a substantive crime.
ii. Acting together in the commission of the crime in
circumstances which show that there was a common criminal
purpose.
iii. Previous concert even if there was evidence that there was
previous meeting to carry out the criminal conduct.
Whereas the old formulation of the provision on the offence of conspiracy under
Section 23(1) of Act 29 therefore provided as follows:- “If two or more
persons agree or act together with a common purpose for or in
committing or abetting a crime, whether with or without any previous
concert or deliberation, each of them is guilty of conspiracy to commit
or abet that crime, as the case may be,” the new formulation is as follows:-
“Where two or more persons agree to act together with a common
purpose for or in committing or abetting a criminal offence, whether
with or without any previous concert or deliberation, each of them is
guilty of conspiracy to commit or abet the criminal offence”.
(51) In this new formulation, this court noted that the only ingredient that had been
preserved is “the agreement to act to commit a specific crime, to commit
or abet commission of that crime”. The effect of the new formulation of the
offence of conspiracy as defined by this court is that the persons must not only
agree or act, but must agree to act together for a common purpose.
Having regard to this new formulation of the offence of conspiracy a person
could no longer be guilty of conspiracy in the absence of any prior
agreement. At this stage, it is necessary to repeat for purposes of re-
emphasizing the point raised in this ground of appeal the question I had posed
earlier. The question is; Do the particulars of the offence of conspiracy to commit
crime, stated in counts 1, 3, 5, 7, 9, 11, 13 and 15 of the charge specify any a
particular act and/or omission committed by the Respondent which constitutes
the offence of conspiracy? The question posed above may be reformulated thus;
31
in what way did the Respondent act together with the second and third accused
person to willfully cause financial loss to the Republic? What did he do together
with the second and third accused persons to willfully cause this loss? I shall now
proceed to examine the offence of willfully causing financial loss to the Republic
itself.
(52) WILLFULLY CAUSING FINANCIAL LOSS TO THE REPUBLIC.
The case of Republic Vs. Adam and Others [2003-2005] 2 GLR 661
provides a more illuminating discussion of the offence of willfully causing
financial loss to the Republic. In that case, five accused persons were tried
before the then Fast Track Division of the High Court on charges of conspiracy to
cause financial loss to the state. Head note (2) of the report records the holding
of the Court expounding the essential elements of the offence of causing
financial loss to the State. It states that:- "(2) The essential elements of the
offence of causing financial loss to the State under Section 179(A)(3)
(a) of the Criminal Code, 1960 (Act 29), as amended by the Criminal
Code (Amendment) Act, 1993 (Act 458) were (a) a financial loss; (b) to
the State; (c) caused through the action or omission of the accused;
(d) that the accused (i) intended or desired to cause the loss; or (ii)
foresaw the loss as virtually certain and took an unjustifiable risk of it;
or (iii) foresaw the loss as the probable consequence of his act and
took an unreasonable risk of it; or (iv) if he had used reasonable
caution and observation it would have appeared to him that his act
would probably cause or contribute to cause the loss" In his judgment
Afreh JSC of blessed memory held that:-"For the prosecution to succeed it
must show that the State incurred a financial loss through the action
or omission of the accused person. Of the more than a dozen meanings
of the word 'through', the most appropriate or relevant for this case
are those indicating cause, reason or motive, in consequence of, by
reason of, on account of, owing to, as a result of; by means of. In other
32
words, it must be proved that the cause of the State's financial loss is
the action or omission of the accused. There must be a direct causal
link between the action or omission of the accused and the financial
loss incurred by the State. It is not enough for the prosecution to show
that the accused's action or omission could have caused or contributed
to the loss." In the judgment under reference, the Learned Justice referred to
the case of Republic Vs. Selormey in which Baddoo JA (as he then was) held
that:- "In plain ordinary language, it means any deliberate act or
omission of any person which results in a financial loss to the State
constitutes an offence. Therefore for the prosecution to succeed in
proving this charge against the accused person they must show that:
(a) the accused person took certain actions; and (b) those actions
resulted in financial loss to the State."
(53) The question earlier posed in respect of the offence of willfully causing financial
loss to the Republic was this; do the particulars of the crime of willfully causing
financial loss to the Republic stated in counts 2, 4, 6, 8, 10, 12, 14 and 16 of the
charge sheet specify any act and/or committed by the Respondent which
constitutes the offence of willfully causing financial loss to the Republic?
(54) CHARGES AGAINST THE RESPONDENT
I observe that there is nothing in the particulars of the offence from which the
Respondent who was Director General of Social Security and National Insurance
Trust (SSNIT) may reasonably infer exactly what acts he engaged together with
the second and third accused persons either by omission or commission to
willfully cause financial loss to the Republic. A reading of the charge sheet will
disclose that the statement of the offence describes the offences of conspiracy to
cause financial loss on the one hand and the causing of financial loss itself on the
other. This is done by reference to the enactment creating the said offences
without stating the essential elements of the said offences. I further observe
that, with respect to the particulars of the said offences however, the charge
33
sheet does not contain any information in the particulars of the said offences
such as to give the Respondent any reasonable information in terms of the
details of the acts from which constitute the offences of conspiracy and the
commission of the offence of willfully causing financial loss to the Republic.
(55) Indeed, this court, as did the Court of Appeal in the Issa case, has made it clear
that the necessary details required to fulfil the constitutional requirement of
providing the requisite information necessary to give the person charged with a
criminal offence, information in terms of the details of the offence for which the
person has been charged, “must allege that the Accused person did or
omitted to do a specific act having the ingredients of the offence” . In
the instant case, one of the charges states that the Respondent as well as
second and third accused persons committed the offence of conspiracy to wilfully
cause financial loss to the Republic contrary to Sections 23(1) and 179A(3)(a) of
the Criminal Offences Act, 1960 (Act 29). The details of this offence are stated in
the particulars of offence that the Respondent and the second and third Accused
persons agreed to act together with a common purpose to wilfully cause financial
loss to the Republic.
(56) Undoubtedly, the question I have been struggling to answer is; from which part
of the particulars of the offence has the Respondent been given the details of the
offence of conspiracy? What the prosecution merely does is to repeat the
definition provided for in the statute as the particulars.The Osei Kwadjo case
(supra) encapsulates the position of the courts on what the particulars of the
offence in respect of which a person is charged must contain in order to comply
with the constitutional requirement that the person charged is entitled to and
must be given details of the offence the subject matter of the charge before he
can be properly prosecuted on the charge(s). The particulars of the offence as I
have earlier pointed out must state such particulars of the offence as may be
necessary for giving reasonable information as to the nature of the charge. This
34
requires that the particulars of offence charged must state with some precision
the wording of the section defining the crime and alleging that the accused
did an act or omitted to do an act having the ingredients of the
offence.
(57) In the instant case, from an examination of the charge sheet, it is clear that
there is simply no difference between the statement of the offence and the
particulars of the offence in the manner in which the two are formulated by the
prosecution. One wonders how the Respondent (as the Director General of
SSNIT) together with the third accused person who is the Chief Executive Officer
of a company which did business with SSNIT agreed to act together with the
third accused person to cause financial loss to the Republic.
(58) The point I have made is better illustrated by the following question; from what
facts is the Respondent to know how he agreed to act together with the second
and third accused persons the result of which is prohibited by the offence of
conspiracy? It is the same with count three of the charge sheet which alleges the
offence of conspiracy against the Respondent. The question which arises there
is; from what facts is the Respondent to know how he agreed to act together
with the second and third Accused persons to achieve the result prohibited by
the offence of conspiracy?
(59) From my examination of the charge sheet, this offence of conspiracy runs
through counts five, seven, nine, eleven, thirteen and fifteen where the
Respondent is also alleged to have committed the offence of conspiracy. The
particulars of the offence stated in each of these counts repeat the same thing.
They all say that the Respondent and the second and third accused persons,
between a particular period and in Accra in the Greater Accra Region of the
Republic of Ghana, agreed to act together with a common purpose to wilfully
cause financial loss to the State. There is nothing in the particulars of offence
35
stated in respect of the aforesaid counts which gives the Respondent the details
of the offence of specific acts and/or omissions from which this conspiracy can
be inferred. The prosecution merely repeats the statutory definition of the
offence. The particulars of the offence do not state such particulars of the
offence as are necessary for giving reasonable information as to the nature of
the charge. These observations I have made apply to the offence of wilfully
causing financial loss to the Republic stated in counts 2, 4, 6, 8, 10, 12, 14 and
16 of the charge sheet where it is alleged against the Respondent that he caused
financial loss to the State in the specific sums mentioned in those counts. In
none of those counts is it stated how and what acts or omissions caused the
financial loss. They only state the result which is clearly insufficient to meet the
constitutional and statutory threshold.
(60) In the light of the ingredients of willfully causing financial loss discussed in the
Adam case, it is not clear from the particulars of the offence stated in counts 2,
4, 6, 8, 10, 12, 14 and 16 of the charge sheet as to what, or the nature of the
act(s) or omission(s) the Respondent is alleged to have engaged in, as a result of
which financial loss, was willfully caused to the State. It is also observed that
the particulars of the offences disclose no facts from which the Respondent’s
willfulness in terms of his;
"(i) intention or desire to cause the loss; or
(ii) foresight of the loss as in virtually certain that the loss will
occur but took an unjustifiable risk of it; or
(iii) having foreseen the loss as the probable consequence of his act
and took an unreasonable risk of it; or
(iv) that if he had used reasonable caution and observation it
36
would have appeared to him that his act would probably cause
or contribute to cause the loss."
(61) It must be pointed out here that specifying the acts and/or omissions
constituting the offences charged is a totally different incident from providing the
evidence required to prove the particularised act and/or omission. Informing the
accused person of the very act and/or omission that he has engaged in and
which is the reason for which he has been charged with the offences does not
amount to making available to the accused person the evidence required to
prove those acts and/or omissions. Providing the details of the acts and/or
omissions on the basis of which the person is facing prosecution will enable the
person prepare well to defend the charges. It is in the light of the observation
just made that the Prosecution’s third ground of the appeal which contends that
the Court of Appeal erred when it held that the prosecution must provide
evidence or the basic facts to be adduced at the trial in the particulars of the
charge sheet will be briefly examined.
(62) In the Issa No.1 case, the Court of Appeal took the view that the Appellant’s
complaint was that he required the evidence on the basis of which he will be
prosecuted. The Court of Appeal disagreed. This is however not the same
situation in the instant case where the Respondent’s complaint before the trial
High court was simple. He was the Director General of SSNIT. If it is alleged
that he conspired with others and caused financial loss to the State, he must
know the acts he engaged in from which the conspiracy with the third accused
person who is not an employee of SSNIT or even the second accused person (a
SSNIT employee) can be inferred. Even then, how was this loss caused? How
much loss was caused?
(63) In the context of the factual background to this appeal, let me pause for a
moment and ask; What prejudice does the Prosecution suffer by just making
available to the Respondent the information relating to the specific acts he is
37
alleged to have engaged in and from which the offences of conspiracy and
willfully causing financial loss to the State can be inferred? I am not convinced
by the simple argument that informing the Respondent as to the acts and/or
omissions he is alleged to have engaged in and from which the offences of
conspiracy and willfully causing financial loss to the State can be inferred will
entail giving the Respondent the very evidence it intends to rely on at the trial.
Granted for the sake of argument that the prosecution’s view that the request
made amounted to a request for the evidence from which the prosecution will
prove it’s case were established as correct, the prosecution of the Respondent
will certainly not be undermined by making available the evidence from which his
guilt or otherwise will be determined. The Respondent will be deemed to have
been given every opportunity and facility within the meaning of the fair trial
provisions of the Constitution to prepare and defend the charges brought against
him.
(64) The argument about the Respondent requesting evidence, although has been
demonstrated to be incorrect, is weakened by the fact the current practice
direction on criminal trials requires the prosecution to file witness statements for
witnesses they intend to call at the trial. The effect is that the accused person
has the benefit of the evidence the prosecution intends to rely on at the trial to
prove their case anyway. The argument therefore that complying with the
Respondent’s request will amount to making available to the Respondent the
evidence to be deployed in proving the Respondent’s guilt at the trial is clearly
untenable as it is misconceived. In any event, it is the court of trial which
examines and evaluates the evidence and if credible will convict on the basis of
the evidence and ascription of probative value to the standard prescribed by
statute.
(65) This significant benign advance in ensuring fair trial in the criminal justice system
through constitutional or other statutory or case law evolution is not limited to
38
our jurisdiction. Therefore any proposition for a judicial intervention to rather
limit or narrow and not expand its scope, should not be countenanced. The
requirement of ensuring fair trials had decades ago been expressed by the Privy
Council in the case of Kandy Vs. Government of Malaya [1962] AC 322
where it was held that; “if the right to be heard is to be real right which is
worth anything, it must carry with it, right in the accused man to know
the case which is made against him. He must know which evidence has
been given and what statements have been made affecting him, and
then he must be given a fair opportunity to correct or contradict
them”. Where therefore the accused person does not know or is not given the
full statement of facts against him, the court could declare it as being contrary to
the concept of fair hearing.
(66) In my view, the court’s consideration of the arguments canvassed by the

Prosecution to support the grounds of appeal relied on in this appeal suffices to
dispose of the third, fourth and fifth grounds of the appeal which contend that
the Court of Appeal:-
i. misconstrued the import and purport of Article 19(2)(d) of the 1992
Constitution and Section 112 of the Criminal and Other Offences
(Procedure) Act, 1960 (Act 30).
ii. erred when it held that the prosecution must provide evidence or
the basic facts to be adduced at the trial in the particulars of the
charge sheet.
iii. erred when it held that the particulars of the charges against the
Appellant/Respondent as laid in the charge sheet are the same as
the statements of offence.
(67) In their statement of case, the prosecution attacked the majority decision of the
Court of Appeal arguing that although the said court observed that whereas the
facts recounted by the prosecution are not always accurate and reliable and that
the facts do not assist in determining the sufficiency of the particulars of the
charge, the same court relied on the very facts it considered unreliable to
39
condemn the prosecution’s formulation of the charges against the Respondent.
The prosecution’s submission on the Court of Appeal’s decision on the
significance of the facts recounted by the prosecution during criminal trials does
not do justice to the substance of the decision. It may well be true that in some
instances, the course of the trial will expose the inadequacy of the facts on which
the prosecution instituted the proceedings, but it is a totally different situation to
suggest that the court and the accused person should assume such facts as
inaccurate or that the prosecution deliberately presented unreliable facts to the
court.
(68) As justice is the ultimate aim in all criminal trials, the practice enjoins the Court
and the Accused person to rely on the facts recounted by the prosecution as
fairly representing the foundation of the prosecution’s case. It is on the basis of
the facts recounted by the prosecution that the court will form a preliminary
opinion on the decision to grant bail. If the court were to operate from the
premises that the facts recounted by the prosecution must be presumed to be
unreliable, then it will put the court itself in a difficult position with respect to the
directions to make for the future conduct of the case. An accused person is also
required and enjoined to rely on the facts recounted by the Prosecution to
prepare his defence. The prosecution’s submissions therefore on the value
placed by the Court of Appeal on the facts recounted by the prosecution
implicitly does not credit the majority decision of the Court of Appeal with a basic
understanding of the criminal process. The statements relied on by the
prosecution to advance this argument does not deal with the substance of the
appeal before the court. It has also been argued by the prosecution that all the
issues raised by the majority decision show that they are matters to be
determined at the trial where the case of the prosecution will be made and the
Respondent would have the opportunity to defend same. This argument is
superficial and untenable having regard to the clear provisions of article 19(2)(d)
of the 1992 Constitution as well as Section 112 of Act 30 which require that the
40
criminal process be conducted in a manner that gives the accused person the
opportunity to prepare for the trial but not wait to be surprised at the trial.
(69) It is observed that given the current state of criminal procedure and practice
which requires the prosecution to make available to the accused person in
advance the evidence it intends to rely on at the trial, the reliance on the
statements made by the Court of Appeal in the Issa case that the accused
person is not entitled to request the evidence to be relied on at the trial against
him, is with all due respect questionable. In any case, the Prosecution’s
arguments that to the extent that an accused person has the benefit of the
documents intended to be relied upon must by implication be deemed that he
has been informed of the very acts and omissions on the basis of which he is
being prosecuted has potential limitations and consequences. The reason is not
farfetched. Firstly the prosecution is not compelled to rely on these documents at
the trial. Further to this observation, there will be no clarity on the reason for
which the prosecution intends to rely on those documents unless and until the
very acts and/or omissions on which the charges are grounded are disclosed.
The effect is that an accused person is then damnified with the responsibility of
guessing what acts and/or omissions relative to the mass of documents
submitted to him the prosecution considers criminal thereby justifying
prosecution. That cannot be fair to the accused person and definitely
inconsistent with the constitutional and other statutory provision on fair trials.
(70) There is no gainsaying that the protection and guarantee of civil liberty, rights
and freedoms is of prime consideration in criminal trials; under the 1992
Constitution. This aspiration is variously epitomized in our criminal jurisprudence.
Very notable is the statutory standard set for proving crime which is prove
beyond a reasonable doubt. I donot think that it will be far from right when I say
that it is this ideal which is also a constitutional prescription that informed the
celebrated decision of this Court in the case of Republic Vs. Eugene Baffoe
41
Bonnie & 4 Others; J6/06/2018 dated 7th June 2018 as a significant
watershed in our criminal jurisprudence. The rights of an accused person in a
criminal trial received a major boost in the Baffoe Bonnie case when this Court
upheld the right of an accused person to demand that all that the prosecution
intends to rely on should be disclosed to him before the trial.
(71) In elucidating the principle, Sophia Adinyira JSC at page 14 of the judgment
stated thus:- “Accordingly we hold that an accused person must be given
and afforded opportunities and means so that the prosecution does not
gain an unfair advantage so that the accused is not impeded in any
manner and does not suffer disadvantage in preparing his defence,
confronting his accusers and arming himself in defence, so that no
miscarriage of justice is occasioned. Non-disclosure is a potent source
of injustice as it is often difficult to say whether an undisclosed item of
evidence might have shifted the balance or opened up a new line of
defence.”
From my careful reading of the judgments in the Issa cases, I am unable to
agree with the Prosecution that both the Court of Appeal and Supreme Court in
the said cases stated emphatically that a charge drafted without those material
particulars as in the instant case, will be sufficient to meet the constitutional and
statutory requirements of fair trial.
(72) Consequently, it is my view that the majority of the Learned Justices of the Court
of the Appeal did not err when they held in the instant case that the Court of
Appeal and Supreme Court in the Issa cases could not have determined what the
particulars of offence should be in every charge under Section 179A (3)(a) of the
criminal and other offences Act. As they rightly stated, in each case of a charge
under Section 179A (3)(a) of causing financial loss to the state, the nature of the
particulars of offence will have to be determined based on the peculiar facts and
complexity of the case. The position of the law in the Issa cases pronounced
42
nearly two decades ago cannot be said to wholly represent the current position
of our criminal jurisprudence on the issue.
(73) In my considered view, the rules and accepted principles of law established by
this court and given constitutional effect cannot be considered in the abstract
and slavishly applied without proper attention to and adequate consideration
placed on the peculiar facts of each case. The facts of each case are material
and fundamental and must assume a crucial role in the process of adjudication.
Consequently, I dare say that, the contention that the same material particulars
were sufficient to meet the constitutional and statutory requirements in every
case in which there is a charge under Section 179A (3)(a) will in my opinion
result in injustice to the detriment of a person charged for an offence whose
innocence is constitutionally presumed.
(74) At the risk of being repetitive, it must be made clear that the Respondent has not
been charged under the facts but under the charge sheet which includes the
particulars of offence. Thus although the facts of the case as narrated by the
Prosecution may be quite illuminating for the accused, it does not absolve the
Prosecution of its obligation to sufficiently and reasonably set out the
particulars of offence in the charge sheet. Whether or not reasonable information
has been given an accused person in the particulars of offence is on a case by
case basis. Each case will have to be examined within its own peculiar facts and
circumstances. The particulars of offence should provide the basic facts which
will have to be proved at the trial.
(75) From my examination of the record and the application of the relevant law, I do
not find that a meritorious case has been made by the Prosecution to establish
that the Court of Appeal misconstrued the import and purport of article 19(2) (d)
of the 1992 constitution and section 112 of the Criminal and Other Offences
(Procedure) Act, 1960 (Act 30) (as amended). The appeal in my view fails for all
43
the reasons hereinbefore set out, and I accordingly dismiss same. The judgment
of the Court of Appeal dated 3rd April 2020 is hereby affirmed.
I. O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
A. M. A. DORDZIE (MRS.)
A. LOVELACE-JOHNSON (MRS.)
G. TORKONOO (MRS.)
COUNSEL
YVONNE ATAKORA-OBUOBISA (DIRECTOR PUBLIC PROSECUTION) FOR THE
RESPONDENT/APPELLANT.
SAMUEL CUDJOE FOR THE 1ST ACCUSED/APPELLANT/RESPONDENT.
MUJEEB RAHMAN AHMED FOR THE 2ND ACCUSED/INTERESTED PARTY/AMICUS CURIA.
44

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

CORAM: APPAU, JSC (PRESIDING)

17TH MARCH, 2021

THE REPUBLIC …… RESPONDENT/APPELLANT

1. ERNEST THOMPSON …… 1ST ACCUSED/RESPONDENT/APPELLANT

(16) APPEAL TO THE COURT OF APPEAL

In his appeal to the Court of Appeal by notice of interlocutory appeal filed on 26 th

PARTICULARS OF ERROR OF LAW

PARTICULARS OF ERROR OF LAW

ii. That the interpretation by the Court of Appeal of article

(20) This issue of interpretation is repeated in the Respondent’s fourth ground of

(21) JUDGMENT OF THE COURT OF APPEAL

(b) What is needed and should be supplied to the Accused Persons on

(g) What evidence needs to be provided is dependent on the

(h) Provision of reasonable particulars in a charge sheet should be

(k) The facts or disclosures cannot be a source of information to

(o) That an accused person will be entitled to disclosures, both pre-

(p) There is a difference between the statement of offence and the

(q) We are of the view that the particulars of offence in Counts

(r) Counts 1, 3, 5, 7, 9, 11, 13, 15 and 17 are conspiracy charges for

(23) APPEAL TO SUPREME COURT

(24) INTERPRETATION OF ARTICLE 19(2)(d) OF THE 1992 CONSTITUTION.

“(2) A person charged with a criminal offence shall

(30) In determining the instant appeal therefore, I am guided by the meaning

(31) APPELLANT’S ARGUMENTS.

ii. Do the particulars of the crime of willfully causing financial loss

(50) CONSPIRACY TO WILLFULLY CAUSE FINANCIAL LOSS

(52) WILLFULLY CAUSING FINANCIAL LOSS TO THE REPUBLIC.

(54) CHARGES AGAINST THE RESPONDENT

"(i) intention or desire to cause the loss; or

(iv) that if he had used reasonable caution and observation it

(66) In my view, the court’s consideration of the arguments canvassed by the

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