AN OUTLINE OF CRIMINAL PROCEDURE

1
A. Constitutional and individual rights
i. Right to life – article 13
ii. Right to personal liberty – article 4
iii. Right to human dignity – article 15
iv. Right to fair trial – article 19

B. The powers of the Police

i. Power of arrest and search
Section 3 -21 of the Criminal and other Offences Act, 1960 (Act 30)

C. Institution of Proceedings (s 60-61 of Act 30)

i. Summons (s 2-70, s 30,83,87 of Act 30)
ii. Warrant of Arrest (s 71-87 of Act 30)
iii. Search warrants (s 88-95 of Act 30)

D. The Attorney-General – Article 88 of the Constitution

i. Nolle Prosequi (s 54-55 of Act 30)
ii. Withdrawals (s 59 of Act 30)

E. The criminal jurisdiction of the Courts in Ghana - s 23 -49 of the Courts Act, 1993 (Act
459 as amended)
 District Court
 Juvenile Court
 Circuit Court
 High Court
 Regional Tribunal
 Court of Appeal
 Supreme Court

F. Commencement of criminal proceedings

Criminal proceedings can be commenced in one of two ways:
i) By laying a complaint before a court followed by an application for the issuance of
the requisite process to compel the appearance of the accused person before the
court.1 This procedure may be either by way of a summons, or a warrant of arrest; and

ii) By a charge sheet on indictment signed by a police officer or a public prosecutor

where the accused person has already been arrested without a warrant. The charge
sheet or indictment must specify the name and occupation of the person charged, the
charge against him, the time when and where the offence is alleged to have been
committed.

The difference between a summons and a warrant is that:

In the case of a summons, the accused person comes to court on his own volition on a given date
and time whereas in the case of a warrant, the accused person named in the warrant is arrested
1
See Criminal and Other Offences (Procedure) Act, 1960 (Act 30)
1
and brought before the court under compulsion. Once issued, a warrant remains in full force until
it is executed or cancelled by the court which issued it.

Arraignment
Arraignment of an accused person before a court consists of 3 stages, namely:2
i) Calling the accused by name to the bar of the court;
ii) Reading, interpreting (if necessary) and explaining the nature of the charge to the
accused; and
iii) Taking a plea, that is asking the accused how he pleads – guilty or not guilty – and
recording his answer.

Plea
On arraignment, the accused persons has several pleas available to him,
i) Plea of guilty which should unambiguous and unequivocal. This should be done by
the accused person himself; not by his counsel on his behalf;
ii) Plea of not guilty – this is a general denial of the charges levelled against the accused
person and its effect is that the accused person joins issues with the prosecution;
iii) Plea of autrefois convict and acquit

Categories of offences
The law makes provision for the following categories of offences:

i) Capital offences such as murder, treason and piracy for which the maximum penalty
is death;
ii) First degree felonies, such as manslaughter, rape and mutiny offences punishable by
life imprisonment or a lesser term;
iii) Second degree felonies, for example, intentional and unlawful harm to persons;
perjury and robbery punishable by a term of imprisonment not exceeding ten years;
iv) Misdemeanors, for example, assault, theft, unlawful assembly and official corruption;
and
v) Public nuisances, such as drunken and disorderly conduct, punishable by a term of
imprisonment not exceeding three years.

NB: In all of these categories of offences, the accused punishment may be increased or enhanced
where the individual has a prior criminal record.

Summary trial and trial on indictment

An offence may be tried either summarily or on indictment. Whether an offence is tried

summarily or on indictment depends on whether the offence is a misdemeanor or a felony. An
offence must be tried summarily if the enactment creating the offence makes it punishable on
summary conviction and does not provide any other mode of trial. 3 On the other hand, an
offence must be tried on indictment if it is punishable by death or it is an offence declared by any
enactment to be a first degree felony. Apart from these two categories of offences, a number of
offences are not specifically stated to be triable either summarily or on indictment. Where this is
the s=case, such offences may be triable either way (i.e. either summarily or on indictment). 4
2
See generally, Criminal and Other Offences (Procedure) Act, 1960 (Act 30); s 231, 198(2) and 198(5)
3
Ibid s 2(1)
4
If the offence is triable summarily, the proceedings will commence with a charge sheet which contains the
statement of offence and the particulars of the offence; on the other hand, if the offence is triable on indictment the
2
Bail
Bail involves a process whereby the liberty of an accused person in custody is secured pending
further investigations into the crime he is accused of or his trial for the offence with which he is
charged. The granting of bail may be conditional upon a guarantee given by another person who
agree to assume responsibility for the accused person’s appearance in court at a later date by
standing surety, or even upon the person’s own recognizance or promise to make himself
available whenever needed to answer the charge. 5 There are different considerations for granting
bail depending upon the stage at which the proceedings are or upon the type of offence with
which the accused is charged. It used to be the case that where a person stood surety for an
accused person, it was the responsibility of that person to ensure that the accused person makes
himself available either before the police or the court anytime his presence is required; failing
which the surety would be liable for a imprisonment for a term not exceeding 6 months. 6 This
provision which was not consistent with article 14(1) of the Constitution was struck down as
unconstitutional by the Supreme Court in Martin Kpebu (No.1) v Attorney-General (N.o1).7
Plaintiff sued in the Supreme Court for a declaration that on true and proper interpretation of
articles 19(11) and 14(1) of the Constitution of Ghana, 1992, section 104(4) of Act 30 was
inconsistent with the said articles and therefore unconstitutional. Plaintiff’s contention was that
recognizance was merely in the nature of a bond, being essentially a contract. Failure to fulfil
would give rise to a civil debt and not a criminal cause or matter. Striking down section 104(4)
of Act 30 as unconstitutional, the Supreme Court held that recognizance was in the form of a
grant of bail with cash or its equivalent such as the bail bond, which a court would accept in
exchange for allowing the accused person or suspect to remain at liberty until the conclusion of
the trial or investigations. The bail so given created an obligation for the accused person to make
all required court appearances.

Recognizance is defined as bail bond that guarantees an unjailed criminal defendant’s return for
a court date; recognizances are aptly described as contract made with the Crown in its judicial
capacity. It is a writing acknowledged by the party to it before a judge or officer having authority
for the purpose, enrolled in a court of record.8

Bail may be granted by the police upon the arrest and detention of the ac used person. This is
pursuant to the teachings of the Constitution.9

The grant of bail is at the discretion of the court. The fundamental consideration being whether
the accused person will appear to stand trial at the appointed time and venue. In this regard the
seriousness of the offence committed and the likelihood of a heavy punishment being imposed
are the incentives for the accused to abscond and hence an accused charged with such an offence
is unlikely to be granted bail. The court’s discretion in granting bail in cases involving murder,
subversion, treason, robbery, hijacking, piracy, rape, defilement or escape from lawful custody
and persons held in custody for extradition to a foreign country.10

prosecution will initiates the proceedings by a bill on indictment.

5
Ibid s 96
6
Ibid s 140(4)
7
(2015-2016) SCGLR 143
8
See Black’s Law Dictionary, (10th ed. at page 1385
9
See the Constitution of the Republic of Ghana, article 14(3)b
10
Criminal and Other Offences (Procedure) Act, 1960 (Act 30)
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The Constitution, however, mandates the grant of bail for all offences when an accused is not
tried within a reasonable time.11

Grounds for refusal of bail

The grounds for refusal of bail are set out as follows:

i) That the accused may not appear to stand trial
ii) The accused may interfere with any witnesses or evidence, or in any way hamper
police investigations;
iii) That the accused may commit a further offence when on bail; and
iv) That the accused is charged with an offence punishable which was committed while
he was on bail.

The Criminal and Other Offences (Procedure) Act also makes provisions for the factors which a
court may take into account in determining the likelihood of the accused person absconding if
granted bail to include the following:

i) The nature of the accusation

ii) The nature of the evidence in support of the accusation
iii) The severity of the punishment which conviction entails;
iv) Failure to comply with conditions of recognizance on a previous occasion;
v) Whether or not the defendant has a fixed place of abode in Ghana and is gainfully
employed; and
vi) Whether the sureties are independent, of good character and sufficient means

How jurisdiction is determined in criminal cases

In criminal cases, the jurisdiction of a court over a case is determined by the nature of the
offence, the minimum punishment (sentence) that the offence attracts and the place where the
offence was committed as disclosed in the particulars of offence as contained in the charge sheet.

Rights of the accused

Article 19 of the Constitution of the Republic of Ghana, 1992 makes provision for certain
safeguards for a person charged with a criminal offence. Article 19 is generally referred to as the
Fair trial rules. Some of these safeguards are as follows:
i) Right to be informed immediately and in details of the nature of the offence charged –
article 19(2)(d)
ii) Presumption of innocence – article 19(2)c
iii) Right to fair trial – article 19(1)
iv) Right to a jury trial – article 19(2)
v) No conviction for criminal offence unless the offence is defined and penalty
prescribed – article 19(11) – see British Airways v Attorney-General [1996-97]
SCGLR 547

Limitation and Criminal offences

In criminal law, unless otherwise provided by statute, there is no time limit within which
prosecution may be barred. Consequently, an accused person or a suspect who goes into hiding

11
Constitution of the Republic of Ghana, 1992; articles 14(3) and 14(4)
4
to evade prosecution merely puts off the evil day temporarily. He may be prosecuted when
arrested several years later provided evidence and witnesses are still available. Criminal
prosecution may be re-opened several years after its conclusion, subject to rules on autrefois
convict or autrefois ac quit

 Conduct of the trial

 Punishment – death, imprisonment or fine or both
 Reparation –s 31(1) of Act 459

AN OUTLINE OF THE CIVIL PROCEDURE

A civil action may be commenced in the following ways:
a) Issue of a Writ of Summons
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 b) A petition; or
c) Originating notice of motion12

It is provided by the High Court (Civil Procedure) Rules that subject to any existing enactment to
the contrary, all civil proceedings shall be commenced by filing a writ of summons.13

Writ of Summons
This is the usual means of initiating civil proceedings in Ghana. 14 The Writ announces to the
person who has been sued (“the defendant”) that legal proceedings has been commenced against
him and that a file has been opened in the court records. The Writ announces a date by which the
defendant must either appear in court, or respond in writing to the court or the plaintiff. A
plaintiff who files a writ is also mandated to file a Statement of claim. The Writ is endorsed with
the reliefs that the plaintiff seeks from the court.15

The Writ, when issued must be served within a year as it is valid for twelve months until its
validity is extended. 16

Service of the Writ

A Writ when issued and filed at the Registry of the Court must be brought to the attention of the
defendant. This is in accordance with the audi alteram partem principle of natural justice. As a
general rule, the Writ must be served personally on the defendant(s). 17 The service of the Writ is
done by an officer of the court, bailiff or process server. In certain cases, personal service of the
Writ on the defendant may not be required, for example, where the defendant is a lunatic, or an
infant or is detained, or where the defendant is a company, a partnership, a government ministry,
department or agency, maritime actions, actions for the recovery of land where no person
appears to be in possession of the land; or where the action is commenced against a stool/skin or
a head of family.18

Where a defendant has to be served personally but personal service cannot be effected after three
or more attempts at personal service, the court may, upon an application by the plaintiff order
that the defendant be served by way of Substituted Service. This entails the posting or the Writ at
the defendant’s last known place of abode, publishing the Writ in a national newspaper, posting
the Writ on a notice board at the court’s premises; etc.

A writ cannot be served on certain days, including Sunday, Good Friday, the day before
Christmas day, Boxing Day and any other public holiday.

Upon service of a Writ, the bailiff or the process server must depose to an affidavit indicating the
proof of service within three days of service of the writ.

A writ may also be served outside the jurisdiction where the defendant does not reside within the
jurisdiction. This is done pursuant to an order/leave of the court upon an application made by the
12
This mode of commencing a civil action appears to be no longer available as there is no provision made for it
under C.I. 47
13
See High Court (Civil Procedure) Rules, 2004 (C.I. 47), Order 2, rule 2
14
Ibid Order 2, rul3 3
15
Ibid Order 2, rule 3
16
Ibid Order 2, rule 9
17
Ibid Order 7, rule 3
18
Ibid Order 7, rule 5
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plaintiff. Upon the grant of the leave by the court, a notice of the writ, not the writ itself is
served.

Entry of appearance
Upon service of the Writ and the statement of claim on the defendant, the defendant is required
to enter appearance within 8 days of the service of the writ. This is known as Notice of Entry of
Appearance.19 By filing the Notice of Entry of Appearance, the defendant indicates his intention
to contest the action brought against him by the plaintiff and also to submit to the jurisdiction of
the court. If the defendant fails to enter appearance, the plaintiff may apply to the court for a
judgment in default of appearance. If the plaintiff’s claim against the defendant is for a liquidated
demand, the plaintiff may at the expiry of the time limited for appearance, apply to the court for
final judgment for the sum endorsed on the writ plus interest. 20 Where the plaintiff’s claim is for
unliquidated demand, the plaintiff may apply to the court to enter interlocutory judgment against
the defendant.21

Conditional Appearance
A defendant who has been served with Writ may elect to enter Conditional Appearance. 22 Within
14 days of the filing of a condition appearance, the defendant may apply to the court for the
following reliefs:
i) An order to set aside the writ or the service thereof;
ii) ______________
iii) _______________

Statement of defence
A defendant who enters appearance to the plaintiff’s writ, has 14 days within which to file his
statement of defence and/or counterclaim. 23 The statement of defence must set out the
defendant’s response or denial to all the allegations contained in the plaintiff’s statement of
claim. Where the defendant also has any claim against the plaintiff relative the plaintiff’s claim,
he must add a counterclaim to his statement of defence.

Upon service of the statement of defence on the plaintiff, the plaintiff may, within 7 days of the
service of the statement of defence, file a reply rebutting the answers contained in the
defendant’s statement of defence.24 Where the defendant’s statement of defence include a
counterclaim, the plaintiff must also add a defence to the defendant’s counterclaim in his reply.

Where the plaintiff files a reply to the defendant’s statement of defence, pleadings will be
deemed to have closed. And no further pleadings shall be filed by either party except with the
leave of court.25 Pleadings comprises the following:

i) Writ of Summons and Statement of Claim

ii) Entry of Appearance
iii) Statement of Defence

19
Ibid Order 9, rr 1 and 5
20
Ibid Order 10, rule 1(1)
21
Ibid Order 10, r 2
22
Ibid Order 9, rule 7
23
Ibid Order 11, r 2
24
Ibid Order 11, rule 3(2)
25
Ibid Order 11, rule 4
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 iv) A reply (if any) and defence to counterclaim

Application for directions

The plaintiff must make an application for directions within one month from the time when
pleadings are deemed to be closed.26 If the plaintiff does not apply for directions within the
stipulated time, the defendant who has entered an appearance may take out the application for
directions or apply to the court to dismiss the action/suit for want of prosecution.27

When on an application for directions the Court has dealt with all of the matters, the Court shall,
give directions for the management of the case and set a time table for the taking and giving of
directions and the trial, or fix a case management conference and give direction relating to the
management of the case.28

The Court shall direct the parties to file exchange the documents they intend to rely on at the
hearing of the case and file a Witness Statement of the oral evidence which the party serving the
statement intends to rely on in relation to any issues of fact to be decided on at the trial. 29 After
exchanging the Witness Statements, the parties will file a pre-trial check list and a date will be
fixed for the Case Management Conference.

26
Ibid Order 32, rule 2
27
Ibid Order 32, rule 3
28
High Court (Civil Procedure)(Amendment) Rules, 2014 (C.I. 87)
29
Ibid Rule 4
8