Bonsu Alias Benjillo v. The Republic [1999-2000] 1 GLR 199 – 236

Material Facts:

The appellant, together with four other persons, was charged with three counts of abetment of crime, unlawful importation of narcotic drugs contrary to Section 1 (1) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1996 (PNDCL 236), and possessing narcotic drugs contrary to Section 2 (1) of PNDCL 236 . Before the commencement of the trial at the Greater Accra Circuit Tribunal, and while on bail, the first and fifth accused persons, both of whom were Nigerians, absconded from the country. The case was subsequently transferred to the Greater Accra Regional Tribunal, where the appellant was convicted and the first and fifth accused persons were also tried in absentia (in their absence).

The appellant, along with others, appealed against their convictions to the Court of Appeal, where his appeal was dismissed. He then appealed to the Supreme Court, arguing that the trial of the first and fifth accused persons in their absence vitiated the whole trial.

Issue:

Whether or not the trial of the first and fifth accused persons in their absence vitiated the whole trial.

Holding:

A person can be tried in his absence if he fails to show up after he has been notified of the charges against him. The first and fifth accused persons were aware of the charges against them and could be tried in absentia.

Ratio Decidendi:

Article 19(3) of the 1992 Constitution provides that:

3. The trial of a person charged with a criminal offence shall take place in his presence unless

a. he refuses to appear before the court for the trial to be conducted in his presence after he has been duly notified of the trial; or

b. he conducts himself in such a manner as to render the continuation of the proceedings in his presence impracticable and the court orders him to be removed for the trial to proceed in his absence.

The effect of this provision is that if a person is notified of the charges against him but he fails to appear in court for the trial, the trial can be conducted in his absence. In the present case, the first and fifth accused persons knew about the charges against them but chose to leave the jurisdiction; a trial can therefore be held in their absence. Bamford Addo JSC delivered the ruling of the Court as follows.

The two accused persons were notified of the charges against them and knew of their trial which started in the circuit tribunal in their presence but upon the grant of bail to them, they absconded and refused thereafter to attend their trial, in fact they were not seen again at the tribunal. They demonstrated by this conduct that they were not prepared to appear for any trial even though they knew they were to be tried for drug offences, and the transfer of the case to a higher court would not have changed their intention as stated above. Under the circumstances, the mere transfer of the same case to a higher tribunal cannot be said to alter the fact that they had been earlier notified of their trial, nor be allowed to nullify the earlier notification given to them. Since by their own conduct of leaving this jurisdiction, they refused to stand trial and intentionally prevented service of any further documents on them, they cannot be allowed to benefit from their misconduct and must be held to have known of their trial at the time of notification.