Kpebu (No. 1) v. Attorney-General Civil Appeal No. J1/7/2015

Material Facts:

The plaintiff invoked the original jurisdiction of the Supreme Court for a declaration that Section 104(4) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) is inconsistent with Articles 14(1)(b) and 19(11) of the 1992 Constitution and therefore unconstitutional.

Summarily, Section 104(4) provides that if an accused who has been granted bail fails to appear in court when required, the court may order the person who guaranteed that the accused will appear, to pay a penalty. If the penalty remains unpaid and cannot be recovered, the person is liable to be imprisoned for a term not exceeding six months.

[Take note of the following terms used in the case]

1. Bail bond: a written agreement stating the terms under which bail is granted, including the obligations of the accused and the sureties.
2. Recognizance: their lordships cited the following definition of recognizance from Black’s Law Dictionary: “Most commonly, a recognizance takes the form of a bail bond that guarantees an unjailed criminal defendant’s return for a court date. Recognizances are aptly described as contracts made with the crown in its judicial capacity.” A recognizance is a writing acknowledge by the party to it before a Judge or officer having authority for the purpose, and enrolled in a court of record. It usually takes the form of a promise with penalties for the breach of it, to keep the peace, to be of good behaviour, or to appear at the assizes…”
3. Forfeiture of recognizance:a recognizance is said to be forfeited if there is a breach of the conditions of the bail. For example, if the accused fails to appear in court.

In light of this, what the plaintiff is essentially saying is that if a person guarantees that an accused person will appear in court when needed, and the accused does not, the recognizance is forfeited. When that happens, Section 104(4) allows for the person who gave the guarantee to be imprisoned.

Issue:

Whether or not Section 104 of Act 30 is contrary to Articles 19 (11), 14 (1), and 15 (1) (2) and (3) of the Constitution (1992) .

Arguments of the Plaintiff:

1. That enforcing a bail bond is a civil cause of action as stated in R v Southhampton Justices, Ex parte Green [1975] 2 A.E.R 1073 . Consequently, that failure to fulfil the recognizance (e.g ensure that the accused appeared in court) gave rise to a civil debt and not criminal liability.

2. That although Article 14(1)(b) of the 1992 Constitution permits the imprisonment of a person for contempt of court, it will be troubling if failing to fulfil recognizance is held to amount to contempt of court.

3. That standing surety is not a criminal offence and a surety should not be punished where a principal party jumps bail.

Arguments of the Defendant:

1. That the pivot of Article 19(11) is to prevent retrospective penal legislation. In effect, no one can be convicted for an act or omission that is not declared as an offence in a written law with the penalty for such an offence provided in the written law.

2. That Section 104(4) has prescribed the forbidden conduct and has provided a specific sanction for its violation.

3. That if a person disobeys a court order to fulfil the recognizance, same amounts to contempt of court, and it is not unconstitutional for such a person to be imprisoned.

4. That in Section 104, commitment to prison not premised on a failure to pay money but rather on the failure of the surety to produce the principal party. This failure must be the result of wilful default, lack of due diligence, or deliberate disobedience of the court.

Holding:

Section 104(4) is inconsistent with Articles 14 and 19(11) of the 1992 Constitution.

Ratio Decidendi:

The term of imprisonment imposed in Section 104(4) follows if recognizance is taken; there is a forfeiture of the recognizance, and the person bound by the recognizance fails to pay the penalty that accrues by virtue of the forfeiture of the recognizance.

The effect of a recognizance is that when an accused fails to turn up in court when required to do so, the court may proceed against the person who entered into the recognizance, which is the person who undertook to produce the accused person on demand in court or pay a penalty if he is unable to do so.

In proceeding against the person who entered into the recognizance, Section 104(4) allows the person to be imprisoned if he is unable to pay the penalty. In the opinion of their lordships, there is no offence defined in Section 104(4) but only a penalty. In light of this absence of a defined offence but an imposition of a penalty, their lordships agree that “Article 19 (11) of the Constitution 1992, which provides that no person shall be convicted of a criminal offence unless the offence is defined and the penalty for the offence also prescribed in a written law has been breached.”

In the opinion of their lordships, if the recognizance is forfeited by virtue of a breach of the bail conditions, it only gives rise to a civil debt. In the cases of Republic v. High Court, Accra: ex-parte Laryea Mensah [1998-99] SCGLR 360 and Ex-parte PPE Ltd v. Paul Juric (Unique Trust Financial Services Ltd. Interested Party) , the Supreme Court advanced that it will be unacceptable to commit a person for contempt of court under Article 14(1)(b) simply because the person has failed to pay a judgement debt. This judgement, among others, makes it clear that the imprisonment of a person for failing to pay the penalty for the forfeiture of recognizance is unconstitutional.