The recent decision of the Supreme Court in Martin Kpebu v Attorney-General has finally settled the law on the grant of bail and other related offences stated under section 96(7) of Act 30 as amended by section 7 of the Criminal Procedure Code (Amendment Act, 2002 (Act 633) and as further amended by section 41(1) (a) of the Anti-Terrorism Act, 2008 (Act 762). According to the plaintiff, section 96(7) of Act 30 contravenes articles 15(2) and 19(2)(c) of the Constitution 1992 and is therefore null and void and of no effect.
I will quote in extenso the provision in section 96(7) of Act 30 as:
“A court shall refuse to grant bail
- In a case of treason, subversion, murder, robbery, narcotics, hijacking, piracy, rape, defilement or escape from lawful custody; or
- Where a person is being held for extradition to a foreign country.
The relevant provisions of articles 15(2) and 19(2) (c) of the Constitution 199 read respectively as follows:
“15(2) No person shall, whether or not he is arrested or detained, be subjected to
- torture or other cruel, whether or not he is arrested, restricted or detained, be subjected to
- any other condition that detracts or is likely to detract from his dignity and worth as a human being.”
“19(2) A person charged with a criminal offence shall,
- be presumed to be innocent until he is proved guilty or has pleaded guilty.”
Professor Henrietta Mensa-Bonsu, writing on the topic: the right to Bail, whose Right? Statute, Judge-made law and the Constitution 1992, (and published in the in the January-June 2014, Vol. 3, No. 1, Banking and Financial Law Journal of Ghana (as stated at pages 199-223), gave an overview of how the issues on bail in Ghana have perceived in the following terms, as follows:
“In Ghana, issues surrounding bail often generated controversy either by the denial of bail or by the terms under which it is granted. In addition, the power as inherited at common law has been greatly curtailed by legislation. Since 1992, the Supreme Court of Ghana has made some effort to straighten out the existence of the power as it affects the constitutional rights of the citizen, but efforts notwithstanding, the issues pertaining to bail have been persistent and recurrent in nature. Rightly, or wrongly, the public now perceives of this power as an instrument for punishment politically unpopular defendants through the courts, or a means by which powerful accused persons escape their just deserts. These incorrect notions of the role and purpose of that instrument thus underscores the need to subject the instrument to some examination, in order to shed some light on its historical antecedents and thereby elucidate the principles that have guided and continue to guide the exercise of this power by situating it in its historical contexts.”
This paper is aimed at analysing most of the cases decided by our Superior Courts before and after the coming into force of the Constitution 1992 on the grant of bail in murder cases and other non-bailable offences. The purpose of this paper is to inform readers that most of the cases to be discussed herein, granted bail in murder cases. The judges in most of the decided cases relied on some constitutional provisions like 14(1) (g), 19(2), 15(2) and 21(4) of the Constitution 1992. However, the mandatory provision in section 96(7) of Act 30 is that all offences listed therein were not bailable. In my view those decisions were not binding precedents but persuasive because section 96(7) was still the law. Even the dictum by Ocran JSC in the Gorman v the Republic could not be used as binding precedent even though it was a Supreme Court case because the Supreme Court in that case did not decide on the constitutionality of section 96(7) of Act 30. It is only the Supreme Court that can interpret and strike out a provision in a statute as unconstitutional therefore rendering that provision otiose. Some school of thoughts are of the view that those decision before the Martin Kpebu case were binding. The question is, if those decisions were binding on the courts, what is so novel about the decision in the Martin Kpebu case? What then makes the decision in Martin Kpebu a settled and novel to our criminal jurisprudence?
What then is the essence of bail?
The grant of bail to persons facing trial is a matter within the sole discretion of the trial court. In a famous American case of Stack v Boyle 342 US 1 at 4 and 5 (1951) the Supreme Court stated that:
“The right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty….Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.”
This therefore means that the grant of bail is one of the tools available to the court to ensure that a suspect or an accused, as the case may be, is guaranteed his innocence until the court has found him guilty. The presumption of innocence in terms of article 19(2) (c) of the Constitution 1992 embodies freedom from arbitrary detention and also serves as a safeguard against punishment before conviction.
The Scope of section 96(7) of Act 30 before the Martin Kpebu case.
Over the years, various decisions that have emanated from our Superior Courts and even some lower courts did not settle the law on the unconstitutionality of section 96(7) of Act 30 (as amended). The courts over the years have hidden under articles 19(2)(c), 14(1)(g) of the Constitution, 1992 which is the fundamental law of the land and ignored the mandatory provision in Criminal and Other Offences(Procedure) Act, 1960 (Act 30) as amended, that is section 96(7) as being inconsistent with the letter and spirit of the Constitution.
Even though some of the courts, like the district courts granted bail in murder cases and other related offences, the ratio decidendi in the Supreme Court case of Gorman v the Republic supra which is yet to be discussed did not make a clear pronouncement that all offences listed under section 96(7) were bailable as a result of its inconsistency with the letter and spirit of articles 14(1)(g), 19(2), 15(2) and 21(4) of the Constitution 1992 as was done in the Martin Kpebu case.
Before I proceed to discuss some of the cases, I will like to support my view with a quote from Justice Brobbey, in his book Practice & Procedure in the Trial Courts & Tribunals as:
“Since the constitution is the fundamental law of the land, to the extent that article 14(3) and (4) mandate bail for all offences while Act 30, s 96(7) excepts the grant of bail in murder cases, etc the latter is deemed to have been repealed by the former by reason of the inconsistency. This view was taken in Dogbe v the Republic and Brefor v the Republic. There is no doubt that the latter view backed by the two cases is more accurate.”
These were the views expressed by judges over the years in admitting accused persons to bail.
In Seidu v the Republic the court per Roger Korsah J. (as he then was) when presiding in the High Court, Kumasi, and considering an application for bail under the no-bail regime as existing under the then prevailing NRCD 309 said as follows:
“The issue as to whether a case was one of murder or some other crime had to be determined objectively. Although the prosecution had to describe what charge it would proffer against a party, it was however the duty of the courts to decide whether the case was one of murder or some other crime considering the evidence in support of the accusation. A case would not be considered as a murder case until it had been decided by the court having jurisdiction to try it to be so.”
Facts in the Seidu case
The applicants for bail therein were facing a provisional charge of murder. They were arrested upon the confessions of an accomplice who named them as being his accomplices in the murder of the deceased. The applicant denied the charge and were granted bail by the district court. The republic then applied to the High Court to quash the grant of bail by the district court. The applicants attended court voluntarily to the certiorari hearing. The High Court in quashing the order of bail, held that: since a district court was incapable, by virtue of section 39(1) (b) of the Courts Act, 1971, (Act 372), of trying an offence punishable by death or imprisonment for life, it had no jurisdiction to grant bail. (This proviso is now contained in section 48(1) (b) of the Courts Act, 1993 (Act 459).
The applicants then applied to the High Court for bail. After nine months of police investigation, the only evidence found against the applicants was a blood stain found in the van belonging to the wife of the first applicant. Even though the blood was found upon analysis to be human blood, the pathologist was unable to declare that the sample of blood belonged to the same blood group as the deceased. The issue that faced the court in the Seidu case was whether despite the mandatory provisions of section 96(7), as amended by the Criminal Procedure Code (Amendment) Decree, 1975 (NRCD 309), the court could, in the absence of evidence supporting a charge of murder grant bail: and furthermore, who had the right to decide whether a case was one of murder or some allied crime.
Based on the above facts and the legal regime then existing in 1978, Roger Korsah J held as follows (as stated at page 68 of the Report):
“Now, before Act 30, s. 96 was amended by NRCD 309, the granting of bail in murder cases was not unknown although it was uncommon, and no one doubted the power of the High Court to grant bail in such cases. My brother Taylor J, has in characteristics style dealt with this topic in Okoe v the Republic and I have no desire to belabor the point, but suffice it to say that the sole test as to whether a party ought to be bailed is whether it is probable that, that party would appear to stand his trial. Of course, in applying this test, regard must be had to the nature of the accusation, the nature of the evidence in support of the accusation, and the severity of the punishment which conviction will entail. But for the provisions of Act 30 section 96 as amended by NRCD 309, there is no doubt in my mind that, on a consideration of the evidence in support of the accusation, every court having power so to do, would grant bail to the applicants herein.”
Flowing from this decision it can be said that the courts having jurisdiction can only grant bail to accused person from the following factors:
- Whether the accused would appear to stand his trial;
- The nature of the evidence in support of the charge or offence against the accused;
- Closely linked to the above is the nature of the accusation; and
- The severity of the punishment which conviction would entail.
In another case of Prah v the Republic, the Republic did not file affidavit in opposition to the applicant’s application for bail, and the court, per Aboagye J. (as he then was) held:
“that under section 96(7) (a) a person properly charged with the offence of murder could not be granted bail. However, in this case, the applicants denied committing the crime which was not opposed by the prosecution. They could therefore be granted bail since the evidence did not support the fact that they had committed any offence.”
The decision in the Prah case is consistent with the reasoning in the Seidu case; that where the facts in a charge, do not support the offence charged, the accused is entitled to bail even in non-bailable offences. Also in The Republic v Crentsil , the High Court granted bail to the accused before the Magistrate who remanded him. This means that grant of bail in such circumstance does not invoke any controversy. But then the grant of bail on grounds of delay in bringing accused to trial vis-à-vis the mandatory prohibition in section 96(7) (a) of Act 30 does.
From this principle, two decisions of the High Court comes to mind. In the cases of Boateng v the Republic and Donkor v the Republic, the position of the Judges is that sub-section 7(a) has mandatorily ousted the jurisdictions of the courts to grant bail to an accused properly charged with murder as in the instant case. Another case worthy of mention is the case of Abiam v the Republic where Mensa Boison J, also considered the effect of section 96 of Act 30 as amended by NRCD 309 which stipulated a mandatory prohibition against the grant of bail in murder offences in contra distinction to an offence of attempted murder, which was the offence therein charged in the Abiam case, wherefore the applicants therein were accordingly granted bail because there was no statutory injunction against the grant of bail.
On the other hand, when it is determined that a person charged with murder has not been tried within a reasonable time, he should be granted bail compliance with article 14(4) of the Constitution 1992. The rationale for this view is that the Constitution is the fundamental law of the country and it has mandatorily decreed bail for all types of offences. In the case Awayevu v the Republic, the appellant in this case was arrested and kept in custody for over five years and five months without trial. The court in referring to the provision of Article 14(4) of the Constitution 1992, held that:
“….since section 96(7) (a) is not in accord with article 14(4) of the Constitution 1992, the said subsection is deemed repealed by reason of the said inconsistency. This view is thus in accord with modern thinking and article 33 of the Constitution 1992 which mandates the High Court to uphold the fundamental human rights and freedom of the individual as enshrined in the Constitution 1992, which is why the Supreme Court held in Gorman case that:
“Article 14(4) of the Constitution 1992 dealt with the question of bail in a specific situation where the person arrested or detained was not tried within a reasonable time. The duty to grant bail arising in such situations remains applicable irrespective of the nature of the offence. Thus, even in cases of offences mentioned in section 96(7) of the Criminal Procedure Act, (Act 30) bail must be granted if there was no trial within a reasonable time.”
The Gorman case which came before the Supreme Court was on appeal from the judgment of the Court of Appeal and not one invoking the original jurisdiction of the Supreme Court under articles 2(1) and 130(1). The decision in the case stated supra was one of an interpretative issue which was not why the case came before them. Therefore, even though the Supreme Court was not called upon to interpret the provisions in articles 14(4), 19(2) etc, the decision of the court was right to modern thinking as the court ignored section 96(7) of Act 30 and confined itself to the Constitutional provision. Other cases apart from the Gorman case granted bail in murder cases based on the fact and circumstances prevailing in those cases. Like unreasonable delays, where the facts do not support the charge.
The facts in the Gorman case
On 28 January 2004, the five appellants and another (hereinafter called the accused), were arraigned before the Greater Accra Regional Tribunal on narcotics related charges under sections 1(1), (2) and 56(c) of the Narcotics Drug (Control, Enforcement and Sanctions Law), 1990 (PNDCL 236). They were all granted bail on 3 February 2004 by the trial tribunal on specified conditions. The Attorney-General, the respondent, appealed against the grant of bail to the accused persons to the Court of Appeal, which on 3 March 2004, upheld the appeal and rescinded the bail earlier granted by the trial tribunal. The Court of Appeal in its judgment held that in granting bail, the trial tribunal should have considered adequately the fact that the offences levelled against the accused were “serious and grave.” All the six accused persons except the second accused, brought the instant appeal against the decision of the Court of Appeal to the Supreme Court.
Another case in which the Supreme Court granted bail in a non-bailable offence was in the case of Republic v Court of Appeal; Exparte Attorney-General (Frank Benneh Case), at 658, where Edward Wiredu JSC (as he then was), presiding, Adjabeng and Atuguba JJSC dissenting, stated the following in the case where the Attorney-General applied to the Supreme Court for an order of certiorari to quash the decision of the Court of Appeal in granting bail to the accused, Frank Benneh in a narcotic related offence. Whilst refusing the application for certiorari, the majority (per Edward Wiredu JSC (as he then was) stated the following which I find very instructive and a useful guide:
“It is the right of every person in Ghana to enjoy his liberty, freedom of movement, etc as enshrined in the Constitution 1992. It is also the duty of the courts to protect, defend and enforce these rights whenever they are being suppressed or stifled by any authority or persons in authority. In the instant case, the accused is presumed to be innocent until it is otherwise established. It would therefore be unjust to deprive him of his right to enjoy his freedom in the absence of any law prohibiting the grant of bail to him under the circumstances as established by the facts of this case. Respect for human rights is an attribute or an element of good governance, and all efforts must be made to ensure its observance. The trial tribunal was therefore not justified under those circumstances to refuse the accused’s request for bail. The Court of Appeal was therefore right in granting him bail.”
The Supreme Court in this decision broadly considered the constitutional provisions guaranteeing personal freedoms and the principle of being presumed innocent until the contrary was proved or established in court. The Supreme Court did not measure any personal liberties against any law which violated the enjoyment or threatened enjoyment of those right. That explains why it went on to state that the enjoyment of those rights could be curtailed by the prohibition of the grant of bail under circumstances established by law. However, statutory interventions, no matter how well intended, cannot take away constitutional rights guaranteed under the Constitution.
I must say that most of the cases analysed were not cases of constitutional interpretation. This means that the courts will not have the jurisdiction to pronounce on the constitutionality and unconstitutionality of articles 14(1)(g), 19(2), 15(2) and 21(4) of the Constitution 1992 and section 96(7) of Act 30. Another issue is, if the courts did not have the jurisdiction to pronounce on the constitutionality and unconstitutionality of articles 14(1) (g), 19(2), 15(2) and 21(4) of the Constitution 1992 and section 96(7) of Act 30, can those decisions be binding on the courts i.e can those cases be adopted by the courts as binding precedents in other cases of similar nature as happened in the Gorman case supra?
Facts in Martin Kpebu v Attorney-General
The plaintiff Martin Kpebu, a private legal practitioner, sued in the Supreme Court under articles 2(1) and 130(1) of the Constitution 1992 for declaration (as subsequently amended by order of the court) that, section 96(7) of the Criminal and other offences (Procedure) Act, 1960 (Act 30), as amended by section 7 of the Criminal Procedure Code (Amendment) Act, 2002 (Act 633), and further amended by section 41(1)(a) of the Anti-Terrorism Act, 2008 (Act 762), contravenes articles 14(1), 15(2) and 19(2)(c) of the 1992 Constitution.
In support of the claim, counsel referred to article 19(2) (c) of the Constitution 1992, providing that “a person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.” Counsel submitted, inter alia, that bail was directly linked to individual liberty which is guaranteed by article 14 of the Constitution 1992; and that the no-bail provision as captured in section 96(7) of Act 30 as amended by Act 633, has raised constitutional challenges, particularly, when viewed against the automatic presumption of innocence until proven guilty or confession of commission of the crime. Counsel further argued that the presumption of innocence was not rebuttable unless a person has been pronounced guilty of an offence after a hearing or upon a plea of guilty; and that the constitutional presumption of innocence could not be taken away by a statute.
On the other hand, counsel for the defendant Attorney-General relied, particularly, on articles 14(1) (g) and 21(4) (a) and (b) of the Constitution 1992. He submitted, inter alia, that the Constitution itself has made it clear that the refusal to grant bail to a suspect/accused, if exercised judiciously, should not be held to be inconsistent with or in contravention of the Constitution. Counsel for the defendant therefore submitted that the declaration sought by the plaintiff could not be sustained and should be dismissed as unconstitutional.
The majority decision of the Supreme Court
The Supreme Court interpreted article 19(2)(c) of the Constitution 1992 and concluded that it was inconsistent with an individual’s freedom of liberty as stated in Article 14(1)(g) and therefore the mandatory provision of the no-bail offence in section 96(7) of Act 30. Since it is only the Supreme Court that has power to interpret provision in the Constitution, they have the powers to strike any law which is found to be inconsistent with any provision stated therein. The effect of striking down legislation as unconstitutional by the Supreme Court is to render that offending law void, as laid down in article 1(2) of the Constitution 1992 of Ghana. In other words, such laws become unconstitutionally repealed through the judicial pronouncement of this court. In the light of this powers vested in the Supreme Court, the Court by five to two majority decision held:
“article 19(2)(c) of the 1992 Constitution has given a suspect under investigation or an accused on trial, the benefit that he was innocent until the court had found him guilty after a hearing or following a plea of guilty. The grant of bail was one of the tools available to the court to ensure that a suspect or an accused, as the case might be, was guaranteed his innocence until the court had found him guilty. The presumption of innocence in terms of article 19(2) (c) of the Constitution, embodied freedom from arbitrary detention and also served as a safeguard against punishment before conviction. It also served as a preventive measure against the State from successfully employing its vast resources to cause greater damage to a person who has not been convicted than he could inflict on the community. Therefore, any legislation, outside the Constitution (such as section 96(7) of Act 30 as amended), that took away or purported to take away, either expressly or by necessary implication, the right of an accused to be considered for bail, would have pre-judged or presumed him guilty even before the court had said so. That would be clearly contrary to the letter and spirit of article 19(2) (c) which has guaranteed his innocence until otherwise declared by a court of competent jurisdiction.”
The Court Per Benin JSC who delivered the lead judgment said thus:
“the principle of presumption of innocence is a very important one in the criminal justice system and it underpins the basic concept of individual liberty under the Constitution. When the opportunity arose, the US Supreme Court seized the occasion to firmly place this principle in its jurisprudence. That was in the case of Coffin v United States 156 US 432 (1895) decided on 4 March 1895. The court said that: “the principle that there is a presumption of innocence in favour of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law…” The principle has gained worldwide acceptance. The UN Declaration of Human rights, article 11(1) states that: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for the defence.” The same principle is re-stated by article 7(1)(b) of the African Charter on Human and People’s Rights. Article 19(2)(c) of the Constitution 1992 reaffirms this principle which Ghana has subscribed to at both the UN and AU.”
Justice Dotse JSC, also added his voice to the majority opinion and said:
“Article 19(2)(c) of the Constitution 1992 takes precedence in the Laws of Ghana and any law found to be inconsistent to this constitutional provision, must on the basis of articles 2(1)(a) and 130(1)(b) of the Constitution 1992 give way and be declared inconsistent and in contravention of the Constitution 1992. In my opinion, section 96(7) of Act 30 as amended, is one such legislation that is inconsistent with the Constitution 1992….The general tenor of section 96 of Act 30 (as amended), which deals with grant of bail in general therefore gives clear indications that on the whole, the courts have a discretion to grant bail to persons appearing before them in criminal cases upon conditions stated herein. The ousting of grant of bail in section 96(7) is therefore odd and an unnecessary interference with the discretion of the courts….The lead judgment of the court delivered by my brother Benin JSC, striking out section 96(7) of Act 30 as amended as unconstitutional, in which I concur, is not a carte balance for the courts to admit every Tom, Dick and Harry to bail pending trial because of the removal of the statutory shackles in the impugned section 96(7) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). I believe the courts having jurisdiction in the offences stated therein, have an unfettered discretion to grant bail using the time-honoured principles and traditions that have guided the courts and also as provided in section 96(4) and (5) of Act 30….To the extent of the inconsistency between article 19(2)© of the Constitution and section 96(7) of Act 30 as amended, I would endorse the majority decision (per my respected brother Benin JSC) that the said section 96(7) of Act 30 be struck out.”
A critical analysis of this decision by the Supreme Court has finally declared section 96(7) of (Act 30) as void and otiose and has made this decision novel and different from the other decisions discussed supra by the various superior courts, even with the Supreme Court in the Gorman case supra. This decision in my estimation will stand the test of time and it will go a long way to enhance our criminal jurisprudence especially when it is to the grant of bail to suspects. As lucidly expressed by Wood CJ, the learned Chief Justice said: “ this case resulting in declaring as unconstitutional section 96(7) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) as amended, which provided for non-bailable offences, marks a watershed in the history of our criminal jurisprudence…… “
This will also serve as a catalyst to the office of the Attorney-General (Criminal Division) and prosecutors to speed up trial processes in criminal matters when a suspect is admitted to bail to determine whether he is guilty or not guilty. Otherwise, this decision will serve as a field day for suspects to move freely without the court having the opportunity to determine the culpability or non-culpability of the suspect.
However, in spite of the fact that the supreme Court has struck out section 96(7) as being unconstitutional, the Court through His Lordship Dotse JSC said: “The lead judgment of the court delivered by my brother Benin JSC, striking down section 96(7) of Act 30 as amended as unconstitutional, in which I concur, is not a carte blanche for the courts to admit every Tom, Dick and Harry to bail pending trial.”
This caveat according his Lordship Dotse JSC, means that the grant of bail to accused persons is discretionary in spite of the fact that the impugned section 96(7) is struck down. This means that before a trial judge can admit a suspect to bail he must satisfy the court under section 96(5) of Act 30. I will quote the provision in extenso:
“96(5) A Court shall refuse to grant bail if it is satisfied that the defendant
- may not appear to stand trial, or
- may interfere with a witness or the evidence, or may in any way hamper police investigations, or
- may commit a further offence when on bail, or
- is charged with an offence punishable by imprisonment exceeding six months which is alleged to have been committed while the defendant was on bail.”
From the condition stated, the accused person needs to satisfy these condition especially the first condition before he can be admitted to bail. However, this does not means that Judges should abuse the above provision to make the grant of bail harsh and excessive to make the grant otiose.
Even though most decisions of our Superior Courts over the years have granted bail in murder cases and other non-bailable offences as stated in section 96(7) of Act 30, (as amended) those decisions never rendered the impugned section 96(7) void and otiose. This means the offences stated therein were still not bailable. Even though the section 96(7) of Act 30 was unconstitutional to certain provisions of the Constitution stated supra, the decision in the celebrated case of Martin Kpebu v Attorney-General by the Supreme Court has put to rest all the doubts and has finally settled the law that all offences are bailable thereby striking down the said provision. Even though it is discretionary the most important issue is that section 96(7) of Act 30 is no longer good law. This decision is highly commendable and I submit it will enrich our criminal jurisprudence.
The dissenting views by our learned justices are also welcomed as they call for urgent review of procedures in preliminaries before trial by the Law Reform Commission. This view was expressed by her Her Ladyship Sophia Adinyira JSC as:
“……..The concerns raised may be pertinent so far as there seems to be no clear rules or guidelines on when investigation should close or how long a person can be held on remand without being charged or committed to trial in cases of trial as pertains in some jurisdictions. This calls for urgent review of procedures in preliminaries before trial by the Law Reform Commission. This may include the revision of section 96 of Act 30 in clearer terms on the grant of bail…The concerns of the plaintiff Martin Kpebu and that of my eminent brethren constitute legitimate calls for a review of the entire section 96 and providing guidelines regarding timelines for actions by all players in the administration of criminal justice between the period of the arrest of a person to the time of his trial.”
I finally conclude, by making these recommendations to the prosecution and those involved in the administration of justice to go by the following:
- Conclude investigations on time.
- Avoiding unnecessary delays in the trial process
- Serve the accused persons with all necessary documents needed before trial as early as possible by the authority of Republic v Eugene Baffoe Bonnie and 4 Others.
- Judges must not also condone long adjournments in the course of the trial unless under exceptional circumstances.
*BA (Ghana), LL.B (Ghana), BL