COURT OF APPEAL, ACCRA
Date: 20 DECEMBER 1974
AMISSAH JA
CASES REFERRED TO
(1) Aidoo v. Commissioner of Police [1964] G.L.R. 267, S.C.
(2) Aidoo v. Commissioner of Police (No. 2) [1964] G.L.R. 344, S.C.
(3) Aidoo v. Commissioner of Police (No. 3) [1964] G.L.R. 354, S.C.
NATURE OF PROCEEDINGS
APPEAL against a decision of a revising High Court judge reversing an order of acquittal and entering a conviction and imposing a sentence of twelve months’ imprisonment with hard labour. The facts are sufficiently stated in the judgment of the court.
COUNSEL
Agyeman Prempeh for the appellant.
S.E. Asamoah, Senior State Attorney, for the respondent.
JUDGMENT OF AMISSAH JA
Amissah J.A. he delivered the judgment of the court. We allowed this appeal on 17 October 1974 reserving our reasons. We now give them.
The appellant, Edward Osei Agyemang, an education officer, was convicted by Anterkyi J. of ordinary assault and sentenced to twelve months’ imprisonment with hard labour. Anterkyi J. did not himself try the case. At the time of conviction and sentence he had not seen or heard the accused. But he proceeded as he was entitled to do under the powers given to judges of the High Court by the Courts Act, 1971 (Act 372), to revise decisions of magistrates. Those powers exercisable after the submission of the monthly returns of the magistrate showing the number of cases dealt with by him during the previous month and the manner of disposal, are indeed very wide. Their full extent will appear presently. In the case before us, the appellant was tried by the district magistrate at Goaso in the Brong-Ahafo Region. He was acquitted. The magistrate wrote a long judgment reviewing the whole evidence and giving his reasons for acquittal. He had accepted the story that the appellant applied physical force to the complainant but in circumstances in which he found the force applied justified.
What were those circumstances? Until the day before the trial, both the complainant and the accused lived with their families in the same house in Kukuom in Brong-Ahafo. The complainant is a produce clerk to the State Cocoa Marketing Board; the accused as said earlier is an education officer. It would appear from the evidence that the conflict which eventually led to the act complained of originated not from the men themselves but from their womenfolk. As usual in such cases each side presents a different version of the facts alleging provocative acts on the part of the other under conditions of enviable self-restraint. That the situation was difficult there can be no doubt; that insults and provocations were traded from time to
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time between the two families seems to be equally clear. The facts were such that the learned senior state attorney before us gave as his opinion that in a case of this nature the magistrate should have used his powers of reconciliation of parties to effect a settlement between them.
Be that as it may, the view of the facts accepted by the magistrate concerning the incident, the subject-matter of the charge was, that on the day in question there was a quarrel between the accused and the complainant. The magistrate would not make a finding on who brought this about, in view, as he said, “of their antecedent hostilities.” That at one point in the course of the quarrel, the complainant “grazed the mouth and nose of the accused with his (complainant’s) hand.” That both had been abusive to each other. That after his nose had been grazed, the accused being justifiably infuriated eventually rushed on the complainant and dealt the latter a blow amidst insults from him. The learned magistrate, however, took the view that this blow in the circumstances did not amount to criminal assault because section 31 of the Criminal Code, 1960 (Act 29), provided that:
“Force may be justified in the cases and manner, and subject to the conditions, hereinafter in this Chapter mentioned, on the ground of any of the following matters, namely-…
(f) necessity for prevention of or defence against crime;
It appears to us, as indeed it must have appeared to the revising judge, that putting an end to a verbal altercation by the use of force cannot by any stretch of the imagination be considered as one of the circumstances in which force may be justified on the ground of need to prevent crime. As the quarrel had not taken place in a public place or at a public meeting the offence of conduct conducive to a breach of the peace was hardly sustainable. In the absence of that we are at a loss to find what criminal offence the magistrate thought the appellant had a right through the justifiable use of force to prevent. Besides, where the person who seeks to justify the use of force to prevent the commission of a crime is himself as involved in the crime, if crime it be, as the other whom he seeks to stop, as appears to be the case here, he cannot be invested with the cloak of the innocent victim of a crime either actual or threatened which he is justified in terminating by the use of force. To do so would grant all of an aggressive nature that right to assault once they take care to enter into a preliminary quarrel with their chosen victim.
No doubt it was the clear misapplication of the law in this case which caused the learned judge to revise the magistrate’s order, set aside the acquittal and record a conviction against the appellant. As we said at the beginning the power under which Anterkyi J. acted was given by the Courts Act, 1971 (Act 372). The extent of these powers can be guaged from looking at some of the relevant provisions. By section 43 of the Act the district magistrate has the duty to forward to the judge of the High Court for the time being exercising jurisdiction over the district of that magistrate a complete list of all criminal cases decided by or brought before him during that month, setting out certain required particulars. Then subsections,(1) and (2) of section 44 provide as follows:
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“(1) Upon receipt of the list referred to in section 43 of this Act the Judge of the High Court may, if he thinks fit, call for a copy of the record of any cases included therein and, either without seeing the record or after seeing it, and either without hearing argument or after hearing argument, may-
(a) subject to any enactment fixing a minimum penalty vary the nature of a sentence or impose such other sentence warranted in law by the verdict which any District Court could have imposed (whether more or less severe) in substitution for the sentence imposed as the Judge thinks ought to have been imposed; or
(b) subject to any enactment requiring a particular order to be made, set aside an order or modify an order in such form as the Judge thinks fit; or
(c) set aside the conviction, in which case the person if under detention shall be forthwith released from detention, and any fine already paid shall be refunded to the person fined, and any security given shall be released; or
(d) set aside the acquittal, record a conviction and impose any sentence which the District Court could have imposed; or
(e) set aside the conviction or acquittal and order a new trial or a preliminary enquiry before the District Court which made the conviction or acquittal or before any other District Court; or
(f) order further evidence to be taken either generally or on some particular point by the District Court which passed sentence or which ordered the acquittal or by any other District Court, and order in the meantime any person who has been convicted and imprisoned to be released on bail or on his own recongnisance; and
(g) make such other order as the interests of justice may require, and give all necessary and consequential directions.
(2) Upon the receipt of the list referred to in section 43 of this Act, if the Judge of the High Court is of the view that a conviction for another offence ought to have been imposed or that the accused was guilty of the act charged, but was insane so as not to be responsible for his action at the time when he did the act, that Judge shall set aside the conviction and send back the case for rehearing by the appropriate District Court, subject to such directions as the Judge may think fit and he shall further inform the prosecution and the defence that he has so acted.”
These are indeed very wide powers. They practically empower the judge to do as he pleases with the decision of the district magistrate under him. And he may so act, according to section 44 (1), without seeing the record of the case and without hearing argument. The whole scheme seems arbitrary in tenor and inconsistent with notions of judicial impartiality which as a general rule import a public dispensation of justice after hearing both
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sides. The powers were introduced by the colonial administration which had recognised a primary need to supervise magistrates in their work and was in this respect prepared to sacrifice a principle to some extent in order to achieve an objective thought on the whole consistent with the demands of justice. Wide though the powers were during the colonial days, they were, as we shall see, nowhere near the powers which at present exist and which Anterkyi J. acted under. No doubt it was concern over the possible abuse of such extensive powers that led the Supreme Court to hold in Aidoo v. Commissioner of Police (No. 2) [1964] G.L.R. 344, that their exercise by the High Court judge under the equivalent provisions in the earlier Courts Act, 1960 (C.A. 9), was a judicial, and not an executive act and therefore was subject to appeal to the Supreme Court. The Aidoo v. Commissioner of police series of decisions, for there are three of them all reported in the 1964 volume of the Ghana Law Reports at pp. 267, 344 and 354, deal with a case which though not exactly the same in all respects, bears in some a striking resemblance to the present one before us. There as here the charge was one of assault. It is important to note that the appellant in the Aidoo case was convicted by the trial magistrate who imposed a fine of £G4 or one month’s imprisonment with hard labour. When the Chief Justice came to consider the matter, he thought the sentence inadequate and without calling upon the appellant added a twelve month sentence to that already imposed by the magistrate. There were questions in that case which do not arise here; questions such as the Chief Justice’s power to act as a revising judge when there was a High Court judge exercising supervisory jurisdiction over that magistrate and even if there was such a power in the Chief Justice whether it could be exercised when the High Court judge had already examined the magistrate’s list and declined to disturb it. The one important common feature of the two cases is that the revising judge imposed a penalty of twelve months’ imprisonment in the absence of the person affected without giving him an opportunity of being heard on the subject and even without his knowledge that proceedings which would circumscribe his liberty were being taken. We are reminded that faced with this situation Ollennu J.S.C. in Aidoo v. Commissioner of Police (No. 3) [1964] G.L.R. 354 at p. 339, S.C. stated it to be not only a rule of the common law but of our customary law as well, that no person shall be condemned without being given the opportunity of meeting the complaint against him. A proposition which he proceeded graphically to illustrate by sayings in the Akan, Ga and Ewe languages.
The Supreme Court seems to have adopted too wide a basis for the classification of the nature of the power reposed by the statutory provisions in the supervising judge when it said in the Aidoo (No. 2) case at p. 351 that “[w]here an enactment confers powers or duties upon an officer and the exercise of those powers or duties involves taking a decision, the exercise of those powers is judicial.” One can think of powers of decision exercised a countless number of times each day by officers of government which are in no way judicial in character. And from the sweeping nature of the powers given the supervising judge which he could exercise with or
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without seeing the record of the trial and with or without hearing argument the characterisation of those powers as judicial may well be questioned. After all a power is not necessarily judicial just because it is exercised by a judicial officer. But the court was certainly right in the anxiety it expressed over the arbitrary exercise of these particular powers. The enormousness of their very scope demands that they be exercised with caution and circumspection and without prejudice to parties who would be adversely affected thereby. A judicial officer charged with conducting his duties without regard to natural justice faces a heavy indictment. And his burden is not measurably lightened by him being able to point to a statute and saying that that enactment permits him to act in disregard of the tenets of natural justice. The basis of his office would otherwise crumble. There is no reason why a judge should adopt different standards towards a person brought to the bar of justice depending on whether he tries the case himself or he revises the order of a subordinate who had tried it. A judge who tries and convicts the accused would hear what the convicted person has to say in respect of sentence. Should he not give the same opportunity when acting as a revising judge contemplating the imposition of a fresh sentence or an increase in one already given?
In the case before us the accused suffered a total reversal of fortunes without an opportunity of being heard. At the conclusion of the trial he was acquitted. He was a free man. The next thing he knew, which was no less than 26 days after his acquittal by the magistrate, was that the judge had ordered that he should be arrested and made to serve a sentence of twelve months upon conviction on that same charge of assault. By contrast with the detailed explanation of the trial magistrate the reasoning for the judge’s decision was terse. It appears in the following portion of his order:
“having read the notes of evidence in the Record Book and also the judgment (in script) of the learned trial magistrate I find that an acquittal should not have been entered after the writing of this brilliant judgment, the judgment supporting the evidence that there was clearly an assault committed by the accused upon the complainant when the accused sent the complainant down to the ground by striking him twice at the back of his head from behind.”
Immediately thereafter the acquittal was set aside, a conviction against the accused was recorded and the sentence of twelve months’ imprisonment with hard labour was imposed. Why the judge thought that the magistrate was wrong in holding, in a judgment which the judge himself described as brilliant, that the force used by the appellant was justifiable under the Code was not even mentioned. It must be an assault of a most aggravated kind which would call for a penalty of twelve months’ imprisonment. How the assault in this particular case came to qualify for such a penalty is left to speculation. This is a matter of some importance seeing that the magistrate thought that the harm done was necessary and the senior state attorney in this court has said that at worst this was a case for reconciliation.
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It is essential that the courts do not encourage the belief that they subscribe to a system of justice behind closed doors administered in the absence of and without notice to the party adversely affected. It is equally important that such powers as are given judges to ensure that justice is done are not exercised in disregard of the rules of natural justice. We had before us a case in which the learned judge had performed his duty in apparent violation of an elementary rule of natural justice. We could not in the circumstances allow his decision to stand. It is for that reason that we allowed this appeal.
A much wider issue is raised by this appeal. It is the question whether the power under section 44 of the Courts Act, 1971 (Act 372), should be retained in its present form. Comparison with its equivalent in the earlier Courts Ordinance as amended through the years since enactment in 1876 and the Courts Act of 1960 shows that the first time that the power was extended to enable the revising judge to reverse an acquittal was in this 1971 Act. It was a fundamental departure. Before then, the revisionary powers of the judges though wide enough to include reversing of decisions of magistrates had been confined in this respect to setting aside convictions and substituting either an acquittal or the special verdict. Throughout the years the distinction drawn between the positions of the prosecution and the accused in criminal cases was preserved in this area in spite of the felt need for supervision generally of the magistrate’s exercise of his criminal jurisdiction. The only inroad on the preferred position of the accused or convicted person was made by the Courts (Amendment) Ordinance, 1956 (No. 34 of 1956), which in section 4 changed the power of the revising judge to “reduce or alter” the nature of a sentence to “vary” the nature of the sentence and added the power to “impose such other sentence warranted in law by the verdict which the magistrate could have imposed (whether more or less severe) in substitution for the sentence imposed as he shall think ought to have been imposed.” The convicted person now faced a possibility of an increase in sentence through the revisionary process. But the revised sentence was one which the trial magistrate himself could have imposed. It was under this power that the Aidoo cases mentioned earlier were considered. And it will be recalled that even in that situation where the prejudice suffered by the person charged with a crime was less serious than in this case, the court held that the rules of natural justice must be observed. Thus the matter stood until the Courts Act of 1971. And it is understandable that in our system of justice which upholds the principle that no one should be condemned without being given an opportunity of being heard, this should be so. For such summary powers as the revising judge possesses completely erode the principle if applied to the reversal of acquittals as the present section 44 does.
It is strange that this power should at this time in our history be given to the revising judge especially as by the same Courts Act of 1971 as full a right of appeal from the decision of the magistrate as the accused was given to the prosecution. One would have thought that at this stage of our development with an increasing number of our magistrates being
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drawn from the legal profession and with our ample rights of appeal in both parties the supervisory role of the judges in its present form would correspondingly be diminished. Formal modification of orders by judges to comply with governing enactments may be necessary. But if any powers of substance should be retained would it not be sufficient if they are limited to ordering a new trial or preliminary inquiry before the district court which dealt with the case or before some other district court, and to re-opening of the case before the district court with instructions ordering further evidence to be taken? And surely the judge’s power to revise without seeing the record of the magistrate or hearing argument must in our day be an anachronism. Paradoxically, the right to set aside an acquittal and substitute a conviction given by the 1971 Act to the revising judge might have developed out of the equality of right to appeal given to both prosecution and accused by the Act. If the prosecution can appeal to the same extent as the accused under the law so that not only convictions but acquittals as well may be reversed, then why should the revising judge not also have an equal power to reverse acquittals? Why should the reversals be restricted to convictions? So the argument must have run. However, to extend the judge’s power of revision to include reversing acquittals only because a similar uniformity and symmetry as is reflected in the grant of equal rights of appeal to the prosecution is desirable in the revising process is, in our opinion, to ignore the fundamental rules underlying the criminal process in this country. We would therefore humbly recommend to the attention of our legislators our view that with the present rights of appeal subsisting in both sides to a criminal case, subject to the limited control which we have indicated above which judges could have over magistrates, whatever grievances are felt by either party as a result of a magistrate’s decision could well and properly be catered for within the appeal system. The time is ripe for a reconsideration of the revisionary powers as a whole and of the particular power of reversal of an acquittal under which this case fell. Accordingly, we direct that copies of these reasons be forwarded to the Chief Justice and the Commissioner of Justice for their consideration.
DECISION
Appeal allowed.
K.T.
