HIGH COURT, ACCRA
DATE: 22 FEBRUARY 1967
BEFORE: ANTERKYI J.
CASES REFERRED TO
(1) R. v. Akpan (1947) 12 W.A C.A. 224.
(2) Byrne v. Kinematograph Renters Society Ltd. [1958] 1 W.L.R. 762; 102 S.J. 509; [1958] 2 All
E.R. 579
(3) Russell v. Norfolk (Duke) 65 T.L.R. 225; 93 S.J. 132; [1949] 1 All E.R. 109, C.A.
(4) R. v. Clewer (1953).37 Cr.App.R. 37, C.C.A.
NATURE OF PROCEEDINGS
APPEAL from a decision of a district court convicting and sentencing the appellant on charges of extortion and obstructing a public officer. The facts are fully stated in the judgment.
COUNSEL
Dr. J. W. de Graft Johnson for the appellant.
Odoi. Assistant State Attorney, for the State.
JUDGMENT OF ANTERKYI J.
The appellant was convicted on charges of (1) extortion, contrary to section 239 (1) of the Criminal Code, 1960 (Act 29), and(2) obstructing a public officer, contrary to section 205 (a.) of the Criminal Code, 1960 (Act 29). According to the story of the prosecution, the first prosecution witness (Maria Lagos), a petty trader living at Accra, was selling king size cigarettes “at the Beach Avenue and Knutsford” at about 10.30 a.m. on 1 June 1965 when the accused, an escort police constable, came and held her by the hand and challenged her to the effect that the cigarettes she was selling were contraband goods. When she denied them to be so, and the accused had put her under arrest, she started begging him. She followed him into a store, in which there was the fourth prosecution witness. The accused eventually made a demand from her for an amount of £G5 to enable him to drop the matter. As the first prosecution witness had no money on her, she went out and sought aid from the second prosecution witness who could only give her one pound in two ten-shilling currency notes.
The first prosecution witness brought these notes to the accused and he received them, wrapping them with a paper. While the first prosecution witness and the accused were leaving the spot, the third prosecution witness, Haman Daramani, a detective sergeant, who had observed the proceedings, called the accused and told him to surrender the money he had in his left hand. The accused looked at the sergeant and took to his heels, but the sergeant, the third prosecution witness, succeeded in arresting him a few yards away. During a struggle which ensued the accused threw into a gutter the currency notes wrapped with the paper. The fifth prosecution witness (Tairu Zabrama) who happened to be at the spot, fetched the money from the gutter at the request of the third prosecution witness, and, as he
[p.69] of [1967] GLR 67
was handing the wrapped notes to the sergeant, the accused grabbed them, put the notes into his mouth and chewed and swallowed them, and dropped the wrapper. The accused and the prosecution witnesses were taken to the police station where he was subsequently charged with the above offences and brought before the court on 18 June 1965. The accused first appeared before the court on 18 June 1965. When hepleaded not guilty to each of the charges he was remanded in custody, the case being adjourned to 25 June 1965. On 25 June 1965, according to the record, the same magistrate sat twice on this case; the notes of the first sitting show: “Adjourned to 2 July 1965 for hearing.” Those of the second sitting show: “Adjourned to 9 July 1965.” As the accused was in custody an adjournment from 25 June 1965 to 9 July 1965 covers a period of fourteen days, and thus sins against sections 169 (2) of the Criminal Procedure Code, 1960 (Act 30), which states: “The adjournment shall not be for more than fifteen clear days, or if the accused person has been committed to prison, for more than seven clear days, the day following that on which the adjournment is made being counted as the first day.” The proceedings of the first sitting and those of the second sitting, and the fact that the same district magistrate sat twice on the very case on the very day without any reasons being given for the enlargement of the period legally necessary for the accused being kept in custody, are all matters which must be taken into consideration in the hearing of this appeal. On 9 July 1965, when the accused appeared before the same district magistrate, he was represented by counsel, Mr. Ofei, and the hearing started with the evidence of the first prosecution witness. After he had been cross-examined, the case was adjourned to 15 July 1965. On 15 July 1965 he appeared before the same district magistrate. No evidence was heard. The case was thence adjourned to 17 July 1965. It appears that there was no court sitting on 17 July 1965, but on 24 July 1965 the accused appeared before a different magistrate who admitted him to bail in the sum of £G200 and “two sureties to be justified,” and the case was adjourned to 5 August 1965, and thence to 19 August 1965, and subsequently to 2 September 1965, by this magistrate when he appeared before him. On 2 September 1965 the accused appeared on this bail before the magistrate who had previously remanded him in custody, and had taken the evidence of the first prosecution witness subsequently, and he adjourned the case to 16 September 1965, with the accused still on this bail granted by the other magistrate. On 16 September 1965, the accused appeared before this magistrate, and the prosecution’s case continued with the evidence of the second, third, fourth, and fifth prosecution
[p.70] of [1967] GLR 67
witnesses. During this part of the proceedings the accused was not represented by counsel. After the cross-examination of the fifth prosecution witness by the accused, there appears on the record the following notes: “Accused remanded in custody. Adjourned to 23 September 1965.” It must be recalled that this trial district magistrate, at the first appearance of the accused before him, had remanded him in custody, and on one occasion thereafter he had unlawfully done so for fourteen days at one stretch until a different trial district magistrate admitted the accused to bail on 24 July 1965, and that, thereafter, the accused had been re-appearing before the court in obedience to the bail up to the end of the proceedings on 16 September 1965. On 23 September 1965 the accused was still unrepresented by counsel, and the sixth prosecution witness gave evidence to close the case for the prosecution. The trial district magistrate made no ruling as to whether or not a sufficient case had been made out by the prosecution. On the record appears the following note: “Case for prosecution closed and accused called upon.” And without applying the mandatory provisions under section 174 of Act 30, the trial magistrate called upon the accused. The accused gave evidence on oath and was cross-examined. After this the record shows the following note: “Accused calls three witnesses not in court but these have not been subpoenaed and so accused closes his case.” This is preposterous. The accused, in those circumstances, could not reasonably be thought to have said that he was closing his case because those witnesses who were absent had not been subpoenaed by him. By having him remanded in custody without reason on 16 September 1965, after he had been granted bail on 5 August 1965 when he appeared before a different magistrate and had been re-appearing before the court in obedience to that bail, the trial magistrate did unjustifiably prevent him from notifying his witnesses to attend the court. Besides, there is no rule of law to the effect that anaccused person can defend himself by the evidence of only witnesses he has brought before the court on subpoena. The trial district magistrate should have adjourned the case to give the accused an opportunity of producing his witnesses and thereby put his entire case before the court. The case for the defence in a criminal prosecution is always the sum total of the evidence of the accused together with that of each witness he calls where he has any. Until he closes his case, the sufficient case apparently made by the prosecution must not be taken as the truth, for he can only be convicted upon that sufficient case if he declines to offer any evidence.
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Besides, when, at that juncture, it was found that the three witnesses called by him were absent from the court, the trial magistrate should have adverted his mind to the procedure by which he himself could have made them available for him; a fortiori, when the accused was at that time in custody, and when it was the first time he had intimated to the court that he had witnesses. Section 174 (2) of the Criminal Procedure Code, 1960 (Act 30), states: “174. (2) If the accused states that he has witnesses to call but that they are not present in Court, and the Court is satisfied that the absence of such witnesses is not due to any fault or neglect of the accused, and that there is a likelihood that they could, if present, give material evidence on behalf of the accused, the Court may adjourn the trial and issue process, or take other steps, to compel the attendance of such witnesses.”
By section 275 (2) of Act 30, “275. (2) No accused person shall be entitled to any adjournment to secure the attendance of any witness unless he shows that he could not by reasonable diligence have taken earlier steps to obtain the presence of the witness.”
Now, in his evidence-in-chief the accused had stated: “I deny all the charges made against me. On 1 June I was walking to the U.T.C. when someone came and held the back of my pair of trousers and told me that I should lead him to the police station. I asked him why and he said unless we reached the station. I suspected him. That man was the third prosecution witness. At the C.I.D. the third prosecution witness reported that I had collected one pound in two ten shilling notes, but that I had chewed and swallowed the money. Later the third prosecution witness took me to the Central Police Station where there were two Lagosian women. The first prosecution witness and another. The first prosecution witness denied having given me any money. From here we went to Regional Headquarters and the sixth prosecution witness conducted investigations in the matter.”
In cross-examination he had said:
“Before this case I did not know the first prosecution witness but I know the third prosecution witness. I did not know the fourth prosecution witness. These witnesses have borne evidence against me because they are friends to the third prosecution witness who wants to imprison me because he had wanted to take away from me my girl Esi Donkor five months ago.”[p.72] of [1967] GLR 67
The first prosecution witness, the woman alleged to have given the two ten-shilling currency notes to the accused, had said in cross-examination; “Yes at the police station I made a statement. I made two statements. The first statement was on the same day and the second statement was on the second day.”
It was clear from these facts in evidence then before the court that the accused was contending that:
(1) on the material day the first prosecution witness, in her statement to the police, denied having given any money to him;
(2) as the first prosecution witness admitted having made a second statement the next day, that statement was the basis of the prosecution and that she and the other witnesses had been suborned by the third prosecution witness who had arrested him; and
(3) the third prosecution witness had had a clash with him over a girl called Esi Donkor.
This contention was an important issue which, if resolved in favour of the accused, probably could reasonably have entitled him to an acquittal. And therefore, this contention afforded the more reason why, when, after giving his own evidence, the accused, who had been in custody before then, did tell the court that he had three witnesses, the trial magistrate should have adjourned the case, because, in the circumstances, he was under a duty under section 174 (2) of Act 30 to “issue process, or take other steps, to compel the attendance of such witnesses.” The trial magistrate should not, inferentially, and could not legally, have assumed that those witnesses owing to the evidence adduced by the prosecution, might not give any material evidence on behalf of the accused, and, therefore, should not have closed the case for the defence at that juncture. In R. v. Akpan (1947) 12 W.A.C.A. 224 at pp. 225-226 at the trial court the first appellant, represented then by counsel, had, as he had done during the preliminary inquiry, expressed his desire, when giving evidence, to call a witness to support his defence. Counsel closed the case without calling any witnesses. Verity C.J. in his judgment stated at pp. 225-226: “The learned trial Judge refers at length to this aspect of the trial and after rehearsing previous personal experience in regard to the `utterly worthless’ evidence of `most’ witnesses called by accused persons, came to the conclusion that the witnesses in this case were not called by Counsel because they probably had nothing relevant to say.”
[p.73] of [1967] GLR 67
In the case of Shorunke v. The King ([1946] A.C. 316; 62 T.L.R. 505), their Lordships expressed the view that it is not within the province of the trial Judge in determining whether or not he should allow witnesses to be summoned on behalf of the accused, to take into consideration the probability of the witness being able to give material evidence, though their Lordships added that `in any case the Court can always protect itself by issuing process, but if convinced that the lateness of the application is not due to mistake or justified reason it can refuse to adjourn the trial . . .’ In the present case the accused desired to call witnesses. The nature of the defence was such that had he been allowed to do so there is a possibility that their testimony would have supported his own, and it is not possible for us to say what effect this might have had upon the mind of the trial Judge. It was not open to the learned Judge to presume from the failure of Counsel to call the witnesses that their evidence would have been unfavourable to the accused, for it cannot be said, in view of the accused’s own request, that the witnesses were being withheld by him within the meaning of section 148 (b) of the Evidence Ordinance. Had application been made, as it should have been made, for these witnesses to be summoned and for an adjournment of the trial, if necessary, to secure their attendance, it would then have been for the trial Judge to exercise the discretion indicated by their Lordships in Shorunke v. The King as to whether, in the circumstances, such an adjournment should have been granted. In the present case, in view of the fact that the first appellant made mention of these witnesses at the preliminary enquiry and that he was not represented by Counsel until the trial, it appears to us that the trial Judge would have granted the adjournment, as he himself indicates in the course of his judgement.
In these circumstances it is clear that the defence set up by the first appellant was not adequately investigated and the conviction must be quashed.” Quite apart from these guiding considerations, the circumstances in which the trial of this case wasconducted call for scrutiny in so far as the administration of justice is concerned.
In Byrne v. Kinematograph Renters Society Ltd. [1958] 2 All E.R. 579 at p. 599 Harman J., after quoting the statement of Tucker L.J. in Russell v. Norfolk (Duke) [1949] 1 All E.R. 109 at p. 118, C.A. art of which runs thus:
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“There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used . . .”stated: “What, then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and, thirdly, of course, that the tribunal should act in good faith.”
In the case in hand, what was the essence of the conduct of the trial district magistrate in remanding the accused in custody again, when he had twice appeared before him on bail -bail to which he had been admitted by a different magistrate after the trial magistrate himself had before then remanded the accused in custody? What was the purpose of his not acting in compliance with the requirements of the relevant section -section 174 (2) of Act 30 – when he, the trial magistrate had, remanding the accused in custody again on no apparent cause, disabled him from making available his witnesses? Why had the trial magistrate on 25 June 1965 sat twice on this case, and on each occasion, merely adjourned it? Why, with the knowledge that the accused was in custody, after adjourning the case for a week in the first of those two sittings on that day, did the trial magistrate, on the second occasion that very day, in adjourning the case again, enlarge the period to fourteen days in contravention of section 169 (2) of Act 30? Nothing can be inferred from these facts but that the trial magistrate was not in the circumstances acting in good faith, and that, therefore, there was a palpable disregard of the legal right of the accused of presenting the whole of his case before the court. In R. v. Clewer.(1953) 37 Cr.App.R. 37 at p. 40, C.C.A. it is stated: “. . . the first and most important thing for the administration of the criminal law is that it should appear that the prisoner is having a fair trial, and that he should not be left with any sense of injustice on the ground that his case has not been fairly put before the jury.” It was contended forcefully by learned counsel for the state that it was open to the accused, while in custody at the prisons, to have
[p.75] of [1967] GLR 67
notified those witnesses through the prison authorities to appear before the court to testify on his behalf. I tremble to hear such an argument advanced: I know of no legal machinery for such a course save as provided by section 174 (2) of Act 30.
With equal force it was also contended by him that the evidence on the record points unmistakably to the guilt of the accused in respect of each of the offences with which he stood charged, and that, in that wise, the conviction on each was legally unimpeachable, having regard to section 406 of Act 30. I cannot unequivocally accept this contention in a case like this-it is a case in which, according to the record, from the very onset to the end, the axe was laid into the roots of the very foundations of justice. I would unhesitatingly and legally have upheld this contention, if, when the accused’s witnesses for the first time were not present in court, he had been released on bail to enable him to make them available on anadjourned date and he had failed to do so on about two subsequent occasions. The record discloses that the accused pleaded with the court that two other offences pending against him should be taken into consideration in awarding punishment. Before the trial court can act in that way, it should satisfy itself that those other offences are, as they should be, of the same character as that of either offence before the court. The record does not disclose what those other offences were. A sentence of twelve month’s imprisonment with hard labour was imposed en bloc. It is unfortunate that the accused has already served the whole of this term. In the result I hereby allow the appeal, quash the conviction and sentence, and acquit and discharge him on each charge. Restitution order in favour of the appellant with regard to exhibits A, B, and C. Court below to carry out.
DECISION
Appeal allowed.
S.O.
