HIGH COURT, HO
Date: 9 NOVEMBER 1973
ANDOH J
CASES REFERRED TO
(1) Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547; 72 L.J.K.B. 271; 67 J.P. 397; 51 W.R. 337; 14 T.L.R. 266; 47 S.J. 316; 1 L.G.R. 369, C.A.
(2) Gilbert v. Endean (1878) 9 Ch.D. 259; 39 L.T. 404; 27 W.R. 252, C.A.
NATURE OF PROCEEDINGS
RULING on jurisdiction in an appeal from an order of the trial magistrate overruling a submission of no case. The facts are sufficiently set out in the ruling.
COUNSEL
Dr. A. K. P. Kludze for the appellant.
JUDGMENT OF ANDOH J
The appellant, a clerical officer, attached to the District Administrative Office, Kpandu, was arraigned before a district magistrate at Hohoe, on 20 September 1972 on charges of five counts of extortion contrary to section 239 (1) of the Criminal Code, 1960 (Act 29). He pleaded not guilty to each of the five counts. At the close of the prosecution’s case, learned counsel for the appellant, Dr. Kludze, made a submission of no case. The learned district magistrate considered the submission at great length and gave his ruling on it. It is sufficient to say that the learned magistrate was of the view that the prosecution had adduced a sufficient and a prima facie case against the accused. Consequently, the learned district magistrate called upon the appellant to enter into his defence after rejecting the submission of no case. The appellant, aggrieved by and dissatisfied with the said ruling, now appeals to this court. In this ruling, I do not propose to deal with the substance of the submissions made by learned counsel in the court below and in this court. I do not deem it necessary either at this stage to review the evidence adduced before the learned trial magistrate and to decide whether the rejection of the submission by the magistrate was well or ill-founded according to law.
The only point I would take at this stage myself is one of technicality and it is this: Was the order of the district magistrate on the submission of no case an interlocutory order or a final order? I do not think that in the absence of a final pronouncement of “guilty” or “not guilty” on the counts charged, it can seriously be disputed that the order is an interlocutory order and not a final order, decision or judgment.
Be that as it may, the true test whether a court’s decision is interlocutory or final is set out by Lord Alverstone C.J. in Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547, C.A. at pp. 548-549 where he said:
“It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”
[p.55] of [1974] 1 GLR 53
In Gilbert v. Endean (1878) 9 Ch.D. 259, C.A. at pp. 268-269 Cotton L.J. also held:
“[T]hose applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purpose of keeping things in statu quo till the rights can be decided, or for purpose of obtaining some direction of the Court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the Court ultimately to decide upon the rights of the parties.”
Assuming that I am right in the view I hold, being supported by the above precedents, that the order of the learned district magistrate rejecting counsel’s submission of no case was an interlocutory order, then I am afraid this appeal cannot be said to be properly before the court. I cannot say anything further than to refer to the provisions of section 19 (4) of the Courts Act, 1971 (Act 372). Subsection (4) of section 19 reads: “A person aggrieved by any interlocutory order or decision made or given by a District Court may appeal against it to the High Court with the leave of the District Court or of the High Court and the High Court shall have jurisdiction to hear and determine any such appeal.”
(The emphasis is mine.) The meaning of this subsection (4) is clear and unambiguous in terms. No special or any leave was sought from the court below and none was sought in the appellate court. In the result, since the appellant has not complied with subsection (4) of section 19 of Act 372, I consider that the appeal is not properly before this court. In other words the High Court is not properly seised with jurisdiction to entertain it.
Accordingly, the appeal is struck out for want of jurisdiction. The accused is therefore to go back to stand his trial before the learned district magistrate. Of course, he can refuse to participate in the trial in which case conviction may be automatic. He may give a statement from the dock, such a statement would be entitled to proper judicial consideration as if it had been given on oath. He can also give evidence on oath if he so desires, subject of course to cross-examination by the prosecution and the court if there is the need. It is rather unfortunate that this case has been protracted by the omission or commission of learned counsel by the stand taken. The court cannot be labelled with the inscription “justice delayed is justice denied.” The delay in this case rests squarely on the appellant and no other person can share the blame with him. He has the three courses I have set out above open to him to avail himself of when he appears before the learned district magistrate.
The case is therefore adjourned to 22 November 1973 before his worship D. K. Okyere, Esquire, at Kadjebi. Dr. Kludze is to be informed
[p.56] of [1974] 1 GLR 53
of this ruling and the next adjourned date to enable him to appear for the appellant.
DECISION
Appeal dismissed.
T.G.K.
