COMMISSIONER OF POLICE v. AMEYAW
[HIGH COURT, KUMASI]
DATE: 17TH DECEMBER, 1962
COUNSEL
Owusu Yaw for Owusu for the appellant.
Boison for the respondent.
JUDGMENT OF APALOO J.
On the 28th October, 1960, an accident occurred on the Koforidua-Kumasi road involving lorry No.
AG 1022 driven by one Sydney Anhwere Dankwa and the appellant, who was then in charge of
[p.163] of [1962] 2 GLR 162
motor vehicle No. AE 4828. This accident resulted in injuries to many persons and seems to have
been fairly serious. The police claimed that the accident occurred as a result of the careless driving of
the appellant. Accordingly, he was charged with that offence and brought to trial before the district
court. The appellant was duly convicted of that offence.
During the trial of the case, the driver in charge of lorry No. AG 1022 did not give evidence. He said
he was unwell and sent a telegram to the police to that effect. It is probable that he also suffered
injuries in the accident. The police must have felt able to proceed with the case without him. The trial
proceeded without his evidence resulting, as I have said, in the conviction of the appellant. The
appellant appealed against his conviction to the circuit court which was, at the relevant period, the
competent court of appeal from the decision of the district magistrate. The appellant was represented
by counsel in the circuit court and on conclusion of argument, the learned circuit judge noted as
follows “From the record and argument heard on both sides, I find that the magistrate failed to insist
on hearing the evidence of Sydney Anhwere Dankwa, the principal witness in this case. The whole
case is a nullity. Case remitted to be tried by another magistrate.” Although he did not expressly say
so, the learned circuit judge obviously exercised his power under section 330 of the Criminal
Procedure Code, 1960.1(1) Section 330 provides as follows:
“The Circuit Court … may—(a) in an appeal from a conviction or acquittal—(i) reverse the finding and
sentence, and acquit or discharge or convict the accused, as the case may be, or order him to be re-tried
by a Court of competent jurisdiction, or commit him for trial.”
Although the appellant had the benefit of counsel, he did not appeal against this order. He could not
have been aggrieved by it then and may well have thought it was an opportunity to improve upon his
performance and secure an acquittal at the re-trial.
In obedience to the said order, Mr. K. E. Boison, then district magistrate, on the 16th August, 1962,
began the hearing de novo of this case which he concluded on the 25th September resulting in a
second conviction of the appellant. Again, at this second trial the appellant was represented by
counsel from beginning to end. The record shows that counsel made certain preliminary submissions
of law which were decided in his favour but he at no time complained against the order for re-trial or
sought to suggest that it prejudiced the appellant in any way.
In this appeal, no complaint was made against the judgment appealed from either on the merits or in
any way whatsoever. Counsel must have realised that an appeal against the judgment on the merits
would have very little prospect of success as there was more than ample evidence that the appellant
drove his vehicle negligently. The only ground on which leave to appeal was sought and granted and
which was more fully ventilated during the plenary hearing of the appeal was, “That the order for re-trial was a nullity and therefore the re-trial itself was a nullity.” Although it was conceded that the
power to order a re-trial exists, it was submitted for the appellant that it was not open to an appeal
court to exercise it, unless the trial court had no jurisdiction to hear the case. It was said that such
want of jurisdiction must be manifest on the face
[p.164] of [1962] 2 GLR 162
of the record. Accordingly, and consistently with this submission, it was said that the magistrate had
jurisdiction to try the case originally and that the failure to call a witness did not deprive him of
jurisdiction and that the learned circuit judge fell into error in holding that the proceedings were a
nullity because a witness had not been called to give evidence.
In so far as counsel for the appellant contends that the learned circuit judge erred in holding the
proceedings in the first trial to be a nullity because a witness was not called for the prosecution, I am
with him, but we part company in so far as he seeks to contend that the circuit judge has no
jurisdiction to make an order for re-trial. It seems to me that the appellant is perfectly entitled to
contend that the learned circuit judge exercised his undoubted power to order a re-trial for the wrong
reason but that is a very different thing from saying he had no jurisdiction at all to make the order. I
think the authorities distinguish cases in which there is a total want of jurisdiction in which
proceedings are void ab initio and cases where there has been a wrong exercise of jurisdiction which
is merely appealable. In this case, I am clearly of opinion that the learned circuit judge exercised his
discretion of ordering a re-trial for the wrong reason and had this been an appeal from the order for
re-trial, there can be little doubt that the appellant would have had a walk-over. I cannot accede to the
submission that the order can only be made where the trial court had no jurisdiction. There is nothing
in section 330 to lend the slightest colour to that view and it is not borne out by authority. Indeed the
cases of Eronini v. The Queen,2(2) R. v. Zenvinula,3(3) R. v. Onuoha,4(4) Fox v. Commissioner of
Police5(5) and Motayo v. Commissioner of Police6(6) show that the discretionary power of re-trial
can be exercised for irregularities committed during the trial.
Counsel for the appellant contends in the alternative that if contrary to his submission, jurisdiction to
order a re-trial exists, its exercise on the peculiar facts of this case contravened fundamental principles
of justice as it enabled the prosecution to repair, so to speak, the holes in its case to the prejudice of
the accused. He relies strongly on the case of R. v. Eka.7(7) That case decides, if I hit the ratio
correctly, that the order for re-trial should not be made if its effect is to give the prosecution a second
attempt to prove its case. Had the appellant been acquitted in the first trial or had the non-calling of
the witness resulted in the prosecution being unable to prove all the ingredients of the offence of
careless driving, this argument would have weighed with me. But I cannot feel the force of it in the
particular circumstances of this case. The prosecution proved its case and secured a conviction before
the district court. An eye-witness in the person of Constable Daker gave evidence. If the trial
magistrate believed him, as it was obvious he did, it was open to him to find the offence proved and
he so held. I am aware of no rule of law which states that in a careless driving case, the charge cannot
be established on the evidence of one credible witness. It is certainly not one of the cases in which
corroboration is required as a matter of law. Indeed the case of Commissioner of Police v.
Kwashie8(8) decides that in a criminal case, the magistrate can properly convict on the evidence of a
single witness.
[p.165] of [1962] 2 GLR 162
Accordingly, although the circuit judge erred in this case in ordering a new trial, he erred in favour of
the appellant as his order obliged the prosecution to prove its case afresh and thus gave the appellant
another opportunity of defeating the prosecution’s case. I feel no doubt whatsoever that it was in view
of the prospect of an acquittal at the second hearing that the appellant did not appeal against the order
for re-trial. He had another bite at the cherry and as he again did not profit by it he now complains that
the order for re-trial was unjust to him. In my opinion, the contrary is the case.
In making the order for the new trial, the learned circuit judge did not set aside the conviction in the
first case. He must, however, be deemed to have done so by necessary implication since the
conviction could not have stood contemporaneously with an order for new trial. In Commissioner of
Police v Ayiku9(9) the West African Court of Appeal, affirming an order for fresh trial, held that the
finding and sentence should be reversed before a re-trial is ordered. Counsel for the appellant submits
that if he should be successful in his argument, the second trial should be declared a nullity and that
the conviction in the first trial be quashed. In view of the reasons which I have endeavoured to state, I
can accede to neither request.
On the contrary, I hold that the order for re-trial was not a nullity and that the fresh proceedings
founded upon it were regular, resulting in the valid conviction of the accused. Accordingly, the appeal
fails and is dismissed.
DECISION
Appeal dismissed.
