HIGH COURT, KOFORIDUA
DATE: 28 MAY 1970
QUASHIE-SAM J.
NATURE OF PROCEEDINGS
APPEAL against conviction for stealing entered by the District Court, Grade II, Nkawkaw. The facts are fully set out in the judgment of Quashie-Sam J.
COUNSEL
Darko for the appellant.
Isaac Odoi, State Attorney, for the respondent.
JUDGMENT OF QUASHIE-SAM J
On 12 February 1971 I allowed the appeal against the conviction of the appellant by the District Court Grade II, Nkawkaw, on a charge of stealing contrary to section 124 of the Criminal Code, 1960 (Act 29). Originally the appellant faced two other charges of undermining the power of a chief, contrary to section 3 (1) (b) of the Chieftaincy Act, 1961 (Act 81), and offensive conduct conducive to breach of the peace, contrary to section 207 of Act 29.
At the close of the prosecution’s case, the appellant was acquitted and discharged on the two other charges, and he was called upon to enter upon his defence in respect of the first charge, which he did and he gave evidence and called witnesses. He was convicted on the charge of stealing and sentenced to six months’ imprisonment with hard labour. It is from this conviction that he has appealed.
The stealing charge arose from the destoolment of the accused as the odikro or chief of Awenade stool. According to the evidence of the second prosecution witness, the accused was destooled by the Okyeman on 5 December 1969 and was ordered to release all stool properties; the record of proceedings shows clearly that one of the properties involved was a cocoa farm known as Subresu which the complainants in the stealing charge claim to be Awenade stool property but which claim is disputed by the appellant. With this background, the appellant who was already in possession harvested six loads of 10 lb. weight of cocoa from the said cocoa farm and this is the subject-matter of the stealing charge.
Counsel for the appellant filed two grounds of appeal in addition to the five original grounds filed by him. Of the total grounds of appeal, the most effective are in my opinion the fifth of the original grounds and the two additional grounds of appeal. These are, in their order of filing:
“(a) It was wrong for the trial magistrate to have considered this case and accused’s claim of right as not falling within the purview of section 180 of Act 30/1960;
(b) That the conviction for stealing was wrong since no dishonest appropriation was established on the evidence;
[p.78] of [1971] 2 GLR 76
(c) It was wrong and woefully against the ends of justice for the trial magistrate to have restrained the accused from entering the farm and to have placed the farm under the caretakership of opanin Kofi
Aniagyei, regent to the rival but hitherto sister stool to the accused’s stool when the accused was also claiming ownership of the farm.”
The last ground (c) above arises from the circumstances that at the close of the case for the prosecution, when the trial magistrate called upon the appellant to open his defence on an adjourned date, he proceeded to order, further, that, “accused is not to pluck or do anything to the farm. Opanin Kofi Aniagyei, regent, is to act as caretaker of the farm.” At the hearing counsel for the respondent did not support the conviction nor did he oppose the appeal by virtue of paragraph 66 of the Courts Decree, 1966 (N.L.C.D. 84), and I think he was right in not supporting the conviction.
It is quite clear from the evidence of the prosecution witnesses themselves, and indeed from the whole of the case before the court, that by virtue of section 180 of the Criminal Procedure Code, 1960 (Act 30), the trial magistrate ought to have discharged the appellant, without speculating as he did. That section provides as follows: [His lordship quoted the section as set out in the headnote and continued:] This ousts the jurisdiction of the district court if a bona fide question of title to land is apparent in the proceedings; and this was precisely the circumstance in this case, wherefore the ground of appeal that there was no dishonest appropriation in the conduct of the appellant. Upon this analysis alone the conviction cannot be sustained.
Besides section 180 of Act 30, paragraph 66 of N.L.C.D. 84 also provides: [His lordship quoted the paragraph as set out in the headnote and continued:] By this provision of the Decree, the civil jurisdiction of the High Court, or the circuit court or the district court, is ousted whether as a court of first instance or an appellate court in any cause or matter as mentioned therein. It is quite clear on the record that the whole of these criminal proceedings were founded on the recovery of an alleged stool property from the appellant as a destooled chief. In my opinion I do not think that a court ought to circumvent the provisions of the Decree and arrogate to itself jurisdiction which it has not, and from which it is clearly prohibited, by assuming jurisdiction under the colour and guise of criminal proceedings. This I think is precisely what the trial court did, the impropriety of which was carried into the order of injunction against the appellant who was in possession of the cocoa farm and was disputing ownership with the complainants. Indeed, it is this same circumvention by which the trial court purported to order the regent, an opponent of the appellant, to be caretaker of the farm in dispute. The trial court ought to have discerned or perceived the mischief into which it was being led by such a civil matter, touching the recovery of stool property, being instituted before it under the cloak of criminal proceedings. Upon this ground also the conviction cannot stand.
[p.79] of [1971] 2 GLR 76
For these reasons I allowed the appeal and it follows that all orders made concerning the cocoa farm at the trial are of no effect and are declared void.
DECISION
Appeal allowed.
