MBRAH vs. JOHNSON [1973] 2 GLR 213

CASE REFERRED TO

Republic v. Chieftaincy Committee on Wiamoasehene Stool Affairs; Ex parte Oppong Kwame [1971] 1 G.L.R. 321.

NATURE OF PROCEEDINGS

APPLICATION by a complainant in a criminal prosecution by the Republic to have a case transferred from one district court to another. The facts are sufficiently stated in the ruling.

COUNSEL

Osei for the applicant-complainant.

G. K. Acquah for the accused-respondent.

Agudetse, Assistant State Attorney, for the Republic

JUDGMENT OF EDWARD WIREDU J.

This application is brought by a complainant in a criminal case pending before the Fosu District Court II praying for transfer of the said case to either the circuit or the district court grade I for trial and determination. The application according to learned counsel for the applicant is brought under sections 20, 100 and 101 of the Courts Act, 1971 (Act 372). The grounds for the application are set out in a six paragraph affidavit sworn to by the applicant which reads as follows:

“I, Madam Effua Mbrah of Ateiku in the Central Region of Ghana make oath and say as follows:

(1) That I am truly the deponent herein.

(2) That I reported a case of abduction of my daughter against the accused, Kwame Johnson of railway station, Assin Fosu about three months ago and the accused has been charged for abduction before the District Court Grade II Assin Fosu.

(3) That about a month ago my daughter Margaret Anima saw the accused enter the trial magistrate’s

house at about 8 o’clock in the evening and stayed in there for over 30 minutes.

(4) That when the accused came out of the trial magistrate’s house my daughter Margaret Anima confronted the accused and demanded to know what the accused went to do at the trial magistrate’s house but the accused could not give any reason.

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(5) That subsequent to this incident the accused has openly said to the hearing of one Theresa Nyarkoa and one Mohamed that he knew and was very certain that the trial magistrate would acquit him (the accused).

(6) That in view of the foregoing facts I am afraid that the magistrate is really interested in the case and as a matter of precaution and in the interest of justice I pray this honourable court not to allow the trial magistrate Mr. S. T. Dabra to continue trying the case but rather transfer it to either the circuit court or the Magistrate Court Grade I, Cape Coast.”

Copies of the application, were directed for service on the district magistrate before whom the case is pending, the accused and the state attorney in Cape Coast. I do not know the reason why a copy of the application was directed for service on the district magistrate personally, but I think it is a practice which should be avoided in future.

The application is being resisted by the accused whose counsel in an affidavit in opposition deposed as follows:

“ I George Kingsley Acquah of Messrs. Forson, Sarpong & Company a firm of solicitors at Cape Coast make oath and say as follows:

(1) That I am the deponent herein.

(2) That I am the counsel for the accused Kwame Johnson in the criminal case of the Republic versus Paul Kwame Johnson.

(3) That I have the authority and consent of the accused to swear to this affidavit on his behalf.

(4) That I have been served with the motion paper with its supporting affidavit for a transfer of this suit from Fosu to Cape Coast.

(5) That paragraphs (3), (4), (5) and (6) of the supporting affidavit are denied.

(6) That further the evidence as deposed to in the paragraphs are hearsay and cannot form the basis of any judicial decision, let alone the fact that this hearsay is false.

(7) That the conduct of this case is in the hands of the Republic and not the complainant, and therefore the complainant has no locus standi to make the motion.

(8) That the complainant has not got the consent of either the prosecuting officer nor the Attorney-General to make this motion.

(9) That if the complainant has any reasonable belief in her hearsay evidence the proper thing to do is to report to the prosecuting officer for investigation.

(10) Wherefore in the circumstances, I swear to this affidavit praying that the applicant’s motion be dismissed as frivolous, vexatious, misdirected and belated.”

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When the application came before me on 2 May 1973, I expressed some doubts as to the locus standi of the applicant especially as learned state attorney who appeared and represented the prosecution intimated his opposition to the application. I therefore on my own motion adjourned the case to enable counsel appearing in the case to consider that aspect of the matter.

When arguments commenced before me on 15 May 1973 Mr. Osei for the applicant referred to sections 100 and 101 of Act 372 and submitted that the operative words in these sections relevant to determine the locus of the applicant were the words “any person concerned” as contained in section 100. Learned counsel submitted that those words should be interpreted to connote any person interested or having an interest in the outcome of the case sought to be transferred other than the prosecution and the accused. Counsel submitted that interpreted in that way it became obvious that the present applicant as a complainant in the case sought to be transferred fell within the category of persons envisaged in the language of “any person concerned” as used in section 100 of Act 372. Counsel argued that having regard to the very nature of the offence with which the accused respondent had been charged and in respect of which he was standing trial, the applicant was the person whose interest in the prosecution of the case ws paramount and that interest was sufficient to vest in her a locus standi to present an application under sections 100 and 101. Counsel therefore argued that the application was properly brought.

Arguing on the merits of the application learned counsel for the applicant submitted that the matters deposed to in the supporting affidavit sufficiently established a strong case against a fair trial of the case in the court below. Finding himself on the oft-cited cardinal rule that not only should justice be done but it must appear to have been done, counsel submitted that the application should be granted and the venue for the trial of the case changed in terms as sought.

Replying on behalf of the accused respondent, Mr. Acquah submitted that in his view the applicant had no locus standi. Counsel argued that the prosecution in this case was in the hands of the Republic and not the complainant. He argued that whatever interest the complainant might have in the prosecution of the case was merged into that of the prosecution and could not be isolated. He therefore contended that since the application was brought without the consent of the Attorney-General or the prosecuting officer the application should not be entertained. Counsel submitted that if the applicant as a complainant was not satisfied with the way the prosecution was proceeding and wanted to seek a redress her proper place was to report the matter to the Attorney-General who would give further directives if satisfied with the applicant’s complaint. In the alternative argued counsel, the applicant could appeal to the Attorney-General to have the Republic’s involvement in the case withdrawn to enable her to pursue a private prosecution in which case she would be entitled to present an application. Learned counsel submitted that the

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operative words “any person concerned” in section 100 must be interpreted to be referable to the prosecution and the accused. On the merits of the application learned counsel submitted that the matters deposed to in the applicant’s affidavit were all hearsay and that the court should not take cognisance of them. Counsel further argued that the house which the accused was alleged to have entered was not exclusively being occupied by the said magistrate and that being the case strong and better facts were required to substantiate the allegation. Learned counsel also argued that in his view the appropriate step the applicant should have taken was to have sought for a redress under section 107 of Act 372 which permits the High Court to deal in a summary way with complaints against officers of the court. Counsel therefore contended that the present application was unmeritorious and should be dismissed. Finally counsel argued that section 20 of Act 372 could not be invoked for the purpose of the present application and submitted that section 20 should be confined to the nature of reliefs set out therein.

Mr. Agudetse learned state attorney on behalf of the prosecution associated himself with learned counsel for the applicant that the applicant in this case had a vested interest within the language of section 100 of Act 372 as to entitle her to present an application for transfer. He however contended that the facts on which the application was brought were not matters within the knowledge of the applicant and therefore being hearsay could not form the basis of any judicial decision.

Sections 100 and 101 (1) of Act 372 upon which the present application was brought read respectively as follows: [His lordship here read the provisions as set out in the headnote and continued:]

A careful examination of section 100 of Act 372 reveals that the section is restricted to cases pending before the High Court itself, but in view of the way section 101 (1) has been worded, I think the view of learned counsel for the applicant that an application to the High Court for the transfer of a case pending before a district court could properly be brought under that section is the correct view. In order to appreciate the full extent of the exercise of the High Court’s powers under that section, both sections 100 and 101 (1) must be read together. It follows in my ruling that sections 100 and 101 (1) have been properly invoked for the prosecution of the present application.

The question then arises as to what category of persons are entitled to present an application under these sections? Those persons obviously are “persons concerned” within the language of section 100 of Act 372. But who are those “persons?” For an answer we have to examine the various interpretations submitted by opposing counsel in this case and to find out which view is the correct one. I do not know whether I can justifiably disagree with their unanimous view that such persons must be those having a vested interest in the case sought to be transferred. No definition of the words have been given in the Act. The Concise Oxford Dictionary (5th ed.) defines the word “concerned” as follows: “relate to, affect, interest oneself.” I doubt however whether I share any of their views in categorising those persons interested as submitted by them.

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Learned counsel for the applicant restricted them to any person having an interest other than the accused and the prosecution. Learned counsel for the accused respondent restricted them to only the prosecution and the accused. Whilst the learned state attorney without committing himself did not give any exhaustive category but felt that a complainant in a criminal case fell within the “any person concerned” as used in section 100 of Act 372.

I have carefully considered the respective views of learned counsel, but I, intend to take the mean approach and will do so by adopting the following test to determine those who are entitled to bring applications under sections 100 and 101 (1) of Act 372, that is: Is the applicant’s interest so manifest as to vest him or her with a right of appeal should he or she be dissatisfied with the decision in the case? In other words “any person concerned” within the language of section 100 (1) of Act 372 must be a person whose interest is so manifest as to vest him with the right of appeal against an adverse decision in the case. I am of the view that this is the true intent of the section. Transfer of a suit involves a change of venue and in order to decide whether it is desirable to transfer, certain factors have got to be taken into consideration amongst which are:

(a) prejudice against fair trial,

(b) inconveniences to witnesses, and

(c) avoidance of undue delay and therefore avoidance of unreasonable expenses, etc.

The factors to be taken into consideration in deciding venue afford a useful guide in deciding the locus standi of an applicant. In a civil suit the obvious persons, and in fact the only persons who can legitimately ask for transfer are the parties to the suit. Any person who is not a party to a suit will not be permitted to interfere with the proceedings in respect of that suit unless he or she later applies to join and succeeds in joining the same. In criminal prosecutions by the Republic a complainant may have some interest, but he or she is principally and invariably merely a witness. She cannot decide in which court the prosecution of the case is to be conducted. Her interest in the fairness of the trial is submerged into the dominant interest of the Republic and in fact her witness allowance is paid out of public funds depending on the number of the attendances. His or her interest is not one which would entitle him or her to appeal against the decision of the court, if he or she feels aggrieved. The accused on the other hand is a principal party. With these factors as a guide, I am of the view that a complainant in a criminal case prosecuted in the name of the Republic is not “any person concerned” within the language of section 100 (1) of Act 372. In a civil suit however the definition is wider “any person concerned” within the language of section 100 includes any person who has manifestly demonstrated that decision in the case will affect the enjoyment of his or her legal right. This view obviously on the fact of it seems to be the same as that expressed by counsel for the accused but it goes more than

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that, for there are instances where persons not originally parties to suits are given the right to appeal or to intervene by other means such as the issuing of prerogative orders when they satisfy the above test: see Republic v. Chieftaincy Committee on Wiamoasehene Stool Affairs; Ex parte Oppong Kwame [1971] 1 G.L.R. 321.

In my ruling therefore the present applicant as a complainant in a criminal case being prosecuted by the Republic has no locus standi under section 101 (1) of Act 372. This finding alone concludes the case against her but there remain some other aspects of the application which deserve some consideration.

The first is whether section 20 of Act 372 empowers the High Court to order a transfer as contended by learned counsel for the applicant. I have no hesitation in giving a very big no as an answer to that question. I am of the view that the sort of supervisory jurisdiction conferred on the High Court as envisaged under section 20 of Act 372 does not include a power of transfer. Even though I may concede that the said section confers wide powers, I think they should be confined to circumstances (apart from those specified therein) where no other provision exists in the Act for redress. Sections 100 and 101 of Act 372 are specific provisions for dealing with transfers, I therefore share the view of learned counsel for the accused that section 20 cannot be invoked to secure a transfer of the nature as in the instant case.

The next issue is what are the merits of the present application? The ground alleged in the application is prejudice against fair trial based on hearsay matters. The deponent did not have personal knowledge of the matters contained in her affidavit. Under those circumstances I can do no more than echo the submissions of learned counsel for the accused and the learned state attorney that the matter being hearsay it cannot form the basis of any judicial decision.

Finally as to the contention of learned counsel for the accused that the applicant could have sought for redress under section 107 of Act 372 I hold the view that the officers contemplated under sections 106 and 107 (which should in my view be read together) do not include district magistrates and circuit judges over whom the High Court has no disciplinary powers. This is clear from the language of the two sections.

It follows from my observations above that the application fails and is accordingly dismissed with costs of ¢25 in favour of the accused.

DECISION

Application dismissed.

S.O.