HIGH COURT, SUNYANI
Date: 31 OCTOBER 1973
OSEI-HWERE J
CASES REFERRED TO
(1) Amponsah v. Minister of Defence [1960] G.L.R. 140, C.A.
(2) R. v. Cridland (1857) 7 E. & B. 853; 27 L.J.M.C. 28; 29 L.T. (o.s.) 210; 3 Jur. (N.S.) 1213; 5 W.R. 679; 21 J.P. 404; 119 E.R. 1463.
(3) White v. Fox (1880) 49 L.J.M.C. 60; 44 J.P. 618.
(4) Lucan v. Barrett (1915) 84 L.J.K.B. 2130; 113 L.T. 737; 97 J.P. 463; 31 T.L.R. 508; 13 L.G.R. 1361; 25 Cox C.C. 103.
(5) R. v. Inhabitants of Odell (1870) 21 L.T. 556.
(6) R. v. Ogden; Ex parte Long Ashton Rural District Council [1963] 1 W.L.R. 274; [1963] 1 All E.R. 574; 61 L.G.R. 253; 127 J.P. 206.
(7) Legg v. Pardoe (1860) 9 C.B. (N.S.) 289; 30 L.J.M.C. 108; 3 L.T. 371; 25 J.P. 39; 7 Jur. (N.S.) 499; 9 W.R. 234; 142 E.R. 113.
(8) Cornwell v. Sanders (1862) 3 B. & S. 206; 1 New. Rep. 57; 32 L.J.M.C. 6; 7 L.T. 356; 27 J.P. 148; 9 Jur. (N.S.) 540; 11 W.R. 87.
(9) Burton v. Hudson [1909] 2 K.B. 564; 78 L.J.K.B. 905; 101 L.T. 233; 73 J.P. 401; 25 T.L.R. 641.
(10) Ex parte Smith (1890) 7 T.L.R. 42.
(11) R. v. Dobson (1839) 9 Ad. & El. 704; 5 J.P. 404; 112 E.R. 1379.
NATURE OF PROCEEDINGS
APPLICATION by the accused persons for an order of prohibition to stop the district court from hearing and determining a charge of stealing
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cocoa beans on the ground that title to the farm from which the beans were plucked is in dispute.
COUNSEL
Dr. Ohene Djan for the applicants.
C. S. K. Agbenu, Senior State Attorney, for the Republic.
JUDGMENT OF OSEI-HWERE J
This is an application for an order of prohibition to be directed against the District Magistrate Grade II, Duayaw Nkwanta, to forbid him from hearing and determining a criminal charge of stealing against the accused-applicants (hereinafter referred to as the applicants) now pending before the District Court Grade II, Duayaw Nkwanta. The affidavit and the statement in support of the notice disclose that some time in May 1972, one Kwasi Broni of Yamfo who claims to be a member of the family of one Kwadwo Nkrumah, deceased, issued a writ of summons in the High Court, Sunyani, against the first applicant and another person claiming that the first applicant is not the rightful person to inherit Kwadwo Nkrumah and he also claimed a declaration of title to certain landed properties and cocoa farms alleged to be the properties of the deceased. After pleadings in the suit had closed Kwasi Broni applied for and was granted an order of interim injunction over the cocoa farms in dispute. The order for interim injunction was granted by Anterkyi J. who further ordered that an appeal against that interlocutory order should not operate as a stay of execution. The first applicant appealed against both orders. At the time of the said order the first applicant was already in possession of one of the farms in dispute and he had put the second accused-applicant (hereinafter referred to as the second applicant) in charge of that farm.
After the interim injunction had been placed on the farms the applicants entered the said farms in their possession and plucked some cocoa beans. They were arrested by the Yamfo police who, after their investigation, set them free and returned the cocoa beans to them. Some three months after the release they were re-arrested and arraigned before the Duayaw Nkwanta Grade II Court on a charge of stealing. Counsel for the applicants drew the court’s attention to section 180 of the Criminal Procedure Code, 1960 (Act 30), and said that since the charge involved landed property, the title to which is in dispute, the district court had no jurisdiction to try the case. The court paid no heed to counsel’s submission but remanded the applicants in custody. The applicants contend that in view of the said section 180 of Act 30 this court should prohibit the assumption of jurisdiction by the said district court grade II in trying the criminal charge.
Apart from treating the court to a lengthy discourse on what grounds prohibition will lie, counsel for the applicants argued, inter alia, that the result of the applicants’ appeal against the orders made by the High Court was to neutralise or render ineffective the interim injunction. Again, it was submitted that disobedience of the court’s order could
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only result in attachment for contempt and it was wrong to prosecute them criminally for stealing. This, it was further argued, amounted to an abuse of the process of the court against which prohibition will lie. The senior state attorney, who anounced himself as appearing for the District Magistrate Grade II, Duayaw Nkwanta, could also not be outmatched in attacking the application. Some of the points he raised were that the orders appealed against were interlocutory orders and hence under section 10 (3) and (5) of the Courts Act, 1971 (Act 372), the applicants could appeal only with the leave of the trial judge and that since there was no such leave sought and granted the alleged notice of appeal filed is of no effect and the parties could not, therefore, be reverted to their positions as before the orders as argued by the applicants’ counsel. He also argued that as a single act may constitute several offences the prosecution had a discretion to select which offence to prosecute.
As it will become clear hereafter I think that it will be necessary to decide, for the purpose of this application, whether the order of interim injunction was rendered inane by reason of the notice of appeal filed. It is common knowledge that an appeal does not lie to an appellate court as of right unless it is given by some statute: see Amponsah v. Minister of Defence [1960] G.L.R. 140, C.A. The right to appeal against an interlocutory order of the High Court has, by section 10 (3) and (5) of the Courts Act, 1971 (Act 372), been conferred on an appellant only with the leave of the High Court or of the Court of Appeal. As the applicants did not obtain such leave the purported notice of appeal filed is null and void and, in contemplation of the law, it is deemed never to have existed. I do not agree with the applicants’ counsel that it is voidable merely. As to the argument that attachment for contempt lies for the applicants’ conduct instead of a charge of stealing I find no technical obstacle to the co-existence of these two procedures for the same conduct from which the prosecutor could select.
There is no doubt that the order of prohibition will issue from the High Court and be directed to an inferior court to forbid that court from continuing proceedings therein where that court acts in excess of or in absence of jurisdiction and also where that court departs from the rules of natural justice, where it is interested in the suit or is otherwise biased. The absence of jurisdiction aside, the applicant’s counsel sought to accuse the trial magistrate of all these sins. In the statement in support of the application for leave, however, the only issue raised is that of the absence of jurisdiction. The senior state attorney properly muzzled counsel on these extraneous issues raised as he did not state them as required under Order 59, r. 5 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). The only issue of substance for determination concerns the disabling effect of section 180 of Act 30. That section as amended by the Criminal Procedure Code (Amendment) Act, 1963 (Act 191), s. 2 provides as follows:
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“180. If, upon the trial of an offence before a District Court, the Court is of opinion that a bona fide question of title to land is raised it shall discharge the accused, but this shall not be a bar to fresh proceedings being instituted in respect of the same facts in a Circuit Court or the High Court.
Provided that this section shall not apply in the case of the trial of an offence under section 155 of the Criminal Code, 1960 (Act 29).”
The rule laid down in section 180 of Act 30 is itself an old maxim of law. In Paley on Summary Convictions (5th ed.), p. 137 the rule is set out thus:
“Where property or title is in question the jurisdiction of justices of the peace to hear and determine in a summary manner is ousted, and their hands tied from interfering, though the facts be such as they have otherwise authority to take cognisance of.”
In R. v. Cridland (1857) 7 E. & B. 853 Lord Campbell C.J. giving the highest judicial recognition to this rule also said at p. 867: “When such a claim (i.e. bona fide claim of title) is set up, it seems to me that justices have no longer jurisdiction to proceed to summary conviction.”
But in order that the principle as laid down in section 180 of Act 30 should apply so as to oust the jurisdiction of the district court, the question of title must be a question relating to real property: see White v. Fox (1880) 49 L.J.M.C. 60. And there must be a dispute as to the title: see Lucan v. Barrett (1915) 31 T.L.R. 508. It is also essential that the claim should be raised bona fide in order that the principle should apply, and, if this is not so, the question does not arise: see R. v. Inhabitants of Odell (1870) 21 L.T. 556.
It must be noted, however, that there exists such a distinction between a claim of title to property and a claim of right, and that it is only in the case of a bona fide claim of title to real property being submitted by the defence that the jurisdiction of the court to adjudicate is ousted. This distinction between a claim to title and a claim of right is well put by Lord Coleridge C.J. in White v. Fox (supra). He referred to the following passage in Paley on Summary Convictions (5th ed.), p. 139:
“Where there must be a mens rea to constitute an offence, the fact of a man having acted under a claim or notion of right, if established, will form a defence against a criminal proceeding, and must be taken into consideration by the justices, not as question of title, but as a question of bona fides. When, however, the object is to oust the jurisdiction of the justices on the ground that title comes in question, then the claim must be of such a nature as, if substantiated, would afford a defence to an action.”
According to Lord Coleridge at p. 63 “that plainly distinguishes between an assertion of a mere right to do what has been done, and a claim of
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title.” In the case of R. v. Ogden: Ex parte Long Ashton Rural District Council [1963] 1 All E.R. 574 the court warned against the confusion of a claim of title to land with a claim of right, the former being sufficient to exclude the jurisdiction of the justice and the latter not having that effect.
It is for the trial magistrate to decide whether or not upon the evidence before him a bona fide question of title is raised: see Legg v. Pardoe (1860) 9 C.B. (N.S.) 289 and Cornwell v. Sanders (1862) 32 L.J.M.C. 6. It follows that he is not to take the mere statement of the accused person or his counsel. The jurisdiction of the district court is also not to be ousted by a mere fictitious pretence of title. Where, therefore, the accused’s own showing or other manifest circumstances satisfy the court that the claim is wholly groundless the trial magistrate need not regard the assertion. The question of bona fides is all important in ousting jurisdiction. The expression “bona fide claim” means that the right claimed must be one that is possible in law. If it is therefore a claim to a right which cannot exist in law, or as to which there can be no legal right on the part of the accused, then the jurisdiction is not ousted: see Burton v. Hudson [1909] 2 K.B. 564. It is always the trial magistrate who has to decide whether the claim set up is bona fide and whether the justices are right or not cannot be questioned by certiorari: see Ex parte Smith (1890) 7 T.L.R. 42, DC.
It has been held to be no proof of a bona fide claim subsisting that several persons other than the individual charged had committed similar trespasses using the same colour of right, and that the plaintiff (or complainant) had obtained injunctions from the Court of Chancery against such parties: see R. v. Dobson (1839) 9 Ad. & El. 704. It is clear then that the applicants cannot raise their claim bona fide where the first applicant has been restrained under an injunction. In the circumstances the court’s jurisdiction cannot be ousted.
I have endeavoured to state, so far as I could, the judicial interpretation of the rule laid down in section 180 of Act 30 because of the growing tendency of the district courts being called upon to apply that section and because there is a certain amount of misapprehension that once the accused or his counsel asserts it the court must oust itself of jurisdiction. It is because of the need of the trial magistrate to consider the question of bona fide, in the light of the foregoing reasons, that I disallow the application and dismiss it accordingly. Before I make my last bow I think that it is proper to correct the title of the application. The title, as it stands, does not disclose the person against whom the order of prohibition is sought. The correct title ought to have read: “Republic v. District Magistrate Grade II, Duayaw Nkwanta; Ex parte Kwabena Nimo and Kwaben Gyau.”
DECISION
Application dismissed.
S.E.K.
