REPUBLIC vs. CIRCUIT TRIBUNAL, HO; EX PARTE KWAWUKUMEY [2001-2002] 1 GLR 690

CASES REFERRED TO:

(1) Republic v Chief Accountant, District Treasury, Kumasi; Ex parte Badu [1971] 2 GLR 285.

(2) Ex parte Nash (1850) 15 QB 92; 19 LJQB 296.

(3) R v Eastbourne Corporation (1900) 83 LT 338; 16 TLJ 546, CA.

APPLICATION by the accused-applicants to the High Court, Ho for an order of mandamus to compel the lay panel members of the Circuit Tribunal, Ho to give reasons for disagreeing with the written opinion of the chairman of the tribunal, which upheld their submission of no case. The facts are sufficiently set out in the ruling.

Mensah-Etsie for the applicants.

Mrs Felicia Okyere Darko, Principal State Attorney, for the respondent.

Asare Korang J. The applicants appeared before the Circuit Tribunal, Ho charged with conspiracy to defraud by false pretences and defrauding by false pretences contrary to sections 23(1) and 131 of the Criminal Code, 1960 (Act 29).

I do not find it compelling to give details of the evidence led in support of the charges. It is sufficient to say that at the close of the case for the prosecution, a submission of no case to answer was made on behalf of the applicants by their counsel. Thereafter the chairman of the trial tribunal who was sitting with a lay panel delivered a ruling upholding the submission of no case on the ground that the evidence disclosed no fraud on the part of the

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applicants but only a breach of contract redressible through a civil action. The chairman, for this reason, acquitted and discharged the applicants. The two panel members sitting on the case with the chairman disagreed with the decision of the chairman but failed to give any reason or reasons, either verbal or written, why their opinion or judgment should prevail.

The ruling of the chairman of the trial tribunal was handed down on 29 September 2000. Since then, the lay panel members have failed to give any reason or reasons why in their opinion the applicants should be called upon to answer the charges preferred against them. The applicants therefore brought this application for mandamus to compel the two lay panel members to give reasons for disagreeing with the written opinion of the chairman. The applicants contend that they are desirous of appealing to the Regional Tribunal for redress but their appeal cannot be heard unless the panel members give reasons to buttress their conclusion that the applicants be called upon to open their defence.

It is to be noted that the chairman of the trial tribunal carefully and meticulously paraphrased his own ruling and the decision of the majority panel members in the following words:

“The minority opinion is that after carefully looking at the submission of no case of learned counsel for the defence, the accused persons need not be called upon to open their defence They ought to be acquitted and discharged. The opinion of the majority is however that the three accused persons have a case to answer.”

Now, it is provided in section 45(1) of the Courts Act, 1993 (Act 459) as follows:

“45. (1) The determination of any question before a Circuit Tribunal in the exercise of its jurisdiction shall be in accordance with the opinion of the majority of the members hearing the case.”

Act 459 does not define what constitutes an “opinion.” But Cassells English Dictionary (2nd ed) gives the ordinary meaning of an opinion, inter alia, as “one’s judgment, belief or conviction with regard to a particular subject” or “the formal statement of a judge,

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counsel, physician or other expert on a question submitted to him.”

Under our rules of criminal procedure, a court or tribunal has mandatory statutory duty to decide, at the close of the case for the prosecution, whether to uphold a submission of no case or not. This the court or tribunal has to do by critically analysing the evidence against the accused person with a view to determining whether the accused should be called upon to answer to the charge.

It has been held that an order of mandamus lies against public officials in the performances of their public or quasi-public legal duty, to require them to carry out their duty. The order is not meant to review or control what such officials have done or what they do, but to compel them to act. The order will only issue if the duty required to be performed can be legally done: see Republic v Chief Accountant, District Treasury, Kuinasi; Ex parte Badu [1971] 2 GLR 285; Ex parte Nash (1850) 15 QB 92; and R v Eastbourne Corporation (1900) 83 LT 338, CA.

What the applicants herein require the panel members of the trial tribunal to do is not outside the ambit of the law. In fact the law mandates that the panel members express an opinion. Granted that by saying that the applicants have a case to answer the panel members have expressed an opinion but I think having regard to the strong legal stance taken by the chairman of the trial tribunal on the evidence led in the case, it behoves the panel members to give a reasoned opinion as to why the applicants should open their defence.

The only interpretation I can give the word “opinion” in section 45 of Act 459 is a “reasoned opinion.” Suppose the applicants proceed to enter upon their defence and at the end of the whole case, the chairman of the tribunal declares them “not guilty” while the two panel members find them “guilty” I do not think the finding that the applicants are guilty without more would be sufficient. The panel members would have to give reasons for their finding. They would have to provide legal justification for their finding. I do not think the panel system of adjudication was established merely to enable the lay panel members to make terse one-line statements without assigning reasons for them. They would not be dispensing justice according to law if they did that.

From my experience most if not all panel members who sit on

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cases with legally trained chairmen in the tribunals, hardly ever write reasoned opinions or judgments. They rarely write anything at all that I can ever recall seeing. It is about time law panel members are called to order to give reasons in cases where they, whether in the majority or in the minority, disagree with the judgments or decisions written by their chairmen. That way, they would be seen to be participating actively in the adjudicating process and contributing to bring justice down to the grassroots level.

I would therefore grant the application and it is hereby granted. The lay panel members of the Circuit Tribunal, Ho are hereby ordered to deliver a reasoned opinion in this case within fourteen days of this ruling.

Application granted.

MA-G