STATE v. BISA [1965] GLR 389

DIVISION: HIGH COURT, HO

DATE: 20 MAY 1965

BEFORE: SOWAH J.

CASE REFERRED TO

State v. Ali Kassena [1962] 1 G.L.R. 144, S.C.

NATURE OF PROCEEDINGS

APPEAL from a ruling of the Magistrate’s Court, Ho, that the respondent had no case to answer. The facts are set out in the judgment.

COUNSEL

F. E. Creppy, State Attorney, for the State.

B. J. da Rocha for the respondent.

JUDGMENT OF SOWAH J.

The defendant-respondent, Nana Bisa, was charged with the capital offence of murder contrary to section

46 of our Criminal Code, 1960,1 and was arraigned for committal before N. A. Tham, Esquire, district magistrate to stand trial at the Criminal Sessions at Ho. After counsel for the State had furnished the court and the accused with copies of the bill of indictment and the summary of evidence and had addressed the court as to the nature of the case against the accused, counsel for the accused, Mr. da Rocha, in his reply submitted that there was no case made against the accused and that in conformity with section 184 (5) of the Criminal Procedure Code, 1960,2 the accused should be discharged. His submission was accepted by the learned magistrate and the accused was accordingly discharged. The State has appealed against the ruling and the discharge of the accused.

I propose to discuss the meaning and import of subsections (4) and (5) of section 184 of the Criminal

Procedure Code, 1960, but

[p.391] of [1965] GLR 389 before doing so I consider it expedient to give a brief resume of the facts of the case as presented to the learned magistrate.

On 28 January 1963 the Supreme Court, on the application of the respondent accused, Nana Bisa, made an order appointing Mr. Jeffrey, the High Court registrar, a receiver and manager of a piece of land in dispute, which land contained cocoa farms. The registrar then appointed as his agent one Winfred

Kwamla Kwadade to manage and receive the proceeds from the farms in dispute. In passing I may mention that the action was between Nana Kwaku Gyampo III and the respondent Nana Bisa, and that

Nana Bisa had lost the action in the High Court and had appealed to the Supreme Court.

After Winfred Kwamla Kwadada had discussed his duties with the parties he proceeded on 13 October

1963 to Ativi cottage in the Asuokorkor area. He was there with his men including one Emmanuel Kodjo

Agbobli (the deceased) when Nana Bisa arrived at the cottage. Nana Bisa had an argument with the agent of the receiver and manager concerning his duties, pointing out that the farm in which he then was, was not included in the area concerning which the Supreme Court made the order. The agent disagreed with him and Nana Bisa left. Shortly afterwards he returned in a more aggressive mood and ordered the agent to stop collecting cocoa beans from his tenants. There was an argument again. Thereupon he threatened the agent with dire consequences should he continue to collect the beans from his tenants and he, Nana

Bisa then retired.

Again he returned to the cottage and there was a third round of argument. According to the summary of evidence, he then raised a cutlass he held in his hand and as he did so a gun was shot from a place. No one was able to say where, but it appears as a result thereof pandemonium broke out and every one started running away.

According to one of the witnesses, Kwasi Achampong, when he heard the report of a gun he started to run and found himself running in the same direction as the deceased and one Clemence Kwabla Onima.

According to the summary this witness will say: “That in the course of running he was in the middle, Agbobli (deceased) was on his right and Onima was on his left. That whilst they were running in that formation, the accused came out from a corner of the farm on the right hand side with a single-barrelled gun in his hand and almost immediately shot at Agbobli.”

Onima will also say “that whilst they were running away in that formation the accused emerged from a corner of the farm with a

[p.392] of [1965] GLR 389 single-barrelled gun in his hand from their right hand side and instantly shot the gun at Agbobli who was close to him.” From the summary it is not quite clear whether there were two gun shots or one, but these were the persons who would say that they saw the accused.

I called upon Mr. da Rocha to support the ruling of the learned magistrate and with his usual and admirable candour he admitted that while he was prepared to support the conclusion or decision of the learned magistrate, he was unable to support the reasons, but said he would repeat the arguments which he advanced before the learned magistrate.

At this stage I consider it pertinent to make reference to section 184 (4) and (5) of the Criminal Procedure

Code, 1960, which provides:

“(4) If the court is of opinion that there is a case for the accused to answer, it shall commit him for trial to a Court (in this Part called the ‘trial Court’) of competent jurisdiction.

(5) If the Court is of opinion that there is not a case for the accused to answer, it shall discharge him but this shall not be a bar to a subsequent charge in respect of the same facts.”

Mr. da Rocha has submitted that there is a duty cast upon the magistrate by law to examine the summary of evidence and to see how far that summary can support the charge. If he is of the opinion that the charge is not maintainable having regard to the summary of evidence he is then in duty bound to discharge the accused. Up to this point no one will quarrel with the submission of learned counsel. But Mr. da Rocha goes further and submits that the learned magistrate was also in duty bound to examine the evidence and to see if there is a prima facie case made against the accused person. If on such examination he comes to the conclusion that there is no prima facie case then he should discharge the accused. Mr. da Rocha admits that there is no authority for this rather novel proposition but invites the court to act upon analogous circumstances such as prevail in the case of summary trials.

Learned counsel relied very heavily on the case of State v. Ali Kassena.3 Mr. da Rocha submits that where the evidence adduced “is so manifestly unreliable that no reasonable tribunal could safely convict upon it” then the learned magistrate ought not to commit. I am unable to accept the second leg of Mr. da

Rocha’s argument for the simple reason that the learned magistrate in such a case would be usurping the functions of the judge at the trial. I consider

[p.393] of [1965] GLR 389 that it is not the duty of the learned magistrate in a case for committal to examine the summary of evidence and to see whether or not a prima facie case has been made against the accused. Whether a prima facie case has been made is an issue of both law and fact which issue manifests itself at the close of the case of the prosecution.

In my view the phrase “if…there is a case . . . to answer” must have a limited meaning or construction. “A case to answer” can only mean that if after due examination of the summary of evidence the magistrate comes to the conclusion that there is evidence, even a scintilla, to support the offence of which the accused stands charged, he must commit. It is not part of the duty to find out whether there is sufficient evidence to commit or for which the accused should be called upon to answer. If there is no evidence to support the charge, then he is obliged to discharge the accused. As pointed out by Mr. Creppy for the

State, which point Mr. da Rocha conceded at this stage of the proceeding, the credibility or otherwise of the witnesses does not arise, since these witnesses have not been seen or heard in court.

If I am correct in the view I hold as to the interpretation of the section then I would say that there is a case for the respondent to answer. There are two persons who will give evidence that they saw the accused shoot. There are other persons who would say that they saw and heard the accused on the date of the incident. The question whether the evidence they will give will be “so manifestly unreasonable that no reasonable tribunal could safely convict upon it” will be for the trial judge to decide as a matter of law and at the close of the case of the prosecution.

For the above reasons I will allow the appeal and will remit the case to the court below with an order that the magistrate should commit the accused to stand trial at a court of competent jurisdiction.

DECISION

Appeal allowed.

Case remitted to court below.

E.A.-A.