STATE v. ESSIAMA LOCAL COURT; EX PARTE EZOAH [1965] GLR 707

DIVISION: HIGH COURT, SEKONDI

DATE: 1 DECEMBER 1965

BEFORE: DJABANOR J.

NATURE OF PROCEEDINGS

APPLICATION for an order of prohibition to stop the Essiama Local Court from proceeding with criminal proceedings against the applicant for an infringement of one of its bye-laws.

COUNSEL

T. A. Mensah for the applicant.

Kaleo-Bio for the respondent.

JUDGMENT OF DJABANOR J.

This is an application by Ezoah of Ankobra of Western Region of Ghana for an order of this court prohibiting the local court at Essiama from hearing the suit entitled The Clerk of Council v. Ezoah.

The charge reads as follows:

“That you on the 7th day of October 1965 at Ankobra in the jurisdiction of this Nzima Division 1 Local

Court did fish in the sea in the area of the Nkrofro Local Council without fishing licence, contrary to Rule 2 of the Nkrofro Local Council (Control of Fishing) Bye-Laws of 1963.”

The application is brought on the following grounds:

“(i) In or about 1963, the Nkrofro Local Council enacted bye-laws by which any person intending fishing in the sea must first of all obtain a fishing licence of £G5 (five pounds) or ¢12.

(ii) These bye-laws were made without the prior consultation of the Nzima Fishermen Society.

(iii) The Nzima Fishermen Society have therefore rightly declined to obtain the licences as they argued that the local council had no jurisdiction to make such bye-laws.

(iv) The Nkrofro Local Council, therefore, to enforce the local bye-laws have now instituted proceedings in their own local court to compel the various fishermen to pay the tax; the case comes on at Essiama

Local Court, on Monday, 18 October 1965.

(v) The question therefore falls within two issues: Have the local authority any powers to make bye-laws affecting rights to fish in the sea, contrary to Act 175 and Act 54? (Territorial Waters and Continental

Shelf Act, 1963) and (Local Government Act, 1961 with its amendments, respectively).

(vi) This particular bye-law raises a question of great constitutional matter which is ultra vires the local council.

(vii) Another issue that the court must decide in conjunction with the writ of summons issued by the local council is whether the local council can issue a writ and be a party

[p.709] of [1965] GLR 707 to the suit in her own court so as to enforce in her own court bye-laws that she herself had previously enacted.

(viii) These issues are grave constitutional issues, and the applicant therefore applies for leave to apply for an order of prohibition prohibiting the local magistrate from proceeding with the hearing of the case fixed for 18 October 1965.”

According to clause (i) of these grounds the Nkrofro Local Council has enacted bye-laws by which any person intending to fish in the sea must first of all obtain a fishing licence of £G5. The bye-law concerned was exhibited in this application.

Paragraph 2 of that bye-law states:

“Subject to the provisions of bye-laws 4 of these bye-laws, any person who fishes in any reservoir, lake, river, stream or other body of water in the area of authority of the Council save in accordance with a licence granted by the Council for that purpose shall be guilty of an offence, and shall on conviction be liable to a fine of five pounds or in default of payment to imprisonment for two months.”

Ground 1 of the application is therefore wrong because the law confines itself to persons who fish in any of the inland waters.

Clauses 2 and 3 state the reasons why the bye-law is wrong. In my view the bye-law is perfectly in order and it is made under section 67 of the Local Government Act, 1961, and it is duly approved by the

Regional Commissioner on behalf of the Minister of Justice.

The question at issue in this application is really whether or not the local court has jurisdiction to try the criminal case it purported to be trying. The charge before the local court was that the applicant “Did fish in the sea in the area of the Nkrofro Local Council, etc.” Now the area of jurisdiction of the said local council over which same area this local court has jurisdiction does not include the sea. The schedule to the Local Government Instrument establishing the Nkrofro Local Council states clearly the area of jurisdiction of the said local court and does not include the sea. Therefore the local court has no jurisdiction to try the case—not being within the area of its jurisdiction.

Secondly, it appears from further scrutiny of the local council bye-law in question that the charge as laid is wrong but even if it were wrong, the local court would have had jurisdiction to hear it in order to pronounce it wrong if only the sea was within its area of jurisdiction.

[p.710] of who fish in any of the inland waters.

In my view the court has no jurisdiction to try cases of infringement of any law on the sea and therefore the application is properly brought. I would comment however that the local council bye-law as it stands is perfectly valid but it would be difficult to enforce it against persons fishing exclusively in the sea. In my view in order not to defeat the purpose of the bye-law, it would be better to confine the tax to persons within the area of the local council who are fishermen or who fish.

In the result I grant the application and order that the local court of Nzima Division 1 has no jurisdiction to entertain this suit pending before it.

DECISION

Application granted.

A.K.F.