YEBOAH AND ANOTHER vs. THE REPUBLIC [1999-2000] 1 GLR 149

CASES REFERRED TO

(1) Apaloo v The Republic [1975] 1 GLR 156.

(2) Okoe v The Republic [1979] GLR 137.

(3) R v Skivington [1968] 1 QB 166; [1967] 2 WLR 665; [1967] 1 All ER 483, CCA.

(4) R v Mckenzie (1895) 13 NZLR 359.

NATURE OF PROCEEDINGS

APPEAL by the appellants from the decision of the Regional Tribunal, Kumasi, affirming the ruling of the Circuit Tribunal, Kumasi overruling a submission of no case to answer made by the appellants after the prosecution had closed its case at their trial for

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causing unlawful damage to property contrary to the provisions of section 172 of the Criminal Code, 1960 (Act 29). The facts are sufficiently set out in the judgment of Gbadegbe J.

COUNSEL

Kwame Asiedu Basoah for the appellants.

Mrs Barbara Acquah, Senior State Attorney, for the Republic.

JUDGMENT OF GBADEGBE J

Gbadegbe J delivered the first judgment at the invitation of Ofori-Boateng JA. On 3 September 1996, the appellants were arraigned before the Circuit Tribunal, Kumasi on a single count of causing unlawful damage. The particulars of the offence laid under section 172 of the Criminal Code, 1960 (Act 29) were that: “. . . For that you on 21 January 1996 at Abrefo in the Ashanti circuit and within the jurisdiction of this court, did unlawfully cause damage to a building plot being the property of one Akwasi Afriyie.” Upon their arraignment the appellants pleaded not guilty whereupon the case proceeded to a trial. The prosecution tendered its evidence and at the end of its case, learned counsel for the appellant submitted that there was no case to answer, which submission not having found favour with the trial court was overruled and the appellants called upon to enter into their defence.

Following the said ruling of the trial court, the appellants claiming that they were aggrieved lodged an interlocutory appeal against the same to the Regional Tribunal, Kumasi which has appellate jurisdiction in such matters. Unfortunately, on the several occasions that the matter came up before the Regional Tribunal, counsel for the appellant for reasons not apparent from the record never turned up, with the result the appellate court was compelled to examine the appeal and have the same dismissed. In dismissing the appeal, the Regional Tribunal expressed itself in the following words:

“On a thorough perusal of the record of proceedings, so far, the tribunal is of the view that there is no merit whatsoever in this interlocutory appeal. It is indeed, time wasting and frivolous and it is hereby dismissed. The appellants are to open their defence before the trial circuit tribunal on Wednesday, 5 August 1998 or any date that may be convenient to the trial tribunal.” The said delivery was on 30 July 1998.

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On August 1998, the appellants appealed therefrom to the Court of Appeal. Although the notice of appeal as filed is one which departs from the known precedents, one may discern the grounds of appeal from paragraph (11) as follows:

“(11) It was wrong in law in that (i) because of the claims of right raised, the tribunal ought to have at least stayed the proceedings pending the hearing of the civil matter.

(ii) That in the nature of this case the circuit tribunal had no jurisdiction to hear and determine the issue of claim of right raised and consequently, the questions of title and ought therefore, to have stayed the proceedings pending the determination of the issuesic(1) and upheld the submission of no as answer”

In his submission filed under the Court of Appeal Rules, 1997 (CI 19) learned counsel for the appellant contended that the offence took place on the self-acquired property of the appellants and that they had before the commission of the offence put up a building on the plot. It was also said that the appellants are still living there. It was his contention that based on the said facts, the trial circuit tribunal ought not to have called upon the appellants.

In my view, the real question which this interlocutory appeal raises for determination is whether at the end of the case for the prosecution, a prima facie case was made against the appellants which required the trial circuit tribunal to call upon them to enter into their defence. The authorities are quite well settled that where at the end of the case for the prosecution, an ingredient of the offence charged was not proved or where the evidence of the prosecution was discredited as a result of cross-examination, thus rendering it unsafe to be acted upon, then the court need not call upon the accused to open their defence: see Apaloo v The Republic [1975] 1 GLR 156.

Section 172(1) of Act 29 under which the charge was laid against the appellant reads: “Whoever intentionally and unlawfully causes damage to any property by any means whatsoever… shall be guilty of second degree felony.” In my view, the ingredients to be proved are that of intention and unlawful damage. I have no doubt from the

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proceedings before us that the appellants do not deny the existence of the said ingredients. It is quite clear from the cross examination conducted on their behalf by their counsel that in destroying the fence wall the appellants did so intentionally and unlawfully. That the act was unlawful is apparent from the explanation of unlawful damage in section 174(l) of Act 29. The said section provides:

174. (1) A person does an actor sic(2) causes an event unlawfully, within the meaning of the provisions of this Code relating to unlawful damage in any case in which he is liable to any civil action or proceeding or to a fine or other punishment under any enactment, in respect of his doing such act causing such event, or in respect of the consequences of the act or event, or in which he would be so liable if he caused the event directly by his own act, or in which he is liable to be restrained by injunction or any other proceeding from doing such act or causing such event.

(2) It is immaterial whether a person accused of a crime in respect of any premises or thing be or be not in possession or occupation thereof.”

The above provision, in my thinking is expressed in very clear language and should not encounter any difficulty in its construction. Further, the mere fact of possession of part of the land which the appellants forcefully contend, is irrelevant to the commission of a crime under section 172 of Act 29. I also have no doubt that if before the crime, the facts grounding the charge were brought to the attention of a court, it would have been sufficient to have an order of restraint made, for in my view no court composed of reasonable men would sit by and allow subjects to conduct themselves in the manner urged against the appellants. Similarly, I do not doubt that the said facts would have been a ground of liability being established against them. It being so, it appears that, as at the end of the prosecution’s case, there was a prima facie case which required the trial tribunal to call upon them to enter into their defence. It is only when after they have been called upon, they testify and offer an explanation to the charge that the court is enabled to inquire into whether or not their conduct was one done in good faith, ie in assertion of a right: see Okoe v The Republic [1979] GLR 137.

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The determination of good faith, in my view, is a matter which must be arrived at after hearing the appellants and having regard to all the circumstances of the case. In the absence of this, I do not see how the court can come to a view of the facts whether or not the appellants acted in an honest belief that they were entitled to demolish the fence wall. I have to say also that when proof is made by the appellants of an assertion of a right then intention is negatived. I also wish to say that this is clearly discernible from the statement of Taylor J (as he then was) in the case of Okoe v The Republic (supra) at 141 when he observed as follows:

“In view of these provisions, it is clear that the act of the appellants in demolishing the building can only be punishable if it is done intentionally and unlawfully and if he did not in good faith believe that he is entitled to demolish the building.”

See also R v Skivington [1967] 1 All ER 483, CCA and R v McKenzie (1895) 13 NZLR 359.

I now turn to the issue of the jurisdiction of the trial court to determine the charge in view of the fact that it is disabled from exercising civil jurisdiction by virtue of section 44(3) of the Courts Act, 1993 (Act 459). I have examined the said contention and I wish to say without any hesitation that it is devoid of any merit whatsoever. The Jurisdiction conferred on the circuit tribunal in section 44(1) and (11) of Act 459 is in respect of all criminal matters except offences declared as first degree felonies, treason and those punishable by death or life imprisonment. Since jurisdiction in criminal matters is conferred only by statute, in the absence of any express statutory limitation in the exercise of jurisdiction, the same cannot be implied. I[sic](3) must be said that the provision of section 180 of the Criminal Procedure Code, 1960 (Act 30) applies only to community tribunals and the attempt to stretch it in respect of the circuit tribunal is to say the least mischievous. I think that learned counsel should raise issues of law which in their opinion raise arguable points in order to assist the court to come to a correct view of the law. As it is, the point raised on the jurisdiction of the court is one which has no backing either in statute or from the decided cases.

The result is that the interlocutory appeal herein fails and the same is dismissed. The ruling of the trial court is, accordingly, affirmed. Let the appellants appear before the trial circuit tribunal and enter into their defence.

JUDGMENT OF OFORI-BOATENG JA.

I agree.

JUDGMENT OF BADDOO JA.

I also agree.

DECISION

Appeal dismissed.

EAA

Endnotes

1 (Popup – Footnote) sic same in original. 2 (Popup – Footnote) sic same in original. 3 (Popup – Footnote) [sic] same in content.