YEVU AND OTHERS v. THE REPUBLIC [1972] 2 GLR 148
HIGH COURT, HO
Date: 14 APRIL 1972
BEFORE: FRANCOIS J.
CASES REFERRED TO
(1) State v. Kassena [1962] 1 G.L.R. 144, S.C.
(2) Asamoah v. The Republic [1972] 1 G.L.R. 117.
(3) R. v. Ajani (1936) 3 W.A.C.A. 3.
NATURE OF PROCEEDINGS
APPLICATION for an order for stay of proceedings in a district court, consequent upon a ruling by the trial district magistrate that the applicants had a case to answer after the close of the case for the
prosecution.
COUNSEL
F. T. C. Amorin for the applicants.
A. L. Djabatey, Senior State Attorney, for the respondent.
JUDGMENT OF FRANCOIS J.
The applicants were allegedly charged with rioting with offensive weapons contrary to section 199 of the Criminal Code, 1960 (Act 29). It appears that at the conclusion of the prosecution’s case the learned magistrate called on the applicants to enter upon their defence. The applicants, being aggrieved by this ruling, filed a notice of appeal in the High Court, and applied to the district magistrate to stay proceedings. This was refused and the applicants have brought this application seeking an order to stay proceedings in the district court until the determination of the appeal pending before the High Court; and a decision of this court has consequently been sought.
The applicants urge that the charges as laid could not be supported by the evidence and therefore a ruling compelling them to lead evidence was wrong. The applicants further claim the right of appeal on an interlocutory matter under section 324 of the Criminal Procedure Code, 1960 (Act 30) [which is set out in the headnote]. The record of proceedings is not available so no consideration on the merits is possible. It has been held by a long line of decisions that the right of appeal from a decision of an inferior tribunal must be strictly conferred by statute. Section 324 of Act 30 does not extend the ambit of appeals to embrace interlocutory matters. The whole tenor of that section relates to final orders. If the legislature desired to permit appeals on interlocutory matters under section 324 of Act 30 it would clearly say so. I do not suggest that applications cannot be made to the High Court for the
[p.151] of [1972] 2 GLR 148 exercise of its supervisory jurisdiction in certain circumstances. This proceeds on quite a different premise and is not a statutory right conferred on an appellant. I shall later consider the effect of the Courts of place here.
The practice and procedure applicable on a submission that there is no case to answer has been too well established to admit of controversy now and perhaps a review of some of the cases might not be out of place here.
First, is the celebrated case of State v. Kassena [1962] 1 G.L.R. 144, S.C. There Azu Crabbe J.S.C. at p.
148 adopted with approval Lord Parker C.J.’s famous dictum reported in The Times, 10 February 1962, which I quote below:
“ ’Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following considerations.
A submission that there is no case to answer may properly be made and upheld (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it.
Apart from these two situations, a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer’.” Neither Lord Parker C.J. in his practice direction nor Azu Crabbe J.S.C. in the Kassena case suggested that an unsuccessful submission of no case could be followed by an appeal. Indeed in none of the numerous decisions on the point has the question of appeal been raised. Counsel for the applicants cited the case of Asamoah v. The Republic [1972] 1 G.L.R. 117 where an attempt to appeal against an unsuccessful submission was made. I have not had the benefit of seeing this judgment. But as the application in that case failed and in any case was directed to a court of co-equal jurisdiction, it can have no decisive force in this application.
I think the practice hitherto prevailing is summarised by Kingdon C.J. in R. v. Ajani (1936) 3 W.A.C.A. 3 at p. 7 as follows:
“[I]n cases where the prosecution has made out no case against an accused, but in spite of that he is called upon by the Court to enter upon his defence instead of being discharged:— [p.152] of [1972] 2 GLR 148 (a) If at the close of the case for the prosecution his Counsel, if he was represented, made no submission, he can be properly convicted upon evidence subsequently given.
and (b) If at the close of the case for the prosecution, he, being unrepresented and probably completely ignorant of procedure, made no submission, he can be properly convicted upon evidence subsequently given.
and (c) If at the close of the case for the prosecution he or his Counsel made a submission which was
wrongly overruled then, if either he or his Counsel took any part in the subsequent proceedings, an appeal against a conviction resulting from those proceedings will fail.
But (d) If at the close of the case for the prosecution he or his Counsel made a submission, which was
wrongly overruled, and then refused to take any part in the subsequent proceedings, he will be ‘quite safe,’ i.e. apparently certain to get a possible conviction quashed on appeal.”
It must be pointed out that the learned Chief Justice never suggested that there could be an appeal over the issue whether the submission had been erroneously overruled. Indeed it is quite clear that an interlocutory appeal was not one of the options of an aggrieved person then as appears in the learned Chief Justice’s further declaration:
“On to the horns of what a dilemma does this cast an accused or a defending Counsel! Should he stay quiet he may meet with unjust conviction on the uncontradicted evidence of a co-accused when one question by way of cross-examination would have demonstrated the falseness of the evidence. Should he put that question he is throwing away certain safety, if his view as to the submission is right.
If this state of the law appears to make it difficult for an accused in England, it seems to amount to a positive hardship in this country where so many of the accused are illiterate, where trials of several accused together are frequent and where Judges owe a special duty to protect their interests. But it is for the legislature and not for this Court to effect an alteration of the law, and we feel bound to give effect to the law as we find it.”
The emphasis is mine.
Until the emergence of the Courts Act, 1971 (Act 372), no subsequent legislation effected a change in the law. Nor can it be argued with any degree of optimism that the point had escaped the legal ingenuity of luminaries of the law during past years for the simple reason that appealing from an interlocutory decision is neither novel nor ingenious. If it was not done in criminal matters in the past the answer might simply be that no provision existed for its adoption. It is often forgotten that the absence or dearth of authority on a point is the surest indication that a proposition far from being novel is unarguable and lacking in substance. [p.153] of [1972] 2 GLR 148 The right of appeal to the High Court from a decision of the district court is now regulated by section 19 of Act 372. Section 19 (4) is as follows: [His lordship here read the provisions as set out in the headnote and continued:] It is a moot point whether this right applies to an unsuccessful submission of “no case,” since the deluge of cases which would result if this view were upheld would hold up trials, create arrears
by impeding quick determination of cases and it would be contrary to judicial and public policy.
Though I decline to give a firm opinion on this matter, I would say that in any case the applicants have not sought leave either of the court below or this court to bring this application to avail themselves of the section. The procedure adopted by the applicants is an attempt to circumvent the provisions of section 19 (6) which states that, “The High Court shall not entertain any appeal unless the appellant has fulfilled all conditions imposed in that behalf by Rules of Court. “
I rule therefore that the applicants have not demonstrated any statutory right entitling them to bring this application. The application consequently fails.
DECISION
Application dismissed.
S.Y.B.-B.
