MENSUO v. THE REPUBLIC [1971] 2 GLR 30

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 28 APRIL 1971

BEFORE: MENSA BOISON J

NATURE OF PROCEEDINGS

APPEAL from the summary conviction of the appellant in a district court, grade II, for contempt of court.

COUNSEL

Appellant in person.

C. S. K. Agbanu, State Attorney, for the Republic.

J. Owusu Yaw as amicus curiae.

JUDGMENT OF MENSA BOISON J.

This is an appeal from the decision of the District Court Grade II, Agona, presided over by Mr. Eric

Piesare. By his decision dated 13 January 1971, the magistrate purported to have convicted the appellant for contempt of court in facie curiae and to have sentenced him to two years’ imprisonment with hard labour. On 2 April I allowed the appeal and reserved reasons which I now proceed to give. [p.31] of [1971] 2 GLR 30

The conviction is wholly indefensible and it is a matter of a great regret that the patently wrong view taken by the magistrate of his jurisdiction had condemned the appellant to an imprisonment of nigh three months before the hearing of the appeal. To start with the district court is a creation of statute, namely the Courts Decree, 1966 (N.L.C.D. 84), with particular reference to paragraph 46 thereof. It follows that it exercises only that jurisdiction conferred upon it by that decree as provided particularly by paragraphs 49, 50 and 51. As a rule no act is punishable by a district court unless a certain statute prohibits the doing of the act by the citizen, and the court is given jurisdiction to try that offence.

The complaint of the magistrate was that he took exception to the rude behaviour of the appellant in interfering with a proceeding at a locus in quo in the trial of a motor offence in the case of Republic v. Afriyie. The appellant was neither a party nor a witness in that case, but he had continually made utterances, despite repeated warnings from the magistrate. It appears as a result of that the appellant was summarily arraigned before the court when it re-assembled in the court room, on a charge of contempt of court, namely: “interfering with proceedings of the court.” The statement of offence on the charge sheet did not state the section creating the offence. No doubt the magistrate found none and this should have put him on his inquiry. In failing to state the section creating the offence the magistrate infringed section 112

(2) of the Criminal Procedure Code, 1960 (Act 30), which requires reference to the enactment creating the offence in the statement of offence to be given, if the offence is one created by an enactment. What actually took place in court has hardly been known in the annals of legal history, in that from start to finish the accused was never heard in his defence or asked to show cause why. This is how the record goes: “Charge: contempt of court. Accused present. Corporal Opoku for prosecution. By Court . . .” Then followed a narrative by the magistrate himself of the incident at the locus in quo and he concluded as follows:

“This court considered the accused’s conduct amounting to interference with the due administration of justice and lawful proceedings of the court. The court is therefore of the opinion that the accused’s conduct amounts to a contempt of this court. Accused is therefore summarily tried and convicted. Accused is sentenced to a period of two years to purge his contempt away.”

It will be observed that contrary to the requirement of section 171 (1) of Act 30, which requires that an accused or his advocate “shall be asked whether he pleads guilty or not guilty,” no plea was taken from the accused. Nor was the accused given any opportunity to be heard in his defence at any stage of the proceeding. Assuming that there is a lawful charge, a court can proceed to try an accused only when a plea has been taken in accordance with section 171 (2) of Act 30. Therefore, without a plea having been entered, a court cannot exercise its jurisdiction to try an accused. It follows that the absence of a valid plea renders the whole trial null and void.

[p.32] of [1971] 2 GLR 30

But in this case there was no lawful charge. What the magistrate conceived to be contempt of court was something that the Constitution of the Second Republic, in its infinite wisdom, has reserved to the superior courts of judicature only. Article 102 (5) states: “The Superior Court of Judicature shall have the power to commit for contempt to themselves and all such powers as were vested in a court of record immediately before the coming into force of this Constitution.” In the situation that faced the magistrate, he could have ordered the police to proceed against the accused on a charge of “insulting court” contrary to section 224 of the Criminal Code, 1960 (Act 29). In purporting to try the appellant for contempt of court in facie curiae the magistrate erred as to the extent of his jurisdiction. The error in my view is of a most serious kind, since it is in breach of the aforesaid article of the Constitution of the land. It was for these reasons that I allowed the appeal declaring the trial to be null and void. Consequently I quashed the conviction and sentence and discharged and acquitted the accused.

DECISION

Appeal allowed.

Conviction quashed.

T. G. K.