COMMISSIONER OF POLICE vs. AMEYAW [1962]DLHC1408

Date	1962-12-17
Suit No.
Citation No.	[1962]DLHC1408

APALOO J.

OWUSU YAW FOR OWUSU FOR THE APPELLANT.

BOISON FOR THE RESPONDENT.

[1962]DLHC1408
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">COMMISSIONER OF POLICE <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">AMEYAW <o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1962] 2 GLR 162<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 17TH DECEMBER, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

OWUSU
YAW FOR OWUSU FOR THE APPELLANT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

APALOO J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
APALOO J.<o:p></o:p>On the 28th October, 1960, an accident occurred on the
Koforidua-Kumasi road involving lorry No. AG 1022 driven by one Sydney Anhwere
Dankwa and the appellant, who was then in charge of motor vehicle No. AE 4828.
This accident resulted in injuries to many persons and seems to have been
fairly serious. The police claimed that the accident occurred as a result of
the careless driving of the appellant. Accordingly, he was charged with that
offence and brought to trial before the district court. The appellant was duly
convicted of that offence.<o:p></o:p><o:p>&nbsp;</o:p>During the trial of the case, the driver in charge of lorry No. AG
1022 did not give evidence. He said he was unwell and sent a telegram to the
police to that effect. It is probable that he also suffered injuries in the accident.
The police must have felt able to proceed with the case without him. The trial
proceeded without his evidence resulting, as I have said, in the conviction of
the appellant. The appellant appealed against his conviction to the circuit
court which was, at the relevant period, the competent court of appeal from the
decision of the district magistrate. The appellant was represented by counsel
in the circuit court and on conclusion of argument, the learned circuit judge
noted as follows “From the record and argument heard on both sides, I find that
the magistrate failed to insist on hearing the evidence of Sydney Anhwere
Dankwa, the principal witness in this case. The whole case is a nullity. Case
remitted to be tried by another magistrate.” Although he did not expressly say
so, the learned circuit judge obviously exercised his power under section 330
of the Criminal Procedure Code, 1960.1(1) Section 330 provides as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The Circuit Court ... may—(a) in an appeal from a conviction or
acquittal—(i) reverse the finding and sentence, and acquit or discharge or
convict the accused, as the case may be, or order him to be re-tried by a Court
of competent jurisdiction, or commit him for trial.”<o:p></o:p>Although the appellant had the benefit of counsel, he did not appeal
against this order. He could not have been aggrieved by it then and may well
have thought it was an opportunity to improve upon his performance and secure
an acquittal at the re-trial.<o:p></o:p><o:p>&nbsp;</o:p>In obedience to the said order, Mr. K. E. Boison, then district magistrate,
on the 16th August, 1962, began the hearing de novo of this case which he
concluded on the 25th September resulting in a second conviction of the
appellant. Again, at this second trial the appellant was represented by counsel
from beginning to end. The record shows that counsel made certain preliminary
submissions of law which were decided in his favour but he at no time
complained against the order for re-trial or sought to suggest that it
prejudiced the appellant in any way.<o:p></o:p><o:p>&nbsp;</o:p>In this appeal, no complaint was made against the judgment
appealed from either on the merits or in any way whatsoever. Counsel must have
realised that an appeal against the judgment on the merits would have very
little prospect of success as there was more than ample evidence that the
appellant drove his vehicle negligently. The only ground on which leave to
appeal was sought and granted and which was more fully ventilated during the
plenary hearing of the appeal was, “That the order for re-trial was a nullity
and therefore the re-trial itself was a nullity.” Although it was conceded that
the power to order a re-trial exists, it was submitted for the appellant that
it was not open to an appeal court to exercise it, unless the trial court had
no jurisdiction to hear the case. It was said that such want of jurisdiction
must be manifest on the face of the record. Accordingly, and consistently with
this submission, it was said that the magistrate had jurisdiction to try the
case originally and that the failure to call a witness did not deprive him of
jurisdiction and that the learned circuit judge fell into error in holding that
the proceedings were a nullity because a witness had not been called to give
evidence.<o:p></o:p>