COMMISSIONER OF POLICE vs. OSEI YAW AKOTO [1964]DLHC1888

Date	1964-03-16
Suit No.
Citation No.	[1964]DLHC1888

AKAINYAH J.

S. S. OKUNOR STATE ATTORNEY FOR THE COMMISSIONER OF POLICE.

J. K. ESSIEN FOR B. J. DA ROCHA FOR THE RESPONDENT.

[1964]DLHC1888
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													<main id="main" class="content" style="min-height: 60rem" >COMMISSIONER OF POLICE<o:p></o:p>&nbsp;vs. <o:p></o:p>OSEI YAW AKOTO <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1964] GLR 231<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
16 MARCH, 1964.<o:p></o:p>

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

S. S. OKUNOR, STATE ATTORNEY, FOR THE COMMISSIONER
OF POLICE.<o:p></o:p>

J. K. ESSIEN FOR B. J. DA ROCHA FOR THE
RESPONDENT.<o:p></o:p>

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

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF AKAINYAH J.<o:p></o:p>In this
application for leave to appeal against the dismissal of the charge and the
acquittal of the accused by the District Magistrate, Accra, following a
submission by counsel for the accused of no case to answer, the learned state
attorney filed the following grounds of appeal:<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">“1. The
ruling of the learned trial magistrate was unreasonable and cannot be supported
by the evidence. <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">2. The
learned trial magistrate wrongly refused to allow the prosecuting state
attorney to reply to the legal submission of ‘no case to answer’, made by the
defence counsel.”<o:p></o:p><o:p>&nbsp;</o:p>Counsel
abandoned the first ground of appeal and argued only the second. He seriously
contended that counsel for the accused had no right to make the submission of
no case to answer and that the learned district magistrate erred in law by
allowing the submission to be made and refusing to allow the prosecuting
counsel to reply to the submission. In his view the proper interpretation of
section 173 of the Criminal Procedure Code, 19601 is that the court must decide
whether or not, there is a case to answer Act 30 without any submission by
counsel for the accused. He conceded however that counsel for the prosecution
has no right of reply and submitted that, this is so, because the law did not
make provision for a submission of no case to answer to be made. [His lordship
here read the provisions of section 173 of the Criminal Procedure Code, 1960,
as set out in the headnote and continued:]<o:p></o:p><o:p>&nbsp;</o:p>With
respect, I do not agree with learned counsel’s narrow interpretation of section
173. A person charged before the court is entitled as of right to make his
defence. In his own interest, it is his duty to make it appear to that court,
that no case has been made out against him sufficiently to require an answer
from him. He can do so either by himself or by his counsel who is his legal
spokesman. That right to make the time - honoured submission of no case to
answer, is a fundamental principle of our criminal procedure. If the
legislature intended to take away that right, it would have done so in express
terms. The wording of section 173 of the Criminal Procedure Code, 1960, is
exactly as the wording of section 169 of Criminal Procedure Ordinance2 which it
repealed and section 286 of Criminal Procedure Ordinance3 of Nigeria. In the
learned exposition of the law relating to the submission of no case to answer
by Kingdon C.J. (Nigeria) in R. v. Ajani4 and by Verity C.J. (Nigeria) in
Eregie v. Inspector-General of Police5 discussed by the Ghana Court of Appeal
in November 1957, in R. v. Osabu &amp; Maaseyo,6 decided under section 169 of
Cap. 10 and section 286 of the Nigerian Criminal Procedure Ordinance, the right
of the defence to make the submission of no case to answer was neither
challenged nor doubted.<o:p></o:p><o:p>&nbsp;</o:p>I hold
therefore that the proper interpretation of the section is that the court’s
power to rule that there is no case to answer and the right of the defence to
make it so appear to the court by the submission of no case to answer are not
mutually exclusive. In my view, they are co-existent and concurrent and counsel
for the defence is entitled to make a submission of no case to answer. I think
the point taken by learned state attorney is not only a novelty but it is also
not supported by any authority. The application is therefore dismissed
summarily.<o:p></o:p>

<o:p>&nbsp;</o:p></main>