MENSUO vs. THE REPUBLIC [1971]DLHC10254

Date	1971-04-28
Suit No.	2 G L R 30 - 32
Citation No.	[1971]DLHC10254

MENSA BOISON J

APPELLANT IN PERSON.

C. S. K. AGBANU STATE ATTORNEY FOR THE REPUBLIC.

J. OWUSU YAW AS AMICUS CURIAE.

[1971]DLHC10254
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													<main id="main" class="content" style="min-height: 60rem" >MENSUO<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH
COURT, KUMASI]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0cm;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;line-height:150%;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">2 G
L R 30 - 32&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:&nbsp; 28TH APRIL, 1971<o:p></o:p>

</div>COUNSEL:<o:p></o:p>APPELLANT IN PERSON.<o:p></o:p>C. S. K. AGBANU, STATE ATTORNEY, FOR THE REPUBLIC.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

J. OWUSU YAW AS
AMICUS CURIAE.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;MENSA
BOISON J.<o:p></o:p>&nbsp;This is an appeal from the decision of the
District Court Grade II, Agona, presided over by Mr. Eric Piesare.&nbsp; 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.&nbsp; On 2 April I allowed the appeal
and reserved reasons which I now proceed to give.<o:p></o:p>&nbsp;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.&nbsp; 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.&nbsp;
It follows that it exercises only that jurisdiction conferred upon it by
that decree as provided particularly by paragraphs 49, 50 and 51.&nbsp; 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. <o:p></o:p>&nbsp;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.&nbsp; The appellant was
neither a party nor a witness in that case, but he had continually made utterances,
despite repeated warnings from the magistrate.&nbsp;
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."&nbsp; The statement of offence on
the charge sheet did not state the section creating the offence.&nbsp; No doubt the magistrate found none and this
should have put him on his inquiry.&nbsp; 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.<o:p></o:p>&nbsp;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.&nbsp; This is how the record goes: "Charge:
contempt of court.&nbsp; Accused present.&nbsp; Corporal Opoku for prosecution.&nbsp; By Court . . ." Then followed a
narrative by the magistrate himself of the incident at the locus in quo and he
concluded as follows:<o:p></o:p>"This court considered the accused's conduct
amounting to interference with the due administration of justice and lawful
proceedings of the court.&nbsp; The court is
therefore of the opinion that the accused's conduct amounts to a contempt of
this court.&nbsp; Accused is therefore
summarily tried and convicted.&nbsp; Accused
is sentenced to a period of two years to purge his contempt away."<o:p></o:p>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.&nbsp; Nor was
the accused given any opportunity to be heard in his defence at any stage of
the proceeding.&nbsp; 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.&nbsp; Therefore, without a plea having been
entered, a court cannot exercise its jurisdiction to try an accused.&nbsp; It follows that the absence of a valid plea
renders the whole trial null and void.<o:p></o:p>&nbsp;But in this case there was no lawful
charge.&nbsp; 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.&nbsp; 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).&nbsp; In purporting to try the appellant for
contempt of court in facie curiae the magistrate erred as to the extent of his
jurisdiction.&nbsp; 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. <o:p></o:p>&nbsp;It was for these reasons that I allowed the
appeal declaring the trial to be null and void.&nbsp;
Consequently I quashed the conviction and sentence and discharged and acquitted
the accused.<o:p></o:p</main>