REPUBLIC vs. DISTRICT MAGISTRATE GRADE II, DUAYAW NKWANTA; EX PARTE NIMO AND ANOTHER [1973]DLHC2320

REPUBLIC vs. DISTRICT MAGISTRATE GRADE II, DUAYAW NKWANTA; EX PARTE NIMO AND A... [1973]DLHC2320

Date	1973-10-31
Suit No.
Citation No.	[1973]DLHC2320

OSEI-HWERE J.

DR. OHENE DJAN FOR THE APPLICANTS.

C. S. K. AGBENU SENIOR STATE ATTORNEY FOR THE REPUBLIC.

[1973]DLHC2320
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													<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:#548DD4">REPUBLIC <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:#548DD4">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:#548DD4">DISTRICT MAGISTRATE GRADE II, DUAYAW NKWANTA; EX PARTE NIMO AND
ANOTHER <o:p></o:p>[HIGH COURT, SUNYANI]<o:p></o:p>[1974] 1 GLR 136<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"> 31 OCTOBER 1973.<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">

<a name="_gjdgxs"></a>DR. OHENE DJAN FOR THE APPLICANTS.<o:p></o:p>

C.
S. K. AGBENU, SENIOR STATE ATTORNEY, FOR THE REPUBLIC.<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 1.0pt 0in">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>This is
an application for an order of prohibition to be directed against the District
Magistrate Grade II, Duayaw Nkwanta, to forbid him from hearing and determining
a criminal charge of stealing against the accused-applicants (hereinafter
referred to as the applicants) now pending before the District Court Grade II,
Duayaw Nkwanta. The affidavit and the statement in support of the notice
disclose that some time in May 1972, one Kwasi Broni of Yamfo who claims to be
a member of the family of one Kwadwo Nkrumah, deceased, issued a writ of
summons in the High Court, Sunyani, against the first applicant and another
person claiming that the first applicant is not the rightful person to inherit
Kwadwo Nkrumah and he also claimed a declaration of title to certain landed
properties and cocoa farms alleged to be the properties of the deceased. After
pleadings in the suit had closed Kwasi Broni applied for and was granted an
order of interim injunction over the cocoa farms in dispute. The order for
interim injunction was granted by Anterkyi J. who further ordered that an
appeal against that interlocutory order should not operate as a stay of
execution. The first applicant appealed against both orders. At the time of the
said order the first applicant was already in possession of one of the farms in
dispute and he had put the second accused-applicant (hereinafter referred to as
the second applicant) in charge of that farm.<o:p></o:p><o:p>&nbsp;</o:p>After the
interim injunction had been placed on the farms the applicants entered the said
farms in their possession and plucked some cocoa beans. They were arrested by
the Yamfo police who, after their investigation, set them free and returned the
cocoa beans to them. Some three months after the release they were re-arrested
and arraigned before the Duayaw Nkwanta Grade II Court on a charge of stealing.
Counsel for the applicants drew the court’s attention to section 180 of the
Criminal Procedure Code, 1960 (Act 30), and said that since the charge involved
landed property, the title to which is in dispute, the district court had no
jurisdiction to try the case. The court paid no heed to counsel’s submission
but remanded the applicants in custody. The applicants contend that in view of
the said section 180 of Act 30 this court should prohibit the assumption of
jurisdiction by the said district court grade II in trying the criminal charge.<o:p></o:p><o:p>&nbsp;</o:p>Apart
from treating the court to a lengthy discourse on what grounds prohibition will
lie, counsel for the applicants argued, inter alia, that the result of the
applicants’ appeal against the orders made by the High Court was to neutralise
or render ineffective the interim injunction. Again, it was submitted that
disobedience of the court’s order could only result in attachment for contempt
and it was wrong to prosecute them criminally for stealing. This, it was
further argued, amounted to an abuse of the process of the court against which
prohibition will lie. The senior state attorney, who anounced himself as
appearing for the District Magistrate Grade II, Duayaw Nkwanta, could also not
be outmatched in attacking the application. Some of the points he raised were
that the orders appealed against were interlocutory orders and hence under
section 10 (3) and (5) of the Courts Act, 1971 (Act 372), the applicants could
appeal only with the leave of the trial judge and that since there was no such
leave sought and granted the alleged notice of appeal filed is of no effect and
the parties could not, therefore, be reverted to their positions as before the
orders as argued by the applicants’ counsel. He also argued that as a single
act may constitute several offences the prosecution had a discretion to select
which offence to prosecute.<o:p></o:p><o:p>&nbsp;</o:p>As it
will become clear hereafter I think that it will be necessary to decide, for
the purpose of this application, whether the order of interim injunction was
rendered inane by reason of the notice of appeal filed. It is common knowledge
that an appeal does not lie to an appellate court as of right unless it is
given by some statute: see Amponsah v. Minister of Defence [1960] G.L.R. 140,
C.A. The right to appeal against an interlocutory order of the High Court has,
by section 10 (3) and (5) of the Courts Act, 1971 (Act 372), been conferred on
an appellant only with the leave of the High Court or of the Court of Appeal.
As the applicants did not obtain such leave the purported notice of appeal
filed is null and void and, in contemplation of the law, it is deemed never to
have existed. I do not agree with the applicants’ counsel that it is voidable
merely. As to the argument that attachment for contempt lies for the
applicants’ conduct instead o</main>