REPUBLIC vs. CIRCUIT COURT JUDGE, HOHOE; EX PARTE ATALU AND ANOTHER [1974]DLHC2317

Date	1974-05-31
Suit No.
Citation No.	[1974]DLHC2317

ANDOH J.

ADJABENG FOR L. K. MAWUDOKU FOR THE APPLICANTS.

NII AMASSAH-KOTEY ASSISTANT STATE ATTORNEY FOR THE RESPONDENT.

[1974]DLHC2317
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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">CIRCUIT COURT JUDGE, HOHOE; EX PARTE ATALU AND ANOTHER <o:p></o:p>[HIGH COURT, HO]<o:p></o:p>[1974] 2 GLR 138<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 MAY 1974.<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>ADJABENG FOR L. K. MAWUDOKU FOR THE APPLICANTS.<o:p></o:p>

NII
AMASSAH-KOTEY, ASSISTANT STATE ATTORNEY, 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 black 1.5pt;
padding:0in 0in 1.0pt 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANDOH J.<o:p></o:p>On 26
November 1973, his honour Judge A. Gogo, sitting at the Circuit Court, Hohoe,
had arraigned before him two gentlemen charged with stealing ¢2,000.00 and
¢40.00 respectively. The property the subject-matter of the prosecution, was
laid in the Ghana Government. Each accused pleaded guilty to the particular
offence preferred against him. The learned judge accepted the plea of each
accused and convicted them and on learning of their antecedents which revealed
at least two previous convictions each, the learned judge sentenced them to
five years’ and two years’ imprisonment with hard labour respectively.<o:p></o:p><o:p>&nbsp;</o:p>The
record of proceedings shows that about ¢30 or ¢300 out of the ¢2,000 was
recovered. This was ordered to be paid into government chest. Neither of the
accused persons has appealed against the conviction nor sentence or both and in
view of their antecedents, I think myself that their sentences were well
merited. The learned circuit judge did not order suo motu or on application of
the prosecution that the moneys, which were not recovered at the time of the
conviction and sentence, be refunded by them on expiry of the sentence into
government chest: see sections 146 and 147B (1) - (5) of the Criminal Procedure
Code, 1960 (Act 30), as substituted by the Criminal Procedure (Amendment)
(No.2) Act, 1964 (Act 254). He rather ordered, strangely enough, that two
persons who were to be called as prosecution witnesses, had the case been
contested, were to pay ¢850.00 each into government chest as according to him
one of them, the complainant, had been careless in keeping such a huge sum of
money in a cupboard, and the other, the union secretary of the Cocoa Buying
Agency had failed to provide the former with a safe in which the government
moneys were to be kept. The aggrieved parties, namely, those affected by this
order have applied to this court in the exercise of its supervisory powers over
inferior courts to have the said orders brought before this court for the
purpose of being quashed by an order of certiorari. The order of the learned
circuit judge sought to be quashed reads 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">“Now
looking at the case I am of the opinion that Mr. H. K. Atalu is extremely
careless, by placing such a huge sum in an ordinary cupboard in his office.
Obiri is also to blame because it is his duty to provide Atalu with a safe or
something secure in which to keep such sums. For failing to do so and failing
to supervise Atalu to make sure that all moneys paid to him were safe, he is
also severely to blame for the loss of the ¢1,700.00. I therefore order that
the two of them make good the loss of ¢1,700.00 by each paying back into
government chest forthwith ¢850.00 each.”<o:p></o:p><o:p>&nbsp;</o:p>The
grounds relied upon and argued by Mr. Mawudoku, counsel for the applicants, are
two, namely:<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) That
the orders were ultra vires and therefore illegal; and<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) that
the orders offended the rules of natural justice in that the applicants were
condemned into paying such amount when they had not been given an opportunity
to defend themselves.<o:p></o:p><o:p>&nbsp;</o:p>The
learned assistant state attorney conceded that the orders of the learned
circuit judge were illegal and offended against the principles of natural
justice and that therefore the applicants are entitled ex debito justitiae to
have the said orders scrapped, expunged and quashed from the record.<o:p></o:p><o:p>&nbsp;</o:p>