ADU vs. THE REPUBLIC [1976]DLHC342

Date	1976-07-04
Suit No.
Citation No.	[1976]DLHC342

OSEI-HWERE J.

DAPAAH FOR THE APPLICANT.

AGBANU SENIOR STATE ATTORNEY FOR THE REPUBLIC.

[1976]DLHC342
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													<main id="main" class="content" style="min-height: 60rem" >ADU <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[HIGH
COURT, SUNYANI]<o:p></o:p>[1976] 1 GLR 55<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
4 JULY 1975.<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">

DAPAAH FOR THE APPLICANT.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>The
affidavit in support of the motion for bail brought on behalf of the applicant
discloses that the applicant who stood his trial before the circuit court on
charges of threatening was initially represented by Dr. Ohene-Djan as his
counsel and that his counsel was arrested by the police and subsequently placed
under protective custody at a time when the prosecution had almost closed its
case. After the arrest of Dr. Ohene-Djan, Dr. Ankama promised to conduct his
defence but, somehow or the other, he could not carry out his promise. The
applicant, accordingly, went to Kumasi on 26 May 1975 and engaged Mr. Dapaah,
the applicant’s counsel before me, to defend him. Mr. Dapaah travelled with the
applicant on 27 May 1975 to Sunyani where he informed the circuit court
registrar that he had assumed the applicant’s defence and that he needed an
adjournment for two weeks to apply for a certified copy of the proceedings so
far and he asked that his application be conveyed to the trial judge. Mr.
Dapaah followed this application with two letters to the circuit court
registrar wherein he applied for an adjournment in one and applied for a copy
of the proceedings in the other. When the case was called before the trial
judge on 30 May 1975 he had notice of counsel’s letter praying for an
adjournment. The trial judge disregarded the application and decided to hear
the case to a close. The appellant intimated to the court that as he had
engaged a new counsel who had asked for an adjournment to enable him study the
case he was not in the position to cross-examine the last two witnesses for the
prosecution and also to conduct his own defence and he, therefore, took no
further part in the proceedings. He was convicted upon the prosecution evidence
and sentenced to twelve months’ imprisonment with hard labour on each of the
five counts with the sentences to run concurrently.<o:p></o:p>In his
affidavit in opposition, counsel for the Republic does not deny the averments
contained in the affidavit filed on behalf of the applicant. He maintains,
however, that after Dr. Ohene-Djan’s arrest Dr. Ankama appeared for the
applicant on 16 May 1975 as holding Dr. Ohene-Djan’s brief and he prayed for an
adjournment to enable him to study the case and that the court obliged the
defence with the warning that it was the last adjournment. If on the next
adjourned date, which was 30 May 1975, Dr. Ankama could not appear in court it
was up to the applicant’s new counsel to have collected the brief from Dr.
Ankama to conduct the defence on that day instead of writing to the registrar
asking for another adjournment and a certified copy of the proceedings. It was
further deposed that the registrar could not hold brief for counsel nor was he
in a position to adjourn the case for him. At any rate, the respondent contended,
counsel was not entitled to a copy of the record of proceedings of the case
which was still pending before the court. Counsel further deposed that the
judge must be in control of a trial and avoid unnecessary waste of time and
that the court’s work must go on and not grind to a halt when counsel fails to
conduct his case in court.<o:p></o:p><o:p>&nbsp;</o:p>The main
argument of the applicant’s counsel is that the applicant’s appeal, of which
the petition has already been filed, has every chance of succeeding as the
conviction of the applicant constituted a denial of justice because he was
denied the right to be represented by counsel. According to counsel this
fundamental right which was enshrined in the second Republican Constitution of
1969 was not taken away by the suspension of the Constitution. The senior state
attorney, in answer, argued that there is no such thing as the right to counsel
known under our law. He also argued to the effect that under no circumstance
can any party apply for a copy of the proceedings during the pendency of a
trial except as provided by the rules of court or an enactment. He relied on
section 65 (1) of the Courts Act, 1971 (Act 372), in support of this argument
My understanding of section 65 (1) of Act 372 is that a person shall have a
legal claim to the inspection of, or a copy of, the record of evidence given in
a case before any court or to a copy of th court’s notes for the mere asking
only where it has been expressly provided by “any Rule of Court or any other
enactment,” otherwise it must be on permission. Section 65 (2) of Act 372,
which the respondent’s counsel sought to explain by holding that it is only
where a person has been affected by a judgment or order passed by the court
when an application under section 65 (1) could be made, does nothing more than
lay down the condition upon which the legal claim to the order passed or
proceedings could be effected. The application of counsel for a copy of the
proceedings was therefore proper.<o:p></o:p>It is
clear from certain provisions in the Criminal Procedure Code 1960 (Act 30),
that an accused person has the right to be represented by counsel at his trial.
For instance under section 70 (1) of Act 30 the court may, in the circumstances
stated there, dispense with the personal attendance of the accused in court if
he appears by an advocate. Again in section 175 (1) of Act 30 the provisions
that either the accused or his advocate may cross-examine the witnesses as well
as the right given to the accused’s advocate to address the court accentuate
the time honoure</main>