HAUSA vs. THE REPUBLIC [1980]DLHC1587

Date	1980-05-18
Suit No.
Citation No.	[1980]DLHC1587

TWUMASI J.

RICHARD APALOO FOR THE APPELLANT.

ASAFO-ADJEI SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1980]DLHC1587
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													<main id="main" class="content" style="min-height: 60rem" >HAUSA <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, SEKONDI] <o:p></o:p>[1980] GLR 840<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:
18
MAY 1981<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">

RICHARD APALOO FOR THE APPELLANT.<o:p></o:p>

ASAFO-ADJEI, SENIOR 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 windowtext 1.5pt;
padding:0in 0in 0in 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF TWUMASI J.<o:p></o:p>This is
an appeal from the decision of the District Court, Prestea, by which the
appellant was convicted on one count of careless driving, contrary to section
18 (1) of the Road Traffic Ordinance, 1952 (No. 55 of 1952), and on
twenty-three counts of negligently of causing harm, contrary to section 72 of
the Criminal Code, 1960 (Act 29).<o:p></o:p><o:p>&nbsp;</o:p>One of
the major issues raised on the appeal by counsel for the appellant was that the
appellant was deprived of his right to enter a defence. The record of
proceedings reveals that on 21 January 1980, the learned trial magistrate
delivered a ruling to the effect that the prosecution had adduced evidence
sufficiently strong to warrant the accused being called upon to enter his
defence. The appellant had engaged the services of a counsel and the latter had
been conducting the defence. Apparently, counsel was absent on the day the
ruling was delivered and so the case was adjourned to 4 February 1980. On the
later date, counsel could not attend court but wrote a letter to which the
court made reference without stating the contents. Nevertheless, the case was adjourned
to 19 February 1980. Again, on the later date, counsel failed to attend court
and a further adjournment to 22 February 1980 was granted. On 22 February 1980,
counsel wrote a letter to the court apparently informing it of his inability to
attend court and asking for a further adjournment. Whether counsel gave good
and sufficient reasons for his absence is not clear from the record of
proceedings. But the learned magistrate fumed with rage at what might have
appeared to him to be a calculated fiddling by the defence. The upshot of this
somewhat bizarre state of affairs was that the learned magistrate ordered the
appellant to enter his defence or suffer conviction. The appellant did not
succumb to the threat of conviction. To quote the learned magistrate’s own
words, “Try as the court did to persuade and encourage accused to put up his
defence, he refused to talk except to say that once his counsel was not there
he would not say anything.” The case was adjourned for three days for judgment
on 25 February 1980 and on that day, the appellant was convicted and sentenced.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>I have
pondered over the events that culminated in the conviction and I feel very
strongly that serious comments seem to be called for. Counsel for the appellant
has passed strictures on the conviction inflicted on the appellant in the
absence of counsel and accused the learned magistrate of prejudice. Before this
court, he explained his absence from the trial court to the fact, of which he
urged this court to take judicial notice, that the Western Region was afflicted
with a severe shortage of fuel during the time of the trial and for that
reason, he could not travel as regularly as he might wish and the trial court
was aware of it. I took judicial notice of the fuel shortage. The learned senior
state attorney for the Republic referred to Omaboe v. Kwame [1978] G.L.R. 122,
C.A. and submitted that the absence of counsel could not invalidate the
conviction. In Omaboe v. Kwame, counsel for the defendant had made a request to
the court to excuse his absence from court on a specified day and the request
had been refused and the case had proceeded to judgment in his absence. On his
return, he applied to the trial court to set aside the judgment. <o:p></o:p>This was
refused and he appealed. The Court of Appeal held that the trial judge was
right in refusing to set aside the judgment and dismissed the appeal. The court
observed that since the appellant was in court, it could not be said that
justice had not been done to him. But sight should not be lost of the subtle
caution made by the Court of Appeal at p. 126 that, “Ideally judgment should
only be given when the court has heard all parties to the case.”<o:p></o:p><o:p>&nbsp;</o:p>The
Omaboe case, quite apart from the fact that it was a civil matter relating to
title to land, is on its facts, entirely on polar side to the criminal matter
before us which touches upon the liberty of the subject. Article 26 (2) (d) and
(e) of the Constitution, 1979, in it concern for the right of an accused person
provides:<o:p></o:p>