REPUBLIC vs. BEKWAI DISTRICT MAGISTRATE GRADE 1; EX PARTE GYAMFI [1980]DLHC1622

Date	1980-03-19
Suit No.
Citation No.	[1980]DLHC1622

QUASHIE-SAM J.

LETSA FOR THE APPLICANT.

AGBANU FOR THE RESPONDENT.

[1980]DLHC1622
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>BEKWAI DISTRICT MAGISTRATE GRADE 1; EX PARTE GYAMFI<o:p></o:p>[HIGH COURT, KUMASI] <o:p></o:p>[1980] GLR 388<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:
19 MARCH 1980<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">

LETSA 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">

QUASHIE-SAM J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF QUASHIE-SAM J.<o:p></o:p>The
applicant applied by motion ex parte for leave to issue a writ of certiorari to
quash the conviction and sentence by the District Magistrate, Grade I, Bekwai;
the motion was accompanied by the applicant’s supporting affidavit. Leave ex
parte was granted by this court on 14 February 1980. When the hearing on notice
of motion came on 3 March 1980 counsel for the applicant informed the court
that a statement which should have accompanied the application at the ex parte
stage for leave, and which was omitted by error, had been filed that morning to
regularise the application. He referred to Order 59, r. 2 (2) of the High Court
(Civil Procedure) Rules, 1954 (L.N. 140A), which required that such a statement
shall accompany the application and invited the court to invoke the provisions
of Order 70 of the same rules in order to put his house in order.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the respondent opposed this invitation and called upon the court to dismiss
the application in limine, on the ground that it is the statement which forms
the basis in such an application, the statement thus being very fundamental and
going to the root. He contended that without such a statement in the
proceedings for leave, the application was baseless in the first place and that
leave as granted by the court on 14 February 1980 was also baseless and a
nullity which cannot be regularised or saved by the application of Order 70 of
the rules aforementioned.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the applicant then referred to the case of Republic v. Accra Special
Circuit Court; Ex parte Akosah [1977] 2 G.L.R. 283. In that case the applicant
had been arraigned before the Special Circuit Court, Accra, charged with two
offences of possessing Indian hemp and attempting to export Indian hemp
contrary to sections 47(1) and 57 of the Pharmacy and Drugs Act, 1961 (Act 64).
At the close of the prosecution’s case, the trial circuit judge ruled that
there was a case to answer and called upon the applicant to enter his defence,
thus overruling a submission of no case made on behalf of the applicant. This
occasioned an application by the defence for leave to bring certiorari to quash
the ruling. In the proceedings a copy of the ruling sought to be quashed was
not exhibited to the affidavit in support of the application. In its ruling,
the court said that the absence of a copy of the ruling was of course not fatal
to the application having regard to the provisions of Order 59, r. 7 (1) of
L.N. 140A. Those provisions are:<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">&nbsp;“7. (1) In the case of an application for an
order of certiorari to remove any proceedings for the purpose of their being
quashed, the applicant shall not question the validity of any order, warrant,
commitment, conviction, inquisition or record, unless before the hearing of the
motion or summons he has lodged a copy thereof verified by affidavit in the
Registry, or accounts for his failure to do so to the satisfaction of the Court
or Judge hearing the motion or summons.”<o:p></o:p><o:p>&nbsp;</o:p>In its
ruling the court, no doubt, might have taken into consideration and been
satisfied of the fact, as stated in the applicant’s affidavit, that he could
not exhibit the relevant proceedings because they had not yet been made
available by the trial court.<o:p></o:p><o:p>&nbsp;</o:p>Relying
on these circumstances, counsel in the instant application invited this court
to liken it to Republic<o:p></o:p>v. Accra Special
Circuit Court; Ex parte Akosah (supra), to the extent that paragraph (1) of the
applicant’s affidavit satisfies what is required in a statutory statement as to
the name and description of the applicant; that paragraphs (6), (7) and (9) of
the affidavit detail out the relief sought as also the motion itself before the
court. He submitted that taking all these together the omission of a statutory
statement under the rules would not be fat</main>