REPUBLIC vs. DISTRICT MAGISTRATE GRADE II, OSU; EX PARTE YAHAYA [1986]DLHC981

Date	1986-11-01
Suit No.
Citation No.	[1986]DLHC981

BROBBEY J.

AYIKOI OTOO FOR THE APPLICANT.

NO APPEARANCE BY OR FOR THE REPUBLIC.

[1986]DLHC981
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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REPUBLIC <o:p></o:p>

{HIGH COURT, ACCRA} <o:p></o:p>

[1984-86] 2 GLR 361<o:p></o:p>

DATE:
NOVEMBER 1986<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

AYIKOI
OTOO FOR THE APPLICANT. <o:p></o:p>

NO
APPEARANCE BY OR 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 windowtext 1.5pt;
padding:0in 0in 0in 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF BROBBEY J.<o:p></o:p>The applicant,
Issaka Yahaya, was arraigned before the Osu District Court, Grade II on a
charge of stealing from a kiosk belonging to his former employer. He was
alleged to have broken into the kiosk in the night and taken the items therein
but was caught red-handed by neighbours while leaving the kiosk with those
items. When the case was called before the magistrate and the charge read and
explained, the applicant pleaded “not guilty.” According to the record of
proceedings, the applicant explained thereafter that although he entered the
kiosk, it was the complainant, his former employer, who asked him to do that
and take away the goods.<o:p></o:p><o:p>&nbsp;</o:p>Upon
hearing this explanation from the applicant, the magistrate suo motu changed
his plea to guilty because she did not believe his explanation. She then
convicted and sentenced him to twelve months’ imprisonment.<o:p></o:p>It is
against the conviction and sentence that this application for an order of
certiorari has been brought to be quashed on the grounds that:<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) There was error on the face
of the record;<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) Evidence should have been
taken before convicting the applicant; 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">(3) The proceedings offend
against the principles of natural justice.<o:p></o:p><o:p>&nbsp;</o:p>It is
obvious that the procedure adopted by the magistrate is not sanctioned by any
statutory or case law in this country. The Criminal Procedure Code, 1960 (Act
30) sets out in section 172 the procedure to be followed where an accused
pleads not guilty to a criminal charge. The section mandatorily requires
evidence to be heard so long as a plea of not guilty is entered. Section 172 of
Act 30 turns out to be in the same words as section 168 of our former Criminal
Procedure Code, Cap 10 (1951 Rev). In Ewudzi v. Dadson (1957) 3 WALR 82 section
168 was explained and the same emphasis was laid on the necessity to record
evidence whenever an accused person pleads not guilty to a criminal charge. It
cannot properly be said that the magistrate did not hear the applicant. She
certainly did hear him and recorded his explanation to the charge. However, that
explanation was no valid basis on which to believe or disbelieve the applicant.
The learned magistrate arrived at her conclusion to a large extent from the
facts given by the prosecution, It has, however, been held in a number of cases
that it is wrong to presume the guilt of an accused person merely from facts
proved by the prosecution. In a case in which the judgment of the High Court
mentioned the following expression concerning the guilt of the accused, “I was
so satisfied before the accused gave evidence”, the Supreme Court held that
that expression gave the impression that the trial judge had prejudged the
guilt of the two accused persons before hearing them. That was The State v.
Sowah and Essel [1961] GLR (Pt II) 743, S.C.<o:p></o:p><o:p>&nbsp;</o:p>One of
the cardinal Principles of criminal law in this country is that when an accused
person pleads not guilty, his conviction must be based on evidence Proved
beyond reasonable doubt. In the same case of State v. Sowah and Essel (supra),
it was held further at 747 that,... evidence for the prosecution merely
displaces the presumption of innocence but a the guilt of the accused is not
put beyond reasonable doubt until the accused himself has given evidence.” The
appellants in Sowah and Essel (supra) we</main>