ADENYO vs. THE REPUBLIC [1989]DLHC512

Date	1989-05-13
Suit No.
Citation No.	[1989]DLHC512

BROBBEY J.

FUI TSIKATA FOR THE APPELLANT.

QUIST FOR THE REPUBLIC.

[1989]DLHC512
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													<main id="main" class="content" style="min-height: 60rem" >ADENYO <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1989-90]2 GLR 598<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:
13 MAY 1988<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">

FUI TSIKATA FOR THE APPELLANT.<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>This is
an appeal against a judgment of the district magistrate sitting at Tema. The
undisputed facts of the case are that two houses originally owned by the Tema
Development Corporation and numbered as AP10 and AP12 were once allocated to a
Nigerian national. He later transferred his interest therein to one Simon Dogbe.
Simon Dogbe sold or purported to have sold his interest in the house to one WO
II Tetteh.<o:p></o:p><o:p>&nbsp;</o:p>After a
series of incidents which are not necessary to detail out here, the appellant
went into occupation of the houses. According to the prosecution, the appellant
forcefully removed two doors and locks to the houses and moved into occupation
of the houses when the appellant knew that the properties had been sold to WO
II Tetteh and he was in physical possession of them. On these facts the
appellant was charged, tried, convicted and sentenced for trespass to the
houses and causing unlawful damage to two doors and locks thereto. It was
against the convictions and sentences that the appellant appealed to this
court.<o:p></o:p><o:p>&nbsp;</o:p>A number
of grounds have been canvassed in this appeal. In one of the grounds the trial
magistrate’s order refusing an adjournment was attacked as occasioning a
miscarriage of justice. The circumstances that gave rise to that ground were
that on 29 January 1987, while the trial was in progress, the appellant applied
for the case to be adjourned to enable his leading counsel, Mr. Tsikata, to
appear because counsel was indisposed. The magistrate after considering the
application ruled, inter alia, that since counsel himself did not request the
adjournment from the court by a letter or message directed at the court which
he should have done as an officer of the court, but sent a message through
someone to his client who in turn asked for the adjournment, and since counsel
had on previous occasions appeared in court with another lawyer, he could not
adjourn the trial.<o:p></o:p><o:p>&nbsp;</o:p>The law
is well settled that adjournment of a trial is a discretion vested in the
court. It is only when the discretion is wrongly exercised or is exercised in
such a way as to amount to injustice that the discretion could be interfered
with, as it happened in Heggie v. Commonwealth Haulage Co. Ltd. [1963] 1 G.L.R.
276, S.C. The instant case is not even like what arose in the case of Adu v.
The Republic [1976] 1 G.L.R. 55. If nothing at all, at least for the second
reason assigned by the magistrate, the discretion was properly exercised, and
the application rightly refused. That ground is unmeritorious and fails
accordingly. The order of the trial magistrate did not occasion a miscarriage
of justice, especially when the record shows that the appellant himself
cross-examined extensively the two witnesses called in the absence of his
counsel and he virtually asked all relevant questions which should have been
asked in the circumstances.<o:p></o:p><o:p>&nbsp;</o:p>Even more
unmeritorious and baseless was the criticism of the magistrate’s order
concerning an application to recall two witnesses. That application was to
recall the two witnesses who had been questioned extensively by the appellant
in the absence of his counsel. The application was made by Mr. Sekkor, who
appeared for the accused on that occasion, for the witnesses to be recalled to
be further cross-examined, not by him, Mr. Sekkor, but by senior counsel. The
magistrate did not turn down the application outright. He ruled that the
application should be made by the senior counsel himself who would be
conducting the cross-examination.<o:p></o:p><o:p>&nbsp;</o:p>The
record before me shows that the senior counsel did not appear in the court
thereafter until the trial was concluded and judgment given. After that ruling,
the appellant was represented by Mr. Sekkor and Mr. Bentsi-Enchill, who
themselves never raised the application again. In these circumstances how can
it justifiably be said that the learned trial magistrate occasioned a
miscarriage of justice in not granting the application by counsel, made on 30
April 1987, for the recall o</main>