REPUBLIC vs. DISTRICT COURT GRADE II, AKWAPIM;EX PARTE DJANIE AND OTHERS [1990]DLCA2297

Date	1990-02-15
Suit No.
Citation No.	[1990]DLCA2297

ESSIEM JA

AMUAH JA

OFORI-BOATENG JJ.A.

D. A. NII APONSAH FOR THE APPELLANTS.

ATTOH FOR THE RESPONDENTS.

[1990]DLCA2297
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>DISTRICT
COURT GRADE II, AKWAPIM;EX PARTE DJANIE AND OTHERS<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 1
GLR 263<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 15 FEBRUARY 1990<o:p></o:p>

</div>COUNSEL:<o:p></o:p>D. A. NII
APONSAH FOR THE APPELLANTS.<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">

ATTOH FOR
THE RESPONDENTS. <o:p></o:p>

ESSIEM,
AMUAH AND OFORI-BOATENG JJ.A. <o:p></o:p>

</div>JUDGMENT
OF ESSIEM J.A.<o:p></o:p>This is
an application for (a) a stay of execution of the judgment of Armah J. dated 16
November; (b) an order of interim injunction restraining the second respondent,
his agents, servants, collaborators, privies or supporters from molesting or
continuing to molest, threaten or beating or leading others to beat, harass or
molest the applicants-appellants herein during the pendency of the appeal; (c)
an order staying proceedings in the District Court Grade II, Mampong till the
final disposal of the appeal and (d) for such order or other orders as to the
court, may seem fit.<o:p></o:p>The three
applicants are standing trial before the District Court Grade II,
Mampong-Akwapim on a charge of conduct conducive to a breach of the peace under
section 207 of the Criminal Code, 1960 (Act 29). They allege in their affidavit
in support of this application that at the close of the prosecution’s case
their counsel applied to make a submission of no case but the “lay magistrate”
refused to hear the submission and formally called upon them to open their
defence.<o:p></o:p>They
claimed that at the close of the prosecution’s case, they had raised a bona
fide question of title to land and that the trial magistrate erred in calling
upon them to open their defence since at that stage the jurisdiction of the
magistrate had been ousted by section 180 of the Criminal Procedure Code, 1960
(Act 30).<o:p></o:p>The
applicants therefore applied to the High Court for an order of certiorari to
quash the ruling of the district court and for a further order of prohibition
directed against the said magistrate to prohibit him from proceeding with the
hearing of the case in which the applicants are the accused.<o:p></o:p>The High
Court, constituted by Armah J, dismissed the two applications. He concluded his
ruling as follows: “For the above reasons, I would dismiss the application. The
case before the district court should proceed. I award the second respondent
costs of ¢30,000 against the applicant.”<o:p></o:p>The
applicants then appealed to this court and applied for a stay of execution
before the High Court. That application was also dismissed by Armah J., hence
the instant application to this court. Learned counsel for the applicants went
to great lengths, in arguing this application before us, to show that the
appeal now pending in this court is not frivolous but that it has a good chance
of success. He urged upon us to order a stay of the proceedings before the
district court otherwise the applicants’ appeal will be rendered nugatory.
Furthermore, he contended that if a stay is not ordered and the applicants were
convicted and sentenced to a term of imprisonment, they will suffer irreparable
loss especially if their appeal eventually succeeds.<o:p></o:p>For his
part, learned counsel for the respondents contended that the application was
without merit and urged us to dismiss same.<o:p></o:p>The
applicants’ application before us will have one practical effect, namely to
stop further proceedings in the criminal case in which the applicants are
facing a charge of conduct conducive to a breach of the peace, until the
outcome of their appeal against the High Court’s refusal of their application
for prohibition and an order for certiorari is known.<o:p></o:p>The
affidavit evidence before us does not disclose that the District Court Grade
II, Mampong-Akwapim has no jurisdiction to hear the case. The substance of
counsel’s submission is that the district magistrate erred in not allowing
counsel to make a submission of no case and also erred in not dismissing the
charge against the applicants since, according to counsel, at the close of the
prosecution’s case a bona fide claim of title to land had been made by the
applicants. We did not have the benefit of the record of the evidence led by
the prosecution before the district magistrate grade II. However, be that as it
may, what the magistrate is being accused of, in my opinion, relates to
interpretation of sections of Act 30 as applicable to criminal proceedings
before a district court grade II and particularly the interpretation of section
180 of Act 30.<o:p></o:p>It is my
humble opinion that these errors, even if true are likely to justify an order
for certiorari. As was pointed out by Sowah J.A. (as he then was</main>