REPUBLIC vs. CIRCUIT COURT JUDGE, HOHOE; EX PARTE SUSU ALIAS AWUSI AND OTHERS [1992]DLCA4281

Date	1992-04-02
Suit No.
Citation No.	[1992]DLCA4281

AMUAH JA

OFORI-BOATENG JA

FORSTER JA

JOHNNY HANSEN FOR THE APPELLANT.

NUTSUKPUI FOR THE RESPONDENTS

[1992]DLCA4281
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>CIRCUIT COURT JUDGE,
HOHOE; EX PARTE SUSU ALIAS AWUSI AND OTHERS<o:p></o:p>[COURT
OF APPEAL, HO]<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">

[1993 - 4] 1 GBR 406 -&nbsp; 409&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 2 APRIL 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>JOHNNY
HANSEN FOR THE APPELLANT.<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">

NUTSUKPUI
FOR THE RESPONDENTS<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 1.0pt 0in">

AMUAH
JA, OFORI-BOATENG JA, FORSTER JA<o:p></o:p>

</div>AMUAH
JA. This is an appeal against the decision of a High Court judge sitting at Ho
delivered on the 18th day of April 1986. By this decision the ruling of the
circuit court in case No 104/85 was quashed and the circuit court was
prohibited from proceeding to hear the case.<o:p></o:p>On
the 26th day of March 1992 this court allowed the appeal, set aside the
decision of the High Court and remitted the case to the circuit court for trial
to continue. We now give reasons for the judgment we delivered.<o:p></o:p>The
case of the prosecution is that the room in which PW1 a stool father kept his
stool was hit by a rainstorm, which caused considerable damage to it. He
therefore transferred the stool from his house at Agate Agama to the house of
Togbe Agbi which is situated at Agate Togbi. While the stool was being kept at
the house of Togbe Agbi, the accused persons forced open the door to the room
and took the stool away without the knowledge and consent of PW1 in whose
custody it was. All attempts to retrieve it failed. He therefore reported the
matter to the police who referred it to the chief of Anfoega to determine which
of the parties was entitled to keep the stool. The parties invited were Togbe
Bekate and PW1. The Chief of Anfoega found that PW1 was entitled to keep the
stool and ordered him to return the stool to PW1 but Togbe Bekate refused to do
so. The police then proffered the following charges against the accused
persons: unlawful entry contrary to section 152 of Act 29/60, stealing (two
counts) contrary to section 124 (1) of Act 29/60 and failing to surrender stool
regalia contrary to section 39 of Act 370.<o:p></o:p>They
were arraigned before the circuit court and pleaded not guilty. After five
witnesses had been called and the prosecution had not yet closed its case Mr
Dotse, learned counsel for the accused persons, raised a preliminary objection
on a point of law. He submitted that under sections 36 and 66 of the
Chieftaincy Act of 1971, (Act 370) the judicial committee of the traditional
council has exclusive jurisdiction to hear and determine the matter before the
court as it is a matter or cause affecting chieftaincy. The learned circuit
judge in his wisdom overruled the objection after considering his argument. In
his ruling he held that the legal point was too prematurely taken and that
“without first going into the evidence led in support of the charges one cannot
agree to the argument that stealing stool property by unlawfully entering the
stool room in which it is kept and failing or refusing after the alleged theft
to surrender the stool stolen can be reasonably considered as a matter or cause
affecting chieftaincy just because the things allegedly stolen happen to be
stool property.”<o:p></o:p>This
ruling did not satisfy the accused persons who applied to the High Court for
the orders of prohibition and certiorari. The High Court judge after hearing
the submission of Mr Dotse, learned counsel for the accused persons, held that
“the matter is a suit that is covered by sections 36 and 66 of Chieftaincy 1971
(Act 370)”. He accordingly granted the application by quashing the said ruling.
It is against this ruling of the High Court that the appellant has appealed on
the following grounds:<o:p></o:p>“1. that the learned High Court judge
did not take into consideration the whole facts of the case in making the said
orders of certiorari and prohibition.<o:p></o:p>2. that the decision of the High Court
quashing the ruling of the circuit court cannot be supported legally
considering the facts before the Honourable circuit court.”<o:p></o:p>I
will now consider the grounds of appeal. I begin by holding that where an act
gives rise to either a civil or a criminal action, then it is for the
complainant to decide whether to institute his action in the civil court or
proceed in a criminal court. If he decides to institute a civil action then, in
a cause or matter affecting chieftaincy, only the chieftaincy tribunal can
entertain it. See section 66(1)(d) and 36 of the Chieftaincy Act 1971 (Act
370). In the present case however the complainant has chosen to report the
accused persons to the police who have charged them and it is up to the
prosecution to prove its case. It is trite law that the issue of jurisdiction
can be raised at any time; see Republic v Adansi Traditional Council, ex parte
Nana Akyie II [1974] 2 GLR 126. The trial circuit court judge rightly
entertained the application and we agree with him when he decided to hear the
evidence in support of the charges and to make appropriate orders at the close
of the case for the prosecution. We do not know the admissions made by the
accused persons in their cautioned statements. A compromise may be reached in
the course of the proceedings. It is too early to anticipate what will follow.
But it is clear that the ingredients of the offences of stealing and unlawful
entry must be proved. Matters touching on bona fide claim of right and the fact
that the accused persons failed to apply to the court for directions can be
considered, if there is need for them.<o:p></o:p>In
the community in which the parties live, we think the best way of bringing
justice to their door steps is to leave no stone unturned.<o:p></o:p>We
endorse the course taken by the learned circuit judge. This was the reason why
we allowed the appeal, set aside the judgment of the High Court and remitted
the case to the circuit court for it to continue.<o:p></o:p><o:p>&nbsp;</o:p>

<o:p>&nbsp;</o:p></main>