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Criminal law - Stealing and
forgery- Bail - Submission of
no case - Certiorari - 1992
Constitution - Article 132 -
Whether or not exceeded his
jurisdiction when he made the
order for the rescission of the
bail - Whether the application
for adjournment ought to be
granted
HEADNOTES
The applicant herein was
arraigned before the High Court,
Accra (Criminal Division) on
charges of stealing and forgery
contrary to sections 124 and 158
respectively of the Criminal
Offences Act 29 of 1960. He was
not admitted to bail and
therefore remained in custody
until when he regained his
liberty after satisfying the
bail conditions imposed by the
learned trial Judge.Having
obviously tasted the harsh
conditions obtaining in our
prisons, he thereafter ensured
that he continued enjoying his
freedom by religiously appearing
before the Court on all the
subsequent adjourned dates. The
same could not, however, be said
of his lawyer who almost
regularly absented himself from
court on account of his
parliamentary engagements. The
learned judge was apparently not
enthused about the conduct of
counsel for the applicant; The
case, nonetheless proceeded to
trial; the prosecution led
evidence and closed its case
(not without the several
adjournments at the instance of
counsel for the applicant) At
the conclusion of the case for
the prosecution, learned counsel
for the applicant intimated to
the court that he was desirous
of making a submission of no
case. An adjournment was granted
for the purpose, and thereafter
the hearing of the application
suffered several adjournments at
the instance of the counsel for
the applicant. learned counsel
again absented himself with the
usual excuse that he was
attending to parliamentary
duties. He was represented by
his junior whose application for
an adjournment was strenuously
resisted by the prosecutor on
grounds, inter alia, that same
was a ruse to delay the
proceedings and thus defeat the
ends of justice. After hearing
both submissions, the learned
judge proceeded to deliver his
ruling It seems the accused
through his counsel is taking
this court for a ride and wants
to determine to this court how
this case should be conducted.
On the basis of the above, and
to ensure that the dignity of
this court is respected, I will
grant the request of counsel for
the accused to come back on the
22nd March, 2016 to
move his motion, however, based
on issues raised above, I hereby
rescind the bail that was
granted the accused
HELD
in circumstances where the
applicant was always in court
whereas his lawyer was not; the
learned Judge ought not to have
vented his displeasure on the
applicant, for visiting the sins
of a lawyer on the client is
deprecated by our courts. The
circumstances in which the judge
rescinded the subsisting order
for bail call for our
intervention to correct what
seems to be a clear case of a
capricious exercise of the
discretion of the learned Judge.
We would in the circumstances
grant the order as prayed and
order that the order rescinding
the bail granted to the
applicant herein on 09 March,
2016 by Abdallah Iddrisu J be
brought up before us for the
purposes of being quashed and
the same is hereby quashed.
STATUTES REFERRED TO IN JUDGMENT
Criminal Offences Act 29 of 1960
CASES REFERRED TO IN JUDGMENT
The republic v High, Ex-
parte Kwame Eyiti and Others.
dated January 21, 2015
unreported
Republic v. Court of Appeal Ex
parte Ghana Cable Co Ltd.
(Barclays Bank Ghana ltd)
Interested party 2005-2006 SCGLR
107.
Republic v. High Court, Accra;
Ex parte Industrialization Fund
for Developing Countries
(2003-2004) 1 GLR 348
Republic v. High Court, Accra Ex
parte CHRAJ (Addo Interested
party) 2003-2004 SCGLR 312.
Republic v High Court Registrar,
Kumasi and Anor; Ex parte Yiadom
1(1984-86 2GLR 606
Republic v High Court, Accra; Ex
Parte Soku and Anor (1996- 97)
SCGLR525
Republic v Court of Appeal &
Thormford Ex Parte Ghana
Institute of Bankers (2011) 2
SCGLR 941
The Republic v High Court Accra,
ex parte Salloum and Ors (Senyo
Coker, Interested Party), (2011)
SCGLR 574
Republic v. High Court,
Bolgatanga: Ex Parte Hawa Yakubu
(2001-2002) SCGLR 53.
The Republic v High Court Accra,
ex parte Salloum and Ors (Senyo
Coker, Interested Party), (2011)
SCGLR 574
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
AKOTO-BAMFO (MRS.), JSC:
COUNSEL
KORKOR OKUTU FOR THE APPLICANT
LED BY AFENYO MARKIN.
MRS. EVELYN KEELSON (PSA) FOR
THE INTERESTED PARTY.
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RULING
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AKOTO-BAMFO (MRS.), JSC:
Before us is an application on
notice for an order of
certiorari pursuant to Article
132 of the 1992 Constitution to
quash the ruling dated the 9th
of March 2016 delivered by
Abdullah Iddrisu J sitting at
the High Court, Criminal
Division, Accra; and a further
order prohibiting the learned
Judge from hearing the matter.
In the said ruling, an order was
made “rescinding the bail
granted to the accused person on
the 23rd of November
2013 and remanding the applicant
into prison custody”.
The following are the grounds
relied on by the applicant:
a “His Lordship exceeded his
Jurisdiction when he rescinded
the bail granted to the
applicant and remanded him into
prison custody when the terms of
the said bail bond had not been
breached by the applicant.
bThe ruling dated 9th
March 2016 was made in breach of
the rules of natural justice”.
In order to appreciate the
issues raised, it is necessary
to give a brief background of
the events which led to the
instant application.
The facts as gleaned from the
affidavits filed in these
proceedings are as follows:
On the 18th of July
2013, the applicant herein was
arraigned before the High Court,
Accra (Criminal Division) on
charges of stealing and forgery
contrary to sections 124 and 158
respectively of the Criminal
Offences Act 29 of 1960. He was
not admitted to bail and
therefore remained in custody
until the 23rd of
November 2013 when he regained
his liberty after satisfying the
bail conditions imposed by the
learned trial Judge.
Having obviously tasted the
harsh conditions obtaining in
our prisons, he thereafter
ensured that he continued
enjoying his freedom by
religiously appearing before the
Court on all the subsequent
adjourned dates. The same could
not, however, be said of his
lawyer who almost regularly
absented himself from court on
account of his parliamentary
engagements.
The learned judge was apparently
not enthused about the conduct
of counsel for the applicant;
(as evidenced by the orders made
on the 9th of March
2016)
The case, nonetheless proceeded
to trial; the prosecution led
evidence and closed its case on
the 15th of February
2016 (not without the several
adjournments at the instance of
counsel for the applicant)
At the conclusion of the case
for the prosecution, learned
counsel for the applicant
intimated to the court that he
was desirous of making a
submission of no case. An
adjournment was granted for the
purpose, and thereafter the
hearing of the application
suffered several adjournments at
the instance of the counsel for
the applicant.
On the 9th of March
2016, learned counsel again
absented himself with the usual
excuse that he was attending to
parliamentary duties. He was
represented by his junior whose
application for an adjournment
was strenuously resisted by the
prosecutor on grounds, inter
alia, that same was a ruse to
delay the proceedings and thus
defeat the ends of justice.
After hearing both submissions,
the learned judge proceeded to
deliver his ruling in these
terms:
I have heard counsel on both
sides in respect of the
adjournment requested by counsel
for the accused who gave this
date to the court and the court
accepted it. This court on 23rd
November, 2013 granted bail to
the accused based on the
submission of his counsel to the
fact that the accused has been
cooperative with the court and
that there would be no changes
in attitude. Counsel prayed that
they will report for the matter
to be heard and that the general
steadfastness will be fulfilled.
It seems that things have rather
changed in respect of the
accused being steadfast by
ensuring that the trial goes on
in an acceptable manner. It is
however shown by the attitude
and behavior of the accused that
he is only interested in
delaying the trial. Accused
applied for submission of no
case which was granted. The
application was to be moved on
15th February, 2016
but at the request of counsel
for the accused it was adjourned
to 29th February,
2016 and on 29th
February, 2016 it was further
adjourned to 9th
March, 2016 at the instance of
the counsel for the accused.
Today 9th March, 2016
this court is once again being
asked to adjourn to 22nd
March, 2016. Previously attitude
of the accused through his
counsel is nothing worth writing
about as shown by the record of
proceedings in this court. It
seems the accused through his
counsel is taking this court for
a ride and wants to determine to
this court how this case should
be conducted.
On the basis of the above, and
to ensure that the dignity of
this court is respected, I will
grant the request of counsel for
the accused to come back on the
22nd March, 2016 to
move his motion, however, based
on issues raised above, I hereby
rescind the bail that was
granted the accused on 20th
November, 2013 and remand the
accused into prison custody
today”
It was contended on behalf of
the applicant, that the learned
judge exceeded his jurisdiction
when he made the order for the
rescission of the bail without
giving the applicant the
opportunity to be heard. It was
also urged on behalf of the
applicant that since the issue
for consideration before him at
the material time, was whether
the application for adjournment
ought to be granted, in so far
as the learned judge, suo motu
made the order complained of
without hearing the applicant on
the issue; there was a breach of
the audi alteram partem rule.
Therefore the gravamen of the
applicant’s case was that even
though the Learned Judge
commenced the hearing within his
clear jurisdictional powers, he
exceeded same in making the
order without offering him the
opportunity to address him on
the issue and thereby denying
him his right to be heard. The
issues turning on the said
contentions clearly appear to
undermine the requirement of
procedural fairness and
integrity the absence of which,
we think results in
jurisdictional absence. See: The
unreported judgment of the
Supreme Court dated January 21,
2015 in the case of: The
republic v High Court 17,
Ex- parte Kwame Eyiti and
Others.
Article 132 of the 1992
Constitution provides: “The
Supreme Court shall have
supervisory jurisdiction over
all courts and over any
adjudicating authority and may,
in the exercise of that
supervisory jurisdiction, issue
orders and directions for the
purpose of enforcing or securing
the enforcement of its
supervision power”
The remedies available to an
applicant who triggers the
court’s supervisory jurisdiction
under article 132 by virtue of
article 161, includes writs or
orders in the nature of habeas
corpus, certiorari, mandamus,
prohibition and quo warranto.
The nature and scope of the writ
of certiorari have been
expatiated in several decisions
of this court; among its
attributes are the following: it
is a discretionary remedy
granted on grounds of excess or
want of jurisdiction; it should
be exercised in cases in which
it is manifestly plain and
obvious that there are patent
errors on the face of the record
which either went to
jurisdiction or were so plain as
to make the impugned decision a
nullity; additionally it is not
concerned with the merits but a
complaint about jurisdiction or
absence of procedural fairness
like a breach a breach of
natural justice . That the
excess or lack of jurisdiction
is a ground for certiorari is so
settled as was pronounced by
this court in the following
cases.
(1) Rep v. Court
of Appeal Ex parte Ghana
Cable Co Ltd. (Barclays Bank
Ghana ltd) Interested party
2005-2006 SCGLR 107.
(2) Rep v. High
Court, Accra; Ex parte
Industrialization Fund for
Developing Countries (2003-2004)
1 GLR 348
(3) Rep v. High
Court, Accra Ex parte CHRAJ
(Addo Interested party)
2003-2004 SCGLR 312.
(4) Rep v High
Court Registrar, Kumasi and
Anor; Ex parte Yiadom 1(1984-86
2GLR 606
(5) Rep v High
Court, Accra; Ex Parte Soku
and Anor (1996- 97) SCGLR525
(6) Rep v Court
of Appeal & Thormford Ex
Parte Ghana Institute of Bankers
(2011) 2 SCGLR 941
In the Thomford case Supra, the
Supreme Court, speaking through
the esteemed Date- Bah JSC
stated as follows:
‘… This Supreme Court has held
several times recently that
non-compliance with the audi
alteram partem rule results in
nullity. In the Republic
v High Court Accra, ex
parte Salloum and Ors (Senyo
Coker, Interested Party), Suit
No. J5/4/2011, judgment of the
Supreme Court, delivered on 16th
March 2011 and reported in
(2011) SCGLR 574 (ante), Anin
Yeboah JSC, delivering the
majority opinion of the court,
held (as stated at page 585 of
the Report) that:
“The courts in Ghana and
elsewhere seriously frown upon
breaches of the audi alteram
partem rule to the extent that
no matter the merits of the
case, its denial is seen as a
basic fundamental error which
should nullify proceedings made
pursuant to the denial “.
As noted earlier, the main
complaint of applicant is that
the learned Judge made the order
without offering him the
opportunity to be heard.
A perusal of the record shows
that on the 9th of
March 2016, when the case was
called and it became evident
that the substantive counsel was
absent; an application for
adjournment was made by Ms.
Okutu, his junior, and
therefore, at the material time,
the only issue before the
learned Judge was whether or not
to exercise his discretion in
favour of the applicant, i.e. to
grant her request for an
adjournment on account of the
reasons given. Indeed, the
arguments canvassed by both the
prosecution and the defence on
the day of the ruling, left no
doubt as to the issue for
determination or resolution.
When therefore the learned Judge
decided to rule on matters
outside the scope of the matters
before him on the day of the
ruling, he was required to have
adhered to this well-known
principle, the audi alteram
rule, which enjoins the court to
ensure that the applicant is not
deprived of an opportunity to
present his side of the story; a
basic rule of natural justice
being that no man should be
condemned without being heard.
Should there be good reasons for
sending back into custody, the
applicant, who had not breached
any of the bail conditions
imposed on him since 2013, the
least that the Learned Judge
could have done, was to have
asked him to “show cause” as it
were, why he should not be
remanded into custody. See
Rep v. High Court,
Bolgatanga: Ex Parte Hawa Yakubu
(2001-2002) SCGLR 53.
The grant of bail (even though
regulated by Statute) is
essentially discretionary but
like every judicial discretion,
it should be exercised in
accordance with laid down
principles; it should neither be
arbitrary nor capricious; in
other words, it should be
exercised judicially.
A reading through the exhibits
annexed to the application,
reveals that the learned Judge
had in the course of the
proceedings before him in
relation to the applicant unduly
indulged Counsel for the
applicant, who regularly asked
for adjournments on grounds of
attending to Parliamentary
duties. A person, who has freely
chosen to perform the dual roles
of a legislator and a legal
practitioner, should endeavour
to strike a balance so as to
ensure that the practice of one
does not unduly suffer at the
expense of the other. The
learned trial judge, we think
has himself to blame for
conducting the business of the
court as though it is secondary
to that of counsel for the
applicant. The constitutional
obligation imposed on courts
under article 19 to try criminal
cases within a reasonable time
imposes an onerous
responsibility to ensure timely
disposal of such cases, and, to
accede to adjournments simply
for the reasons stated by
counsel appears to us to be a
shirking of the responsibility
imposed on judges by the said
Article. The trial of criminal
cases affect the liberty of the
individual and as such efforts
should be made to minimize the
incidence of adjournments in
order to have the trials
expedited This calls for sound
judicial case management by our
judges and we make the unhappy
observation that the hearing of
a criminal matter which was
commenced in 2013 should not
still be doing the rounds in the
Courts in the year 2016.
Adjournments are largely within
the discretion of the Court and
applications should be
considered with the primary
object of ensuring a speedy
hearing and determination, a
presiding judge has to have
control over his court; where
therefore it became obvious that
it was the lawyer as opposed to
the applicant whose conduct was
causing the delays, the court’s
indignation ought to have been
directed at counsel; the phrase
“Applicant through his counsel’
has no place in the management
of the adjudication process
particularly in a criminal trial
where mens rea plays a
significant role. Surely the
applicant and his lawyer are not
the same, in circumstances where
the applicant was always in
court whereas his lawyer was
not; the learned Judge ought not
to have vented his displeasure
on the applicant, for visiting
the sins of a lawyer on the
client is deprecated by our
courts. The circumstances in
which the judge rescinded the
subsisting order for bail call
for our intervention to correct
what seems to be a clear case of
a capricious exercise of the
discretion of the learned Judge.
We would in the circumstances
grant the order as prayed and
order that the order rescinding
the bail granted to the
applicant herein on 09 March,
2016 by Abdallah Iddrisu J be
brought up before us for the
purposes of being quashed and
the same is hereby quashed.
(SGD) V. AKOTO-BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
(SGD)
V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE-BONNIE
JUSTICE
OF THE SUPREME COURT
(SGD) N. S.
GBADEGBE
JUSTICE
OF THE SUPREME COURT
(SGD) G.
PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL:
KORKOR OKUTU FOR THE APPLICANT
LED BY AFENYO MARKIN.
MRS. EVELYN KEELSON (PSA) FOR
THE INTERESTED PARTY.
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