Coroner - Inquest - Jurisdiction
- Coroner’s duty to conduct
inquest upon death occurring in
specified circumstances - Cause
of death not unknown - Whether
coroner may conduct inquest -
Discretion to conduct inquest to
be exercised judicially,
reasonably and fairly -
Coroners Act 1960 (Act 18) s
5(1).
Practice and procedure -
Witnesses - Calling of, -
Application for certiorari -
Whether court may call witnesses
other than deponents to
affidavits filed - High Court
(Civil Procedure) Rules 1954 LN
140A Or 38 r 1.
Coroner - Inquest - Post-mortem
- Distinction between
post-mortem and autopsy -
Post-mortem not to be performed
without coroner’s authority -
Circumstances in which hospital
or medical centre may perform
post-mortem without coroner’s
authority - Coroners Act 1960
(Act 18) s 7(1)(a).
Practice and procedure -
Certiorari - Application for, -
Applicant omitting to exhibit
order or judgment to be quashed
- Whether omission fatal.
Practice and procedure -
Certiorari - Application for, -
Application relating to court
proceedings or court officer -
Desirability that affidavit in
opposition be sworn to by
registrar of court concerned.
Coroner - Inquest - Relieving
magistrate - Whether competent
to conduct inquest - Coroners
Act 1960 (Act 18) s 1(1).
State proceedings - Certiorari -
Coroner’s inquest - Coroner to
conduct inquest upon reasonable
cause - Duty to conduct not
discretionary if there was
reasonable cause - Reasonable
cause a jurisdictional fact for
investigation by certiorari -
Coroners Act 1960 (Act 18) ss 5
and 7.
State proceedings - Supervisory
jurisdiction - Nature of, -
Application a relator proceeding
in name of A-G - A-G may
intervene and terminate
proceedings with no right of
appeal.
The deceased who was a
hypertensive and diabetic
patient died on admission at the
hospital. The pathologist
conducted a post-mortem
examination including a partial
examination of the brain tissue
and found that his death was due
to a hypertensive heart disease.
Subsequently a brother of the
deceased, suspecting foul play,
caused a second post-mortem
examination to be conducted by
FD, a consultant forensic
pathologist, who also found that
the deceased suffered a
hypertensive heart disease and
yet concluded that the immediate
cause of death was undetermined.
His examination did not include
the brain tissue which had been
removed after the examination by
the pathologist and flushed away
to prevent stench. This led to
the institution of a coroner’s
inquest in the District Court
Grade 1, Accra by the relieving
magistrate. The reports were
submitted to the coroner who
ruled that an inquest should be
held. After hearing the brother
of the deceased, the coroner
called upon the widow to give
evidence. Her counsel objected
but was overruled and she was
compelled to give evidence.
Thereafter her counsel applied
to the High Court for an order
of certiorari to quash
the proceedings before the
coroner and sought in addition
an order of prohibition to
prevent further hearing of the
inquest. The ground for the
application was that the cause
of death of deceased was known
and the coroner had no
jurisdiction under the Coroners
Act to hold the inquiry. The
High Court judge considered the
affidavits filed in the case and
the two post-mortem reports and
called the pathologist to
clarify his report. He concluded
that the cause of death was
known and that the coroner had
no jurisdiction to conduct an
inquest. He therefore granted
the orders of certiorari
and prohibition.
On appeal by the respondent the
Court of Appeal allowed the
appeal and set aside the order
of the High Court on the
grounds, inter alia, that
the applicant did not file a
copy of the coroner’s report
sought to be quashed. The
appellant appealed to the
Supreme Court contending that
(a) the coroner had no mandate
under Act 18 to commence an
inquest and had acted without
jurisdiction; (b) the inquest
was wrongly solicited by the
deceased’s brother since the the
discretion to hold an inquest
was the coroner’s to be
exercised upon certain
pre-conditions; (c) the Court of
Appeal wrongfully interfered
with the exercise of the
discretion of the High Court
judge to grant the application
for certiorari and
prohibition. The respondent
argued, inter alia, that
the coroner had exercised a
discretionary power that was not
reviewable.
Held -
(1) Under section 5(1) of the
Coroners Act 1960, the coroner
ought to hold as soon as
practicable an inquest on the
death of a person where he had
reasonable cause to suspect that
that person had died (a) a
violent or other unnatural death
or (b) a death of which the
cause was unknown, or (c) while
detained in a prison, lock-up,
lunatic asylum or public
institution other than a
hospital or (d) in such place or
circumstances as, in the opinion
of the coroner, to make the
holding of an inquiry necessary
or desirable. Under the
provision if the coroner
received information that
somebody had died in the
district and he had reasonable
cause or good reason to suspect
that the cause of death was
unknown, he was bound by law to
hold an inquiry touching the
death as soon as possible.
“Reasonable cause” within the
context of the Coroners Act
meant if the coroner, after
considering all the facts and
circumstances of the case, in
good faith suspected that the
person died in any of the
circumstances in section 5(1).
Opera House Investment Pty
Ltd v Devon Building Pty Ltd
(1936) 55 CLR 110, Liversidge
v Anderson [1941] 3 All
ER 338, Rippon (Highfield)
Housing Confirmation Order 1938,
Re White and Collins v Minister
of Health [1939] 2 KB 838,
Foxhall v Barnett (1853) 2 E
& B 928, R v Price (1884)
12 QB 247, R v Kent JJ
(1809) 11 East 229 applied.
(2) When the police docket was
made available to the coroner he
could not honestly say that the
death was violent or unnatural.
He could not also sincerely say
that the cause of death was
unknown, because the pathologist
had made a finding that did not
make an inquest necessary or
desirable. Accordingly the
coroner had no reasonable cause
to suspect any of the statutory
conditions laid down.
Controversy had arisen over this
case simply because FD had
stated the cause of death was
“undetermined” but it was clear
that if his finding was confined
to the body and not the brain,
there would have appeared to be
no conflict between his report
and that of the pathologist who
found the cause of death in the
brain. If the coroner had
examined the docket carefully,
he would have concluded that an
inquest was not necessary.
Per
Archer CJ.
Coroners’ inquests are no
pantomime shows, comic plays or
tragic operas to be listened to
and watched by an audience but
solemn and mournful proceedings
to determine how a human being
came by his death. The
proceedings cause pain and
sorrow to relatives and should
not be held as routine matters
in all cases but only when
necessary or desirable.
(3) The learned High Court judge
was on very good ground in
inviting the pathologist to
explain certain aspects of his
statement to the police. Order
38 rule 1 of LN 140A provided
that upon any motion, petition
or summons, evidence may be
given by affidavit; but the
court or a judge may, on the
application of either party,
order the attendance for
cross-examination of the person
making any such affidavit. The
High Court judge was not
usurping any powers of the
coroner, he was merely trying to
find out whether on the evidence
available before the coroner the
preconditions for clothing him
with jurisdiction were
satisfied, since the complaint
of appellant was that the
coroner had no jurisdiction
because an essential preliminary
requirement for the holding of
an inquest was not present.
Leiserach v Schalit [1934] 2
KB 353 cited.
(4) Section 5 of the Act
provided that if a coroner had
reasonable cause to suspect that
the cause of death was unknown
he “shall” hold an
inquiry to discover the cause of
death. The use of the word
“shall” implied a mandatory duty
and not the exercise of a
discretionary power. This must
be distinguished from the case
where a tribunal was given a
discretionary power to decide
certain matters as distinct from
deciding preliminary questions
of fact which clothed it with
jurisdiction to act at all. In
this case the coroner could only
assume jurisdiction upon certain
conditions being present, i.e.
he must have had reasonable
cause to suspect that the cause
of death was unknown. When he
made this finding in the
affirmative then only could he
proceed to hold an inquiry under
section 5 and in that case the
duty was mandatory and not
discretionary. It was not
correct therefore to say that he
had a discretionary power not
subject to review by the High
Court. The legal concept of
discretion implied the power to
make a choice between the
alternative courses of action.
If only one course could
lawfully be taken the decision
was not the exercise of a
discretion but the performance
of a duty as the word shall
in section 5 clearly indicated.
Consequently the coroner was not
exercising a discretion and his
finding could be challenged and
quashed if it led to a wrong
assumption of jurisdiction.
Per
Hayfron-Benjamin JSC.
(a) When the pathologist said
that he performed a partial
post-mortem what he really meant
was that he performed an
autopsy. Autopsy was an
examination of a dead body to
learn the cause of death. A
post-mortem meant a “medical
examination made after death in
order to find the cause of
death”. Under section 7(1)(a) of
the Coroners Act 1960 (Act 18)
it was not open to any hospital
or medical centre to conduct a
post-mortem without the
authority of a coroner, except,
perhaps in our medical schools
where such procedures on
unclaimed cadavers might be
resorted to for the purpose of
training, experiment and
research. Clearly if anybody or
doctor said he performed a
post-mortem on the deceased
without the authority of a
coroner, such post-mortem report
was self-serving and therefore
of no evidential value.
(b) Under the Coroners Act if
the death was not an unnatural
death then there was no need to
report the death to the coroner
nor was he required to find the
immediate cause of death. All
that he was required to do under
the law was to find, not that
the deceased was suffering from
a disease which would naturally
have terminated in his death,
but that there was something
unnatural about the death or the
cause of death was unknown. To
say therefore that the
“immediate cause of death was
undetermined” was to ignore the
medical history of the dead
person.
(c) In future in an application
to invoke the supervisory
jurisdiction of the superior
courts relating to proceedings
in or before a court with the
object either to compel the
court or an officer to do any
act in relation to those
proceedings or to quash the
same, the affidavits in
opposition or in reply should be
sworn to by the registrar of the
court involved.
(d) Their Lordships in the Court
of Appeal faulted the appellant
on the procedural point that her
application failed because she
did not file a copy of the
proceedings of the inquest which
was sought to be quashed. Even
though the affidavit of the
applicant verifying her
statement did not account for
the absence of the proceedings,
in the circumstances of the case
it would have been virtually
impossible within the time frame
for her to obtain the copy of
the proceedings. The
non-production of the copy of
the proceedings was therefore
not fatal to the success of that
application. The law had
undergone considerable
development and the superior
courts would now, on a
certiorari, quash even a
“speaking order”. R v
Newington Licensing Justices
[1948] 1 KB 681, cited.
(e) Section 1(1) of Act 18
provided that every district
magistrate should be a coroner
for his magisterial district. A
district magistrate on relief
duty was not a magistrate who
had been appointed to that
magisterial district and his
relieving duties were limited to
taking the pleas of accused
persons and if they plead guilty
to convict and sentence them; if
they plead not guilty, to grant
bail or otherwise adjourn the
case. Likewise in civil matters
he might give judgment where the
defendant pleaded liable or
adjourn the case where he did
not so plead. He could not
commence the hearing of a case
or continue part-heard cases.
Therefore the whole inquest was
a nullity. R v Kent JJ
(1809) 11 East 229 cited.
(f) In applications to invoke
the supervisory jurisdiction of
the superior courts, the
applicant is a relator to the
Attorney-General - that is to
say, the conduct of the
proceedings is in his name hence
the title of the application is
always: Republic
versus [So and So] ex
parte [The Applicant].
In principle the applicant
“borrows” the Attorney-General’s
authority to institute the
application and the real
respondent is the opposing party
in the proceedings sought to be
prohibited or quashed. The
Attorney-General as such may at
anytime intervene and put an end
to the proceedings but his
decision to do so cannot be
appealed. Gouriet v Union Of
Post Office Workers [1977] 3
All ER 70 cited.
Cases referred to:
Bunbury v Fuller
9 Exch 111, 23 LJEx 29, 23 LTOS
131, 17 JP 790, 1 CLR 893, Ex
Ch.
Foxall v Barnett
(1853) 2 E & B 928, 22 LTOS 100,
23 JJQB 7, 18 Jur 41, 2 WR 61, 2
CLR 273, 13 Digest (Repl) 151.
Gouriet v Union Of Post Office
Workers & Ors
[1977] 3 All ER 70, [1978] AC
435, [1977] 3 WLR 300, 141 JP
552, 121 Sol Jo 543, HL.
Leiserach v Schalit
[1934] 2 KB 353, 103 LJKB 608,
151 LT 398, DC.
Liversidge v Anderson
[1941] 3 All ER 338, [1942] AC
206, 110 LJKB 724, 166 LT 1, 58
TLR 35, 86 Sol Jo 439, HL.
Opera House Investment Pty Ltd v
Devon Building Pty Ltd
(1936) 55 CLR 110.
R v Kent JJ
(1809) 11 East 229, 13 Digest
(Repl) 146.
R v Newington Licensing Justices
[1948] 1 KB 681, [1948] 1 All ER
346, [1948] LJR 1459, 112 JP
175, 64 TLR 140, 92 Sol Jo 168,
46 LGR 200, DC.
R v Price
(1884) 12 QB 247, 53 LJMC 51, 33
WR 45n, 15 Cox CC 389, 13 Digest
(Repl) 174.
Rippon (Highfield) Housing
Confirmation Order 1938, Re
White and Collins v Minister of
Health
[1939] 2 KB 838, [1939] 3 All ER
548, 108 LJKB 768, 161 LT 109,
103 JP 331, 33 TLR 956, 83 Sol
Jo 622, 37 LGR 533, CA.
APPEAL from the judgment of the
Court of Appeal.
Nana Akufo-Addo
for the appellant.
Sam
Baddoo
(Chief State Attorney) for the
respondent.
ARCHER CJ.
The late Emmanuel Atta Ampomah
was known, before his death, as
a hypertensive and diabetic
patient for over two decades and
had been on treatment at various
hospitals for both ailments. His
state of health was known to his
family and his widow Madam Flora
Ampomah, married to the deceased
for over 10 years. On 29th
January 1990 the deceased upon
admission at the Korle-Bu
Teaching Hospital died. On the
same day, the body was sent to
the mortuary and upon
information given by a Dr
Boateng, a friend of the family,
a post-mortem examination was
conducted by the
pathologist-in-charge of the
mortuary, Dr Simmons, who did a
partial post-mortem by opening
the head of the corpse. In his
police statement Dr Simmons
stated that:
“On opening the skull I found
“bilateral intracerebral
haemorrhage with subarachnoid
extension” which was also seen
by Dr Boateng, the technician
who assisted me and the medical
students present. This finding
was consistent with hypertensive
heart disease.”
One would have thought that this
finding was medically and
clinically correct and the cause
of death had been ascertained.
However, on 9th February 1990, a
brother of the deceased met Dr
Simmons and expressed
dissatisfaction with the
latter’s findings because he,
the brother, suspected foul
play. Dr Simmons therefore
suggested a second post-mortem
examination which was conducted
by Dr Felix Dodu, a consultant
forensic pathologist on 14th
February 1990. Dr Dodu found no
marks of violence. He examined
the rest of the body namely, the
heart, the pancreas, the liver,
the kidneys and the partially
digested food in the stomach. In
addition, no common poison was
detected in samples taken from
the body.
Dr Dodu could not examine the
brain tissue because it had been
removed by the earlier
post-mortem examination
conducted by Dr Simmons. Dr Dodu
concluded that the deceased
suffered hypertensive heart
disease and concluded that “the
immediate cause of death was
undetermined”. It was this
finding by Dr Dodu which
generated the various steps to
hold a coroner’s inquest on 10
May 1992 at the District Court
Grade 1, Accra.
At the commencement of the
proceedings the District
Magistrate as an ex officio
coroner stated as follows:
“I have carefully examined the
docket in respect of the case of
Re: Mr Emmanuel Atta Ampomah
(deceased), and I have come to
the conclusion that the inquest
should be held.”
At this stage the coroner had
the police docket with all the
reports of police investigation
and the two post-mortem reports
from Dr Simmons and Dr Dodu. Dr
Simmons’s report covered a
partial post-mortem of the
skull, that is, the brain. Dr
Dodu’s report covered the rest
of the body only; but he had no
opportunity to examine the brain
tissue because it had been
removed and, according to Dr
Simmons, had been, as usual,
flushed away to prevent pungent
smells and stench.
Controversy had arisen over this
case simply because Dr Dodu had
stated the cause of death was
“undetermined”. It is clear that
what the consultant pathologist
was saying was that he could not
determine the cause of death
from the rest of the body which
he examined. If the expression
he used is confined to the rest
of the body, there would appear
to be no conflict between his
report and that of Dr Simmons
who examined the skull and found
the cause of death in the brain.
Both reports were available to
the coroner before he assembled
the coroner’s court, and if he
had indeed carefully examined
the docket, he would have
concluded that an inquest was
not necessary. The impression
the coroner created was that he
did not examine the docket
carefully.
Under section 5(1) of the
Coroners Act 1960, the coroner
shall hold as soon as
practicable an inquiry under the
Act touching the death of a
person when he has reasonable
cause to suspect that that
person has died:
(a) a violent or other unnatural
death; or
(b) a death of which the cause
is unknown, or
(c) while detained in a prison,
lock-up, lunatic asylum or
public institution other than a
hospital; or
(d) in such place or
circumstances as, in the opinion
of the coroner, to make the
holding of an inquiry in
accordance with the Act,
necessary or desirable.
When the police docket was made
available to the coroner, he
could not honestly say that the
death was violent or unnatural.
He could not also sincerely say
that the cause of death was
unknown, because Dr Simmons had
made a finding stating the cause
of death and, finally, the
circumstances leading to the
death of the deceased did not
make an inquest necessary or
desirable. Indeed, the coroner
had no reasonable cause to
suspect any of the statutory
conditions laid down. The
coroner had no absolute
discretion in the matter and he
was expected to exercise his
discretion judicially,
reasonably and fairly.
Finally, I wish to stress that
coroners’ inquests are no
pantomime shows. They are not
comic plays. They are not tragic
operas to be listened to and
watched by an audience. They are
solemn and mournful proceedings
to determine how a human being
came by his death. These
proceedings cause pain and
sorrow to relatives and it seems
that inquests should not be held
unless they were necessary and
desirable. Inquests should not
be regarded as routine matters
in all cases otherwise coroners
would be likened to automatons
and robots.
I would therefore allow the
appeal and set aside the
judgment of the court below,
quash the coroner’s order
initiating the inquest and
prohibit the coroner from
proceeding further in the
inquiry.
WUAKU JSC.
I agree with the Honourable,
Learned Chief Justice, my
learned sister Mrs Bamford-Addo
JSC and my learned brother
Hayfron-Benjamin JSC upon the
points raised and ably
considered by them in their
judgment. I should not add
anything to what has been said.
The appeal should be allowed.
AIKINS JSC.
I agree.
HAYFRON-BENJAMIN JSC.
Emmanuel Atta Peprah, Snr
died on the 29th January 1990 at
the Korle-Bu Teaching Hospital
in Accra aged 66 years. At the
time of his death, it is agreed
by all, that he had been married
to his wife, Flora, the present
appellant, for thirty years. In
the words of the appellant’s
statement of case, which fact
was also not disputed by the
respondents, the deceased and
the appellant “had lived a
blissful married life”. The
marriage had been blessed with
eight children, six of whom at
the commencement of this
litigation were minors. It was
known to the family of the
deceased, including his nephew
Dr Boateng, that at the time of
his marriage to the appellant,
the deceased was suffering from
diabetes and was also
hypertensive. The deceased was
on medication and remained so
until, as learned counsel for
the appellant put it, he
“departed into glory”.
In the fulfilment of the
customary obligation to cater
for her husband and children,
the appellant on that fateful
day prepared the meal. It was
said that after her husband had
finished eating his meal, he
extruded vomitus. This
situation being unusual, the
appellant quickly called in a
doctor by name Dr Boakye who
lived nearby to examine her
husband. On Monday, the 28th May
1990 the coroner Mr K Owusu,
examining the police docket
submitted to him in connection
with the death of Mr Atta
Ampomah noted as follows:
“Mrs Flora Ampomah (the widow)
in her statement to the police
also mentioned that one Mr
Boakye came to their house to
examine the deceased and that
the said Mr Boakye asked the
deceased to raise his legs and
his hands which the deceased
did. And that the said Boakye
told them that the deceased was
trying to develop stroke.”
The appellant’s husband was
therefore rushed to the Korle-Bu
Teaching Hospital where some
hours later, he died having
previously been admitted to the
in-patient ward, Medical Ward 3.
In accordance with hospital
practice, where a patient had
been on admission for less than
twenty-four hours and had died,
it was incumbent upon the
hospital to conduct an autopsy
to determine the cause of death.
Mr Atta Ampomah had been in
hospital for only some hours;
this procedure had to be
followed. Accordingly a Dr
William Minnow Simmons who
describes himself as “Medical
Officer - Pathologist Trainee”
was assigned the test of
conducting the autopsy on the
body of the deceased. However,
before Dr Simmons could commence
with the procedure, a Dr
Boateng, who was admittedly a
nephew of the deceased, entered
the mortuary and showed him the
case sheet of the deceased and
informed him that the deceased
was “an old case of hypertension
and diabetes mellitus”. Dr
Boateng therefore requested him
to avoid a post-mortem which
would have involved a more
detailed examination of the
internal organs of the body. Dr
Simmons deferred to Dr Boateng’s
request on two grounds both of
which I think were valid. First,
Dr Boateng was a senior
colleague and, second, he was
also a relative of the deceased.
Dr Simmons nevertheless had to
satisfy himself that it was a
combination of, or any of, these
two long-standing ailments which
had eventually culminated in the
death of Mr Emmanuel Atta
Ampomah. Dr Simmons had to open
the skull in the first instance.
As Dr Simmons expressed himself
in his report:
“I did only a partial
post-mortem just to verify the
clinical diagnosis of
cerebrovascular accident. On
opening the skull I found
bilateral intracerebral
haemorrage with subarachnoid
extension which was also seen by
Dr Boateng, the technician who
assisted me, and the medical
students present. The finding
was consistent with hypertensive
heart disease and I made a
post-mortem report accordingly.”
(Emphasis mine.)
Learned counsel for the
respondent, the Republic, takes
issue with this medical report
on the ground that since Dr
Simmons stated that he did a
partial post-mortem and that he
should have reported the matter
to the coroner, this case was
clearly such a matter for a
coroner’s inquest.
In argument before us I enquired
of learned Chief State Attorney
whether he appreciated the
difference between an autopsy
and a post-mortem.
Regrettably, he could not answer
directly to the question.
However, if the learned Chief
State Attorney had cared to
examine the police statement
seriously he would have
discovered that that statement
ended with answers to police
questions on autopsy. For the
sake of clarity I will repeat
them hereunder:
“Dr Boateng was present at the
autopsy because he brought the
body as a relative of deceased
hence he was present during
autopsy. Yes autopsy was entered
into the register for Mr
Emmanuel Atta. Post-mortem done
on 29/1/90 and date of death
29/1/90; post-mortem number is
166/90.”
It is obvious to see that when
Dr Simmons says that he
performed a partial post-mortem
what he really means is that he
performed an autopsy. The
Oxford Advanced Learners’
Dictionary defines autopsy
as an examination of a dead body
to learn the cause of
death. In the instant case Dr
Boateng and the family knew of
the long-standing health
condition of Mr Atta Ampomah. It
was in medical terms one of the
diseases which could cause
natural death. What Dr Simmons
had to do was to confirm that it
was both or either of these
conditions which had terminated
the life of Atta Ampomah and he
found to the satisfaction of all
present that Atta Ampomah died
of “cerebrovascular accident”.
On the other hand, according to
the same dictionary, a
post-mortem means a
“medical examination made after
death” in order to find the
cause of death”.
It is my respectful view that it
is not open to any hospital or
medical centre to conduct a
post-mortem without the
authority of a coroner, except,
perhaps in our medical schools
where such procedures on
unclaimed cadavers may be
resorted to for the purpose of
training, experiment and
research. The authority of the
coroner is contained in section
7(1)(a) of the Coroners Act 1960
(Act 18) and it states:
“Where a coroner thinks it
proper, in order to discover the
cause of death, to have an
examination of the body of any
person, he may direct a
registered medical practitioner
to make—
(a) a post-mortem examination of
the body.”
Clearly if anybody or doctor
says he performed a post-mortem
on Mr Emmanuel Atta Ampomah
without the authority of a
coroner, such post-mortem report
is self-serving and therefore of
no evidential value. Such a view
would apply to Dr Dodu’s
post-mortem report which will be
discussed later.
The learned Chief State Attorney
contends that in view of the
fact that Dr Simmons admitted in
his statement to the police
that:
“Since it was a case of sudden
death it should have been
reported to the coroner, but as
Dr Boateng, a close relation of
the deceased and my senior
colleague, knew about the
history of the patient and there
was no suspicion of foul play, I
did not press for the coroner’s
permission. I am sorry to omit
this routine procedure which I
shall never do in future.”
Learned Chief State Attorney
contends that this admission by
Dr Simmons implies that the
cause of death of Mr Emmanuel
Atta Ampomah was unknown and
therefore a matter for the
coroner within the meaning of
section 5(1)(b) of the Coroners
Act 1960, the section which
Their Lordships in the Court of
Appeal dealt with in their
judgment and which will be
considered in this opinion. With
great respect to learned Chief
State Attorney that conclusion
cannot be drawn from the passage
in the police report cited
above.
First, Dr Simmons is wrong when
he says that all sudden deaths
in hospitals and clinics should
be reported to the coroner.
Section 2(3) of the Coroners Act
1960 reads:
“(3) The person in charge
of any hospital in which a
person has died an unnatural
death shall forthwith give
notice thereof to the coroner
for the district.” (Emphasis
mine.)
It is clear from the terms of
this sub-section that if the
death is not an unnatural death
then there is no need to report
the death to the coroner. In the
present appeal Dr Simmons’ own
statement to the police
furnished evidence that there
was nothing “unnatural” about
the death of Mr Atta Ampomah.
Said Dr Simmons in his statement
to the police:
“Since the clinical diagnosis
did not mention about probable
poisoning or homicide and with
the verbal report of Dr Boateng,
I did not consider it necessary
to rule out poisoning.”
Now, a clinical diagnosis is a
thorough examination carried out
on a patient on admission in a
hospital to ascertain the
immediate cause of his presence
in the ward. The findings are
recorded in the patient’s case
sheet and form the basic guide
for treatment. This case sheet
was available to Dr Simmons at
the time of autopsy and in the
absence of “probable poisoning
or homicide” he could not by
hindsight assume any such
pre-condition for his
examination. In any case, Dr
Simmons need not have berated
himself on his failure to report
the matter to the coroner. That
duty is cast upon the person in
charge of the hospital and he
was not the person in charge of
the Korle-Bu Teaching Hospital.
It appears that Emmanuel Atta
Ampomah’s departure into glory
was to mark the beginning of the
tribulations of the appellant.
Mr Kwabena Peprah, a brother of
the appellant’s late husband,
and described in appellant’s
affidavit sworn for use in the
High Court in support of her
application for prohibition and
certiorari, as a
prominent businessman, and who
was out of the country when his
late brother Atta died, returned
home and cried “foul”. He set
about harassing his brother’s
widow, the appellant.
In her affidavit to which I have
just referred she listed a
catalogue of harassment ending
in her incarceration in police
cells, and all these on
suspicion that she had
“poisoned” her husband. In Mr
Kwabena Peprah’s view the
appellant, a “blissfully
married” woman of thirty years,
had suddenly determined to
deliver her husband the coup
de grace by setting before
him his last lunch. The police
in their line of duty
investigated the complaint. The
police, according to the
affidavit of the appellant, “had
in their possession Dr Dodu’s
post-mortem report and the
report on “body samples” by the
National Standards Board” and
concluded that there was no
original matter involved and
therefore cleared the appellant
of any suspicion regarding the
death of her husband. It appears
from the record that the very
day the news of her exoneration
was published in a national
weekly publication, 31st March
1990 - was the same day that the
appellant’s husband was buried.
The harassment of the appellant
was not interred with the body
of her husband. Mr Kwabena
Peprah, a businessman, and on
his own showing, an influential
man in society who could drop
prominent names at will, had
procured a post-mortem to be
conducted by a pathologist, Dr
Dodu, and a post-mortem report
issued by him for the benefit of
Mr Kwabena Peprah. Mr Peprah
then complained to the
Inspector-General of Police who
caused a docket to be opened on
the case.
At this stage it is pertinent to
comment on the conduct of the
pathologist, Dr Dodu, in
permitting himself to be
importuned by Professor Easmon
and Mr Kwabena Peprah into
performing and reporting the
result of the post-mortem. In
the first place, except in the
circumstances which I have
stated above, it was contrary to
law for the pathologist to
conduct a post-mortem on a dead
body without the order of the
coroner for the district in
which the dead body was lying.
Next, reading the pathologist
report, it was obvious that the
two gentlemen had asked the
pathologist to find whether Atta
Ampomah had been “poisoned”. I
regret to say that Dr Dodu’s
post-mortem report is a very
poor apology for the handiwork
of a consultant forensic
pathologist in such a reputable
institution as the Korle-Bu
Teaching Hospital.
It is trite learning in forensic
medicine that the brain is not
the only depository of poisons -
whether common or unusual - in a
cadaver. Such body organs as the
liver, kidneys and even the hair
on the cadaver’s head have been
used to detect poisons in the
dead body. The peremptory
examination of the body which
the pathologist made - and which
he called a post-mortem -
revealed that “no common poison
was detected”. He however found
that Atta Ampomah suffered
“hypertensive heart disease”.
The question to be asked at this
stage is: do not thousands of
our countrymen and women
annually die naturally from this
disease? In the case of Mr
Emmanuel Atta Ampomah, the
answer was “no”. The pathologist
had to find a cause, if only the
brain had been available. But it
was not available. In his
discomfiture Dr Dodu concluded:
“The immediate cause of
death is undetermined.”
(Emphasis mine.)
Now this finding is interesting.
Under the Coroners Act, the
coroner is not required to find
the “immediate” cause of death.
All that the coroner is required
to do under the law is to find,
not that the deceased was
suffering from a disease which
would naturally have terminated
in his death but, that there was
something unnatural about the
death or the cause of death was
unknown. To say therefore that
the “immediate cause of death is
undetermined” is to ignore the
medical history of the dead
person. In my respectful view
unless there occurs a novus
actus interveniens,
it cannot be said that a person
who is likely to die of a
disease from which he was
suffering has died an unnatural
death. Nor would I accept the
pathologist’s view that the
cause of death is
“undetermined”. The Coroners Act
requires that the cause of death
is “unknown”. When one says that
the cause of anything is
“unknown” one means that one has
no clues to what that thing is
unless one gets to know the
cause either by the empirical
method or by deductive logic.
The latter is the duty imposed
on a coroner when it is said in
the Coroners Act that he should
have “reasonable cause to
suspect”. The test is objective.
On the other hand when one says
that the cause of anything is
“undetermined” there is the
assumption that one has choices
but one is not able to place
one’s finger on any of those
choices as ultimately causing
the thing. Dr Dodu’s post-mortem
report is therefore sketchy,
inconclusive, self-serving,
worthless and designed to assist
Mr Kwabena Peprah in his
quixotic crusade to harass the
appellant.
Armed with his post-mortem
report and goading the police
into action on his behalf, Mr
Kwabena Peprah called the
coroner, Mr K Owusu into
session. On the 14th May 1990,
the coroner concluding after
reading the police docket on the
case, which incidentally the
police had closed, assumed
jurisdiction and wrote:
“It was the said Mr Kwabena
Peprah who applied that the
inquest should be conducted and
therefore I would like to take
his evidence first. And in his
absence I would not like to
start the proceedings.”
Again on the 28th May 1990,
counsel for Mr Kwabena Peprah
asking for an adjournment on
account of the absence of his
client from this country,
ostensibly for medical
treatment, informed the
coroner’s court that:
“The presence of Mr Kwabena
Peprah is very crucial
because he is the originator of
the inquest.” (Emphasis mine.)
In consequence of these
statements and having regard to
the conduct of Mr Kwabena Peprah
in the drama the appellant came
to the conclusion that “the
coroner’s enquiry in issue was
wrongfully solicited for by Mr
Kwabena Peprah”.
Learned Chief State Attorney in
reply to this submission relies
on section 2 of the Coroners Act
and also contends that:
“It was the contention of
Kwabena Peprah that the cause of
death of his brother was
unknown. Therefore under the
above quoted section, he had an
obligation to report the death
of his brother to the police.”
Learned Chief State Attorney
cannot be right in the face of
the evidence on the record. The
police had concluded their
enquiry and had “exonerated” the
appellant. It cannot be
suggested that having so closed
their docket the police
thereafter - that is about six
weeks later - changed their
minds and decided to present
their report to the coroner
under section 4 of the Coroners
Act. It is clear that if indeed
the police decided to adopt the
procedure set out by section 4
of the Coroners Act, they
literally placed the cart before
the horse. The police had not
informed the coroner of the
death of Atta Ampomah and they
had not been deputed by the
coroner to investigate the cause
or circumstances of the death. I
therefore incline to the view
that it was Mr Kwabena Peprah
who was the originator of the
enquiry.
The appellant sensing that the
whole purpose of the coroner’s
inquest was indirectly to try
her for the “murder” of her
husband, applied to the High
Court for the prerogative writs
of prohibition and certiorari
to prohibit and further quash
the proceedings before the
coroner’s court. In her
affidavit in support of her
application she stated that she
was compelled by the coroner to
testify on the 27th July 1990
and to be subjected to an
unfinished cross-examination led
by Kwabena Peprah, who for some
reason is described in the
coroner’s proceeding as the
applicant. Mr Kwabena Peprah was
served with the motion paper as
the 2nd respondent.
In his affidavit sworn to on the
16th August 1990, Mr Kwabena
Peprah told some lies. In
paragraphs 4 and 9 of his
affidavit, he stated as follows:
“(4) That I state categorically
that I have not seen any autopsy
report certifying the cause of
death of my brother, the
appellant’s deceased husband,
and no member of my family could
therefore have repudiated any
such report.
(9) That paragraph 4 of the
affidavit contains substantial
lies that should not be glossed
over. That I have never, either
alone or in concert with my
family requested second
post-mortem examination on the
body of my brother.”
Mr Kwabena Peprah had forgotten
that earlier to the promise on
the 2nd July 1990, he had given
evidence before the coroner in
which in his
examination-in-chief, the
following passage occurs:
“And Opanin Kwadwo Sika told me
that my brother was admitted at
the hospital on Sunday afternoon
and he died at 12.45 a.m. and he
went on to say to the whole
gathering that if someone is
taken to hospital and he died
less than 24 hours, then the
hospital has to perform
post-mortem and that since Atta
was admitted and died less than
24 hours, the post-mortem had
been performed and that he had
given permission and the
post-mortem had been performed.”
And then again
“And Opanin Kwadwo Sika
mentioned that the report
together with the burial
certificate were with one Dr
Boateng of Chest Clinic, Korle
Bu, and that he would see him to
let us have them at about 4.00
p.m. on the same day being 30th
January, 1990.”
Further on, Mr Kwabena Peprah
stated: “I told Dr Otu that
the family is demanding a full
coroner’s inquest and
therefore Dr Otu told me that Dr
Dodu had been instructed to
conduct full post-mortem on the
body again”. (Emphasis mine.)
How then could Mr Kwabena Peprah
swear positively that his family
had not repudiated the autopsy
report or that he had “never
either alone or in concert with
my family requested a second
post-mortem examination on
the body of my brother”?
(Emphasis mine.)
In a well-reasoned ruling based
on the material before him,
Aryeetey J had no difficulty in
acceding to the appellant’s
prayers. The Republic appealed
against the ruling to the Court
of Appeal stating six grounds on
which it felt the decision of
the High Court should be upset.
Chief among the grounds was that
“the learned judge erred in law
when he constituted the High
Court into a coroner”.
The basis for this attack was
that since the learned High
Court judge had called for Dr
Simmons to attend to give
evidence in amplification of his
medical report it was obvious
that the cause of death was
unknown and that that sort of
evidence in amplification of
exhibit A was properly to be
furnished before a coroner and
not a High Court judge. In the
words of the learned Chief State
Attorney, “the judge usurped the
jurisdiction of the coroner”.
In my respectful view, the
learned High Court judge did no
such thing. In his ruling the
learned High Court judge stated:
“The police statement indeed
contained the findings but not
the conclusion as to the cause
of death and it was precisely
for that reason that the
medical officer was invited to
come and explain the
relevance of his findings to
what he had originally
undertaken to do which was to
find the cause of death.”
(Emphasis mine.)
The learned High Court judge was
right in inviting Dr Simmons to
come and “explain” certain
aspects of his statement to the
police. The learned High Court
judge was on very good ground.
Order 38 rule 1 of LN 140A, the
rules of the High Court,
provides as follows:
“Upon any motion, petition or
summons, evidence may be given
by affidavit; but the Court or a
Judge may, on the application of
either party, order the
attendance for cross-examination
of the person making any such
affidavit.”
I note the 1956 Annual
Practice, popularly called
the White Book, on Order
38 rule 1 states that:
“Persons other than deponents
may in special circumstances be
called on the hearing of a
motion.”
The authors cite in support of
this proposition the case of
Leiserach v Schalit [1934] 2
KB 353 in which the arbitrators
were allowed to give evidence on
a motion to set aside an award
where the court could not
ascertain the facts from the
affidavits. Again section 68 of
the Evidence Decree 1975 permits
the court at any stage in any
proceedings to call a witness.
In my respectful opinion whether
proceedings are being conducted
on affidavit or oral evidence, a
court is entitled to call its
own witness and examine any
person whether a deponent or
not. Mr Forster (now Justice
Forster of the Court of Appeal)
then learned Chief State
Attorney and representing the
Republic indicated to the High
Court in the manner following:
“Mr Forster does not intend to
cross-examine the witness on the
basis that he is here only to
explain exhibit A which the
Attorney-General exhibited in
this case.” (Emphasis mine.)
It is very clear therefore that
the learned High Court judge
never assumed the jurisdiction
of a coroner. His decision was
unassailable and the conclusion
that:
“Since the cause of death was
known before the coroner
embarked upon his enquiry, I am
of the view that he acted
without jurisdiction ...”
was warranted by the prayer
contained in the application
before him. Against this
decision the Republic appealed
to Their Lordships of the Court
of Appeal.
Before I consider the judgment
of Their Lordships of the Court
of Appeal which is under attack
before us I would like to deal
with the involvement of the
Attorney-General’s Office in
this appeal. I think learned
Chief State Attorney
misunderstands his position in
this case. In their statement of
case learned counsel for the
appellant, Nana Akufo-Addo
discussed section 5(3) of the
Coroners Act and the
circumstances under which the
Attorney-General may call for a
coroner’s enquiry. It is rather
unfortunate that in his reply to
the statement of case, learned
Chief State Attorney did not
advert to this submission. It
must be taken, therefore, that
he agreed with those
propositions made in the
appellant’s statement of case.
However, it is correct to say
that learned Chief State
Attorney was representing the
coroner and the Registrar of the
district court. Order 59 rule
4(2) of LN 140A provides that:
“(2) The notice or summons
should be served on all persons
directly affected, and where it
relates to any proceedings in or
before a Court and the object is
either to compel the Court or an
officer thereof to do any act in
relation to the proceedings or
to quash them or any order made
therein, the notice of motion or
summons shall be served on the
Clerk or Registrar of the Court
and the other parties to the
proceedings.”
It was on the basis of this rule
that the Registrar of the
district court was served, and
he being a public officer, it
was the Attorney-General who
legally had to represent him.
Hence the appearance of learned
Chief State Attorney in this
case. I would however take issue
with the Attorney-General’s
Office on the matter of getting
someone to swear to affidavits
in opposition to such
applications as we are now
presented with. It has been that
office’s practice to get a clerk
who knows next to nothing about
the application to swear to some
affidavit. I have observed in
this court and elsewhere that
even though registrars of courts
are served in such applications
they never swear to any
affidavits in opposition or
reply. I will suggest that in
future in applications to invoke
the supervisory jurisdiction of
the superior courts relating to
proceedings in or before a
court, and the object is either
to compel the court or an
officer to do any act in
relation to the proceedings or
to quash the same, the
affidavits in opposition or in
reply should be sworn to by the
Registrar of the appropriate
court so involved.
Their Lordships of the Court of
Appeal in a rambling judgment
allowed the appeal. They
discussed some of the matters on
which I have already expressed
my opinion. In my view Their
Lordships completely missed the
issue which was stated by
learned Chief State Attorney
with characteristic clarity
thus:
“By far the most important issue
for determination before the
court was whether the cause of
death was known at the time the
coroner held the inquest. If the
cause of death was not known
then he had jurisdiction under
section 5(1) of Act 18 to hold
an inquiry. But if the cause of
death was known, then he could
not hold an inquiry.”
Their Lordships indulged in
inconsequentials and ended their
judgment by faulting the present
appellant on a procedural note.
It is strange that Their
Lordships should expend so much
thought in determining whether a
widow whose dead husband’s body
is the proposed subject for a
coroner’s inquest on the ground
that she had administered poison
to him immediately preceding his
death was an “interested party”.
Common sense and the rules of
natural justice should compel a
court to adjudge that she is an
“interested party”.
Learned Chief State Attorney
thinks that a coroner’s inquest
is a very innocuous proceeding.
He concludes that by section 17
of Act 18, the coroner is only
to record his findings “as to
time, place, and cause of
death”. Learned Chief State
Attorney further contends that
“no one has been charged with
any offence, no one stands
accused of any offence”.
Learned Chief State Attorney
cannot be right. Section 17(2)
of Act 18 provides as follows:-
“(2) In no case shall the
findings name any person
as being guilty of any offence
in connection with the death of
the deceased person.”
(Emphasis mine.)
Thus the coroner could in this
case without naming the
appellant record the cause of
death as due to poisoning. Since
the police docket would in any
case contain her name, the
appellant would become the prime
suspect and subject to criminal
prosecution. When therefore the
section says that the finding
shall not “name any person”,
what it means is that the
coroner shall not name any
particular person as being
connected with the death.
Their Lordships in the Court of
Appeal faulted the present
appellant on a procedural point.
The appellant had not filed a
copy of the proceedings of the
inquest which was sought to be
quashed and Their Lordships
having discussed the law on this
issue came to the conclusion
that:
“In the face of the law,
supported by the cases cited, I
would set aside the coroner’s
order of the High Court, as the
judge had no proceedings or
order before him to quash.”
With the greatest respect to
Their Lordships, that
proposition of the law is not
altogether correct. In the
Annual Practice of 1956 at
page 1305 referring to Order 59
rule 1 of the High Court (Civil
Procedure) Rules under the
sub-title “Coroners” the learned
editors note that:
“The application must be made by
the Crown or a party interested
and there must be an affidavit
verifying a copy of the
inquisition or accounting for
the absence.”
True enough the affidavit of the
appellant verifying her
statement does not account for
the absence of the proceedings.
But in the circumstances of the
case it would have been
virtually impossible within the
time-frame for the appellant to
obtain the copy of the
proceedings. In my respectful
view, the non-production of the
copy of the proceedings was not
fatal to the success of that
application. The law has
undergone considerable
development since the case of
R v Newington Licensing Justices
[1949] 1 KB 681 and the superior
courts will now on a
certiorari quash even a
“speaking order”. The finding by
the Court of Appeal therefore is
unwarranted by law.
In this court the appellant has
stated only one ground of
appeal, namely:
“Their Lordships erred in their
declaration that the coroner has
jurisdiction to conduct the
coroner’s inquest thus
occasioning for the appellant, a
substantial miscarriage of
justice.”
It is agreed by both parties
before us that the central issue
in this appeal is the
interpretation to be placed on
section 5(1) of Act 18. Their
Lordships in the Court of Appeal
attempted to interpret section
5(1) of the Act and stated:
“The essential part of section
5(1) to which attention must be
drawn for purposes of
interpreting section 5(1)(b) and
for that matter the whole of
section 5(1) is the expression
‘and has reasonable cause to
suspect’.”
Section 5(1)(b) then means that,
as in this case, if the coroner
receives information that
somebody has died in the
district and the coroner thinks
he has reasonable cause or good
reason to suspect that that
person died a death whose cause
is unknown, he is bound by law
to hold an inquiry touching the
death as soon as possible. In
other words, according to Their
Lordships, “reasonable cause”
means reasonable cause. Their
Lordships further consider that
that section also confers a
discretion on the coroner to
determine whether he should
conduct an inquest.
In the English case of
Liversidge v Anderson [1941]
3 All ER 338 at page 345, the
British House of Lords per
Lord Maugham interpreting the
expression “reasonable cause”
wrote:
“... the prima facie
meaning of such a phrase as “if
AB has a reasonable cause to
believe” a certain circumstance
or thing should be construed as
“if there is in fact reasonable
cause for believing” that thing,
and if AB believes it. However,
I am quite unable to take the
view that the words can only
have that meaning. It seems to
me reasonably clear that, if the
thing to be believed is
something which is essentially
one within the knowledge of AB
or one for the exercise of his
exclusive discretion, the words
may well mean “if AB acting on
what he thinks is reasonable
cause (and, of course, acting in
good faith) believes” the thing
in question.”
Again, in the Australian case of
Opera House Investment Pty
Ltd v Devon Building Pty
Ltd (1936) 55 CLR 110 at
page 117 Starke J stated:
“Reasonable is a relative term
and the facts of the case must
be considered before what
constitutes a reasonable
contract can be determined.”
For my part, I should substitute
the words “cause” for the word
“contract” in the dictum
of Starke J and read his dictum
as follows:
“Reasonable is a relative term
and the facts of the case must
be considered before what
constitutes a reasonable
cause can be determined.”
Having considered these dicta,
I would within the context of
the Coroners Act interpret the
phrase “reasonable cause” to
mean “if the coroner after
considering all the facts and
circumstances of the case in
good faith suspects that a
person has died in any of the
circumstances mentioned in
section 5(1)”. Even when the
coroner satisfies himself about
there being “reasonable cause”
he is not entitled to embark
upon an inquest. At page 240 of
Halsbury’s Laws of England,
1st ed there is a foot-note
citing an old English case of
R v Kent JJ (1809) 11
East 229 in which the learned
and noble editor has noted the
dictum of Lord
Ellenborough which says “that it
is highly illegal for coroners
to obtrude themselves upon
private families without any
pretence that the deceased died
otherwise than a natural death”.
The next pre-requisite to enable
the coroner to embark upon the
inquest is whether he has
reasonable cause to believe that
the death was violent or
unnatural. Mr Kwabena Peprah
cried “poison”. The doctors said
there was no poison. Was the
death of Emmanuel Atta Ampomah
unnatural?
In Sir John Jervis’s learned
treatise Coroners (9th
Ed) at page 83 thereof the
learned editors have stated
thus:
“All deaths can in a sense be
regarded as natural. This is
true in a philosophical sense.
It is also true in a medical
sense in that in all cases death
is brought about by the failure
of one or other of man’s organs.
In order therefore to
distinguish between one sort of
death and another, it is
necessary to consider not the
terminal cause of death but the
cause which was the real cause
of death.”
Clearly upon the basis of this
statement Dr Dodu’s statement
that “the immediate cause of
death is undetermined” is
professionally unacceptable. Dr
Simmons was right. Atta Ampomah
was a long-standing sufferer
from the diseases one of which
eventually killed him and the
young doctor’s autopsy confirmed
this fact.
The learned editors continue at
page 86 and define natural death
as “one by reason of old age, or
disease, other than a death from
violence, accident or poison”.
From the discussions on what may
constitute an unnatural death I
deduce such a death must be
caused by the intervention of
some agent, such as motor
accident or death on a surgeon’s
table or by the administration
of poisonous or potentially
poisonous substances.
In this appeal the suggestion
seems to be that the food which
Atta Ampomah ate prior to his
illness and consequent death was
tainted with poison. This
allegation is patently untrue.
The allegation which provoked
the coroner into session was
that Atta Ampomah had died an
unnatural death and not that the
cause of death was unknown. I
have already explained what is
meant by the expression
“unknown” within the context of
the Coroners Act.
One small matter remains before
I conclude. On the 24th May
1991, the coroner went into
session to continue with the
inquest. His court notes state:
“This inquest is for further
hearing to-day. But I am finding
it difficult to get a courtroom
to conduct the inquest. This has
been brought about because I was
on relief duty last year when I
started this inquest and it went
on appeal.”
Now section 1(1) of Act 18
provides as follows:
“(1) Every District Magistrate
shall be a coroner for the
magisterial District to which
he is appointed.” (Emphasis
mine.)
In my respectful opinion, a
district magistrate on “relief
duty” is not a magistrate who
has been appointed to that
magisterial district. The duties
of such a relief magistrate are
limited to taking the pleas of
accused persons and if they
plead guilty to convict and
sentence and if they plead not
guilty to grant bail or
otherwise and adjourn. Likewise
in civil matters he may give
judgment where the defendant
pleads liable and adjourn the
case where the defendant does
not plead liable. He cannot
commence the hearing of a case
or continue part-heard cases.
In the instant situation
therefore the whole inquest was
a nullity. I derive support for
this submission from the English
case of R v Kent JJ to
which I have already referred in
this opinion. In that case a
coroner proceeded from his
district to conduct an inquiry.
On completion of the inquiry, as
it is the law in England, the
coroner presented a bill for his
fees to the local authority. The
local authority refused to pay
on the ground that the inquest
was improperly taken. Without
attaching any ill-motive to the
coroner’s action, the court
nevertheless upheld the local
authority’s contention that it
would not pay the fees. It was
this situation that provoked
Lord Ellenborough’s comment to
which I have already adverted.
As Nana Akufo-Addo, learned
counsel for the appellant said
in amplification of his case
before us, there are virtually
no reports of any coroners’
cases in our law reports. My own
researches into the law reports
for as far as were available to
me yielded only one entry from
Griffith’s Digest
which, as it turned out, was not
relevant to this appeal. In the
circumstances I have thought it
desirable to expound the law as
relates to the jurisdiction and
duties of coroners under the
Coroners Act (Act 18) - the
better to inform magistrates who
will be called upon in my view
increasingly, in the light of
the sophistication to which our
society is attaining, to conduct
inquests. I need not emphasise
that a basic knowledge of
forensic medicine on the part of
magistrates and judges will
immeasurably assist them in
appreciating the issues
involved.
In our culture, no death is
natural. Either the dead was
bewitched, aged or poisoned. It
is very strange that Mr Kwabena
Peprah who lays claims to being
a prominent businessman and
affects civilised and affluent
living should have succumbed to
this base and primitive aspect
of our culture.
The appellant deserves
commendation for pursuing her
claims to be vindicated even to
this court, the highest court of
the land. In so saying I do not
mean that this court will
encourage the actions of
scheming and vicious women. On
the other hand in line with
public policy and the movement
to emancipate the women of this
country, this court will at all
times defend, uphold, support,
maintain, encourage, and enforce
measures - whether legal or
social - for the eradication of
the deprivations and
disadvantages which our
customary social system imposes
upon women.
In my respectful view, before
the coroner embarked on his
inquest he had all the facts
presented to him. Had he
examined the docket in terms of
the definition of what I have
said constitutes “reasonable
cause” and the other definitions
given in this opinion, he could
have come to only one
conclusion, that the inquest was
unnecessary.
I therefore hold that Emmanuel
Atta Ampomah died of natural
causes and that the cause of
death was known and certified by
Dr William Minnow Simmons as
resulting from “cerebrovascular
accident”.
In the result the appeal is
allowed. The judgment of the
Court of Appeal is set aside and
the decision of the High Court,
Accra, dated the 21st September
1990 is restored.
The issue of costs has exercised
my mind in the consideration of
this opinion. In such
applications to invoke the
supervisory jurisdiction of the
superior courts, the applicant
is a relator to the
Attorney-General - that is to
say, the conduct of the
proceedings is in the name of
the Attorney-General. Hence the
title of the application is
always: Republic v
So and So, ex parte
The Applicant. In principle
the applicant to such an
application “borrows” the
Attorney-General’s authority to
institute the application and
the real respondent is the
opposing party in the
proceedings sought to be
prohibited or quashed. The
Attorney-General as such may at
anytime intervene and put an end
to the proceedings. Indeed the
Attorney-General’s decision to
intervene and put an end to the
proceedings cannot be appealed.
The English case of Gouriet v
Union Of Post Office Workers
[1977] 3 All ER 70 illustrates
the role of the Attorney-General
in such proceedings.
In this case I have no doubt
that the person who ought to pay
the costs is Mr Kwabena Peprah.
Unfortunately for him, I cannot
place him properly within the
context of payment of costs as
the Attorney-General’s Office
has borne the brunt of resisting
the appeal. In so doing, the
Attorney-General’s Office
appears to have “hunted with the
hounds and ran with the horse”.
For the appellant, I am sure
that this is the end of a happy
day and costs do not matter
anymore.
I will therefore not press that
this court awards costs in this
appeal.
BAMFORD-ADDO JSC.
The facts of this case are that
Emmanuel Ampomah (deceased),
husband of Flora Ampomah fell
ill on 29 January 1990. He was
rushed to Korle-Bu Hospital
where he died less than 24 hours
after admission. The diagnosis
of his illness on admission was
hypertension and diabetes
melitus, from which he is
said to have suffered for a good
number of years prior to his
death. Dr Simmons, a
pathologist-trainee at the
Korle-Bu Hospital performed a
partial post-mortem on the body
the same day, according to him
to verify the clinical
diagnosis, and on opening the
skull reported his findings as
follows:
“Bilateral intracerebral
haemorrhage with subarachnoid
extension which was consistent
with hypertensive heart
disease.”
Dr Simmons said since the
clinical diagnosis did not
mention probable poisoning or
homicide, he did not consider it
necessary to rule out poisoning,
and after the said post-mortem
he disposed of the brain which
was the usual procedure.
On 9th February 1990 one Kwabena
Peprah, a brother of the
deceased met him and expressed
his dissatisfaction with the
first post-mortem report because
he Peprah suspected “foul play”.
Consequently, Dr Simmons
suggested the holding of a
second post-mortem to look for
evidence of “foul play”, and a
second post-mortem was
performed. The report of this
post-mortem was signed by Dr
Felix Dodu, consultant forensic
pathologist at the Korle-Bu
Hospital. The report is
reproduced hereunder for
subsequent critical analysis
later in this judgment.
“DEPARTMENT OF PATHOLOGY
8th March, 1990
POST-MORTEM REPORT
ON
EMMANUEL AMPOMAH ATTA
I Dr Felix Dodu, Consultant
Forensic Pathologist, in the
Korle-Bu Hospital Mortuary,
examined a body identified to me
by Asante Affum in the presence
of 22857/Sgt. G.N.K. Kumado
(Korle Bu) as that of Emmanuel
Ampomah Atta. Age 62 years. Sex:
Male.
General Condition:
Body of a middle-aged male.
Moderately well-nourished with
purplish accosal areas. There is
a sutured, cut-down incision in
right groin and over the vortex
of the skull.
Marks of Violence:
Nil.
Dissection revealed:
Organs are fixed in formalin.
P.8.
There are no pleural adhesions.
Both lungs are solid but show a
homogenous out surface.
C.V.S.
The heart is enlarged and weighs
approximately 450g. There is
definite left ventricular
hypertrophy and dilation of both
mitral and tricuspid rings. The
latter is artefactual from the
fixation. There is no marked
arteriocolerotic change or
calcification in the coronary
arteries to indicate occlusion.
Abdomen:
Most of the organs are involved
in fat including the pancreas
which is shrunken.
Spleen and Liver
- no abnormality detected. Both
kidneys show arteriolosclerosis.
The stomach contains partially
digested food.
C.N.S.
The brain tissue had been
removed. Stripped dura show no
extradural bleed.
Analytical Report:
Liver:
Negative for common poison
although sample was preserved in
formalin.
Kidney:
Negative for heavy metals.
Remarks:
No poison was detected in the
sample although they were
preserved in formalin. In future
samples for toxicological
analysis should be brought
fresh. Where some form of
preservation is required blood
and urine should preserved in
sodium fluoride, (0.1%
concentration). Other samples
may be preserved in ethyl
alcohol.
Signed: Dr J M Odonkor
Senior Scientific Officer.
COMMENT:
1. The body has been well
preserved
2. Apart from the cut down
incision in the leg and the fact
that the skull has been sawn
open, there has been no other
scientific procedures carried
out on this body.
Signed: (Dr Felix Dodu)
Consultant Forensic Pathologist
To the coroner:
Copy to - The Police.”
As a result of the report
received from Peprah, the police
commenced inquiries into the
death of the deceased and took
statements from a number of
persons including Peprah, the
widow, and Dr Simmons. All the
statements as well as the report
of Dodu were compiled into a
docket and submitted to the
Accra District Magistrate, the
coroner of the area. The police
then invited the widow, cleared
her of any suspicion regarding
the death of her husband and
released the body for burial.
The exoneration of the widow by
the police, was reported in the
“Mirror” newspaper of 31st May
1990 under the caption “Widow
vindicated of poisoning
husband”. The body was buried
and this appeared to be the end
of the matter until the widow
was served with subpoena to
appear before the coroner in an
inquiry into the circumstances
of her husband’s death. When the
inquiry opened the coroner, His
Worship K Owusu, District
Magistrate Grade 1 said:
“I have carefully examined the
docket in respect of the case of
Emmanuel Atta Ampomah (deceased)
and I have come to the
conclusion that the inquest
should be held.”
After hearing Kwabena Peprah,
the coroner called upon the
widow to give evidence. Her
counsel, Nana Akufo-Addo,
objected to her giving evidence,
which was overruled and she was
forced to give evidence.
Thereafter her counsel applied
to the High Court for an order
of certiorari to quash
the proceedings before the
coroner on the ground that he
had no jurisdiction to hold the
inquest, and prohibition to
prevent the further hearing of
the inquest. The coroner’s power
to hold an inquest in specific
circumstances can be found in s
5 of the Coroners Act 1960 (Act
18).
The ground for the certiorari
and prohibition was that since
the cause of death of deceased
was “known” the coroner had no
jurisdiction under Act 18 s 5 to
hold an inquiry into his death.
The learned High Court judge who
heard the application considered
the affidavits filed in the
case, saw the two post-mortem
reports and called Dr Simmons to
clarify and explain his report.
I would here mention that these
two post-mortem reports were
also available to the coroner.
The High Court judge concluded
that the cause of death was
“known” in view of said
documents, consequently, the
coroner had no mandate or
jurisdiction to commence an
inquest. He granted the orders
of certiorari and
prohibition.
On appeal by the respondent, the
Court of Appeal allowed the
appeal and set aside the order
of the High Court dated 21
September 1990. The appellant
appealed to this court and the
one ground of appeal filed
is that Their Lordships erred in
their declaration that the
coroner had jurisdiction to
conduct the coroner’s inquest,
thus occasioning for the
appellant a substantial
miscarriage of justice. In
support of this ground he
argued, in his statement of the
case, the following matters:
(a) That the coroner had no
mandate under Act 18 to commence
an inquest and had acted without
jurisdiction.
(b) That the holding of the
inquest was wrongly solicited by
Kwabena Peprah since the right
to decide on an inquest is
firmly resident in the coroner
upon the existence of certain
pre-conditions.
(c) That the Court of Appeal
wrongly interfered with the
exercise of the High Court’s
discretion to grant the
application for certiorari
and prohibition by substituting
its discretion with that of the
High Court judicially arrived
at, and called upon this court
to affirm the decision of the
High Court and allow the appeal.
The Coroners Act 1960 (Act 18) s
5(1) says:
“When a Coroner is informed that
the dead body of any person has
been found, or that any person
has died, in his district and he
has reasonable cause to
suspect that that person has
died—
a. a violent or other unnatural
death; or
b. a death of which the cause
is unknown; or
c. while detained in a prison,
lock-up, lunatic asylum or
public institution other than a
hospital; or
d. in such place or
circumstances as, in the opinion
of the Coroner, to make the
holding of an inquiry in
accordance with this Act
necessary or desirable, he
shall, subject to the
provisions of this Act, hold as
soon as practicable an inquiry
under this Act touching the
death.
(2) The Coroner may, except in a
case where the person has died
while detained in a prison or
lock-up, dispense with the
holding of an inquiry—
(a) if as a result of an
examination under section 7 of
this Act, the coroner is
satisfied that the death was due
to natural causes or
(b) (i) if the Coroner is
satisfied as to the cause of
death, whether with or without
any examination ; and
(ii) that the death was due to
mere accident or mischance or to
chronic alcoholism, or occurred
without lack of reasonable care
on the part of any person while
the deceased was under an
anaesthetic or was undergoing a
surgical operation; and
(iii) that no public benefit is
likely to result from an
inquiry.” (Emphasis mine.)
Further to section 5, section 7
of Act 18 gives the coroner
power to order a post-mortem on
a dead body or order special
examination by way of analysis,
etc. and report the conclusions
of such examination to the
coroner as to cause of death in
cases where there is not already
a post-mortem report. It says
further that the report shall
be prima facie evidence
of the facts therein stated, but
the coroner may summon as a
witness, the person who made the
report, to give evidence as to
his opinion of the cause of
death.
A careful analysis of these
provisions of the Coroners Act,
shows as regards this case that,
the coroner should hold an
inquest only when he has
“reasonable cause” to suspect
under s 5(b) of Act 18 that the
“cause of death is unknown”.
Even in such a case, except,
where the person who died is
detained in a prison or lock-up
he may dispense with the holding
of an inquest if post-mortem or
autopsy reports show the cause
of death, and such reports are
held to be prima facie
evidence of the facts stated
therein. In this case there were
already two post-mortem reports
and there was therefore no need
for the coroner to make an order
under s 7.
It is the contention of the
appellant that the two
post-mortem reports when read
together should disclose the
“cause of death” in which case
there would be no justification
for the coroner holding that he
has reasonable cause to suspect
that the cause of death was
unknown, which is a precondition
for commencing an inquest, and
consequently he acted without
jurisdiction.
Counsel for the respondent, Mr
Baddoo, counters this argument
by saying that since at the end
of Dr Dodu’s report he stated
that “the cause of death is
undetermined” the coroner was
right in holding that the cause
of death was unknown despite the
report of the first post-mortem,
clearly stating the cause of
death as “cerebrovascular
accident”. Whether the cause of
death was known or unknown
becomes a matter of
interpretation of the two
post-mortem reports. These
reports should be placed side by
side and read together as parts
of a bigger whole document, for
the purpose of considering their
final import. Clearly it would
be wrong to read Dr Dodu’s
report in isolation, the two
reports must be read not only
severally but jointly as well,
so as to arrive at a proper
construction of their contents.
This is what I propose to do.
The highlights of Dr Dodu’s
report are that the body was
examined for poisoning which
proved negative and that all the
organs except the heart were
normal. The report on the heart
says:
“C.V. S. The heart is enlarged
and weighs approximately 450g.
There is definite left
ventricular hypertrophy and
dilation of both mitral and
tricuspid wings. The latter is
artefactual from fixation ...”
and the comment on this says:
“The deceased suffered from
hypertensive heart disease.”
It is to be noted that this
comment supports the clinical
diagnosis as well as the report
of Dr Simmons who examined the
brain, which was not available
to Dr Dodu. Dr Dodu’s report
says that the cause of death is
“undetermined”, a word which I
think was used advisedly,
because Dr Dodu already knew the
contents of the first
post-mortem report and since he
had excluded poisoning or any
other cause, but had not had the
opportunity of examining the
brain, he could not properly
determine the cause of death and
his final sentence was the only
logical conclusion he could have
reached in the circumstances. It
is my view that Dr Dodu’s report
does not contradict that of Dr
Simmons and that word
“undetermined” can only apply to
what he found. Dr Simmons report
should be taken as the only
available report which discloses
the actual cause of death since
he examined the brain and made
his findings as to the cause of
death. This finding is supported
by clinical diagnosis on
admission of deceased, confirmed
by Dr Dodu’s report on the heart
and affirmed by the evidence of
both the widow and Peprah
himself that the deceased had
been a hypertensive and diabetic
patient for a good number of
years prior to his death. No
other cause of death has been
suggested except poisoning which
has been excluded by Dr Simmon’s
finding that deceased died of
“cerebrovascular accident”. This
has not been challenged nor
scientifically faulted and, in
my opinion cannot be so
challenged, in view of the
overwhelming medical evidence
available as to the cause of his
death. Indeed any contrary
finding would be unjustified on
the evidence available in this
case. I am convinced that the
only logical conclusion to come
to upon proper reading of the
two post-mortem reports, which
were available to the coroner,
should be that the deceased died
of “cerebrovascular accident”
and that the cause of death was
“known” and I so hold.
Consequently the High Court
judge was right in holding that
the cause of death was not
“unknown”.
He has been criticised by the
Court of Appeal, for calling for
evidence from Dr Simmons, on the
ground that by so doing he was
usurping the functions of the
coroner. With respect, I
disagree with this finding. The
High Court judge was not
usurping any powers of the
coroner, he was merely trying to
find out whether on the evidence
available before the coroner the
preconditions for clothing him
with jurisdiction were
satisfied, since the complaint
of appellant was that the
coroner had no jurisdiction
because an essential preliminary
requirement for the holding of
an inquest was not present. The
coroner’s alleged error related
to a collateral or preliminary
matter on which his jurisdiction
depended, so that if he falls
into error through applying the
wrong test to arrive at the
preliminary finding,
certiorari may issue to
quash his decision and
prohibition to prevent him from
further hearing. The coroner’s
finding that this was “a proper
case in which an inquiry should
be held” is one which is being
challenged as wrong. Where a
tribunal is empowered to do
something or make orders only
when it has reasonable
grounds for believing that a
certain state of affairs exist,
the “reasonableness” of his
grounds for the belief can
properly be treated as a
jurisdictional fact open to
examination by a court on an
application for certiorari.
Hence the High Court must
inquire into the
“reasonableness” of the grounds
for the coroner holding that the
“cause of death was unknown”.
Where “reasonable cause” is a
precondition, as in Act 18 s 5,
the criterion of reasonableness
is not subjective but objective
in the sense that it is subject
to formulation and application
by a court of law. See the case
of Rippon (Highfield) Housing
Confirmation Order 1938, Re
White and Collins v Minister of
Health [1939] 2 All ER Rep
548. In that case it was held
that a local authority under a
Housing Act can acquire land
compulsorily but it cannot
acquire land which forms part of
a garden or pleasure ground,
etc. The local authority made a
compulsory order of purchase of
land. The owners objected, as it
was contrary to the said Act. A
motion was brought asking that
the order be quashed as being
outside the powers of the Act.
It was held by the Court of
Appeal that the motion was a new
and independent proceeding and
not a rehearing or retrial and
that the court had jurisdiction
to review the finding of fact
(that the land was not for a
pleasure ground or park) and if
necessary to direct for
additional evidence. Also that
on affidavit evidence before the
court the land in the
application was part of a park
and that the order for
compulsory purchase should be
quashed. In this case Luxmoore
LJ at p 559 said:
“There is however, ample
authority that the Court is
entitled so to act, for the
point has been considered in a
number of cases. It is
sufficient to refer to
Bunbury v. Fuller 9 Ex 111,
140. In that case Coleridge, J.,
delivering the judgment of the
Court of Exchequer Chamber,
said, at p. 35:
‘... it is a general rule that
no court of limited jurisdiction
can give itself jurisdiction by
a wrong decision on a point
collateral to the merits of the
case upon which the limit to its
jurisdiction depends; and
however its decision may be
final on all particulars making
up together that subject-matter
which, if true, is within its
jurisdiction, and however
necessary in many cases it may
be for it to make a preliminary
inquiry, whether some collateral
matter be or be not within the
limits, yet, upon this
preliminary question its
decision must always be open to
inquiry in the superior court.
Then, to take the simplest case
- suppose a judge with
jurisdiction limited to a
particular hundred, and a matter
is brought before him as having
arisen within it, but the party
charged contends that it arose
in another hundred, this is
clearly a collateral matter
independent of the merits. On
its being presented, the judge
must not immediately forebear to
proceed, but must inquire into
that preliminary fact and for
the time decide it, and either
proceed or not with the
principal subject-matter
according as he finds on that
point; but this decision must be
open to question, and if he has
improperly either foreborne or
proceeded on the main matter in
consequence of an error, on
this, the Court of Queen’s bench
will issue its mandamus
or prohibition to correct his
mistake’ ...”
It is my opinion that the High
Court is empowered at the
hearing of the certiorari
application to enquire, in a new
and independent proceeding into
a vital finding on which the
existence of the coroner’s
jurisdiction depended, since if
this were not so, the right to
apply to the court for
certiorari would be
illusory. The High Court judge
properly considered the
affidavits and the medical
reports exhibited before him
including Dr Simmon’s report and
evidence in deciding the
existence of a precondition to
assumption of jurisdiction by
the coroner. His finding that
the cause of death was “known”
was justified, in my opinion on
the evidence before him. He was
therefore performing an
independent duty in reviewing
the finding of the coroner, and
cannot therefore be said to have
usurped the functions of the
coroner.
I am satisfied that there was
sufficient evidence before the
coroner to enable him to come to
the conclusion that the cause of
death was “known”. I am further
satisfied that on the affidavit
evidence before the High Court
in the certiorari
application the only conclusion
open to the court was that the
“cause of death was known”. In
the circumstances it would seem
plain to me that there was no
jurisdiction in the coroner to
hold an inquest, and
certiorari to quash
proceedings was rightly granted.
I will next deal with the
finding of Court of Appeal that
the coroner was exercising a
discretionary power. With
respect, the Court of Appeal
confused discretionary power
with mandatory duties of the
coroner under Act 18 s 5, and
said that the discretion whether
or not to hold an inquiry was
that of the coroner alone, and
if wrongly exercised, except in
certain cases, cannot be
challenged by the High Court. If
the Coroners Act 1960, Act 18 s
5 had given the coroner only a
discretionary power I would have
agreed with the Court of
Appeal’s finding on this point,
but this is not the case.
Section 5 says that if the
coroner has reasonable cause to
suspect that the cause of death
is unknown he “shall” hold an
inquiry to discover the cause of
death. The use of the word
“shall” implies a mandatory duty
and not the exercise of a
discretionary power. This case
must be distinguished from the
case where a tribunal is given a
discretionary power to decide
certain matters as distinct from
deciding preliminary questions
of fact which clothe it with
jurisdiction to act at all. In
this case the coroner can only
assume jurisdiction upon certain
conditions being present, i.e.
“that he must have reasonable
cause to suspect that the cause
of death was unknown”. When he
makes this finding in the
affirmative then only can he
proceed to hold an inquiry under
s 5 and in that case the duty to
do this is mandatory and not
discretionary. It is not correct
therefore to say that he had a
discretionary power which is not
subject to review by the High
Court. The legal concept of
discretion implies power to make
a choice between the alternative
courses of action. If only one
course can lawfully be taken the
decision is not the exercise of
a discretion but the performance
of a duty as the word “shall” in
s 5 clearly indicates.
Consequently the coroner was not
exercising a discretion and his
finding can be challenged and
quashed if it led to a wrong
assumption of jurisdiction.
The next issue is whether the
coroner had “reasonable cause”
to suspect that the cause of
death was unknown. “Reasonable
cause” has been defined in
Liversidge v Anderson [1942]
AC 206 per Lord Atkin at p 226
where it was stated:
“The material words of the
[Defence (General) Regulations,
1939, reg 18B] are as follows:
“If the secretary of state has
reasonable cause to believe any
person to be of hostile origin
or association and that by
reason thereof it is necessary
to exercise control over him he
may make an order against that
person directing that he be
detained.”
They are simple words, and, as
it appears to me, obviously give
only a conditional authority to
the Minister to detain any
person without trial, the
condition being that he has
reasonable cause for the belief
which leads to the detention
order ... If it is a condition
to a right (including a power)
granted to A, whenever the right
comes into dispute the tribunal,
whatever it may be, which is
charged with determining the
dispute must ascertain whether
the condition is fulfilled. In
some cases the issue is one of
fact. In others, it is one of
both fact and law. In all cases,
however, the words indicate an
existing something the having of
which can be ascertained, and
the words do not mean, and
cannot mean, “If A thinks he
has”. “If A has a broken ankle”
does not mean, and cannot mean,
“if A thinks that he has a
broken ankle”. “If A has a right
of way” does not mean, and
cannot mean, “If A thinks he has
a right of way”. “Reasonable
cause” for an action or belief
is just as much a positive fact
capable of determination by a
third party as is a broken ankle
or a legal right. If its meaning
is the subject of dispute as to
legal rights, then ordinarily
the reasonableness of the cause,
and even the existence of any
cause, is in our law to be
determined by the judge and not
by the tribunal of fact...”
In view of my earlier finding
that the cause of death was
“known” I hold that the coroner
had no “reasonable cause” to
suspect that the cause of death
was “unknown”. He therefore had
no jurisdiction to commence the
inquiry.
Now to the question whether
certiorari is applicable in
this case. Where there is
failure of jurisdiction on any
grounds certiorari would
lie to quash the proceedings of
an inferior tribunal and prevent
further hearing.
In the case of Foxall v
Barnett (1853) 2 E & B 928
the plaintiff was committed to
prison by a warrant of a
coroner’s inquisition and,
without jurisdiction; he was
bailed and afterwards while on
bail procured the inquisition to
be quashed. He then brought an
action for false imprisonment
against the coroner. It was held
that the plaintiff was entitled
upon the allegation that he had
incurred the expenses of
quashing the inquisition held
without jurisdiction. Also in
R v Price (1884) 12 QB 247
at p 248 the defendant was
indicted for attempting to burn
the body of his child instead of
burying it and a second
indictment charged him with
attempting to bury the body with
intent to prevent the holding of
an inquest upon it. Stephens J
in discussing the law on inquest
had this to say:
“The coroner has not an absolute
right to hold an inquest in
every case in which he chooses
to do so. It would be
intolerable if he had the power
to intrude without adequate
cause upon the privacy of a
family in distress and to
interfere with their
arrangements for a funeral.
Nothing can justify such
interference except a reasonable
suspicion, that there may have
been something peculiar in the
death that it may have been due
to other causes than common
illness, in which case,
preventing him from doing so by
disposing of the body in anyway,
is a misdemeanour.”
The law in this country is that
a coroner must have authority
for holding an inquest as
indicated in Act 18. In the case
of R v Kent JJ (1809) 11
East 229 where it was held:
“A mandamus to the justices in
Session, to allow an item of
charge in the coroner’s account
was refused because the justices
were of the opinion under the
circumstances, that there was no
ground to suppose that the
deceased died any other than a
natural, though a sudden death,
and therefore that the
inquisition had not been duly
taken and this Court sees no
reason for interference with
that judgment.”
The facts in that case are that
the coroner held an inquiry into
the death of John Sutton who had
died suddenly in a shop in the
town while he was purchasing
some furniture. The townspeople
asked for an inquest which was
held. It appeared in evidence
before the coroner that Sutton
went into the shop apparently in
very good health, that he
complained of a pain in his hip,
sat down in a chair in the shop
and suddenly died. A surgeon was
immediately sent for to attend
him who endeavoured to restore
him but failed and an inquest
was held and the jury returned a
verdict that he died by
visitation of God. When the
coroner sent his bill for
payment, the magistrate
disallowed this charge, being of
opinion that the inquisition had
been improperly taken. He
applied for mandamus to
get his payment on the ground
that the death was sudden and
the coroner was called upon by
responsible inhabitants of the
place to hold an inquest before
he did so; that the refusal of
the magistrate to allow his
charge meant an imputation of
improper practice. The court
however exculpated the coroner
from the imputation of any
intentional improper practice in
the particular instance, as the
taking of the inquest seemed to
have been suggested to him by
others, but refused the grant of
the order. Lord Ellenborough CJ
observed therein:
“That there were instances of
coroners having exercised their
office in the most vexatious and
oppressive manner, by obtruding
themselves into private families
to their great annoyance and
discomfort without any pretence
of the deceased having died
otherwise than a natural death,
which was highly illegal. That
under the circumstances there
was no ground to suppose that
the deceased died any other than
a natural, though sudden death
and therefore that the
inquisition had not been
properly taken and the Court saw
no reason for interfering with
the judgment disallowing the
coroner’s charges.”
Similarly, as in this case, an
inquest improperly held without
jurisdiction would be quashed,
and the High Court judge after
properly considering the
evidence before him was right in
holding that the coroner had no
jurisdiction to hold the inquiry
as he had no “reasonable cause”
to suggest that the cause of
death was “unknown”. In other
words the preconditions for
assumption of jurisdiction were
non-existent.
The only other ground strongly
canvassed by appellant was that
the coroner acted without
jurisdiction as the holding of
the inquest was wrongly
solicited by Kwabena Peprah.
That the right to decide on an
inquest is firmly resident in
the coroner upon certain
preconditions and not on an
application or at the request of
any person. The reason for this
ground was that the coroner on
adjourning the hearing on the
14th May 1990 said:
“It was the said Mr Kwabena
Peprah who applied that the
inquest should be conducted and
therefore, I would like to take
his evidence first. And in his
absence I would not like to
start the proceedings. In view
of that I have decided to
adjourn the matter to 28 May
1990 at 8.30 a.m. to start the
proceeding by first listening to
the evidence of the applicant.”
If by this the coroner meant
that the inquest was being held
because Peprah had requested for
it, then he misconstrued the
extent of his duties as a
coroner. Under Act 18 it is only
the coroner who upon the
existence of certain
preconditions is duty bound to
commence an inquest, and no
right is vested in any member of
the public to apply for, or
request or solicit for an
inquest. In view of the
coroner’s earlier finding, that
he had carefully examined the
docket in respect of the case
and had come to the conclusion
that the inquest should be held,
it is difficult to understand
what he meant by his subsequent
statement that Peprah should be
the first witness to give
evidence because he had applied
for the inquest. It may be
possible to argue that the
coroner was mistaken in his
choice of words, and instead of
saying that Peprah had
“reported” the death to police
rather said Peprah had “applied”
for the inquest. But in my view
considering the fact that there
was ample evidence of the cause
of death in the police docket
submitted to him and the fact
that despite this he went ahead
to hold the inquiry, I think it
is reasonable to say that he
decided to hold the inquest
mainly because Peprah had
applied for it and not because
he felt bound under s 5 of Act
18 to do so. He totally
misconceived his duties and
powers as a coroner and even
though there is no evidence to
suggest that he acted otherwise
than in good faith, it is clear
that he wrongly exercised his
powers. A coroner is obligated
not to exceed his powers as
coroner, or use them to oppress,
harass or annoy members of the
deceased’s family and the
public. When he sits he does so
in a judicial capacity, the
limits of his powers are
specified in Act 18 and if he
acts without jurisdiction he
would be stopped by
certiorari and prohibition.
For the above reasons I hold
that the High Court’s ruling is
correct and unimpeachable and
that the Court of Appeal’s
decision must be set aside. In
the result the appeal succeeds.
Appeal allowed.
S Kwami Tetteh, Legal
Practitioner.