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GHANA BAR REPORT 1993 -94 VOL 1

Republic v District Court Grade 1, Korle-Gonno, ex parte Ampomah

SUPREME COURT

 

ARCHER CJ, WUAKU, AIKINS, BAMFORD-ADDO, HAYFRON-BENJAMIN JJSC

 

29 JULY 1992

 

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.

 
 

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