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Supreme Court
- Invoking the supervisory
jurisdiction - Certiorari and
Prohibition - Application for
bail - Stay of Execution -
Conspiracy to commit crime
contrary - Unlawful damage -
Unlawful entry contrary –
Stealing – Whether or not the
High Court, Ho did not have
jurisdiction to hear the
application for bail – Capacity
- Want of jurisdiction - under
article 139 (1) of the
Constitution
1992
and section
14 (1) sections 104 or 108 of
the Courts Act, Act 459.
HEADNOTES
The
applicants were complainants in
the criminal prosecution of the
interested persons at the
Circuit Court Hohoe in a case At
the Circuit Court, the
Interested parties herein,
therein accused persons were
tried and convicted them. The
Circuit Court, Hohoe on the 28th
day of September, 2010 sentenced
each of the Interested parties
to six (6) months imprisonment
with hard labour on each of the
counts with the sentences to run
concurrent. The complaint of the
applicants against the
interested parties was that on
or by the 7th day of
December, 2008 they broke into
the stool room of the applicants
where the Black stools and other
stool regalia of the Omanhene
stool of Pai Traditional area
were kept and stole same. The
applicants allege that, after
the conviction and sentence of
the interested parties on the 28th
day of September 2010, the
interested parties who were
incarcerated at the Kpando and
Ho prisons respectively, on the
19th October, 2010
successfully applied to the High
Court, Ho presided over by Abada
J, who granted an application
for bail to the interested
parties. It is this grant of
bail by the High Court, Ho on 19th
October, 2010 which is the crux
of the applicants application.
The applicants contend that the
High Court, Ho did not have
jurisdiction to hear the
application for bail pending
appeal to the interested
parties. This is because,
according to the applicants, it
is the Circuit Court, Hohoe, the
trial Court and the High Court,
Hohoe that have jurisdiction to
entertain the application for
bail.
HELD
What must be
noted is that, since
applications for grant of bail
pending appeal, affects the
fundamental rights of the
persons involved, these must be
handled expeditiously. In view
of the fact that, there was no
functioning High Court in Hohoe
who could have taken the said
application, there was nothing
wrong in filing the application
before the High Court, Ho.
We think
there are sound policy measures
behind this rule of practice.
This is because if the trial
court has considered it fit and
proper to convict and sentence
the appellant to a term of
imprisonment, it will be absurd
to go back to the same Judge or
Magistrate requesting for a
release whilst the appeal is
pursued. Perhaps this explains
why in practice, it is rare for
appellants in criminal cases to
go to the trial courts for an
application for bail pending
appeal. The objection by the
applicants herein to the
propriety of the 1st
- 4th interested
persons filing the application
at the High Court and not the
Circuit Court is thus dismissed.
In the
instant case, there is nothing
manifestly clear and obvious
that the High Court, Ho did not
have jurisdiction or exceeded
its jurisdiction at the time it
heard and determined the
application for bail pending
appeal. In respect of the order
of Prohibition, we are of the
considered view that once there
is as at now a functional High
Court at Hohoe, a report of the
entire appeal and any consequent
application be made to the Chief
Justice for a transfer of the
said appeal to Hohoe High Court.
It must however be understood
that the said order is neither
based on bias nor real
likelihood of bias. This has
been necessitated solely by the
geographical location of courts
throughout the country to
facilitate the distribution and
hearing of cases on sound
principles. The High Court,
Hohoe being now functional with
a presiding Judge must therefore
be made to hear the application
and appeal. Save as is stated
supra the application is
dismissed.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Courts, Act
1993, Act 459
CASES
REFERRED TO IN JUDGMENT
Opanyin
Kwadwo Odum and 3 others v The
Republic dated 19th
October, 2010
Republic v
Korle Gonno District Magistrate
Grade I Ex-parte Ampomah, [1991]
1 GLR 353
In re-Appenteng
(Decd) Republic v High Court,
Accra Ex-parte Appenteng &
Another [2005-2006] SCGLR 18
Republic v
High Court, Accra, ex-parte
Anyan (Platinum Holdings –
Interested Party) [2009] SCGLR
255,
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
JONES DOTSE
JSC:
COUNSEL
KWAME
YANKYERA FOR THE APPLICANT
AKWASI
BOSOMPEM FOR THE 1ST
– 4TH
INTERESTED
PARTY RESPONDENTS
GEORGE KWADWO
OFORI, P. S. A. FOR THE 5TH
INTERESTED
PARTY RESPONDENT.
______________________________________________________________________
RULING
______________________________________________________________________
JONES DOTSE
JSC:
This is an
application by Nana Diawuo and
another, hereafter referred to
as the applicants herein, who
described themselves as the
Omanhene and stool father of the
Pai Traditional area, in the
Krachi East District of the
Volta Region respectively.
By this
application, the applicants
invoke
the supervisory jurisdiction
of the
Supreme Court for the orders
of
Certiorari and Prohibition
to quash all the proceedings and
orders made by the High Court,
Ho in respect of Suit No. F.
22/07/2011 intitutled
Opanyin Kwadwo Odum and 3 others
v The Republic dated 19th
October, 2010 presided over
by Abada J, and also prohibit
the said court and Judge from
further hearing any application
in respect of the case.
FACTS
The
applicants were complainants in
the criminal prosecution of the
interested persons at the
Circuit Court Hohoe in a case
intitutled The Republic v
Opanin Kwadwo Odum, Constance
Osarfo, Benjamin Owusu @ Kwaku
Kuru, Beatrice Boame @ Auntie
Bea.
At the
Circuit Court, the Interested
parties herein, therein accused
persons were tried and convicted
on four counts of:
i.
Conspiracy to commit crime
contrary
to section 23 (1) of Act 29/60
ii.
Unlawful damage
contrary to section 172 (i) (b)
of Act 29/60
iii.
Unlawful entry contrary
to section 15 (2) of Act 29/60
iv.
Stealing
contrary to section 124 (1) of
Act 29/60
The Circuit
Court, Hohoe on the 28th
day of September, 2010 sentenced
each of the Interested parties
to six (6) months imprisonment
with hard labour on each of the
counts with the sentences to run
concurrent.
The complaint
of the applicants against the
interested parties was that on
or by the 7th day of
December, 2008 they broke into
the stool room of the applicants
where the Black stools and other
stool regalia of the Omanhene
stool of Pai Traditional area
were kept and stole same.
The
applicants allege that, after
the conviction and sentence of
the interested parties on the 28th
day of September 2010, the
interested parties who were
incarcerated at the Kpando and
Ho prisons respectively, on the
19th October, 2010
successfully applied to the High
Court, Ho presided over by Abada
J, who granted an application
for bail to the interested
parties.
It is this
grant of bail by the High Court,
Ho on 19th October,
2010 which is the crux of the
applicants application.
The
applicants contend that the High
Court, Ho did not have
jurisdiction to hear the
application for bail pending
appeal to the interested
parties. This is because,
according to the applicants, it
is the Circuit Court, Hohoe, the
trial Court and the High Court,
Hohoe that have jurisdiction to
entertain the application for
bail.
The
applicants also contend that the
interested parties have filed an
application before the High
Court, Ho praying for an order
of stay
of Execution of the orders
contained in the judgment of the
Circuit Court, Hohoe dated 28th
September, 2010.
The
applicants therefore seek an
Order of Prohibition to restrain
Abada J, presiding over the High
Court, Ho from presiding over
the said application and indeed
any other matter connected with
that case.
GROUNDS
1.
On the grounds of lack /want
of jurisdiction
2.
That the High Court, Ho has no
jurisdiction to hear the
application for Stay of
Execution of the judgment of the
Circuit Court, Hohoe without any
transfer order from the
Honourable Lady Chief Justice
SUBMISSIONS
The
submissions of learned counsel
for the Applicants, Mr. Yankyera
is to the effect that once the
interested parties were tried
and convicted by the Circuit
Court, Hohoe, it is the same
Circuit Court, Hohoe and or the
High Court also at Hohoe that
the appeal and the subsequent
application for bail pending
appeal must be filed. Learned
Counsel therefore submitted that
once the Chief Justice had not
transferred the case to the High
Court, Ho the said court lacked
jurisdiction to have entertained
the application and hear same.
In similar
vein, learned Counsel argued
that the High Court, Ho not
having had jurisdiction in the
earlier application, should be
prohibited from hearing the
pending application for Stay of
Execution of the orders of the
Circuit Court, Hohoe case No.
cc/11/2011 entitled
Republic v Opanyin Kwadwo Odum
and three others.
On his part,
learned Counsel for the
interested parties Akwasi
Bosompem contended that since
there is only one High Court in
Ghana as established
under
article 139 (1) of the
Constitution 1992 and section 14
(1) of the
Courts,
Act 1993, Act 459, the
application for bail pending
appeal which was filed at the
High Court, Ho at a time the
High Court at Hohoe did not have
a functional court is proper.
In a
preliminary legal objection,
learned counsel for the
interested parties, Akwasi
Bosompem to whose arguments
learned Counsel for the 5th
interested party, (the Registrar
of the High Court, Ho, Mr. Alex
Wiredu Principal State Attorney)
associated with, contended that
the applicants herein have no
capacity to have instituted
the instant application invoking
the supervisory jurisdiction of
the Supreme Court. Learned
Counsel contended that, being a
criminal case the interested
parties can only bring an action
with the consent of the
Attorney-General.
On the
contrary, learned Counsel for
the applicants, contended that
on the authority of the decision
of the Court of Appeal in the
case of
Republic v Korle Gonno
District Magistrate Grade I Ex-parte
Ampomah, [1991] 1 GLR 353,
this court has jurisdiction. In
view of the preliminary legal
objection that has been raised,
this court has to consider that
issue first.
In the Ex-parte
Ampomah case referred to supra,
the Court of Appeal was called
upon to decide on the issue of
whether in a certiorari
application, the applicant had
to establish that he had locus
standi i.e. real or substantial
interest in the proceedings
sought to be quashed.
The court of
Appeal unanimously held on the
above issue in the Ex-parte
Ampomah case as follows:-
“The
orders of certiorari and
prohibition, as the form of the
proceedings showed were means
for ensuring that the machinery
of public administration worked
properly and that justice was
done to individuals. And because
these remedies had a special
public aspect to them, an
applicant for certiorari or
prohibition did not have to show
that some legal right of his was
at stake. If the action
concerned an excess of
jurisdiction or abuse of power,
for example, the court would
quash it at the instance of a
mere stranger, although it
retained the discretion to
refuse to quash it if it thought
that no good would be done to
the public. The remedies of
certiorari and prohibition were
therefore not restricted by the
notion of locus standi, and
every citizen had a standing to
invite the court to prevent some
abuse of power, and in so doing
he might claim to be regarded
not as a meddlesome busy body
but a public benefactor.”
The above
principle in the Ex-parte
Ampomah case was recently
applied by the Supreme court in
the case of
In
re-Appenteng (Decd) Republic v
High Court, Accra Ex-parte
Appenteng & Another [2005-2006]
SCGLR 18 where the
court unanimously held on the
said principle thus:
“The court
upheld the following rules on
the scope of the order of
prohibition namely:-
a.
Prohibition is not meant to
prevent a person or a court from
exercising general judicial
functions,
b.
It is rather to challenge an
attempted exercise of the
judicial function in specific
jurisdictional situations i.e.
for excess or absence of
jurisdiction or departure from
the rules of natural justice
such as the existence of actual
bias or strong likelihood of
bias or interest, and
c.
An applicant for prohibition or
certiorari is not restricted by
notion of locus standi, i.e. he
does not have to show that some
legal right of his is at stake.
It must be
noted that, the Supreme Court in
the Ex-parte Appenteng case
specifically approved the scope
of the above principle that was
stated and applied in the ex-parte
Ampomah case already referred to
supra.
In the
instant case, the applicants
herein were the complainants in
the criminal case which is the
genesis of the entire
application before this court.
In that respect therefore, the
applicants must be deemed to
have more than sufficient
interest in the matter to
qualify them to sustain the
application before this court.
With these
authoritative decisions, we have
no option but to dismiss the
preliminary legal objection
raised by the respondents to the
competence and or propriety of
the applicants to have mounted
this application.
We will now
turn to the merits of the
instant application.
By virtue of
article 139 of the Constitution
1992 and section 14 (1) (2) and
(3) of the Courts Act, 1993 Act
459, the point can safely be
made that there is only one High
Court in Ghana.
What this in
effect means is that, even
though there is only one High
Court denominated both under the
Constitution and the Courts Act,
for administrative and
geographical reasons, there are
various divisions and or
locations of the High court. If
for instance, a crime is
committed say in Hohoe and a
report is made to the Hohoe
Police, it will be completely
out of place if the said case is
not prosecuted at either the
District Court or the Circuit
Court, both of which are in
Hohoe, but at Ho without an
order under the hand of the
Chief Justice authorising
transfer as is stipulated in
sections
104 or 108 of the Courts Act,
Act 459. The procedure
outlined where cases are
prosecuted in courts within the
geographical location is a
mechanism designed to prevent
forum shopping by prospective
litigants before the courts and
also for the convenience of
litigants to have access to
courts very close to them.
In the
instant application, the case
from which the interested
parties were tried, convicted
and sentenced was the Circuit
Court, Hohoe. Using the
administrative and geographical
location, any appeal against
that decision must be to the
High Court at Hohoe.
It must be
noted, pursuant to section 15
(1) (b) of the Courts Act, Act
459 that an appeal against the
Circuit Court, Hohoe decision in
a criminal trial is to the High
Court, and this by our
understanding must be to the
High Court, Hohoe, unless it is
established that the said court
is not functional or a transfer
order has been signed under the
hand of the Chief Justice.
We have seen
a copy of the Notice of appeal
filed by the interested parties
against their conviction and
sentence by the Circuit Court,
Hohoe. It appears the said
process was filed at the High
Court, Hohoe.
We have also
seen exhibit NDB2A, which is the
motion on notice for bail
pending appeal which was filed
by the interested parties at the
High Court, Ho. The said process
was filed on or by the 14th
October, 2010 and fixed for
hearing on 18th
October, 2010; but the said
application was granted on 19th
October, 2010.
From exhibit
NDB2 it is clear that there was
a representative of the
Attorney-General who was present
in court before the application
for bail was granted.
We have also
apprised ourselves of the
contents of a search attached to
this application as exhibit NDB5
which indicated that even though
a High Court Judge had been
appointed for the High Court
Hohoe, since 1/10/2010 he did
not assume duty until on or by
1/11/2010.
What must be
noted is that, since
applications for grant of bail
pending appeal, affects the
fundamental rights of the
persons involved, these must be
handled expeditiously. In view
of the fact that, there was no
functioning High Court in Hohoe
who could have taken the said
application, there was nothing
wrong in filing the application
before the High Court, Ho.
Before we
consider the merits of the
application as to whether
certiorari will lie to quash the
proceedings and orders of 19th
October, 2010 made by the High
Court, Ho or not, we have to
decide whether the application
for bail pending appeal which
was granted by the High Court,
Ho was properly filed before the
said court.
This is
because, learned counsel for the
applicants had contended that
the application for bail by the
interested parties ought to have
been filed before the Circuit
Court, Hohoe in the first
instance.
Section 33 of
the Courts Act, 1993 Act 459
provides on this matter thus:
“The court
before which a person is
convicted or the court to which
an appeal is made may, on the
application of an appellant,
grant bail pending the
determination of the appeal.”
It should
therefore be noted that, unlike
civil appeals, where
applications of this nature must
first be made to the trial court
and repeated to the appellate
court, the situation in criminal
appeals is quite fluid. This
therefore means that, an
appellant in a criminal case who
has been incarcerated as a
result of the conviction and
sentence and is desirous of
being released on bail pending
appeal has the option of either
applying to the trial court, or
to the appellate court.
In our
considered opinion, once the
interested parties chose to go
to the High Court, they cannot
be faulted.
We are also
of the view that the practice
generally is that applications
for bail pending appeal unlike
applications for bail pending
trial are always made to the
appellate court in the first
instance.
We think
there are sound policy measures
behind this rule of practice.
This is because if the trial
court has considered it fit and
proper to convict and sentence
the appellant to a term of
imprisonment, it will be absurd
to go back to the same Judge or
Magistrate requesting for a
release whilst the appeal is
pursued. Perhaps this explains
why in practice, it is rare for
appellants in criminal cases to
go to the trial courts for an
application for bail pending
appeal. The objection by the
applicants herein to the
propriety of the 1st
- 4th interested
persons filing the application
at the High Court and not the
Circuit Court is thus dismissed.
We will
therefore bend on the side of
caution, and hold that the
applicants have not satisfied
any jurisdictional ground, or
error of law to sustain the
application for certiorari to
quash the orders of the High
Court, Ho dated 19th
October, 2010. What must be
noted is that, in such
situations each application must
be considered on case by case
basis.
See
Republic v High Court, Accra,
ex-parte Anyan (Platinum
Holdings – Interested Party)
[2009] SCGLR 255,
at 262 – 263
where the court speaking with
one voice through Rose Owusu
(Ms) JSC held thus:-
“The law is
well settled that the
supervisory jurisdiction of the
court under article 132 of the
1992 Constitution is exercised
only in those manifestly
plain, obvious and clear cases
where there are patent and
obvious errors of law on the
face of the record which error
must go to the jurisdiction of
the court so as to make the
decision of the court a
nullity.”
In the
instant case, there is nothing
manifestly clear and obvious
that the High Court, Ho did not
have jurisdiction or exceeded
its jurisdiction at the time it
heard and determined the
application for bail pending
appeal.
In respect of
the order of Prohibition, we are
of the considered view that once
there is as at now a functional
High Court at Hohoe, a report of
the entire appeal and any
consequent application be made
to the Chief Justice for a
transfer of the said appeal to
Hohoe High Court. It must
however be understood that the
said order is neither based on
bias nor real likelihood of
bias. This has been necessitated
solely by the geographical
location of courts throughout
the country to facilitate the
distribution and hearing of
cases on sound principles. The
High Court, Hohoe being now
functional with a presiding
Judge must therefore be made to
hear the application and appeal.
Save as is
stated supra the application is
dismissed.
[SGD] J. V. M.
DOTSE
JUSTICE OF THE SUPREME COURT
[SGD]
G.T WOOD (MRS.)
CHIEF JUSTICE
[SGD]
ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
[SGD]
N. S. GBADEGBE
JUSTICE OF THE
SUPREME
COURT
[SGD] V.
AKOTO-BAMFO (MRS.)
JUSTICE OF THE SUPREME
COURT
COUNSEL:
KWAME
YANKYERA FOR THE APPLICANT
AKWASI
BOSOMPEM FOR THE 1ST
– 4TH
INTERESTED
PARTY RESPONDENTS
GEORGE KWADWO
OFORI, P. S. A. FOR THE 5TH
INTERESTED
PARTY RESPONDENT.
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