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Criminal law - Fraud - Title
Documents -
Whether or not
wrongly the High
Court, Human Rights Division,
assumed jurisdiction or far
exceeded his jurisdiction -
Whether or not the trail was
an
infringement of the applicant’s
fundamental human rights
CORAM
DOTSE JSC (PRESIDING)
ANIN-YEBOAH JSC AKOTO BAMFO (MRS)
JSC BENIN JSC AKAMBA JSC
HEADNOTES
Prince Kofi Amoabeng to
commit crime to wit: fraud
involving Title Documents of
property № 23 Ringway Estate
belonging to Naa Otuah Swayne.
The two persons named in the
charge sheet were facing
prosecution at the Circuit
Court, Accra, presided over by
His Honour Judge Francis Obiri
for the charges listed against
their names. According to the
applicant herein, she was called
by the prosecution as first
prosecution witness to give
evidence after the Court had
recorded not guilty pleas on
their behalf. The trial
continued and the prosecution
closed its’ case. The two
persons in the exercise of their
rights under section 173 of the
Criminal and other Offences
(Procedure) Act, Act 30 of 1960
made a submission of no case to
answer but same was overruled by
the trial Circuit Court judge.
PRINCE KOFI AMOABENG sought to
invoke the High Court’s
supervisory jurisdiction to
intervene in a criminal case at
the Circuit Court at a stage
when the prosecution had closed
its case and he the respondent
had given evidence.
When the application was
moved the learned trial judge
quashed the whole proceedings
and further prohibited the
learned Circuit Court judge from
further hearing the case. The
applicant herein, who was the
complainant in the criminal case
at the Circuit Court filed this
application to also invoke this
court’s supervisory jurisdiction
to quash the ruling of the
learned High Court Judge
HELD :-
For the avoidance of doubt, it is
hereby directed that the Circuit
Court, Accra, Coram Francis
Obiri shall continue with the
prosecution of case No.
D6/278/12 intitutled The
Republic v Prince Kofi Amoabeng,
John Aidoo and conclude the
hearing process and deliver
judgment according to law. The
Registrar of this Court is
directed to serve these orders
on the Registrars of the High
Court, Human Rights Division,
Accra and the Circuit Court,
Accra to endure compliance with
the orders made herein.
STATUTES REFERRED TO IN JUDGMENT
Criminal and other
Offences (Procedure) Act, Act 30
of 1960
1992 Constitution
Court’s Act, Act
459 of 1993,
CASES REFERRED TO IN JUDGMENT
STATE v
ASANTEHENE’S DIVISIONAL COURT
BI; EX PARTE KUSADA [1963] 2 GLR
238
REPUBLIC v HIGH
COURT, HO, EX PARTE BEDIAKO II &
ANOR (ODUM & ORS INTERESTED
PARTIES) [2011] 2 SCGLR 705
REPUBLIC v KORLE
GONNO DISTRICT MAGISTRATE GRADE
I; EX PARTE AMPOMAH [1991] IGLR
353CA
APPENTENG, IN RE
(DECD); REPUBLIC v HIGH COURT,
ACCRA; EX PARTE APPENTENG [2005
-2006] SCGLR 18
REPUBLIC v CAPE
COAST DISTRICT MAGISTRATE GRADE
II; EX PARTE AMOO [1979] GLR 150
R v NORTHUMBERLAND
COMPENSATION APPEAL TRIBUNAL, EX
PARTE SHAW [1952] I KB 338
REPUBLIC v HIGH COURT, ACCRA, EX
PARTE APPIAH & ORS [2000] SCGLR
389
GYIMAH v ABROKWAH [2011] ISCGLR
406
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
ANIN-YEBOAH JSC:-
COUNSEL
E. A.
VORDOAGU FOR THE APPLICANT.
GUSTAV
ADDINGTON FOR THE 1ST
INTERESTED PARTY.
JOAN KING
(MS.) S.S.A. WITH HER MISS GRACE
OPPONG S.S.A. AND HENRIETA
KWAKYE A.S.A. FOR THE ATTORNEY
GENERAL.
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RULING
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ANIN-YEBOAH JSC:-
My Lords,
On the 19th of
February, we granted an
application for certiorari and
made far-reaching consequential
orders but deferred our
reasons. We now proceed to
offer our reasons for granting
the application.
To appreciate the grounds
leading to the grant of
certiorari against the High
Court, Accra [Human Rights
Division], it is crucial to
briefly state the facts of the
case culminating in this
application.
The applicant herein, NAA OTUA
SWAYNE, was at the time material
to this case a complainant in a
criminal case pending before His
Honour Judge Francis Obiri
sitting at the Circuit Court,
Accra. The case was intituled
as: CASE № D6/278/12: THE
REPUBLIC V PRINCE KOFI
AMOABENG AND JOHN AIDOO; and
for a fuller record the charge
sheet states thus:
IN THE CIRCUIT COURT
ACCRA
STATEMENT OF OFFENCE
FRAUD AS TO THING
PLEDGED OR TAKEN IN EXECUTION
contrary to section 143 of Act 29/60.
PARTICULALRS OF OFFENCE
PRINCE KOFI AMOABENG:
BANKER; For that you between
2005 and 2007, in Accra in the
Greater Accra Circuit and within
the jurisdiction of this Court;
with intent to defraud secretly
and with deceit did release the
Title Documents of property №23
Ringway Estate owned by Nana
Otua Swayne which were in your
custody to Alexander Adjei to
use as a mortgage to secure a
loan of Gh¢1,279,000 from HFC
Bank.
COUNT TWO
STATEMENT OF OFFENCE
ABETMENT OF CRIME TO
WIT:
Fraud as to thing pledged or
taken in execution contrary to
section 20 and 143 of Act 29/60.
PARTICULARS OF
OFFENCE
JOHN AIDOO: LAWYER;
For that, you during the year
2007 at Accra in Greater Accra
Circuit and within the
jurisdiction of this Court with
intent to commit crime did aid
and abet Prince Kofi Amoabeng to
commit crime to wit: fraud
involving Title Documents of
property № 23 Ringway Estate
belonging to Naa Otuah Swayne.
The two persons named in the
charge sheet were facing
prosecution at the Circuit
Court, Accra, presided over by
His Honour Judge Francis Obiri
for the charges listed against
their names. According to the
applicant herein, she was called
by the prosecution as first
prosecution witness to give
evidence after the Court had
recorded not guilty pleas on
their behalf. The trial
continued and the prosecution
closed its’ case. The two
persons in the exercise of their
rights under section 173 of the
Criminal and other Offences
(Procedure) Act, Act 30 of 1960
made a submission of no case to
answer but same was overruled by
the trial Circuit Court judge.
The two accused persons,
however, did not appeal against
the ruling of the learned
circuit judge. The interested
party herein Prince Kofi
Amoabeng opened his defence,
gave evidence and was
cross-examined. Before he could
call a witness, he invoked the
supervisory jurisdiction of the
Accra High Court (Human Rights
Division) presided over by His
Lordship Mr. Justice Kofi Essel
Mensah to quash the proceedings
and prohibit the learned Circuit
judge on the following grounds:
“1. A declaration that the trial
of the applicant before the
Accra circuit Court is an
infringement of the applicant’s
fundamental human rights
2. An order of certiorari to
quash all the proceedings and
all orders made by the trial
Accra Circuit Court.
3. An order of prohibition to
restrain the respondents,
particularly the Accra Circuit
Court from hearing and
determining the said criminal
suit.”
In a rather lengthy affidavit in
support of the application at
the Accra High Court (Human
Rights Division), the 1st
respondent herein Prince Kofi
Amoabeng deposed to the
following salient parts of the
affidavit as follows:
“28. That it is my view that the
continuation of the said
criminal trial would not serve
any purpose for the facts and
the evidence do not disclose any
criminal liability against me.
29. That it is also my view that
an illegality would be committed
if the 3rd respondent court is
allowed to proceed with any
future hearing of this case.
30. That my fundamental human
rights as granted under the
Constitution 1992 is being
frowned upon by the trial
court. The illegality
complained of is still ongoing
for the case has been adjourned
by the trial Circuit Court to
4th April 2014.
31. That in the circumstances of
this matter the only option open
left to me is to apply for the
order of prohibition to restrain
the 3rd respondent court from
any further adjudication in
respect of the criminal suit as
its continuation infringes on my
fundamental human rights and for
a further order of certiorari to
quash the entire proceedings. I
have now being made aware that
my fundamental human rights is
being flouted.
We have quoted ad longum the
basis on which the first
respondent herein PRINCE KOFI
AMOABENG sought to invoke the
High Court’s supervisory
jurisdiction to intervene in a
criminal case at the Circuit
Court at a stage when the
prosecution had closed its case
and he the respondent had given
evidence.
When the application was moved
the learned trial judge quashed
the whole proceedings and
further prohibited the learned
Circuit Court judge from further
hearing the case. The applicant
herein, who was the complainant
in the criminal case at the
Circuit Court filed this
application to also invoke this
court’s supervisory jurisdiction
to quash the ruling of the
learned High Court Judge dated
the 20/10/2014. For a more
detailed record, the grounds for
this application were stated
thus:
“(a). That the High Court, Human
Rights Division, Coram: His
Lordship Kofi Essel Mensah
wrongly assumed jurisdiction or
far exceeded his jurisdiction in
the judgment dated 20th
October 2014 in the suit the
subject-matter of this
application.
(b). That there is error
of law apparent on the face of
the record”.
The learned High Court judge,
basing himself exclusively on
the salient depositions of the
affidavit of the first
respondent that his fundamental
human rights have been abused,
granted the application, quashed
the whole proceedings of the
Circuit Court and prohibited it
from further hearing the case.
It must be made clear that when
the proceedings at the High
Court was annexed to this
application the panel was
baffled and asked itself whether
the proceedings at the High
Court did not have some novelty
surrounding it.
It was not the case that the
Circuit Court had no
jurisdiction to hear the case in
which the charges which the
accused persons were facing were
mere misdemeanours. It was not
the case that the learned
Circuit Court judge was by law
not qualified to sit on the
mater or that there were traces
of any patent procedural
irregularities apparent on the
face of the proceedings or any
ground which could have called
for the superintendence by the
High Court. It was also not the
case that the learned Circuit
Court judge went outside its
statutory limits and exceeded
its jurisdiction or breached any
common law rules of natural
justice. To appreciate the main
reason for the invocation of the
High Court’s supervisory
jurisdiction over the matter a
passage of the ruling will
suffice:
“It is often thought that
once a person has been before
court on a criminal charge, he
must necessarily go through the
trial even if the charge has no
basis in law. This view is
shared by many unfortunately
including some lawyers.
Criminal prosecution stripped of
its justification under article
14(1) of the Constitution 1992
impinges on the fundamental
human rights of the accused”
The learned High Court judge
professing to safeguard the
first respondent’s
constitutional freedom went
further to deliver as follows:
“Human rights are inviolable and
inalienable human entitlements.
The High Court has
constitutional duty to protect,
safeguard and to enforce those
rights. And so, where
violations of fundamental human
rights are alleged in the manner
the applicant is complaining
about, the court must feel
obliged to inquire into the
allegation and not to drive the
applicant from the seat of
judgment on the sole ground that
he failed to mention the
violation of this right or the
specific articles on the
Constitution on which he relies.
Criminal prosecution interferes
with the fundamental human
rights of an accused person in
this manner. Right from his/her
arrest through investigations to
his/her arraignments before a
court, the accused person’s
right to free movement is
curtailed. Attendance to court
is a huge burden and a bother to
an accused person”.
We have quoted at length the
reasons canvassed for the grant
of certiorari by the learned
High Court judge who was of the
view that when no evidence is
led in support of a charge in a
criminal trial, the prosecution
interferes with the fundamental
human rights of the accused.
His Lordship did not say that
the charges the interested party
was facing at the Circuit Court
was unknown to the Criminal Law
of this country. His main
intervention in the proceedings
as a superintending judge was on
grounds of breaches of the
interested party’s fundamental
human rights.
When the application was moved,
learned counsel for the
interested party, Mr. Addington
opposed it on several grounds.
The first ground was that the
applicant herein NAA OTUA SWAYNE
who was the complainant in the
case has no capacity to invoke
our supervisory jurisdiction to
quash the ruling of the High
Court. We notice that his point
of law was fully addressed by
counsel for the interested party
but no authority was cited to
support his contention. We
wondered if this legal point
could have availed him. This
point of law is settled by
authority. In the case of
STATE v ASANTEHENE’S
DIVISIONAL COURT BI; EX PARTE
KUSADA [1963] 2 GLR 238 the
Supreme Court, held, inter alia
that, an applicant for an order
of certiorari must be either a
person aggrieved or a person who
has a real or substantial
interest in the proceedings
sought to be quashed.
The scope of the locus standi of
an applicant has been extended
by this court in the recent case
of REPUBLIC v HIGH
COURT, HO, EX PARTE BEDIAKO II &
ANOR (ODUM & ORS INTERESTED
PARTIES) [2011] 2 SCGLR 705
in which the worthy president of
this court Dotse, JSC after
referring to the previous
authorities on this point;
notably, REPUBLIC v
KORLE GONNO DISTRICT MAGISTRATE
GRADE I; EX PARTE AMPOMAH
[1991] IGLR 353CA and
APPENTENG, IN RE (DECD);
REPUBLIC v HIGH COURT, ACCRA; EX
PARTE APPENTENG [2005 -2006]
SCGLR 18 said at page 712 as
follows;
“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”
The court went further to hold
that the remedies of certiorari
and prohibition were not
restricted by the notion of
locus standi; and every citizen
has the capacity to invite the
court to prevent some abuse of
power, and in so doing, he might
claim to be regarded not as a
meddlesome busybody but a public
benefactor.
In this case, as the applicant
was the sole complainant who had
indeed given evidence before the
trial Circuit Court, she had
more than sufficient interest to
protect than anybody else. It is
also the duty of every citizen
that justice must be seen to be
done to all manner of persons by
ensuring that the courts in this
country established by statutes
with limited jurisdiction
observe the law within the
statutory limits. Even though
the learned High Court judge had
jurisdiction to supervise the
Circuit Court under Article 141
of the 1992 Constitution and
section
1C of the Court’s Act, Act 459
of 1993, his powers to supervise
should be exercised within the
limits imposed by law. The
objection that the applicant has
no locus standi is thus
misconceived.
It must also be made plain that
even though the High Court has
jurisdiction to issue
prerogative writs, which by
their nature afford a more
speedy way of redress under
certain circumstances, its
invocation should be in
conformity with the law. In the
case of REPUBLIC v
CAPE COAST DISTRICT MAGISTRATE
GRADE II; EX PARTE AMOO
[1979] GLR 150 CA Apaloo CJ in
his concurring opinion said at
page 160 thus:
“As is well known, the remedy
of certiorari is a useful tool
in aid of justice and ought to
be used to correct defects of
justice whether they arise from
illegality, fraud, breach of the
rules of natural justice, error
on the face of the record and
the like. I am not even
prepared to say that the
category of cases in which this
useful remedy can or should be
used is closed. There is no
reason why I should stifle the
development of the law by any
such assertion”
The courts have been consistent
in issuing certiorari only when
the grounds exist for its use.
In this case the applicant
complains that the ground for
the issuance of the writ of
certiorari never existed to
warrant the High Court’s
intervention. The learned High
Court judge, with due respect
never canvassed any of the
grounds stated above for his
intervention. He however,
professed to justify his
intervention on the grounds that
there was no evidence to support
the charge which the interested
party herein was facing and that
the continuous prosecution of
the interested party was against
his fundamental human rights as
enshrined in the 1992
Constitution. He proceeded to
review the evidence on record in
his ruling unmindful of the fact
that the matter before him was
not an appeal but certiorari. In
the often-quoted case of R
v NORTHUMBERLAND COMPENSATION
APPEAL TRIBUNAL, EX PARTE SHAW
[1952] I KB 338 Morris LJ (as he
then was) stated the position as
follows:
“It is plain that certiorari
will not issue as the cloak of
an appeal in disguise. It does
not lie in order to bring up an
order or decision for rehearing
of the issue raised in the
proceedings. It exists to
correct error of law where
revealed on the face of an order
or decision or irregularity or
absence of or excess of
jurisdiction where shown”
The interested party had the
option to either appeal against
the submission of no case which
was overruled by exercising his
right of appeal for the High
Court to have considered the
evidence led as at the close of
the case for the prosecution.
The High Court was not enjoined
to review the evidence in a
manner as it did as if it was
entertaining an appeal. Appeals
and prerogative writs e.g.
certiorari are conceptually
different and this has been
strictly observed in several
judicial decisions. In the case
of REPUBLIC v HIGH
COURT, ACCRA, EX PARTE APPIAH &
ORS [2000] SCGLR 389, this
court held that where the court
adjudicating a matter had
jurisdiction to entertain an
action, its judgment or ruling
could not be impeached on the
mere grounds that its decision
is wrong and under such
circumstances an appeal would be
the proper thing.
In this matter nothing illegal
was canvassed against the
proceedings by the learned High
Court judge save that the
fundamental human rights of the
interested party was being
infringed by his prosecution and
no more. It follows, therefore,
that none of the legal
requirements to warrant the
grant of certiorari ever
existed. Indeed, on record
there was none.
It is for the above reasons that
this court quashed the ruling of
the High Court judge on the
grounds canvassed in this
delivery as he had no
jurisdiction under the
circumstances to quash the
proceedings of the Circuit Court
in the manner he did and the
error committed by the judge is
so patent as to nullify the
whole proceedings.
We also have to place on record
the conduct of the office of the
Attorney-General in these
proceedings. It appears that
lip service was paid to the
application at the High Court
where the Circuit Court’s
proceedings was quashed and same
prohibited from further hearing
of the criminal case. It took
the active intervention of the
complainant (the applicant
herein) to mount this
application at this court to
quash the ruling of the High
Court. In the recent case of
GYIMAH v ABROKWAH
[2011] ISCGLR 406 this court had
the opportunity to condemn
counsel who ignore their avowed
duty as officers of the court.
If the applicant had not mounted
this application, the
Attorney-General’s office who
were indeed served with the
processes from the High Court
[Human Rights] Division, Accra,
wouldn’t have questioned the
orders made by the learned High
Court judge, which orders had no
legal basis whatsoever.
It was for the above reasons
that we granted the application
the 19th February,
2015 and made the following
orders;
1.
The proceedings and judgment of
the High Court, Human Rights
Division, Coram: Kofi Essel
Mensah J, in suit No. HRCM
167/14 intitutled Prince
Kofi Amoabeng v Naa Otua Swayne
& Others dated 20th
October, 2014 be hereby brought
before this court for the
purposes of being quashed and
same are accordingly quashed by
order of Certiorari by this
Court.
2.
It is further ordered that, the
said High Court, be prohibited
from having anything to do
whatsoever with the above suit
and more particularly
interfering with the prosecution
of the Criminal trial involving
the 1st interested
party herein at the Circuit
Court, Accra case No. D6/278/12.
3.
For the avoidance of doubt, it
is hereby directed that the
Circuit Court, Accra, Coram
Francis Obiri shall continue
with the prosecution of case No.
D6/278/12 intitutled The
Republic v Prince Kofi Amoabeng,
John Aidoo and conclude
the hearing process and deliver
judgment according to law.
4.
The Registrar of this Court is
directed to serve these orders
on the Registrars of the High
Court, Human Rights Division,
Accra and the Circuit Court,
Accra to endure compliance with
the orders made herein.
Considering the merits of the
instant application and taking
into account the dangerous
precedent that would have been
set had the applicant not moved
timeously to arrest this
phenomenon, we award costs of
GH¢10,000.00 against the 1st
Interested Party, Prince Kofi
Amoabeng, but direct that the
said costs be paid personally by
learned Counsel Gustav
Addington.
(SGD) ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
(SGD)
V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME
COURT
(SGD) A. A.
BENIN
JUSTICE OF THE SUPREME COURT
(SGD) J. B.
AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
E. A.
VORDOAGU FOR THE APPLICANT.
GUSTAV
ADDINGTON FOR THE 1ST
INTERESTED PARTY.
JOAN KING
(MS.) S.S.A. WITH HER MISS GRACE
OPPONG S.S.A. AND HENRIETA
KWAKYE A.S.A. FOR THE ATTORNEY
GENERAL.
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