JUDGMENT OF SOWAH J.
In this appeal the appellant elected to argue the third ground of appeal, namely, that the district magistrate had no jurisdiction to try the case, because title to land was in issue. On this point the magistrate stated that he was not impressed with the argument of counsel that his jurisdiction was ousted on the grounds that there was not enough evidence before him to that effect.
It is significant to note that nowhere in the record was the argument of counsel noted. It does not appear that after the close of the case for the prosecution, counsel made any submission, nor does it appear that [p.370] counsel made submission after the close of the case for the defence, and yet the magistrate made reference to such submission.
In my view it was incumbent upon the magistrate to record whatever submission counsel made in the case, and I need hardly say that failure to record the submission by counsel vitiates the proceedings and makes the record incomplete.
I have had the opportunity of reading the record rather carefully and I consider that the magistrate was wrong in holding that his jurisdiction was not ousted. From the cross-examination of the complainant, the appellant sought to show that the property was not the property of the complainant. The complainant however maintained that the litigation referred to had ended in his favour and that he had a copy of the judgment. Strangely enough, the complainant, apart from the bare assertion that he had obtained judgment, never sought to tender the judgment to enable the court to find out that the litigation had ended and had so ended in his favour.
The appellant also went into the witness-box and claimed ownership of the property for his principal to whom he was the caretaker. He further stated that he had dug or caused to be dug foundations preparatory to the erection of a building. The complainant together with labourers had gone onto the land to fill in the foundations and the appellant after requesting the complainant to stop without result, started stopping the complainant forcefully.
I am of the opinion that considering the evidence of the complainant and the accused as whole, there can be no doubt that any reasonable person would be of the opinion that a bona fide question of title was involved and therefore under section 180 of the Criminal Procedure Code, 19601 the learned magistrate ought to have discharged the appellant.
In the circumstances I do not think it is worthwhile
