REPUBLIC v. ACCRA DISTRICT COURT MAGISTRATE; EX PARTE KUMA

JUDGMENT OF CHARLES CRABBE J.

This is an application for leave for the issue of a writ of certiorari to quash the committal proceedings and order made by his worship Mr. Moses Abaka, district magistrate, on 17 October 1968, in the case Republic v. Kuma who is the applicant before this court. This ex parte motion has attached to it, in accordance with the rules governing the same, a statement and an affidavit which purport to set out the facts upon which the application is based.

Counsel for the applicant argued on two grounds:

"(a) that the learned magistrate had no jurisdiction to entertain the committal proceedings brought before him; and

(b) that even if he had jurisdiction which is denied, the order made by him was made in breach of the rules of natural justice."

He submitted that if either of these contentions is sustained then it would be a proper case for leave to be granted by the court. All he need establish, he contended, is a prima facie case.

[p.956]

On the question of lack of jurisdiction, counsel stated that the motion paper together with the supporting affidavit and the statement of the applicant made the position clear, namely, that the applicant had already been put before his worship, Mr. Hansen, district magistrate, for committal. That magistrate had, in consideration of the evidence before him and of the address of counsel for both parties, that is the prosecution and the defence, ordered that there was no case for the accused to answer and accordingly discharged him.

The facts of this case as stated by counsel for the applicant are that the applicant was brought before his worship, Mr. Hansen, district magistrate, somewhere in March 1968. On that date the learned magistrate discharged the accused and his ruling was attached as part of the statement of the applicant as exhibit A. The prosecution appealed against the order of the magistrate. They argued that if the learned magistrate was satisfied that the offence charged could not possibly have been committed by the accused but that some other offence was disclosed by the evidence, then, even though the accused was not charged with that other offence, it was the duty of the magistrate to commit him.

The High Court, presided over by Amissah J.A., heard the appeal and gave ruling (see p. 532) that the case be remitted back to the magistrate with instructions that he should commit the accused if in his opinion there was a case of any possible offence disclosed by the summary of