REPUBLIC v. ACCRA SPECIAL CIRCUIT COURT; EX PARTE AKOSAH
March 8, 1977
HIGH COURT
GHANA
CORAM
- TAYLOR J
Areas of Law
- Criminal Law and Procedure
- Civil Procedure
- Administrative Law
March 8, 1977
HIGH COURT
GHANA
CORAM
AI Generated Summary
Taylor J of the High Court considered an ex parte motion seeking leave to apply for certiorari to quash a Special Circuit Court ruling in Accra that overruled a submission of no case and required the applicant to open his defence on charges of possessing and attempting to export Indian hemp. The underlying facts involved leather poufs originating with John Boyton in Philadelphia while at Mensah Sarbah Hall, Legon, passing through multiple custodians and being handled by Watson’s Services. The applicant argued the circuit court had overlooked exculpatory evidence, wrongly shifted the burden of proof, and erred in rejecting the no-case submission. Emphasizing that certiorari is supervisory, not appellate, and that errors must be apparent on the face of the record, Taylor J refused leave, noting reliance on press reports was improper and the circuit court’s ruling was not exhibited. He directed that proceedings continue in the circuit court and made no order as to costs.
JUDGMENT OF TAYLOR J.
This is a motion ex parte for leave to apply for an order of certiorari to bring up to this court for the purpose of being quashed a ruling [p.285] in a criminal case at the Special Circuit Court, Accra, on a submission of no case, by which the applicant was called upon to enter his defence, The motion further seeks an order for an interim stay of proceedings in the circuit court in respect of the pending criminal case, the subject-matter of the motion. No argument of any sort was advanced however in regard to the request for an order of interim injunction. I suppose counsel must have reckoned that, if in view of the procedure in applications for prerogative orders, leave were granted, the necessity for giving the respondent sufficient notice to enable him to appear at the substantive hearing may make it inexpedient to continue with the hearing of the case at the circuit court pending the final hearing and determination of the certiorari proceedings. In such a situation an interim stay of proceedings would be inevitable and in the circumstance, there may very well be no need for an application for such a stay as the justice of the case would dictate the need for the order to stay, for as is provided in Order 59, r. 2 (4) of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A):
“The grant of leave . . . to apply for an order of . . . certiorari, shall, if the Court or a Judge so directs, operate as a stay of the proceedings in question until the determination of the application, or until the Court or a Judge otherwise orders.”
From the affidavit filed by the applicant, it is clear that he faced two charges of possessing Indian hemp and attempting to export Indian hemp. The offence of possessing Indian hemp is defined by section 47 (1) of the Pharmacy and Drug Act., 1961 (Act 64), as amended by the Pharmacy and Drugs (Amendment) Act, 1963 (Act 222), and it is as follows:
“No person shall have in his possession without lawful excuse, proof of which shall be on him, any opium or Indian hemp of any species or description whatsoever or any residue from the smoking thereof.”
I propose to decide this application in view of counsel’s submissions by relying on certain basis assumptions. In the first place the many decisions of our courts typified by such cases as Amartey v. The State [1964] G.L.R. 256, S.C. and Nyameneba v. The State [1965] G.L.R. 723, S.C. show that at least as far as the offence of possession of Indian hemp und