Try asking the following...
Try asking the following...
March 19, 1980
HIGH COURT
GHANA
CORAM
JUDGMENT OF QUASHIE-SAM J.
The applicant applied by motion ex parte for leave to issue a writ of certiorari to quash the conviction and sentence by the District Magistrate, Grade I, Bekwai; the motion was accompanied by the applicant's supporting affidavit. Leave ex parte was granted by this court on 14 February 1980. When the hearing on notice of motion came on 3 March 1980 counsel for the applicant informed the court that a statement which should have accompanied the application at the ex parte stage for leave, and which was omitted by error, had been filed that morning to regularise the application. He referred to Order 59, r. 2 (2) of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), which required that such a statement shall accompany the application and invited the court to invoke the provisions of Order 70 of the same rules in order to put his house in order.
Counsel for the respondent opposed this invitation and called upon the court to dismiss the application in limine, on the ground that it is the statement which forms the basis in such an application, the statement thus being very fundamental and going to the root. He contended that without such a statement in the proceedings for leave, the application was baseless in the first place and that leave as granted by the court on 14 February 1980 was also baseless and a nullity which cannot be regularised or saved by the application of Order 70 of the rules aforementioned.
Counsel for the applicant then referred to the case of Republic v. Accra Special Circuit Court; Ex parte Akosah [1977] 2 G.L.R. 283. In that case the applicant had been arraigned before the Special Circuit Court, Accra, charged with two offences of possessing Indian hemp and attempting to export Indian hemp contrary to sections 47(1) and 57 of the Pharmacy and Drugs Act, 1961 (Act 64). At the close of the prosecution's case, the trial circuit judge ruled that there was a case to answer and called upon the applicant to enter his defence, thus overruling a submission of no case made on behalf of the applicant. This occasioned an application by the defence for leave to bring certiorari to quash the ruling. In the proceedings a copy of the ruling sought to be quashed was not exhibited to the affidavit in support of the application. In its ruling, the court said that the absence of a copy of the ruling was of course not fatal to the application having regard to the provisions of Order 59, r. 7 (1) of L.N. 140A. Those provis
AI Generated Summary
QUASHIE-SAM J addressed a procedural defect in an application seeking certiorari to quash a conviction and sentence by the District Magistrate, Grade I, at Bekwai. The High Court had granted leave ex parte on 14 February 1980, but at the hearing on notice on 3 March 1980, the applicant’s counsel admitted that the mandatory statutory statement required under Order 59 rule 2(2) to accompany the leave application had been omitted and was filed belatedly. Invoking Order 70, counsel asked the court to regularise the omission and relied on Republic v. Accra Special Circuit Court; Ex parte Akosah. The respondent objected, arguing the statement is the foundation of certiorari proceedings. Distinguishing Akosah and emphasising the centrality of the statutory statement, the court held the leave order was made per incuriam, could not be saved by Order 70, and struck out the notice of motion with liberty to apply.