REPUBLIC v. DISTRICT MAGISTRATE GRADE II, OSU; EX PARTE YAHAYA

JUDGMENT OF BROBBEY J.

The applicant, Issaka Yahaya, was arraigned before the Osu District Court, Grade II on a charge of stealing from a kiosk belonging to his former employer. He was alleged to have broken into the kiosk in the night and taken the items therein but was caught red-handed by neighbours while leaving the kiosk with those items. When the case was called before the magistrate and the charge read and explained, the applicant pleaded "not guilty." According to the record of proceedings, the applicant explained thereafter that although he entered the kiosk, it was the complainant, his former employer, who asked him to do that and take away the goods.

Upon hearing this explanation from the applicant, the magistrate suo motu changed his plea to guilty because she did not believe his explanation. She then convicted and sentenced him to twelve months' imprisonment.

It is against the conviction and sentence that this application for an order of certiorari has been brought to be quashed on the grounds that:

(1) there was error on the face of the record;

(2) evidence should have been taken before convicting the applicant; and

(3) the proceedings offend against the principles of natural justice.

It is obvious that the procedure adopted by the magistrate is not sanctioned by any statutory or case law in this country. The Criminal Procedure Code, 1960 (Act 30) sets out in section 172 the procedure to be followed where an accused pleads not guilty to a criminal charge. The section mandatorily requires evidence to be heard so long as a plea of not guilty is entered. Section 172 of Act 30 turns out to be in the same words as section 168 of our former Criminal Procedure Code, Cap 10 (1951 Rev). In Ewudzi v. Dadson (1957) 3 WALR 82 section 168 was explained and the same emphasis was laid on the necessity to record evidence whenever an accused person pleads not guilty to a criminal charge. It cannot properly be said that the magistrate did not hear the applicant. She certainly did hear him and recorded his explanation to the charge. However, that explanation was no valid basis on which to believe or disbelieve the applicant. The learned magistrate arrived at her conclusion to a large extent from the facts given by the prosecution, It has, however, been held in a number of cases that it is wrong to presume the guilt of an accused person merely from facts proved by the prosecution. In a case in which the judgment of the High Court mentioned the following e