REPUBLIC VRS. DISTRICT MAGISTRATE COURT, NKAWKAW, EX-PARTE: ADZADZI (EAS/NKW/HC/F15/02/2025) [2025] GHAHC 73 (17 April 2025)

1 17/04/2025 IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE NKAWKAW, HELD ON THURSDAY THE 17TH DAY OF APRIL 2025, BEFORE HER LADYDSHIP JUSTICE CYNTHIA MARTINSON (MRS), HIGH COURT JUDGE ________________________________________________ SUIT NO. EAS/NKW/HC/F15/02/2025 IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW IN THE NATURE OF CERTIORARI AND IN THE MATTER OF: THE REPUBLIC VERSUS DISTRICT MAGISTRATE COURT, NKAWKAW : RESPONDENT EX-PARTE: PROSPER ADZADZI : APPLICANT ________________________________________________ PARTIES: Applicant in lawful custody. Respondent absent. LEGAL REPRESENTATION: Boakye Tawiah Asomaning Esq. for the Applicant present. ________________________________________________________ JUDGMENT On the 7TH Day of March 2025, the Applicant filed a motion on notice seeking to invoke the supervisory jurisdiction of this court for an 2 order directed at the District Court Nkawkaw to quash the conviction and sentence of the Applicant herein as per annexure „D‟ [The judgement]. I wish to quote the relevant paragraphs of the Applicant‟s Affidavit in this judgement: 4. That I am a cocoa farmer. 5. That the complainant is a biological sister of my father. 6. That the alleged victim is the biological son of the complainant. 7. That the alleged victim and myself are direct cousins. 8. That I was first arrested on or about 21st day of September 2024 and sent to the Nkawkaw Police Station on suspicion of unlawfully causing Harm. 9. That I appeared before the District Court, Nkawkaw on the 10th of October 2024 on charges of unlawfully causing Harm. Attached is the charge sheet marked as Exhibit "A". 10. That in spite of the fact that I have the right to be legally represented especially in criminal matters of this nature, I was not only denied such representation by the Prosecution but the Prosecution did not explain to me that I was entitled to such legal representation. 11. That I deem this a serious flaw and error in law after receiving legal advice. 12. That there is a dispute between the complainant and siblings of the complainant over a land which my cocoa farm forms part. 13. That the said dispute is before both the District and High court Nkawkaw. 14. That on or about the 14th day of September 2024 the complainant and the alleged victim attacked me with a cutlass in my own cocoa farm at a time I was harvesting my cocoa. 3 15. That I was injured as a result of the attack and it was witnessed by the police Akuase and same captured in the police report hereto (Exhibit B). 16. That one Christopher Adzadzi witnessed the scene as he was also on a farm land close to my cocoa farm and saw no such harm being caused by me. 17. That Christopher Adzadzi and myself saw the victim rather holding a cutlass. 18. That I together with Christopher Adzadzi lodged a complaint at the Akuase Police Station. Attached is the extract of the police complaint marked Exhibit "B". 19. That I was issued a medical form by the Akuase police. 20. That I attended hospital and was issued with a medical report. And same is attached as Exhibit "C" 21. That the Akuase police in an attempt to get the complainant and the alleged victim arrested proved futile. 22. That on or about 21st day of September 2024, about a week after my complaint to the Akuase police, I together with Christopher Adzadzi were invited by the Nkawkaw Police and subsequently detained for over 48 hours on a suspicion of unlawfully causing harm to the alleged victim. 23. That I together with Christopher Adzadzi were admitted to police enquiry bail. 24. That I together with Christopher Adzadzi were invited on the 10th of October 2024 by the Police Nkawkaw. 25. That Christopher Adzadzi was asked to go home whiles I was sent to court that same morning. 26. That in the absence of any legal representation, I did not appreciate the plea. 27. That I have now engaged Barfo-Bonney & Associates as my Counsel to represent me in this matter. 28. That I was not asked of my choice of language but rather, I was asked specifically if I will speak Twi or English language. 4 29. That I inadvertently chose Twi Language. 30. That I am an Ewe by tribe and not fluent in Twi language. 31. That I in pleading not guilty pleaded guilty in Twi Language. 32. That looking at the circumstances surrounding this matter, there is no way I would have pleaded guilty if I indeed understood the Twi word for guilty. 33. That I was convicted on my own plea and subsequently sentenced to eighteen (18) months in prison. Attached is the record of proceedings marked as Exhibit "D". 34. That I did not fully appreciate the plea in the Twi Language. 35. That for the interest of justice, I wish to go through a full trial to establish my innocence. 36. In the circumstance, I humbly pray that in the interest of justice and speedy determination of this matter and in line with article 19 of the 1992 Constitution, this honourable court set aside the conviction and subsequent sentencing and to also order for the retrial of the matter. The respondent did not respond to the Application even though they were served via Affidavit of service commissioned on the 7th March, 2025 SUBMISSION BY COUNSEL FOR THE APPLICANT A] Counsel contended that, the District Court Nkawkaw breached the fundamental right of the Applicant to fair trial. This is because the Applicant was not given a fair hearing. He was not informed immediately in the language that he understands the details and nature of the charges levelled against him as provided under Article 19[2] [d]. 5 B] Counsel again contended that, the Applicant was not Represented and there was no legal education to enable him decide whether he will defend himself or by assistance as stated under Article 19 [2] [f]. Counsel further argued that the Applicant is an Ewe and did not understand the Twi Language used in the court and considering the facts of the case, there was no way he would have pleaded Guilty if he understood the meaning of the Guilty plea. C] Counsel also argued that, the Conviction and the sentencing of the Applicant has occasioned significantly a miscarriage of justice. Counsel added that, the failure by the trial court to protect the Applicant‟s Fundamental right to fair trial is grievous since he was not legally represented and the sentence be set aside’ D] Counsel contended that, the charges and plea were not even read to the Applicant. That the Applicant was waiting for the complainant to be arrested having lodged a report to the police, for causing harm to him on his farm, only for him to be arrested and prosecuted. Counsel concluded by praying for an order of Certiorari to quash the conviction and sentence of the Applicant on the above reasons. I will now examine the arguments made for the grant of the application. To begin with, the invocation of the jurisdiction of the High Court in this application is supported by both the 1992 Constitution, the Courts Act, 1993 (Act 459) and the High Court Civil Procedure Rules 2004 (CI 47). 6 Article 141 of the 1992 Constitution provides: “The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may in the exercise of that jurisdiction, issue orders and directions to enforce or secure the enforcement of its supervisory powers”. Again, Section 16 of the Courts Act, 1993 (Act 459) provides: “The High Court shall have supervisory jurisdiction over all lower Courts and any lower adjudicating authority: and may, in the exercise of that jurisdiction, issue orders and directions including orders like habeas corpus, certiorari, mandamus, prohibition and quo warranto to enforce or secure the enforcement of its supervisory powers”. The High Court Civil Procedure Rules, 2004 (C I 47) under Order 55 also regulate applications for judicial review. However, it should be noted that an application which is grounded on the Court's supervisory jurisdiction must be confined or restricted to the decision and or the order complained of by the Applicant. See: Republic V. High Court, General Jurisdiction 5, Accra Ex Parte Minister for Interior & Anor [2018] 122 GMJ 63 SC It is well settled that Certiorari will be granted to quash a decision of a court, an adjudicating body, or an administrative body under the following conditions: (a) where there is a lack of jurisdiction, (b) where there is an excess of jurisdiction, (c) where there is a breach of natural justice rule, (d) where there is an apparent error on the face of the record, (e) Where the judgment or the order is illegal or improper. 7 See:  Republic V. High Court Accra, Ex Parte Salloum [2011] 1 SCGLR 574.  Republic V. High Court, Accra Ex Parte Hanawi (Owusu & Owusu-Interested Party) [2013-2014] 2 SCGLR 1169.  Enekwa & Ors. V. Kwame Nkrumah University Of Science And Technology [2009] 2 SCGLR 242.  Republic V. High Court (Human Rights Division) Ex Parte Akita (Mancell-Egala & Attorney General-Interested Parties) [2010] SCGLR 374.  Republic V. High Court Koforidua, Ex Parte Ansah-Otu (Koans Building Solutions Ltd – Interested Party [2009] SCGLR 141. However, it is the law that certiorari looks to remedy past errors, unlike prohibition which looks to the future. There are two salient issues in this application: 1] Whether the Magistrate or the District Court Nkawkaw acted in excess of its Jurisdiction or acted in breach of the Rules of Natural Justice and that there was no fair trial. 2] Whether the trial Magistrate committed an error patent in the face of the record. These issues are critical because they sum up the grounds upon which the court will grant Certiorari. 8 Halsbury‟s Laws of England (3rd edition) volume 9 pages 350-351 defines the term jurisdiction as follows: “The authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limit of this authority is imposed by statute, charter, or commission under which the court is constituted, and may be extended or restricted by like means”. See:  Yeboah V. Mensah [1998-99] SCGLR 492  Edusei V. Attorney General [1996-97] SCGLR 1  Edusei (No 2) V. Attorney General [1997-98] SCGLR 753 This definition will guide this court to determine whether the trial judge lacked jurisdiction or exceeded his jurisdiction when he convicted and sentenced the Applicant to 18 months imprisonment. In this case, Applicant through his counsel narrated that he made a report at the police station when he was attacked on his farm leaving him with a cut, a police Medical form was issued for him to attend hospital. He was only waiting for the complainant to be arrested when he was rather arrested and prosecuted. The Applicant did not understand the nature of the offences he was charged neither did he know the legal implications of the plea of guilty, since he was not given the opportunity to choose the language he understands and so he accidentally pleaded guilty. According to counsel, the Applicant would not have pleaded guilty if he understood what transpired in court. 9 For this application, I wish to state the difference between Judicial Review and an appeal. Judicial Review in the nature of Certiorari focuses on whether the decision maker followed the procedure set out by law to arrive at its decision. It corrects law not facts, it is procedural. Certiorari is not concerned with the merits of the decision. It is rather a discretionary remedy which would be granted on grounds of excess or want of jurisdiction and or some breach of rules of natural justice or to correct a clear error of law apparent on the face of the record An appeal, on the other hand, amounts to a rehearing. The appellate court is entitled to review the case and substitute its own decision on the lower adjudicating body on the facts or law or both. Where the error of law or facts was not apparent on the face of the record, the applicant‟s remedy would lie in an Appeal. See:  Republic V. High Court, Kumasi Exparte Mobil Oil Ghana Ltd. [Stephen Hagan] interested party [2005-2006] SCGLR 312.  Republic v. High Court, Secondi; Exparte Ampong [2011] 2 SCGLR 716. Now I wish to address the 1st issue thus: ISSUE ONE: 1] Whether the Magistrate or the District Court Nkawkaw acted in excess of its Jurisdiction or acted in breach of rules of Natural Justice and that there was no fair trial. 10 Section 48 [1] of the courts [Amendment] Act 2002, Act 620 states that in Criminal matters, a District Court has jurisdiction to try summarily: A] An offence punishable by a fine not exceeding 500 penalty units or imprisonment for a term not exceeding 2 years or both ; b] Any other offence [except an offence punishable by death or by imprisonment for life or an offence declared by an enactment to be a first degree felony] if the Attorney-General is of the opinion that having regard to the nature of the offence the absence of circumstances which would render the offence of grave or serious character and all other circumstances of the case, the case is suitable to be tried summarily. C] An attempt to commit an offence to which paragraph A or B of this subsection applies; D] An Abetment of or conspiracy in respect of any such offence; The offences which the Applicant was charged were Count one: I] Unlawfully Causing Harm contrary to 69 of Act 29 Count two: Threat of Death contrary to section 75 of Act 29 [which was later withdrawn] It should be noted that, both offences are second Degree felonious offences yet prosecution in its wisdom decided to take it to the 11 District court which could only hand down imprisonment which does not exceed 2 years. It should be noted that, since the District Court could try any criminal offence within the purview of Section 48 of Act 620, it has jurisdiction to try the offences in issue in this case, and the sentence imposed which is 18 months is within the ambit of the law, since it is less than 2 years. From the above rendition, at least the magistrate did not hear a matter it has no jurisdiction to determine, neither did the trial magistrate exceed his jurisdiction by handing over a sentence which is outside the contemplation of the law. Sequel to issue one, is whether there was a breach of the Rules of natural justice or that there was no fair hearing. The Audi Alteram Partem Rule [a Latin Phrase] is a fundamental principle of natural justice requiring that individuals be given an opportunity to respond to allegations or accusations before a decision is made against them. It is however noteworthy that, it is not one of universal application in every situation/enquiry. The Audi Alteram Partem is not applicable to the same intensity or degree in every situation. The requirements of natural Justice must depend on the circumstances of the case, the nature of the enquiry and the rules under which the tribunal is acting, the subject-matter that is being dealt with. See; Republic V. High Court, Accra [Commercial Division] Ex-parte Eviron Solutions And Others [J5/20/2019] [2020] Unreported SC [29 April 2020] Pwamang JSC . 12 The Procedure for summary trial is encapsulated under Part III of Act 30, The Criminal Procedure Act. Section 171 of Act 30 Provides: [I] where the accused appears personally or, under section 70[1] by his Advocate, the substance of the charge contained in the charge sheet or complaint shall be stated and explained to him or her, if he is not personally present to his advocate [if any], and he or his advocate as the case may be, shall be asked whether he pleads guilty or not guilty. [2] In stating the substance of the charge the court shall state particulars of the date, time and place of the commission of the alleged offence, the person against whom or the thing in respect of which it is alleged to have been committed and the section of the enactment creating the offence. [3] if the plea is one of guilty the plea shall be recorded as nearly as possible in the words used, or if there is an admission of guilt by letter under section 70[1] such letter shall be placed on the record and the court shall convict the accused person and pass sentence or make an order against him, unless there shall appear to be sufficient cause to the contrary. Apart from above provision in summary trials as in Section 171 of Act 30, Counsel also drew the court‟s attention to the fair trial provisions in Article 19 of the 1992 Constitution of Ghana placing prominence on Article 19 [1] and 19[2] [d] and [f] of the 1992 constitution of Ghana, and concluded that the Applicant was not given a fair hearing. 13 It should be noted that Article 19 [2] [d] which seems to be the trump card of counsel‟s Application provides: “A person charged with a criminal offence shall be informed immediately in the language that he understands, and in detail of the nature of the offence charged‟‟. Counsel inferred that, the Applicant did not understand what transpired in court because the court shirked its duty to ensure that the proceedings were done in the language of the Applicant‟s choice being the Ewe language and for that matter, there was no fair trial and therefore the court breached the Rules of natural justice. With all deference to counsel for the Applicant, there is nothing in the face of the record which suggests what counsel is alleging. If anything at all, it is based on suspicion that the applicant opted to speak Ewe and he was denied. What is evident on the Record is that, the charges were read and explained to the Applicant, as required by law and Procedure. Honestly, the best practice was for the trial court to have stated the kind of language in which the plea was taken. That notwithstanding, this lapse or some of these lapses are oversight on the part of the court which do not nullify proceedings, see page 272 of Criminal Procedure and Practice in Ghana by Justice Dominic Adjei. In fact, a court of law ought to record proceedings however, it is also human for the court to make some omissions. For instance, the court may not have recorded whether the applicant was advised to engage a lawyer but that does not mean the court did not address that. 14 Counsel further argued that, the applicant was limited to the option of Twi and English and the Applicant Choose Twi, and that the Ewe language that the Applicant is conversant with, was not suggested to him. Interestingly, the accused who did not understand the language still pleaded Guilty. The multi Dollar -question is, if he did not understand the language why then did he plead to the Charges? I am not convinced that the Magistrate breached the Natural justice rule or to stretch same, breached the Applicant fundamental right to fair trial as alleged by the Counsel for the Applicant. I do not see anything in the face of the annexures to justify counsel‟s assertions. Again, it is evident that, the facts of the case were attached to the proceedings at the court below. Technically, it should have been recorded that the fact were read to the Applicant herein, but this may also be an oversight. It is also not for this court to conclude that the facts were not read to the Applicant, because it was attached to the charge sheet. If for some reasons counsel thinks that the facts do not support the charge, the Remedy lies in an Appeal and not in Certiorari. Again, if the Magistrate did not consider any mitigation or aggravating factors before handing down the sentence, the remedy lies in an Appeal and not in certiorari. ISSUE TWO: 2] Whether the trial Magistrate committed an error patent in the face of the record. This issue dovetails into portions of the 1st issue discussed. It is trite that in judicial review, in the nature of Certiorari, the error complained of must be fundamental, substantial, material, grave or 15 serious that goes to the root of the matter. In Republic V. Accra Special Circuit Court; Exparte Akorsah [1978] GLR212 CA. The Word ‘Record’ was defined as documents which initiated the proceedings, the pleadings, the adjudication, but not evidence or reasons. In fact, the argument of counsel for the Applicant pivots on reason and even the facts of the case. His remedy does not lie in certiorari. In fact, counsel contended in his later submission that a plea of guilty can be set aside on appeal if certain legal requirements are satisfied. This is the exact position of the law. It is also the law is that, where an Applicant has a remedy other than Certiorari open to him or her, this is a factor that may be taken into account in denying the Applicant the discretionary remedy of certiorari, even if the other preconditions for the grant of the remedy have been established. The Existence of an alternative remedy is one of the factors that a court can rely on to exercise its judgement against the grant of certiorari, see Okofo Estates Ltd. V. Modern Signs Ltd [1996-97] SCGLR 224, Republic V. High Court, Accra Ex-Parte Industrialization Fund for Developing Countries and Another [2003-2004] SCGLR 348. There is no doubt that, justice is the ultimate aim in all criminal trials, the practice enjoins the court and the parties to rely on the facts recounted by the prosecution as fairly representing the foundation of the prosecution‟s case. See the dictum of Justice Amadu Tanko JSC in The Republic v Ernest Thompson & 4 Others [2021] 171 GMJ. 16 In my respectful opinion, I have no doubt that with the annexures to the Application before me; Certiorari will not fall to quash the conviction and sentence. If counsel has any remedies, it may be in an Appeal instead of Certiorari. I hereby dismiss the Application because same is without merit. (SGD.) JUSTICE CYNTHIA MARTINSON (MRS) HIGH COURT JUDGE