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  • appeal
  • 1962-12-17
  • 2 GLR 162165
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Criminal law and procedure?-Witness?-Failure to call?-On appeal re-trial ordered by circuit court?-Whether circuit court had jurisdiction to order re-trial?-Whether proceedings null and void?-Criminal Procedure Code, 1960 (Act 30), s. 330.


At the trail of the appellant in the district court on a charge of careless driving, the magistrate failed to insist upon hearing the evidence of a principal witness for the prosecution who was absent through ill-health. The appellant was convicted and appealed to the circuit court where it was held that the absence of the principal witness rendered the trial null and void, and a re-trial was ordered. At the re-trial, the appellant was again convicted. He obtained leave to appeal on the sole ground that the order for a re-trial was a nullity and therefore the re-trial itself was a nullity. The appellant, who had throughout the earlier proceedings been represented by counsel, had not raised this issue before.


APPEAL against a judgment of K. E. Boison, Esq., district magistrate (as he then was) delivered on the 25th September, 1962. The appellant was convicted of careless driving.

On the 28th October, 1960, an accident occurred on the Koforidua-Kumasi road involving lorry No. AG 1022 driven by one Sydney Anhwere Dankwa and the appellant, who was then in charge of [p.163] motor vehicle No. AE 4828. This accident resulted in injuries to many persons and seems to have been fairly serious. The police claimed that the accident occurred as a result of the careless driving of the appellant. Accordingly, he was charged with that offence and brought to trial before the district court. The appellant was duly convicted of that offence.

During the trial of the case, the driver in charge of lorry No. AG 1022 did not give evidence. He said he was unwell and sent a telegram to the police to that effect. It is probable that he also suffered injuries in the accident. The police must have felt able to proceed with the case without him. The trial proceeded without his evidence resulting, as I have said, in the conviction of the appellant. The appellant appealed against his conviction to the circuit court which was, at the relevant period, the competent court of appeal from the decision of the district magistrate. The appellant was represented by counsel in the circuit court and on conclusion of argument, the learned circuit judge noted as follows "From the record and argument heard on both sides, I find that the magistrate failed to insist on hearing the evidence of Sydney Anhwere Dankwa, the principal witness in this case. The whole case is a nullity. Case remitted to be tried by another magistrate." Although he did not expressly say so, the learned circuit judge obviously exercised his power under section 330 of the Criminal Procedure Code, 1960.1 Section 330 provides as follows:

"The Circuit Court ... may?-(a) in an appeal from a conviction or acquittal?-(i) reverse the finding and sentence, and acquit or discharge or convict the accused, as the case may be, or order him to be re-tried by a Court of competent jurisdiction, or commit him for trial."

Although the appellant had the benefit of counsel, he did not appeal against this order. He could not have been aggrieved by it then and may well have thought it was an opportunity to improve upon his performance and secure an acquittal at the re-trial.

In obedience to the said order, Mr. K. E. Boison, then district magistrate, on the 16th August, 1962, began the hearing de novo of this case which he concluded on the 25th September resulting in a second conviction of the appellant. Again, at this second trial the appellant was represented by counsel from beginning to end. The record shows that counsel made certain preliminary submissions of law which were decided in his favour but he at no time complained against the order for re-trial or sought to suggest that it prejudiced the appellant in any way.

In this appeal, no complaint was made against the judgment appealed from either on the merits or in any way whatsoever. Counsel must have realised that an appeal against the judgment on the merits would have very little prospect of success as there was more than ample evidence that the appellant drove his vehicle negligently. The only ground on which leave to appeal was sought and granted and which was more fully ventilated during the plenary hearing of the appeal was, "That the order for re-trial was a nullity and therefore the re-trial itself was a nullity." Although it was conceded that the power to order a re-trial exists, it was submitted for the appellant that it was not open to an appeal court to exercise it, unless the trial court had no jurisdiction to hear the case. It was said that such want of jurisdiction must be manifest on the face [p.164] of the record. Accordingly, and consistently with this submission, it was said that the magistrate had jurisdiction to try the case originally and that the failure to call a witness did not deprive him of jurisdiction and that the learned circuit judge fell into error in holding that the proceedings were a nullity because a witness had not been called to give evidence.

In so far as counsel for the appellant contends that the learned circuit judge erred in holding the proceedings in the first trial to be a nullity because a witness was not called for the prosecution, I am with him, but we part company in so far as he seeks to contend that the circuit judge has no jurisdiction to make an order for re-trial. It seems to me that the appellant is perfectly entitled to contend that the learned circuit judge exercised his undoubted power to order a re-trial for the wrong reason but that is a very different thing from saying he had no jurisdiction at all to make the order. I think the authorities distinguish cases in which there is a total want of jurisdiction in which proceedings are void ab initio and cases where there has been a wrong exercise of jurisdiction which is merely appealable. In this case, I am clearly of opinion that the learned circuit judge exercised his discretion of ordering a re-trial for the wrong reason and had this been an appeal from the order for re-trial, there can be little doubt that the appellant would have had a walk-over. I cannot accede to the submission that the order can only be made where the trial court had no jurisdiction. There is nothing in section 330 to lend the slightest colour to that view and it is not borne out by authority. Indeed the cases of Eronini v. The Queen,2 R. v. Zenvinula,3 R. v. Onuoha,4 Fox v. Commissioner of Police5 and Motayo v. Commissioner of Police6 show that the discretionary power of re-trial can be exercised for irregularities committed during the trial.

Counsel for the appellant contends in the alternative that if contrary to his submission, jurisdiction to order a re-trial exists, its exercise on the peculiar facts of this case contravened fundamental principles of justice as it enabled the prosecution to repair, so to speak, the holes in its case to the prejudice of the accused. He relies strongly on the case of R. v. Eka.7 That case decides, if I hit the ratio correctly, that the order for re-trial should not be made if its effect is to give the prosecution a second attempt to prove its case. Had the appellant been acquitted in the first trial or had the non-calling of the witness resulted in the prosecution being unable to prove all the ingredients of the offence of careless driving, this argument would have weighed with me. But I cannot feel the force of it in the particular circumstances of this case. The prosecution proved its case and secured a conviction before the district court. An eye-witness in the person of Constable Daker gave evidence. If the trial magistrate believed him, as it was obvious he did, it was open to him to find the offence proved and he so held. I am aware of no rule of law which states that in a careless driving case, the charge cannot be established on the evidence of one credible witness. It is certainly not one of the cases in which corroboration is required as a matter of law. Indeed the case of Commissioner of Police v. Kwashie8 decides that in a criminal case, the magistrate can properly convict on the evidence of a single witness.


Accordingly, although the circuit judge erred in this case in ordering a new trial, he erred in favour of the appellant as his order obliged the prosecution to prove its case afresh and thus gave the appellant another opportunity of defeating the prosecution?'s case. I feel no doubt whatsoever that it was in view of the prospect of an acquittal at the second hearing that the appellant did not appeal against the order for re-trial. He had another bite at the cherry and as he again did not profit by it he now complains that the order for re-trial was unjust to him. In my opinion, the contrary is the case.

In making the order for the new trial, the learned circuit judge did not set aside the conviction in the first case. He must, however, be deemed to have done so by necessary implication since the conviction could not have stood contemporaneously with an order for new trial. In Commissioner of Police v Ayiku9 the West African Court of Appeal, affirming an order for fresh trial, held that the finding and sentence should be reversed before a re-trial is ordered. Counsel for the appellant submits that if he should be successful in his argument, the second trial should be declared a nullity and that the conviction in the first trial be quashed. In view of the reasons which I have endeavoured to state, I can accede to neither request.

On the contrary, I hold that the order for re-trial was not a nullity and that the fresh proceedings founded upon it were regular, resulting in the valid conviction of the accused. Accordingly, the appeal fails and is dismissed.


<P>Appeal dismissed.</P>

Plaintiff / Appellant

Owusu Yaw for Owusu

Defendant / Respondent



(1) Eronini v. The Queen (1953) 14 W.A.C.A. 366

(2) R. v. Zenvinula (1946) 12 W.A.C.A. 68

(3) R. v. Onuoha (1947) 12 W.A.C.A. 191

(4) Fox v. Commissioner of Police (1947) 12 W.A.C.A. 215

(5) Motayo v. Commissioner of Police (1950) 13 W.A.C.A. 4

(6) R. v. Eka (1945) 11 W.AC.A . 39

(7) Commissioner of Police v. Kwashie (1953) 14 W.A.C.A. 319

(8) Commissioner of Police v. Ayiku (1939) 5 W.A.C.A. 89

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