Division: IN THE SUPREME COURT
Date: 22 MAY 1964
Before: OLLENNU, APALOO AND AKAINYAH JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the ruling of the court. The appellant on 8 November 1963, pleaded guilty before the District Magistrate, Kumasi, to a charge of assault under section 84 of the Criminal Code, 1960,1 and was sentenced to a fine of £G4 or one month’s imprisonment with hard labour. He paid the fine the same day.
On 27 February 1964, Sarkodee-Adoo C.J., exercising the jurisdiction and functions of the High Court, by virtue of the powers in him vested by section 64 of the Courts Act, 1960,2 revised the sentence as a judge of the High Court is empowered to do by section 60 (1) (a) of the Courts Act, 1960, and varied the same by the addition thereto of a term of twelve months’ imprisonment with hard labour. The order was served upon the appellant on 3 March 1964; in consequence thereof the appellant was arrested on the said 3 March 1964, and imprisoned.
Dissatisfied with the enhancement of his said sentence, the appellant, on the same day, 3 March, lodged an appeal in this court against the additional sentence imposed by his lordship the Chief Justice. He then applied to the High Court, Kumasi, for bail pending the hearing of his appeal but was unsuccessful; consequently he filed an application in this court for bail.
When the application for bail came before the court on 24 April 1964, learned principal state attorney who then appeared alone for the State, raised a preliminary objection to the jurisdiction of the court to entertain it, because, in his submission, no appeal is pending before the court to warrant the court entertaining application for bail as it is empowered to do by section 22 (2) of the said Courts Act, 1960. He conceded that there is a right to appeal against a revising order made by the judge of the High Court under section 60 of the Courts Act, 1960, that point having been decided previously by the court in its ruling in Opoku v. Commissioner of Police.3 He argued, however, that by virtue of section 18 (1) of the Courts Act, 1960, notice of such appeal must be filed within ten days of the date of conviction, unless the court or the court before whom the appellant was convicted granted extension of the time. He argued further that the phrase “date of conviction” has a fixed meaning, and that is, the date when conviction is
recorded against a person by the trial court, and not any subsequent date on which sentence is passed by the trial court or by any higher court. Counsel submitted, therefore, that since the appellant was convicted by the district magistrate on 8 November 1963, the latest date on which he could have appealed against his sentence was 18 November 1963; and since the time within which he could appeal has not been extended “by the Supreme Court or by the court before whom the appellant was convicted,” the filing of the appeal on 3 March 1964, nearly four months after the date of the conviction, contravened section 18 (1) of the Courts Act, 1960, and therefore the appeal is not properly before the court, and consequently, the court has no jurisdiction to entertain the application for bail. We ruled that the appeal was filed within
time and is pending, and that the application for bail was properly before the court.
Reasons for the said ruling were given on 1 May 1964.4 Hearing of the appeal was ordered to proceed.
On that day, 1 May 1964, the Director of Public Prosecutions, with him, the principal state attorney, appeared for the respondent, and raised a preliminary objection to the jurisdiction of the court to entertain the appeal. He submitted that there is no right of appeal from an order made by a judge of the High Court under section 60 of the Courts Act, 1960, and that the ruling given by the court on 20 December 1963, in Opoku v. Commissioner of Police, cited above, that an appeal lies to this court under section 8 (1) (c), was given per incuriam, and also that the ruling given that day, 1 May 1964, by the court that the requirements of section 335 of the Criminal Procedure Code, 1960,5 had been complied with and therefore appeal was pending, was also given per incuriam. The learned Director of Public Prosecutions submitted that the ruling of 20 December 1963, was given per incuriam because it was based partly on section 14 of the Courts Act, 1960, which had been repealed by section 1 of the Criminal Procedure
(Amendment) Act, 1963,6 and also without sufficient consideration of the interpretation to be placed upon, and the scope of section 8 (1) (c), and the matters in respect of which the section vests the court with jurisdiction and gives a right of appeal. As regards the ruling of 1 May 1964, he submitted that it was given on the basis that the ruling on 20 December 1963, was correct, and its final decision was based upon the provision of section 335 of the Criminal Procedure Code, 1960, which had been repealed by section 2 (d) of the Criminal Procedure (Amendment) Act, 1963, and other provisions substituted therefor.
The learned Director of Public Prosecutions contended that the matter in respect of which the appeal is brought is a criminal matter, that the only enactments which confer jurisdiction on the court to hear appeals in criminal matters are section 8 (1) (b) of the Courts Act, 1960, and sections 335 and 337 of the Criminal Procedure Code, 1960, as amended; he submitted that the right of appeal given in the said sections is in respect only of decisions or orders made by the High Court in the exercise of its original jurisdiction or of its appellate jurisdiction. Section 8 (1)(b) reads as follows:-
“8. (1) The jurisdiction of the Supreme Court shall consist of… (b) the hearing of appeals from any decision of a High or Circuit Court in a criminal matter exercised in accordance with the
provisions of this Act or any other enactment.”
The Criminal Procedure Code, 1960, sections 335 and 337 as amended by section 2 (d) of the Criminal Procedure (Amendment) Act, 1963, and section 10 of the Criminal Procedure (Amendment) (No. 2) Act, 19627 provide:
“335. (1) The prosecution may appeal on a question of law to the Supreme Court from any decision of the High Court in its appellate jurisdiction under this Part.
(2) The defence may appeal to the Supreme Court from such a decision in the following cases, that is to say
(i) where the appeal is against a conviction and is based on any ground which involves a question of law alone;
(ii) where the appeal is against a conviction and is based on any ground which involves a
question of fact alone or mixed law and fact and the defence has obtained the leave of
the Supreme Court to appeal or a certificate of the judge who tried the case that it is a fit
case for appeal, or on any other ground which appears to the Supreme Court to be
sufficient ground of appeal;
(iii) where the appeal is against sentence, other than a sentence fixed by law, and the defence has obtained the leave of the Supreme Court to appeal.”
“337. Any person convicted by or in the High Court or a Circuit Court, or the Director of Public
Prosecutions or the prosecutor on obtaining the certificate referred to in section 14 (2) of the Courts Act, 1960 (C.A. 9) may appeal to the Supreme Court in accordance with section 14 of that Act:
Provided that any person convicted by a Circuit Court may appeal
(a) from a decision given by that Court in the exercise of its summary jurisdiction to the High Court; and
(b) from a decision given by that Court in a trial on indictment to the Supreme Court.”
He therefore submitted that since the order appealed from was made under section 60 of the Court Act, 1960, and not in the exercise of the original or appellate jurisdiction of the High Court, the order is not appealable.
With regard to section 8 (1) (c) upon which the two rulings referred to above were chiefly based, the Director of Public Prosecutions submitted that it was intended to give right of appeal to a party aggrieved, and jurisdiction to the Supreme Court, in matters which are neither civil nor criminal, like certiorari, habeas corpus, mandamus, and in which it was held under the Court of Appeal Ordinance, 1957,8 now repealed, that no right of appeal was provided in the said Court of Appeal Ordinance: see for example, the decision of the Court of Appeal in In re Okine9 and In re Amponsah.10 He cited Ahenkora v. Ofe,11 and directed our special attention
to extracts from the judgment of Granville Sharp J.A., which read12:
“Counsel for the respondents raised in this connection a further argument on the language that appears in section 88. He contended that proceedings for certiorari are neither ‘a civil cause’ nor a ‘civil matter.’ This argument raises the whole question of the nature and character of prerogative writs, particularly of certiorari. In the Annual Practice 1955 edition, at p.1303, the following passage appears, and it seems to be based upon Short & Mellor’s Crown Practice, 2nd ed., pp. 15 et seq.: ‘The most important function of the order (of certiorari) is that by it, in the exercise of the supervisory capacity of the High Court over inferior courts, judgments, orders, convictions (other than judgments upon indictments) or other proceedings of inferior courts, whether civil or criminal, made without or in excess of jurisdiction, may be removed into the High Court to be quashed.’
It has been argued before this court by counsel for the appellants that a proceeding for an order of certiorari must be either a civil or a criminal cause or matter. I confess myself unable to follow this argument. From its supervisory character, exercisable as it is over both civil and criminal matters, it appears to me that it is neither one nor the other, but lies outside and beyond both. It is, as the notes that I have read state, the High Court acting ‘in the exercise of [its] supervisory capacity … over inferior courts,’ nothing more and nothing less, and neither a criminal nor a civil cause or matter.”
In the same case van Lare Ag.C.J. as he then was, dealing with the same point said13:
“Coke, in summing up and distinguishing between its various jurisdictions, speaks specifically of its criminal jurisdiction, its varying types of civil jurisdiction, and in addition to but quite distinct from these says: ‘this court hath not only jurisdiction to correct errors in judicial proceedings, but other errors and misdemeanours extrajudicial tending to the breach of the peace, or oppression of the subject . . . or any other manner of misgovernment’ (Coke, Fourth Instit. 75). To express this in more modern terms and borrowing the language of Holdsworth in his History of English Law, the distinct jurisdictions of the King’s Bench can be summarised as: (a) a criminal jurisdiction, (b) a civil jurisdiction, and (c) a general superintendence over the due observance of the law by officials and others. It is, of course, this last jurisdiction in which the prerogative writs lie. The jurisdiction is now statutorily vested in the Queen’s Bench Division of the High Court of Justice in England by the Supreme Court of Judicature (Consolidation) Act, 1925, ss. 4 and 18, and the Administration of Justice Act, 1928, but it remains a distinct jurisdiction of the High Court there, and by our Courts Ordinance, s. 15, a jurisdiction of the Supreme Court here.”
These submissions, as will appear presently, place the learned Director of Public Prosecutions in serious difficulties, and destroy his objection.
The jurisdiction of the High Court covers civil, criminal and other matters, and includes jurisdiction which, in the language of Granville Sharp, “lies outside and beyond” the civil and criminal jurisdiction. That other jurisdiction may be exercised in connection with a civil cause or matter, but is neither the one nor the other. This jurisdiction which is tertim quit, is set out in sections 29 and 30 of the Courts Act, 1960, as amended by the Courts Amendment Act, 1962,14 sections 3 and 5 respectively as follows:
“29. Subject to and in accordance with the provisions of this Act and any other enactment for the time being in force, the High Court shall have
(a) original jurisdiction in all matters;
(b) appellate jurisdiction from any decision of a Circuit Court except a decision given in a trial on indictment;
(c) appellate jurisdiction from any decision of a District Court in a criminal case or of a Juvenile Court;
(d) any other jurisdiction conferred by this Act or any other enactment for the time being in force.
30. Without prejudice to any power expressly provided for in any other enactment or in any other provisions of this Act, the High Court may exercise full powers of supervision and revision in respect of all proceedings in Circuit and District Courts, except proceedings in Circuit Courts in trials on indictment.”
The jurisdiction given by section 29 (d), i.e. “any other jurisdiction conferred by this Act or any other enactment for the time being in force,” must be interpreted, in the context, to include any jurisdiction given it which cannot be classified as civil or criminal.
Now the supervising jurisdiction or powers of a court are exercised in connection with causes or matters which are either civil or criminal. For example, an order for certiorari is made to remove proceedings, order or conviction in a criminal case from the magistrate’s court to the High Court to be quashed; but the jurisdiction in the exercise of which the High Court makes that order for certiorari, is certainly not criminal jurisdiction. Similarly an order for prohibition might be made by the High Court to stop civil proceedings before an inferior court, but the power or jurisdiction which the High Court exercises to stop those civil proceedings is not civil power or jurisdiction.
A careful study and analysis of sections 8, 29 and 30 of the Courts Act, 1960, as amended by the Courts (Amendment) Act, 1962, reveal that for each of the jurisdiction given to the High Court in sections 29 and 30, there is a corresponding jurisdictions conferred upon the Supreme Court in section 8, so that for each decision or order made by the High Court in the exercise of any one of its jurisdictions under sections 29 and 30, there is a right of appeal to the Supreme Court provided in section 8, which reads
“8. (1) The jurisdiction of the Supreme Court shall consist of
(a) the hearing of appeals from any judgment of the High Court in any civil cause;
(b) the hearing of appeals from any decision of a High or Circuit Court in a criminal matter
exercised in accordance with the provisions of this Act or any other enactment;
(c) the hearing of appeals from any decision given by the High Court in any other matter whatsoever; and(d) any other jurisdiction conferred by this Act or any other enactment.”
Thus where the High Court gives a decision in the exercise of its civil jurisdiction, original or appellate, an appeal will lie to the Supreme Court under section 8 (1) (a); where the High Court gives a decision in the exercise of its criminal jurisdiction, original or appellate, an appeal will lie to the Supreme Court under section 8 (1) (b), and where the High court makes an order in the exercise of its jurisdiction under section 29 (d) or section 30 of the Courts Act, 1960, an appeal will lie under section 8 (1) (c) which gives the Supreme Court corresponding appellate jurisdiction.
The question then is, are the discretionary powers given to the judge of the High Court in section 60 of the Courts Act, 1960, judicial, the exercise of which would be an exercise of jurisdiction under the Courts Act?
Where an enactment confers powers or duties upon an officer and the exercise of those powers or duties involves taking a decision, the exercise of those powers is judicial. Thus where under section 8 (1) of the State Councils (Colony and Southern Togoland) Ordinance,15 power was given to the Governor, upon consideration of findings submitted to him by a committee of inquiry appointed by him to inquire into a “constitutional matter,” he may “confirm, vary or refuse to confirm the findings thereof or may remit the matter to the Committee of Inquiry for further consideration,” it was held that the exercise of the discretionary powers so given to the Governor involved taking a decision to confirm, vary or refuse to confirm or to remit the findings; and therefore those powers are judicial and not ministerial, Ahenkora v. Ofe (supra). The very wide discretionary powers conferred upon the judge by section 60 of the Courts Act, 1960, also enable him to confirm, vary, refuse to confirm conviction or sentence, or order new trial. Those powers are therefore judicial functions. Again the provision in section 60 (1) of the Act that the judge may exercise that jurisdiction “either without hearing argument or after hearing argument” must be interpreted to mean that in the exercise of jurisdiction under the said section the judge constitutes a court, i.e. the High Court of which he is a judge. Therefore in exercising his powers under the said section 60, the judge exercises the jurisdiction conferred upon the High Court by section 29 (d) of the Courts Act, 1960, consequently it is under section 8 (1) (c) that an appeal from a decision or order he makes under the said section 60 will lie to this court. And this is so because the general powers of revision in respect of proceedings in circuit and district courts are vested in the High Court as by section 30 of the Courts Act, 1960, but the exercise of that jurisdiction of the High Court in respect of monthly returns of district magistrates in criminal cases is vested by sections 59 and 60 in the judge of the High Court exercising jurisdiction over the district.
We therefore re-affirm the decision in the ruling given on 20 December 1963 in Opoku v. Commissioner of Police (supra) that there is a right of appeal from a revision order made by the High Court under section 60 of the Courts Act, 1960. And it should be pointed out that the said ruling of 20 December 1963 is not based upon section 14 of the Courts Act, 1960, as was submitted by the Director of Public Prosecutions; the court used the said section 14 only after it has ruled that there was a right of appeal, and the only use it made of it was to grant leave under subsection (1) (c) of it, to appeal against sentence. Although the said section 14 has been repealed as the Director of Public Prosecutions properly pointed out, the identical provision in subsection (1) (c) is re-enacted in section 335, subsection (2) (iii), of Act 30 as follows:
“(2). The defence may appeal to the Supreme Court from such a decision in the following cases, that is to say
(iii) where the appeal is against sentence, other than a sentence fixed by law, and the defence has obtained the leave of the Supreme Court to appeal.”
It now remains to consider the procedure by which an appeal under section 8 (1) (c) may be brought. No procedure regulations have been made to govern such appeals; therefore the procedure to be adopted is to be determined by the effect of the order; if the resultant effect is civil, the procedure laid down for appeal in civil cases will regulate the appeal, while if the resultant effect is criminal, the appropriate procedure laid down for criminal appeals will be adopted.
The powers given to the High Court in section 60 of the Courts Act, 1960, are very wide; they include power to quash a conviction, as in subsection (1) (d), reduce or increase sentence as in subsection (1) (a), and further include all the powers vested in the High Court by section 330 of the Criminal Procedure Code, 1960, exercising appellate jurisdiction in criminal cases. To enhance a sentence implies a preliminary decision, i.e. affirming the conviction upon which the sentence was passed. Therefore an appeal from an order made under the said section 60 of the Courts Act, must follow the same procedure as appeal from a decision given by the High Court under section 330 of the Criminal Procedure Code, 1960. The procedure for such appeal is laid down in section 335 and 336 of the Criminal Procedure Code, 1960, as amended by the Criminal Procedure (Amendment) Act, 1963, which are as follows:
“335. (1) The prosecution may appeal on a question of law to the Supreme Court from any decision of the High Court in its appellate jurisdiction under this Part.
(2) The defence may appeal to the Supreme Court from such a decision in the following cases, that is to say
(i) where the appeal is against a conviction and is based on any ground which involves a question of law alone;
(ii) where the appeal is against a conviction and is based on any ground which involves a
question of fact alone or mixed law land fact and the defence has obtained the leave of
the Supreme Court to appeal or a certificate of the judge who tried the case that it is a fit
case for appeal, or on any other ground which appears to the Supreme Court to be
sufficient ground of appeal;
(iii) where the appeal is against sentence, other than a sentence fixed by law, and the defence has obtained the leave of the Supreme Court to appeal.
336. Every such appeal shall be entered within ten days of the order appealed against and, subject to Rules of Court made by the Supreme Court, the provisions of sections 326 to 334 shall apply mutatis mutandis to appeals from the High court to the Supreme Court.”
The order of the High Court against which the appellant seeks to appeal was made on 27 February 1964. According to section 336 of the Criminal Procedure Code, 1960, as quoted above, “such appeal shall be entered within ten days of the order appealed against.” It was filed on 3 March 1964, which is within ten days of the date of the order. Therefore the appeal is properly before the court.
The present section 335, subsections (1) and (2) in substance re-enact and add new provisions to the original section 335 quoted in the ruling given on 1 May 1964; and section 14, now repealed, of the Courts Act, 1960, though quoted in the said ruling did not form part of the grounds upon which the ruling is based. Therefore save as to the reference to the said section 14 of the Courts Act, 1960, the ratio decidendi in the ruling of 1 May 1964, is the same as in this ruling. The appeal is properly before the court, and should proceed. Leave is granted under section 335 (2) (iii) to appeal against sentence.
DECISION
Objection overruled.
Leave to appeal against sentence granted.
N.A.Y.
