COURT OF APPEAL, ACCRA
Date: 29 JULY 1975
AMISSAH ARCHER AND ANNAN JJA
CASES REFERRED TO
| (1) | Asibey III v. Ayisi [1974] 1 G.L.R. 315, C.A. |
| (2) | C.F.A.O. v. Zacca [1972] 1 G.L.R. 366, C.A. |
| (3) | Benneh v. The Republic [1974] 2 G.L.R. 47, C.A. (full bench). |
| (4) | A/S Norway Cement Export Ltd. v. Addison [1974] 2 G.L.R. 177, C.A. (full bench). |
| (5) | Magor & St. Mellons R.D.C. v. Newport Corporation [1949] 2 K.B. 481; [1950] 2 All E.R. 1226, C.A.; affirmed [1952] A C. 189; [1951] 2 T.L.R. 935; 115 J.P. 613; [1951] 2 All E.R. 839, H.L. |
| (6) | London Transport Executive v. Betts (Valuation Officer) [1959] A.C. 213; [1958] 2 All E.R. 636; 122 J.P. 380; 102 S.J. 544; 56 L.J.R. 371; 51 R. & I T. 490; 172 E.G. 5, H.L. |
| (7) | In re Okine [1960] G.L.R. 84, C.A. |
| (8) | In re Amponsah [1960] G.L.R. 140, C.A. |
| (9) | Swaniker v. Adotei Twi II [1966] G.L.R. 151, S.C. |
| (10) | Aschkar v. Karam [1972] 1 G.L.R. 1, C.A. |
| (11) | Bedaabour v. Duro, Court of Appeal, 18 March 1974, unreported. |
| (12) | Awoonor-Williams v. Gbedemah, Supreme Court, 8 December 1969, unreported; digested in (1970) C.C. 18. |
NATURE OF PROCEEDINGS
RULING on an application for leave to appeal to Supreme Court against a decision of the Court of Appeal (reported sub nom. Narwu v. Armah [1972] 2 G.L.R. 33) delivered prior to the abolition of the Supreme Court, notice of the application having been filed before the abolition of the Supreme Court.
COUNSEL
Joe Reindorf for the applicants.
Bob Anane for the respondent.
JUDGMENT OF AMISSAH J.A.
At the outset of this application the court itself raised the question of its competence to hear it. And that question took the greater part of the argument. The application before us is one “for leave to appeal to the Supreme Court against the decision of the Appeal Court.” It is common knowledge that the Supreme Court referred to has been abolished and that its demise took effect as long ago as 13 September 1972. The application now comes for consideration on the basis that it is an application for leave to apply for a review by the full bench of this court of a decision by its ordinary bench. And the question is: is this conversion permissible? To that question, counsel for the applicants, Mr. Joe Reindorf, answers in the affirmative. In the light of the legislation which abolished the Supreme Court and of the decision of this court in Asibey III v. Ayisi [1974] 1 G.L.R. 315, that answer requires closer examination.
The Supreme Court established under the Constitution of 1969 had both an appellate and an original jurisdiction. Included in its appellate jurisdiction under the Constitution and under the Courts Act, 1971 (Act 372), which was enacted to give better effect to the provision of the Constitution on the judiciary, was the power to hear appeals from the Court of
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Appeal, “with leave of the Court of Appeal, in any other cause or matter, civil or criminal, where the Court of Appeal is satisfied that the case involves a substantial question of law or is of public importance” (see the Constitution, 1969, art. 105 (1) (c) and the Courts Act, 1971 (Act 372), s. 3 (1) (d)). It was under this provision that the applicants proceeded to seek leave of this court to appeal to that court. On 13 September 1972, the Courts (Amendment) Decree, 1972 (N.R.C.D. 101), abolished the Supreme Court. In its stead, the Decree reintroduced the system of review by the full bench of judgments given by the ordinary bench of the Court of Appeal. That system was once before in operation between the years 1966 and 1969 when there was no Supreme Court. Then as now, the intention was to do away with the Supreme Court established by a Constitution but at the same time without making the decisions of the Court of Appeal constituted ordinarily by its three members final in all cases. Accordingly, the jurisdiction conferred upon the full bench of the Court of Appeal by N.R.C.D. 101, s. 3 (2) was:
“(a) to review and determine a decision of the Court of Appeal or any Justice or Division thereof upon a question of law, where such Justice or Division gives leave for such review and determination;
(b) to review and determine any other decision of the Court of Appeal or any Justice or Division thereof, where it appears to a full bench of such Court that there has been a miscarriage of justice;
(c) to hear and determine any matter in respect of which the Court of Appeal has jurisdiction under section 22 (1) of the Chieftaincy Act, 1971 (Act 370). by virtue of section 2 of this Decree;
(d) to hear and determine any appeal which had been duly filed with the Supreme Court before the commencement of this Decree.”
The problem created by the present application is that although it was filed before the commencement of the Decree, there is no question that it was not an appeal which had been filed with the Supreme Court before that date. What was filed was merely an application for leave to appeal and not an appeal. So that the matter is not one which the full bench has jurisdiction to hear and determine under section 3 (2) (d) of N. R.C.D. 101.
In Asibey III v. Ayisi [1974] 1 G.L.R. 315 this court dealt with an application for leave to appeal to the Supreme Court at a time when the Supreme Court was no more in existence. In the course of its judgment, the court considered section 3 (2) (d) of N.R.C.D. 101 in relation to article 105 (1) (c) of the Constitution of 1969, which gave the Supreme Court the jurisdiction to hear appeals on questions of law with leave, and refused the application. In a short judgment the operative part of which is set out below this court gave the reasons for its decision. Speaking for the court, Azu Crabbe C.J. made the following pronouncement at p. 317:
“The application in this case was for leave to appeal to the Supreme Court against the decision of the Court of Appeal in Asibey III v. Ayisi [1973] 1 G.L.R. 102.
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On 13 September 1972, the Supreme Court was abolished by virtue of section 1 of the Courts (Amendment) Decree, 1972 (N.R.CD 101), and it was provided by section 2 that for every reference to the “Supreme Court” in any enactment there shall be substituted a reference to the “Court of Appeal”.’ For the purpose of bearing and determining appeals, the appellate jurisdiction of the Court of Appeal was conferred by section 3 (2) (d) ‘to hear and determine any appeal which had been duly filed with the Supreme Court before the commencement of this Decree.’
It is plain that at the commencement of this Decree there was no appeal in this case pending before the Supreme Court, and therefore, the full bench of the Court of Appeal is not clothed with jurisdiction to entertain any such appeal coming before it by leave. The Decree did not provide for cases falling under article 105 clause (1) (c) of the Constitution or section 3 (1) (d) of the Courts Act, 1971 (Act 372), and unprovided for they must remain. The court cannot take upon itself to supply omissions in an enactment, for this would be ‘a naked usurpation of the legislative function under the thin disguise of interpretation’: Magor and st. Mellons R. D. C. v. Newport Corporation [1952] A.C. 189, per Lord Simonds at p. 191, H.L: see also Fisher v. Bell [1961] 1 Q.B. 394. Consequently, we hold that the application in this case is misconceived and it is accordingly refused.”
It is on account of this pronouncement that this court raised the question of its jurisdiction at the opening of the argument. For as I said earlier the present application was for leave to appeal to the Supreme Court. It had to be so, as at the time it was filed the Supreme Court was the tribunal with clear jurisdiction to entertain complaints against decisions of this court on questions of law if leave was given by this court.
Mr. Joe Reindorf sought to distinguish this case from that which came before the court in Asibey III v. Ayisi (supra). His inspiration for this distinction was derived from the fact that the report of the case appearing in our law reports stated that the application in question was filed on 28 July 1973, that is, over ten months after the abolition of the Supreme Court. Had that been so, the application then to appeal to the non-existent court would have been clearly misconceived. Assuming that the law report was correct, contrast was drawn with the application before us now which was filed before the Supreme Court was abolished. Upon this basis, counsel submitted that the decision in Asibey III v. Ayisi should not control the present application. The distinction, I think, is one of substance. It is one thing to dismiss an application for leave to appeal to the Supreme Court which is brought by a man with full knowledge, either legal or Constructive, that the court is abolished on the ground that, he is to his own knowledge, making an impossible request. It is quite a different matter to apply that same reasoning to the person who brought his application when the Supreme Court was in existence and was the only proper place to which he could direct his complaints. And this is so, even though that application comes up for consideration after the abolition of the
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Supreme Court. In that latter case, a point of obvious importance would be whether another tribunal to entertain complaints of the nature contained in the application had been substituted thereof? However, since the argument, my attention had been drawn by my brother Archer to the fact that the date given in the Ghana Law Reports for the filing of the application in Asibey III v. Ayisi was a typographical error; the correct date was not 28 July 1973, but 28 July 1972. It was filed at a time when the Supreme Court was still in existence. The basis for the distinction which counsel sought to draw, thereby vanishes. The present application is thus no different from the one ruled on by the court in Asibey III v. Ayisi.
The ordinary bench of the Court of appeal is bound by its own previous decisions (see s. 9 (4) of the Courts Act, 1971 (Act 372)). By the doctrine ofjudicial precedent which this statement implies and which this court applies, we would in the circumstances be bound to follow the decision in Asibey III v. Ayisi, unless it was given per incuriam, that is, without talking into consideration a necessary statutory provision or a decision of a higher court, for example, one given by the now defunct Supreme Court. Another circumstance which would free us from following a particular precedent set by this court in an earlier case is where we find two previous decisions of this court in conflict with each other; this court will in that case be in the position to select which of the two is in its opinion the better view or to strike out on its own. But otherwise, whatever the views of the court on a previous authority, it is bound to apply it. In the present case, the luxury of choice from two decisions or the ability to strike out on our own on account of two conflicting decisions of this court is not given to us. Apart from Asibey III v. Ayisi, I have found no other authority of this court directly in point which is conflicting. Nor is there contrary authority given by a higher court. Unless it can be shown, therefore, that a necessary statutory provision has been overlooked, Asibey III v. Ayisi must prevail. Mr. Joe Reindorf in this connection submitted that the provisions which ought to apply to the present application were sections 5 and 6 of N.R.C.D.101 and not section 3 (2) (d). And in so far as the court in Asibey III v. Ayisi failed to give consideration to them, its decision was given per incuriam. He has also argued that sections 6, 8 and 9 of the Interpretation Act, 1960 (C.A. 4), were also material but ignored.
I have looked at the provisions cited. I find none of them gives a direct answer to the question in issue. Section 5 of N.R.C.D. 101 deals with statutory amendments consequential to the abolition of the Supreme Court and does not, to my mind, provide the basis for the jurisdiction of the full bench of the Court of Appeal which this court said that it lacked in the Asibey III case. Perhaps an argument could be founded on it to the effect that if by virtue of section 5 even statutory provisions were to be amended to substitute the full bench of the Court of Appeal for the Supreme Court in order to give effect to the policy of the Decree, the amendment only of court papers, which this application after all demands in the same direction, should equally be possible and indeed should not present greater difficulties. But that was not the argument put forward.
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And though I raise it now to point the general policy of the Decree abolishing the Supreme Court, I do not think the section on consequential amendments, namely, section 5, by itself or in conjunction with section 6 confers the jurisdiction which is necessary to enable this application to succeed. Section 6 may be more in point. But its bearing on the issue is marginal in the sense that it affects this application only if there is jurisdiction in this court to entertain the application and in the full bench to review the consequential reference to it. The jurisdiction of courts is conferred by statute. This section 6 deals not with statutes but with the modification of the procedure rules in the Supreme Court Rules, 1970 (C.I.13). If there is jurisdiction in a court to deal with this matter, then the Supreme Court Rules, 1970 (C.I. 13), as modified will show how the jurisdiction is to be invoked; if there is no jurisdiction, the procedure rules do not help. The basis for the desired jurisdiction must be sought aliunde.
I need not deal extensively with the sections of the Interpretation Act mentioned. Suffice it to say that they are the provisions which treat amended, substituted and applied enactments and the effect of repeals, revocations or cesser or of substituted enactments. They indicate the general legislative policy where these changes in enactments are undertaken to be that of continuity wherever possible. Mr. Reindorf forcefully pressed section 8 (1) (c) of C.A. 4 particularly on us. That is the provision which says that the repeal or revocation of an enactment shall not “affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder.” He described the applicants in having filed the application before the abolition of the Supreme Court as having acquired an accrued right. I, however, find it difficult to concede a right to a review by the full bench, which is really what this discussion is all about, and, which is said to have accrued to the applicants, but which can be disposed of so easily by our refusing to grant him leave to proceed to that court for whatever reason might seem to us sound. Could it be said that he has an accrued right to this review if we are able to dismiss his present application on the ground that no point of law is involved in it? I think not. Apart from the general policy of continuity spoken of, I must confess that the sections of the Interpretation Act referred to do not afford me much assistance. On the whole, my reading of the provisions of that Act and of N.R.C.D. 101 mentioned does not directly yield the omission in jurisdiction which this court in Asibey III v. Ayisi after considering section 3 (2) (d) of N.R.C.D.101 said that there was in the judicial system. That however does not, in my view, conclude the matter.
This court in deciding the fate of the application in Asibey III v. Ayisi focused its attention wholly on section 3 (2) (d) of N.R.C.D. 101 and held that as the full bench did not under that provision have jurisdiction to hear appeals from the Court of Appeal other than those that had been filed with the Supreme Court at the material time, the application must be dismissed. The court considered no other provision which may or may not have conferred jurisdiction on the full bench. It is true that section 3 (2) (d) gave the full bench the power to take over and determine appeals
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already pending before the Supreme Court. That this application is not one of them is not denied. But section 3 (2) (d) is not the only provision of the Decree which delimits the jurisdiction of the full bench. The jurisdiction of that court can be found by a reading of the whole of section 3 (2).
It is important at this stage to advert to the fact that that section in its entirety, and indeed not only that section but the whole Decree, deals not with the jurisdiction of the ordinary bench of this court but with that of the full bench. The Decree created a new full bench of the Court of Appeal and provided in section 3 (2) for its jurisdiction. It did not alter the existence of the ordinary bench. Therefore, while questions of succession may arise for determination when the jurisdiction of the full bench is considered vis-a-vis the Supreme Court, no question of succession arises when the ordinary bench’s own jurisdiction is under consideration. There being no break of any sort effected in the ordinary bench of the Court of Appeal by any of the provisions of N.R.C.D. 101. After that Decree the Supreme Court was gone together with the right to appeal to it; for these the full bench and the right to review were substituted in some cases. The ordinary bench of the Court of Appeal remained untouched by the reconstruction. The present application was filed not with the Supreme Court but with the Court of Appeal. And with that court it has ever since remained. Only when this court is considering the tribunal to which it should grant permission for grievances against its own decision to be voiced, therefore, should the question of succession of courts arise in this case. And from the point of view of this case, that question takes this form: should an application originally couched in terms seeking permission to go to the Supreme Court now be granted but directed to the full bench? In answering it, we must bear in mind that on this question of succession, it is the broad and equitable approach, rather than the narrow and technical, that has consistently found favour with our courts: see, for example C.F.A.O. v. Zacca [1972] 1 G.L.R. 366, C.A. and Benneh v. The Republic [1974] 2 G.L.R. 47, C.A. (full bench).
After anxious consideration, I am constrained to conclude with the greatest deference and respect that had the court considered section 3 (2) of N.R.C.D. 101 as a whole, especially paragraph (a) of that paragraph, instead of concentrating on paragraph (d) exclusively as the basis of the jurisdiction of the full bench in this matter, it would not have decided Asibey III v. Ayisi as it did. An inquiry into the nature of this application in relation to the courts affected by it should help demonstrate the point. At the time it was made the object of the application was to seek the permission of the Court of Appeal to test its own decision before a higher tribunal. The objections of the applicants to that decision were grounded in law. The tribunal provided at the time to which the decision should go for further examination was the Supreme Court. The Court of Appeal did not immediately deal with the matter. It did not do so because the application was filed on the last day of term before the long vacation. Before the courts re-assembled, the Supreme Court was no more. Instead the full bench of the Court of Appeal had been created to review the
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decisions of the court on questions of law and miscarriages of justice. The only question then is whether the Court of Appeal before whom this application has always been pending can now treat it as a request for permission to test the soundness of its decision by way of review by the full bench? In other words is not this case one of mere amendment of the papers in the application which were properly brought before us? Unless there is some barrier, like the non-existence of a tribunal to further examine the decision if this permission were granted, is not the application worth considering on its merits? What prevents this court from granting this request ?
One of the arguments against this court proceeding in that manner is that the full bench is a tribunal different from the Supreme Court, with a different jurisdiction, and different processes. A request for permission to test this court’s decision before that one, cannot therefore be considered as a request, when that one is destroyed, to go to the other even though in some cases the other has been placed in the shoes of the one. That the full bench did not take over the total jurisdiction of the Supreme Court is a fact not in dispute. The jurisdiction to hear and determine appeals as of right to the Supreme Court “in any civil cause or matter where the amount or value of the subject matter of the dispute or the amount awarded or confirmed by the Court of Appeal is not less than N010,000” (see the Courts Act, 1971 (Act 372), s. 3 (1) (a)) was not given, even by way of review, to the full bench of the Court of appeal. An examination of section 3 (1) of Act 372 shows that other appeals as of right which like this could depend upon pure factual objections were also excluded from the review jurisdiction of the full bench. But one thing is common to both the Supreme Court and the full bench of this court, and that is, the jurisdiction to examine the decisions of the Court of Appeal as ordinarily constituted where the ordinary bench itself has granted leave, on questions of law. Under the law which governed appeals to the Supreme Court, the Court of appeal must be satisfied that the case involved “a substantial question of law”: (see Act 372, s. 3 (1) (d)). Under the present enactment regulating reviews by the full bench the requirement is for leave of the Court of Appeal to be obtained “upon a question of law”: (see N.R.C.D. 101, s. 3 (2) (a)). It would seem from this that the measure to be applied by this court granting leave for a fresh look to be taken at our decisions on questions of law should at least be the same; if anything it may even be said that it has been somewhat liberalised under the new dispensation. In any event this court had power to grant leave to an applicant dissatisfied with its judgment to test its soundness on a point of law before the Supreme Court and continues to retain that power where the test is to be undertaken before the present full bench. On this, there is the clearest intention expressed by the Decree that the jurisdiction of the Supreme Court should in some form continue in the full bench of the Court of Appeal. And arguments on the question of succession of courts apart, the power in this court to grant leave for a testing of its decisions remains substantially the same today as it was before the abolition of the Supreme Court. It thus seems hardly fair,
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just or even sound that our reason for denying an applicant, prepared to show when he comes for leave from us to test our decision that there is a substantial question of law involved, should be that the new law requires that there should only be a question of law involved. It would mean that we are denying him his right on the sole ground that the test he ought to satisfy has now been lowered, which is a justification which I, at least, am not prepared to put forward. The difference in stated jurisdiction between the Supreme Court and the full bench of this court in this respect, therefore, cannot, in my view, be a ground restraining us from converting this application on into one for leave to apply for a review by the full bench.
But a review it has been argued, is different from an appeal. That very point was made by the full bench itself in the case of A/S Norway Cement Export Ltd. v. Addison [1974] 2 G.L.R. 177 at p. 182 where the court speaking through Apaloo J.A. said:
“The jurisdiction conferred on the full bench is to review and not to entertain an appeal from the ordinary bench. Indeed an appeal from the ordinary bench to the full bench would only, in effect, mean an appeal from one panel of judges to another panel of the same court. Accordingly, a considerable body of case law has drawn a distinction between a review and an appeal and stressed that the former should not be taken as intending the latter and should not be dealt with as such. Such cases as Adusei v. Marfo, Supreme Court, 24 February 1964, unreported; Swaniker v. Adotei Twi II [1966] G.L.R. 151, S.C.; Aschkar v. Karam [1972] 1 G.L.R. 1, C.A. and Benneh v. The Republic [1974] 2 G.L.R. 47, C.A. (full bench) are typical of these. We accept this as a valid distinction and hold that although both may achieve the same result, they are conceptually different.”
On first impression, this may appear contradictory to the pronouncement of the ordinary bench of the court in C.F.A.O. v. Zacca [1972] 1 G.L.R. 366 where the court assimilated a review by the full bench to an appeal. In that case Sowah J.A. reading the leading judgment for the majority said at p. 393:
“In passing, it has been said that the full bench is no higher court than the ordinary bench of the Court of Appeal, nevertheless, it could not be overlooked that the full bench had powers of review which are denied to the ordinary bench. The intention behind paragraph 7 (2) of the Courts Decree, 1966 (N.L.C.D. 84), though veiled in legal verbiage, is clear. One has only to compare and contrast the scope of the power therein contained with that contained in rule 33 of the Supreme Court Rules, 1962 (L.I. 218), which apply to the Court of Appeal, to find out that intention. The effect of the exercise of those powers is the same as if it were an appellate court over and above the ordinary bench. When it does grant leave, it hears arguments on law, determines whether the issues of law decided by the ordinary bench were correct, dismisses the application if it thought the ordinary bench was right; reviews the judgment by allowing the application if it
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considered that the ordinary bench’s appreciation of the law was wrong or that it misapplied the law. De jure, the ordinary bench and the full bench may be two divisions of the same court; de facto, the latter exercises powers of review amounting to such powers as an appellate court would have over a court inferior to it; see Bassil v. Buckle, Court of Appeal (full bench), 18 August 1969, unreported; digested in (1970) C.C. 6 and Republic v. Halm and Ay eh Kumi, Court of Appeal (full bench), 7 August 1969, unreported; digested in (1969) C.C. 155.”
So impressed was Sowah J.A. by the similarity in effect between the result of an appeal and a review that he was moved to declare at p. 394 that “A rose by any other name, smells as sweet.”
A closer look at the pronouncements extracted from the two cases reveals that they deal with different aspects of the institution of review. The full bench in A/S Norway Cement Export Ltd. v. Addison was looking at the institution from the standpoint of its conception and procedural incidents. In these it found that the review was different from an appeal. The ordinary bench in C.F.A.O. v. Zacca was concerned with the object and effect of the review. In those it found the review no different from an appeal on a question of law. Certain propositions in the majority decision in C.F.A.O. v. Zacca are difficult to accept; upon these, I think, the full bench may one day have to pronounce definitively. But the passage cited is not one of them. The reasoning therein is sound. Yet both apparently contradictory positions revealed by the two cases can be validly taken and are quite reconcilable. And that the full bench did not intend by its statement to cast doubt on the view of the ordinary bench as regards the effect of the review is indicated by the acceptance by the full bench in the final sentence of the passage quoted above from the decision in A/S Norway Cement Export Ltd. v. Addison that both the appeal and the review may achieve the same result.
For the purposes of the present application, the interest of the applicants lies in the object and effect of the review not in its procedure. His concern is not with how the tribunal established to examine the decision of the Court of Appeal in the light of the law performs its task; it is with the object and effect of that examination. They ask that their application to ask for leave to appeal to the Supreme Court, which was before this but court before the Supreme Court was abolished, be dealt with by nobody us as an application for leave to apply for a review by the full bench of this court because they are interested in our judgment being reversed, as they claim on point of law. Whichever be the tribunal to do so and whatever its methods, must be of little concern to them so long as the tribunal is judicial and, clothed with the jurisdiction effectively to reverse our judgment on the point complained of. That tribunal was the Supreme Court when they filed their application with us; it is now the full bench of this court. In both cases we were and still are the tribunal with power to give leave for the desired further proceedings to be taken. We do not see how the conceptual
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or procedural differences, which admittedly there are between an appeal and a review when the matter gets before the other tribunal, that is, if it ever gets there, affects the exercise of our power simply to give or refuse permission to take this further step.
Finally as we began we must end with the case of Asibey III v. Ayisi. As I said earlier, the court in that case focused its attention exclusively on section 3 (2) (d) of N.R.C.D. 101. That paragraph was in fact no more than a provision of a transitional nature tacked on to the jurisdiction of the full bench. Section 3 (2) (a), (b) and (c), the substantive provisions, give the general every day jurisdiction of the full bench. I will not trouble further with paragraph (c) because it confers an appeal jurisdiction in chieftaincy disputes which is not relevant to this case. Paragraphs (a) and (b), the material provisions, state the jurisdiction of the full bench to be to review and determine a decision of the Court of Appeal either upon a question of law, where the ordinary bench gives leave, or without leave of the ordinary bench where it appears to the full bench that there has been a miscarriage of justice. Nothing in these provisions limits the jurisdiction of the full bench in this connection only to cases decided by the ordinary bench after the coming into force of the Decree on 13 September 1972. There was no such limitation in any other part of the Decree. The ordinary bench existed before that date. And the mandate now given to the full bench was to review and determine the decisions of that ordinary bench. It seems to me, therefore, that provided the ordinary bench of the court, acting within its rules, grants permission or leave that its decision be reviewed by the full bench, it does not matter whether the decision under consideration was given before or after the date when the Decree came into force. Admittedly, the effect of legislation is prospective unless otherwise provided. But prospectiveness in this instance attaches not to the decisions of the ordinary bench to be reviewed but to the exercise of jurisdiction by the full bench. A decision of the ordinary bench is no less a decision of that court within the contemplation of the provisions on the jurisdiction of the full bench because it was given before the commencement of the Decree. And if it is such a decision, then, it would no less be reviewable by the full bench. Were it otherwise, a court created to hear and determine disputes of citizens or a tribunal appointed to inquire into problems would have to be limited in its jurisdiction to disputes or problems arising only from the day of its creation. That, however, is not the manner any court or tribunal created to deal with disputes or problems is regarded.
In case the point be raised that the view I put forward opens the flood gates for matters long disposed of, to be raised once more by way of review before the full bench, I hasten to point out that there is a limitation. That limitation is imposed by the Rules of Court. It is in this connection that section 6 of N.R.C.D. 101 pressed on us by counsel, and which calls for necessary modification to the Supreme Court Rules, 1970 (C.I. 13), to give effect to the provisions of the Decree so as to apply to the full bench the exercise of its jurisdiction conferred under section 3, comes into play. Rule 7 (1) of those rules would, with the necessary modification, require that
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an application for leave “be filed with the Registrar of the [Court of Appeal] within fourteen days of the date of the decision against which leave to [apply for a review] is sought.” Where this time requirement is complied with, the decision to be reviewed could have been given before 13 September 1972. On the other hand, where no leave is required, as indeed is the case where the request for a review is founded on a miscarriage of justice, then according to rule 8 as appropriately modified, the application in a civil case must, subject to the possible enlargement of time, be brought within fourteen days, if the review sought is of an interlocutory decision, or within three months in the case of a final decision, irrespective of whether the decision was given before or after 13 September 1972. It cannot be said that there has been a break in the system providing a final testing of decisions of the ordinary bench of this court. What change there has been is only in the nature of the test and the body to provide it.
In sum, the whole matter boils down to this question: procedural rules apart, would a person who had an adverse judgment given by the ordinary bench of the Court of Appeal against him immediately before the abolition of the Supreme Court and the establishment of the full bench of the Court of Appeal upon the establishment of the latter be entitled to apply to the ordinary bench for leave to invoke the jurisdiction of the full bench as conferred by section 3 (2) (a) of the Decree to review that decision? To that question my answer is firmly in the affirmative. Such a person, however, is subject to the rules of procedure which determine the time within which his application should be made if it is to be entertained as competent.
If, as I view it, a person who had filed no application before the substitution of the one tribunal by the other could, acting within the time allowed by the procedural rules, apply for such leave, I see no reason why his brother in the same position should be prejudiced merely because he happened to have filed his application for leave to be granted by this court to proceed to the higher tribunal before it was replaced. The solution in that case lies not in a dismissal of the application but an amendment.
Where does this view leave section 3 (2) (d) of the Courts (Amendment) Decree, 1972 (N.R.C.D. 101)? Why was there need to include that provision enabling the full bench “to hear and determine any appeal which has been duly filed with the Supreme Court before the commencement of this Decree,” if cases coming from the Court of Appeal in which appeals had not been filed were not to be excluded on the principle of expressio unius exclusio alterius from the review process? It would be recalled that it was over the application of that maxim in the interpretation of a similar provision that the court was divided in the case of C.F.A.O. v. Zacca (supra). To the question, why then was section 3 (2) (d) enacted, the answer is quite simple. As I have already stated, the nature, the jurisdiction, the powers and the procedure of the ordinary bench were in no way changed, nor was it intended that they be changed, by N.R.C.D. 101. The Decree provided fresh jurisdiction for the full bench of the Court of Appeal which was in certain respects intended to replace appeals to the Supreme Court. Having provided in section 3 (2) (a) and (b) for the reviews which would come
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directly to the full bench there was the need to provide for those cases which had already left the jurisdiction, as it were, of the ordinary bench, and were at the time the Decree came into force already within the jurisdiction of the Supreme Court. These cases, if the usual argument about succession of courts was to be avoided, had to be specifically transferred to the jurisdiction of the full bench. And even if without specific provision, the succession argument were eventually to be resolved in favour of the full bench taking jurisdiction, common prudence required that the doubt which could easily be foreseen be avoided in advance. But that apart, there is the even more important consideration that the full bench was not clothed with the totality of the jurisdiction of the Supreme Court. I have already referred to the omission to reproduce in the review jurisdiction of the full bench, the appeal to the Supreme Court as of right in civil cases where the amount or value of the subject-matter of dispute or the amount awarded or confirmed by the Court of Appeal was not less than 010,000.00. Neither was the Supreme Court’s jurisdiction to deal with appeals as of right, in any cause or matter relating to the issue or refusal of the prerogative writs or in criminal cases where the court had determined an appeal emanating from a decision of the High Court in the exercise of its original jurisdiction, given by way of review to the full bench. At the date when the Supreme Court was abolished, appeals based on these jurisdictions might well have been filed already with and pending before the Supreme Court. These appeals could certainly not, without the specific provision in section 3 (2) (d), have been dealt with by the full bench under any of the other jurisdictions conferred upon it. Either with the abolition of the Supreme Court, these cases abated or they had to be specifically saved. The legislators took the view that despite the abolition of the Supreme Court, if such appeals had been filed, then those who had in reliance upon their right already placed their cases before that court were not to be adversely prejudiced. The power in the new tribunal, the full bench, to dispose of such appeals had to be expressly conferred. So the right to have these appeals heard as appeals by the full bench was given. This, in my view, is the explanation and justification for the insertion of section 3 (2) (d) of N.R.C.D. 101. Indeed in the type of case dealt with under section 3 (2) (d), the procedure of the full bench is not by way of review at all but by way of appeal. Practice directions as to how reviews are conducted do not affect them. As was said by the full bench in Benneh v. The Republic [1974] 2 G.L.R. 47 per Apaloo J.A. at p. 81, section 3 (2) (d) necessarily implied jurisdiction in that court “to exercise all the powers which that court [meaning the Supreme Court] would have exercised, if it had itself existed and entertained the appeal.”
Whatever it does, section 3 (2) (d) of N.R.C.D. 101 does not in any way cut down the jurisdiction of the full bench as conferred by section 3 (2) (a) and (b) Nor does it preclude the ordinary bench giving leave to the applicants to enable that jurisdiction to be exercised. That the full bench had no jurisdiction to deal with the application in Asibey III v. Ayisi [1974] 1 G.L.R. 315 under section 3 (2) (d) of N.R.C.D. 101 is a view which cannot be contradicted. But having so decided, the court ought to
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have considered whether the full bench could not have had jurisdiction over the case if leave had been granted under any of the other heads of jurisdiction. This the court did not do. I am sure it did not do so because the matter was not drawn to its attention. But in failing to do so, I think the court ignored a vital statutory rule governing the situation. In fact the court by its decision cut down the jurisdiction of the full bench as conferred by section 3 (2) (a) and (b). I am, therefore, driven to the conclusion that Asibey III v. Ayisi was decided per incuriam and ought not to be followed in this case. In my opinion the ordinary bench has power to grant leave to an applicant to apply for a review under section 3 (2) (a) of N.R.C.D. 101 and the full bench itself has power to hear and determine a review brought with such leave under that head or without leave under section 3 (2) (b) of a decision given by the ordinary bench before the coming into force of that Decree.
That being so I am of the opinion that all that was required when the full bench came into being was an amendment of the application before this court to substitute a review by the full bench for the appeal to the Supreme Court originally asked for. And this court knowing of the power of the full bench to review its decisions on questions of law with its leave, has the competence to grant the amendment. Mr. Anane, on behalf of the respondent, admitted this much in his argument when he said that the applicants should have applied earlier for an amendment of their application. But whether he applied earlier or now, this controversy over jurisdiction could not have been avoided. As the reason for the amendment is due to no fault on the part of the applicants, as it is as well known to both parties as to the court, I see no valid objection to our making the amendment suggested now. I would accordingly amend the application by substituting for “leave to appeal to the Supreme Court,” the expression “leave to apply for a review by the full bench of the Court of Appeal.”
In spite of the court itself raising the question of its competence to hear the application, we heard argument on the merits of the application I think the points raised justify our granting leave to apply for a review by the full bench of the decision of the ordinary bench on the grounds stated by the applicants. I accordingly would grant the leave prayed for.
JUDGMENT OF ANNAN J.A.
I agree with the ruling read by my brother Amissah and have nothing to add. I would therefore grant the application in terms of the ruling.
JUDGMENT OF ARCHER J.A.
This application involves two legal principles of fundamental importance and as such I have allowed myself ample time to ponder, to cogitate and even to meditate over the course which my learned brothers have taken in granting the application. I do not agree with their decision and I intend to preface my reasons with two well-established principles: firstly, it is not the role of a court of law to legislate; and secondly, a review as understood in this country is not an appeal.
On the first point, Austin in his Jurisprudence (5th ed.), Vol. II at p. 991, stated as follows:
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“In order to the accomplishment of the end for which the statute was established, the judge completes or corrects the faulty or exorbitant intention with which it actually was made. He enlarges the defective, or reduces the excessive statute, and adjusts it to the reach of its ground. For he applies it to a use of a class which it surely does not embrace, but to which its reason or scope should have made the law giver extend it; or he withholds it from a case of a class which it embraces indisputably, but which its reason or scope should have made the law giver exclude it.”
Austin regarded this process not as an interpretation but “a palpable act of judicial legislation” and appears to have regarded it as a proper practice in his days: see Cross, Precedent in English Law at pp. 183-184. When the same point arose in Magor & St. Mellons R. D. C. v. Newport Corporation, Denning L.J. (as he then was) in his dissenting judgment in the Court of Appeal, and perhaps emboldened by Austin’s exposition, said as reported in [1950] 2 All E.R, 1226 at p. 1236 as follows:
“We do not sit here to pull the language of Parliament and of Ministers to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which lawyers are too often prone. We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”
Subsequently, the House of Lords had the opportunity of commenting on Denning L.J’s remarks when affirming the decision of the majority in the same case and Lord Simonds did not mince his words when he stated (as reported in [1952] A.C. 189 at p. 191) as follows:
“It is sufficient to say that the general proposition that it is the duty of the court to find out the intention of Parliament— and not only of Parliament but of Ministers—also cannot by any means be supported. The duty of the court is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited; see, for instance, Assam Railways & Trading Co., Ltd. v. Inland Revenue Commissioners, and particularly, the observations of Lord Wright ([1935] A.C. 445 at p. 458).
The second part of the passage that I have cited from the judgment of the learned Lord Justice is no doubt the logical sequence of the first. The court, having discovered the intention of Parliament and of Ministers too, must proceed to fill in the gaps. What the legislature has not written, the court must write. This proposition . .. appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation.”
Lord Simonds statement is now well-established in England and Lord Denning in London Transport Executive v. Betts (Valuation Officer) [1959] A.C. 213 at p. 247, H.L. has since accepted the House of Lords decision in
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Magor & St. Mellow R. D. C. v. Newport Corporation (supra) as authoritatively laying down the fundamental principle applicable to all Acts of Parliament that the judges have no right to fill in gaps which they suppose to exist but must leave it to Parliament to do so. The same principle has been adopted in this country: see In re Okine [1960] G.L.R. 84, C.A, and In re Amponsah [1960] G.L.R. 140, C.A. Past Constitutions of this country always reserved the legislative function to Parliament. When the erstwhile National Liberation Council assumed power through a coup d’etat, it reserved to itself the power to make and unmake laws. The Proclamation, 1972, of the present ruling National Redemption Council also provides in section 3 (1) as follows.
“Until such time as a new Constitution is promulgated by the people of Ghana, the Council shall have power for such purposes as they may think fit to make and issue Decrees which shall have the force of law in Ghana.”
Nowhere in the Proclamation has any court of law been given power to enact laws through judgments of that court.
The second point I wish to dispose of is the plain simple proposition that a review is not an appeal. The power of review is peculiar to very few Commonwealth countries including Ghana. Before 1954, the power of review was conferred on any judge, magistrate or other judicial officer who may upon such grounds as he shall consider sufficient, review any judgment or decision given by him: see Order 42 of the First Schedule to the Courts Ordinance, Cap. 4 (1951 Rev.) (now repealed). As from 30 March 1954, Order 39 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), conferred a well-defined power of review on the High Court. This rule was taken from the Civil Procedure Rules of Uganda, 1928. And rule 2 of Order 39 made it quite clear that:
“An application for review of a Judgment or order of a Court or Judge shall be made only to the Judge who gave the judgment or made the order sought to be reviewed.”
The former West African Court of appeal, the first Ghana Court of Appeal established immediately after independence in 1957 and the Privy Council, which used to be the final court of appeal so far as this country was concerned, did not have any power of review. The Supreme Court established under the Ghana Constitution of 1960 did not have a power of review until 1962 when the Rules Committee passed the Court of Appeal Rules, 1962 (L.I. 218), and for the first time gave the final appellate court a power of review couched in rule 33 in the following terms:
“The Court shall not review any judgment once given and delivered by it save where it is satisfied that the circumstances of the case are exceptional and that in the interest of justice there should be a review.”
For a more detailed account of the origin of the power of review, one cannot do better than to refer to the judgment of Ollennu J.S.C. in Swaniker v. Adotei Twi II [1966] G.L.R. 151 at pp. 157—160, S.C. Recent
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decisions of this court, Aschkar v. Karam [1972] 1 G.L.R. 1, C.A.; Benneh v. The Republic [1974] 2 G.L.R. 47, C.A. (full bench) and A/S Norway Cement Export Ltd. v. Addison [1974] 2 G.L.R. 177, C.A. (full bench), have stressed and reiterated that a review is not an appeal.
With these two points in mind that: (1) the court’s duty is to interpret or construe laws enacted by the legislative body and not to legislate and (2) a review is not an appeal, I shall now consider the application before the court.
When the 1969 Constitution came into force on 22 August 1969, it created a new final appellate court, the Supreme Court, and the present Court of Appeal became subordinate to it. Article 105 (1) of the Constitution, 1969, provided as follows:
“105. ( 1) An appeal shall lie from a judgment, decree or order of the Court of Appeal to the Supreme Court,
(a) as of right, in any civil cause or matter where the amount or value of the subject matter of the dispute is not less than such an amount as may be determined by Parliament; or
(b) as of right, in any criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment, decree or order of the High Court of Justice in the exercise of its original jurisdiction; or
(c) with the leave of the Court of Appeal, in any other cause or matter, civil or criminal, where the Court of Appeal is satisfied that the case involves a substantial question of law or is of public importance.”
When the Courts Act, 1971 (Act 372), was enacted it provided in section 3 (1) as follows.
“3. (1) An appeal shall lie from a judgment, decree or order of the Court of Appeal to the Supreme Court—
(a) as of right, in any civil cause or matter where the amount or value of the subject matter of the dispute or the amount awarded or confirmed by the Court of Appeal is not less than N010,000;
(b) as of right, in any cause or matter relating to the issue or refusal of a writ or order of habeas corpus, certiorari, mandamus, prohibition or quo warranto;
(c) as of right, in any criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment, decree or order of the High Court of Justice in the exercise of its original jurisdiction;
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(d) with leave of the Court of Appeal in any other cause or matter civil or criminal where the Court of Appeal is satisfied that the case involves a substantial question of law or is of public importance.”
The facts briefly are as follows: The applicants brought an action against the respondent for false imprisonment. The trial magistrate found for the applicants and awarded them damages. The respondent then appealed to the High Court which upheld the judgment of the court below and dismissed the appeal. The respondent appealed further to the Court of Appeal which allowed his appeal and set aside the judgment of the High Court. The applicants by virtue of section 3 (1) (d) of the Courts Act, 1971 (quoted above), filed an application in the Court of Appeal on 13 July 1972, for leave to appeal to the Supreme Court. The application was not heard by the Court of Appeal and the Supreme Court was abolished by the Courts (Amendment) Decree, 1972 (N.R.C.D. 101), on 13 September 1972. N.R.C.D. 101, s. 3 (1) and (2) provided as follows:
“3. (1) For the purposes of this section the Court of Appeal shall be duly constituted for the despatch of its business by five Justices thereof (in this section referred to as a full bench).
(2) A full bench of the Court of Appeal shall have jurisdiction—
(a) to review and determine a decision of the Court of the Appeal or any Justice or Division thereof upon a question of law, where such Justice or Division gives leave for such review and determination;
(b) to review and determine any other decision of the Court of Appeal or any Justice or Division thereof, where it appears to a full bench of such Court that there has been a miscarriage of justice;
(c) to hear and determine any matter in respect of which the [Supreme Court] has jurisdiction under section 22 (1) of the Chieftaincy Act, 1971 (Act 370) … ;
(d) to hear and determine any appeal which had been duly filed with the Supreme Court before the commencement of this Decree.”
It is obvious that (apart from chieftaincy matters) a full bench of the Court of Appeal has two separate jurisdictions. One is the power to review decisions of the ordinary bench with prior leave of that bench upon a question of law and in cases where miscarriage of justice is alleged, without leave of the ordinary bench. The other jurisdiction conferred on a full bench is to hear appeals duly filed with the former Supreme Court before 13 September 1972. It must be stressed that a full bench of the Court of Appeal for the purposes of hearing appeals duly filed with the former Supreme Court is an ad hoc final appellate court set up by N.R.C.D. 101 to dispose of the few appeals pending before the former Supreme Court. As soon as all these appeals have been disposed of, this special appellate jurisdiction will cease and a full bench of the Court of Appeal will be left
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only with jurisdiction to review its own decisions and to hear chieftaincy matters.
The real question to be answered in this application is: whether this court has jurisdiction to entertain this application for leave to appeal to a Supreme Court that is no longer in existence. In any case the provisions of section 3 (2) of N.R.C.D. 101 do not cover the application before this court. The applicants did not have an appeal duly filed with the former Supreme Court and a full bench of this court cannot hear a non-existent appeal under section 3 (2) (d) of N.R.C.D. 101. An appeal is duly filed, in my opinion, when notice of appeal has been filed in the appropriate court registry. When an aggrieved person applies for leave to appeal, he has no appeal duly filed. On the other hand, if he is granted leave and he does not pursue the leave so granted by filing his notice of appeal, there is still no appeal duly filed. The language of paragraph 3 (2) (d) is so clear and unambiguous that no aids to statutory interpretation or construction are called for.
In civil motion No. 36 of 1972 filed on 11 August 1972, entitled Bedaabour v. Duro the ruling of this court, delivered on 18 March 1974, unreported, on a similar application for leave to appeal to the former Supreme Court, was as follows:
“There is now no court to which we can grant the applicant leave to appeal. We therefore cannot stultify ourselves by granting this motion even if we had been satisfied of its merit which we are not. The application is dismissed.”
Furthermore in Asibey III v. Ayisi [1974] 1 G.L.R. 315, this court held that at the commencement of N.R.C.D. 101, there was no appeal in that case pending before the Supreme Court, and therefore the full bench of the Court of Appeal was not clothed with jurisdiction to entertain any such appeal coming before it by leave. This court pointed out at p. 317 that: “The Decree did not provide for cases falling under article 105 clause (1) (c) of the Constitution or section 3 (1) (d) of the Courts Act, 1971 (Act 372), and unprovided for they must remain. The court cannot take upon itself to supply omissions in an enactment .
. . “ It seems to me that these two rulings of this court are binding and must be followed in dismissing the present application.
Nevertheless, learned counsel for the applicants has argued that the decision of this court in Asibey III v. Ayisi was delivered per incuriam because the court did not consider the decision of this court in C.F.A.O. v. Zacca [1972] 1 G.L.R. 366. I must confess that I am at a loss to understand how Asibey III v. Ayisi could have been delivered per incuriam when the words of N.R.C.D. 101 are so clear and no judicial precedents are necessary to interpret or construe them. It is not my wish to express any opinion as to whether or not C.F.A.O. v. Zacca (supra) was correctly or wrongly decided by the majority judgment. It was a case in which the then Court of Appeal as the final appellate court had disposed of an appeal on 15 August 1969. One week later, i.e. on 22 August 1969, by virtue of the Constitution, 1969, a new Court of Appeal came into existence and the
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unsuccessful party applied to this court for a review of the judgment delivered on 15 August 1969. On 20 June 1970, the court refused the application for review but a year later, that is on 21 August 1971, the applicants applied for an extension of time within which to appeal to the Supreme Court. The court held that section 13 (2) of the Transitional Provisions contained in Schedule I to the Constitution, 1969, had equated a matter for review with an appeal pending. The said section reads:
“Where at the commencement of this Constitution there is any matter for review before a full bench of the Court of Appeal in being immediately before any such commencement, that matter for review shall be deemed to be an appeal pending before the Supreme Court as established under the provisions of this Constitution.”
The mere fact that this provision is contained in the Transitional Provision is a clear indication that the Constitution, 1969, did not purport to abolish the well-established clear distinction between a review and an appeal.
The Supreme Court, as a higher appellate court, had been established and the Transitional Provisions, deliberately transformed pending applications for review into appeals before the new Supreme Court. This was an ad hoc arrangement and no more. It was a temporary measure to enable pending applications for review before the Court of Appeal to be disposed of. I cannot therefore see any justification for the submission or the proposition that there is no longer any difference between a review and an appeal. In any case C.F.A.O. v. Zacca appears to be in conflict with the decision of the Court of Appeal sitting as the Supreme Court in Awoonor-Williams v. Gbedemah, 8 December 1969, unreported; digested in (1970) C.C. 18 to the effect that:
“Before the Constitution, 1969 came into force, the Court of final resort in Ghana was the Court of Appeal. Judgments delivered by that Court before 22 August 1969 were final for all purposes.”
This statement was not obiter. It was one of the rationes decidendi in the judgment of the majority, that is, like all judgments delivered before the Constitution came into force, all reports of commissions of inquiry published before the Constitution came into force were final and not appealable or subject to any review.
I find myself unable to accept the submission by learned counsel for the applicants that in view of the decision in C.F.A.O. v. Zacca, the application for leave to appeal should be construed as an application for leave to apply for review. The Transitional Provisions in the 1969 Constitution expressly converted pending reviews into appeals pending before the Supreme Court but this transformation for a specific purpose, that is, the disposal of pending reviews, did not in any way alter the fundamental difference between a review and an appeal. It has been suggested that a review and an appeal may be likened unto different roses which all smell the same. My own experience is that some roses do not smell at all and I do not think floricultural analogies should be invoked to blur the clear distinction between a review and an appeal. In any case, N.R.C.D.
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101 did not convert an application for leave to appeal into an application for leave to apply for review.
It has been argued that injustice and hardship will be caused. I agree but when the legislature through an enactment. has clearly conferred jurisdiction (with express limitation) on a court of law, I do not think it is open to that court to enhance and expand its jurisdiction in order to avoid injustice and hardship. When the first Republican Constitution came into force in 1960, all appeals pending before the Privy Council abated; No doubt, the appellants in these cases were tremendously aggrieved. It was the wish and intention of the legislature that these appeals should abate. In the present case, N.R.C.D. 101 is completely silent on applications for leave to appeal to the former Supreme Court. Is it open to us for reasons for injustice and hardship advocated by an applicant, that the court should drive a coach and horses into N.R.C.D. 101 and confer upon itself jurisdiction to hear the application? With all due deference to my learned brothers, I am inclined to think that the course they have chosen in granting the application smacks of judicial subversion of the Proclamation of 1972 and I must categorically dissociate myself from this “voyage of discovery.” It seems to me that when certain matters have not been taken care of in an enactment, the defect or omission should be brought to the notice of the body with the appropriate legislative power.
Before I conclude, I wish to observe that in granting the application, my learned brothers have amended the application to read “application for leave to apply for review.” As the application was filed on 31 July 1972, the question I want answered is whether on that date, this court had power to hear applications for leave to apply for review since N.R.C.D. 101 did not come into force until 13 September 1972.
Finally, I wish to repeat my view that Asibey III v. Ayisi was correctly decided and could not have been decided per incuriam. The decision is binding on this court and must be followed.
I would therefore dismiss the application.
DECISION
Application for “leave to appeal to Supreme Court” amended by court read “leave to apply for review by full bench of Court of Appeal.”
Application granted as amended.
S. Y. B. -B
