COURT OF APPEAL
DATE: 18 DECEMBER 1967
BEFORE: AZU CRABBE, APALOO AND LASSEY JJ.A.
CASES REFERRED TO
(1) Commissioner of Police v. Akyeampong [1963] 1 G.L.R. 402, S.C.
(2) R. v. London Quarter Sessions; Ex parte Bowes [1951] 1 K.B. 383; [1950] 2 All E.R. 1043; 115 J.P. 9; 66 T.L.R. (Pt. 2) 804; 94 S.J. 707; 49 L.G.R. 616, D.C.
(3) Amponsah v. Minister of Defence [1960] G.L.R. 140, C.A.
(4) Okine, In re [1960] G.L.R. 84, C.A.
(5) Nokes v. Doncaster Amalgamated Collieries, Ltd. [1940] A.C. 1014; [1940] 3 All E.R. 549; 109L.J.K.B. 865; 163 L.T. 343; 56 T.L.R. 988; 85 S.J. 45, H.L.
NATURE OF PROCEEDINGS
APPEAL from conviction for perjury by the Jiagge Commission in exercise of its powers under the National Liberation Council (Investigation and Forfeiture of Assets) Decree, 1966 (N.L.C.D. 72), as amended by the National Liberation Council (Investigation and Forfeiture of Assets) (Amendment) Decree, 1967 (N.L.C.D 129). The facts are sufficiently stated in the judgment of the court.
COUNSEL
Jonathan Arthur for the appellant.
S.M. Boison, Chief State Attorney (with him V.A. Kisseih, Senior State Attorney), for the respondent.
JUDGMENT OF AZU CRABBE J.A.
Azu Crabbe J.A. delivered the judgment of the court. On 7 November 1967, we upheld an objection that this court had no jurisdiction to entertain this appeal, and we accordingly dismissed it and intimated that we would give our reason later. We now proceed to state those reasons.
This is an appeal from an order of the Chairman of the Commission on Investigation of Assets whereby the appellant was on 8 February 1967, sentenced to six months’ imprisonment with hard labour for the offence of perjury.
It is unnecessary for us to state the sequence of events leading to the decision, for upon the appeal being called the learned Chief State Attorney, Mr. S. M. Boison, raised an objection in limine that no appeal lay to this court against the decision of a commission appointed under the National Liberation Council (Investigation and Forfeiture of Assets) Decree, 1966 (N.L.C.D. 72). The commission before which the appellant was found guilty of perjury and sentenced was appointed by virtue of paragraph 2 (1) of N.L.C.D. 72, and paragraph 2 (2) of the Decree as amended by the National
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Liberation Council (Investigation and Forfeiture of Assets) (Amendment) (No. 2) Decree, 1967 (N.L.C.D. 174), reads:
“A Commission appointed by virtue of this paragraph shall consist of not less than two persons and shall have a Chairman who shall be a Judge of the High Court or of the Supreme Court or a person who has previously held any such office.”
By paragraph 4 (1) of the same Decree a person who felt aggrieved by the finding of the commission in respect of his assests was given the right to appeal to the Supreme Court, and the Supreme Court had the power “to confirm, vary or set aside the finding of the Commission or remit the finding to the Commission for reconsideration by the Commission.” In paragraph 4 (3) the Supreme Court was enjoined to take into consideration in arriving at its decision “any enactment for the time being in force regulating the conduct of appeals from the High Court to the Supreme Court in civil cases” and to apply its provisions to appeals brought before it under N.L.C.D. 72, with such modifications as were necessary.
Here we see that when the framers of the N.L.C.D. Decree 72 intended to confer a right of appeal against the decision of the Commission they stated in expressly, and in a clear and unambiguous language. It is important to note well the subsequent fate of paragraph 4 (1), for we think that its repeal in January 1967 throws considerable light on the question that we have been asked to determine in this appeal. On 24 January 1967, N.L.C.D. 72 as amended was further amended by the National Liberation Council(Investigation and Forfeiture of Assets) (Amendment) Decree, 1967 (N.L.C.D. 129), as follows:
“(i) by the insertion immediately before paragraph 2 (10) thereof of the following new sub-paragraph: — ‘(9) (a) Any Commission appointed by virtue of this paragraph shall have all the powers of the High Court under any enactment or otherwise in relation to perjury committed by any witness coming before the Commission or to the failure of any witness to appear before the Commission or to any contempt committed by any person in respect of the Commission as if the Commission were the High Court and, without prejudice to the generality of the foregoing, the following enactments shall with, the necessary modifications, apply in relation to any such Commission as if the Commission were the High Court: — Section 152 of the Criminal Procedure Code, 1960 (Act 30).
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Paragraphs 67, 70 and 71 of the Courts Decree, 1966 (N.L.C.D. 84); and Rules 21-27 of Order 59 of the Supreme Court (Civil Procedure) Rules, 1954 (L.N. 140A)’; and
(ii) by the repeal of paragraph 4 thereof.”
One significant result of this amending Decree, i.e. N.L.C.D. 129 was the deprival of the person against whom an adverse finding has been made by a commission of his former right of appeal to the Court of Appeal. Counsel for the appellant was unable to show us any paragraph in any subsequent Decree in which the repealed paragraph 4 (1) has been reproduced or referred to. The amending Decree also gave the commission certain powers exercisable by the High Court; these include all the powers of the High Court to commit for perjury any witness giving evidence before it. It is stated expressly in the amendment that section 152 of the Criminal Procedure Code, 1960 (Act 30), shall apply to the exercise of these powers, and the relevant provisions are contained in subsection (1) which reads: “The Court, if it appears to it that a person has been guilty of perjury in any proceeding before it, may—
(a) commit him for trial upon indictment for perjury and bind any person by recognizance to give evidence at the trial; or
(b) commit him to prison for any term not exceeding six months with or without hard labour, or fine him any sum not exceeding fifty pounds, or impose both such penalties upon him, in each such case as for a contempt of Court.” The Commission in this case no doubt exercised the summary alternative power in subsection (1) (b). The real question raised by the preliminary objection turns, in our view, on the construction of paragraph 7 (1) of the Courts Decree, 1966 (N.L.C.D. 84), which reads thus: “Subject to the provisions of sub-paragraph (2), the jurisdiction of the Court of Appeal whether comprising a full bench or an ordinary bench shall consist of —
(a) the hearing of appeals from any judgment of the High or a Circuit Court in any civil cause;
(b) the hearing of appeals from any decision of the High Court, or a Circuit Court in a criminal matter other than upon a summary trial, exercised in accordance with the provisions of this Decree or anynother enactment;
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(c) any other jurisdiction conferred by this Decree or any other enactment.”
Arguing in support of the objection, it was contended by Mr. Boison that there is no jurisdiction toentertain an appeal from the decision of the Assets Commission. The jurisdiction of the Court of Appeal, he said, appears in paragraph 7 of N.L.C.D. 84, and in the Courts (Amendment) Decree, 1967 (N.L.C.D. 123), but when we pointed out to Mr. Boison that N.L.C.D. 123 did not apply in this appeal he readily conceded the point. He then referred us to paragraphs 67, 70 and 71 of N.L.C.D. 84 and submitted that these paragraphs deal with the power of summoning and examining witnesses; they have no bearing on jurisdiction. Neither have rules 21-27 of Order 59 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). He further submitted that sections 6 and 7 of the Commissions of Enquiry Act, 1964 (Act 250), make reference only to taking of evidence and offences that may be committed in relation to the taking of such evidence, and that in these sections powers exercisable by the High Court are given to the commission. He contended that in sections 6 and 7 it becomes clear that the commission is not a court of law. In his final submission Mr. Boison said, and we quote his own words, “that the conferment of certain powers under N.L.C.D. 129 are limited to the specific provisions or enactments therein stated. If the law wanted to confer a right of appeal or vest the Court of Appeal with jurisdiction, it would have expressly conferred that right to an aggrieved party affected by decision of the commission. “ In support of this submission he cited the case of Commissioner of Police v. Akyeampong [1963] 1 G.L.R. 402, S.C. In reply, Mr Arthur, counsel for the appellant, also submitted that by section 211 of the Criminal Code, 1960 (Act 29), which defines the offence of perjury, the Assets Commission has been given some of the powers of the Criminal Division of the High Court. It follows a fortiori, in his submission, that a person who has been convicted under section 211 of Act 29 can resort to the remedies conferred by Act 30 which deals with procedural matters in relation to appeals or any other enactment that deals with appeals. Mr. Arthur further submitted that paragraph 20 (1) and (2) of N.L.C.D. 84 inferentially gives the Court of Appeal jurisdiction to entertain appeals lodged under Act 30, for it cannot be supposed that the National Liberation Council could ask a commission to convict a person and then shut the door for redress. Mr. Arthur, however, conceded that N.L.C.D. 129 has not expressly conferred a right of appeal; but he maintained that perjury is a criminal offence and
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this is a matter in which the provisions of Act 30 can be invoked. In his submission if Act 29 and Act 30 are construed together then it will be clear that the appellant is properly before the court. With respect, we are unable to accede to the submissions of Mr. Arthur, because we do not think that the jurisdiction of this court can be inferred from the provisions of any enactment. Appellate jurisdiction is conferred by statute, and unless it is expressly conferred, a court cannot arrogate to itself that jurisdiction which is not vested in it; nor can it assume appellate jurisdiction by consent of the parties. This principle was stated tersely but forcefully by Lord Goddard C.J. in R. v. London Quarter Sessions; Ex parte Bowes [1951] 1 K.B. 383: D.C. when he said at p. 387: “It is, of course, a commonplace of the law that no appeal lies against the order of any court unless one is given by statute.” Korsah C.J. expressed the same view when delivering the judgment of the Court of Appeal in Amponsah v. Minister of Defence [1960] G.L.R. 140. He said at p. 146: “We are clearly of the opinion that an appellate court has no inherent jurisdiction to entertain an appeal from an order or decision given by a court below it. In all causes or matters an appeal lies only if given by statute.” See also In re Okine [1960] G.L.R. 84, C.A. Even where a right of appeal is conferred upon an aggrieved party, the appellate tribunal will only entertain an appeal from him if it has the necessary jurisdiction to adjudicate in the matter. Thus in Commissioner of Police v. Akyeampong (supra) the court said at p. 407: “Since a statute creating a right of appeal is merely procedural the right given by the statute can only be exercised in a court which is vested with jurisdiction. Therefore if the court to which a party may appeal is not vested with jurisdiction, the party to whom the right was given cannot exercise that right, and a court towhich he appeals will decline to exercise jurisdiction.”
We now turn to a consideration of the provisions of the enactments and Decree which affect the jurisdiction of this court and regulate appeals thereto. The jurisdiction of this court, as defined in paragraph 7 (1) of N.L.C.D. 84 consists in hearing appeals: (i) from any judgment of the High Court or a circuit court in any civil cause, and (ii) from any decision of the High Court, or a circuit court in a criminal offence tried upon an indictment. The order of the commission in this case is clearly not a judgment in a civil cause and therefore the jurisdiction conferred in (i) cannot be invoked. It seems therefore that since perjury is a criminal offence, a person
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who appeals to this court from a conviction for perjury must satisfy the court that it can assume jurisdiction under sub-head (ii) of its powers. The crucial question is: Is the order of the commission convicting the appellant of perjury a “decision of the High Court, or a Circuit Court in a criminal matter other than upon a summary trial,” or does it amount to such decision? If this question can be answered in the affirmative then this court can, and ought to, entertain this appeal.
The Commission on Investigation of Assets, popularly known as the Jiagge Commission, was appointed under the Commissions of Enquiry Act, 1964 (Act 250), and by virtue of section 5 (1) the commission determines its own rules of procedure, except that in the performance of its functions, it is permitted under N.L.C.D. 72, para. 2 (9) (a) as inserted by N.L.C.D. 129 to apply rules 21-27 of Order 59 of theNSupreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which relate to attachment for contempt. By section 6 of Act 250 there is conferred upon the commission “all such powers, rights and privileges as are vested in the High Court or a judge of the High Court at a trial” in respect of certain matters relating to taking of evidence. Section 7 (1) creates certain offences relating to the taking of evidence. Subsections (2) and (3) state as follows: “(2) Where any person commits an offence under subsection (1) of this section, the chairman of the Commission shall certify the offence of that person under his hand to the High Court, and the Court shall forthwith enquire into the alleged offence. (3) The court, may after hearing any witnesses who may be produced against or on behalf of the person charged with the offence, and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in the like manner as if he had been guilty of contempt of that court.”
We agree with Mr. Boison that in subsections (2) and (3) the legislature has made its intention clear that a commission appointed under Act 250 is not equal in status with the High Court. We do not think that because the commission exercises certain specified powers of the High Court its decisions are equivalent to a decision of the High Court. It is non sequitur. It is a cardinal principle in interpretation that the words of a statute must prima facie be given their ordinary meaning, and we cannot find any justification either in Act 250 or N.L.C.D. 72 or N.L.C.D. 129 for extending the meaning of the High Court in paragraph 7 (1) of N.L.C.D. 84 to embrace a commission appointed under Act 250. As Viscount Simon L.C.
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observed in Nokes v. Doncaster Amalgamated Collieries, Ltd. [1940] A.C. 1014 at p. 1022, H.L.: “Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words . . . “ The specific reference to section 152 of the Criminal Procedure Code, 1960 (Act 30), in N.L.C.D. 72, para. 2 (9) (a) as inserted by N.L.C.D. 129 merely indicates that the procedure the commission should follow in case of perjury shall be the same as in the High Court. This is merely one ofthe qualifications to section 5 of the Commissions of Enquiry Act, 1964 (Act 250), and it is different from saying that all the provisions of the Criminal Procedure Code should apply, once the commission convicts a person of perjury. We cannot attribute to the framers of the amending Decree, N.L.C.D. 129, an intention which cannot be spelt from the words of the Decree. We are satisfied that if it was the intention to confer a right of appeal on a person convicted by the commission for perjury the provisions of the section 337 of Act 30 which confers a right of appeal on a convicted person would have been inserted in N.L.C.D. 72 by N.L.C.D. 129. We have to interpret N.L.C.D. 129 as we find it, we cannot add to it anything unprovided for. As it is stated in Maxwell on Interpretation of Statutes (11th ed.), at p. 12: “A case not provided for in a statute is not to be dealt with merely because there seems no good reason why it should have been omitted, and the omission appears consequently to have been unintentional.” The repeal of paragraph 4 of N.L.C.D. 72, however, provides evidence which further satisfies us that the omission of any reference to section 337 in N.L.C.D. 129 was deliberate. But whether that was intended or was an oversight is not a matter with which we are concerned, for the plain fact is that we have not the power to amend the law. And if we may borrow the words of van Lare J.A. in In re Okine (supra) at p. 87: “We cannot, however, confer upon ourselves on sympathetic grounds the right to entertain an appeal when such right is not created by law.”
In our anxiety to ensure that no injustice is done in this case we have ourselves considered paragraph 12 of N.L.C.D. 84 which states: “Notwithstanding anything to the contrary in any other provision of this Decree, the Court of Appeal may entertain any appeal from any Court on any terms which it may think just.” But, since we do not think that a commission is a court of law, we are impelled to the conclusion that paragraph 12 is inapplicable in this appeal.[p.785] of [1967] GLR 776
In our view there is no enactment which directly or indirectly confers upon a person convicted for perjury before a commission of inquiry a right of appeal from the decision of the commission in exercise of its powers under N.L.C.D. 72 as amended by N.L.C.D. 129.
It was for the above reasons that we upheld the preliminary objection, and dismissed the appeal.
DECISION
Preliminary objection upheld.
Appeal dismissed.
S.Y.B.B.
