COURT OF APPEAL, ACCRA
Date: 6 MAY 1974
AZU CRABBE CJ
CASES REFERRED TO
(1) Asibey III v. Ayisi [1973] 1 G.L.R. 102, C.A.
(2) Magor and St. Mellons R.D.C. v. Newport Corporation [1952] A.C. 189; [1951] 2 T.L.R. 935; 115 J.P. 613; [1951] 2 All E.R. 839, H.L.
(3) Fisher v. Bell [1961] 1 Q.B. 394; [1960] 3 W.L.R. 919; [1960] 3 All E.R. 731; 125 J.P. 101; 104 S.J. 981, D C.
NATURE OF PROCEEDINGS
RULING on an application for leave to appeal against a decision of the Court of Appeal delivered prior to the abolition of the Supreme Court, notice of the application having been filed after the abolition of the Supreme Court.
COUNSEL
W. N. Adumua-Bossman for the applicants.
No appearance by or for the respondent.
JUDGMENT OF AZU CRABBE CJ
Azu Crabbe C.J. delivered the ruling of the court. On 28 July 1973, counsel for the applicant filed at the Registry of the Court of Appeal a notice of motion pursuant to the provisions of article 105 clause (1) (c) of the Constitution, 1969. These provisions read as follows:
[p.317] of [1974] 1 GLR 315
“An appeal shall lie from a judgment, decree or order of the Court of Appeal to the Supreme Court, . . .
(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.”
See also subsection (1) (d) of section 3 of the Courts Act, 1971 (Act 372).
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.
On 13 September 1972, the Supreme Court was abolished by virtue of section 1 of the Courts (Amendment) Decree, 1972 (N.R.C.D. 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 hearing 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 ceases 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”: Magar 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.
DECISION
Application refused. K.T.
