COURT OF APPEAL (FULL BENCH)
Date: 30 JULY 1973
AZU CRABBE CJ
CASES REFERRED TO
(1) Read v. Brown (1888) 22 Q.B.D. 128; 58 L.J.Q.B. 120; 60 L.T. 250; 37 W.R. 131; 5 T.L.R. 97, C.A.
(2) Williams v. Milotin (1957) 97 C.L.R. 465.
(3) Letang v. Cooper [1965] 1 Q.B. 232; [1965] 3 W.L.R. 573; [1964] 2 All E.R. 929; [1964] 2 Lloyds’ Rep. 339, C.A.
(4) C.F.A.O. v. Zacca [1972] 1 G.L.R. 366, C.A.
(5) Colonial Sugar Refining Co. v. Irving [1905] A C. 369; 74 L.J.P.C. 77; 92 L.T. 738
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION to the jurisdiction of the full bench of the Court of Appeal to hear and determine the plaintiffs’ original action which was pending before the Supreme Court immediately before its abolition by section 1 of the Courts (Amendment) Decree, 1972 (N.R.C.D. 101). The facts are sufficiently stated in the ruling of the court.
COUNSEL
Joe Reindorf for the plaintiffs
N.M.C. Dodoo, Chief State Attorney, for the defendant.
JUDGMENT OF AZU CRABBE CJ
Azu Crabbe C.J. delivered the ruling of the court. On 11 September 1971, the plaintiff company filed a writ in the Supreme Court, established under the suspended 1969 Constitution of the Republic, against the defendant, and claimed the following reliefs:
[p.90] of [1974] 1 GLR 88
“(1) a declaration by the court under article 1 (2) and 2 (1) of the Constitution, that sections 182A, 182B and 183 (1), (2), (5) and (6) of the Criminal Code, 1960 (Act 29) are inconsistent with and in contravention in particular of articles 3, 12, 20, 22, 23, 25 and 102 thereof.
(2) such consequential orders and directions, under article 2 (2) of the Constitution, as the court may consider appropriate for giving effect to or enabling effect to be given to the declaration above sought.”
The plaintiff company brought this suit in their capacity as a private liability company incorporated and registered under the laws of Ghana to carry on the business of publishing newspapers; they are owners and publishers of the newspaper called The Spokesman that is sold and circulated in Ghana.
In a statement of defence filed on 23 October 1971, on behalf of the defendant, it was averred that the plaintiff company were not entitled to any of the reliefs they claimed.
Under article 106 (1) of the 1969 Constitution, the Supreme Court was vested with exclusive original jurisdiction in the following cases:
“(a) in all matters relating to the enforcement or interpretation of any provision of this Constitution; and
(b) where any question arises whether an enactment was made in excess of the powers conferred upon
Parliament or any other authority or person by law or under this Constitution.”
Before this suit could be heard and determined, the civilian government was overthrown in a military coup d’etat on 13 January 1972, and the operation of the 1969 Constitution of the Republic of Ghana was suspended by virtue of section 2 (1) of the National Redemption Council (Establishment) Proclamation, 1972. But notwithstanding the suspension of the Constitution, the original jurisdiction of the Supreme Court was untouched, because the existing courts were permitted, by virtue of section 4 of the Proclamation, to function with the same powers and duties as before that date. The Supreme Court was eventually abolished on 13 September 1972, by section 1 of the Courts (Amendment) Decree, 1972 (N.R.C.D. 101), and its functions transferred to a full bench of the Court of Appeal, consisting of five justices of that court. The jurisdiction of the full bench is set out in section 3 (2) of the Courts (Amendment) Decree, 1972, as follows:
“(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;
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(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.”
It is plain that the jurisdiction conferred on the full bench is purely appellate in nature, and one can look in vain through the Decree for any provision which vests the full bench with original jurisdiction. On 5 July 1973, this case was listed before us for hearing and determination, but Mr. Reindorf, counsel for the plaintiff company, raised a preliminary objection to the jurisdiction of this court. He referred to section 3 of the Courts (Amendment) Decree, 1972, and submitted that unless there was some other enactment which conferred jurisdiction on this court to exercise original jurisdiction in this action, the court would have no jurisdiction to entertain the plaintiff company’s action, and that with the suspension of the Constitution, the plaintiff company’s cause of action had abated. Counsel for the defendant, Mr. N. M. C. Dodoo, Chief State Attorney, associated himself with Mr. Reindorf s submissions.
In the opinion of this court, there is no answer to Mr. Reindorf s submissions. Through the draftsman’s oversight, the Courts (Amendment) Decree, 1972, does not make any provision, either directly or indirectly, which vests the full bench of the Court of Appeal with original jurisdiction to hear and determine any action, suit or other original proceedings between a plaintiff and a defendant pending immediately before the Supreme Court on 13 September 1972, when that court was abolished. In Maxwell on Interpretation of Statutes (12th ed.), p. 33, it is stated, “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 in consequence to have been unintentional.”
We are, therefore, satisfied that the full bench of this court lacks the special jurisdiction to hear and determine the suit filed by the plaintiff company in the Supreme Court.
What then happens to the plaintiff company’s cause of action? A party has a cause of action when he is able to allege all the facts or combination of facts which are necessary to establish his right to sue. Lord Esher M.R. in Read v. Brown (1888) 22 Q.B.D. 128 at p. 131, C.A. defined a cause of action as “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.” Another interesting definition is that given by a judgment of the High Court of Australia in Williams v. Milotin (1957) 97 C.L.R. 465 at p. 474:
“When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce. The essential ingredients in an action of negligence for personal injuries include the special or particular damage – it is the gist of the action – and the want of due care.”
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The gist of the action in this case is the alleged violation of certain entrenched provisions relating to the fundamental human rights in chapter four of the 1969 Republican Constitution of Ghana. More recently, in Letang v. Cooper [1965] 1 Q.B. 232, C.A. Diplock L.J. (as he then was) defined cause of action at pp. 242-243 as “simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.” The plaintiff company’s factual situation in the present case has been set out in the statement of claim, and it is the existence of this factual situation which the plaintiff company claimed entitled them to the reliefs they sought.
The plaintiff company’s case was affected by the occurrence of two events: firstly, the suspension of the Constitution, and, secondly, the abolition of the Supreme Court. In C.F.A.O. v. Zacca [1972] 1 G.L.R. 366 at p. 378, C.A. I said:
“As a general rule, when there is an alteration in the law during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was commenced, unless there is a clear intention in the new statute that it is to apply to pending proceedings.”
In Colonial Sugar Refining Co. v. Irving [1905] A.C. 369, P.C. the Australian Commonwealth Judiciary Act, 1903, had abolished a right of appeal to the Privy Council from the Supreme Court of Queensland, but this was held not to apply retrospectively to a suit pending when the Act was passed and decided by the Supreme Court after that date. Lord Macnaghten said at p. 372, “To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure.”
A change in the existing law does not, as a rule, affect, accrued rights, unless there are plain words to the contrary in the enactment affecting the change. And section 8 of the Interpretation Act, 1960 (C.A. 4), which, by virtue of paragraph 12 (1) of the Constitution (Consequential and Transitional Provisions) Decree, 1969 (N.L.C.D. 406), can be invoked in the interpretation of the 1969 Constitution of the Republic of Ghana, reads as follows:
“8. (1) The repeal or revocation of an enactment shall not –
(a) revive anything not in force or existing at the time when the repeal or revocation takes effect; or
(b) affect the previous operation of the enactment or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed thereunder; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment,
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and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked.
(2) When an enactment expires, lapses or otherwise ceases to have effect this section shall apply as if the enactment had then been repealed or revoked.”
There can be no doubt that by the suspension of the Constitution, the operation of the provisions of the Constitution upon which the plaintiff company had based their claim ceased to have any effect, but their right to sue had already accrued, and, therefore, they could have prosecuted their action in the Supreme Court as if the Constitution had not been suspended. The rights of the parties in those circumstances could have been decided in the Supreme Court according to the law as it stood before the suspension. But, as it has been said earlier in this ruling, the Supreme Court was abolished, and, therefore there is no court in which the plaintiff company can ventilate their action.
In the result, we hold that this court has no jurisdiction in this case. The plaintiff company’s action is dismissed. There will be no order as to costs.
DECISION
Preliminary objection as to want of jurisdiction upheld.
S.Y.B.-B.
