Division: IN THE SUPREME COURT
Date: 22 MAY 1964
Before: OLLENNU, ACOLATSE AND APALOO JJ.S.C.
JUDGMENT OF OLLENNU J.S.C.
Ollennu J.S.C. delivered the judgment of the court. This is an appeal from a revision order made by Sarkodee-Adoo C.J., on 27 February 1964, under section 60 of the Courts Act, 1960.1 The appellant was charged before the District Court, Kumasi, on 19 October 1963, with assault contrary to section 84 of the Criminal Code, 1960,2 and pleaded guilty to the said charge. He was accordingly convicted, and thereupon sentenced to a fine of £G4 or one month’s imprisonment with hard labour. He paid the fine. The case was on a list of criminal cases which the district magistrate forwarded on the returns to the judge of the High Court, Kumasi, at the end of October 1963, in compliance with the provisions of section 59 of the Courts Act, 1960; the said returns were dealt with by Akiwumi J., who having decided to take no action on it, directed the list to be filed in compliance with the provisions of section 60 (3) of the said Courts Act, 1960. Upon representations made to him by the Director of Public Prosecutions, nearly three months after the list had been filed, the learned Chief Justice made the order appealed from, increasing the sentence passed upon the appellant by adding thereto, a term of twelve months’ imprisonment with hard labour. The order was served upon the appellant on 3 March 1964, and he on the same day filed the petition for appeal.
On the first day of hearing, 1 May 1964, the Director of Public Prosecutions appeared for the respondent together with the principal state attorney and objected to the jurisdiction of the court on the ground that there is no right of appeal to the court from an order made under section 60 of the Courts Act, 1960. Arguments on that preliminary objection took the whole morning; the court then adjourned to 8 May 1964, for the ruling and for the hearing of the appeal on its merits in case it overruled the objection. On the adjourned date only the principal state attorney appeared for the respondent, the Director of Public Prosecutions was absent. The court ruled on the preliminary objection holding that there was a right of appeal and that it was properly seised of the appeal, and ordered the hearing of the appeal to proceed on the merits. At that stage the principal state attorney announced that he could not resist the appeal. The court, however, decided to hear full argument from counsel for the appellant, after which it requested the principal state attorney to state the reasons for his inability to resist the appeal.
With the leave of the court, learned counsel for the appellant argued seven additional grounds of appeal having abandoned the three grounds originally filed.
The first ground counsel argued is ground three, the precis of which is: that upon a proper interpretation of section 60 (3) of the Courts Act, 1960, it is only the judge who ordered the list of cases on the returns to be filed who is vested with jurisdiction to take further action on the said list under subsection (1) of the said section 60. Counsel drew the court’s attention to sections 18 and 19 of the Courts (Amendment) Act, 19623 which respectively amended sections 59 and 60 of the Courts Act, 1960. Among the amendments made by section 18 of Act 130 to section 59 of the Courts Act is the one contained in section 18 (1) which substituted the words: “the Judge of the High Court for the time being exercising jurisdiction over the district of such Magistrate . . .” for the words: “the circuit judge of the circuit in which the court of such Magistrate is situated…”
The section as amended therefore reads:
“At the end of every month, every District Magistrate shall forward to the Judge of the High Court for time being exercising jurisdiction over the district of such Magistrate a complete list of all criminal cases decided by or brought before the Magistrate during that month, setting out the name of the defendant, the offence with which he was charged, and, if convicted, the date of conviction, and the sentence or order in full.”
The relevant amendment made by section 19 of Act 130, to section 60 of the Courts Act, 1960, was to substitute the word “Judge” for the word “Court” wherever the word “Court” occurs in section 60, subsection, (1) (b), (2) (3), (4), and (5). Subsection (3) of section 60 of the Courts Act, 1960, as amended therefore reads:
“When action upon the list as prescribed in subsection (1) is complete, or if the Judge decides to take no such action, the Judge shall direct that the list be filed; but the direction shall not have the effect of preventing the Judge from subsequently taking any action prescribed in that subsection if it [sic] thinks fit.”
Counsel submitted that by the amendment to section 60 (3) of the Courts Act, 1960, the legislature unequivocally revealed a clear intention that it is only the judge who gives directions under the said subsection for a list to be filed, and no other judge of the High Court, who may subsequently take action on the same list. He submitted therefore that it is Akiwumi J. who directed the list to be filed, and he alone, who is vested with jurisdiction to take further action on the list he had directed to be filed.
This submission of counsel for the appellant is unanswerable. When an enactment confers jurisdiction to be exercised by “the Judge” in contradistinction to “the Court,” the exercise of that jurisdiction is personal to “the Judge” who deals with it, and that is so, even though, as shown in the reasons given on 8 May 1964, for the ruling of 1 May 1964,
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the judge, in exercising that jurisdiction, constitutes a High Court; no other judge of the High Court can exercise that jurisdiction. The amendment to section 60 (3) means that the jurisdiction conferred by that section to take further action on a list which had been filed, should be exercised by the judge of the High court who previously handled the list, and not by the High Court however constituted.
Apart altogether from the wording of the section, the act of taking further action on a list that has been filed without action is, in law, a review. The law as to review is, that subject to any statutory provision to the contrary, a decision once given, cannot be reviewed except by the judge who made it or on appeal. Therefore the Chief Justice exercising jurisdiction as a High Court judge will not be competent to review
the decision made by Akiwumi J. The order of the Chief Justice is therefore wrong for that reason also.
On the same ground (3), counsel submitted that upon a proper interpretation of sections 59 and 60 of the Courts Act, 1960, as amended, the jurisdiction to revise a decision of a district magistrate is vested in “the Judge of the High Court for the time being exercising jurisdiction over the district of such Magistrate.” He referred to section 64 of the Courts Act, 1960, upon which the learned Chief Justice purported to exercise the jurisdiction under section 60 of the Act as a High Court judge. The relevant portion of that section reads: “The Chief Justice may also exercise the jurisdiction and functions conferred by this Part on the High or Circuit Court. . . .” Counsel submitted that the learned Chief Justice was not “the Judge of the High Court for the time being exercising jurisdiction over the Kumasi Magisterial District,” that Akiwumi J. was such judge at all material times, and that the powers conferred upon the Chief Justice in section 64 are those of “the High Court” and not those of “the Judge of the High Court for the time being exercising jurisdiction over any particular Magisterial District.”
The submission of learned counsel on this point is also sound and unchallengeable. Section 64 confers on the Chief Justice power to “exercise the jurisdiction and functions conferred by this Part on the High or Circuit Court…” The part mentioned in the section is Part II, the part which deals with district and juvenile courts. That part covers sections 47 to 65 of the Act. Examination of that part discloses that some of the sections confer jurisdiction upon “the High Court” while other confer jurisdiction on “the Judge of the High Court for time being exercising jurisdiction over the district. . . “ For example, section 55 confers jurisdiction to hear and decide any question of law raised in a case stated by a district magistrate on “the High Court.” It says:
“In addition to the right of appeal conferred by this Act a District Court may reserve for consideration by the High Court on a case to be stated by the District Court, any question of law which may arise on the trial of any civil suit or matter, and may give any judgment or decision subject to the opinion of the High Court and the High Court shall have, power to hear and determine any such question.”
[p.358] of [1964] GLR 354
Similarly in section 56 (2) jurisdiction to give directions as to where a case pending before a district court may be tried when objection is taken to the jurisdiction of the district court is vested in the High Court; the operative part of the section says: “the High or Circuit Court … shall make an order directing where the matter shall be heard and determined, and that order shall not be subject to appeal.” So too in section 61 of the Act the district magistrate is made subject to “the orders and directions of the High Court . . .”
On the other hand, the jurisdiction given by sections 59 and 60 to revise decisions of a district magistrate is conferred on “the Judge of the High Court” not on “the High Court.”
In the words of section 64 of the Courts Act, 1960, the powers given to the Chief Justice enable him to “exercise the Jurisdiction and functions conferred by . . . “ Part II on the High Court, meaning the High Court by whomever constituted, and not the jurisdiction and functions conferred on “the Judge of the High Court for time being exercising jurisdiction over the District” as in sections 59 and 60. Therefore in this respect also the order appealed against is ultra vires.
Arguing grounds (1), (2), (4), (3), and (7), counsel for the appellant submitted that although the discretion given to the judge by section 60 appears to be unlimited, yet like an other judicial discretion given to a judge or a court, the exercise of that discretion must be subject to certain overriding cannons of justice, one of which is that if a court hears one side in a case it should also hear the other side. He submitted that this fundamental rule of justice has been violated in the making of the order.
Finally, counsel submitted, in respect of ground (5) of the additional grounds of appeal, that even if the order was made with jurisdiction the additional sentence thereby imposed upon the appellant is harsh, there being nothing to show that the sentence passed by the district magistrate is inadequate.
Stating the grounds upon which he felt himself unable to resist the appeal, learned principal state attorney said that his department had taken the view, as was earlier submitted by the Director of Public Prosecutions, that the powers and functions given by section 60 of the Courts Act, 1960, to a judge of the High Court are ministerial and not judicial and therefore may be exercised by the judge in any manner, and further that an order made thereunder is not appealable. That they had realised, in view of the ruling of the court, that the said powers are judicial, and concede that as such they should be judicially exercised. That being the case, he felt that since the learned Chief Justice heard representations made by the prosecution against the appellant, justice required that the appellant too should have been given opportunity of a hearing.
As to the additional sentence of twelve months’ imprisonment with hard labour passed by the learned Chief Justice, the principal state attorney conceded that it made the total sentence exceed what a revising judge was empowered to do under section 60 of the Courts Act, namely, “vary the nature of a sentence or impose such other sentence warranted in law by
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the verdict which the District Court could have imposed ….” He pointed out that under section 53 (2) of the Courts Act, 1960, the maximum sentence the district court can impose is imprisonment for twelve months or a fine not exceeding £G100, whereas the total of the two sentences in this case is: a fine of £G4 or one month’s imprisonment with hard labour plus twelve months’ imprisonment with hard labour.
The powers of revision given to the judge of the High Court by section 60 of the Courts Act are similar in many respects to powers given by section 439 of the Indian Code of Criminal Procedure to the High Court of India. The said section 439 of the Indian Code reads:
“(1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence . . .”
Commenting on the unlimited discretion given to the High Court of India by that section, the learned author of Sohoni’s Code of Criminal Procedure (13th ed.) at p. 955 under the main heading, “When High Court will Exercise its Powers of Revision,” quoted English and Indian decisions which establish that the powers of revision are discretionary and ought not be fettered; and then proceeded:
“There are, however, certain rules of procedure to which any Court exercising its discretion would pay regard, and pre-eminent among them, possibly a compendious statement of all, would be the rule that the Court will be astute to see that there should be no abuse of administration of Criminal justice.”
We adopt those words. Every discretion given to a court or judge must be judicially exercised, that is, exercised in such a manner, to use the oft repeated expression, so that justice must not only be done thereby, but that it must manifestly be seen to have been done. This is particularly so where the exercise of the discretion may produce a penal effect upon a party against whom it is exercised.
It is a well settled rule of procedure of the common law as well as of our customary law, that no person shall be condemned without being given the opportunity to answer any complaints made against him. The customary law principle in this regard is embodied in the Akan adage, Tieni mienu, meaning hear both sides; the Ga affirmation Ke anuu mo gbeianshishi le agbee le, meaning, never condemn any one to death whose explanation you have not heard; and the Ewe adage, Ela manotsia awede menuneo, meaning literally, an animal is never killed without being offered water to drink. The principle laid down in each of those sayings in short is, that it is unjust to decide a matter against a person without first hearing what that person has to say in explanation to allegations made against him. Now section 60 (5) provides that:
“Proceedings under this section may be taken by the Judge of its own motion or on the petition of any person interested praying for the exercise
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of the revisional powers of the Judge and the powers may be exercised notwithstanding that the monthly list has not been transmitted or received by the Judge.”
Section 60 (1) empowers the judge to exercise the jurisdiction “either without hearing argument or after hearing argument . . .” The petition under section 60 (5) may contain facts as well as arguments which do not appear on the record of proceedings from the district court, or which might not have been raised before the district magistrate, and which the defendant had not had the opportunity to explain or answer; this is most likely to be so where, as in the present case, a defendant pleaded guilty to the charge and evidence was not taken. Justice requires that in any case where the judge should exercise the discretion given to him to hear argument, particularly argument advanced by the prosecution, he should also hear argument from the defendant who would be affected by any order he may make in the exercise of his wide powers of revision under the section; the exercise of his said discretion will not be judicial otherwise.
Now the affidavit of the respondent disclosed that in making the order appealed from, his lordship the Chief Justice acted upon certain representations made to him by the Director of Public Prosecutions; yet before the penal order was made against him, the appellant was not given the opportunity of knowing what those representations were, and was not heard in reply to them. This violates the fundamental principle of justice which is jealously guarded both by the common law and the customary law. In those circumstances justice cannot appear to have been done. In other words the discretion was not exercised judicially. The order therefore cannot stand.
We must also say a word about the sentence, passed by the learned Chief Justice, on the appellant. The express powers given to the revising judge in section 60 (1) (a) of the Courts Act, 1960, are (i) to “vary the nature of a sentence” or (ii) to “impose such other sentence . . . (whether more or less severe) in substitution for the sentence imposed . . .” by the district magistrate. We interpret this to mean, in the first case, that the judge may reduce or enhance a sentence passed by the district magistrate, for example, he may reduce a sentence of six months’ imprisonment with hard labour to three months’ imprisonment with hard labour, increase a sentence of six months’ imprisonment with hard labour to nine months’ imprisonment with hard labour, or vary a sentence of six months’ imprisonment with hard labour by making it six months’ imprisonment without hard labour; and in the second case. he may quash a sentence, for example, quash a sentence of £G4 fine or one month’s imprisonment with hard labour and substitute a sentence of twelve months’ imprisonment with hard labour for the same. We do not think that the subsection gives him power to pass a new sentence in addition to the sentence passed by the district magistrate.
Again the powers given to the High Court judge by section 60 (1) (a) when varying a sentence or substituting a new sentence for the one passed by the district magistrate, are to impose a sentence which is within the
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competency of the district court. Now section 53 (2) lays down the imperative rule that where there is no previous conviction, “a District Court shall not impose imprisonment for a term exceeding twelve months or a fine exceeding £G100.” The sentence of £G4 or one month’s imprisonment with hard labour plus twelve months’ imprisonment with hard labour is therefore not within the competency of the district court. Consequently, it is not within the competency of a judge of the High Court exercising jurisdiction under section 60 of the Courts Act, 1960. The additional sentence passed is therefore erroneous and cannot stand.
It is for the reasons given above that we quashed the revision order and the additional sentence thereby imposed upon the appellant.
DECISION
Appeal allowed.
T.G.K.
