ASARE AND OTHERS v. THE REPUBLIC [1968] GLR 37

DIVISION: COURT OF APPEAL (FULL BENCH)

DATE: 15 JANUARY 1968

BEFORE: OLLENNU, AZU CRABBE, APALOO, LASSEY JJ.A. AND EDUSEI J.

NATURE OF PROCEEDING

PRELIMINARY OBJECTIONS against the transfer of an appeal from the ordinary bench to the full bench.

COUNSEL

K. Narayan (with him H. Darkoh) for the first appellant.

P. A. Adjetey for the second appellant.

B. J. da Rocha for the third appellant.

J. N. K. Taylor, Director of Public Prosecutions (with him Kisseih, Senior State Attorney) for the respondent.

JUDGMENT OF OLLENNU J.A.

OLLENNU J.A. delivered the ruling of the court. The appellants who were convicted by the High Court, Accra, on 10 May 1965, appealed to the Court of Appeal against their convictions and sentences. The appeals were listed before the ordinary bench of the court and argued; judgment was reserved at the end of the hearing without a date being fixed for its delivery.

On 2 June 1967, the court re-assembled, and the following statement was read by the presiding judge, and the appeal was accordingly adjourned:

“While we were considering our judgment in this case, we discovered that important points of law fell for decision. As these points seem to be of grave public importance, we agreed, with the approval of the Chief Justice, that judgment should not be given on these points by the ordinary bench of three judges. Instead, the Chief Justice has agreed that the appeal be argued afresh before a full court of five judges. The date for the hearing de novo will be announced in due course.” It came again on 19 December 1967, before the full bench in accordance with the decision which the ordinary bench had taken, when the Director of Public Prosecutions raised objection to the jurisdiction of the full bench to entertain the appeal. He submitted, inter alia, that by the decision made by the ordinary bench that it [p.41] of [1968] GLR 37 would not deliver judgment in the case, the ordinary bench abdicated its duty, and that that decision is ultra vires. Counsel based his submission on paragraph 6 of the Courts Decree, 1966 (N.L.C.D. 84), which creates two benches of the court, i.e. (a) an ordinary bench, and (b) a full bench, and paragraphs 13 and 14 of the Decree which prescribed the powers of the court when exercising appellate jurisdiction in criminal cases. He emphasised the words from N.L.C.D. 84, paragraph 13 (1): “The Court of Appeal on any appeal under section 335 or section 337 of the Criminal Procedure Code, 1960 (Act 30), shall allow the appeal if it considers that the verdict ought to be set aside on the ground that it is unreasonable . . . and in any other case shall dismiss the appeal.”

He contended that by the use of the word shall in paragraph 13 (1) of N.L.C.D. 84, and which must be interpreted as mandatory by virtue of section 24 of the Interpretation Act, 1960 (C.A. 4), the court or a bench of the court seised of a case, is enjoined to make only one or other of two orders, i.e. an order allowing the appeal or an order dismissing the appeal, save only as to the exercise of specific powers in special cases provided for in N.L.C.D. 84, para. 14. The court, be submitted, is not given any discretion to exercise any other powers or to make any other order. He submitted, therefore, that upon these paragraphs of the Courts Decree and subject to paragraph 38 thereof, once a bench of the court is seised of an appeal it cannot divest itself of it save by allowing or dismissing the appeal. He submitted, however, that the Chief Justice may by order under his hand made in pursuance of paragraph 38 of the Courts Decree, transfer an appeal from one bench to another. That paragraph reads as follows: “The Chief Justice may by order under his hand at any time or stage and either with or without application from any of the parties, transfer any cause or matter from a judge of a Court referred to in this Decree to any other Judge of such Court and from a Court referred to in this Decree to any other competent Court . . .”

Although the Court of Appeal is not mentioned in that paragraph, the Director of Public Prosecutions submitted that it applied to the Court of Appeal and the judges thereof by reason of the words “a judge of a Court referred to in this Decree” and by virtue also of the provisions in section 26 (3) of the Interpretation Act, 1960 (C.A. 4), which provides that “In an enactment—(a) words in the singular include the plural, and (b) words in the plural include the [p.42] [1968] GLR 37 singular.” He contended that by reason of that interpretation the only thing open to the of ordinary bench is to apply to the Chief Justice under paragraph 40 of the Courts Decree, 1966, for transfer of the appeal to the full bench.

The Director of Public Prosecutions submitted that since it has not been shown that the Chief Justice has by order under his hand transferred the appeal from the ordinary bench to the full bench, the appeal is still pending before the ordinary bench and the full bench is incompetent to entertain it.

Furthermore, the learned Director of Public Prosecutions contended that the reference in the statement made by the court on 2 June 1967, to consultation with the Chief Justice is an indication that a number of judges of the court, more than three and less than five which is not a duly constituted court as provided by paragraph 6 of the Decree has concurred in the statement or order made that the appeal should go before the full bench, and that for that reason also the decision or order is void of effect and so the appeal is still before the ordinary bench and not before the full bench. The Director of Public Prosecutions referred to: (i) R. v. Norman [1924] 2 K.B. 315 at p. 316, C.C.A. and (ii) R. v. McVitie [1960] 2 Q.B. 483 at p. 486, C.C.A. dealt with by the Court of Criminal Appeal in England. In Norman’s case the appeal was first heard by three judges and adjourned so that it might be heard by a court of five judges, but was again adjourned so that it might be heard by thirteen judges; in the McVitie case, the ordinary court after hearing argument ordered that the appeal be re-listed for hearing by a full court. It should here be pointed out that in England the Court of Criminal Appeal when constituted by three judges is an ordinary court, and when constituted by an uneven number higher than three is a full court. The Director of Public Prosecutions submitted that the practice employed in these two English cases does not provide even persuasive authority or useful guidance which this court should follow because, he said, section 1 of the Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), created just one Court of Criminal Appeal and provided for a quorum, therefore in hearing a case which had first been argued before the ordinary bench the full court was exercising jurisdiction in the one and only court without any change of forum. He submitted that the wording of paragraph 6 of the Courts Decree 1966, is quite different from that of section 1 of the English Criminal Appeal Act, 1907, and furthermore that by conferring power of review exclusively on the full bench, as by paragraph 7 (2) of the Decree, the Decree created the full bench as a distinct court, which [p.43] of [1968] GLR 37 has nothing comparable to it under the Criminal Appeal Act in England.

Referred by the court to Motayo v. Commissioner of Police (1950) 13 W.A.C.A. 114, the Director of Public Prosecutions submitted that the provisions of the order in council creating the West African Court of Appeal which heard that case, are in almost identical terms with the provisions of the English Criminal Appeal Act, and therefore that is in no better position than the English cases referred to. Thus, he submitted, there is no analogy between the Court of Criminal Appeal which adopted the procedure in the cases and this court, and consequently that there is no legal justification for this court to adopt the procedure employed by those courts in the cases cited. Learned counsel for the first appellant referred to paragraphs 6 and 7 of the Courts Decree, 1966 (N.L.C.D. 84), and compared them with section 1 of the English Criminal Appeal Act, 1907, and submitted that like the Criminal Appeal Act, 1907, N.L.C.D. 84 created one and only one court which may sit either as an ordinary bench or as a full bench to exercise jurisdiction. He submitted that paragraph 7 (2) gives a special jurisdiction to the full bench in the case of review only and nothing else. Counsel submitted that an appeal is made to the court and not to a bench and therefore the mandatory provisions in paragraph 13 of the Decree that the court shall either (1) allow the appeal or (2) dismiss the appeal refer to the court and not a bench; consequently, he submitted the effect of the statement made by the ordinary bench in June 1967, is that that bench will not proceed to dispose of the case; therefore the appeal is still pending before the court and may be heard by the full bench. Learned counsel submitted that since the effect of paragraphs 6 and 7 of N.L.C.D. 84 is the same as that of the Criminal Appeal Act, 1907, the procedure adopted in the cases cited: R. v. Norman, R. v. McVitie and Motayo v. Commissioner of Police (supra), are precedents by which the court should be guided in the matter.

As to the submission of the Director of Public Prosecutions that once hearing of the appeal had started before the ordinary bench it cannot be re-listed before the full bench except upon an order of transfer under the hand of the Chief Justice given under paragraph 38 of the Decree, counsel submitted that listing of a case in court is an administrative matter and does not call for a formal order of transfer; and paragraph 38 therefore is not applicable. In his view, the decision made by the ordinary bench without proceeding to deliver judgment is within the competence of the bench, and the appeal is now properly pending before the full bench. [p.44] of [1968] GLR 37

Learned counsel for the second appellant agreed with the Director of Public Prosecutions that the power of transfer given to the Chief Justice in paragraph 38 of the Decree may be exercised by him to transfer an appeal from the ordinary bench to the full bench. Again, in his view the order made by the ordinary bench is not just an abdication of jurisdiction as the Director of Public Prosecutions contended but an irretrievable abdication of jurisdiction; that, he said, rendered the whole of the proceedings before the ordinary bench abortive, null and void, and leaves the appeal pending de novo in the court to be listed before a bench, i.e. the ordinary bench or the full bench. But, says he, since the ordinary bench had formed the opinion that there are important points of law in the case which made it necessary that the appeal should be heard by the full bench, the full bench should in the interest of justice and by virtue of paragraph 12 of the Decree, hear the appeal. Learned counsel for the third appellant associated himself with learned counsel for the first appellant on all the points he made, and with learned counsel for the second appellant on the question that the appeal is properly listed before the full bench. Now, none of the parties has been able to refer us to and we ourselves have not been able to find any case in which the point now taken by the learned Director of Public Prosecutions had previously been taken and decided; we shall therefore deal with the submissions on general principles, and show how the cases cited conform with those principles.

The Courts Decree, 1966 (N.L.C.D. 84), para. 6 (1) provides that:

“6. (1) The Court of Appeal when exercising appellate jurisdiction whether civil or criminal, or any other jurisdiction shall consist of—

(a) an ordinary bench comprising three Justices of Appeal; or

(b) a full bench comprising five Justices of Appeal:

Provided that—

(a) such Court shall be deemed to be a duly constituted bench, notwithstanding that it includes a Judge of the High Court temporarily invited by the Chief Justice to sit on such bench;

(b) such Court shall be deemed to be a duly constituted bench, notwithstanding any vacancy in the office of the Chief Justice or any other Justice

[p.45] of [1968] GLR 37 of Appeal so, however, that there are at least three Judges to constitute a proper bench.”

The English Criminal Appeal Act, 1907 (7 Edw. 7, c. 23), s. 1 (2) provides that:

“For the purpose of hearing and determining appeals under this Act, and for the purpose of any other proceedings under this Act, the Court of Criminal appeal shall be summoned in accordance with directions given by the Lord Chief Justice of England with the consent of the Lord Chancellor, and the court shall be duly constituted if it consists of not less than three judges and of an uneven number of judges.” Each of these two enactments creates one court and one court only for the purpose of hearing appeals, and not two courts, though that one court may be constituted either as an ordinary bench or as a full bench, but in either case exercising the identical jurisdiction and powers. This point is further clarified by the provisions of paragraph 7 (1) of the N.L.C.D. 84 which says:

“7. (1) 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 any other enactment;

(c) any other jurisdiction conferred by this Decree or any other enactment.”

Sub-paragraph (2) confers a special and exclusive power of review upon the full bench and says that “This jurisdiction shall not be exercised by an ordinary bench of such Court.”

The clear intention of the legislature as can be gathered from the Decree is that all appeals shall be heard and determined by the ordinary bench and that it is only appeals which are found to be more than ordinary, and review of decisions which are found to be necessary and desirable, which should be taken by the full bench. In this regard it must be presumed that the legislature intended that some person or persons must take a decision as to an appeal which should be listed before the full bench. A decision that a particular appeal is one which should properly go before the full bench may be taken at any stage between the moment when the [p.46] of [1968] GLR 37 appeal becomes pending in the court and the moment when judgment is delivered, and it may be made in one or other of the following circumstances: (a) upon representations made by the parties or their counsel to the court; (b) upon opinion formed by judges of the court when they read the record of appeal and the relevant papers filed therewith; (c) upon opinion formed by members of the ordinary bench upon hearing arguments in court; or (d) upon opinion formed by members of the ordinary bench while considering their judgment. In the last two instances, i.e. where the opinion is formed after there has been a hearing before the ordinary bench, the decision that the appeal is one which is more than ordinary, and therefore one which in the interest of justice should be listed before the full bench would involve a movement of the appeal from the ordinary bench on to the list of the full bench.

In this regard the Director of Public Prosecutions’ contention that the only process is a formal order of transfer under the hand of the Chief Justice is based upon the erroneous contention that the powers of transfer given to the Chief Justice under paragraph 38 of the Decree is applicable to the Court of Appeal.

It is true as was submitted by the Director of Public Prosecutions that paragraph 38 uses the words “transfer any cause or matter from a Judge of a Court referred to in this Decree to any other Judge of such Court” and that the Court of Appeal is a court referred to in the Decree. It is true also that the singular word “judge” would include the plural word “judges” as provided in section 26 of the Interpretation Act, 1960 (C.A. 4). But in order to ascertain the real intention of the legislature in the paragraph as to the class or category of judges to be included in the paragraph, we must look at other provisions of the Decree. Paragraph 40 of the Decree, read together with paragraph 38, solves the problem; paragraph 40 limits the category of judges who may report to the Chief Justice the pendency of a case before them, for the same to be transferred to another judge. It says:

“40. Any judge of the High Court may himself or on application of any person concerned, report to the Chief Justice any cause or matter, civil or criminal pending before him, which in his opinion ought for any reason to be transferred from him to any other Court or Judge. If the Chief Justice is satisfied that a transfer is desirable he shall specify the Court to which or the Judge to whom such cause or matter is to be transferred for hearing and determination and give such other directions as may be necessary.” [p.47] of [1968] GLR 37

Nowhere in the Decree is a judge of the Court of Appeal empowered to report the pendency of a case for the same to be transferred.

It follows that the word “judge” used in paragraph 38 does not include a judge of the Court of Appeal, and that the Chief Justice’s powers of transfer under paragraph 38 are not exercisable with respect to an appeal pending before a bench of the Court of Appeal. Furthermore, the paragraph cannot apply to appeals pending before the Court of Appeal because there will be no court referred to in the Decree with competent jurisdiction to hear an appeal which is pending before the Court of Appeal. A typical example is that a review cannot be transferred from a full bench to an ordinary bench. Listing and re-listing of an appeal which is pending in the court is purely an administrative process and does not require a judicial order. It is only when a case has been disposed of, e.g. struck out for want of prosecution, that a judicial order is necessary for re-listing it.

And that takes us to the submission of the Director of Public Prosecutions that once an appeal has been listed before the ordinary bench, it remains on that list and cannot leave it, and that the powers of the bench are those prescribed within the four walls of paragraphs 13 and 14 of the Decree, and that the provisions of those paragraphs leave the bench with no alternative except to allow or dismiss the appeal. This submission is not in consonance with the proper construction of paragraphs 13 and 14 of the Decree. These two paragraphs merely prescribe the mode or act by which alone an appeal may be finally disposed of by the court so as to take it completely off the list of the court, as distinct from the list of a bench. For such a final and complete disposal of an appeal there must be an order allowing the appeal or dismissing the appeal, and that is what is provided for in paragraphs 13 and 14. In making the submission that the court has no other powers except those within the four walls of paragraphs 13 and 14, and consequently that the court has no power to make any order except to allow or dismiss the appeal, and possibly adjourn, the learned Director of Public Prosecutions overlooked the supplemental powers vested in the court by paragraph 18 of the Decree which in addition to other specific powers give the court absolute control over an appeal. It says, inter alia, that: “18. In the exercise of its jurisdiction, the Court of Appeal may if it thinks it necessary or expedient in the interests of justice— . . . exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Court of Appeal on appeals and issue any [p.48] of [1968] GLR 37 warrants necessary for enforcing the orders or sentences of the Court.”

In short, that paragraph gives the court full power to determine any question necessary to be determined for the purpose of doing justice in the case before the court. It empowers the court to make any orders and give such directions in the case as in the opinion of the court are necessary and expedient in the interest of justice for a proper hearing and adjudication upon the case. A decision that certain important points of law which fall for decision are of grave public importance and therefore the full bench and not the ordinary bench should decide them, is certainly a decision which is necessary for the purpose of doing justice in the case. An appellant appeals to the court and not to a bench of the court, and so if the ordinary bench before which an appeal is listed and argued forms the opinion that it should not, in the interest of justice, finally determine it, the appeal would still be pending in the court to be disposed of and the full court would be constituted without any formality to hear and determine it.

Here it must be emphasised that the legislature has created one and only one court, not two courts and that the assignment to the full bench of a special jurisdiction in review does not make the full bench a higher court or even a higher bench as the learned Director of Public Prosecutions contended; for that matter a decision given by the full bench albeit given in a review, is a decision of the court. The full bench of a Court of Criminal Appeal like a full bench of any other Court of Appeal has no greater powers than the ordinary bench: see Young v. Bristol Aeroplane Co., Ltd. [1944] 2 All E.R. 293, C.A. If it were not so, the legislature would have given to the ordinary bench rights comparable to those given to the High Court and the circuit courts in paragraph 10 of the Decree to reserve a point of law upon a case stated for the opinion of the full bench. For that matter it should also be emphasised that when the Decree says in paragraph 2 (3) that “The Court of Appeal shall be bound in principle to follow its own previous decisions on questions of law,” the previous decision there referred to is a decision given by the court whether constituted by the ordinary bench or whether constituted by the full bench, and the court will be the same court whether constituted by the ordinary bench or by the full bench. Now, examination of some of the leading cases both English and local in which a full bench heard an appeal reveal two categories of cases, namely: (a) those in which the court was assembled in view of a previous decision in which it was felt that the law had been misapplied or misunderstood, in other words, where a review is thought [p.49] of [1968] GLR 37 desirable; or (b) those in which some important point of law of public interest is raised. Under the first, we may list R. v. Sherwood (1857) 7 Cox C.C. 270, C.C.R.; R. v. Bryan (1857) 7 Cox C.C. 312, C.C.R.; R. v. Norman [1924] 2 K.B. 315, C.C.A.; R. v. McVitie [1960] 2 Q.B. 483, C.C.A. and Motayo v. Commissioner of Police (1950) 13 W.A.C.A. 114; and under the second category, we may mention Mancini v. Director of Public Prosecutions [1942] A.C. 1, H.L.; Boahene v. The State [1965] G.L.R. 279, S.C. and State v. General Officer Commanding the Ghana Army; Ex parte Braimah [1967] G.L.R. 192, C.A. (full bench). In Norman’s case the appeal was first heard by three judges, and adjourned so that it might be heard by a court of five judges, but it was again adjourned and was heard by a court of thirteen judges.

It is revealed by these cases that within the last century or so, whenever a court of appeal had formed opinion that important points of law raised in an appeal before it required, in the interest of justice, to be considered by the full bench, the practice and procedure it has employed is the same as was followed by the ordinary bench in this case on 2 June 1967, that is, direct that it be listed before the full bench. Now, apart altogether from the fact that that practice has rational basis and has existed for all these years without its validity being questioned, that practice as demonstrated above, is based upon sound foundation, and is well within the competence of the court. The constitution of a bench for hearing appeals is part of the administrative functions of the Chief Justice. Therefore when direction is given by the ordinary bench that the appeal should be listed before the full bench, the same must of necessity be reported to the Chief Justice in order that he should constitute the bench accordingly. The agreement by the Chief Justice to constitute the full bench for hearing of the appeal as referred to in the statement of 2 June 1967, did not, as is shown on the face of it, involve the Chief Justice in the deliberation which culminated in the decision that the appeal should be argued before the full bench. Therefore the submission by the Director of Public Prosecutions that the Chief Justice participated in taking that decision and interfered with the proceedings before the ordinary bench has no foundation and it is uncalled for. The order is therefore valid; the preliminary objection is overruled.

The appeal to proceed.

DECISION

Preliminary objection overruled.

S. K. T.