COURT OF APPEAL
DATE: 22 FEBRUARY 1971
AZU CRABBE JIAGGE AND ARCHER JJA
CASES REFERRED TO
(1) Tormekpey v. Ahiable, Court of Appeal, 27 January 1970, unreported; digested in (1970) C.C. 44. (2) Republic v. Minister of the Interior; Ex parte Lynes, Court of Appeal, 22 July 1970, unreported.
(3) Haley v. London Electricity Board [1965] A.C. 778; [1964] 3 .L.R. 479; 129 J.P. 14; 108 S.J. 637; [1964] 3 All E.R. 185; 63 L.G.R. 1, H.L.
(4) Adraki v. Mankwa II, Court of Appeal, 23 February 1970, unreported.
(5) In re Hallett’s Estate; Knatchbull v. Hallett (1879) 13 Ch.D. 696, C.A.
(6) Osborne v. Rowlett (1880) 13 Ch.D. 774, C.A.
(7) Khoury v. Khoury, Court of Appeal, 7 December 1970, unreported.
NATURE OF PROCEEDINGS
APPLICATION for an order for special leave to appeal to the Court of Appeal, under rule 28 of the Supreme Court Rules, 1962 (L.I. 218), against a ruling of Hayfron-Benjamin J. in the High Court, Accra, in which the applicants’ summons for liberty to enter final judgment in an action against the respondents was refused, with the respondents having been granted unconditional leave to defend.
COUNSEL
N. Moore (Buta with him) for the applicants.
Amoo-Lamptey (Quist with him) for the respondents.
JUDGMENT OF AZU CRABBE J.A.
Azu Crabbe J.A. delivered the judgment of the court. This is an application by the plaintiffs-applicants for an order for special leave to appeal to this court against the unreported ruling of Hayfron-Benjamin J. given on 23 November 1970, in the High Court, Accra. The circumstances leading to this application are briefly these: On 5 October 1970, the applicants filed a specially endorsed writ, accompanied by a statement of claim, against the respondents claiming the sum of N¢136,473.62 plus interest of ten per cent. per annum. The respondents entered an appearance but failed to file a defence, and on 13 October 1970, the applicants filed a summons for liberty to enter final judgment against the respondents under Order 14, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). Before the hearing of the summons, however, the respondents filed their statement of defence and counterclaim on 16 October 1970. On 20 October 1970, the respondents filed an affidavit in opposition to the applicants’ summons. The summons first came before Abban J. but eventually it was heard by Hayfron-Benjamin J. who, on 23 November 1970, granted the respondents unconditional leave to defend the applicants’ claim. On 27 November 1970, the applicants filed an application in the High Court for an order for special leave to appeal to the Court of Appeal against Hayfron-Benjamin J.’s ruling of 23 November 1970. On 7 December 1970, Hayfron-Benjamin J. dismissed the application, and in his ruling he said.:
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“The rule for summary judgment under Order 14, r. 1 is a hard one (see Ludford v. Rymull, 4 T.L.R. 693) and to appeal against an order granting unconditional leave, the application must show clearly that there is no defence to the claim whatsoever, and that in granting unconditional leave to defend there was a serious breach of some fundamental principle of law of some importance. This application for special leave contains nothing but tendencious statements and ridiculous and baseless charges against the trial judge. No breach of any principle of law or justice is alleged, and I for myself have no hesitation in dismissing it with costs assessed at N¢50.00.”
The present application for special leave is a repetition of the application in the High Court before Hayfron-Benjamin J. and it has obviously been brought under rule 28 of the Supreme Court Rules, 1962 (L.I. 218). Rule 28 provides as follows:
“Subject to the provisions of these Rules and to any other enactment, where under any enactment an application may be made either to the Court below or to the Court it shall be made in the first instance to the Court below, but if the Court below refuses to grant the application, the applicant shall be entitled to have the application determined by the Court.”
As we said in Tormekpey v. Ahiable, Court of Appeal, 27 January 1970, unreported; digested in (1970) C.C. 44:
“An application under rule 28 is therefore a fresh application, and the Court of Appeal, in deciding whether or not to grant it, exercises its own discretion in the matter, after assessing the facts and circumstances independently. The court does not sit primarily to review the exercise of a discretion by the court below.”
In our view, two issues arise on this application. The first question is whether the applicant requires leave to appeal; and the second, which is a point of substance, is whether leave ought to be granted in the circumstances of this case. On the first question, counsel for the respondents, has stated that there is no need for special leave, since under article 110 (2) of the Constitution an appeal lies “as of right from a judgment, decree or order of the High Court of Justice to the Court of Appeal in any cause or matter determined by the High Court of Justice.” Counsel for the applicants has, on the other hand, contended that special leave is required to appeal from an interlocutory order of the High Court, and he stressed that this court is, by virtue of article 109 (3) of the Constitution, bound to follow its ruling in Republic v. Minister of the Interior; Ex parte Lynes, Court of Appeal, 22 July 1970, unreported. In that case counsel for the respondent had raised a preliminary objection to the appeal on the ground that the order appealed from was an interlocutory order, and that special leave was required. He argued that special leave not having been granted, the appeal was not properly before the court. Counsel for the appellant conceded that special leave was necessary, and that it had not been obtained. The attention of the court was drawn to the Courts (Amendment) Decree, 1968 (N.L.C.D. 277), and article
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110 (2) of the Constitution. In its brief ruling the court said:
“Since counsel for the appellant [i.e. for the Minister of the Interior] has conceded that he should have obtained special leave to appeal and that he did not do so and he therefore agrees with the counsel for the respondent that the appeal is not properly before us, we have no other course open to us than to strike out the appeal. The appeal is accordingly struck out. Costs of N¢50.00.”
It does not appear that in the Lynes case (supra) the court had the benefit of the best argument that the researches and industry of counsel could provide. But a judgment is equally authoritative whether it was given ex tempore after inadequate argument or given after full argument and mature consideration: See the dicta of Lord Reid in Haley v. London Electricity Board [1965] A.C. 778, at p. 792, H.L., also Adraki v. Mankwa II, Court of Appeal, 23 February 1970, unreported. What, however, appears to denude the Lynes case (supra) of any binding authority is that not only was the case not fully argued on both sides, but also that the court itself did not make any pronouncement of a legal principle upon which the ruling was based. The ratio decidendi is the only binding part of a case, and the ratio decidendi is a rule of law which a judge considered necessary for his decision, whether a case is fully argued or not. In In re Hallett (1879) 13 Ch.D. 696 at p. 712, C.A., Jessel M.R. said: “The only use of authorities, or decided cases, is the establishment of some principle which the Judge can follow out in deciding the case before him.” And again Osborne v. Rowlett (1880) 13 Ch.D. 774 at p. 785, C.A., he said:
“Now, I have often said, and I repeat it, that the only thing in a Judge’s decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided: But it is not sufficient that the case should have been decided on a principle if that principle is not itself a right principle, or one not applicable to the case; and it is for a subsequent Judge to say whether or not it is a right principle, and, if not he may himself lay down the true principle.”
A case loses its authority as a binding precedent if the ratio decidendi of that case is not discoverable. The Lynes case (supra) is, with respect, such a case.
Another factor which, in the opinion of this court, completely destroys the binding authority of the Lynes case in this court is that the court in that case was not referred to paragraph 19 and Schedule II of the Constitution (Consequential and Transitional Provisions) Decree, 1969 (N.L.C.D 406), which made specific amendments in the Courts Decree, 1966 (N.L.C.D. 84), by substituting a new paragraph 7 for the one previously substituted by N.L.C.D. 277, para. 1 (a) and which contained the provisions with regard to special leave. In our view, the decision in the Lynes case was given per incuriam, for, as we shall endeavour to demonstrate presently, had the provisions of paragraph 19 and Schedule II of N.L.C.D. 406 been brought to the notice of the court in that case the decision must have been different. It is for the above reasons that we
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accede to the request of Mr. Moore to reconsider fully for the guidance of the practising Bar, whether special leave is required to appeal to this court from an interlocutory order made by a judge of the High Court.
In considering the first question, therefore, we ought to have a peep into the history of legislation on the subject. It is, in our view, not necessary to go further back than 1960. In that year the Courts Act, 1960 (C.A. 9), was passed and there was established under that Act the Supreme Court, the High Court, and the circuit courts. Section 8 of the Act which defined the jurisdiction of the Supreme Court read as follows:
“(1) The jurisdiction of the Supreme Court shall consist of —
(a) the hearing of appeals from any judgment of the High Court in any civil cause; . . .
(c) the hearing of appeals from any decision given by the High Court in any other matter whatsoever; and
(d) any other jurisdiction conferred by this Act or any other enactment: Provided that — . . .
(b) no appeal shall lie except by special leave of the High Court or of the Supreme Court from an order made ex parte or by consent or as to costs only.”
It seems clear that under the Courts Act, 1960, an appeal lay as of right from any decision of the High Court in any civil cause or matter whatsoever, but that special leave was required from the High Court or the Supreme Court in order to appeal from a decision of the High Court only in the following specific cases:
(1) Where the appeal was against an order made ex parte.
(2) Where the appeal was against an order made by consent.
(3) Where the appeal was against an order as to costs.
In exercise of the powers conferred on the Rules Committee by section 87 (1) of the Act, the Supreme Court Rules, 1962 (L.I. 218), were made, and rule 9 of these Rules prescribed the procedure with regard to an application for special leave. In 1966, however, the Courts Decree, 1966 (N.L.C.D. 84), repealed the Courts Act, 1960 (C.A. 9), and abolished all the courts created under that Act. Under N.L.C.D. 84 the Supreme Court created under the Courts Act, 1960 (C.A. 9), was replaced by the Court of Appeal, and new courts, similar to the former courts, were established. Paragraph 7 of N.L.C.D. 84 defined the jurisdiction of the Court of Appeal, and the provisions, so far relevant for the purposes of this case, read as follows:
“(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; … (c) any other jurisdiction conferred by this Decree or any other enactment:
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Provided that —
(i) an appeal shall lie to the Court of Appeal from a judgment of the High Court in the exercise of its appellate jurisdiction on any matter except a matter arising out of a criminal case where the High Court has affirmed the decision of the Court from which the appeal is made to the High Court, by special leave of the High Court, or of the Court of Appeal; and
(ii) no appeal shall lie except by special leave of the High Court or of the Court of Appeal
from an order made or by consent.”
The Courts Decree, 1966 (N.L.C.D. 84), was amended by the Courts (Amendment) (No. 2) Decree, 1967 (N.L.C.D. 123), by the substitution for the proviso to sub-paragraph (1) of paragraph 7 the following new proviso:
“Provided that —
(1) by special leave of the High Court or of the Court of Appeal, an appeal shall lie to the Court of Appeal from a judgment of the High Court in the exercise of its appellate jurisdiction on any matter, except a matter arising out of a criminal case, where the High Court has affirmed the decision of the Court from which the appeal is made to the High Court; and
(2) except by special leave of the High Court or of the Court of Appeal, no appeal shall lie from an order made by consent.”
Under N.L.C.D. 123 the position plainly was that special leave of the High Court or the Court of Appeal was required only in the following cases:
(1) Where the High Court in the exercise of its appellate jurisdiction in any civil matter had affirmed a decision of the court below.
(2) Upon an appeal from an order made by consent.
Paragraph 86 of N.L.C.D. 84 established a Rules Committee and conferred upon it the power to make Rules of Court to regulate and prescribe the procedure and the practice to be followed in the courts created under that Decree. And since no Rules of Court were made by the Rules Committee, the Supreme Court Rules, 1962, continued, by virtue of paragraph 88 (1), to be applicable in the Court of Appeal.
In 1968 N.L.C.D. 84 was further amended by the Courts (Amendment) Decree, 1968 (N.L.C.D. 277), by the substitution for paragraph 7 (1) thereof of the following new sub-paragraph:
“(1) Subject to the provisions of sub-paragraph (2) of this paragraph 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 Circuit Court in any civil cause or matter;
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(b) the hearing of appeals from any decision of the High Court in any criminal cause or matter exercised in accordance with the provisions of this Decree or any other enactment;
(c) the hearing of appeals from any decision of the Circuit Court in any criminal cause or matter tried on indictment exercised in accordance with the provisions of this Decree or any other enactment;
(d) the hearing of appeals from any decision of the High Court in any matter whatsoever; (e) any other jurisdiction conferred by this Decree or any other enactment: Provided that: —
(1) except by special leave of the High Court or of the Court of Appeal no appeal shall lie to the Court of Appeal from any judgment given by the High Court in the exercise of its appellate jurisdiction on any matter (other than a matter arising out of a criminal case) where the High Court has affirmed the decision of the Court from which the appeal is made to the High Court; and
(2) except by special leave of the High Court or of the Court of Appeal no appeal shall lie from an interlocutory order or from an order made by consent.”
There can be no doubt that under N.L.C.D. 277 the only cases in which special leave was required to appeal from the decision of the High Court to the Court of Appeal were as follows:
(1) Where the High Court in the exercise of its appellate jurisdiction in any matter, except in a criminal matter, had confirmed the decision of the court below.
(2) Where the High Court had made an interlocutory order.
(3) Where the High Court had made a consent order.
The application for the special leave was made either to the High Court or to the Court of Appeal, but by the provisions of rule 28 of the Supreme Court Rules, 1962, the application was first made to the High Court.
By paragraph 19 and Schedule II of the Constitution (Consequential and Transitional Provisions) Decree, 1969 (N.L.C.D. 406), paragraph 7 of N.L.C.D. 84 as substituted by paragraph 1 of the Courts (Amendment) Decree, 1968 (N.L.C.D. 277), was again amended by the substitution of the following paragraph for paragraph 7:
“7. (1) In addition to the jurisdiction conferred by Article 110 of the Constitution, the Court of Appeal shall have the jurisdiction conferred by this paragraph.
(2) The Court of Appeal shall have jurisdiction —
(a) to hear appeals from any judgment of a Circuit Court in any civil cause or matter;
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(b) to hear appeals from any decision of a Circuit Court in a criminal cause or matter tried on indictment exercised in accordance with the provisions of this Decree or any other enactment; and shall also have any other jurisdiction conferred by this Decree or any other enactment.”
The Constitution (Consequential and Transitional Provisions) Decree, 1969 (N.L.C.D. 406), came into force on 1 October 1969, and paragraph 7 of N.L.C.D. 84 as substituted by the Second Schedule to N.L.C.D. 406 is now the prevailing law with regard to the ‘ jurisdiction of the Court of Appeal in addition to that created by article 110 of the Constitution, 1969. The relevant provisions of article 110 of the Constitution which define the jurisdiction of the Court of Appeal are in these terms:
“(1) The Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of this article and of this Constitution, appeals from any judgment, decree or order of the High Court of Justice or any Justice thereof and such other appellate jurisdiction as may be conferred upon it by this Constitution or any other law.
(2) Save as otherwise provided in this Constitution, an appeal shall lie as of right from a judgment, decree or order of the High Court of Justice to the Court of Appeal in any cause or matter determined by the High Court of Justice.”
The words “conferred upon it by … any other law” in article 110 (1) of the Constitution are now exclusively referable to the amendment effected by the Second Schedule to N.L.C.D. 406.
The jurisdiction conferred on the Court of Appeal both by the Constitution and the only relevant existing law (i.e. paragraph 7 of the N.L.C.D. 84) may, therefore, be stated as follows:
(1) To hear and determine appeals from any judgment, decree or order of the High Court. (2) To hear appeals from any judgment of a circuit court in any civil cause or matter. (3) To hear appeals from any decision of the circuit court in a criminal cause or matter tried upon an indictment.
It is plain from clause (2) of article 110 that an appeal lies as of right to the Court of Appeal from any judgment, decree or order of the High Court. The clause “save as otherwise provided in this Constitution” refers, in our view, to article 105 (4), which excludes from the jurisdiction of the Court of Appeal the power to hear and determine appeals from the convictions of any persons for treason by the High Court. We have not been able to discover any existing law in Ghana which makes specific provisions relating to the jurisdiction of the Court of Appeal to entertain an application for special leave to appeal to the Court of Appeal from a decision of the High Court or the circuit court. In our view, the appellate
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jurisdiction of the Court of Appeal is now governed by article 110 of the Constitution and paragraph 7 of N.L.C.D. 84 as substituted by the Second Schedule to N.L.C.D. 406.
The Court of Appeal established under the Constitution is, by virtue of article 125 (2) of the Constitution, the successor to the Court of Appeal of the Supreme Court of Judicature created by the Courts Decree, 1966 (N.L.C.D. 84). By paragraph 6 (b) of N.L.C.D. 406, the Supreme Court Rules, 1962 (L.I. 218), continue to regulate the practice and procedure in this Court. Under rule 28 an application which had been unsuccessful in the court below can only be repeated in this court if there is “any enactment” which permits such an application to be made: see Tormekpey v. Ahiable (supra) and Khoury v. Khoury, Court of Appeal, 7 December 1970, unreported. The applicants here have not referred this court to “any enactment” or “the existing law” under which they have brought their application. Consequently, we will give a negative answer to the first question. The second question, therefore, does not arise.
We hold that the application for special leave to appeal from the ruling of Hayfron-Benjamin J. is clearly misconceived and we dismiss it accordingly. In any case, the first application to the High Court for special leave was also misconceived. We make no order as to costs.
DECISION
Application dismissed.
T. G. K.
