CFAO v. ZACCA [1972] 1 GLR 366

CFAO v. ZACCA [1972] 1 GLR 366
COURT OF APPEAL
Date: 17 JANUARY 1972
BEFORE: AZU CRABBE J.S.C., LASSEY AND SOWAH JJ.A.

CASES REFERRED TO
(1) Awoonor Renner v. Thensu (1930) 1 W.A.C.A. 77.
(2) Fordham v. Clagett; In re Clagett’s Estate (1882) 20 Ch.D. 637.
(3) Colquhoun v. Brooks (1887) 19 Q.B.D. 400, reversed (1888) 21 Q.B.D. 52, C.A.
(4) Jones v. Director of Public Prosecutions [1962] A.C. 635; [1962] 2 W.L.R. 575; 126 J.P. 216; 106
S. J. 192; [I 962] All E.R. 569; 46 Cr.App.R. 129, H.L.
(5) Dean v. Wiesengrund [1955] 2 Q.B. 120; [1955] 2 W.L.R. 1171; 99 S.J. 369; [1955] 2 All E.R.
432, C.A.
(6) Hill v. Hill (William) (Park Lane) Ltd. [1949] A.C. 530; [1949] L.J.R. 1383; 66 T.L.R. 471; 93 S.J.
587; [1949] 2 All E.R. 452, H.L.
(7) Warburton v. Loveland (1831) 2 D. & C1. 480; 6 E.R. 806, H.L.
(8) King-Emperor v. Benoari Lal Sarma [1945] A.C. 14, P.C.
(9) Eyre v. Wynn-Mackenzie [1896] 1 Ch. 135; 65 L.J.Ch. 194; 73 L.T. 571; 44 W.R. 273, C.A.
[p.369] of [1972] 1 GLR 366
(10) Amponsah v. Minister of Defence [1960] G.L.R. 140, C.A. (11) Colonial Sugar Refining Co. v. Irving [1905] A.C. 369; 74 L.J.P.C. 77; 92 L.T. 738; 21 T.L.R. 513, P.C.
(12) In re a Debtor (No. 490 of 1935) [1936] Ch. 237; 105 L.J.Ch. 129; 154 L.T. 44; 52 T.L.R. 70; 79
S.J. 839, C.A.
(13) New Brunswick Rly. Co. v. British and French Trust Corporation Ltd. [1939] A.C. 1; [1938] 4 All
E.R. 747; 108 L.J.K.B. 115; 160 L.T. 137; 83 S.J. 132, H.L.
(14) Attorney-General v. Vernazza [1960] A.C. 965; [1960] 3 W.L.R. 466; 104 S.J. 664; [1960] 3 All
E.R. 97, H.L.
(15) Awoonor-Williams v. Gbedemah, Supreme Court, 8 December 1969, unreported; digested in
(1970) C.C. 18.
(16) In re Okine [1960] G.L.R. 267, S.C.
(17) Carson v. Carson and Stoyek [1964] 1 W.L.R. 511; 107 S.J. 984; [1964] 1 All E.R.681.
(18) Ex parte Wier (1871) L.R. 6 Ch.App. 875.
(19) Attorney-General v. De Keyser’s Royal Hotel [1920] A.C. 508; 89 L.J.Ch. 417; 122 L.T. 691, H.L.
(20) Salt v. Cooper (1880) 16 Ch.D. 554; 50 L.J.Ch. 529, C.A.
(21) Abbott v. Minister for Lands [1895] A.C. 425, P.C.
(22) Reynolds v. Attorney-General for Nova Scotia [1896] A.C. 240; 65 L.J.P.C. 16; 74 L.T. 108, P.C.
(23) Hamilton Gell v. White [1922] 2 K.B. 422; 91 L.J.K.B. 875; 127 L.T. 728; 38 T.L.R. 829, C.A.
(24) Heston and Isleworth U.D.C. v. Grout [1897] 2 Ch. 306; 66 L.J.Ch. 647; 77 L.T. 188; 45 W.R.
697; 13 T.L.R. 504; 41 S.J. 639, C.A.
(25) Director of Public Works v. Sang (Ho Po) [1961] A.C. 901; [1961] 3 W.L.R. 39; 105 S.J. 491, P.C.
(26) Asare (F. Y.) v. The State, Court of Appeal (full bench) 15 January 1968, unreported; digested in
(1968) C.C. 62.
(27) Hoani Te Heuhue Tukino v. Aotea District Moari Land Board [1941] A.C. 308; [1941] 2 All E.R.
93; 110 L.J.P.C. 17; 57 T.L.R. 419, P.C.
(28) I.R.C. v. Dowdall, O’Mahoney & Co., Ltd. [1952] A.C. 401; [1952] 1 T.L.R. 560; 96 S.J. 148;
[1952] 1 All E.R. 126, H.L.
(29) Bassil v. Buckle, Court of Appeal (full bench) 18 August 1969, unreported; digested in (1970) C.C.6.
(30) Republic v. Halm and Ayeh-Kumi, Court of Appeal (full bench) 7 August 1969, unreported;
digested in (1969) C.C. 155.
(31) Powell v. Main Colliery Ltd. [1900] A.C. 366; 69 L.J.Q.B. 758; 83 L.T. 85; 49 W.R. 49, H.L.
(32) Barlow v. Ross (1890) 24 Q.B.D. 381.
(33) In re Estate of Rippon [1943] P. 61; [1943] 1 All E.R. 676.
(34) In re Wingham dec’d.; Andrews v. Wingham [1949] P. 187; [1949] L.J.R. 695; 64 T.L.R. 594; 92
S.J. 660; [1948] 2 All E.R. 908, C.A.
(35) West African Bakery v. Miezah [1972] 1 G.L.R. 78, C.A. [p.370] of [1972] 1 GLR 366
NATURE OF PROCEEDINGS
APPLICATION for an extension of time within which to appeal to the Supreme Court. The facts are
sufficiently stated in the ruling of Azu Crabbe J.S.C.
COUNSEL
J. B. Quashie-Idun for the applicants.
H.V.A. Franklin for the respondent.
JUDGMENT OF AZU CRABBE J.S.C.
The present application raises points of great importance. The history of this matter may be shortly stated. The applicants brought an action in the High Court, Kumasi, against one S. Zacca, claiming payment of sums of money due and payable under a hire-purchase agreement between the applicants and Zacca for the purchase of a tractor. The applicants had, in the meantime, seized the tractor for default in the payment of the instalments under the hire-purchase agreement. Zacca disputed liability on the ground that to the knowledge of the applicants he was only a nominal party to the hire-purchase agreement, and that the real party was one B. M. Zacca, the respondent herein, who joined the suit as a third Party. B. M.
Zacca did not dispute liability under the hire purchase agreement, but he counterclaimed for damages for unlawful seizure of the tractor by the applicants. The leaned trial judge dismissed the applicants’ claim but awarded B. M. Zacca damages.
The applicants appealed to the former Court of Appeal against the decision concerning (i) the existence and breach of an agreement varying the original one and (ii) the damages, as being excessive and wrong in law. The respondent also appealed (i) against a finding by the learned trial judge that he was under a duty to mitigate his damage and (ii) that the damages awarded were inadequate. On 15 August 1969 the Court of Appeal dismissed the applicants’ appeal, but allowed the respondent’s appeal on the issue of damages. The damages awarded were varied to read N¢49,600 instead of N¢24,000 (£12,000). On 22 August 1969, that is to say exactly one week after the dismissal of the applicants’ appeal, a new Court of Appeal came into being by virtue of article 102 (4) of the Constitution of the Republic of Ghana, 1969.
Subsequently, the applicants paid to the respondent the sum of N¢30.000.00 in partial satisfaction of the damages awarded in the appeal. The applicants then applied to this new court, under rule 33 of the Supreme Court Rules, 1962 (L.I. 218.), for a review of the judgment delivered on 15 August 1969. Rule 33 provides that, “The Court shall not review any judgment once given and delivered by it save where it is satisfied that the circumstances of the case are exceptional and that in the interest of justice there should be a review.” This application was on 20 June 1970 refused with costs, and the applicants, having failed to prevent the respondent from levying execution for the balance of the judgment debt, duly paid to the respondent the balance of the judgment debt, together with the costs awarded.
On 21 August 1971 the present notice of motion was filed in this court, seeking an order extending the
time within which to appeal to the Supreme Court from the judgment dated 15 August 1969. The
principal ground of the application, as alleged in the accompanying affidavit, is that “the
[p.371] of [1972] 1 GLR 366 appeal will involve important principles of law upon which the pronouncement of the Supreme Court will be of some importance and in the interest of justice.”
Counsel for the applicants states that the application has been brought under rule 8 (4) of the Supreme Court Rules, 1970 (C.I. 13), which provides that, “An application for the extension of time within which to lodge an appeal in respect of a final decision shall not be made after the expiration of three months from the expiration of the period prescribed by this rule within which an appeal may be lodged.” Sub-rule (6) of rule 8 also provides:
“Subject to the provision of sub-rule (4) of this rule where a person has applied to the Court below for an extension of time within which to lodge a civil appeal and a period of not less than one month has expired since the time when the said application was made without the Court below having granted or refused the application, the applicant shall be entitled to move the Court to have the application determined by the Court.” It seems clear from the provisions of this sub-rule that in a proper case this application can be entertained by this court.
Counsel for the applicants submitted that the combined effect of reading article 105 (1) and article 125 (2) together is that a right of appeal was conferred on the applicants on 22 August 1969, when the Constitution came into force. Counsel further referred to section 13 (1) and (2) of Part IV of the First Schedule to the Constitution (hereinafter referred to as the Transitional Provisions), and argued that on 15 August 1969 when judgment was delivered by the former Court of Appeal, the applicants had a matter pending before that court, and this is covered by section 13 (1) of the Transitional Provisions. Section 13 provides as follows: “(1) Subject to the provisions of this section, legal proceedings pending immediately before the coming into force of this Constitution before any Court, including civil proceedings by or against the Government, shall not be affected by the coming into force of this Constitution and may be continued accordingly. (2) Where at the commencement of this Constitution there is any matter for review before a full beach of the Court of Appeal in being immediately before any such commencement, that matter for review shall be deemed to be an appeal pending before the Supreme Court as established under the provisions of this Constitution. ”In support of his argument counsel cited the decision in Awoonor Renner v. Thensu (1930) 1 W.A.C.A.
77, where the court, following Fordham v. Clagett (1882) 20 Ch.D.637, C.A. held that the word
“pending” in section 14 (3) of the West African Court of Appeal Order-in-Council must be given a wide meaning, and that it included every matter in which any proceeding could by any possibility be taken. He urged that this court should give the words “legal proceedings pending” in section 13 (1) the same meaning. I think it would be helpful at this stage to quote [p.372] of [1972] 1 GLR 366 in extenso the passage from the judgment of Awoonor Renner v. Thensu (supra) at p. 78 upon which
counsel for the applicants places so much reliance:
“A clear answer to this question is found in the judgment of Jessel M.R. in Fordham v. Clagett, 20 Ch.D. at page 653, The passage runs ‘Then the 15th section says: “For the purpose of winding up and terminating all matters which at the commencement of this Act may be pending in the late Insolvent Debtors Court, etc., the following provisions shall have effect.” What is the meaning of the word “pending” ? In my opinion it includes every insolvency in which any proceeding can by any possibility be taken. That I think is the meaning of the word “pending” … A cause is said to be pending in a Court of Justice when any proceedings can be taken in it. That is the test. If you can take any proceeding it is pending. “Pending” does not mean that it has not been tried. It may have been tried years ago. In fact in the days of the old Court of Chancery, we were familiar with cases which had been tried fifty or even one hundred years before and which were still pending. Some times, no doubt, they require a process which we call reviving, but which the Scotch call waking up; but nevertheless they were pending suit, and all such causes have been transferred to the High Court of Justice under the words “causes which shall be pending” in the 22nd section of the Judicature Act 1873, when the word “pending” is used in this large sense’. ”By paragraph 7 (2) of the Courts Decree, 1966 (N.L.C.D. 84), the jurisdiction of the full bench of the former Court of Appeal consisted of a review and determination of a decision of an ordinary bench of that court. And the gist of the argument by counsel for the applicants was that after the judgment of the ordinary bench of the Court of Appeal on 14 August 1969, the applicants had a right of review by virtue of paragraph 7 (2) of the Courts Decree, 1966, and that this right was preserved under section 13 (1) of the Transitional Provisions and converted into a right of appeal.
For the respondent Mr. Franklin submitted that this court has no jurisdiction to entertain this application. He said that he did not wish to argue on the meaning of the word “pending” in section 13 (1), but he submitted that the questions which this court had to decide were: (1) Whether there was, in the words of section 13 (2), a matter for review before the full bench, and (2) whether the applicants had an undoubted right to bring an application for review between 15 August and 22 August amounting to “legal proceedings pending” in the words of the provision of section 13 (1) of the Transitional Provisions. Mr Franklin argued that combined effect of the provisions of section 13 (1) and (2) amounts to a definite pronouncement by the Constitution that where there had been a right to apply for a review and that right had been put into writing it is recognised by the Constitution, and it is considered as an application for appeal to the Supreme Court. If it had not been put into writing, it is no longer recognised. This, Mr. Franklin said, implied the application of the maxim expressio unius est exclusio alterius. Mr. Franklin finally contended [p.373] of [1972] 1 GLR 366 that even if his submission was wrong, and that that right remained, then there was no conversion of that right to a right of appeal.
It is conceded that the provisions of section 13 (2) of the Transitional Provisions do not apply to this case, and accordingly, Mr Franklin has urged upon the court to apply the maxim expressio unius est exclusio alterius and to hold that a right to apply for review does not amount to “legal proceedings pending” within the meaning of section 13 (1). This Latin maxim simply means that the expression of one person or thing implies the exclusion of other persons or things of the same class, but which are not mentioned. The maxim, it has often been said, must be applied with some degree of circumspection. Thus, in Colquhoun v. Brooks (1887) 19 Q.B.D. 400, Wills J. said at p. 406:
“I may observe that the method of construction summarised in the maxim ‘Expressio unius exclusio atterius’ is one that certainly requires to be watched … The failure to make the ‘expressio’ complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind.”
When that case reached the Court of Appeal, Lopes L.J. also observed ((1888) 21 Q.B.D. 52 at p. 65,
C.A.): “The maxim ‘Expressio unius exclusio alterius,’ has been pressed upon us. I agree with what is said in the Court below by Wills, J., about this maxim. It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice.”
In reply to Mr. Franklin’s argument, Mr. Quashie-Idun contended that the maxim is only a mere aid to construction, and that, if its application leads to injustice, it ought not to be applied. As an illustration, Mr. Quashie-Idun said if the maxim were applied it would mean that the party in a case in which judgment was delivered a day before the Constitution came into force would be at a disadvantage, because there would be no time left for him to file an application for review so as to preserve a right of appeal for himself under the Constitution. Mr. Quashie-Idun said it would be unjust that a person who lost a case a month before the Constitution came into force should have a right to appeal, whilst the one who lost it a day before should be denied that right. But in my judgment one can only express sympathy for the losing party, for in spite of the criticisms against the maxim, it has been applied in numerous cases where the words of the enactment and the context impel its application: See Maxwell on Interpretation of Statutes (11th ed.), pp. 320-321, and Jones v. Director of Public Prosecutions [1962] A.C. 635, H.L. per Viscount Simonds at p. 658. In Dean v. Wiesengrund [1955] 2 Q.B. 120, C.A., also referred to by my brother Sowah, in which the maxim was relied upon, Jenkins L.J. said at pp. 130-131: [p.374] of [1972] 1 GLR 366 “The argument for the landlord is summed up in the maxim expressio unius exclusio alterius, which, applied
to the present case, is said to compel the conclusion that the express reference to the legal personal
representative of one of the parties excludes any implied reference to the legal personal representative of the other. But this maxim is, after all, no more than an aid to construction, and has little, if any, weight where it is possible, as I think it is in the present case, to account for the ‘inclusio unius’ on grounds other than an intention to effect the ‘exclusio alterius’.”
In all the three judgments of the court it was not only possible to account for the inclusio unius, but also to demonstrate that when the case was considered against the background of the general law the mere fact of the inclusion of the words “or his legal personal representative” after the word “landlord” and their omission after the word “tenant” was not sufficient ground for holding that the legislature intended to give a tenant a right of recovery without the ordinary incidence of such a right.
In this case subsection (2) of section 13 has made it plain beyond argument that it is only a pending
application for a review of a judgment given before the Constitution came into force that can operate asnan appeal. This is a specific provision conferring a right of appeal in a particular case, and it seems to me that the inclusio unius in subsection (2) cannot be accounted for on any other ground than that there is a deliberate intention to deny those who had not filed an application for review by 22 August 1969 the right of appeal. As is stated in Maxwell on Interpretation of Statutes (11th ed.), pp. 1-2: “. . . the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded ‘according to the intent of them that made it.’ If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature. The object of all interpretation of a statute is to determine what intention is conveyed, either expressly or impliedly, by the language used, so far as is necessary for determining whether the particular case or state of facts presented to the interpreter falls within it. ‘If there is one rule of construction for statutes and other documents, it is that you must not imply anything in them which is inconsistent with the words expressly used’. ”If I understand Mr. Quashie-Idun’s argument aright, he appears to be saying that the expression “legal proceedings pending” in subsection (1) covers his case, where no application for review had at all been filed, and subsection (2) is a specific provision which covers an application which had actually been filed before the Constitution came into force. For myself, I find great difficulty in understanding this argument.
How can it possibly be said that the expression “legal proceedings pending” encompasses the case of a person who had shown no intention of exercising a right to file an application, because he had no
opportunity to file it, but that the same [p.375] of [1972] 1 GLR 366 expression does not cover the case of a person who had actually filed an application for review before the coming into force of the Constitution so that it is necessary to make specific provision in the latter case?
Surely if the expression “legal proceedings pending” includes just a bare right to file an application, it
must, a fortiori, embrace an application which has actually been filed. It was not contended by Mr.
Quashie-Idun that subsection (2) was enacted ex abundantia cautela, or that its provisions are tautologous or mere surplusage. Giving this aspect of the matter the best consideration I can, I find the observations of Viscount Simon in Hill v. William Hill (Park Lane) Ltd. [1949] A.C. 530, H.L. most pertinent. He said at pp. 546-547: “[I]t is to be observed that though a Parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in the case of an Act of Parliament is not to be assumed. When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before.”
It is said that the application of the maxim in this case would work injustice or hardship. But an answer to that argument is that if the precise language of an enactment is clear and unambiguous it is the duty of the court to enforce it, though the result may be unjust, arbitrary or inconvenient. It is not the duty of the court to make the law reasonable, but to expound it as it stands. As Tindal C.J. said in Warburton v. Loveland(1831) 2 D. & C1. 480 at p. 489, H.L., “Where the language of an Act is clear and explicit, we must give effect to it whatever may be the consequence; for in that case the words of the statute speak the intention of the Legislature.”
In King-Emperor v. Benoari Lal Sarma [1945] A.C. 14, P.C. the question before the Privy Council was
whether an Ordinance of the Governor-General of India was intra vires, and Viscount Simon L.C. in
delivering the opinion of their Lordships, made this observation at p. 28, “Again and again, this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise which may follow from giving effect to the language used.”
In my view, it is only when there are alternative methods of construction that notions of injustice may be allowed to influence the interpretation. Here in this case I can see no other alternative construction in the language of section 13 than that under the Constitution only a pending application for review under paragraph 7 (2) of the Courts Decree, 1966 (N.L.C.D. 84), is recognised as conferring a right of appeal, and it is the inescapable duty of this court to give effect to the clear language used by section 13.
In my opinion, I do not think it is necessary, neither do I consider it desirable that such an important
question should be decided solely by an application of the maxim, which, in my judgment, clearly and aptly applies in this case. I will therefore deal with the first major submission by Mr.
[p.376] of [1972] 1 GLR 366 Quashie-Idun that the applicants acquired a right of appeal by the combined effect of article 105(1) and article 125. (2)Mr. Quashie-Idun referred us to an article entitled “Appellate jurisdiction of the Supreme Court: “Pending proceedings” in (1971) 3 R.G.L. pp. 158-163, in which the learned contributor comments on the ruling of Abban J. in the High Court in an application in this same case, but upon a different matter, and he adopted the views expressed in the article as part of his argument. The burden of this argument is contained in the following passage from pp. 161-162 from the article, which, though tedious to read by reason of its length, I think it is necessary to quote in extenso: “Article 125 (2) does not just determine the question of precedent. It also emphasises the true significance and the extent of the effect of the succession of the courts. Again if the old Court of Appeal decided a case and the aggrieved party decided to apply for a review of the decision it will be to the present Court of Appeal that the application should be made, provided the matter is dealt with by the same judges who decided the case in the old court…. Where real authority is scanty or completely non-existent is on the questions whether the new Court of
Appeal can actually preside over a review where the application has been granted and arguments from counsel are to be heard, a function formerly performed only by the Full Bench; and, whether cases from the ordinary bench of the old Court of Appeal can be sent on appeal to the existing Supreme Court. Article 125 does not provide an authority that the present Court of Appeal can review its own decision, or that of the former court, a function which could only be performed by the former Full Bench. The decision in Civil Motion 31/70 coupled with inferences from article 125 however appears to give an indication that the Court of Appeal under the Constitution can do both. The true implication of that ruling is that if only the present Court of Appeal has found the exceptional circumstances under Rule 33 of the Supreme Court Rules, 1962, the rules applicable now in the Court of Appeal, the court would have allowed the motion for a review. The justification of the fact that the new Court of Appeal found itself competent to give that ruling is in tune with the principle of succession of courts under article 125. Under the Courts Decree, 1966, the Full Bench would
have had to hear the review, but the Full Bench is gone. Only the court that decides a case can review it, and it stands to reason that the only tribunal which could review a Court of Appeal decision would be the Court of Appeal of three justices as provided under the Constitution, for it is the present Court of Appeal which succeeded the defunct Court of Appeal.
As it has just been indicated, the right of the present Court of Appeal to preside over decisions of the defunct Court of Appeal on applications for review stems from the principle of succession of courts declared by article 125. Also, as it has been pointed out, [p.377] of [1972] 1 GLR 366
one of the aspects of the significance of article 125, is that the successor courts stretch their arms across the barrier of time, draw the old cases over and put them into the stream of the present legal system established by the Constitution. ”It seems to me that this argument derives great inspiration from the ruling of this court (constituted by Akufo-Addo C.J., Apaloo J.A. (as they then were) and Lassey J.A.) in Civil Motion No. 31/70. The application in that case was made under rule 33 of the Supreme Court Rules 1962 (L.I. 218), which does not prescribe any time limit for making an application. It ought to be noted that the grounds upon which the review of a judgment could be granted under paragraph 7 (2) of the Courts Decree, 1966 (N.L.C.D.
84), were quite different from those under rule 33. Again review under paragraph 7 (2) was a special
power reserved for the full bench, whereas rule 33 could be invoked in an application either to the
ordinary bench to review its own previous judgment or to the full bench also to review its own previous judgment. A full bench, for example, could review its own judgment given under paragraph 7 (2) upon an application under rule 33.
I have not been able to discover the actual grounds upon which the court entertained the application in Civil Motion No. 31/70 apart from the fact that the court must have considered itself the successor of the old Court of Appeal by virtue of article 105 (2), and, therefore, entitled to treat judgments of that court as its own. But, with all due respect, a judgment delivered by the old Court of Appeal was final and it brought every proceeding to an end. And leaving aside review under paragraph 7 (2) for the moment, unless there was pending before the old Court of Appeal on 22 August 1969 an application for review under rule 33, there would be no “legal proceedings pending” which the present court can bring forward and deal with. If it were otherwise, the gate would be wide open for all cases decided before 22 August 1969 to be reviewed: See Eyre v. Wynn-Mackenzie [1896] 1 Ch. 135, C.A. I totally reject the argument that the present Court of Appeal has, by virtue of article 125 (2), inherited a power of review similar or analogous to that conferred on the old Court of Appeal by paragraph 7 (2), as well as the appellate jurisdiction of the old Court of Appeal. It is now trite learning that an appellate court has no inherent jurisdiction to entertain an appeal from an order or decision given by a court below. In all causes or matters an appeal lies only if given by statute: See Amponsah v. Minister of Defence [1960] G.L.R. 140 at p. 146, C.A. The present Court of Appeal has no greater jurisdiction than that given it under article 105 of the Constitution, and this can not be enlarged to include power to review its own judgments in the same terms as paragraph 7 (2). I also reject any argument that by virtue of the principle of succession, judgments of the old Court of Appeal become judgments of the present Court of Appeal. By article 172 (1) of the Constitution, the word “Court” means a court of competent jurisdiction established by or under the authority of the Constitution; and the word “judgment” includes an order or decree of such [p.378] of [1972] 1 GLR 366 court. By paragraph 6 of the Constitution (Consequential and Transitional Provisions) Decree, 1969 (N.L.C.D. 406), the Supreme Court Rules, 1962 (L.I. 218), continued to regulate proceedings in the Court of Appeal, and despite the repeal of paragraph 6 of N.L.C.D. 406, the Supreme Court Rules, 1962, still continue to apply to the present Court of Appeal by virtue of section 114 (3) of the Courts Act, 1971 (Act 372). The Supreme Court Rules, 1962, will therefore have to be read together with article 105 of the Constitution. It seems obvious to me that the words “court” and “judgment” in rule 33 of the Supreme Court Rules, 1962, must, since the promulgation of the Constitution, be given the meanings ascribed to them in article 172 (1) of the Constitution.
It is a fundamental principle in the construction of statutes that they operate only on cases and facts which came into existence after the statute was passed, unless a retrospective effect is clearly intended. It is also a well-recognised principle that a statute is not to be construed to have greater retrospective operation than its language renders necessary. Thus article 105 is, beyond doubt, intended to be prospective in its operation, and there is nothing within its provisions that it is to have retrospective effect. It seems to follow, since article 105 has no retrospective operation, that, prima facie, under rule 33 the present Court of Appeal can only review its own judgment. The only authority which this court has to review a judgment of its predecessor is section 13 (1), if an application for review under rule 33 was already pending before the old Court of Appeal at the coming into force of the Constitution. In Civil Motion No.31/70, the court there was not dealing with a pending application, and, consequently, I am of the opinion that its ruling on the application was, with all due respect, given per incuriam. I am satisfied that had the court’s attention been drawn to the definitions of “court“ and “judgment“ in article 172 of the Constitution and their application to the same words in article 105 and rule 33 of the Supreme Court Rules, 1962, it would have refused to review the judgment of the old Court of Appeal dated 15 August 1969.
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. Thus, the High Court created under the Constitution shall, as successor of the old High Court, continue a case begun before 22 August 1969 and apply the law as it existed before that date, and section 13 (1) clearly states that the legal proceedings pending “shall not be affected by the coming into force of this Constitution.” Again, where an Act is passed between the trial of an action and the hearing of an appeal, that Act will be taken into account at the appeal, though, unless it is retrospective in effect, it will not affect the rights of the parties:
See Colonial Sugar Refining Co. v. Irving [1905] A.C. 369, H.L. The Court of Appeal cannot in the
ordinary way take into account a statute which has been enacted in the interval since the same was
decided at the court below, because the rights of litigants [p.379] of [1972] 1 GLR 366 are generally to be determined according to the law in force at the date of the earlier proceedings: See In re a Debtor (No. 490 of 1935) [1936] Ch. 237, C.A.; New Brunswick Railway Co. v. British and French Trust Corporation Ltd. [1939] A.C. 1, H.L. It is only when the statute is retrospective, that is to say, (a) it
expressly applies to pending actions, (b) it applies to pending actions by necessary intendment and (c) it is retrospective in operation as a matter of construction, that the Court of Appeal will be justified in giving effect to this retrospective intent: See Attorney-General v. Vernazza [1960] A.C. 965, H.L. As I have already said, it is a well-known principle that a statute is not to be construed so as to have a greater retroactive effect than its language renders necessary.
It seems to me that when article 125 (2) says that the Court of Appeal established under the provisions of clause (4) of article 102 of the Constitution shall be the successor of the old Court of Appeal, it only means that the new Court of Appeal will continue to hear and determine any pending appeals and all matters connected with such appeals, which the old Court of Appeal was unable to determine before it was abolished by the Constitution. And since an appeal is by way of rehearing the new Court of Appeal, like its predecessor, is bound to apply the law in force at the date of the judgment or order appealed from.
Judgments delivered before 22 August 1969 are final and conclusive as between the parties, and are
completely outside the purview of article 105. Such judgments cannot be “legal proceedings pending”
within the context of section 13 (1), and consequently I cannot see any authority in the general law, or
under the Constitution, for the statement that “the Constitution did not entirely abolish the courts but merged the old into the new and created a new hierarchy of courts” or that “the successor courts stretch their arms across the barrier of time, draw the old cases over and put them into the stream of the present legal system established by the Constitution.” I agree with the pronouncement of the majority in Awoonor-Williams v. Gbedemah, Court of Appeal sitting as the Supreme Court, 8 December 1969, unreported; digested in (1970) C.C.18, that the Constitution has no retrospective effect on Decrees passed by the National Liberation Council or matters lawfully transacted under them. The majority then aptly illustrated this pronouncement, albeit in an obiter dictum, as follows:
“Before the Constitution, 1969, came into force, the court of final resort in Ghana was the Court of Appeal.
Judgments delivered by that court on or before 22 August 1969, were final for all purposes. When the
Constitution came into force on 22 August, one further appellate court — Supreme Court — was created which replaced the Court of Appeal as the court of final resort. Judgments delivered by the Court of Appeal on or after 22 August 1969 are appealable in certain specified cases to the Supreme Court but any findings orconclusions reached by the appeal court before 22 August remain wholly untouched by the provisions of the Constitution. Thus, a man whose conviction for fraud was affirmed by the Court of Appeal on 21 August 1969 will suffer the disqualification imposed by article
[p.380] of [1972] 1 GLR 366 71 (2) (c) of the Constitution, whereas if his appeal had been disposed of on 23 August, he will be entitled, if his original conviction had been in the High Court, to appeal to the Supreme Court. ”I think this illustration states clearly and accurately the distinction between, and effect of the Constitution on judgments delivered on or before 22 August 1969 and judgments given after that date. These views of the majority of the specially constituted Supreme Court in Awoonor-Williams v. Gbedemah (supra) are of very high persuasive authority, and on this particular point I entirely concur in them. The primary function of the courts in the interpretation of the Constitution is to give effect to precise words used in that document and not to rewrite the Constitution.
A party who has lost a case in a court whose decision is final cannot avail himself of a right of appeal
created by an enactment subsequent to that decision, unless the new enactment is retrospective in its
effect and is declared to affect judgments already given: See In re Okine [1960] G.L.R. 267, S.C. per
Granville Sharpe J.S.C. at pp. 268-269. In Eyre v. Wynn — Mackenzie [1896] 1 Ch. 135, C.A. to which I have already referred, the plaintiff (a solicitor-mortgagee) was held by a judgment dated 28 November 1893 not to be entitled to charge profit costs against his mortgagor. He did not appeal within the time limited by the Rules of Court, and on 6 July 1895 the Mortgagees Legal Costs Act, 1895 (58 & 59 Vict., c. 25), was passed which altered the previous law by conferring on a solicitor the right to charge profit costs. The plaintiff (solicitor-mortgagee) thereafter applied to the Court of Appeal for an extension of time for appealing against the judgment of 28 November 1893. It was contended on his behalf, (i) that section 3 of the new Act was retrospective; (ii) that if the action had been commenced after the passing of the Act, or if it had been commenced before but had not been tried till after, he would have been entitled to charge these profit costs; (iii) that no proceedings had been taken under the judgment, though it had been drawn up; (iv) that no injustice would be done to the defendants by enlarging the time for appealing; and (v) it would be reasonable that the solicitor should have the benefit of the altered law. These arguments were rejected, and the court held that the Mortgagees Legal Costs Act, 1895, was not intended to affect judgments given before it was passed, and that there was no ground for extending the time.
Delivering the judgment of the court Lindley L.J. said at p. 137, “It is obvious that the Act was not
intended to interfere with judgments which had already been given by the Court. If we give leave to
appeal in this case, we should be reopening all judgments of a similar kind which had been given prior to the passing of the Act. We cannot do that.”
In my view, the applicants in this case are taking the same stand as the plaintiff in Eyre v.
Wynn-Mackenzie (supra), and I hold that the combined effect of article 125 (2) and article 105 does not invest the applicants with any right of appeal under the Constitution as is being contended on their behalf.
Article 105 effected an alteration in the substantive law, and since it has not, either expressly or by clear implication, been made [p.381] of [1972] 1 GLR 366 retrospective, it cannot be construed retrospectively so as to interfere with rights that had been conclusively determined by a judgment delivered before the Constitution came into force on 22 August 1969; See Carson v. Carson and Stovek [1964] 1 W.L.R. 511. The crucial question in this application is: Had the applicants any right to appeal which was preserved by section 13 (1) of the Transitional Provisions? If they had no such right, then the question of extending time within which to appeal does not arise.
The critical issue, therefore, on this aspect of the case depends upon the proper construction of section 13 (1). The applicants contend that the subsection preserves for them a right of appeal to the Supreme Court, especially when it is read jointly with subsection (2). Counsel for the respondent argues the contrary. It is a principle in the interpretation of statutes that where the language of an Act is ambiguous and difficult to construe the court may call in aid in its construction the rules made under the provisions of the Act. As was said in the joint-judgment of the court in Ex parts Wier (1871) L.R. 6 Ch. App. 875 at p. 879: “[I]f the question had depended upon the Act alone we should have had great doubt what the proper construction was; but we are of opinion that, where the construction of the Act is ambiguous and doubtful on any point, recourse may be had to the rules which have been made by the Lord Chancellor under the authority of the Act. and if we find that in the rules any particular construction has been put on the Act, that it is our duty to adopt and follow that construction. ”See also Attorney-General v. De Keyser’s Royal Hotel [1920] A.C. 508, H.L. per Lord Moulton at p. 551.
The Supreme Court Rules, 1970 (C.I. 13), were made under power conferred upon the Rules of Court
Committee by the provisions of article 121 of the Constitution. Rule 72 of the Supreme Court Rules,
1970, provides as follows: “(1) Subject to the provisions of subsection (2) of section 13 of Part IV of the First Schedule to the Constitution, and notwithstanding any other provisions of these Rules, the right of any person to bring an action in, or to appeal to, the Court in any cause or matter, civil or criminal, conferred by the Constitution or by any other law which has accrued at any time, (a) after the coming into force of the Constitution; and (b) before the coming into force of these Rules,
shall be deemed, for the purposes of these Rules, to have accrued on the coming into force of these Rules. (2) Pursuant to the provisions of the immediately preceding sub-rule the time within which any such person may bring an action in, or to appeal to, the Court shall be calculated from the date of the coming into force of these Rules. ”The applicants are clearly under a duty to show the nature of their right which was preserved by section 13 (1). For the applicants it has been [p.382] of [1972] 1 GLR 366 contended that “pending” in that section must, on the authority of Awoonor Renner v. Thensu (supra), be given a wide meaning to include the applicants’ right to apply for a review under paragraph 7 (2) of the Courts Decree, 1966. In Salt v. Cooper (1880) 16 Ch.D. 544, C.A. Jessel M.R. when explaining the phrase “cause or matter pending” within the meaning of section 24 (7) of the Supreme Court of Judicature Act, 1873 (36 & 37 Vict., c. 66), said as follows at p. 551: “A cause is still pending even though there has been final judgment given, and the Court has very large powers in dealing with a judgment until it is fully satisfied. It may stay proceedings on the judgment, either wholly or partially, and the cause is still pending, therefore, for this purpose, as it appears to me, and must be considered as pending, although there may have been final judgment given in the action provided that judgment has not been satisfied. ”The action in that case was for a money demand in which the plaintiff asked the court to compel the defendant, by means of legal process, to pay what was due to him. As the Master of Rolls said at pp. 551-552: “The question in dispute in such an action may sometimes be the amount due, but it more often is the mode of obtaining payment. That being so, the Court gives judgment against the defendant, by which it declares and ascertains the amount due, and orders the defendant to pay it. The defendant disobeys the order of the Court, and then the Court is asked to compel him to pay; and the only mode which, as a general rule, the law now recognises of compelling him to pay, is by taking away his property, realising it, and applying the
proceeds in payment of the plaintiff’s demand. I leave out of consideration the exceptional case of
attachment, because, as a general rule, that is not the mode necessary to be adopted. The mode I have stated of compelling payment, we call execution; it is the obtaining in some shape or other, by legal process, possession of the defendant’s lands or goods, selling them, paying the consequent expenses, and out of the proceeds paying the demand. This mode of enforcing payment seems to me to be plainly ‘proceeding in the cause or matter’ and the claim brought forward by the plaintiff that he may be paid the amount of his demand out of the proceeds of the goods or lands of his debtor, when the possession of or title to those lands or goods is disputed, is certainly a ‘claim brought forward’ — and I should say ‘properly brought forward’ in the cause or matter’.”
What the Master of Rolls decided in the case was that so long as a final judgment in an action remains unsatisfied, the action is a “cause or matter pending” within the meaning of section 24 (7) of the Judicature Act, 1873, so that in an action by a creditor against a debtor in which the plaintiff had obtained final judgment, the court had power under the subsection, in order to satisfy the judgment, to grant equitable execution against the defendant by appointing a receiver upon a motion in that action. [p.383] of [1972] 1 GLR 366 In The Dictionary of English Law by Earl Jowitt, p. 1325, the word “pending” is defined as follows: “An action, arbitration or other proceeding is said to be pendent after it has been commenced and before the final judgment or award has been given. Pendency is the state of being pendent.” Whether the word “pending” in section 13 (1) is given a wide meaning as in Awoonor Renner v. Thensu (supra), or a restricted meaning as defined in Earl Jowitt’s, The Dictionary of English Law, the inference can legitimately be drawn, when article 105 and rule 72 of the Supreme Court Rules, 1970 (C.I. 13), are read together, that a party seeking to avail himself of the subsection must establish, in terms of rule 72 of the Supreme Court Rules, 1970, a right to bring an action in, or to appeal to, the Supreme Court. This right must be conferred by the Constitution or by any other law, and it must be an accrued right after the coming into force of the Constitution and before the coming into force of the Supreme Court Rules, 1970.
The only right which the applicants alleged they had after the judgment of 15 August 1969 and which
forms the basis of the present application was the right to apply for review of that judgment under
paragraph (2) of Courts Decree, 1966 (N.L.C.D. 84). Such review and determination were conditional
either upon (i) leave being granted by the ordinary bench or the full bench or (ii) it appearing to the full bench that there had been a miscarriage of justice “upon a decision of an ordinary bench.” Thus the power of the full bench to review a judgment of the ordinary bench was purely discretionary. Therefore, the party who applies for a review only had a hope or the expectation that the judgment against him would be reviewed.
The law draws a distinction between the existence of an accrued or acquired right, and the existence of the machinery whereby that right may be acquired. In Abbott v. Minister for Lands [1895] A.C. 425, P.C. the question was whether a man who had purchased certain land was entitled to exercise a right to make additional purchases of adjoining land under the powers conferred by a repealed Act, the repealing Act containing the usual saving clause. The Privy Council held that he was not, and delivering the opinion of the Board, the Lord Chancellor said at p. 431:
“It has been very common in the case of repealing statutes to save all rights accrued. If it were held that the effect of this was to leave it open to any one who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far-reaching.
It may be, as Windeyer J. observes, that the power to take advantage of an enactment may without
impropriety be termed a ‘right.’ But the question is whether it is a ‘right accrued’ within the meaning of the enactment which has to be construed.
Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words ‘obligations incurred or imposed.’ They think that the mere right (assuming it to be properly so called) existing in the members [p.384] of [1972] 1 GLR 366
of the community or any class of them to take advantage of an enactment, without any act done by an
individual towards availing himself of that right, cannot properly be deemed a ‘right accrued’ within the meaning of the enactment. ”In Reynolds v. Attorney-General for Nova Scotia [1896] A.C. 240, P.C. the appellants had a licence under a section of a statute, and, after a repeal of the section, they applied under the same section for a renewal of their licence. It was contended on the part of the appellants that the repealing enactment ought not to be construed so as to have the effect of taking away their right under the repealed section. It was, however, held by the Privy Council that at the date of the application to renew, the power to grant it was gone, for even if the amending Act were so construed as not to interfere with vested rights, the appellants possessed under the repealed section a privilege to get an extension but no accrued right.
In Hamilton Gell v. White [1922] 2 K.B. 422, C.A. the right had accrued or had been acquired before the repeal. The action in that case was between a landlord and a tenant under the Agricultural Holdings Act, 1908 (8 Edw. 7, c. 28). The landlord, who was contemplating a sale of the property, gave the tenant notice to quit, and the tenant thereby became entitled to compensation upon the terms, and subject to the conditions, of section 11 of the 1908 Act. The tenant then gave the landlord notice of his intention to claim compensation under section 11 of the Act. One further condition was that the claim for compensation should be made within three months after quitting the holding. Before the time for him to quit arrived, a new Act, the Agricultural (Amendment) Act, 1920 (10 & 11 Geo. 5, c. 17), came into force and repealed section 11 of the Act of 1908. The tenant nevertheless made his claim within three months limited by the section. It was held that notwithstanding the repeal the tenant was entitled to compensation, for as soon as the landlord, in view of a sale of the property, gave the tenant notice to quit the tenant “acquired a right” to compensation for disturbance under section 11, subject to his satisfying the conditions of that section. Distinguishing Abbott v. Minister for Lands (supra) in that case Bankes L.J. said at p. 428: “In my opinion the tenant had acquired a right under s. 11 of the Act of 1908. This is not like the case which was cited to us in argument where the tenant’s right depended upon some act of his own. Here it depends upon the act of the landlord—namely, the giving of a notice to quit in view of a sale—in which event the
section itself confers a right to compensation subject to the tenant complying with the conditions therein specified, and so far as it was possible to comply with them down to the time when the section was repealed he did in fact comply with them. ”See also Heston and Isleworth Urban District Council v. Grout [1897] 2 Ch. 306, C.A. The case of Director of Public Works v. Ho Po Sang [1961] A.C. 901, P.C. is the most recent in which all the previous authorities were reviewed. The [p.385] of [1972] 1 GLR 366 plaintiffs, who were tenants of certain property in Hong Kong, brought an action against the Director of Public Works and the second defendant who held a Crown lease in respect of the property. He had applied in 1950 for a renewal of his lease, which expired in 1951. The new terms provided, inter alia, that the lessee was to develop the site within a certain time, and that he was then to have a new lease for a period of 75 years from 1951. Before the lessee could demolish the existing buildings he was entitled to call upon those in occupation to quit so that he could have vacant possession. There were provisions in the then existing Landlord and Tenant Ordinance of Hong Kong which enabled the Director of Public Works to give a rebuilding certificate. The lessee applied for a rebuilding certificate and on 20 July 1956, the director notified him of intention to give a certificate. Thereupon the lessee served notices of the director’s intention on the tenants, who appealed by way of petition to the Governor in Council, and the lessee cross-petitioned. By the Landlord and Tenant (Amendment) Ordinance. 1957, which came into force on 9 July 1957, the provisions enabling the director to issue a rebuilding certificate were repealed.
By that date no decision had been taken by the Governor in Council in regard to the petition and
cross-petition. On 12 October 1957, however, the director purported to give the lessee a rebuilding
certificate, and the latter also served notice to quit on all persons in occupation. The question at issue was whether, despite the repeal, the director had legal authority to issue a rebuilding certificate. The trial judge held that the lessee had acquired a right within section 10 (c) of the Interpretation Ordinance to have his claim, and accordingly the rebuilding certificate was validly given and that the lessee was entitled to vacant possession. On appeal, the Supreme Court of Hong Kong, allowing the appeal, held that the fact that there had been an application for a rebuilding certificate did not give the lessee a “right” to the continuance of the procedure after its repeal; for at the time of the repeal the lessee had a mere hope or expectation of obtaining a rebuilding certificate, and the fact that the director had given notice of his intention to issue it did not give the lessee a right. The Privy Council affirmed the judgment of the Supreme Court of Hong Kong, and in a judgment delivered by Lord Morris of Borth-y-Gest it held that the fact that the director had given notice of his intention to issue notice did not give a right to the lessee.
On 9 April 1957 the lessee did not and could not know whether he would or would not be given a
rebuilding certificate; he had not an accrued right to vacant possession. On this aspect of the case Lord Morris said at pp. 920-921: “In the present case the position on April 9, 1957, was that the lessee did not and could not know whether he would or would not be given a rebuilding certificate. Had there been no repeal, the petitions and cross-petition would in due course have been taken into consideration by the Governor in Council.
Thereafter there would have been an exercise of discretion.
The Governor would have directed either that a certificate be given or be not given, and the decision of the Governor in Council [p.386] of [1972] 1 GLR 366 would have been final. In these circumstances their Lordships conclude that it could not properly be said that on April 9 the lessee had an accrued right to be given a rebuilding certificate. It follows that he had no accrued right to vacant possession of the premises. It was said that there were accrued rights to a certificate,
and consequently to possession, subject only to the risk that these rights might be defeated, and it was said that in the events that happened the rights were not defeated. In their Lordships’ view such an approach is not warranted by the facts. On April 9 the lessee had no right. He had no more than a hope that the Governor in Council would give a favourable decision.”
The Board also rejected an argument on behalf of the lessee that even if he did not have an accrued right to a certificate he nevertheless had an accrued right to have the matter taken into consideration by the Governor in Council. With regard to this contention Lord Morris said at pp. 921—922:
“Was the lessee therefore possessed on April 9 of a ‘right’ (or privilege) within the meaning of the
Interpretation Ordinance? In their Lordships’ view the entitlement of the lessee in the period prior to April 9 to have the petitions and cross-petition considered was not such a ‘right’. On April 9 the lessee was quite unable to know whether or not he would be given a rebuilding certificate, and until the petitions and cross-petition were taken into consideration by the Governor in Council no one could know. The question was open and unresolved. The issue rested in the future. The lessee had no more than a hope or expectation that he would be given a rebuilding certificate even though he may have had grounds for optimism as to his prospects … It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not. Their Lordships agree with the observation of Blair-Kerr J. that: ‘It is one thing to invoke a law for the adjudication of rights which have already accrued prior to the repeal of that
law; it is quite another matter to say that, irrespective of whether any rights exist at the date of the repeal, if any procedural step is taken prior to the repeal, then, even after the repeal the applicant is entitled to have that procedure continued in order to determine whether he shall be given a right which he did not have when the procedure was set in motion’. ”The position in the present case is that before 22 August 1969 when the Constitution came into force, the applicants were entitled to invoke the procedural machinery under paragraph 7 (2) of the Courts Decree, 1966, for a review of the judgment of 15 August 1969. The granting of [p.387] of [1972] 1 GLR 366 review was in the discretion of either the ordinary bench or the full bench, and until that discretion was exercised in the applicants’ favour they had no right of review. A review under paragraph 7(2) was not an
appeal. Section 13(2) of the Transitional Provisions expressly provides that a pending application for
review under paragraph 7(2) should confer a right of appeal on the application. But for this specific
saving provision an application for review which was pending before 22 August 1969 would have
conferred no right of appeal to the Supreme Court.
In my opinion the applicants did not have before the coming into force of the Constitution on 22 August 1969 any accrued right to a review, or to appeal further, after the former Court of Appeal had given its decision on 15 August 1969. The entitlement of the applicants to apply for a review did not, in my judgment, confer any substantive right capable of being preserved by section 13 (1).
Finally, it is said that the full bench of the old Court of Appeal was a separate appellate court in disguise.
With respect, I think this argument is untenable, and it was rejected outright by a full bench of the old Court of Appeal itself in F. Y. Asare v. The State, Court of Appeal, 15 January 1968, unreported; digested in (1968) C.C. 62. It is not open to the court to go behind what has been enacted and to inquire how it came to be made: See Hoani Te Heuheu Tukino v. Aotea District Maori Land Board [1941] A.C. 308, P.C. and also, the beliefs and assumptions and private views of those who frame the law cannot be taken as the law: see I.R.C. v. Dowdall, O’Mahoney & Co., Ltd. [1952] A.C. 401 at p. 426, H.L. per Lord Radcliffe. The intention of an enactment cannot be assumed apart from the language used. The former Court of Appeal which was created by paragraph 1 of the Courts Decree, 1966 (N.L.C.D. 84), was the final court in this country. It consisted of (a) an ordinary bench comprising three Justices of Appeal, or (b) a full bench comprising five Justices of Appeal: See paragraph 6 (1) of the Courts Decree, 1966. The jurisdiction of the full bench is described in sub-paragraph (2) of paragraph 7 as follows: “(a) a review and determination of a decision of an ordinary bench of such Court —
(i) upon a question of law alone; and
(ii) upon an ordinary or full bench of such Court giving leave for such review and determination;
(b) a review and determination of any other decision of an ordinary bench of such Court where it appears to a full bench of such Court that there has been a miscarriage of justice.
This jurisdiction shall not be exercised by an ordinary bench of such Court.”
As a matter of pure construction, I think that the phrases “a decision of an ordinary bench of such Court,” “an ordinary or full bench of such Court” appearing in paragraph (2), as well as the phrase “The Court of Appeal, [p.388] of [1972] 1 GLR 366whether sitting as a full or ordinary bench” in paragraph 21 (2) of the Courts Decree, 1966 (N.L.C.D. 84), provide cogent intrinsic evidence that the full bench and the ordinary bench constituted one final Court of Appeal in Ghana and that the full bench was not by itself alone a separate higher appellate tribunal, notwithstanding that its jurisdiction was more slightly enchanced than the ordinary bench. In Asare v. The State, Court of Appeal (full bench) 15 January 1968, unreported; digested in (1968) C.C. 62, the full bench itself  stated the position vividly as follows: “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 ordinary bench albeit given in a review, is a decision of the court. The full bench of aCourt 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. 239. 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 that ‘the Court of Appeal shall be bound in principle to follow its own previous decision on a question 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 same court whether constituted by the ordinary bench or by the full bench. ”When the Courts Decree, 1966 (N.L.C.D. 84), is read as a whole and a construction is made of all the parts together, it becomes obvious that the word “review” in paragraph 7 (2), and the word “appeal” appearing in other parts of the Decree were not used interchangeably. “Review” was a special power given to the full bench to reconsider the decision of the ordinary bench on particular points of law. It was strictly not a rehearing of the appeal, but a procedure by which the Court of Appeal was enabled to correct its own errors on points of law. Appellate jurisdiction is the power of a superior court to review the decision of an inferior court, and it is clear from the Courts Decree, 1966, that whenever a right of appeal was conferred it was an appeal from the decision of one court to another higher court. It would therefore be doing great violence to the language of [p.389] of [1972] 1 GLR 366 the Decree for anyone to say that he had a right of appeal from a decision of the ordinary bench to the full bench of the Court of Appeal.
Consequently, I hold that the applicants have no right of appeal, and that the application for extension of time ought to be refused.
JUDGMENT OF SOWAH J.A.
This is an application for extension of time within which to appeal to the Supreme Court, brought under rule 8 (4) of the Supreme Court Rules, 1970 (C.I. 13), by the applicant-company.
The short history of this matter is that on 15 August 1969, almost exactly a week to the coming into force of the Constitution, 1969, judgment was delivered against the applicant-company by the Court of Appeal created under the Courts Decree, 1966 (N.L.C.D. 84). The applicant company applied unsuccessfully to have that judgment reviewed by this court under rule 33 of the Supreme Court Rules. This court heardarguments on the application and held:
“The application is without any merits. The points raised and argued are points that can very properly be raised on an appeal. The applicant has not been able to satisfy us that there are any exceptional circumstances in this case which would call for a review under rule 33 of the Rules of the Supreme Court. ”The failure of the application is not of much relevance to this application; the significance of the ruling, however, is that, the court entertained the application, indicating it had jurisdiction. In other words, it felt able to entertain an application for review of a judgment delivered by its immediate predecessor. The applicant-company now seeks an extension of time to appeal from the whole of the judgment under and by virtue of the provisions of rule 72 of the Supreme Court Rules, 1970 (C.I. 13). Though the right to appeal to the Supreme Court in civil matters conferred by the Constitution, 1969, came into force on 22 August 1969, there were no procedural rules enacted with it until 23 February 1971, when the Supreme Court Rules were promulgated.
Until this date therefore, an aggrieved party could not exercise the right of appeal which he had. It is to such accrued rights that rule 72 of the Supreme Court Rules, 1970, was incorporated; such right
would be deemed to have accrued from the time of coming into force of the Rules and time would begin to run as from that date.
The issue which has arisen in this application is whether or not the applicant-company has a right of
appeal under the Constitution; on the answer to this question hangs the whole of the application.
As already observed, the judgment for which an extension of time to appeal is being sought was delivered a week before the coming into force of the Constitution. There is no room for argument that the applicant company would have had a right of appeal if that judgment had been delivered on or after 22 August 1969, the value of the subject-matter being over N¢30,000.00, and the only question which would have arisen would be whether this court would be disposed to exercise its discretion in [p.390] of [1972] 1 GLR 366 extending time. The applicant-company contends that it has a right of appeal and the respondent maintains that this court has no jurisdiction to entertain the application at all.
Before embarking upon a detailed discussion, it is necessary to preface it by saying that it is the manifest intention of the Constitution to provide within defined limits a further forum of appeal, see articles 105 and 106 of the Constitution. In considering these articles pertaining to appeals and rights of appeal to the Supreme Court, this court ought to lean towards such interpretation as will convey the intention into effect unless, of course, there are express provisions to the contrary. Judicial notice ought to be taken that shortly before the coming into force of the Constitution several cases were heard by the Court of Appeal created under the Courts Decree, 1966 (N.L.C.D. 84); judgments in some were delivered before 22 August 1969, while others were read after the effective date. The order of their delivery did not depend upon the dates or order upon which they were heard, but upon the fortuitous circumstance that those which were ready were read before and the others at a time subsequent to 22 August 1969.
The respondent draws a date-line and maintains that there is no right of appeal from judgments delivered by the Court of Appeal immediately before the date-line except where the applicant had filed a notice for review. Thus, if two appeals were heard on the same date, say 1 August 1969, and one had judgment delivered on 21 August while the second judgment was read on 22 August, the later judgment could be appealed against while the losing party in the earlier case lost his right of appeal. it seems justice demands parity of treatment. Though, perhaps not very apt, one cannot but help recall the ancient maxim “Equality is Equity”; It seems desirable to place such construction on the relevant articles, which would meet the test of equality of treatment or, at least, of opportunity.
The courts, before the coming into force of the Constitution, were the creation of the Courts Decree, 1966 (N.L.C.D. 84). The highest court of the land was the Court of Appeal consisting of its ordinary bench and the full bench, see N.L.C.D. 84, para. 6. On the coming into force of the Constitution, there was a demise of the courts including, of course, the superior courts created under the Courts Decree, 1966 (N.L.C.D.
84), and but for the combined effect of the provisions of article 125 and section 13 of Part IV of the
Transitional Provisions of the Constitution, all cases before the courts as at 22 August 1969 pending
would have had to be commenced de novo.
It is necessary in this context to consider the purpose and effect of article 125. It reads:
“(1) The High Court of Justice established under the provisions of clause (4) of article 102 of this
Constitution, shall be the successor to the High Court of the Supreme Court of Judicature in being
immediately before the coming into force of this Constitution. (2) The Court of Appeal established under the provisions of clause (4) of article 102 of this Constitution, shall be the successor to the [p.391] of [1972] 1 GLR 366 Court of Appeal of the Supreme Court of Judicature in being immediately before the coming into force of this Constitution; and accordingly the Court of Appeal as established by this Constitution shall be bound to follow the decisions on questions of law binding on the Court of Appeal as it existed immediately before the coming into force of this Constitution. (3) The Supreme Court shall not be bound to follow the decisions of any other Court.”
“Successor” is the key word; though not a term of art, it is pre-eminently the language used in
conveyancing; in the context of this article, it connotes the take-over by the present courts of the
jurisdiction, rights and privileges of the displaced courts, subject of course, to such correlative restrictions upon jurisdiction as there existed before the take-over. This is in addition to any extension of jurisdiction that the Constitution might have given. In effect, the Constitution did not entirely abolish the courts but merged the old into the new and created a new hierarchy of courts. It is on this hypothesis that the Court of Appeal was able to entertain the application for review under rule 33 of the Supreme Court Rules already referred to. I reject the view that the ruling was given per incuriam.
An example from the High Court will illustrate the point. Assuming that a judgment was delivered in the High Court on 20 August 1969; that judgment was a final judgment, albeit subject to an appeal; but if before the coming into force of the Constitution no appeal had been lodged, the right to appeal was not extinguished, even though the court to which the right lay had been abolished or displaced by the coming into force of the Constitution; by the process of succession, all such judgments became the judgments of the new High Court and subject, of course, to the rules of court as to time and condition of appeal, an appeal lies to the present Court of Appeal. Thus, by a process of succession, an appeal from a judgment of the old High Court would go directly to the present Court of Appeal. By parity of reasoning, judgments of the old Court of Appeal became judgments of the new and provided that the time for appeal had not expired, an aggrieved party should be able to avail himself of the new machinery of appeal. But it appears that this line of reasoning runs counter to an obiter dictum in the judgment of Awoonor-Williams v. Gbedemah, Court of Appeal sitting as the Supreme Court, 8 December 1969, unreported; digested in (1970) C.C. 18 to which my attention has been drawn and though, in strictness, it is not binding on thiscourt, I will not seek to decide the matter on this ground. The second leg of the applicant-company’s contention may now be turned to. It contends that under the old hierarchy of courts it had not exhausted all the avenues opened to it and inasmuch as there was a further step it could take in the matter, it had a matter “pending”; in support, the appellant-company relies on paragraph 7 (2) of the Courts Decree, 1966 (N.L.C.D. 84), which reads thus: [p.392] of [1972] 1 GLR 366
“(2) The jurisdiction of a full bench of the Court of Appeal shall consist of —
(a) a review and determination of a decision of an ordinary bench of such Court —
(i) upon a question of law alone; and
(ii) upon an ordinary or full bench of such Court giving leave for such review and determination;(b) a review and determination of any other decision of an ordinary bench of such Court where it appear to a full bench of such Court that there has been a miscarriage of justice, This jurisdiction shall not be exercised by an ordinary bench of such Court.” It had, therefore, a matter pending within the meaning and purview of section 13 (1) and (2) of Part IV of the Transitional Provisions of the Constitution. The said section reads: “(1) Subject to the provisions of this section, legal proceedings pending immediately before the coming into force of this Constitution before any Court, including civil proceedings by or against the Government, shall not be affected by the coming into force of this Constitution and may be continued accordingly. (2) Where at the commencement of this Constitution there is any matter for review before a full bench of the Court of Appeal in being immediately before any such commencement, that matter for review shall be deemed to be an appeal pending before the Supreme Court as established under the provisions of this Constitution. ”For the meaning of the word “pending” he relies on the case of Awoonor Renner v. Thensu (1930) 1 W.A.C.A. 77, in which the word was given its largest possible signification. The following passage is culled from the judgment at pp. 77-78:
“The Order-in-Council dated 1st November, 1928, which set up the West African Court of Appeal came into force on 1st March, 1930 and therefore except as regards one or two special matters the Full Court ceased to exist. Section 14 (3) of the said Order-in-Council reads as follows: ‘All appeals matters and proceedings whatsoever which shall be pending at the commencement of this Order shall be continued before the Court of Appeal according to the form and manner of procedure of the said Court of Appeal.’
The questions then are (a) was the appeal in Case A, which was struck out for non-appearance of Mr.
Renner, and (b) was the appeal in Case B, which was heard and allowed in Mr. Renner’s absence ‘pending’ on 1st March, 1930?
A clear answer to this question is found in the judgment of Jessel M. R. in Fordham v. Clagett 20 Ch. D. at page 653. The passage [p.393] of [1972] 1 GLR 366 runs ‘Then the 15th section says: “For the purpose of winding up and terminating all matters which at the commencement of this Act may be pending in the late Insolvent Debtors Court, etc., the following provisions shall have effect.” What is the meaning of the word “pending”? In my opinion it includes every insolvency in which any proceeding can by any possibility be taken. That I think is the meaning of the word “pending” . . . A cause is said to be pending in a Court of Justice when any proceedings can be taken in it. That is the test. If you can take any proceeding it is pending’.”
In the example given above, namely, a case in which the old High Court had given judgment before its dissolution and no appeal processes has been taken out before the coming into force of the Constitution, there could not be said to be anything physically pending. The losing party had a right of appeal; it is this right which could be said to be pending.
At the time of coming into force of the Constitution, 1969, the applicant-company had an undoubted right to avail itself of the provisions of paragraph 7 of the Courts Decree, 1966 (N.L.C.D. 84); as its application shows the matters on which it could have sought review were questions of law.
In passing, it has been said that the full bench is no higher court than the ordinary bench of the Court of Appeal, nevertheless, it could not be overlooked that the full bench had powers of review which are
denied to the ordinary bench. The intention behind paragraph 7 (2) of the Courts Decree, 1966 (N.L.C.D. 84), though veiled in legal verbiage, is clear. One has only to compare and contrast the scope of the power therein contained with that contained in rule 33 of the Supreme Court Rules, 1962 (L.I. 218), which apply to the Court of Appeal, to find out that intention. The effect of the exercise of those powers is the same as if it were an appellate court over and above the ordinary bench. When it does grant leave, it hears arguments on law, determines whether the issues of law decided by the ordinary bench were correct, dismisses the application if it thought the ordinary bench was right; reviews the judgment by allowing the application if it considered that the ordinary bench’s appreciation of the law was wrong or that it misapplied the law. De jure, the ordinary bench and the full bench may be two divisions of the same court; de facto, the latter exercises powers of review amounting to such powers as an appellate court would have over a court inferior to it; see Bassil v. Buckle, Court of Appeal (full bench), 18 August 1969, unreported; digested in (1970) C.C. 6 and Republic v. Halm and, Ayeh-Kumi, Court of Appeal (full bench), 7 August 1969, unreported; digested in (1969) C.C. 155.
It may well be said that it is an abuse of language to say that a review is almost analogous to an appeal within this context, but two excerpts from the judgment of the full court in Republic v. Halm and Ayeh-Kumi (supra), will put the matter to rest. That judgment started in the following manner:
[p.394] of [1972] 1 GLR 366 “By a majority of two to one, the ordinary bench of this court on 4 June 1968, allowed the appeals of William Marmon Quao Halm and Emmanuel Ayeh-Kumi, who had been convicted by the High Court, Accra on seven counts of stealing. Dissatisfied with the decision of the Court of Appeal, the Republic applied for a review of it under the provisions of paragraph 7 (2) of the Courts Decree, 1966 (N.L.C.D. 84). There is no doubt about the competency of the Republic to ask for such a review.”
It concluded thus: “For the reasons given, we are of the opinion that the majority of the Court of Appeal were wrong in setting aside the conviction of the respondents. We have no alternative in the circumstances than to restore those convictions.” A rose by any other name, smells as sweet.
Be that as it may, it is ordained by paragraph 7 (2) of the Courts Decree, 1966 (N.L.C.D. 84), that a party aggrieved by a decision of the ordinary bench may apply for a review to the full bench; such an
application would be a matter “pending” if the decision in Renner’s case is correct, and no doubt has been cast upon its correctness; the fact that the aggrieved party could avail himself of such a step constitutes a matter pending.
The crucial issue then is: What is the nature of the matter pending? In my view, it is to the Constitution and the Transitional Provisions of the Constitution that one has to turn for an answer. It has already been observed that the manifest intention of Constitution was to grant a further right of appeal to the Supreme Court from the decisions of the Court of Appeal. The clue is given by section 13 (2) of the Transitional Provisions which has already been recited in extenso. It equates matters for review with an appeal pending; it says. “that matter for review shall be deemed to be an appeal pending.” The combined effect of section 13, subsections (1) and (2) is to convert into a right of appeal what before had been a discretionary matter.
Perhaps a step by step analysis may elucidate the point. Before the coming into force of the Constitution, a party might apply for review from a decision of the ordinary bench of the Court of Appeal to the full bench; whether the application would be granted or not was uncertain; the granting of the application was purely discretionary and not as of right. By section 13 (2) of the Transitional Provisions, all applications for review were converted into applications or notices of appeal. It seems such metamorphosis shall affect equally those who had a right to an application for review notwithstanding its discretionary nature.
In this connection I will adopt with respect the words of Lord Halsbury L. C. in Powell V. Main Collier Co. [1900] A.C. 366 at P. 371 H.L. “Now it is certainly a very familiar rule of construction that you have no right to add words to a statute unless the exigency of the rest of the statute which you are construing renders it necessary to do so. ”[p.395] of [1972] 1 GLR 366

The relevance of the decisions in Abbott v. Minister for Lands [1895] 1 A.C. 425, P.C. and Director of
Public Works v. Ho Po Sang (1961] A.C. 901, P.C. is that it affords assistance as to how an “accrued
right” in certain circumstances may be determined. In both cases, it was emphasized that whether an
accrued right exists must be ascertained from the terms of the enactment repealed or the repealing
enactment. In Abbott’s case, the Lord Chancellor put it thus at p. 431, “It may be, as Windeyer J.
observes, that the power to take advantage of an enactment may without impropriety be termed a ‘right’. But the question is whether it is a ‘right accrued’ within the meaning of the enactment which has to be construed.” Lord Morris, in Ho Po Sang, stated at p. 921:
“These submissions raise an interesting question. At the time of the repeal, all the procedure under sections 3A and 3B had been followed, and it can properly be said that the stage had been reached when the lessee could expect and was entitled to have the petitions and cross-petition considered in due course by the Governor in Council and to have a decision reached. Could such expectation or entitlement be regarded as a right or a privilege, either acquired or accrued, within the meaning and intendment of the Interpretation Ordinance? Or was such expectation or entitlement something that necessarily came to an end at the time of the repeal? There might have been some express provision in the 1957 repealing ordinance by which it could have been ordained that petitions and cross-petitions awaiting consideration should receive such consideration in spite of the repeal, and that, subsequently an effective re-building certificate could be given.”
(The emphasis is mine). Thus, in the final analysis, it is to the Constitutional Provisions that one has to turn to ascertain whether what may be deemed to be a pious hope was converted into a right.
I think the words in section 13 (2) of the Transitional Provisions are clearly intended to provide a right of appeal and if that be so, then this court ought to construe them benevolently. “But it is a familiar rule of construction that, although the Courts are, prima facie, bound to read the words of an Act according to their ordinary meaning in the language, if there are other circumstances which shew that the words must have been used by the Legislature in a sense larger than their ordinary meaning, the Court is bound to read them in that sense,” per Lord Esher in Barlow v. Ross (1890) 24 Q.B.D. 381 at p. 389, C.A. The noble Lord continued at p. 392:
“Therefore, though I agree that prima facie the words of the 20th section only apply to complete rights, it seems to me that, in order that the objects of the Act may be carried out fully with regard to the land purchased, we must construe the word ‘rights’ in the section as including not only actually existing and completed rights, but also inchoate rights. For instance, if a person has property so circumstanced at the time of the purchase of the adjoining property that, if things remain as they are, he will obtain a right on the completion of the [p.396] of [1972] 1 GLR 366 statutory period, then I think that he would have an inchoate right which would be extinguished by the 20th section, and it seems to me that he would be entitled to compensation in respect of any loss occasioned by its extinction.”
I may usefully refer to In the Estate of Rippon [1943] P. 61 and In re Wingham, deceased; Andrews v.
Wingham [1949] P. 187, C.A. where the words of a statute “being in actual military service” were given such benevolent construction as to include a person who has been called up for service and person training for service. No doubt if the words “actual military service” had been given their ordinary or literal meaning, these various categories would have been denied the privilege extended to the wills of serving military personnel within the context of that Act.
It seems to me that section 13 (2) of the Transitional Provisions must be read to include all pending
applications for review before the full bench, whether actually filed or not. It does seem to me that counsel for the respondent appreciates the effect of the conversion for he argues that on the maxim expressio unius est exclusio alterius the framers of the Constitution let in those applications for review which were before the full bench and excluded those that could have been before it but were in fact not filed. In other words, if the applicant-company had applied for review before the coming into force of the Constitution, it would have had a right of appeal; not having done so, it had lost its right.
Counsel for the applicant-company has shown that this maxim is one of the aids of construction and
where its application would result in manifest injustice, it is never applied. In Dean v. Wiesengrund
[1955] 2 Q.B. 120, C.A. the English Court of Appeal refused to apply the maxim where its application
would lead to injustice and be capricious in its operation. The court adopted the passage from Colquhoun v. Brooks (1888) 21 Q.B.D. 52 at p. 65, C.A. namely, “The exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice.”
Counsel then illustrated how unjust it would be if a party who had his case heard a day before the coming into force of the Constitution would have no right of appeal because he did not have the opportunity of filing a notice of review while a party whose case was heard six months or more before, would have such a right merely because he had applied for a review. It may well be argued that a line must be drawn somewhere or else all decisions given by this court’s predecessor would be open to appeal. The short answer is contained in rules 7, 8 (1) (b) and (4) of the Supreme Court Rules, 1970 (C.I. 13), as to time within which an appeal could be entertained.
In the result, I consider that the applicant-company has a right of appeal.
[p.397] of [1972] 1 GLR 366 Turning now to the application for an extension, the applicant – company has indicated the grounds upon which it intended to rely which are all matters of law. In West African Bakery v. Miezah [1972] 1 G.L.R. 78, C.A. the court cast doubt on the correctness of the principles of law applied in the case for which an extension of time is now being sought. Azu Crabbe J.S.C. stated at p. 91:
“Whether the Zacca case (meaning the appeal in respect of which the application is being made] itself also applied the correct principles in the assessment of damages will, I think, become clear on a consideration of the authorities in this appeal.”
After a review of some of the authorities, he continued at p. 92: “I agree that in all cases of damage to a chattel ‘the dominant rule of law’ is the principle of restitutio in integrum, but that principle cannot be isolated from the subsidiary rules’. In my view, stating the principle of restitutio in integrum in such broad terms simply means that the tortfeasor is liable for all the consequences of his wrongdoing. This appears to be the basis of the decisions in the Borketey case and the Zacca case.
Thus in the Zacca case, Akufo-Addo C.J. said that the wrongdoers ‘must accept all the consequences that flow from their wrongful act.’ With the greatest respect, I do not think that this is correct, as I shall endeavour to show presently.”
In view of the doubts expressed, and there are now two conflicting judgments of this court, it is eminently desirable and in the public interest that a final and authoritative pronouncement be made on this aspect of the law by the Supreme Court. It is for these reasons that I will extend time.
JUDGMENT OF LASSEY J.A.
I support the view expressed by my brother Sowah that the applicant-company be given further time within which to appeal to the Supreme Court created under the Constitution which has just been
suspended as a result of the military take over.
DECISION
Application granted.
J. D.