DIVISION: IN THE SUPREME COURT
DATE: 3RD MAY, 1963
BEFORE: ADUMUA-BOSSMAN, OLLENNU AND BLAY JJ.S.C.
CASES REFERRED TO
(1) Colonial Sugar Refining Co. v. Irving [1905] A.C. 369, P.C.
(2) Rathbone v. Munn (1868) 18 L.T. 856
(3) Dompreh v. Marfo (1948) 12 W.A.C.A. 349
(4) Adams v. Commissioner of Police [1963] 1 G.L.R. 174, S.C.
NATURE OF PROCEEDINGS
APPEAL by the Commissioner of Police from a judgment of the circuit court which set aside the
conviction of the respondents and ordered a re-trial. The appeal was made by virtue of the provisions of
the Courts Act, 1960, s. 14.
COUNSEL
D. F. Annan, Senior State Attorney, for the appellant.
Ofori-Atta for the respondents.
JUDGMENT OF OLLENNU J.S.C.
Ollennu J.S.C. delivered the judgment of the court. The defendants, respondents herein, were convicted
by the District Court, Hohoe, on the 23rd March, 1961, on three counts charging them with offences they
were alleged to have committed in November, 1960. The charges were laid under the old Criminal Code,1
now repealed, which was in force at the date of the offences; but by virtue of section 9 (c) of the
Interpretation Act, 1960,2 the proceedings were prosecuted and continued under and in conformity with
the Criminal Procedure Code, 1960,3 which by virtue of section 416 thereof came into force on the 1st
February, 1961.
The defendants appealed against their said conviction to the Circuit Court, Ho. The circuit court allowed
their appeal, declared the judgment of the district court a nullity, and ordered a re-trial. From that
judgment, the Commissioner of Police, prosecutor, applied to this court on the ground that, “the ruling of
the learned circuit judge that the proceedings are a nullity is erroneous in point of law.”
The first point which arises is, whether the court has jurisdiction to entertain the appeal at the date of the
order against which the prosecution seeks to appeal. Learned senior state attorney for the prosecution
referred the court to section 335 of the Criminal Procedure Code, 1960, and submitted that it gave a right
of appeal to the prosecution. The section reads:
“The prosecution or the defence may appeal from a decision of a Circuit Court [now High Court] in its
appellate jurisdiction under this Part to the Supreme Court in accordance with section 14 of the Courts Act,
1960 (C.A. 9).”
He submitted that by virtue of that section the court is vested with jurisdiction to hear the appeal. He said
however that he realised it would have been better if at the date when the Criminal Procedure Code, 1960,
came
[p.405] of [1963] 1 GLR 402
into force, section 14 of the Courts Act, 1960,4 was amended expressly to give jurisdiction to the court in
the matter.
Counsel for the defendants said he held the view that since it is a substantive statute the prosecution relied
upon for its right to appeal and not subsidiary legislation, the Act conferred jurisdiction upon the court; he
however submitted that as the proceedings were in progress before the said statute came into force, the
statute cannot have a retrospective effect; therefore, he submitted, the right of appeal given to the
prosecution by section 335 of the Criminal Procedure Code, 1960, cannot be interpreted as relating to
proceedings pending before the Act came into force. In support of this submission counsel referred us to
Maxwell on Interpretation of Statutes (11th ed.), pages 204, 206, and 212. At page 212, the learned
author, under the heading “Pending Actions,” said:
“In general, when the law is altered during the pendency of an action, the rights of the parties are decided
according to the law as it existed when the action was begun, unless the new statute shows a clear intention
to vary such rights.”
He also cited Colonial Sugar Refining Co. v. Irving5 the headnote to which reads:
“although the right of appeal from the Supreme Court of Queensland to His Majesty in Council given by the
Order in Council of June 30, 1860, has been taken away by the Australian Commonwealth Judiciary Act,
1903, s. 39, sub-s. 2, and the only appeal therefrom now lies to the High Court of Australia, yet the Act is not
retrospective, and a right of appeal to the King in Council in a suit pending when the Act was passed and
decided by the Supreme Court afterwards was not taken away.”
At page 216 of the said Maxwell on Interpretation of Statutes the learned author said:
“Although to make a law punish that which, at the time when it was done, was not punishable, is contrary to
sound principle, a law which merely alters the procedure may, with perfect propriety, be made applicable to
past as well as future transactions, and no secondary meaning is to be sought for an enactment of such a kind.
No person has a vested right in any course of procedure. He has only the right of prosecution or defence in
the manner prescribed for the time being, by or for the court in which he sues, and, if an Act of Parliament
alters that mode of procedure, he has no other right than to proceed according to the altered mode.”
The same principle is stated in Halsbury’s Laws of England, Vol. 36 (3rd ed.), page 426, para. 647 as
follows:
“The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament.”
[p.406] of [1963] 1 GLR 402
It continues at pages 426–427: “It is presumed, moreover, that procedural statutes are intended to be fully retrospective in their operation,that is to say, are intended to apply not merely to future actions in respect of existing causes, but equally to
proceedings instituted before their commencement.”
The first question to be decided therefore is: What sort of legislation is section 335 of the Criminal
Procedure Code, 1960; is it legislation affecting vested rights, legislation creating jurisdiction or is it
procedural legislation? No party to a suit, civil or criminal, has a vested right that his opponent should not
appeal from a decision given in a suit between them if there is a court vested with jurisdiction to hear such
appeal. A case in point is Rathbone v. Munn.6 The suit was commenced in the county court; at the time of
its commencement, there was no right of appeal to the Divisional Court from the decision of the county
court in the particular matter. While the suit was pending the County Courts Acts (Amendment) Act,
1867,7 was passed, section 13 whereof allowed an appeal from the decision of the county court “with
leave of the judge” in actions in which appeals were not previously allowed; the plaintiff against whom
judgment was given by the county court appealed using the right of appeal given by section 13 of the
statute. Blackburn J. as he then was, said8
“a statute merely altering the mode of procedure shall be held to be retrospective unless there is something in
it to show a contrary intention on the part of the Legislature. I look at an appeal as merely affecting the mode
of procedure, and not as altering the rights of the parties; and therefore I think that section 13 does not apply
to actions pending at the time the Act came into operation, and that we must hear the appeal.”
Lush J. agreeing with Blackburn J. said9
“As to the construction of the 13th section of 30 & 31 Vict. c. 142, I agree in the conclusion of my brother
that that section is to be regarded as affecting only the mode of procedure and not the rights of the parties,
and therefore that it applies to a pending action. I think we must hear the appeal.”
But where a right of appeal has already vested a new statute taking away that right will not be interpreted
as having retrospective effect. In Halsbury’s Laws of England (3rd ed.), Vol. 36 at p. 427 the principle is
stated as follows:
“To the extent, however, that the effect of applying a procedural enactment retrospectively would be to
deprive a person of a vested right, retrospective effect will not be given to it without plain words, so that, for
example, the right of a plaintiff to continue an action already begun was not affected by a subsequent statute
imposing a period of limitation, whilst the applicability to pending proceedings of a provision altering the
structure of appeals may depend on whether it increases or reduces rights of appeal.”
[p.407] of [1963] 1 GLR 402
Since a statute creating a right of appeal is merely procedural the right given by the statute can only be
exercised in a court which is vested with jurisdiction. Therefore if the court to which a party may appeal
is not vested with jurisdiction, the party to whom the right was given cannot exercise that right, and a
court to which he appeals will decline to exercise jurisdiction. There are two cases in this country directly
on the point. The first is a civil case, Dompreh v. Marfo.10 There the West African Court of Appeal held
that although section 24 (7) of the Native Courts (Ashanti) Ordinance, 1936,11 stated that a person
aggrieved with a decision of the Chief Commissioner exercising appellate jurisdiction on a decision given
by the magistrates court constituted by the Government Agent on appeal from a native court, it, the West
African Court of Appeal, had no jurisdiction to entertain such an appeal as the jurisdiction given it by the Ordinance did not include the hearing of such appeals. The second case is a criminal case heard by this court, Adams v. Commissioner of Police.12 It is a case
on all fours with the present case, except that the accused person and not the prosecution was the
appellant. The accused appealed to the circuit court from a conviction by a district court; the circuit court
allowed the appeal but ordered a re-trial. The accused person, in reliance upon the same section 335 of the
Criminal Procedure Code, 1960, upon which the prosecution also relies in the present case, appealed to
this court on the grounds that the section says that “The prosecution or the defence may appeal from a
decision of a Circuit Court in its appellate jurisdiction under this Part to the Supreme Court . . .” It was
held that that right which the said section confers upon the defence, may only be exercised in accordance
with the jurisdiction given to this court by section 14 of the Courts Act, 1960,13 and that that jurisdiction
of the court to hear such an appeal is limited to an appeal by a defendant who has been convicted, or
whose conviction has been upheld by a circuit court.
The jurisdiction of this court in criminal matters is set out in section 8 (1) (b) of the Courts Act, 1960, and
is for “the hearing of appeals from any decision of a High Court or Circuit Court in a criminal matter
exercised in accordance with the provisions of this or any other enactment.” The only section in the said
Courts Act which shows when that jurisdiction should be exercised is section 14. Again, as already
pointed out, section 335 of the Criminal Procedure Code 1960,14 provides that the right of appeal given
thereby should be exercised in accordance with the said section 14 of the Courts Act, 1960. The said
section 14 does not provide for the exercise of jurisdiction in criminal matters save and except in an
appeal brought by a defendant who has been convicted or whose conviction has been upheld by a circuit
court. Therefore the court cannot exercise jurisdiction in this appeal brought by the prosecution.
[p.408] of [1963] 1 GLR 402
Now the said section 14 of the Courts Act was amended during the pendency of this appeal, to give
jurisdiction to the court to entertain appeal by the prosecution in such cases. The amendment was made by
the Courts (Amendment) Act, 1962,15 section 1 (1) (c); it reads:
“(2) Notwithstanding anything to the contrary in any other enactment, if in any case the Director of Public
Prosecutions or the prosecutor obtains the certificate of the Attorney-General that a decision of the
High Court or a Circuit Court involves a point of law of exceptional public importance and that it is
desirable in the public interest that a further appeal should be brought, he may appeal from that
decision to the Supreme Court.”
The amendment received the Presidential assent on the 20th June, 1962, and it should have come into
effect on that day. The legislature, however, made the jurisdiction so given, retrospective; but to show
that they did not intend section 335 of the Criminal Procedure Code to have a general retrospective effect,
they put in a provision which limited its retrospective effect as to the exercise of jurisdiction in such
appeals to the 1st January, 1962, and no further; that was done by section 1(3) of the Courts
(Amendment) Act, 1962,16 as follows:
“(3) The provisions of the principal Act relating to appeals to the Supreme Court and the rules in force
relating to such appeals shall, as far as may be practicable, apply, with effect from the first day of
January, 1962, to appeals made under subsection (2) of section 14 of the Courts Act, 1960 (C.A. 9) in
like manner as they apply to appeals made under subsection (1) of the section.”
The appeal in this case was made on the 3rd July, 1961, which falls outside the limits of the retrospection
and by that subsection the legislature manifested the clearest intention that the court should not exercise
jurisdiction in this appeal. We hold therefore that this court has no jurisdiction to entertain the appeal; we
accordingly dismiss it.
DECISION
Appeal dismissed.
J. D.
