GALLEY vs. THE REPUBLIC [1995-96] 1 GLR 553

CASE REFERRED TO

Ashley v White (1703) 2 LD Rayn 938.

NATURE OF PROCEEDINGS

APPLICATION to the Court of Appeal by the applicant, a person convicted and sentenced to five years’ imprisonment by the erstwhile regional public tribunal, for extension of time to lodge an appeal at the Court of Appeal against the decision of the regional public tribunal. The facts are sufficiently stated in the ruling of Acquah JA.

COUNSEL

Applicant in person.

Amonoo-Monney, Director of Public Prosecutions, for the Republic.

JUDGMENT OF ACQUAH JA.

The issue involved in this application is the determination of the court or tribunal to entertain appeals by aggrieved parties in

[p.555] of [1995-96] 1 GLR 553

cases tried between 7 January 1993 and 6 July 1993, under section 7(1) of the transitional provisions of the Constitution, 1992. This of course, implies that such aggrieved parties have a right of appeal. But do they?

The applicant, Yaw Galley, was tried on two counts of fraud by the Tema sub-regional public tribunal. He was convicted on 14 June 1993, and sentenced to five years’ imprisonment with hard labour. On 27 September 1994 he filed the instant application for extension of time to lodge his appeal at the Court of Appeal.

Undoubtedly, the Constitution, 1992 did not retain the public tribunals as established under the Public Tribunals Law, 1984 (PNDCL 78). And the transitional provisions in the Constitution, 1992 gave these public tribunals six months from the coming into force of the Constitution, 1992 to wind up. And section 7(1) of the transitional provisions of the Constitution, 1992 gave the said tribunals authority to complete cases which were partly heard before them at the time the Constitution, 1992 came into force. The tribunals affected under article 7(1) of the Constitution, 1992 are:

(a) National Public Tribunal;

(b) Regional Public Tribunals;

(c) District Public Tribunals; and

(d) Community Public Tribunals.

Section 7(3) of the transitional provisions of the Constitution, 1992 provided that the National Public Tribunal shall cease to exist on the completion of its partly heard cases or within six months after the coming into force of the Constitution, 1992, which ever is earlier; while section 7(4) provided for the transfer by the Chief Justice of all cases pending before the National Public Tribunal immediately before the coming into force of the Constitution, 1992 to such court or tribunal as the Chief Justice might determine. It is quite clear from the provisions of section 7 of the transitional provisions of the Constitution, 1992 that unlike the National Public Tribunal, no provision was made for pending cases before the other tribunals immediately before the coming into force of the Constitution, 1992. But this has now been taken care of in the Courts Act, 1993 (Act 459). The real problem is this: To which court or tribunal during the transitional period should a person convicted by any of these tribunals in cases tried under section 7(1) of the transitional provisions of the Constitution, 1992, lodge his appeal?

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The transitional provisions do not give any direction or guidance on this.

The learned Director of Public Prosecutions, Mr Amonoo-Monney, has in a very able and persuasive argument submitted that persons aggrieved by decisions delivered during the transitional period have a right of appeal; and that in the case of the applicant since section 115(2) of Act 459 provides that the Regional Tribunals established under the Constitution, 1992 are successors of the regional public tribunals existing before the coming into force of the Constitution, 1992, the applicant can lodge his instant appeal at the court which is empowered to hear appeals from the regional public tribunals.

Now can it be said that from the language of Part III of the transitional provisions, those aggrieved by the decisions of the tribunals empowered under section 7(1) of the transitional provisions of the Constitution, 1992 to complete their part-heard cases had no right of appeal? Clearly not! For the transitional provisions did not deal with the rights of litigants. PNDCL 78 under which the public tribunals were established conferred rights of appeal and review. And if these rights were intended to be abrogated same would specifically have been stated. Once there was no such provision the presumption is that parties before the tribunals during the transitional period continue to enjoy their right of appeal. I therefore agree with the learned Director of Public Prosecutions that those aggrieved by the decisions of the tribunals during the transitional period have a right of appeal. And if they have a right of appeal then they must have a way of vindicating this right. As Holt CJ said in Ashby v White (1703) 2 LD Rayn 938 at 953: “If the Plaintiff has a right he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy for want of right and want of remedy are reciprocal.”

Now section 115(2) and (3) of Act 459 provides:

“(2) The Regional Tribunal established under this Act shall subject to the provisions of this Act, be successor to the Regional Public Tribunal in existence immediately before the coming into force of this Act.

[p.557] of [1995-96] 1 GLR 553 (3) All proceedings pending before any of the courts referred to in subsection (1) and (2) of this section immediately before the coming into force of this Act may be proceeded with and concluded in that court.”

Clearly then, the judgment of the erstwhile regional public tribunal shall be of the same status as that of a Regional Tribunal established under the Constitution, 1992. And since under the Constitution, 1992 and Act 459 appeals from Regional Tribunals lie at the Court of Appeal, the applicant can legitimately seek extension of time to lodge his appeal at the Court of Appeal. It follows then that this application is properly before us.

I have noted that although he was convicted on 14 June 1993, he waited for a year before filing his application for extension of time. But having regard to the fact that at the time he was convicted Act 459, had not been enacted, I will exercise my direction in his favour and grant his request.

Accordingly, his application is granted and he is given 30 days within which to lodge his appeal.

DECISION

Application granted.

DRKS