KUMA v. THE REPUBLIC [1968] GLR 926

DIVISION: COURT OF APPEAL

DATE: 15 OCTOBER 1968

BEFORE: AKUFO-ADDO C.J., OLLENNU J.A. AND ARCHER J.

NATURE OF PROCEEDINGS

APPEAL against a decision of the High Court, affirming a ruling of a district court that despite a previous discharge by another magistrate of the appellant on a similar charge, it had jurisdiction to commit the case on the ground that the previous discharge was not an acquittal. The facts are fully set out in the ruling.

COUNSEL

P. A. Adjetey for the appellant.

F. P. Sarkodee, Senior State Attorney, for the respondent.

JUDGMENT OF OLLENNU J.A.

Ollennu J.A delivered the ruling of the court. The appellant appeared before the district court charged with an indictable offence, for committal for trial in accordance with the provisions of Part IV of the Criminal Procedure Code, 1960 (Act 30). Learned counsel for the appellant challenged the jurisdiction of the magistrate committing the case on the ground that another magistrate had, on a previous occasion, held that the summary of evidence did not disclose any triable offence, and had therefore declined to commit the appellant for trial, and discharged him. The learned magistrate overruled the objection, holding that the previous discharge was not an acquittal, that there had been no trial and therefore he was seised of jurisdiction to commit the case. From that ruling, the appellant appealed to the High Court but was unsuccessful. He therefore appealed to this court. In this court, learned state attorney raised a preliminary objection; he referred the court to section 335 of the Criminal Procedure Code, 1960 (Act 30), and contended that there is no right of appeal from the order of the district court since the appellant has not been convicted and consequently there is no jurisdiction in the court to entertain the appeal. Learned counsel for the appellant in reply contended that paragraph 7 (1) (d) of the Courts Decree, 1966 (N.L.C.D. 84), as amended by the Courts (Amendment) Decree, 1968 (N.L.C.D. 277), vested the court with jurisdiction to entertain an appeal from any decision of the High Court. Paragraph 7 of N.L.C.D. 84, as amended, relied upon by the appellant reads as follows:

“7. (1) Subject to the provisions of sub-paragraph (2) of this paragraph the jurisdiction of the Court of Appeal whether

[p.928] of [1968] GLR 926 comprising a full bench or an ordinary bench shall consist of:—

(a) the hearing of appeals from any judgment of the High or Circuit Court in any civil cause or matter;

(b) the hearing of appeals from any decision of the High Court in any criminal cause or matter exercised in accordance with the provisions of this Decree or any other enactment;

(c) the hearing of appeals from any decision of the Circuit Court in any criminal cause or matter tried on indictment exercised in accordance with the provisions of this Decree or any other enactment;

(d) the hearing of appeals from any decision of the High Court in any matter whatsoever;

(e) any other jurisdiction conferred by this Decree or any other enactment:

Provided that:—

(1) except by special leave of the High Court or of the Court of Appeal no appeal shall lie to the Court of Appeal from any judgment given by the High Court in the exercise of its appellate jurisdiction on any matter (other than a matter arising out of a criminal case) where the High Court has affirmed the decision of the Court from which the appeal is made to the High Court; and

(2) except by special leave of the High Court or of the Court of Appeal no appeal shall lie from an interlocutory order or from an order made by consent.”

That paragraph confers jurisdiction upon this court to entertain appeals in certain cases. It does not confer a right of appeal upon a party to a cause or matter.

There is no inherent right of appeal in any one who is dissatisfied with a decision of a court; a right of appeal is a creature of statute, and may only be exercised by the person upon whom a statute specifically confers such a right. For example, a person convicted upon a plea of guilty may be dissatisfied with his conviction, but has no right of appeal, for section 324 (3) of Act 30 expressly provides that: “No appeal shall be entertained against conviction by an accused person who has pleaded guilty and has been convicted on his plea.” Therefore the jurisdiction which is conferred upon this [p.929] of [1968] GLR 926 court to entertain an appeal may only be exercised in favour of persons upon whom a statute has conferred a right of appeal, and may be exercised in accordance with the procedure laid down for such an appeal. Now section 335 of Act 30 is the enactment which confers a right of appeal from any decision of a High Court in its appellate jurisdiction. It reads as follows:

“335. (1) The Prosecution may appeal on a question of law to the Supreme Court from any decision of the High Court in its appellate jurisdiction under this Part.

(2) The defence may appeal to the Supreme Court from such a decision in the following cases, that is to say—

(i) where the appeal is against a conviction and is based on any ground which involves a question of law alone;

(ii) where the appeal is against a conviction and is based on any ground which involves a question of fact alone or mixed law and fact and the defence has obtained the leave of the Supreme Court to appeal or a certificate of the judge who tried the case that it is a fit case for appeal, or on any other ground which appears to the Supreme Court to be sufficient ground of appeal;

(iii) where the appeal is against sentence, other than a sentence fixed by law, and the defence has obtained the leave of the Supreme Court to appeal.”

The right of appeal, which the section gives to a defendant, is conferred upon a defendant who has been convicted.

In the present case the appellant has not been convicted, he has not been ordered to enter into recognisance, not even been tried, therefore he is completely outside the class of defendants upon whom section 335 of Act 30 confers a right of appeal. Even if paragraph 7 of the Courts Decree, 1966 (N.L.C.D. 84), in addition to conferring jurisdiction upon the court, ipso facto confers a right of appeal upon a defendant, its various sub-paragraphs indicate the specific circumstances in which the right of appeal may accrue and in which the court may exercise the jurisdiction given it. In this connection attention should be called to the reasons for the ruling given by the Supreme Court in Aidoo v. Commissioner of Police (No. 2) [1964] G.L.R. 344, S.C. which interpreted sections 8, [p.930] of [1968] GLR 926

29 and 30 of the Courts Act, 1960 (C.A. 9), now re-enacted in almost identical words respectively by paragraphs 7, 27 and 28 of the Courts Decree, 1966 (N.L.C.D. 84). In that case the court held that the jurisdiction conferred by the words “the hearing of appeals from any decision given by the High Court in any other matter whatsoever” refers to appeals from decisions given by the High Court in causes or matters which cannot be classified as civil or criminal, and are completely outside those two, for example, appeals from decisions given in prerogative orders; and that appeals from decisions given in a civil cause or matter come under paragraph 7 (1) (a) and appeals from decisions given in a criminal cause or matter will come under paragraph 7 (1) (d). Counsel for the appellant has drawn our attention to the difference between the wording of section 8 (1) (c) of C.A. 9 and paragraph 7 (1) (d) of N.L.C.D. 84, i.e. while section 8 (1) (c) of C.A. 9 says “any decision in any other matter whatsoever,” paragraph 7 (1) (d) of N.L.C.D. 84 says “in any matter whatsoever,” the word “other” being there omitted. In our opinion the interpretation of paragraph 7 (1) (d) is “any decision not already provided for in any of the sub-paragraphs.” In the present case the appeal is from an order made by the High Court in the exercise of its criminal appellate jurisdiction, therefore an appeal from it may only come under paragraph 7 (1) (b) and not under paragraph 7 (1) (d). The order made by the district court which the appellant seeks to vacate is not a conviction; therefore it gives no right of appeal.

For the reasons stated above, the preliminary objection is upheld, and the appeal is dismissed for want of jurisdiction.

DECISION

Preliminary objection upheld.

Appeal dismissed.

L. F. A.