STATE v. DJABA [1966] GLR 575

Division: SUPREME COURT

Date: 20 JUNE 1966

Before: SARKODEE-ADOO C.J., MILLS-ODOI AND

BRUCE-LYLE JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL from the ruling of the High Court, Accra, granting the applicant bail pending the determination of his appeal.

COUNSEL

S. M. Boison, Principal State Attorney, for the appellant.

P. A. Adjetey for the respondent.

[p.576] of [1966] GLR 575

JUDGMENT OF SARKODEE-ADOO C.J.

Sarkodee-Adoo C.J. delivered the reasons for the judgment of the court. We dismissed this appeal on 6 May 1966 indicating that we would give our reasons later, and accordingly we now give the reasons. The appeal is from the ruling of Wiredu J. dated 22 April 1966 reported at p. 327 supra admitting the respondent to bail, and is set out in extenso:

“The applicant was convicted on 10 May 1965 with two others of conspiracy and stealing an amount of £G512,000 and he was sentenced to 24 years’ imprisonment with hard labour. He has filed an appeal and applied to this court for bail.

The main grounds of the application are that he has a reasonable chance of success in the appeal which may take a long time before it is heard and that his being kept in custody would work hardship and be unjust to him should the appeal succeed. This point was canvassed exhaustively in the analysis of the 97 page judgment of Akainyah J. (as he then was) sitting in the High Court, Accra.

The respondent dwelt mainly on the question of jurisdiction and on authorities showing that there must be special or exceptional circumstances before bail should be granted.

I have therefore to decide:

(1) Whether or not I have jurisdiction to entertain this application.

(2) Conditions governing granting of bail pending appeal.

(3) Whether this application should be entertained.

The application was originally brought under section 332 (1) and later amended to include section 96 (1) to

(3) of the Criminal Procedure Code, 1960 (Act 30), and section 22 (2) of the Courts Act, 1960 (C.A. 9). Section 332 (1) as amended by the Criminal Procedure Code (Amendment) (No. 2) Act, 1962 (Act 116), reads: ‘After the filing of a petition of appeal by any person entitled to appeal, and pending the hearing, the High Court may, for reasons to be recorded by it in writing, order that the execution of a sentence or order appealed against be suspended and also, if he is in confinement, that he be released on bail or on his own bond.’ The respondent contends that this section comes under Part VIII of the Act and therefore refers to appeals from district courts that being that sub-heading. The reply to that was that that sub-heading cannot control the section because subsequent sections reveal that though the sub-title refers to appeals from district courts there is mention of juvenile and circuit courts and that shows that Part VIII is not restricted to district courts. Besides section 4 of the Interpretation Act, 1960 (C.A. 4), states that “titles placed [p.577] of [1966] GLR 575 at the head or beginning of any subdivision of an enactment . . . are intended for convenience of reference only and do not form part of the enactment.”

Section 336 as amended by Act 116, s. 9 and section 8 of the criminal Procedure Code (Amendment) Act, 1965 (Act 261), provides that, “Every appeal made under section 335 shall be entered within one month of the order appealed against, and, subject to Rules of Court made by the Supreme Court, the provisions of sections 326 to 334 shall apply mutatis mutandis to appeals from the High Court to the Supreme Court.” Section 332 (1) is within section 336. I am of the opinion that despite the interpretation of section 4 of the Interpretation Act, 1960, that the heading of the subdivision Part VIII referring to district courts is for convenience and also the fact that despite that subdivision references are made to juvenile and circuit courts, the provisions are not limited by the heading of the subdivision, otherwise juvenile and circuit courts which are distinct courts in themselves under C.A. 9 would not be mentioned in the provisions under Part VIII of Act 30.

To avoid any further confusion section 336 is clear that ‘provisions of sections 326 to 334 shall apply mutatis mutandis to appeals from the High Court to the Supreme Court.’ Mutatis mutandis High Court must then read Supreme Court in appeals to Supreme Court and I have no jurisdiction under that section. Section 22 (2) of the Courts Act, 1960, reads: ‘The Supreme Court, or the Court before whom he was convicted, may, if it seems fit, on the application of an appellant admit the appellant to bail pending the determination of his appeal.’ The contention here is based on the phrase ‘or the Court before whom.’ The respondent’s contention is that the use of the word ‘whom,’ a personal pronoun, indicates that it refers to the judge who heard the case and not the court of co-ordinate jurisdiction. Were it to be otherwise it would authorise a judge of co-ordinate his jurisdiction to go into the merits or demerits of a trial by his brother judge. The reply is that it is the noun which governs a pronoun and that a pronoun never governs a noun hence by use of grammar alone the court and not necessarily the judge who heard the case can grant bail. I am of the opinion that the court, a noun, has more weight and controls or governs the pronouns and whether that is a miscalculation on the side of the draftsman or not it is a rule of English language. They could have easily said ‘judge’ instead of ‘court.’ The use of ‘the court by whom’ merely shows that the court is just personified. By that

[p.578] of [1966] GLR 575 construction, therefore, jurisdiction is conferred on this court to deal with the matter. I come now to the provisions governing the grant of bail pending appeal. Two views have been canvassed. One is the view that no bail shall be granted pending appeal unless, considering the circumstances of the case there are special circumstances; or where the hearing of the appeal will be unduly delayed or where a substantial part of the sentence would have been served before the appeal is heard. This is the view put forward by (among other cases to be cited later) R. v. Tunwashe (1935) 2 W.A.C.A. 236. This I should add is the celebrated local authority. I must say much as this case was decided as far back as 1935 the application was made under section 17 (2) of the West African Court of Appeal Ordinance (No. 47 of 1933), and much will depend on the wording of the section. I say this because the report found it necessary to quote the section under which the application was made so in my opinion the decision was based on the interpretation of that section and not on bail generally. We must know the section to appreciate the impact of the decision. However this view of a possible interpretation of a specific section is neutralised by English authorities like R. v. Howeson and Hardy (1936) 25 Cr.App.R. 167, C.C.A. and R. v. Davidson (1927) 20 Cr.App.R. 66, C.C.A. In the first case the sentence was just twelve and nine months respectively yet the court did not grant bail, there being no special circumstances on which bail should be granted. In the second case even though the appeal was allowed the court criticised the granting of bail by the judge. Our law, however, does not call for any special circumstances which according to the English law are nebulous and have not been properly defined. As Boison J. said in State v. Nti alias Berko High Court, Accra, 7 May 1965, unreported; digested in (1965) C.C. 170, ‘It is hoped that when the opportunity presented itself the Court of Appeal [sic.] will define what the “exceptional circumstances” are.’

Section 332 (1) of Act 30 states that “. . . the High Court may, for reasons to be recorded by it in writing, order that the execution of a sentence or order appealed against be suspended and also, if he is in confinement, that he be released on bail or on his own bond.’ (The emphasis is mine.) In my opinion the legislature was aware of the old decisions demanding exceptional circumstances. Those decisions were prior in time to the enactment of this section and the legislature did not incorporate them in this Act. What those decisions seem to imply is

[p.579] of [1966] GLR 575 that once a person is imprisoned he must remain there even though there may be chances of success in his appeal, till the appeal is heard: see R. v. Howeson and Hardy (supra) unless there were, undefined, exceptional circumstances. In my opinion if the court is satisfied that there are valid debatable issues or chances of success in the appeal, it is a proper case in which bail should be granted for, after all, if the judge who granted the bail is wrong in his opinion that there is a chance of success in the appeal and the appeal is dismissed, the appellant will serve his sentence but he will then be satisfied that he has been given a fair chance to explore all avenues. This in my opinion is the justice of the matter. Justice should not be given piece-meal or rationed. It is so given piece-meal or rationed to know that, though there is a chance of success in the appeal yet since there are no exceptional circumstances (which are undefined), the appellant must remain confined till the hearing; for if he happens to be successful there is no redress, compensation or remedy and all that time is wasted; In my opinion therefore, conditions governing granting of bail pending appeal under our Code should be:

(1) from the record is there a chance of success in the appeal?

(2) will the appellant turn up at the hearing?

(3) would his or her imprisonment have worked hardship in case of success.

With these as my guiding principles I am of the opinion that from the analysis of the judgment by the appellant’s counsel there are strong arguable issues in favour of the applicant to be gone into which go to the foundation of the whole case as to whether the facts and evidence constitute an offence at all. It has been submitted also that the applicant came down himself for the trial from overseas and hence there is no likelihood of his absconding. Imprisonment necessarily works hardship and there is no remedy or compensation or redress when one’s appeal eventually succeeds. The case took a long time to hear and the judgment alone covers 97 pages. The applicant has been in custody for about a year already and there is every reason to believe that the record will take a long time to be prepared.

For these reasons bail is granted in the sum of £G300,000 with three sureties of £G100,000 each to be justified. Passport of applicant to be surrendered.”

The grounds of appeal argued were:

“(1) That the learned judge erred in law in holding that he had jurisdiction to entertain the said application for bail.

[p.580] of [1966] GLR 575

(2) That the learned judge erred in law in granting the said application, as there were no exceptional circumstances made out.

(3) That the learned judge erred in holding that section 332 (1) did not require exceptional circumstances to be made out.

(4) That the learned judge misdirected himself in holding that there were arguable issues as to whether the facts and evidence constitute an offence at all in the applicant’s favour when he had not had the benefit of reading the record of proceedings.” The material allegations in the affidavit supporting the application are that: on 10 May 1965, the applicant was convicted of the offence of stealing by the High Court, Accra, and sentenced to 24 years’ imprisonment with hard labour; the applicant has appealed against his said conviction and sentence and there is a very strong probability that the appeal will succeed and in view of this probability great hardship will be caused to the appellant if he were to stay in prison pending his appeal since the hearing took nearly nine months and it will therefore be some time before the appeal itself is heard. The application for bail was made under sections 96 and 332 (1) of the Criminal Procedure Code, 1960,1 and also under section 22 (2) of the Courts Act, 1960.2 We are of the opinion that sections 96 and 332 (1) of the Criminal Procedure Code, 1960, are not applicable; section 96 is a general provision on bail and section 332 is a specific provision when an appeal is pending before the High Court, and consider that section 22 (2) of the Courts Act, 1960, is the proper section regulating such application for bail when an appeal is pending before the Supreme Court. It provides that “The Supreme Court, or the Court before whom he was convicted, may, if it seems fit, on the application of an appellant admit the appellant to bail pending the determination of his appeal.” For the appellant it was contended that the words “before whom” mean the “judge before whom” and not the “court before which” and that any injustice likely to occur in case the judge was no longer available could be met by an amendment and not otherwise and that there is no ambiguity by the use of the word “whom.”

In further support of the appeal it was argued that there are no exceptional or special circumstances to warrant the granting of bail and that the learned judge acted in excess of his jurisdiction in that he went further than the material before him.

[p.581] of [1966] GLR 575

On the issue of exceptional or special circumstances, reliance was placed on Archbold, Criminal Pleading, Evidence and Practice (35th ed.), p. 355, para. 882 and the Nigerian case of R. v. Tunwashe,33 on the subject “conditions governing granting of bail.” The passage in the paragraph referred to, is the Criminal Appeal Act, 1907, s. 14 (2) which provides that, “The Court of Criminal Appeal may if it seems fit, on the application of an appellant, admit the appellant, to bail pending the determination of his appeal.” Decided cases held to be within and without that principle are discussed. The Nigerian case referred to supra followed the English decisions that bail will not be granted pending an appeal save in exceptional circumstances.

In the said Nigerian case the application was made under section 17 (2) of the West African Court of Appeal Ordinance, 1933,4 for the Colony and Protectorate of Nigeria, which provides as follows: “(2) The Court of Appeal, or, where the appellant was convicted by or in the Supreme Court or the High Court, such Court, or, where the appellant was convicted by a Native Court, the High Court, may, if it seems fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal.”

It will be observed that the same words “may, if it seems fit” are used, and are clearly undefined as to their scope and tenor, but the English decisions were followed in that case.

For the respondent it was contended that the word “whom” was used by inadvertence in the drafting of the section and should have been “which.” In support of this argument reference was made to sections 25 and 42 of the Courts Act, 1960,5 and also rule 56 (1) of the Supreme Court Rules 1962,6 and it was further submitted that to adhere to the interpretation put forward on behalf of the appellant will occasion a miscarriage of justice: see Maxwell on Interpretation of Statutes (11th ed.), p. 221. With reference to the conditions governing granting of bail pending an appeal as laid down in the English reported cases, no settled rules are formulated as to what constitute exceptional or special circumstances, and an examination of the reported cases cited on behalf of the appellant merely shows instances within the principle but not exhaustive conditions governing granting of bail pending the hearing of an appeal. Furthermore, these are English decisions not binding on this court.

[p.582] of [1966] GLR 575

The use of the words “may, if it seems fit” in section 22 (2) of the Courts Act, 1960, vests a discretionary power which is imperative in its exercise. The court is bound to form an opinion, but the exercise of a discretion should not be arbitrary or capricious.

In the present case, the question we had to decide was whether or not the learned judge erred in law in granting bail in the exercise of his discretionary powers. To succeed on an appeal against the exercise of discretionary powers, it must be conclusively proved to the satisfaction of the court that the judge acted on some wrong principle of law or that the exercise of the discretion has resulted in an injustice. The rule of law, upon the construction of all statutes, is, to construe them according to the plain, literal, and grammatical meaning of the words in which they are expressed, unless that construction leads to a plain and clear contradiction of the apparent purpose of the Act, or to some palpable and evident absurdity.

We are unable to subscribe to the interpretation of the word “whom” as indicated by the learned judge in his ruling when he said, inter alia:

“I am of the opinion that the court, a noun, has more weight and controls or governs the pronouns and whether that is a miscalculation on the side of the draftsmen or not it is a rule of English language. They could have easily said ‘judge’ instead of ‘court.’ The use of ‘the court by whom’ merely shows that the court is just personified. By that construction, therefore, jurisdiction is conferred on this court to deal with the matter.”

In considering the nature of the application, we are of opinion, however, that the use of the word “whom” was by inadvertence and should be “which.” In arriving at this conclusion we have been under an irresistible conviction that the legislature could not possibly have intended what the word “whom” grammatically signifies in relation to the word “court.” To do so will lead to a manifest inconvenience, absurdity, hardship or injustice presumably not intended in a particular application of this nature for bail pending an appeal and where the use of a word would cause hardship or injustice the court is empowered to give such interpretation to the words to obviate any such injustice.

For the reasons indicated we dismissed the appeal.

DECISION

Appeal dismissed.

S. K. T.