REPUBLIC v. ASAFU-ADJAYE [1968] GLR 509

DIVISION: COURT OF APPEAL, ACCRA

DATE: 27 MAY 1968

BEFORE: AKUFO-ADDO C.J., APALOO AND LASSEY JJ.A.

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION to the jurisdiction of the Court of Appeal to hear an appeal against an acquittal by the High Court in exercise of its original jurisdiction under Act 230. The facts are sufficiently stated in the ruling of the court.

COUNSEL

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

Sir Edward Asafu-Adjaye for the respondent.

JUDGMENT OF AKUFO-ADDO C.J.

Akufo-Addo C.J. delivered the ruling of the court. As a result of findings made against the respondent by the commission appointed to inquire into irregularities and malpractices in the grant of import licences, the Attorney-General, acting in pursuance of section 4 of the Corrupt Practices (Prevention) Act, 1964 (Act 230), instituted proceedings against the respondent in the High Court. The respondent was charged with three counts of conspiracy to commit extortion and one count of conspiracy to commit corruption. Section 8 (1) of Act 230 provides in substance, that where proceedings are instituted against a person under section 4 of the Act, he shall be convicted of the offence charged against him on the basis of the findings of the commission unless he establishes to the satisfaction of the court that the findings of the commission cannot be sustained. The respondent attempted to do this by legal argument when he appeared before the High Court on divers dates between December 1967 and April 1968. On 5 April 1968, Edusei J. before whom the charges against the respondent were preferred, dismissed them [p.511] of [1968] GLR 509 holding in effect that they were not established. Accordingly, he proceeded to acquit the respondent on all the counts.

The prosecution feeling aggrieved at the said acquittal, appeals to this court on three grounds. These grounds appear, prima facie, to be all questions of law. That such right is conferred upon them by the Criminal Procedure Code, 1960 (Act 30), is not in dispute Indeed section 337 (1) of Act 30 as amended by the Criminal Procedure (Amendment) Act, 1963 (Act 191), s. 3 (e) provides: “The prosecution may appeal on a question of law to the [Court of Appeal] against any decision of the High Court in the exercise of its original jurisdiction . . .” It seems plain that in entertaining the cause from which this appeal has been brought, the High Court exercised an original jurisdiction. On the appeal coming before us, Sir Edward Asafu-Adjaye, who appeared for the respondent, disputed the jurisdiction of this court to entertain the appeal. Relying on what seems to us a trite proposition of law, he contends that no court can entertain an appeal as of right and that such power should be conferred expressly and not by implication. He argues that no power to entertain the instant appeal was expressly conferred on this court and for this proposition, he relies heavily on a decision of this court in Inkumsah v. The Republic [1967] G.L.R. 776 dated 18 December 1967. Sir Edward’s contention seems inconsistent with the plain provisions of paragraph 7 (1) (b) of the Courts Decree, 1966 (N.L.C.D. 84), which confers jurisdiction on this court to entertain an appeal from any decision of the High Court in a criminal matter, but in so far as his argument on the true meaning of this paragraph admits of any precise formulation, it is to the effect that the comma immediately appearing after the words “High Court” should be ignored inasmuch as punctuation does not form part of an enactment. For this proposition Sir Edward relies on Halsbury’s Laws of England (3rd ed.), Vol. 27, at p. 122, para. 211 and an American book entitled Cases and Materials on Legislation by Read and MacDonald. The construction of paragraph 7 (1) (b) which he eventually proffers, is that this court is clothed with jurisdiction to entertain an appeal in a criminal matter only from a decision of the circuit court given in a trial on indictment. We think the contention put forward by Sir Edward can be disposed of in a few words. Whatever the law may be in England or any other common law jurisdictions about the place of punctuation in any enactment, the law of this country puts the matter beyond argument. Section 3 of the Interpretation Act, 1960 (C.A. 4), provides quite plainly that: “Punctuation forms part of an enactment and may be used as an aid to its construction.” That seems to us a [p.512] of [1968] GLR 509 sufficient answer to Sir Edward’s argument. Even if there had been no comma immediately after the words, “High Court” in paragraph 7 (1) (b) of the Courts Decree, 1966, we are unable to see how it could have made any difference to the construction of the unambiguous provision of the sub-paragraph.

As we said, Sir Edward placed a great deal of reliance on the case of Inkumsah v. The Republic (supra) in which this court held that it had no power to entertain an appeal from a summary conviction for perjury by a commission appointed under paragraph 2 (1) of the National Liberation Council (Investigation and Forfeiture of Assets) Decree, 1966 (N.L.C.D. 72). Counsel says, that decision is on all fours with his present contention and invited us to follow it. We cannot agree. In Inkumsah v. The Republic the question which fell to be decided was, whether the commission appointed under paragraph 2 of the N.L.C.D. 72 was a High Court so that a person convicted by it in the exercise of its original jurisdiction could appeal to this court. It was urged at the bar that since some of the powers of the High Court were conferred on that commission, it should be deemed to be such a court for the purpose of paragraph 7 of the Courts Decree, 1966 (N.L.C.D. 84). That argument failed and this court declined jurisdiction on the familiar ground that a right of appeal cannot be implied but must be expressly conferred. In our opinion, the Inkumsah case decided no novel point of principle and its ratio decidendi is no more than a striking affirmation of the age-old principle that no court can arrogate to itself power to entertain an appeal unless such power is expressly conferred by statute. Faced with section 337 (1) of the Criminal Procedure Code, 1960 which expressly confers the right of appeal to this court on the prosecution, Sir Edward says that right was conferred in vacuo inasmuch as there is no forum in which such right could be exercised. For this, he relies on the Supreme Court decision in Commissioner of Police v. Akyeampong [1963] 1 G.L.R. 402, S.C. in which the court is reported to have said at p. 407: “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.” We find it difficult to accept that a statutory right which entitles a person to appeal can properly be described as procedural. We are of course, not unaware that the distinction between a substantive and a procedural right is sometimes very fine and the line between the two is not always easily drawn. But where a statute expressly confers a right of appeal and designates the forum in which such right could be exercised, we should have thought a substantive right was conferred. It is really unnecessary for us to pronounce on the correctness or [p.513] of [1968] GLR 509 otherwise of the decision in Commissioner of Police v. Akyeampong (supra) because we think that even if it is right, it in no way avails the respondent.

The decision from which this appeal was brought is a decision of the High Court. That court exercised its original jurisdiction in accordance with the provisions of an enactment, namely, the Corrupt Practices (Prevention) Act, 1964 (Act 230). Accordingly, the proper forum in which an appeal against that decision could be brought is this court. We hold therefore that this appeal is properly before us. Accordingly the preliminary objection fails and is overruled.

DECISION

Preliminary objection overruled.

S. Y. B. -B.

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