ARTHUR vs. THE REPUBLIC [1973] 1 GLR 205

CASE REFERRED TO

Rooke’s Case (1598) 5 Co.Rep. 99b; 77 E.R. 209.

NATURE OF PROCEEDINGS

APPLICATION for an order of the Court of Appeal to have a dismissed criminal appeal re-entered. The facts are fully stated in the ruling.

COUNSEL

P. A. Adjetey for the applicant.

S. E. Asamoah, Senior State Attorney, for the Republic.

JUDGMENT OF AZU CRABBE AG.C.J.

Azu Crabbe Ag.C.J. delivered the ruling of the court. The applicant was convicted at the High Court, Accra, on 28 April 1970, upon an

[p.206] of [1973] 1 GLR 205

indictment containing eight counts charging him with extortion and was sentenced to twelve months’ imprisonment with hard labour on each count. On 30 April he filed an appeal against his conviction, and was subsequently released on bail pending the hearing and determination of the appeal. The appeal was listed for hearing on 16 October 1972, but on that day the applicant failed to attend the court, and his appeal was therefore dismissed and an order was made for his arrest and and imprisonment. On 10 November 1972, the applicant was arrested on warrant and taken to prison to serve his sentence of imprisonment.

The present application is for an order that the appeal by the applicant be re-entered for hearing, and the grounds, upon which the application is founded, are set out in the following relevant paragraphs of an affidavit by the eldest son of the applicant:

“(3) The appellant and I as his eldest son who had been concerned about the fate of the appeal were waiting to receive a notice from the court that the appeal had been fixed for hearing on a particular date.

(4) We were both unaware that we should watch the Ghana Gazette for publication of the appeal as having been listed for hearing nor did we know that we should watch the notice board of the Court of

Appeal in the law courts building to find out when the appeal would come on for hearing.

(5) We did not even know that the record of appeal was ready and that we should collect our copy upon payment of the necessary fees.

(6) Such was the state of affairs until 10 November 1972 when two policemen appeared at our house with a warrant to arrest my father on the ground that his appeal had been called on 16 October 1972, and he being absent, the appeal had been dismissed and so an order had been made for his arrest and imprisonment.

(7) My father, to the best of my knowledge, information and belief has been anxious to prosecute this appeal and it is only because of the matters set out above that neither he nor a legal practitioner representing him was present in court when the appeal was called.

(8) In the circumstances on the instructions of my father the appellant who is an old man in his seventies, I swear to this affidavit praying the court to exercise its discretion to order that the appeal be re-entered for hearing on its merits.”

When counsel for the applicant was asked by the court to show the specific rule under which the application had been brought, he was unable to point out any rule of practice under Part III of the Supreme Court Rules, 1962 (L.I. 218), relating to criminal appeals. Counsel, however, referred the court to rule 23 (2) of Part II of the Supreme Court Rules, 1962 (L.I. 218), which relates to the procedure where a

[p.207] of [1973] 1 GLR 205

party in a civil appeal fails to appear when his appeal is called, and he invited the court to follow the principle underlying that rule. That sub-rule reads as follows:

“When an appeal has been struck out or dismissed owing to the non-appearance of the appellant the Court may, on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing.”

In striking out the applicant’s appeal the court appears to have acted under rule 56 (5) of Part III which provides that:

“An appellant who has been admitted to bail shall be personally present at each and every hearing of his appeal and to the final determination thereof. The Court may, in the event of such appellant not being present at any hearing of his appeal, if they think right so to do, decline to consider the appeal, and may proceed summarily to dismiss the same, and may issue a warrant for the apprehension of the appellant in Form 18 in the Third Schedule:

Provided that the Court may consider the appeal in his absence, or make such other order as they think fit.”

It seems clear to this court that Part III does not contain any provision analogous to rule 23 (2), but, in the opinion of this court, it would be a blot on the law if the law were to be such that an appellant in a criminal case whose liberty is in jeopardy should have no opportunity of explaining his absence from court so that he can have his appeal heard on the merit, whereas an appellant in a similar position in a civil appeal is entitled, upon satisfactory explanation, to have his appeal re-entered for hearing and determination on the merit. In the opinion of this court, there can be no justification for denying an appellant in a criminal appeal an indulgence which is usually granted to an appellant in a civil appeal.

Both counsel for the applicant and the respondent agreed with the court that in the absence of specific provisions in the rules this court had an inherent jurisdiction to do substantial justice in any matter coming before it, more so if it is a matter affecting the liberty of the citizen. The granting of an application for re-entering an appeal, after it had been struck out or dismissed for want of prosecution, is not as of course, but is in the discretion of the court, a discretion which must not be exercised arbitrarily but judicially, according to the rules of reason and justice: see Rooke’s Case (1598) 5 Co.Rep. 99b.

After considering the grounds alleged in the affidavit and all the surrounding circumstances, this court came to the conclusion that the ends of justice would be better served by granting the application, and it accordingly made the order for re-entering the appeal as prayed.

DECISION

Application granted.

S. O.