ACHEAMPONG vs. THE REPUBLIC [1997-98] 1 GLR 26

CASES REFERRED TO

(1) Republic v National Public Tribunal; Ex parte Office of the Special Public Prosecutor [1993-94] 1 GLR 478, SC.

(2) Republic v Adu-Boahen [1993-94] 2 GLR 324, SC.

(3) Republic v East Anglian Rly Co (I 850) ER 201.

(4) Macfoy v United Africa Co Ltd [1962] AC 152; [1961] 3 WLR 1405 [961] 3 All ER 1169; PC.

(5) Mosi v Bagyina [1963] 1 GLR 337, SC.

(6) Sambavisam v Public Prosecutor, Federation of Malaya [19501 AC 458; 66 TLR (Pt 2) 254, PC.

(7) Boni v The Republic [1971] 1 GLR 454, CA.

(8) Sam v Comptroller of Customs and Excise [1971] 1 GLR 289.

(9) Bilson v Apaloo [1981] GLR 15, SC.

(10) Afua v Sarbah [1974] 1 GLR 147.

(11) Kumnipah II v Ayirebi [1987-88] 1 GLR 265,SC.

(12) Timitimi v Amabebe [1953] 14 WACA 374.

(13) Zakari v Ndum [1968] GLR 1032.

(14) Ghana Cargo Handling Corporation v State Transport Corporation [1976] 2 GLR 324.

(15) Sasu v Amua-Sekyi [1987-88] GLRD 45; [1987-88] GLR 506, CA.

(16) Bakuma v Ekor [1972]1 GLR 133, CA.

(17) Asare v Dzeny [1976]1 GLR 473, CA.

NATURE OF PROCEEDINGS

APPEAL to the Supreme Court from the majority decision of the Court of Appeal dismissing the appellant’s appeal from the decision of the National Public Tribunal given after the coming into force of the Constitution, 1992 (wherein the tribunal had dismissed the appellant’s review application) on the ground that it had no jurisdiction to hear the appeal. The facts are sufficiently stated in the judgment of Charles Hayfron-Benjamin JSC.

COUNSEL

Agyeman Bempah (with him Mrs Quarshie and Oduro Manu) for the appellant.

[p.29] of [1997-98] 1 GLR 26

J.C. Ammonoo Money (Director of Public Prosecutions) for the Republic.

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

This criminal appeal is presented to us upon the sole ground that: “The Court of Appeal erred in ruling that it had no jurisdiction to hear the appeal.”

Interest in this appeal arises because their lordships in the Court of Appeal were divided in their opinions, and the appellant now seeks to challenge the correctness of the view taken by the majority. Their lordships had been called upon to rule on an objection to the jurisdiction of the Court of Appeal raised by the Director of Public Prosecutions on the ground that the appellate and review division of the National Public Tribunal had already dealt with the matter and there was therefore nothing pending before the court.

The basis for the objection raised by the learned Director of Public Prosecutions was that the present appeal emanated from the erstwhile National Public Tribunal in the exercise of its original jurisdiction in respect of certain narcotic offences in which the appellant was convicted on 15 April 1995. In the exercise of his undoubted statutory right of review, the appellant applied for same on 8 May 1991. The appellant’s application for review does not appear to have been dealt with until 11 February 1993, and his application for review was dismissed on 18 February 1993. However, at the date when his application for review was dealt with the Constitution, 1992 of the Republic had been promulgated on 7 January 1993 and it was clear that proceedings before the National Public Tribunal were affected by section 7 of the transitional provisions to that Constitution.

It may here be mentioned in passing that contrary to the view expressed by the majority of their lordships in the Court of Appeal, what appeared to them to have been a “notice and petition of appeal” was merely an instance of de minimis lax non curat as by section 19(2) of the Public Tribunals Law, 1984 (PNDCL 78) which reads:

“19. (2) A person who is aggrieved by the decision or order of the National Public Tribunal in the exercise of its original jurisdiction may by himself or his representative

[p.30] of [1997-98] 1 GLR 26 present a petition in writing to the National Public Tribunal for a review of its decision or order.” such an application could be informally presented.

It is obvious from the record transmitted to this court that with respect to the appellant’s case, the National Public Tribunal exercised its original jurisdiction. Consequently, the only further application open to the appellant was a petition for review. It is further noted that PNDCL 78 did not provide any form in which the petition should be couched save that it should be “a petition in writing.” Besides, it is apparent from the view expressed by their lordships that they assumed that they were dealing with the objection as affecting the court’s jurisdiction to review. Accordingly, I will amend the heading of the petition to read “petition for review.”

It does not appear from the record that their lordships derived any benefit from the argument of counsel. As Forster JA noted in his opinion, his lordship stated:

“The Supreme Court has had occasion to interpret and apply the provisions of section 7(1) and (4) of the transitional provisions of the Constitution, 1992 in the case of the matter of Republic v National Public Tribunal; Ex parte Office of the Special Public Prosecutor [1993-94] 1 GLR 478, SC where the matter involved the exercise of the jurisdiction of the National Public Tribunal, after the coming into force of the Constitution, 1992.”

The decision in Republic v National Public Prosecuter1(1)sic; Ex parte Office of the Special Prosecutor [1993-94] 1 GLR 478, SC being binding on the Court of Appeal, the failure of the majority of their lordships to refer to it demonstrated that the majority decision was given per incuriam. Nevertheless, it will be useful to state the dictum of Francois JSC in that case, in which his learned and respected sister and brethren fully concurred, as setting out in lucid language the principles to be applied in resolving such issues. Thus wrote his lordship at 493:

“I find the issue simply a question of mathematical computation. The review application was filed on 11 January

[p.31] of [1997-98] 1 GLR 26

1993 as noted above. Notwithstanding the fact that the adjudication panel may be seised of the facts, disputable arguments may be fresh or brought up to the tribunal for the first time. The review starts a new process with a new registration number. To my mind, it cannot earn the description of being ‘partly heard.’ It is not a direct continuation of a matter, but an indirect resuscitation of a past action.”

In the instant appeal, the notice of review of the conviction imposed on the appellant by the National Public Tribunal on 15 April 1991 was filed on 8 May 1991. The application for review not having been heard by the date of the promulgation of the Constitution, 1992, was deemed to be pending. As Francois JSC stated in Ex parte Office of the Special Public Prosecutor (supra): at 493: “The review starts a new process with a new registration number.” Thus the review constituted a “new process” and could have been dealt with by the tribunal but for the intervention of the Constitution, 1992. In our view therefore, the review was pending. In the matter of Republic v Adu-Boahene [1993-94] 2 GLR 324, SC—a ruling which was delivered on the same date as the Ex parte Office of the Special Public Prosecutor decision (supra)—Francois JSC in the expression of his opinion in which his brethren concurred, put matters coming within the ambit of section 7 of the transitional provisions of the Constitution, 1992 beyond doubt. He wrote at 329-330:

“Since the coming into force of the Constitution, 1992 on 7 of January 1993, the jurisdictional powers of the public tribunals have been seriously curtailed. Section 7 of the transitional provisions of the Constitution, 1992 clearly shows that the National Public Tribunal is being allowed slowly to bleed to death, with its ultimate demise to be pronounce six months from 7 January 1993 at the latest. The vehicle for this translation appears in section 7(1), (3) and (4) of the transitional provisions of the Constitution, 1992. At the commencement of the Constitution, 1992, ie on 7 January 1993, the National Public Tribunal could not commence or entertain any new case. All partly heard cases

[p.32] of [1997-98] 1 GLR 26 should be completed not later than six months from 7 January 1993; thereafter its jurisdiction would lapse, and that tribunal would cease to exist.

Cases that were pending before this tribunal immediately before 7 January 1993 should be transferred to an appropriate court on the direction of the Chief Justice. By force of reasoning, if there were no cases before the National Public Tribunal which were partly heard before 7 January 1993, the tribunal would be entirely divested of jurisdiction forthwith. Cases would earn the distinction of being partly heard if they were commenced before the coming into force of the Constitution, 1992.

Pending matters which were saved were those pending immediately before 7 January 1993.”

One problem, however, presents itself in the determination of this appeal. The National Public Tribunal had reviewed its decision on 18 February 1993 and counsel for the appellants invited their lordships “to overrule the objection and either set aside the tribunal’s judgment of the 18 February 1993 or ignore it and proceed to determine the appeal.” To this submission learned counsel standing in for the Director of Public Prosecutions conceded that the review proceedings had taken place during the currency of the present Constitution, 1992 and therefore the hearing contravened the provisions of section 7 of the transitional provisions of the Constitution, 1992. Learned counsel, however, submitted that their lordships had no jurisdiction to set aside the review decision given by the National Public Tribunal on 18 February 1993.

Their lordships of the Court of Appeal did not consider that they were invested with the jurisdiction to set aside the judgment of another court or tribunal which had been given without jurisdiction. Giving, as their reason for so saying they wrote: “. . . the law is that however void one may believe a judgment to be, that judgment is valid and of full force until set aside by a court of competent jurisdiction.” In support of this reasoning their lordships placed reliance on the dictum of Lord Truro in the English case of Russell v East Anglian Rly Co (1850) ER 201 at

[p.33] of [1997-98] 1 GLR 26

206 and on other dicta in McFoy v United Africa Co [1961] 3 All ER 1169 and Mosi v Bagyina [1963] 1 GLR 337, SC.

With all due respect to their lordships, I think they misconceived the issue of law involved in the matter. The Russel case (supra), was concerned with disobedience to court orders without taking prior proper steps to set them aside. Their lordships, however, conceded that the McFoy and Bagyina cases (supra) “empower a party affected by a void judgment to have it set aside as a matter of course.” (The emphasis is mine.) In the present appeal, the complaint was that the review judgment was void as having been given without jurisdiction. In my view, and on the authorities, a court such as the Court of Appeal in exercise of the special jurisdiction conferred upon it by virtue of the Constitution, 1992 was capable of setting aside any such decision clearly given without jurisdiction. I will therefore set aside the decision of the National Public Tribunal in the exercise of its review jurisdiction on 18 February 1992(2)[sic].

There is one matter which was raised at the hearing and this is concerned with whether in this appeal there was a compliance by His Lordship the Chief Justice with the provisions of section 7(4); of the transitional provisions of the Constitution, 1992. In fact, there does not appear to be any statement on the record that this matter was transferred by any written notice to the Court of Appeal. In my view, it is evident that the matter was placed before their lordships of the Court of Appeal and there was jurisdiction under section 7(4) of the transitional provisions of the Constitution, 1992 for the Court of Appeal to hear and determine the review application. Consequently, the absence of any formal transfer by the Chief Justice would not vitiate the proceedings before the Court of Appeal. By the terms of the transitional provisions to the Constitution, 1992 the Chief Justice being the proper officer who could transfer cases pending before the National Public Tribunals at the date of the promulgation of the Constitution, 1992 to any other court or tribunal, he cannot be said not to have exercised that power, even if he so acted informally.

The situation was covered by the maxim omnia praesumuntur rite et solemmeter esse acta. The review application is therefore pending before the Court of Appeal. The appeal is accordingly allowed. The judgment is set aside: so also is the decision of the

[p.34] of [1997-98] 1 GLR 26 erstwhile National Public Tribunal in respect of the appellant’s notice of review. The notice of review is restored to the list and is to be heard and determined by the Court of Appeal.

JUDGMENT OF AMPIAH JSC.

I agree.

JUDGMENT OF KPEGAH JSC.

I agree with the opinion of my brother Charles Hayfron-Benjamin JSC just read.

JUDGMENT OF AKUFFO JSC.

I also agree.

JUDGMENT OF ATUGUBA JSC.

Upon this matter coming up before the Court of Appeal, objection was taken that the same had already been determined by the National Public Tribunal and that there was therefore nothing pending for the court to determine. This was countered to the effect that that determination was a nullity in view of the provisions of section 7 of the transitional provisions of the Constitution, 1992. The majority of the court upheld the objection and declined jurisdiction in the matter, upon the following grounds:

(1) the matter had already been determined by the National Public Tribunal in the exercise of its review jurisdiction;

(2) the Court of Appeal has no jurisdiction to determine whether the said decision of the National Public Tribunal contravened section 7 of the transitional provisions of the Constitution, 1992 in view of the provisions of article 2(1) of the Constitution, 1992;

(3) the Court of Appeal is not a successor to the National Public Tribunal so as to set aside the reviewed decision of the National Public Tribunal, under the inherent jurisdiction; and

(4) “And the law is that however void one may believe a judgment to be, that judgment is valid and of full force until set aside by a court of competent jurisdiction.”

The objection raised was, to my mind, the plea of “res judicata pro veritate accipitur.” It is trite learning that for successful reliance on that plea, it must, inter alia, be shown that the court that made the prior determination is one of competent jurisdiction. Needless to say, despite certain nice distinctions touch

[p.35] of [1997-98] 1 GLR 26 ing criminal matters, as Lord MacDermott said in Sambavisam v Public Prosecutor, Federation of Malaya [1950] AC 458 at 479, PC: “The maxim ‘Res judicata pro veritate accipitur’ is no less applicable to criminal than to civil proceedings.” This dictum was quoted with approval by Azu Crabbe JA (as he then was), delivering the judgment of the Court of Appeal in Boni v The Republic [1971] 1 GLR 454 at 462, CA. Unless otherwise debarred by law, a court before which reliance on that maxim is placed has the power to ascertain its validity, including the element of competent jurisdiction, aforesaid. That barrier in this case was said to be constituted by the provisions of article 2(1)(b) of the Constitution, 1992 which are as follows:

“2. (1) A person who alleges that: …

(b) any act or omission of any person is inconsistent with or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

It is clear from this provision that both the allegation and the act or omission in question, must relate to “a person.” A court, however, is not a person. Taylor J (as he then was) when pressed with a similar argument in Sam v Comptroller of Customs and Excise [1971] 1 GLR 289 at 316 said: “Now article 2 reads:

‘(1) Any person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment is inconsistent with, or is in contravention of, any provision of this

Constitution may bring an action in the Supreme Court for a declaration to that effect.

(2) The Supreme Court shall, for the purposes of a declaration under the provisions of the preceding clause, make such orders and give such directions as it may consider appropriate for giving effect to or enabling effect to be given to the declaration so made.”’

[p.36] of [1997-98] 1 GLR 26 In my view, that article does not apply to this court, exercising as it does now its judicial function of interpretation. It looks ridiculous for the court to be equated with “any person” in the article and to argue that the court should bring an action in the “Supreme Court”, if it holds that an enactment is “inconsistent with the Constitution.” In Bilson v Apaloo [1981] GLR 15 at 49, the Court of Appeal sitting as the Supreme Court held that “A Court of Appeal consisting, in popular parlance, of a bench of judges, is not a legal person in the juristic sense.” In the circumstances, article 2(1)(b) of the Constitution, 1992 relied on by the majority to disable themselves from pronouncing on the validity of the National Public Tribunal’s purported review of its decision in the teeth of the constitutional injunction placed on the same by section 7 of the transitional provisions of the Constitution, 1992 is, with the greatest respect, inapplicable since the said tribunal is not a person whose act or omission was called in question.

The Court of Appeal therefore was entitled to ignore the said purported review by the tribunal since the same was patently null and void for want of jurisdictional competence on its part. This it could do in consequence of the due application of the rules upon which the maxim res judicata pro veritate accipitur is based. When that maxim is inapplicable to a prior decision on a matter, the same is at large and can be adjudicated upon in subsequent proceedings.

In Okomfo Afuah v Sarbah [1974] GLR 147 at 156 Abban J (as he then was) said:

“In The Doctrine of Res Judicata by Spencer Bower and Turner (2nd ed.), para. 113 at p. 92, the learned editor has clearly stated the legal position. He says:

‘Competent jurisdiction is an essential condition of every valid res judicata, which means that, in order that a judicial decision relied upon, whether as a bar, or as the foundation of an action, may conclusively bind the parties, or (in the case of in rem decisions) the world, it must appear that the judicial tribunal pronouncing the decision had jurisdiction over the cause or matter, and over the parties, sufficient to warrant it in so doing.”’

[p. 37] of [1997-98] 1 GLR 26

Again at 159 he stated thus:

“At p. 99, para. 123 of The Doctrine of Res Judicata (supra) the learned editor states:

‘For where a statute has prescribed the subject-matter of the jurisdiction of an inferior court, and that court erroneously decides that it has jurisdiction, its decision cannot be effective to bestow upon itself a jurisdiction which the statute never gave; and a superior court may subsequently, on the same issue being raised in a later action, decide that there was no jurisdiction in the inferior court to deal with the matter in dispute, and accordingly may proceed to make such fresh adjudication between the parties as may be just.”

There is a well-established general principle of law that proceedings that are a nullity are automatically null and void and upon application for the purpose, they must be set aside ex debito justitiae and the court itself is under a duty to set them aside, time is of no essence here. This is the principle laid down in Mosi v Bagyina (1963) 1 GLR 337, SC. The requirement of competent jurisdiction as an element of res judicata to which I have adverted supra, is to my mind, a sequel to this general principle of law.

I will, however, stress that it does not mean that a court is bound by the proceedings of another court that are a nullity unless it can by itself set aside those proceedings. The crux of the principle of Mosi v Bagyina (supra) is that such proceedings are automatically void and can be treated as such, without more ado. This means that such proceedings stand nullified ex vigore legis, that is, by operation of law and can be ignored simpliciter. This principle has recently been vigorously reasserted by Abban and Amua-Sekyi JJA (as they then were) in Kumnipah II v Ayirebi [1987-88] 1 GLR 265, SC. I have had recourse to the full judgments delivered in that case. The clarity of the principle is conveyed by a statement of Lord Denning in MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 at 1172, PC that:

“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court

[p.38] of [1997-98] 1 GLR 26 to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad.”

This same passage was quoted with approval in Mosi v Bagyina (supra) and by Abban JA (as he then was) in Kumnipah II v Ayirebi (supra) at 281. Amua-Sekyi JA (as he then was), in the latter case put the principle in its fullest perspective when he said at 285:

“Jurisdiction means the power or authority to adjudicate. Where it is lacking, any judgment or order emanating from the court or judge is a nullity and a person adversely affected by it is entitled to ignore it: see R v Fulham, Hammersmith and Kensington Rent Tribunal; Ex parte Zerek [1951] 2 KB at 10; or to sue for a declaration that it is a nullity: Burr v Anglo-French Banking Corporation Ltd (1933) 49 TLR 405 at 406; or to have it set aside by the court upon a review: Forfie v Seifah [1958] AC 59, PC; or an application by summons or motion: Craig v Kanssen [1943] KB 256, CA; Mosi v Bagyina [1963] 1 GLR 337, SC; or on appeal: Lazard Brothers & Co v Midland Bank Ltd [1932] KB 617, CA; or by a fresh action: Gbadago v Tsili (1957) 2 WALR 219, WACA. Indeed, there is no fixed procedure for dealing with such an order which has been described as ‘not only bad, but incurably bad’ per Lord Denning in MacFoy v United Africa Co Ltd [1962] AC 152 at 160, PC.”

I will, however, remark that it is questionable whether a judgment that is a nullity can be reviewed. But it is equally clear that the constitution of the court, for the purpose of setting aside such a judgment, is immaterial: see Mosi v Bagyina, (supra). I understand that to mean that whether a void judgment is set aside professedly under the review or other jurisdiction of the court is immaterial. The statement of the law by Amua-Sekyi JA (as he then was), just set out, supra, is borne out by several cases, some of which I will refer to. In Timitimi v Amabebe (1953) 14 WACA 374 at 377 Coussey JA said:

[p. 39] of [1997-98] 1 GLR 26

“The plaintiff tendered the proceedings and judgment, exhibit ‘B’, as constituting one of his muniments of title to the land. Although the Court below could not set aside the proceedings and judgment of the Native Court, yet when the matter came before the Court in the ordinary course of its jurisdiction and the plaintiffs relied upon them, then in that way, the jurisdiction of the Native Court whose proceedings were pleaded by the plaintiffs-respondents could be enquired into and pronounced upon. The party against whom it was tendered in evidence could establish its invalidity by showing that the Court from which it emanated had no jurisdiction.”

In Zakari v Ndun [1968] GLR 1032 at 1036-1037, Edusei J (as he then was) said:

“It follows that the order of the judge enlarging time for bringing the appeal made on 27 November 1967 was without jurisdiction. The question that falls for determination is whether I, a High Court judge, having equal jurisdiction with the judge who granted the extension of time can ignore his order as having been made without jurisdiction. It would seem that I am perfectly entitled to ignore it as being a nullity, that is as if the order does not exist at all in view of the judgment in African Woods Ltd. v. Administrator of Stool Lands [1962] 2 G.L.R. 24, S.C. See also the judgment of Diplock LJ in the case of Anisminic v. Foreign Compensation Commission [1967] 2 All E.R. 986 at pp. 992-1008, C.A.”

A most spectacular application of the principle is the case of Ghana Cargo Handling Corporation v State Transport Corporation [1976] 2 GLR 324 in which Edusei J (as he then was) held that an order of the Court of Appeal, after allowing an appeal in respect of that case, that “it shall be heard and disposed of not later than two months from the date hereof” was not binding on him because the same had been made per incuriam of the provisions of Order 36, r 19 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) which gives the trial judge wide discretionary power to

[p. 40] of [1997-98] 1 GLR 26 adjourn a trial from time to time in the interest of justice. While, the view of Edusei J (as he then was) as to the effect of Order 36, r 19 of LN 140A vis-à-vis the order of the Court of Appeal may generate legal debate, his decision, in the main, buttresses the principle that where jurisdiction is lacking, the pursuant proceedings cannot have any effect whatsoever. In Sasu v Amua-Sekyi [1987-88] 1 GLR 506, CA, the Court of Appeal ruled that the applicant could not apply to it for stay of execution of its judgment since his appeal to the Supreme Court was filed without the requisite statutory leave of the Supreme Court. It inferentially thereby ignored the pendency of the purported appeal to the Supreme Court as invalid, though it could not and did not set the same aside.

The fundamentality of a court’s jurisdiction and the effect of its absence on the proceedings of a court are recognised and preserved statutorily. Thus section 39 of the Evidence Decree, 1975 (NRCD 323) states:

“39. (1) Any Court of Ghana, or any court of general jurisdiction . . . acting as such, is presumed to have acted in the lawful exercise of its jurisdiction.

(2) This section applies only when the act of the court or judge is under collateral attack, namely where the jurisdiction of the court is not directly in issue.”

Consequently, in Bakuma v Ekor [1972] 1 GLR 133, CA at 139 Sowah JA (as he then was) said of void orders as follows:

“Against such orders, certiorari can still issue to challenge jurisdiction and the orders made thereon; the party affected may even choose to ignore those orders (though I would myself consider it extremely rash3(3)[sic] so to do) . . .”

And in Asare v Dzeny [1976] 1 GLR 473, CA. it was held, as stated in the headnote:

“(3) It was generally incompetent to review as on appeal the order or judgment of a court of co-ordinate jurisdiction. Yet Francois J. was bound to ascertain whether or not the judgment relied on as an estoppel per rem judicatam was

[p.41] of [1997-98] 1 GLR 26 valid in the sense that Prempeh J. had jurisdiction to pronounce that judgment.”

I have no doubt therefore that on the strength of the general principle of law relating to the absence of jurisdiction on the effect of an order of a court, the Court of Appeal could have simply ignored the purported determination of this case on review by the National Public Tribunal.

Be that as it may, the Court of Appeal was bound by the Constitution, 1992 to hold that the purported determination of the review application in this case by the National Public Tribunal was a nullity for want of jurisdiction. Where the very question of law that has arisen in a case has already been adjudicated upon by the Supreme Court, the party raising the said question cannot be turned away by reason of article 2(1)(b) of the Constitution, 1992 which was relied on by the majority of the Court of Appeal in this case. Article 2(1)(b) of the Constitution, 1992 is not couched in compulsive language. In such a situation, the court should rather apply the more specific and imperative provisions of article 129(3) of the Constitution, 1992 which state that: “. . . all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.”

The question in this case, namely whether the National Public Tribunal could competently deal with a matter that was not part-heard before the coming into force of the Constitution, 1992 has been settled in two, almost simultaneous, decisions of this court in Republic v Adu-Boahen [1993-94] 2 GLR 324, SC and Republic v National Public Tribunal; Ex parte Office of the Special Public Prosecutor [1993-94] 1 GLR 478, SC. Unless otherwise justified by law, all other courts in Ghana, are bound by these decisions.

In the light of the foregoing, the Court of Appeal was bound to ignore the purported determination of the review application in this case, irrespective of the question whether it had the super-added power to set aside the same or not.

On the question of the regularity of the transfer of this case from the National Public Tribunal by the Chief Justice to the Court of Appeal, I agree that the maxim omnia praesumutur rite esse acta applies. The mode by which the transfer is to be made is not spelt out in section 7(4) of the transitional provisions of the Con-

[p.42] of [1997-98] 1 GLR 26 stitution, 1992 the enabling provision. Furthermore, an appellate court is bound by the record of appeal. In the record of appeal in this case, the majority stated as follows:

“This is a ruling in respect of a preliminary objection by the learned Director of Public Prosecutions against the hearing of this appeal transferred to this court by the Chief Justice in exercise of his power under section 7(4) of the transitional provisions of the Constitution, 1992.”

(The emphasis is mine.) Since the purported determination of the National Public Tribunal, aforesaid, is a nullity, it follows that the review application in this case remained pending before the tribunal, and it could be transferred to the Court of Appeal by the Chief Justice as he chose, under section 7(4) of the transitional provisions.

I therefore concur in the allowance of this appeal, the setting aside of the majority judgment of the Court of Appeal and the restoration of the review application to the list to be heard and determined by the Court of Appeal.

DECISION

Appeal allowed

Order accordingly.

LSNA

Endnotes

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