P.A.T OKINE vs PATRICK ARYEE ARYEETEY & NEW JUABEN MUNICIPAL ASSEMBLY
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KOFORIDUA - A.D 2018
P. A. T. OKINE - (Plaintiff/Appellant)
PATRICK ARYEE ARYEETEY AND NEW JUABEN MUNICIPAL ASSEMBLY - (Defendants/Respondenst)

DATE:  9 TH MAY, 2018
SUIT NO:  H1/27/2016
JUDGES:  K.A. ACQUAYE JA (PRESIDENT), S. KWEKU GYAN J.A, M. MABEL AGYEMANG (MRS) J.A
LAWYERS: 
JUDGMENT

ADJEI, J.A:

The Appellants herein are accused persons before the District Court, Adjabeng, Accra. The Appellants have been charged for two counts of offences namely; conspiracy to commit murder contrary to section 23 (1) of Act 29/60 and murder contrary to section 46 of Act 29/60.

 

The brief facts of the case presented before the District Court were that the 1st Appellant is a land guard and the 2nd, 3rd and 4th Appellants are traders living at Oduman. On 14th October, 2016, the 1st Appellant accused the deceased, Baba Mahmoud for having stolen his motor bike. The Appellants called the deceased on phone to meet them and when he arrived at the scene, the Appellants attacked him with sticks and assaulted him. The Appellants stripped the deceased naked and subjected him to severe beatings. The Appellants further dragged the deceased to the nearby bush, abandoned him and was subsequently found dead. The Appellants absconded and were arrested from their hideout.

 

The District Court remanded the Appellants at their first appearance in Court on 30th November,

2016. On 11th January, 2017 the District Court refused to grant the application for bail made by the Appellants.

 

The Appellants on 31st January, 2017 filed an application to the High Court for bail. The Appellants in their repeat application to the High Court for bail denied completely the facts presented by the prosecution and deposed that there are persons of substance who have offered to stand as sureties for them . The High Court on 13th April, 2017 refused the application for bail. The High Court in refusing the application for bail held thus:

“I find in paragraph 11 of the affidavit in opposition that the Applicants were arrested in their hideout by the youth in the town of Oduman and handed over to the Police.

This, Counsel for the Applicant has not disputed when asked if he had something to say in respect of the affidavit in opposition. 

In the circumstance, I am on the view the Applicants are not likely to appear to stand for trial when released on bail. I therefore refuse bail application with liberty to re-apply if trial is unduly delayed”.

 

The legal effect of the statement by the High Court Judge to the effect that the Applicants have liberty to re-apply for bail if the trial is unduly delayed shall be discussed in the course of the judgment.

 

The Appellants did not appeal against the ruling of the High Court delivered on 13th April, 2017.

 

The Appellants subsequently filed another application for bail before the High Court and which was resisted by the prosecution. The High Court on 9th August, 2017 refused to grant bail to the Appellants which was premised on the first application for bail filed before the High Court.

 

The Appellants subsequently applied to the Court of Appeal for leave to file an appeal out of time against the refusal by the High Court to grant bail with respect to the second application which was dismissed on 9th August, 2017.

 

The Appellants in their notice of appeal filed on 24th January, 2018 pursuant to the leave granted by the Court of Appeal stated three main grounds of appeal and they are as follows:

“a. The learned trial judge erred when he failed to hold that the failure of the prosecution to bring accused  persons  to  trial,  more  than  a  year  after  their  arrest  and  detention  amounts  to unreasonable delay, seeing as prosecution claims to have eye witnesses to corroborate and strengthen their case against the Accused-Appellants.

b. That the learned trial Judge erred in holding that the Accused-Appellants, were arrested from their hideout by the youth of the Oduman township when indeed they voluntarily handed themselves in at the Odorkor Police Station.

c. That the leaned trial Judge erred when he failed to consider the dicta of the Supreme Court regarding the grant of bail in offences such as the ones accused have been charged with”.

 

On 6th June, 2018 when the appeal came on for hearing, the Court of Appeal invited the Appellants to comment on the competence of the appeal. We address the competence of the appeal. The law generally is that an appeal is a creature of statute and where it has not been created by statute, it cannot be exercised. The law on appeal is that an appeal is a creature of statute and an aggrieved party who decides to appeal against a decision shall comply with the statute which conferred the right of appeal on the party. In the case of Karletse Panin vs the Nuro [1979] GLR 194, it was held that an appeal is a creature of statute and a person seeking to exercise a right of appeal shall comply with the law which created the appellate jurisdiction particularly with respect to the time within which the appeal is to be filed else the person will forever be barred from invoking same.

 

In the case of in re Amponsah [1960] GLR 140 at page 146 it was held thus:

“We are clearly of the opinion that an appellate court has no inherent jurisdiction to entertain an appeal from an order or decision given by a court below it. In all causes or matters an appeal lies only if given by statute”.

 

Where an appellate jurisdiction has not been created by statute, a court of law shall not have jurisdiction to exercise.

 

We recount the chronology from the institution of the case to the filing of the appeal before this Court. The Appellants applied for bail before the District Court and when it was refused, the application was repeated before the High Court. The High Court refused the application on 13th April, 2017. The Appellants had one month to appeal against the decision of the Court of Appeal. Section 11(6) & (7) of the Courts Act, 1993 Act 459 which is on criminal appeals from the High Court to the Court of Appeal provides that:

“6. Where a party desires to appeal to the Court of Appeal in a criminal case, that party shall give notice of appeal or notice of an application for leave to appeal within one month of the decision appealed against.

7. The Court of Appeal or the Court whose decision is appealed against may extend the time specified in subsection (6)”.

 

The Latin maxim expressio unius est exclusio alterius becomes relevant here even though it is considered as a bad master and a good servant. Section 11(6) of the Courts Act has clearly distinguished appeals in criminal cases from appeals in civil and we hold that the express mentioning of criminal appeals to include both interlocutory and final appeals does not apply to civil appeals. Admittedly, unlike civil appeal, the Courts Act does not make a distinction between interlocutory appeal and final appeal in criminal matters from the High Court to the Court of Appeal. A person who intends to appeal against either interlocutory or final appeals in criminal matters from the High Court to the Court of Appeal shall give notice of appeal or notice of an application for leave to appeal within one month of the decision appealed against. The law further does not distinguish between an interlocutory appeal in criminal matters and final appeals in criminal matters with respect to extension of time, and, therefore, an extension of time to file a criminal appeal may be granted in both final and interlocutory appeals. With regards to civil appeal, the Court of Appeal Rules, C.I. 19 provides for three months within which a final appeal may be filed as of right and another three months within which an extension of time may be made. With respect to interlocutory appeal in a civil matter from the High Court to the Court of Appeal, Rule 9 sub rule 1 (a) of C. I. 19 provides for twenty-one days within which such an appeal shall be filed without making provision for extension of time.

 

Where a repeat application is dismissed by an appellate court, an aggrieved party may either appeal against it or go back to the trial court to pursue the matter. The Appellants who did not file an appeal against the refusal of the repeat application by the High Court should have either appealed against it to the Court of Appeal or go back to the District Court where the substantive matter was pending but decided to repeat the application again before the High Court. The question to pose is on what basis was the second repeat application filed? A repeat application is filed after an application which is one of the repeat applications has been dismissed or refused by the Court below unless a statute provides otherwise. An example is provided by Rule 9 sub rule (8) of the Court of Appeal Rules which clothes jurisdiction on a person who has filed an application for extension of time to appeal in civil appeal before the High Court or the Circuit Court to abandon it and move the Court of Appeal where the application is not heard after one month from the date it was filed.

 

There was no substantive matter before the High Court to clothe the Appellants with the right to re-apply for bail where the hearing of the matter has been unduly delayed. The High Court Judge could have made such an order where the substantive matter was not before him and he made the order without jurisdiction. In a criminal matter an accused person can make several applications for bail before the court where the substantive matter is pending but where the application is filed as a repeat one, the appellate Court’s jurisdiction is taken away immediately that right is exhausted. The Appellant may go back to the Court below to invoke its jurisdiction again and where it is refused, it may come back to the appropriate appellate court clothed with jurisdiction to file another repeat application.

 

We are satisfied that the second repeat application filed by the appellants before the High Court was filed contrary to law. The Court of Appeal granted extension of time to the Appellants to file an appeal against the second repeat application which was filed contrary to law and was therefore void. We would therefore borrow the words of Lord Denning in MacFoy vs. United Africa Co. Ltd [1961] ER 1169 at 1172, DC where he stated thus:

“If an act is void then it is in law a nullity. It is not only bad, but incurably bad ... and every proceeding which is founded on it is also bad and incurably bad”.

 

We hold that a court has no inherent right of appeal unless it is conferred by a statute. The notice of appeal before this Court is void and we accordingly dismiss same. The notice of appeal and the written submissions founded on it are void we accordingly hold that there is no appeal before the Court to make any valid decision on it.

 

(SGD)

DENNIS ADJEI

JUSTICE OF APPEAL

 

(SGD.)

AYEBI, J.A                        I agree                     EMMANUEL K. AYEBI

   JUSTICE OF APPEAL

 

(SGD.)

SUURBAAREH,J.A     I also agree             GBIEL SIMON SUURBAAREH

    JUSTICE OF APPEAL

 

 

 

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