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AMPONSAH AND ANOTHER v. MINISTER OF DEFENCE AND ANOTHER IN RE THE PREVENTIVE DETENTION ACT, 1958 AND IN RE AMPONSAH AND ANOTHER AND IN RE AN APPLICATI


  • appeal
  • 1960-06-06
  • COURT OF APPEAL
  • GLR 140-146
  • Print

KORSAH C.J., VAN LARE J.A. AND OLLENNU J.


Summary

Habeas Corpus?-Civil matter?-Appeal against refusal of application for writ by Divisional Court?-Whether Court of Appeal vested with jurisdiction to entertain appeal?-Court of Appeal Ordinance, 1957 s. 3?-No inherent jurisdiction in appellate court to entertain an appeal.

Headnotes

The appellants, who had been detained under the Preventive Detention Act, 1958, appealed against the dismissal of their application for a writ of habeas corpus by the Divisional Court, (Simpson J.) on February 12, 1959. At the hearing counsel for the appellants objected to the court being constituted with van Lare, J.A. on the ground that he had previously sat as the presiding member of the court which had disposed of an appeal raising the same issues as the present one. This objection was overruled. Counsel for the respondents (Minister of Defence and another) submitted as a preliminary point that the court had no jurisdiction to entertain the appeal.

Judgement

APPEAL from a decision of the Divisional Court (Simpson J.) on February 12, 1959 refusing an application for a writ of habeas corpus.

JUDGMENT OF KORSAH, C.J.

Korsah, C.J. delivered the judgment of the court. The appellants having been detained under section 2 (1) of the Preventive Detention Act, 1958 applied to Simpson J., sitting in the Divisional Court, Accra, for a writ of habeas corpus ad subjiciendum directed to the Minister of Defence and to the Director of Prisons, to show cause why the said detainees should not be released. The learned judge having refused to make the order prayed for, the instant appeal to this court has been lodged against the Divisional Court's decision.

Dr. Danquah, counsel for appellants, has objected to this court as presently constituted with van Lare, J.A. as a member thereof. Dr. Danquah submits that this matter being one of two appeals of the same character, the first of which had been disposed of by a court constituted by three judges of whom van Lare, J.A. was one, it is not competent for van Lare J.A. to be a member of this court for the hearing of what counsel describes as the second of the two appeals. Counsel further submits that the judgment of the court in the first appeal (which was read by van Lare J.A.) went beyond the matter argued before that court?-that is to say, the question of the jurisdiction of the Appeal Court to entertain that appeal ?- and made a declaration as to the right to habeas corpus in any matter arising under the Preventive Detention Act, 1958.

This is not borne out by the said judgment. In our view that judgment makes no such declaration, and the objection was over-ruled by us, as we did not consider that van Lare, J.A. has any interest whatsoever in the matter before the court, so as to raise the question whether it was competent for him to sit as a member of this court, or to make it necessary for him to advise himself whether it would be proper for him to do so. To justify an allegation of interest or bias against a judicial officer it must be established that he in fact has some interest in the subject-matter, or has such foreknowledge of the facts as to make it impossible for him to adjudicate upon the matter with an independent mind, and without any inclination or bias towards one side or the other in the dispute. The only question which (according to counsel) was argued in the former appeal being the objection to the jurisdiction of the Court of Appeal to entertain that appeal, it cannot be contended that a member of that court would be disqualified to sit as a member of this court when a preliminary objection to the jurisdiction of the court to entertain another such appeal was raised. Very often a judge has to adjudicate in a number of cases of the same character, and involving the same legal issues. It cannot be disputed that a judge is competent to entertain and determine the same issue of law as often as it may be raised before him. It is absurd to suggest that because a ruling on a question of law has been given by a Court of Appeal, therefore a member of that court is thereby "biased by interest ", and becomes disqualified and not competent to sit as a member of the court on some further occasion when the same question of law is to be raised.

We now proceed to deal with the Crown's preliminary objection, of which notice had been given before the date fixed for the hearing of this appeal. It reads: "That no appeal lies to the Court of Appeal from a [p.142] refusal by a Judge of the Divisional Court to grant a writ of habeas corpus ad subjiciendum."

It is contended for the Crown that, this being an appeal from a judgment or order of the Divisional Court sitting in its original jurisdiction and not being an appeal in a criminal case, an appeal lies to the Court of Appeal only if it falls within the ambit of section 3 of the Court of Appeal Ordinance, 1957, and that the judgment or order appealed from does not so fall.

To determine this question it is essential to refer to the relevant statute or statutes by which this court is created, and by virtue of which jurisdiction to entertain appeals is vested in the court. In the first place, it may be emphasized that this court is the creation of the Courts Ordinance, section 3 (2) (b). Its jurisdiction is conferred by section 20A(1):

?"The Court of Appeal shall have jurisdiction to hear and determine such appeals from the judgments of other Courts (including reserved questions of law and cases stated) and to exercise such powers and authorities as may be prescribed by any Ordinance for the time being in force, subject to the provisions of this Ordinance and of any such Ordinance; and, subject as aforesaid, for all purposes of and incidental to the hearing and determination of any appeal within its jurisdiction, the Court of Appeal shall have all the power, authority and jurisdiction vested in the Court from which the appeal is brought."

The law regulating appeals from the Divisional Court (as in this case) is to be found in the Court of Appeal Ordinance, 1957. The instant appeal, not relating to a criminal matter but to a civil right, can only fall within the ambit of section 3, which reads as follows:

"An appeal shall lie to the Court of Appeal from a Divisional Court (sitting in its original jurisdiction) in the following cases:?-

(1) from all final judgments and decisions given in respect of a claim exceeding the sum of one hundred pounds or determining directly or indirectly a claim or question respecting money, goods and other property or any civil right or other matter above the amount or value of one hundred pounds;

(2) from any decree nisi or absolute, provided that no appeal from an order absolute for dissolution or nullity of marriage shall lie in favour of any party who, having had time and opportunity to appeal from the decree nisi on which such order may be founded, shall not have appealed therefrom;

(3) by special leave of the Court making the order, but not otherwise, from all interlocutory orders and decisions made in the course of any suit or matter before a Divisional Court;

?"Provided always that no appeal shall lie except by special leave of the Court making the order or of the Court of Appeal from an order made ex parte or by consent or as to costs only."

It will be observed that while section 20A(1) of the Courts Ordinance declares that the Court of Appeal shall exercise jurisdiction and exercise [p.143] such powers and authorities as may be prescribed by any Ordinance, it is section 3 of the Court of Appeal Ordinance which regulates appeals from Divisional Courts in civil cases.

The gravamen of the preliminary objection by the respondents is that a refusal by the Divisional Court to grant a writ of habeas corpus ad subjiciendum is not a final judgment or decision given in respect of a claim exceeding G100, or determining directly or indirectly a claim or question respecting money goods and other property or any civil right or other matter above the amount or value of G100. It is not disputed that this is an appeal from the ruling or decision of a Divisional Court sitting in its original jurisdiction, and given in respect of a civil right; but it is submitted in support of the objection that section 3 of the Court of Appeal Ordinance specifically limits the jurisdiction of the court to appeals in respect of a claim exceeding G100 or civil rights above the amount of G100; it is contended that a refusal of the Divisional Court to make an order upon an application for habeas corpus ad subjiciendum does not fall within the ambit of section 3, because the civil right sought in this case cannot be quantified. Counsel referred the court to the ruling of this court in Re Okine and Others ([1960] G.L.R. 84).

Dr. Danquah for the applicants has argued that the judgment in Okine fails to determine the real issue, and is not authority for refusing to hear the appeal. He contends that although the court in that case agreed that the appeal related to a " civil right ", the judgment failed to determine in pounds, shillings and pence the value of habeas corpus as such. In support of this contention Dr. Danquah refers to Maxwell on Interpretation of Statutes (9th Edition) p.70:

?"It is said to be the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy. Even where the usual meaning of the language falls short of the whole object of the legislature, a more extended meaning may be attributed to the words, if they are fairly susceptible of it. The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words.?"

Counsel for the appellants has also referred us to section 10 of the Habeas Corpus Act, 1679, and submits that the provisions for forfeiture of the amount of five hundred pounds in the section supports his contention that habeas corpus as a civil right is above the value of one hundred pounds, and therefore comes within the ambit of section 3 (1) of our Court of Appeal Ordinance, 1957. We do not agree. Section 10 of the Habeas Corpus Act, 1679 reads as follows:

"Provided also . . . That it shall and may be lawful to and for any Prisoner and Prisoners as aforesaid, to move and obtain his or their Habeas Corpus as well out of the High Court of Chancery or Court of Exchequer, as out of the Courts of Kings Bench or Common Pleas, or either of them; (2) and if the said Lord Chancellor or Lord Keeper, or any Judge or Judges, Baron or Barons, for the Time being of the degree of the Coif, of any of the Courts aforesaid, in the [p.144] Vacation time, upon View of the Copy or Copies of the Warrant or Warrants of Commitment or Detainer, or upon Oath made that such Copy or Copies were denied as aforesaid, shall deny any Writ of Habeas Corpus by this Act required to be granted, being moved for as aforesaid, they shall severally forfeit to the Prisoner or Party grieved the Sum of five hundred pounds, to be recovered in Manner aforesaid."

We are unable to appreciate how the quantum of penalty provided by law for a breach of duty in respect of a civil right?-habeas corpus, in this case?-can properly be regarded in law as supplying any evidence of a pecuniary nature in regard to the civil right in question. In answer to the further submission that it is within the competence of this court to assess in pounds, shillings and pence the value of a claim of right to habeas corpus (which guarantees the liberty of the subject), we are strongly of the opinion that it is no part of the duty of this or any other court to determine the pecuniary value of a person's right to apply for that writ.

It is conceded that had the terms of section 3 of the Court of Appeal Ordinance been capable of the construction suggested by counsel for appellants, it would be our duty to give such beneficial construction to the section. The most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning; and, further, that phrases and sentences are to be construed according to the ordinary rules of grammar. When, however, the language is not only plain but also admits of only one meaning, the task of interpretation can hardly be said to arise. It is stated in Maxwell on Interpretation of Statutes (9th Edition) p. 14 as follows:

?"It is but a corollary to the general rule in question, that nothing is to be added to or to be taken from a statute, unless there are similar adequate grounds to justify the inference that the legislature intended something which it omitted to express."

Dr. Danquah agrees that for a civil right to be appealable under section 3 of the Court of Appeal Ordinance, the value thereof must be above the amount of G100; but he further contends that, assuming that the wording of section 3 does not contemplate appeals from the decisions of the Divisional Court in respect of habeas corpus, an appeal would lie by virtue of Order 74 of the Supreme Court (High Court) Civil Procedure Rules, and section 83 of the Courts Ordinance. These provisions read as follows:

?"Order 74. Where no provision is made by these Rules the procedure, practice and forms in force for the time being in the High Court of Justice in England shall, so far as they can be conveniently applied, be in force in the High Court of Ghana.

?"Section 83. Subject to the terms of this or any other Ordinance, the common law, the doctrines of equity, and the statutes of general application which were in force in England on the 24th day of July, 1874, shall be in force within the jurisdiction of the Courts."

[p.145]

In effect he contends that, if section 3 of the Courts Ordinance omits to provide for an appeal in the matter of habeas corpus, he can rely upon Order 59 of the Rules of the Supreme Court in England as enabling the court to entertain such appeal.

We are not impressed by this view. Dr. Danquah has obviously overlooked the fact that the said rules are made with specific reference to certain statutory provisions, viz., section 27 (1) of the Judicature Act, 1925 (formerly section 19 of the Supreme Court of Judicature Act, 1873, which did not come into force before 1875) which gives a right of appeal from any order or decision of the High Court. He overlooks, too, the fact that the right of appeal in England has always been a right conferred by statute, not by rules and orders of the Supreme Court. With reference to Order 74 of the Supreme Court (High Court) Civil Procedure Rules, we would point out that it merely regulates procedure and practice to be followed in the High Court, but does not purport to confer jurisdiction. As to section 83 of the Courts Ordinance, this lays down the law which the court may apply in deciding a case when it is vested with jurisdiction.

Finally, Dr. Danquah submits that, as habeas corpus has grown from the English common law, it must be taken that its allied right of appeal grew with the common law, without conferment by statute. He bases this contention upon the dictum of the late Earl of Birkenhead L.C. in the case of the Secretary of State for Home Affairs v. O'Brien ([1923] A.C. at pp. 609-10), which is as follows:

?"In the course of time certain rules and principles have been evolved; and many of these have been declared so frequently and by such high authority as to become elementary. Perhaps the most important for our present purpose is that which lays it down that if the writ is once directed to issue and discharge is ordered by a competent Court, no appeal lies to any superior Court. Correlative with this rule, and markedly indicative in itself of the spirit of our law, is that other which establishes that he who applies unsuccessfully for the issue of the writ may appeal from Court to Court until he reaches the highest tribunal in the land."

It is obvious from the context that what the noble and learned Lord meant by "may appeal from court to court", was (and could only be) ?"apply from court to court", so that the dictum means that whenever a person applies to a court unsuccessfully for the issue of a writ of habeas corpus he may apply from court to court, until he reaches the highest tribunal in the land. This is borne out by an examination of their Lordships' respective judgments in the case of Cox v. Hakes (15 App. Cas. 506), which was followed and applied in O'Brien's case, to which we have referred. In Hake's case there is no suggestion whatsoever that a right of appeal existed under the common law. In our view, if there had been a right of appeal in habeas corpus generally under the common law, there would have been no necessity for an unsuccessful applicant to go from judge to judge or from court to court. We venture to say, however, that even this dictum of the late Earl of Birkenhead is now qualified by the recent decision in Re Hastings (No. 2) [1958] 3 W.L.R. 768 where it was [p.146] held that an applicant for a writ of habeas corpus who had once been heard by a Divisional Court of the Queen's Bench Division could not be heard again on a renewed application (made on the same evidence and the same grounds) by another Divisional Court of the same division, as the decision of a Divisional Court was equivalent to a decision of all the judges of the Queen's Bench Division.

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. We therefore uphold the objection, and we rule that this court has no jurisdiction to entertain the appeal. It is accordingly dismissed.

We wish, however, to refer to the judgment of this court delivered on the 11th April. 1960 in Re Okine and Others [1960] G.L.R. 84. We repeat the hope expressed therein that provision in our law for a right of appeal in a case such as this will receive the consideration of the legislature.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

Danquah

Defendant / Respondent

Amissah

Referals

(1) Re Okine and Others [1960] G.L.R. 84, C.A.

(2) Secretary of State for Home Affairs .. O'Brien [1923] A.C.603;

(3) Cox v. Hakes (1890) 15 App.  Cas. 506;

(4) Re Hastings No. 2 [1958] 3 W.L.R. 768.

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