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IN RE THE PREVENTIVE DETENTION ACT, 1958 AND IN RE OKINE AND OTHERS AND IN RE APPLICATION FOR WRITS OF HABEAS CORPUS SUBJICIENDUM


  • appeal
  • 1960-12-23
  • SUPREME COURT
  • GLR 267-269
  • Print

VAN LARE, GRANVILLE SHARP AND SARKODEE-ADOO, JJ.S.C


Summary

Practice?-Appeal?-Application to restore to list for hearing an appeal dismissed for want of jurisdiction?-Jurisdiction subsequently conferred by Courts Act, 1960?-Whether Act has retrospective effect?-Section 13 only applicable to cure imperfections in an existing appeal.

Headnotes

An appeal against the refusal by the High Court to grant a writ of habeas Corpus was dismissed by the Court of Appeal on 11th April, 1960, on the ground that, as the law then stood, the Court of Appeal had no jurisdiction to entertain it. The Courts Act, 1960, which came into operation on 1st July, 1960 conferred jurisdiction on the Supreme Court to hear appeals in such matters. It was now sought to restore the appeal to the list for hearing by the Supreme Court. Counsel for the applicants contended that the Act should be given retrospective effect and relied on section 13 of the Act which provides that "Notwithstanding anything to the contrary in any other provision of this Act the Supreme Court may entertain any appeal from any Court on any terms which it may think just".

Judgement

APPLICATION by way of motion to restore to the list for hearing an appeal to the Supreme Court, which had been dismissed on 11th April, 1960, after a full hearing (This is reported at p. 84 ante).

JUDGMENT OF GRANVILLE SHARP J.S.C.

Granville Sharp, J.S.C. delivered the judgment of the court: This is an application by way of motion to the court to restore to the list for hearing an appeal to the Court of Appeal which was on the 11th April, 1960 dismissed on the grounds that, as the law then stood, the Court of Appeal had no jurisdiction to entertain it. No appeal from this decision was lodged with the Judicial Committee of the Privy Council and no more was heard of it until the 10th November, 1960 when this motion was filed in the Supreme Court.

The grounds on which the application is made are in reality immaterial because Dr. Danquah, for the applicants, has felt himself compelled to admit that there does not exist in the Rules of the Supreme Court, any rule empowering the court to restore to the list an appeal which, after full and open hearing, has been dismissed.

There are cases in which an appeal or a motion which has been dismissed or struck out may be restored to the list for hearing and these are provided for in the rules. This case however is not one of them.

In the circumstances Dr. Danquah sought refuge in section 13 of the Courts Act, 1960 which re-enacts section 8 of the former Court of Appeal Ordinance No. 35 of 1957. The section is as follows: "Notwithstanding anything to the contrary in any other provision of this Act, the Supreme Court may entertain any appeal from any Court on any terms which it may think just."

First however he contended that the Courts Act, 1960 must by necessary implication be given retrospective effect and that the legislature must be deemed to have intended that cases which before 1st July, 1960 had been dismissed for want of jurisdiction under the then existing law should be revived.

The rule of interpretation was stated in Maxwell's Interpretation of Statutes 11th ed. p. 204 and is as follows: "No statute shall be construed to have restrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication." In the present instance the Act, which has the effect of curing a defect in the law by enlarging the jurisdiction of this court contains no clear indication that it is intended to have retrospective operation. Indeed in two respects at least it evinces a wholly contrary intention. In section 157 it is provided that the Act "shall come into operation at the same time as the Constitution"; that is to say, 1st July, 1960. [p.269]

In section 88, provision is made to enable the Supreme Court to entertain cases "pending before the Court of Appeal immediately before the commencement of this Act." Where such clear intention is shown in the Act itself this cannot in our opinion be displaced by reference to such extraneous circumstances as have been instanced by Dr. Danquah before us. The case which he cited West v. Gwynne [1911] 2 Ch. 1. is not in pari materia.

In that case Parliament in legislating in respect of leases did not insert in the Act any date on which the Act was to come into operation and in the relevant section the express words used were: "In all leases." It is therefore not surprising that the Court of Appeal in England decided in upholding the judgment of Joyce, J. that the Act referred to all leases whether made before or after the passing of the Act.

A case more in point was recently reported in the The Times (London) in the Law Report of 25th November, 1960. One Holmes had appealed to the Court or Criminal Appeal and his appeal had been dismissed and his sentence increased. He then applied to a Divisional Court for a Writ of habeas corpus and this had been refused. It came to his notice that the new Administration of Justice Act, 1960 had recently been passed and that this provided that where a point of law of exceptional importance was involved it was possible to apply to the court for leave to appeal to the House of Lords. Holmes then applied by letter, and in referring to this matter in court the Lord Chief Justice drew attention to the fact that a number of prisoners seemed to think that the effect of the new Act was that they were entitled to leave to appeal to the House of Lords whenever their case had been dealt with by the Court of Criminal Appeal or a Divisional Court. He added that it must be understood that this Act only applies to decisions of the Court of Criminal Appeal or the Divisional Court given after the Act came into force namely 27th October, 1960 and accordingly the Act did not apply to Holmes' application which was therefore dismissed.

This court is not bound by such a decision. We would however accept it as being conformable with sound sense and sound law.

Even if retrospective operation were to be given to the Courts Act, 1960 it would not place Dr. Danquah in any more favourable situation. The plain fact is that there is no rule to cover the present application and section 13 does not supply any such rule. The section has on not a few occasions come under the consideration or the Court of Appeal in this country. In the case of Chief Oloto and Another v. The Chairman L.E.D.B. (13 W.A.C.A 57) it was contended, as Dr. Danquah has contended here, that the words of the section gave this court an unfettered discretion to hear an appeal in disregard of any provision of the law whenever they feel it just to do so, and it was held and has been held in other cases that the section applies only to cases where an appeal property lies to the court but is affected with some imperfection in a procedural sense

We therefore dismiss this application.

Decision

<P>Application dismissed.</P>

Plaintiff / Appellant

Danquah

Defendant / Respondent

Amissah

Referals

(1) West v. Gwynne [1911] 2 Ch. 1;

(2) R. v. Holmes, The Times, 26th November, 1960;

(3) Chief Oloto and Another v. The Chairman L.E.D.B. 13  W.A.C.A. 57.

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