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JUDGMENT
DR. DATE-BAH, J.S.C. :
This is the ruling of the Court
on the preliminary objection
raised by the respondent to the
jurisdiction of this Court in
this matter. The received
learning in Ghana is that a
right of appeal has to be
conferred expressly by an
enactment and is not to be
implied or inferred. More
generally and historically in
the common law world, it can be
said that a right of appeal may
be conferred by statute or the
common law. However, in Ghana,
we know of no right of appeal
which has been conferred by
common law. It is safe to state
that in Ghana the system of
appeals is governed by the
Constitution and statutory law.
It is thus entirely to be
expected that the Ghanaian
courts have not, except in
error, attempted to assume any
appellate jurisdiction other
than that conferred on them by
legislation or the
Constitution. As the venerable
Ollennu JA (as he then was) said
in Kuma v The Republic
[1968] GLR 926 at p. 928:
“There is no inherent right of
appeal in any one who is
dissatisfied with a decision of
a court; a right of appeal is a
creature of statute, and may
only be exercised by the person
upon whom a statute specifically
confers such a right. For
example, a person convicted upon
a plea of guilty may be
dissatisfied with his
conviction, but has no right of
appeal, for section 324(3) of
Act 30 expressly provides that:
“No appeal shall be entertained
against conviction by an accused
person who has pleaded guilty
and has been convicted on his
plea.” Therefore the
jurisdiction which is conferred
upon this court to entertain an
appeal may only be exercised in
favour of persons upon whom a
statute has conferred a right of
appeal, and may be exercised in
accordance with the procedure
laid down for such an appeal.”
Another of our venerable judges,
Akufo-Addo CJ, had earlier
firmly declared in Nye v Nye
[1967] GLR 76 at pp. 82-83
that:
“It must be appreciated that
there is no inherent right of
appeal in a litigant; nor indeed
is there an inherent power in
any court to hear appeals. Both
the right and the power are
creatures of statute, and unless
the enactment creating the right
of appeal and the power to hear
an appeal is explicit, clear and
unambiguous in its language, no
such right and no such power can
ever materialise. When however
the right and the power do
materialise they are exercisable
only within the framework of the
conditions imposed for their
exercise."
Abban JA, as he then was,
articulated a similar position
in In Re Yendi Skin
Affairs, Yakubu II v Abudulai
[[1984-86] 2 GLR 226 when he
said (at p. 229):
“The main issue of importance is
whether or not the applicant has
a right of appeal to the Supreme
Court, he not having appealed
against any of the findings of
the Ollennu Committee. An
appeal is a creature of statute
and if the statute does not give
a right of appeal, that is the
end of the matter.”
(See also the judgment of Kpegah
JA (as he then was) in Otoo v
Dua [1991] 2 GLR 247.) To
sum up, all the courts in Ghana,
being creatures of the
Constitution or of statute,
cannot legitimately expand their
jurisdiction to encompass more
than has been conferred on them
by the Constitution or the
relevant statute.
This approach that rights of
appeal are creatures of statute
is not a peculiar Ghanaian
doctrine. It is shared with
other common law jurisdictions.
By way of illustration, we would
like to cite the Canadian case
of R v S (T) [1994] 3
S.C.R. 952, where the Canadian
Broadcasting Corporation
challenged, by way of an appeal,
a banning order that had been
issued by a Youth Court judge,
prohibiting the publication of
the evidence and proceedings in
a trial of a young offender
charged with sexual offences.
The Supreme Court of Canada
upheld the decline of
jurisdiction by the Saskatchwan
Court of Appeal in the case on
the ground that the broadcaster
had no statutory right of
appeal. The Supreme Court, in
the lead judgment by Lamer CJ,
implicitly approved of the
following reasoning by Bayda
C.J.S of the Saskatchwan Court
of Appeal:
“Bayda C.J.S. continued by
observing that if the appeal
before him were treated simply
as an ordinary appeal in a
criminal proceeding, then,
following s. 674 of the
Criminal Code, the CBC would
have no right of appeal to the
Saskatchewan Court of Appeal.
Appeals are solely creatures of
statute, Bayda C.J.S. remarked,
and there is no inherent
jurisdiction in any appeal
court.” (See paragraph VIII of
Lamer CJ’s judgment).
We have, in this case, searched
in vain for any provision in the
Constitution or any other
enactment which confers a right
of appeal from a decision of the
Court Martial Appeal Court to
this Court. The preliminary
objection raised by the
respondent to the jurisdiction
of this Court would appear,
thus, to be unanswerable.
The respondent, a Lieutenant in
the Ghana Army, was convicted,
on 26th August 2004,
of the offence of being absent
without leave by a General Court
Martial. On appeal to what may
probably be rightly regarded as
the Court Martial Appeal Court,
he persuaded the Court to quash
his conviction on the ground
that the officer who had
convened the General Court
Martial lacked authority so to
do. It is from this decision
that the Republic has sought to
appeal to this Court. The
Republic filed a Notice of
Appeal on 14th
November 2005, specifying as its
ground of appeal:
“That the court erred in law by
ruling that Brig-Gen Aryiku, GOC
Northern Command had no power to
convene a General Court
Martial.”
The Republic did not seek leave
from this Court before filing
this ground of appeal. The
respondent has in a preliminary
objection embodied in his
Statement of Case challenged the
right of the Republic to appeal,
as of right, to the Supreme
Court from the decision of the
Court Martial Appeal Court. His
argument is as follows:
“My Lords, it is our humble
contention that an Appeal from
the Court Martial Appeal Court
does not come to the Supreme
Court as of right to the
Appellant but rather it must be
with special leave of the
Supreme Court.
The Supreme Court assumes
Appellate jurisdiction in a
matter from the Court Martial
Appeal Court, only under,
article 131(2) of the 1992
Constitution and this
jurisdiction is invoked by an
application for special leave to
appeal to the Supreme Court.
Failure to obtain this special
leave is therefore fatal to the
case of an Appellant who chooses
to appeal as of right.”
If this argument is valid, then
this Court would not have
jurisdiction in this present
appeal.
The preliminary objection,
moreover, implicitly raises
further issues regarding appeals
from the Court Martial Appeal
Court. One of those issues is
whether the right of the Supreme
Court to grant special leave,
under article 131(2) of the 1992
Constitution, to appeal to the
Supreme Court includes
situations, as in this case,
where there is no pre-existing
right to appeal. In other
words, can article 131(2) confer
a right to appeal on applicants
who otherwise had no statutorily
conferred right of appeal? It
will be recalled that article
131(2) is in the following
terms:
‘Notwithstanding clause (1) of
this article, the Supreme Court
may entertain an application for
special leave to appeal to the
Supreme Court in any cause or
matter, civil or criminal, and
may grant leave accordingly.”
The cases in which the Supreme
Court has exercised its
discretion to grant this special
leave have thus far been in
relation to situations where
there is a conditional right of
appeal. In other words, the
right of appeal is subject to
leave of the lower court or the
Supreme Court and appellant’s
application for leave has been
out of time or for some other
reason the appellant has not
been able to secure the leave he
or she needs to enable the
appeal to proceed. Although its
language is broad, it is
doubtful whether article 131(2)
is to be interpreted as enabling
the Supreme Court to exercise a
roving right to confer a right
of appeal on persons who
otherwise had no right of
appeal. It is more likely that
its intention is to authorise
the Court to grant leave in
relation to conditional rights
of appeal. It is, however, on
the facts of this case,
unnecessary to determine whether
such a roving authority exists,
since the Republic has made no
such application for special
leave. It should nevertheless
be noted that Charles
Hayfron-Benjamin JSC, delivering
the judgment of the Supreme
Court, in Dolphyne (No. 2) v
Speedline Stevedoring Co. Ltd.
[1996-97] SCGLR 373 at p.381
said:
“It must, however, be stressed
that article 131(2) only affects
appeals emanating from the Court
of Appeal and no other court.”
According to this view,
therefore, the Supreme Court
could not exercise a discretion
under article 131(2) to confer a
right of appeal on a person
aggrieved by a decision of the
Court Martial Appeal Court.
What is clear is that the Armed
Forces Act, 1962 (Act 105),
which establishes the Court
Martial Appeal Court, does not
contain a provision enabling an
appeal to be filed from
decisions of the Court Martial
Appeal Court. Section 90 of the
Act provides for a right of
appeal from a conviction by a
court martial to the Court
Martial Appeal Court, subject to
what may be prescribed by
subsidiary legislation. It does
not, however, provide for a
further appeal from the Court
Martial Appeal Court to the
Supreme Court. We have also
scrutinised the Courts Act, 1993
(Act 459) for any provision
enabling such an appeal to be
filed and have found none.
It is thus not surprising that
counsel for the appellant sought
to base the Republic’s right of
appeal on the analysis that the
Court from which the appeal had
been filed was the Court of
Appeal. The appellant’s reply
to the respondent’s preliminary
objection asserts as follows:
“My Lords, the respondent in his
statement of case filed on 3
November 2006 raised a
preliminary objection to the
Appellant’s current Appeal
before this Honorable Court. In
the said preliminary objection,
counsel for the Respondent
contended that an appeal from
the Court Martial Appeal Court
(CMAC) does not come to the
Supreme Court as of right but
rather upon special leave of the
Supreme Court. Counsel based
his objection on Article 131(1)
of the 1992 Constitution and
argued that the Court Martial
Appeal Court is not a Court of
Appeal and as such the appeal
should have been commenced upon
special leave by this Hon
Court. Counsel had also argued
that unlike the Court of Appeal
established by the Constitution,
the Court Martial Appeal Court
was established by section 89(1)
of the AFA 1962 with clear
jurisdiction stated in section
90 of the AFA. The jurisdiction
so stated in section 90
according to Counsel is
different from the regular
jurisdiction of the Court of
Appeal set up under the
Constitution. Consequently,
Counsel for the Respondent
maintains that the CMAC is not a
proper Court of Appeal.
My Lords, it is our submission
that the assertion of the
respondent as advocated is not
only misleading but also
misconceived. A detailed
reading and examination of LI
622 reveals that the CMAC as
envisaged under the LI was
supposed to be different from
the normal Court of Appeal
provided for under section
126(1) of the 1992 Constitution
with the sole business of
dealing with appeals from
military courts martial.
Indeed, section 1(1), (2), (3),
(4) and (5) of LI 622 emphasize
this point. Unfortunately,
however, the reality on the
ground is that since the
promulgation of LI 622, this
CMAC has never been
established. Consequently, in
practice and over a very long
period, all appeals from courts
martial have been initiated and
entertained in the criminal
division of the Court of
Appeal. This implies that the
Court of Appeal (Criminal
Division) has been the forum
where all parties aggrieved with
the decisions of courts martial
have gone for redress. This
court has considered and
determined many and varied
appeals that have come before it
including the respondent’s
case. The composition of the
Court of Appeal for purposes of
appeals from courts martial has
not been different from the
usual composition of 3 justices
of Appeal whose decisions have
been based on the opinions of
the majority of the judges
sitting. Indeed the record of
proceedings of this case
forwarded by the court and
before the Supreme Court is
among others titled “On Appeal
from the Judgment of the Court
of Appeal (Criminal Division)
Accra.” Additionally, all
rulings of the court during the
appeal before Court have also
been titled Court of Appeal
(Criminal Division). Details
are captured at pages 81, 89,
101 and 123 of the record of
proceedings. My Lords, this
gives credence to the fact that
the court that considered the
appeal of the respondent at the
appeal level and whose judgment
we are appealing against now
is/was an Appeal Court (Criminal
Division) save that its job was
just to consider this special
case of “an appeal from a Court
Martial”. Consequently, as a
Court of Appeal, it is our
humble submission that no
special leave is required before
the appeal is initiated before
this Honourable court can
proceed as suggested by the
Respondent.”
The contention set out by the
appellant in the passage above
is deeply flawed. There is a
constitutional obligation on
this Court to give effect to the
statutory provisions in the
Armed Forces Act, 1962 and the
subsidiary legislation issued
under it. This Court cannot
ignore the binding effect of
those statutory provisions.
From these statutory provisions,
it is clear that appeals lie
from a court martial to the
Court Martial Appeal Court, and
not to the Court of Appeal.
Secondly, it is clear from
article 137(1) of the
Constitution that the Court of
Appeal has no jurisdiction over
such appeals. Article 137(1)
provides as follows:
“The Court of Appeal shall have
jurisdiction throughout Ghana to
hear and determine, subject to
the provisions of this
Constitution, appeals from a
judgment, decree or order of the
High Court and Regional
Tribunals and such other
appellate jurisdiction as may be
conferred on it by this
Constitution or any other law.”
Thus, if the Court of Appeal
purports to hear any court
martial appeal, it would be
acting outside its
jurisdiction. We have to remind
ourselves of the wise words of
Ollennu JA (as he then was),
quoted at the beginning of this
opinion, that “a right of appeal
is a creature of statute”. A
right of appeal is not to be
discovered by judicial
interpretation where none
exists.
Moreover, it is incorrect for
the appellant to assert that the
Court Martial Appeal Court has
never been operational. Three
members of this panel on one
occasion sat as a Court Martial
Appeal Court and we take
judicial notice of that. They
were assigned that task by the
late Chief Justice. We
recognise that there is some
merit in the following
proposition enunciated in the
respondent’s response to the
appellant’s reply to the
respondent’s preliminary
objection that:
“The Court Martial Appeal Court
is established by section 89 of
the Armed Forces Act 1962 (Act
105) …and therefore the question
of whether or not it has been
established does not arise. A
Court is not established by the
provision and designation of
certain physical structures as
the Court but rather by the law
which creates it.”
It has been up to successive
Chief Justices to duly
constitute the Court Martial
Appeal Court. We know from our
own personal experience that it
is incorrect to assert that in
reality this Court has never
been constituted. It may be
that the appellant may have
wrongly perceived some of the
hearings by the Court Martial
Appeal Court as hearings by the
Court of Appeal (Criminal
Division). The latter court has
no jurisdiction over appeals
from courts martial, as already
pointed out.
In the present case, there is
some confusion as to whether the
appellate body that heard the
appeal from the general court
martial was the Court Martial
Appeal Court or the Court of
Appeal (Criminal Division).
Although the appeal process was
initiated by the filing of an
application for leave to appeal
against conviction addressed to
the Registrar of the Court
Martial Appeal Court, in the
record kept of the first hearing
of the appeal on the 21st
April 2005 (at p. 81 of the
Appeal Record), the heading of
the note is “IN THE SUPERIOR
COURT OF JUDICATURE, IN THE
COURT OF APPEAL (CRIMINAL
DIVISION) SITTING AT ACCRA ON
THURSDAY THE 21ST DAY
OF APRIL, 2005).” At that
hearing, the Court, presided
over by Ansah JSC and whose
other members were Akoto-Bamfo
and Owusu-Ansah JJA, ordered the
parties to file written
submissions for the hearing of
the appeal. There is no record
of any leave being granted by
the Court to the appellant to
appeal. The written submission
of the Appellant (at p. 82 of
the Record) subsequently filed
has the heading: “IN THE
SUPERIOR COURT OF JUDICATURE, IN
THE COURT MARTIAL APPEAL COURT,
ACCRA, AD 2005”. The
Appellant’s Additional Grounds
of Appeal are similarly titled
(at p. 87 of the Record). At
the next sitting of the Court,
it is again described as the
Court of Appeal (Criminal
Division). (See page 89 of the
Appeal Record). The submission
of case for the respondent is
headed as follows: “IN THE
SUPERIOR COURT OF JUDICATURE, IN
THE COURT MARTIAL APPEAL COURT,
ACCRA, AD 2005.” (See p. 90 of
the Appeal Record.) Finally,
the judgment given by the
appellate body on 21st
October 2005 is headed: “IN THE
SUPERIOR COURT OF JUDICATURE, IN
THE COURT OF APPEAL (CRIMINAL
DIVISION) ACCRA.” Is this title
determinative of the issue of
what court the judges so sitting
considered themselves to be
constituted into? We are not
sure that it does.
For the purposes of the present
case, it is only necessary to
state that if the judges
considered themselves to be the
Court of Appeal, then they were
acting without jurisdiction. If
they were acting as a Court
Martial Appeal Court, then they
were acting within their
jurisdiction, subject to whether
they had granted the appellant
before them leave to appeal to
their court. From the appeal
record, it is in fact not clear
that any such leave had been
granted. In either case, an
appeal cannot lie from that
appellate body (whether it be
the Court of Appeal acting
without jurisdiction or the
Court Martial Appeal Court) as
of right to the Supreme Court.
We are thus satisfied that the
respondent’s preliminary
objection should be upheld in
the sense that the appellant has
not demonstrated that it has a
right to appeal to this Court.
This Court must thus decline
jurisdiction to enter into the
merits of the appeal brought
before it.
We would like to end with a
couple of reflections on some
matters arising from the
discussion above. First of all,
it seems to us erroneous to
refer to the Courts Martial
Appeal Court as a superior
court. It is a creature of the
Armed Forces Act, 1962 and it is
not mentioned in article
126(1)(a) the 1992 Constitution.
This is the constitutional
provision which indicates that
the Superior Courts of
Judicature comprise the Supreme
Court, the Court of Appeal and
the High Courts and Regional
Tribunals. The Court Martial
Appeal Court could thus not
possibly be considered as a
superior court. It is not even
mentioned in the Courts Act 1993
as a lower court. Accordingly,
its proper classification is
probably that of a lower
tribunal. It would thus be
subject to the supervisory
jurisdiction of the High Court.
This raises the anomalous
possibility of a High Court
judge exercising supervisory
authority over a tribunal
constituted in practice by
Supreme Court and Court of
Appeal judges. The answer to
this issue is that the
composition of a tribunal does
not necessarily determine its
level in the hierarchy of courts
and tribunals. In any case, by
the Armed Forces (Court-Martial
Appeal Court) Regulations, 1969
(LI 622), judges of the Court
Martial Appeal Court need not be
Appeal Court Judges or Supreme
Court Justices. Regulation 1(1)
provides that they should be
judges of the “Supreme Court of
Judicature” and such other
persons, being persons of legal
experience, as the Chief Justice
“acting on the advice of the
Judicial Service Commission may
appoint.” The regulation uses
the language of 1969 to refer to
what currently we would describe
as superior court judges. For
the Judicial Service Commission,
the current equivalent body
would, of course, be the
Judicial Council.
In sum, in our view, there is no
right of appeal from a judgment
of the Court Martial Appeal
Court. The recourse available
to any person aggrieved by such
a judgment is to apply for
judicial review from the High
Court. We remain of this view,
in spite of the previous
decision of this Court in The
Republic v Tetteh
[2001-2002] SCGLR 854 in which
this Court entertained an appeal
originating from a court
martial. There the court which
purported to exercise the first
appellate jurisdiction was
described in the law report as
the Court of Appeal. This case
would appear to be per
incuriam. Since this is a
precedent that would be binding
on this court, ceteris
paribus, we thought it
necessary to delve further into
it by examining its appeal
record to ascertain the
circumstances that led to this
Court reaching the decision it
took in that case.
The appeal record confirms that
the Court which decided the
appeal from the court martial
was described at the hearing and
on the day of judgment as the
“Court of Appeal (Criminal
Division)”. The heading of the
judgment is: “In the Superior
Court of Judicature, Court of
Appeal, Accra.” However, the
appeal process had been started
with the filing of the standard
form for “Application for Leave
to Appeal Against Conviction”
addressed to The Registrar of
the Court-Martial Appeal Court,
which is the mode of initiating
appeals to the Court Martial
Appeal Court. The “Written
Submission by Counsel for the
Accused/Appellant” was headed
“In the Superior Court of
Judicature, In the Court of
Appeal, Accra”. The Written
Reply by Counsel for Respondent
was also headed “In the Superior
Court of Judicature, In the
Court of Appeal.” The Notice of
Appeal filed by the appellant to
the Supreme Court also was
addressed to the Registrar of
the Court of Appeal (Criminal
Division). The Notice of Appeal
specified as the “Court of
Appeal (Criminal Division)” the
“court from whose decision
appeal is made”.
It would appear therefore that
the court which heard the appeal
from the court martial was
misled into considering itself
to be the Court of Appeal. As
the Court of Appeal, it had no
jurisdiction to hear the appeal
and therefore its decision was a
nullity. Accordingly, no appeal
could validly lie from it to the
Supreme Court. The Supreme
Court’s acceptance of
jurisdiction in The Republic
v Tettey (supra) was thus,
with the greatest respect,
per incuriam. In
mitigation, it should be pointed
out that its attention was not
drawn to this issue of
jurisdiction by counsel in the
case. Though Adzoe JSC, who
gave the lead judgment in the
case, was aware that the case
had originated from a court
martial and that the appeal
before the Supreme Court was
from the Court of Appeal, he did
not advert to those provisions
in the Armed Forces Act, 1962
(Act 105) which deal with the
Court Martial Appeal Court and
appeals from courts martial.
Given these circumstances,
The Republic v Tetteh (supra)
is not a case that this Court
should follow on the issue of
the jurisdiction of the Supreme
Court to hear appeals
originating from a court
martial.
DR. SETH TWUM
JUSTICE OF THE SUPREME
COURT
DR. S.K. DATE-BAH
JUSTICE OF THE SUPREME
COURT
PROF. T.M. OCRAN
JUSTICE OF THE SUPREME
COURT
S.O. ADINYIRA (MRS.)
JUSTICE OF THE SUPREME
COURT
S.K. ASIAMAH
JUSTICE OF THE SUPREME COURT
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