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RULING

 EDWARD WIREDU, J.S.C.:

The Republic, Applicant to this application shall hereafter be referred to simply as the Applicant, whilst the Interested Party (Mr. Benneh) will also hereafter be referred to simply as the Accused Person.

The application is for an order of certiorari to quash the proceedings, rules and order of the Court of Appeal (Criminal Division) dated 20th, 22nd and 27th July, 1998 on the grounds that they are a nullity.

The grounds urged in support of the application are as follows:

"1. The Court acted without jurisdiction in purporting to entertain a petition of Appeal dated 8th July, 1998 filed in the Registry of the Court of Appeal against the refusal of the Regional Tribunal to grant bail, and a motion filed in the Registry of the Court of Appeal on 16th July, 1998 for bail on 20th July, 1998 and making orders directed to the Attorney-General in that respect.

2. The Court acted without jurisdiction in purporting to adjourn the said supposed petition of appeal of 8th July, 1998 which was not listed for hearing to 22nd July, 1998.

3. The Court acted without jurisdiction and in breach of the rules of natural justice and fair trial by failing or refusing to record the proceedings of the Court on 22nd July, 1998 when both Counsel for the parties appeared before the Court and made submissions and the Court gave directions to the Registrar of the Regional Tribunal and Counsel for the Appellant/Respondent to expedite a supposed appeal to be properly filed and purported to adjourn the case to 27th July, 1998 for hearing.

4. The Court on 27th July, 1998 acted without jurisdiction in hearing a purported petition of Appeal dated 22nd July, 1998 and filed in the Registry of the Regional Tribunal for bail which had not been properly forwarded to the Court or listed for hearing by the Registry of the Court of Appeal instead of hearing Motion No. 17/98 which had been listed and notified to the parties for hearing that day.

5. The proceedings, rulings and orders of the Court of Appeal from 20th July, 1998 through 27th July 1998 in respect of the above case are null and void, disclose serious errors of law on the face of the records and should be quashed.

6. The proceedings, decisions and rulings of the Court of Appeal violate the rules of natural justice and fair trial".

The facts which have provoked the application may be stated in a nutshell as follows.

The accused was arraigned before an Accra Regional Tribunal some time in the latter part of June 1998. The facts showed that on July 2, 1998 his Counsel filed a NOTICE OF APPEAL on a High Court Form under Section 234 of the Criminal Procedure Code, a copy of which is Exhibited Aa1 to the Applicant's application. The contents of this form states clearly that he was appealing against the ruling delivered at the Tribunal chaired by Mr. Bright Mensah dated July 7, 1998.

On July 22, 1998 a similar NOTICE OF APPEAL was filed, a copy of which is Exhibited as Aa4 to the present application.

By a letter dated 22nd July, 1998 the Registrar of the Regional Tribunal wrote Exhibit Aa5, also attached to the application to the Registrar of the Court of Appeal, the contents of which are as follows:—

"CASE NO. RT166/98

THE REPUBLIC

VRS.

FRANK BENNEH

Please find attached three (3) copies of Notice of Appeal filed on behalf of the above-named accused person by his Counsel Ray Kakraba Quarshie, Esq. for your information and necessary action.

(SGD.)

R E G I S T R A R

(EBEN AYI-BONTE)

THE REGISTRAR

COURT OF APPEAL

CRIMINAL DIVISION

SUPREME COURT BUILDINGS

ACCRA."

To this letter was attached copies of the High Court Forms filed on behalf of the accused by his Counsel.

On that same day an application for bail was also filed at the Court of Appeal on behalf of the accused which was fixed for hearing on July 27, 1998. This application is also Exhibited Aa6 to the present application.

The above provide materials before the Appeal Court upon which the Court proceeded to hear and determine the fate of the accused grievances against the refusal of the Regional Tribunal to admit him to bail.

Proceedings before the Appeal Court on July 20, showed that by that date the NOTICES OF APPEAL filed on July 8, had not been served on the Applicant. The Court therefore, directed that service of the NOTICE OF APPEAL be effected on the Applicant forthwith and adjourned the case to July 22. The record further shows that on that day the matter was adjourned to July 27. On July 27, the Court after making a number of observations, directions and amendments proceeded to hear the appeal under C.I. 19 Rule 7. The Court record shows as follows:—

"BY COURT: C.I. 19 provides rules for appeals against conviction and sentence. The Court of Appeal, however, has jurisdiction to hear appeals against the judgment of the Regional Tribunal, including Rulings and Orders. It would seem therefore that neither the form prescribed under S. 326 of Act 30 nor C.I. 19 is appropriate, no appropriate form is devised. In terms of the powers conferred by C.I. 19 rule 7, of the Court of Appeal we think that the Notice of Appeal filed on 22/7/98 must be admitted as sufficient for this Appeal, subject to the insertion of "S. 11 (1) of the Courts Act 1993 (Act 459) in place of Criminal Procedure Code (Section 320) and it is so done."

After affording the legal representatives of the parties a hearing the Court finally granted the accused bail. By holding as follows:—

"BY COURT:

The appeal succeeds, the ruling of the Tribunal refusing bail is set aside. The Appellant is admitted to bail in the sum of ¢10 million with two sureties in the same sum to justify. He shall also report once weekly to the Narcotics Unit at the Ghana Police Headquarters. His Passport shall be surrendered to the unit. All these terms shall abide with conclusion of the trial."

It is from the above that the present application has been brought to this Court under Article 132 of the 1992 Constitution on the grounds referred to supra.

The main issue raised for consideration in the present application is "whether the Court of Appeal was competently seized with the appeal brought on behalf of the accused to justify the Court dealing with it?"

Whilst the Applicant answers the above in the negative the accused by his Counsel answers in the affirmative.

We shall now carefully examine the processes taken on behalf of the accused on the particular facts of this case to find out how the matter was dealt with at the Court of Appeal in order to decide which of the 2 rival stands taken by the contestants to this application is the right stand, taking into consideration the fact that

(a) the matter involves the liberty of an individual and

(b) the fact that the Court was about to proceed on legal vacation.

The 1992 Constitution provides by Article 137(1) that appeals from Decisions, orders, rulings, and decrees of Regional Tribunals in Criminal Matters lie to the Court of Appeal. C.I. 19 (The Court of Appeal Rules) provides that all appeals must be brought by NOTICES OF APPEALS to be filed in the Court below, i.e. in the Registry of the Regional Tribunal. Rule 6 of C.I. 19 provides specific forms which a would-be appellant is expected to use in lodging an appeal against conviction and sentence.

Rule 9 provides the time limit within which an appeal must be brought. Twenty-one (21) days in respect of interlocutory appeals and three (3) months in respect of final decisions.

Rule 9(3) provides that an appeal is brought when the NOTICES OF APPEAL is filed in the Registry of the Court below, in this case the Registry of the Regional Tribunal.

Rule 10 enjoins the Registrar of the Court below to serve a True Copy of the NOTICES OF APPEAL on all such persons mentioned in the said notice.

C.I. 19 makes no provision expressly for appeals in respect of interlocutory matters. By Rule 38 however, specific forms are provided under Part II of the Second Schedule i.e. Forms 1 and 2 for appeals against conviction and sentence.

Rule 7 of C.I. 19 provides for situations not expressly provided for. In such situations the procedure and forms to be used fall to be determined by the Appeal Court itself. Where no procedure is expressly provided the matter falls to be determined by the Court as her exclusive preserve, having regard to what the Court sees as necessary for attaining justice on the particular facts and circumstances of each individual case.

Rule 7 vests a discretion on the Court.

Rule 7 of C.I. 19 reads

"Matters not expressly provided for:—

Where no provision is expressly made by these Rules regarding the practice and procedure which shall apply to any cause or matter before the Court, the Court shall prescribe such practice and procedure as in the opinion of the Court the justice of the cause or matter requires".

It is my respectful view that under such situations it is the justice of the case that must be of paramount consideration by the Court in the exercise of its discretion.

Having in a nutshell carefully examined the steps that a would-be Appellant ought to take to entitle him or her to a hearing at the Court of Appeal, we shall now proceed on the particular facts of this case to see for ourselves whether the appeal brought by and on behalf of the accused person was properly brought in order to determine the fate of the present application?

The following facts are not in dispute:—

(1) That the appeal was from a ruling of an Accra Regional Tribunal dated 7th July, 1998.

(2) That the proper forum to lodge the appeal is by notice to be filed at the Registry of the Regional Tribunal.

(3) That the appeal was one against an interlocutory order for which no particular form, a practice and procedure, has been expressly provided for under C.I. 19.

(4) That the accused was refused bail by a Regional Tribunal on 7th July, 1998 and therefore had 21 days within which to appeal against the said refusal.

The only matter in contention between the parties as I see, is whether the NOTICES OF APPEAL filed on 8th and 22nd July were competently filed in the proper forum to entitle the accused to prosecute his case at the Court of Appeal?

It is clear from the proceedings of 20th and 27th July, 1998 that the NOTICES OF APPEAL filed on the 8th July which was directed for service on the Applicant was accepted as proper by the Court of Appeal. It is also clear that on 22nd July 3 copies of Exhibit Aa5 were sent to the Registry of the Court of Appeal by the Registrar of the Regional Tribunal for the necessary action to be taken by the Registrar. It is also further clear that by the 27th of July, 1998 the record of proceedings at the Court below had been made available to the Registrar of the Court of Appeal (See Exhibit Aa7). It is also further clear from the proceedings of Court of Appeal that the case was first mentioned on 20th July, 1998 and was adjourned to 22nd July, 1998 and thereafter to the 27th July, 1998. It is further clear that after a number of observations, corrections, amendments and modifications on the documents filed the Court satisfied itself and accepted all the documents filed up to that date as being sufficient to justify the hearing of the interlocutory appeal before it. The Court therefore decided to hear the appeal under C.I. 19 rule 7. No objection was raised by any of the Counsel for the parties. Both Counsel made their submissions after which the Court delivered it's ruling by granting bail to the accused.

It is thus clear that by the 27th July, 1998 when the Court proceeded to hear the appeal it was competently seized with jurisdiction. The NOTICES OF APPEAL filed on the 8th, 22nd July, 1998 had been properly filed at the Court below and brought to the Court of Appeal. The Court of Appeal having regard to the facts that the matter related to

(a) The human rights of the accused i.e. the liberty of an individual;

(b) That the Court was about to proceed on legal vacation, adopted an expeditious procedure under rule 7 of C.I. 19 and deal with the appeal the way it saw just, fair and fit in those circumstances in order to do justice.

The appeal was against an interlocutory order which would have been frustrated if any further delay was entertained in dealing with it.

It is the right of every person in Ghana to enjoy his liberty, freedom of movement, etc. as enshrined in the Constitution. It is also the duty of the Courts to protect, defend and enforce these rights whenever they are being suppressed or stifled by any authority or person in authority.

In the instant case the accused is presumed to be innocent until it is otherwise established. It would therefore be unjust to deprive him of his right to enjoy his freedom in the absence of any law prohibiting granting him bail under circumstances as established by the facts of this case. Respect for human rights is an attribute or an element of good governance and all efforts must be made to fight to ensure its observance.

The trial Tribunal was therefore not justified under those circumstances to refuse his request for bail. The Court of Appeal was therefore right in granting him bail.

The present application has no merits. I will therefore refuse it.

Rules 2(3), 7 and 9(3) of C.I. 19 provide complete answers to all the grievances and complaint of the Applicant.

JUSTICE E. K. WIREDU

JUSTICE OF THE SUPREME COURT

 KPEGAH, J.S.C.:

This is an application for Certiorari to quash certain decisions or orders of the Court of Appeal made in respect of the case of THE REPUBLIC VRS. FRANK BENNEH, CRI. CASE NO. RT 166/98 pending in the Greater Accra Regional Tribunal.

It must be said that because of the state of the documents filed in this application, it is slightly difficult to discern the sequence of events culminating in these proceedings. I must confess that it has been with some effort that I was able to discern the facts from the affidavit, together with its exhibits, filed in support of this application.

The proceeding sought to be quashed through this application relate to those of three separate days; namely, (i) Monday the 20th of July, 1998; (ii) Wednesday, 22nd July, 1998; and (iii) Monday 27th of July, 1998. The ground on which each is sought to be quashed, simply put, is lack of jurisdiction and/or error of law apparent on the face of the record. My approach will be to determine the events leading to the proceedings of each day, and assess the specific misgivings of the applicants in respect of each day's proceedings before taking a global view of the fortunes of the application. May I remark that there is no affidavit in opposition denying the facts deposed to in the applicants' affidavit. I will, therefore, take it that the facts are admitted.

The Accused person, Mr. Frank Benneh, was arraigned before the Greater Accra Regional Tribunal on drug related charges under the Narcotic Drugs Law 1990, PNDCL 236 while a serving officer in one of Ghana's Missions abroad. Upon his arraignment, he pleaded not guilty and applied through his Counsel to be admitted to bail before trial. The Tribunal in its ruling denied the accused bail. The very next day, that is 8/7/98, Mr. Ray Kakraba-Quarshie, Counsel for the accused, filed an appeal against the said ruling. The notice of appeal was filed at the Court of Appeal instead of being filed in the court below which would have prepared the record of appeal and forwarded same to the Court of Appeal in accordance with the Rules.

On the 16th day of July, 1998, learned Counsel for the accused followed up by filing a motion for bail before trial. This motion, numbered as CRIMINAL MOTION NO. 14/98, was also filed at the registry of the Court of Appeal. The return-date on this motion was Monday, the 20th day of July, 1998. When the motion for bail came before the Court of Appeal on the said date, it was withdrawn and accordingly struckout as withdrawn. The reason for the withdrawal is not clear from the record of proceedings for the day. However, after learned Counsel for the accused promised that he would later attach the ruling of the Tribunal to his notice of appeal filed on 8/7/98, the Court of Appeal proceeded to give certain directives; namely that the notice of appeal, which had not been served, be served on the Attorney-General "forthwith". The minutes of the Court then read: "Case is adjourned to 22/7/98 — Wednesday". Presumably it is the "appeal" which is not yet ready and the notice of which has obviously been filed in the wrong Court, which should render it inadmissible, that has been adjourned to this date.

The first major false step by the Court of Appeal. A "false step" because the Court of Appeal having "struck out as withdrawn" CRIMINAL MOTION 14/98, had nothing pending before it which it could possibly have "adjourned to 22/7/98 — Wednesday". The record of proceedings for the said 22nd July, 1998, which had been attached to the present application, is rather brief and states the following:

"IN THE SUPERIOR COURT OF JUDICATURE

COURT OF APPEAL, (CRIMINAL DIVISION)

SITTING AT ACCRA ON 22ND JULY, 1998

_________________________________________

CORAM:  FORSTER, J.A. (PRESIDING) BADDOO AND AFREH, JJ.A.

FRANK BENNEH                                              APPELLANT

VRS.

THE REPUBLIC                                                RESPONDENT

_____________________________________________________________________________

BY COURT: Case adjourned to 27/7/98".

The record book was then signed by the three Judges. It is interesting to note that no case number was quoted and recorded in the record book in respect of the proceedings of 22nd July, 1998 as one would have expected if the case were lawfully or properly listed before the Court. This is, as it should be because every judicial process which is properly put before a Court has an identifying number. In this case, and this is my honest view, this gross irregularity goes to confirm, or at least show, that the so-called appeal was not ready to be entered and put before the Court. Indeed nobody ever enters and gives an identifying or case number to a mere notice of appeal. It has to be a record of appeal prepared pursuant to the notice of appeal that the Court below forwards to the appellate Court. A "notice of appeal", simpliciter, cannot, and has never been listed as an appeal for hearing.

To cap its criticism of the proceedings of 22nd July, 1998, the applicants asserted that the record of the proceedings for that day did not reflect what actually happened in court. This rather serious allegation is contained in paragraph 11 of the affidavit which states as follows:

"11. For no apparent reasons the proceedings of the Court of Appeal on 22nd July, 1998 were never recorded by the Court of Appeal neither were the presence of Counsel for both parties remotely acknowledged."

These are grave allegations to make against any adjudicating authority, let alone against the Court of Appeal which is a Superior Court of record. In view of the state of the record of proceedings of 22nd July, 1998 as quoted above, and coupled with the fact that there is no affidavit denying the said allegation, one is compelled to sadly conclude that the record kept does not correctly depict what happened in Court on the 22nd July, 1998.

Meanwhile when the "appeal" came on for hearing on the 22nd of July, 1998, the Deputy Attorney-General, Mr. Martin Amidu, who led a team of lawyers, raised a preliminary objection to the so-called appeal, having previously given notice in accordance with the rules. He contended that the notice of appeal was filed in the wrong forum so the accused was out of Court. The objection was upheld and the notice of appeal struckout. This terminated all proceedings in the Court of Appeal in the FRANK BENNEH CASE and there was no other proceeding pending before the Court of Appeal in respect of the case.

My humble view of the proceedings of 22nd July, 1998 is that a "notice of appeal" does not constitute a "record of proceedings" to enable it be entered and listed in the cause list for hearing as the proceedings of 22nd July, 1998, on its face appears to suggest. Moreover, in assessing of the proceedings of the said date, one cannot ignore the rather grave allegation that the Court of appeal failed to keep a true record of events of the so-called proceedings of 22nd July, 1998.

The paragraphs of the applicants affidavit which support the facts or sequence of events so far recounted by me are paragraphs 4-9, which I proceed to quote for ease of reference.

"4. On 7th July, 1998 the Tribunal made a ruling in which it refused the Accused bail and remanded him into prison custody.

5. Unknown to the Republic, Counsel for the Accused/Respondent had purported to file an appeal against the ruling of the Regional Tribunal refusing the Accused/Respondent bail by filing a Notice of Appeal in the Court of Appeal on 8th July, 1998 which was undated. The said Notice of appeal is annexed herewith and marked Exhibit "AG 1".

6. On 16th July, 1998 Counsel for the Accused/Respondent filed in the registry of the Court of Appeal at 11.45 o'clock in the forenoon a motion for bail with a supporting affidavit but without the ruling of the Tribunal. The purported motion is annexed herewith and marked Exhibit "AG 2".

7. When the motion came on for hearing on 20th July, 1998 the motion was withdrawn, but the Court purported to make an order for the Notice of Appeal filed in the Court of Appeal Registry on 8th July, 1998 to be served on the Attorney-General forthwith and adjourned the supposed case to 22nd July, 1998.

8. The Republic represented by the Deputy Attorney-General, Thomas Ahlijah and myself appeared before the Court on 22nd July, 1998 and raised objection to the Notice of Appeal as not having been filed in the court below to enable the records to be forwarded to the Court of Appeal for it to be seized (sic) with any appeal.

9. As a result of the Republic's objection to the jurisdiction of the Court of Appeal as not being seized (sic) with any appeal the court dismiss the purported appeal but acted without jurisdiction in fixing a hearing for a supposed appeal for 27th July, 1998 and advised Counsel for the Respondent to put his house in order by filing his appeal in the proper Court".

As previously pointed out, it has to be emphasised that at the end of proceedings on the 22nd of July, 1998 there was nothing pending in the Court of Appeal.

But according to the affidavit filed by the applicants, the Court of Appeal proceeded, on that 22nd July, 1998, to advise learned Counsel for the accused to put his house in order and file his intended appeal in the court below; that is the registry of the Regional Tribunal. Very surprisingly the Court of Appeal then purported to adjourn a non-existent appeal to 27th July, 1998. I say "very surprisingly" because having upheld the preliminary objection of the applicants against the notice of appeal wrongfully filed on the 8th of July, 1998, the Court had nothing pending before it to have adjourned to the 27th of July, 1998! In other words, it was completely FUNCTUS OFFICIO; that is, if the Court was properly constituted to start with.

This "adjournment" to the 27th of July, 1998 is the second major false step by the Court of Appeal in the FRANK BENNEH CASE; a step which is neither warranted by law nor any rules of procedure.

At the same sitting the Court was also said to have invited the Registrar of the Regional Tribunal and ordered him to expedite the appeal and transmit the record of proceedings to the Court of Appeal if learned Counsel should take a cue from the bench and file his appeal in the court below. It is therefore safe to conclude that the matter was "adjourned to 27/7/98" in anticipation of an appeal yet to be filed!. This, in my humble view, is an unprecedented step to take and it is neither warranted by any law nor rules of procedure.

Because a Court cannot adjourn to another date a cause or matter yet to be filed and put before it. It was therefore unlawful for the Court of Appeal to have adjourned to a date for hearing a criminal appeal yet to be filed and the record of proceedings of which are yet to be prepared. What happens if the intended appellant does not file the appeal. The Court would only have succeeded in embarrassing itself. This should have been within the comprehension of the Court of Appeal as constituted.

Meanwhile, after the day's proceedings on the 22nd July, 1998, Counsel for the accused, taking a cue from the bench filed an appeal in the lower court; that is, at the registry of the Regional Tribunal. On the same day he filed a fresh motion for bail before trial at the Court of Appeal. To this motion was attached the ruling of the lower court refusing bail, and against which he had mounted an appeal. The motion was numbered as CRIMINAL MOTION 17/98 and the return-date was Monday, the 27th day of July, 1998. The registrar of the Regional Tribunal had on the same day that the notice of appeal was filed, forwarded to the Court of Appeal three copies of only the "Notice of Appeal" instead of quickly preparing the record of appeal, which from all indications would be short, and forwarding same to the Court in accordance with rule 41(1) of C.I. 19. This rule stipulates that where the registrar of the court below receives a notice of appeal, he shall forward to the registrar of the Court of Appeal five copies of the record of proceedings in the court below. This rule was ignored and not complied with; rather the "notice of appeal" only was wrongfully forwarded to the Court of Appeal.

So that on the 27th July, 1998 it was only CRIMINAL MOTION NO.17/98 which was listed before the Court of Appeal in respect of the FRANK BENNEH case and which the Court could be said to have been properly seized with. The so-called appeal had not been listed since it was not entered in accordance with the Rules and had no case number as one would have expected if the appeal had been entered. It was not possible for a "Notice of Appeal", in whatever form, alone and without the record of proceedings, to be entered as an appeal.

The applicants had earlier filed notice of preliminary objection to CRIMINAL MOTION NO.17/98 so that when the motion was called on 27th July, 1998 the Court indicated to Counsel for the Accused that his motion was not maintainable as the Court had no original jurisdiction and accordingly dismissed the motion.

SEE PARAGRAPHS 15-17 for depositions to this effect which I quote:

“15. The Republic again opposed this application and file a preliminary legal objection as to the ability of the court to entertain the application.

16. On 27th July, 1998 the Court of Appeal Registry fixed only the motion for bail No. 17/98 for hearing by the Court of Appeal.

17. When both Counsel appeared for the Hearing of the motion for bail before the Court on 27th July, 1998 the Court informed counsel for the Accused that his motion for bail was not maintainable as the Court had no original jurisdiction."

After the dismissal of CRIMINAL MOTION 17/98 seeking bail before trial, the court of Appeal suo motu invited Counsel for the Accused to apply and have amended the petition of Appeal "IN THE HIGH COURT (CRIMINAL PROCEDURE CODE, S.324)" by substituting for same "IN THE COURT OF APPEAL (S.11 (1) of Act 459)" to bring the appeal under C.I. 19 instead of the old procedure in the High Court under Criminal Procedure Code, 1960 (Act 30/60.)

The amendment was made without objection. But when the Court tried to use the amended Notice of Appeal and sought to incorporate it with the ruling exhibited to the motion for bail, which had earlier been dismissed, as a basis for an appeal which it could proceed to hear, the Deputy Attorney-General opposed this procedure. Because the Court itself would be compiling the record of appeal contrary to the rules. He was overruled and the Court proceeded to determine and allowed the so-called appeal.

The paragraphs of the affidavit which support these findings are paragraphs 18 to 23 which is reproduced below:

"18.  Inspite of the fact that no appeal had been listed before the court for 27th July, 1998 nor the parties notified of such a hearing and no order of the Regional Tribunal or records of appeal had been forwarded to the Court of Appeal Registry the Court surprisingly invited Counsel for the Accused to apply to change the Heading of his petition of appeal from the High Court of appeal which was done without objection from the Republic.

19. The Republic, however, opposed the supposed amended Notice of appeal on the grounds that the court of Appeal was not seized with an appeal against the order of the Regional Tribunal refusing bail because inter alia no records of appeal had been properly forwarded to the Court of appeal from the Court below where the Notice of Appeal of the Accused had been filed and the Appellant was not proceeding under the Court of Appeal Rules, 1997 (C.I. 19) but under Section 326 of Act 30 and therefore the Court of Appeal had no jurisdiction to entertain the purported appeal.

20. The Court unanimously and without jurisdiction overruled the Republic basing itself on the Courts Act.

21. This was inspite of the fact that the only record that had been forwarded to the Court after 22nd July, 1998 was the records of proceedings of the Regional Tribunal (without the ruling) and this was brought to the Court of Appeal whilst the Court was sitting and both Counsel had not been formally served with those proceedings. The forwarding letter of 27th July, 1998 is annexed herewith and marked Exhibit "AG 7".

22. The Court then proceeded to allow the Appellant's Counsel to rely on a ruling filed with the motion for bail on 22nd July, 1998 which had been dismissed or withdrawn that morning and which had not been forwarded to the Court of Appeal as part of any records of appeal.

23. The Republic called attention to the irregularity but the Court insisted that it was in the interest of justice to use a ruling of the Tribunal which had not been forwarded to it by the Court below but the Republic disagreed with that view".

The reason for overruling the objections of the Deputy Attorney-General to the effect that the procedure being adopted was most irregular, is better stated by quoting the Court itself.

"By Court: C.I. 19 provides rules for appeals against conviction and sentence. The Court of Appeal, however, has jurisdiction to hear appeals against the judgment of the Regional Tribunal, including Rulings and Orders. It would seem therefore that neither the form prescribed under S.326 of Act 30 nor C.I. 19 is appropriate, no appropriate form is devised. In terms of the powers conferred by C.I. 19 rule 7, on the Court of Appeal we think that the Notice of Appeal filed on 22/7/98 must be admitted as sufficient for this appeal, subject to the insertion of "S. 11 (1) of the Courts Act 1993 (Act 459) in place of Criminal Procedure Code (Section 320). And it is so done".

The Court of Appeal need not have fallen on rule 7 of C.I. 19 to solve whatever "problem" it thought it was confronted with. For it is a proposition familiar to all lawyers that where a right is endowed without providing the form for its realisation, a procedure which clearly spells out the right, the wrong, and the remedy sought will be adequate. After overruling the objection of the learned Deputy Attorney-General, the Court proceeded to hear the "appeal" and allowed same, hence the present application for an order of certiorari to quash the proceedings and orders of the Court of Appeal in respect of the three days earlier indicated.

The main criticism of the Court of Appeal, and possibly the main ground for the application, can be found in paragraphs 25-28 of the affidavit in support. I will quote these very important paragraphs in detail.

"25. The Republic is of the view that the Court of Appeal acted without jurisdiction in adjourning from 20th July, 1998 to 22nd July, 1998 and then to 27th July, 1998 when no appeal was pending before it and to have heard an appeal which was not before it on 27th July, 1998.

26.  The Republic also believes that the Court of Appeal acted without jurisdiction in allowing a ruling annexed as an Exhibit to a motion which had been dismissed for want of jurisdiction to be used for arguing a purported appeal for bail.

27.  The Republic contends that the Court of appeal acted without jurisdiction and erred in law when after realising that no appeal had been listed before it for hearing on the 27th July, 1998 it directed after delivering its decision on 27th July, 1998 that the docket Motion N., 17/98 which had been forwarded to each of the Justices for hearing of a bail application to be amended to read Criminal Appeal No.25/98 without acknowledging that in the proceedings or notifying the Chief Justice of such a serious tempering with the Court's docket.

28.  I believe that the whole proceedings of the Court of Appeal from 20 July, 1998 through to its rulings and orders of 27th July, 1998 granting bail to the Accused are null and void, made without jurisdiction and violate the principles of natural justice and fair trial and also disclose serious errors of law on the face of the record".

In opposing the application the accused who can properly be described as the interested party, did not swear any affidavit in opposition. He rather chose to rely on legal argument to resist the application. The first of this is that "in the absence of any stated procedure the Court of Appeal can invoke its original jurisdiction as it did in this case to cure any defect in any case that is purely procedural so as to ensure that justice is ensured and not stifled by a mere legal technicality". The second argument advanced against the application is that the applicant "by agreeing to participate in the hearing of the case .... has waived his right of protest and is therefore estopped by the equitable doctrine of estoppel in Pais and Acquiescence".

I will deal with these arguments before going to assess the case of the applicants; and in doing so I will first consider the argument relying on estoppel to resist the application. I think this argument is being urged upon this Court as a result of a serious misapprehension of the ground for the application for an order of certiorari in this case. I say so for it is a proposition familiar to most lawyers that competent jurisdiction is an essential condition for a plea that a decision of a Court estopps another. Not only that, but it is also a familiar proposition that an ordinary person has not the power, as the legislature has, to impose a jurisdiction which is not given to a Court by its Rules of Procedure or by any Statute.

As was pointed out in the case of ESSEX CITY COUNCIL VRS. ESSEX INCORPORATED CONGREGATIONAL CHURCH UNION (1963) 2 WLR 802 at 808 by Lord Reid in similar circumstances:

"But the appellants say that the respondents cannot be allowed to maintain this point now because they consented to the matter being dealt with by the tribunal .... [I]n my judgment, it is a fundamental principle that no consent can confer on a Court or Tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction, or can estopp the consenting party from subsequently maintaining that such Court or Tribunal has acted without jurisdiction".

In the instant case to say the applicants having taken part in the proceedings are estopped is an extravagant submission to make. Because they did object to the procedure but were overruled. This is the first time we are being subjected to a submission that if a point is taken in the court below which is overruled, that person cannot complain on the same issue to a higher Court. Such a submission if accepted by this Court will undermine the whole concept of an appeal in our jurisprudence.

I will now take the other legal argument raised to resist the application — that the Court of Appeal was right to invoke "its original jurisdiction" to cure a defect in the notice of appeal. I only hope that Mr. Ray Kakraba-Quarshie did not really intended to say that in amending the notice of appeal the Court of Appeal was invoking — "its original jurisdiction" because it has no such jurisdiction; it has only appellate jurisdiction throughout Ghana.

What is the case for the applicants that these legal points are intended to defeat? As pointed out earlier in this ruling the applicants complaint related to the proceedings and orders in respect of three days.

These can be briefly summarised as follows:

(a) Monday the 20th of July, 1998.

Motion for bail before trial (CRIMINAL Motion 14/98) was put before the Court of Appeal. This motion was withdrawn and struckout accordingly. There was therefore nothing PENDING before the Court which it could have adjourned to Wednesday 22/7/98. Meanwhile, the Notice of Appeal earlier wrongfully filed on 8/7/98 in the Registry of Court of Appeal ordered to be served on the Attorney-General immediately.

(b) WEDNESDAY —22ND JULY, 1998:

(i) The appeal wrongly filed on 8/7/98 was dismissed. Counsel for accused advised to put his house in order by filing appeal in proper forum.

(ii) Another "adjournment" to 27/7/98 of an appeal yet to be filed!

(iii) No proceedings recorded for the day and no case number given in the record book because a "Notice of Appeal" per se cannot be entered.

The absence of a case number demonstrates the questionable nature of the whole proceedings on that day. No appeal was entered.

(c) MONDAY —27TH OF JULY, 1998: " and

(i) Motion for bail (CRIMINAL MOTION 17/98) filed on 22/7/98 put before Court of Appeal on 2717/98.

(ii) Motion dismissed.

(iii) Court then purports, after amendment of notice of appeal, to hear the appeal by using a ruling attached to CRI. M.17/98 which had earlier been dismissed. Deputy Attorney-General raises objection to the intended procedure but was overruled. The Court then proceeded to hear argument and allowed the "appeal" sing bail.

Docket No. CRI. Motion 17/98 was changed to read CRI. APPEAL NO.25/98, without any record of the amendment. It was only changed after proceedings. This in my view is improper. One common trend can be established from the 20th July, 1998 when the "case" was adjourned to 22/7/98 and then to 27/7/98 when the "appeal" was finally allowed: that trend is that whenever an adjournment was made, there was no proceeding pending before the Court to be "adjourned" to another day. So that after the withdrawal of CRI. MOTION 14/98 on 20/7/98 there was no proceeding to be adjourned to 22/7/98. And after proceedings of 22/7/98 when CRI. M.17/98 wrongly filed in the Court of Appeal was dismissed, there was again nothing before the Court to have been adjourned to 27/7/98. These various adjournments cannot be justified under any law or rules of procedure in my humble view.

This should naturally bring to mind the famous dictum of Akufo-Addo in the celebrated case of MOSI V. BAGYINA (1963) 1 GLR 337 @ 342 where he said:

"The law as I have always understood it, is that where a Court or a judge gives a judgment or makes an order which it has no jurisdiction to give or make or which is irregular because it is not warranted by an enactment or rule of procedure such a judgment or an order is void and the Court has an inherent jurisdiction, either suo motu or an application of the party affected to set aside the judgment or the order'. (Emphasis mine).

See also the case of McFOY v. U.A.C. (1961) 3 A11 ER 1168. And this should not be confused with whatever the Rules provide a form for interlocutory appeal in Criminal matters. As I said, the Court of Appeal should not have sought refuge in rule 7 of C.I. 19 for whatever problem it felt confronted with. The form of the appeal was wholly irrelevant to the issue of Appeal itself could assemble a record of appeal from bits of and pieces of documents available to it. For, as has been pointed out, it is trite learning that where the law confers a right without providing the procedure for the enforcement of that right, the procedure nearest could be adopted provided the applicant's grievances are well brought out and the remedy being asked for is clear.

In the case of DARKO V. AMOAH (1989-90) 2 GLR 214 @ 219 Francois J.S.C. said:

“In any event it is elementary that where the procedure for utilizing a substantive legal provision has not been spelt out, a litigant is entitled to adopt the nearest, reasonable mode of utilizing the right accorded by the law".

So that a consideration of the form the notice of appeal took is very irrelevant to the issue faced by us here and the Court of Appeal. In my considered view we cannot resolve this issue without first deciding whether there was an appeal, properly so-called, which has been entered in the Court of Appeal to enable it proceed on 27/7/98 to hear and determine that appeal.

The question therefore arises: when can an appeal be said to have been entered? The case of AGYEMAN II V. HIMA DEKYI XIII (1984-86) 2 GLR 385 decided by my brother Adjabeng J (as he then was) provides a useful starting point. This was a case in which an application for interim injunction pending an appeal was made before the High Court when the record of appeal had not been transmitted. The grant was called into question and sought to be set aside at the High Court.

According to rule 21 of L.I. 218 all applications should be made to the Court of Appeal "after an appeal has been entered". To decide the issue it became necessary for Adjabeng J. (as he then was) to decide when an appeal can be said to have been entered before the Court of Appeal and this is what he said:

“ ........... The Court of Appeal becomes seized of the whole of the proceedings 'after an appeal has been entered'; that is entered in the cause list of the Court of Appeal and that cannot be done until the record of appeal has been transmitted by the registrar of the Court below to the registrar of the Court of appeal as required by rule 15(2) of L.I.218. It is only when an appeal has been so entered as aforesaid that 'every application therein shall be made to the Court and not to the Court below' as provided by rule 21. The legal position is that in the interim, i.e. before the appeal is entered in the cause list of the Court of Appeal, it is the Court below which has power in the first instance to deal with all the interim applications in the matter, especially applications that concern the preservation of the subject matter of dispute as in the instant case".

After citing the Supreme Court decision of AMPONG V. FRIMPONG (1965) G.L.R. 350 he continued:

"There is no doubt that in this case before me the Court of Appeal is not yet 'seized of the whole proceedings between the parties', as the record of appeal and all the relevant documents mentioned in rule 15(2) of L.I. 218 have not been transmitted to the Court of Appeal. It is this Court therefore, that has jurisdiction in the first instance to entertain an application for interim injunction".

He then proceeded to dismiss the application to set aside the order of interim injunction.    

Any person who decides to appeal to the Court of Appeal in a Criminal case starts by filing a notice of appeal in the Court below in the appropriate form. And where the form is not provided the nearest reasonable form can be adopted. Rule 41(1) enjoins the registrar to take certain steps upon receipt of the notice of appeal. Rule 41 (1) of C.I. 19 states:

"Where the Registrar of the Court below receives a notice of appeal or a notice of application for extension of time within which the notice shall be given, he shall forward to the Registrar five copies of the proceedings in the Court below and five copies of the summary upon direction of the judge". (Emphasis)

So that it is the Court below which transmits the record of "proceedings" to the Court of Appeal. When this is done, together with all documents required under rule 41(2), if any, it is then that the appeal can be entered on the cause lists before the Court of Appeal. See Rule 2(1) & (2) of C.I. 19. What happened in the Court of Appeal in the present case, in my view, was a complete violation of the above provisions. The Court itself compiled the record of proceedings from the bits and pieces of material made available to it through the various applications filed and earlier dismissed. The Court was constrained to do this because the registrar of the Court below forwarded to it only the notice of appeal rather than the record of proceedings which will include the notice of appeal. The law requires that the record of proceedings, which may be one page or hundred pages, be prepared by the Court below, certified and forwarded to the Court of Appeal. A notice of appeal alone cannot be entered on the cause list and should have been returned to the Court below to comply with the law. To cap it all is the allegation that CRIMINAL MOTION 17/98 metamorphorsised and changed into CRIMINAL APPEAL 25/98 without the record of proceedings for the day acknowledging that there had been any such amendment of the motion. Moreover, a motion which had earlier been dismissed for lack of jurisdiction cannot again be amended to become a criminal appeal. In any case, amending a motion to become a substantive appeal is too radical to be a permissible amendment.

These extreme and rather unsatisfactory steps are sought to be justified on the ground that individual liberty is involved; and the fact that the Court was going on vacation after three days.

In our new constitutional dispensation the Courts have an onerous responsibility to protect the individual against the violation of his rights. But this must be done within the context of the law. A Court cannot ignore the rules, or positively violate the law, because it is faced with a human right situation. The Constitution of every country assumes a society governed by laws and a constitution must not be taken to have excluded factors that are relevant to the administration of justice such as rules of procedure since the attainment of justice is one of its aims. H.M. SEERVAI in his useful book CONSTITUTIONAL LAW OF INDIA (4th Ed.) Vol. 1 page 425 paragraph 851 said:

"The enforcement of the fundamental rights by the Courts is part of the administration of justice. In granting fundamental rights, and in providing the means of their enforcement through the Courts of law, our Constitution cannot be said to have abrogated considerations relevant to the administration of justice; in fact the securing of justice is one of the objectives of our Constitution. Rules of evidence, rules of procedure, Statute of Limitation in civil and even in criminal cases, and the doctrine of RES JUDICATA, all apply to the enforcement of fundamental rights as they do the enforcement of other rights." (Emphasis supplied)

These words are very true of our Constitution also. What therefore it means is that the enforcement of the fundamental human rights of the individual need not lead to the abrogation or deliberate violations of the rules of procedure. As I said in the case of FRANCIS KUMA VRS. ELIZABETH BART-PLANGE digested in (1989-90) GLRD paragraph 10:

"It is the duty of every Court to ensure that in a given situation justice is done. Technicalities must not be permitted to frustrate this important function of the courts if only the matter or decision lies within the discretion of the judge". (Emphasis supplied)

We must admit that our goal to do justice may not always be achievable in every situation because there may be conditions in the law or the rules which preclude the possibility of getting round certain types of .............. and do complete justice. In such a situation did the Court of Appeal find itself on 27/7/98 and its failure to realise this limitation led it into preparing its own record of proceedings and change CRI. MOTION 17/98 to CRI. APPEAL 25/98. Even the adjournment from 22/7/98, when nothing was pending, to 27/7/98 in anticipation of an appeal yet to be filed is most irregular and null and void. And if we apply the principle in McFOY v. U.A.C. (1961) 3 All E.R. 1158 we cannot but hold the whole proceedings null and void.

This is how Lord Denning enunciated the principle:

"If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. And every proceedings which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse". (Emphasis supplied)

It is in this light that I view all the adjournments form 20/7/98 to 22/7/98 through to 27/7/98. These adjournments are extremely irregular and has nothing to do with the type of form used in filing the appeal. The relationship between the form of the appeal and the adjournments are as wide as that between a chalk and cheese.

Rule 2(3) of C.I. 19 cannot be used to resist this application for it is a rule which assumes that the record of proceedings have been regularly transmitted to the Court of Appeal by the registrar of the court below.

The said rule 2(3) states:

"Notwithstanding subrules (1) and (2) of this rule the Court may hear any criminal or civil appeal which has not been included in the cause list as published, but in respect of which notice of hearing has been served on the parties or their counsel."

There is no indication that a "notice of hearing has been served" on the Attorney- General or his representative. What had been served on the Attorney-General, at the instance of the Court, was a "notice of appeal". This is not the same as a "hearing notice" as we often say in our legal lexicon.

Any reliance on this subrule to justify the rather irregular proceedings in the Court of Appeal in this case, will be a clear case of misapplication. For, as has been pointed out the subrule applies in cases in which the record of proceedings in an appeal has been regularly transmitted to the Registrar of the Court by "the Registrar of the Court below" as provided by Rule 41(1) of C.I. 19.

In view of all that I have said I will allow the application for an order of certiorari to quash the proceedings of the Court of Appeal in relation to the FRANK BENNEH CASE.

 ADJABENG, J.S.C.:

I have had the opportunity of reading the opinion of my learned Brother, Wiredu, J.S.C., and I agree with his reasoning and conclusion. Indeed, I find no need for this application. I agree, therefore, that it should be dismissed.

 ATUGUBA, J.S.C.:

The facts and issues arising in this application have been admirably set out in the ruling of the President, Edward Wiredu, J.S.C. and I need not restate them in full.

The crucial matter to consider is whether at the time the Court of Appeal purported to hear the appeal there was any valid appeal before it and whether it had jurisdiction substantive or procedural, to deal with the same. There is no doubt that on the 27th day of July, 1998 when the Court of Appeal heard and determined the appeal the appellant had filed an appeal on the 22nd day of July, 1998. That appeal was interlocutory and as no express provision covered the mode of initiating the same, the Court of Appeal held under rule 7 of the Court of Appeal Rules, 1997 (C.I. 16) that the form by which it was brought is acceptable. Indeed that holding could not and has not been contested before us, as the same is unexceptionable.

To be seized with jurisdiction to hear an appeal by the Court of Appeal the relevant provisions contained in rule 2 of C.I. 19 are as follows:

"2. Notice of cause lists

(1) Notice of a cause list shall be published by the Registrar of the Court in the Gazette from time to time but at least fourteen days before the date appointed for the hearing of the first of the matters on the list.

(2) The publication shall be notice to all parties of the listing before the Court of any cause or matter mentioned in the list.

(3) Notwithstanding sub-rules (1) and (2) of this rule the Court may hear any criminal or civil appeal which has not been included in the cause list as published, but in respect of which notice of hearing has been served on the parties or their counsel.

(4) The publication under sub-rule (1) does not apply to the hearing of any matter by a single judge."

The Applicant contends that the parties were not notified of the hearing of the appeal. This prima facie contravenes r. 2 (3) of C.I. 19, as set out supra.

In STATE V. ASANTEHENE'S DIVISIONAL COURT B1, EX PARTE KUSADA (1963) 2 G.L.R. 238 S.C. it was held that the object of service of process is to notify the relevant party of the same. Following upon this, I said in BARCLAYS BANK OF GHANA LIMITED VRS. GHANA CABLE COMPANY LIMITED, C.A. 14/96 dated the 28th day of January, 1998, S.C.:

"if therefore, a party, without actual service, nonetheless deliberately, pursuant to some notice of them, participates in the unserved proceedings, he should be bound by them."

In MOSI VRS. BAGYINA (1963) 1 GLR 337 at 341 S.C. it was held that O.47 of the High Court (Civil Procedure Rules), 1954, L.N. 140A required service of notice of the proceedings which culminated in the judgment or order for possession on a party only where such party

"did not appear at the trial and therefore did not know of the result of the action." (emphasis supplied)

In TWUM VRS. GYABAAH (1971) 2 GLR 493 C.A. it was similarly held that where a party affected by a court order was not in court when it was made, service of it on him is mandatory.

In POLITIS VRS. PLASTICO LTD. (1967) GLR 9 Amissah J.A. [sitting as an additional judge of the High Court] said at page 14

"What then are the orders which do not need to be served?

In Hopton Vrs Robertson (1889) 23 Q.B.D. 126 at page 127 Field J. said this of such orders:

"The proposition in the textbooks as to the necessity in certain cases of drawing up and serving the order does not apply when the party to be served has himself to take the next step under the order. It is when the other side may suppose the order is abandoned that the necessity of service arises." (emphasis supplied)

Better still, my brother Kpegah, J.S.C. said in THE REPULIC VRS. KWAKU OWUSU alias KWAKU BUOR & ORS. EX PARTE KWAKU ANANE [alias NANA PONKU BAFFOUR II, TAFOHENE) (1995) 1 G.S.C.J. 380 at 396 S.C.:

"While it is generally true to say that there is the need for personal service in contempt proceedings of the rule nisi, the case of LEVI VRS. DUNCOMBE 1949 E.R. 1277 is authority for the proposition that in such an application where the rule nisi is not personally served, but the party appears upon it and objects to want of personal service, such appearance waives the necessity of a personal service. In this case Learned Counsel showed cause against a rule which was obtained calling upon the Plaintiff to show cause why an attachment should not issue against him. Counsel submitted that the order nisi must be discharged as it had not been personally served upon the Plaintiff but his Clerk."

Lord Abinger, C.B. dismissed the contention in these words:

"This is not a proceeding having for its object the bringing the party into contempt. It is a rule calling upon him to show cause why he should not be punished for a contempt already committed. But even if it had been necessary that the rule should be personally served, the party having chosen to come into Court, the necessity for personal service is waived. The principle is perfectly familiar to every one who has been a reasonable time in Westminster Hall, that effect of a party appearing, who has not been regularly served, is the same as if the service had been regular ... The appearance operates as a waiver of the irregularity." (emphasis supplied).

I do not think that Lord Abinger's principle would have been different if the contemnor, without being previously irregularly served with the process, had nonetheless through some other form of notice of the proceedings appeared in them. In SEAWORNU, AMENYITOR VRS. GAKOR (1957) 2 W.A.L.R. 21 Ollennu, J. (as he then was) held that where personal service is required, service by some other mode is null and void. Nonetheless, supportive of Lord Abinger's principle, supra, is the case of REPUBLIC VRS. MEDICAL AND DENTAL BOARD, EX PARTE CHRISTIAN (1973) 2 G.L.R. 323 C.A. in which it was held that though punitive process requires personal service such service is not necessary where the person to be served has waived or impliedly authorised service on his agent.

I need not further multiply precedent. I conclude from all the foregoing, that in proper cases, the law dispenses with personal service where by the conduct of the party to be served or the circumstances of the case, personal service is rendered unnecessary.

In this case the parties, though not actually served, were in court when the date for the hearing of the appeal was fixed and in any event, appeared in that proceeding when called out in court. In those circumstances the charge of non-service, cannot, upon the principles relating to the service of process I have stated supra, hold.

But it is further contended that the appeal itself was not ripe for hearing and had not been listed for hearing, therefore the hearing and determination of the same is a nullity. There is no doubt that this appeal was listed for hearing before the Court by the Court of Appeal itself. Is this right?

It is fairly well settled that a panel of judges does not exercise administrative functions. However a court can order an administrative officer of the Court to perform his functions when necessary. In ASARE VRS. THE REPUBLIC (1968) G.L.R. 37 C.A. [Full Bench] the venerable Ollennu, J.A. (as he then was), delivering the unanimous Ruling of the Court said at page 47:

"Listing and re-listing of an appeal which is pending in the court is purely an administrative process and does not require a judicial order. It is only when a case has been disposed of, e.g. struck out for want of prosecution, that a judicial order is necessary for re-listing it." (emphasis supplied)

In that case the Court held that the ordinary bench had properly directed that a case which had been fully argued before it, involved legal points of such grave public importance that it should be listed before the full bench for hearing de novo.

Following that decision the Court of Appeal held in AMPIM VRS. GYAPONG (1970) C.C. 9 as per holding (2) that:

"A bench of the Court of Appeal cannot properly make an order listing or re-listing an appeal pending before the court because the listing or re-listing of an appeal which is pending in the Court is a purely administrative process and does not require a judicial order. It is only when a case has been disposed of, e.g. struck out for want of prosecution or an appeal has been finally disposed by an order allowing the appeal or disallowing it that a court order is necessary to re-list it." (emphasis supplied).

In APETI ALIAS KUSORNU VRS. THE REPUBLIC (1984-86) 1 GLR 139 C.A., a motion was brought by an appellant whose criminal appeal had been pending for two years to expedite the hearing thereof. It was held that the motion could neither be dismissed nor granted since the preparation of records of cases is an administrative matter and a court order fixing a hearing date would be ineffectual if on that date the records were not yet ready, but that the motion had merit in view of the two years' delay. The matter was adjourned sine die and the attention of the Chief Justice was drawn to it. I however do not, with the greatest respect, share the view that the court cannot effectively order the preparation of court records to enable the court deal with a case before it. After all such a course, as is well known, is often pursued in certiorari applications. In REPUBLIC VRS. KUMASI TRADITIONAL COUNCIL; EX PARTE NANA KOFI DEI (1973) 2 G.L.R. 73 at 85 C.A., Anin, J.A. (as he then was), commenting on the requirement of Order 59, r. 7(1) of the High Court (Civil Procedure) Rules, 1954 (L.N.140A) that an applicant for certiorari, etc. should lodge a verified copy of the proceedings in the registry of the High Court, said:

"As far as the problem created by an obstinate unco-operative registrar .... is concerned, the proper antidote is for the applicant to compel the recalcitrant registrar by mandamus to produce the record of proceedings and order in his custody."

The same view was expressed per Sowah, J.A. (as he then was) in REPUBLIC VRS. ACCRA SPECIAL CIRCUIT COURT, EX PARTE AKOSAH (1978) 1 GLR 212 at 214, C.A. Similarly, in THE REPUBLIC VRS. KUMASI TRADITIONAL COUNCIL, EX PARTE NANA OPOKU AGYEMANG II (1977) 1 GLR 360 at 365 C.A., Anin, J.A. (as he then was) quoted with approval the statement of Denning L.J in R. vrs. Medical Appeal Tribunal, Ex Parte Gilmore (1 957) 1 Q.B. 514 at page 583 C.A., that:

"The Court has always had power to order an inferior tribunal to complete the record... a tribunal could defeat a writ of certiorari unless the courts could order them to complete or correct an imperfect record. So the courts have the power to give such an order.” (emphasis supplied)

The court in the Apeti case, supra, felt it could otherwise have fixed a date for the hearing of the appeal.. The proper mode of doing so has been demonstrated in ASUMADU-SAKYI II VRS. OWUSU (1981) GLR 201 CA. In that case though the appellant’s appeal was ripe for hearing it had not yet been listed for hearing. The court at page 207 ordered as follows:

".... the ends of justice would be met if we ordered an expeditious disposal of his appeal. We accordingly order..... that the substantive appeal be listed for hearing before this court on 1 December next.”

In REPUBLIC VRS. HIGH COURT, ACCRA, EX PARTE ADJEI (1984-86) 2 GLR 511 S.C., Taylor, J.S.C. held that the listing of causes for hearing is for the Court itself to do. He reiterates these views in his article "Judicial Precedent in Ghana" (1991-1992) 18 R.G.L. 158 at 188-190. He based himself, inter alia, on the implied powers of the court. The nearest judicial support for this view is the holding by the then Supreme Court in BANSON VRS. ABBEY (1962) 1 GLR 213 S.C. at 216 per Korsah, C.J. that:

"If the Registrar can grant extension, a fortiori the court must be deemed, in the exercise of its inherent jurisdiction to have the powers which its officers have in matters concerning which the rules of procedure require the registrar to perform duties relating to appeals."

But the extension of time (to fulfill conditions of appeal) by a registrar is not in my view a purely administrative function but a quasi-judicial function which a court can better perform. The listing of cases is however, on settled authority, at supra, an administrative function which a court will not directly perform by itself.

I hold therefore that the purported direct listing of the appeal in this case by the Court of Appeal itself for hearing was improper and is therefore an error of law on the face of the record. This error even has jurisdictional dimensions.

But, eventually, it was the motion for bail which was treated as the appeal itself. That motion had been duly listed for hearing before the Court.

It is however, objected "that once the court lacked jurisdiction to hear the appeal it did not have jurisdiction to change the Motion No. 17/98 which was put before it for hearing on 27th July, 1998 to a Criminal Appeal No. 25/98 after its wrongful assumption of jurisdiction."

I understand this contention to mean that the purported hearing of the appeal being a nullity the same cannot be cured by amending the motion, ex post facto, to read, appeal. It is a well settled principle of law, as stated in MOSI VRS. BAGYINA (1963) 1 GLR 337 S.C. at 342 per Akufo Addo, J.S.C. (as he then was), that        

"Where a court or a judge gives a judgment or makes an order which it has no jurisdiction to give or make or which is irregular because it is not warranted by any enactment or rule of procedure, such a judgment or order is void, and the court has an inherent jurisdiction, either suo motu or on the application of the party affected, to set aside the judgment or order."

The coast line of the law is being seriously eroded by the ravaging sea of substantial justice. But a sea defence wall is under construction. Thus in INSPECTOR-GENERAL OF POLICE VRS. KAMARA 2 W.A.C.A. 185 at 186 the court said:

"Now it is to be observed that section 172 of the Criminal Procedure Ordinance (as amended by Ordinance No. 30 of 1929) does not empower a Divisional Court to refer a motion for an order directing a Magistrate to state a case to the Full Court: It only empowers a Divisional court to refer a case which actually has been stated by a Police Magistrate or District Commissioner to the Full Court. Here in this matter ... no such case stated exists, and in point of reality there is nothing before us on which we can adjudicate. Nevertheless the question of law ... raised before the Magistrate, and then before the Divisional Court, has been argued before us on the footing that a case has been stated for our consideration, and the Learned Judge has respited execution of the judgment against the defendant until our decision has been pronounced. In these circumstances we have decided to treat the matter as properly before us and express an opinion on the question of law involved. It is short and simple and emerges clearly enough from the record before us; it is also obviously desirable that it should be disposed of without any further delay. At the same time we deem it necessary to disclaim any intention of creating a precedent for such a procedure as has been adopted by us in the very special circumstances of this case." (emphasis supplied)

In MERCER ALLOYS CORPORATION VRS. ROLLS ROYCE LTD. (1972) 1 All E. R. 211 C.A. the court substituted a new party for one of the plaintiff companies which had merged with the former before a consent judgment was obtained. It was vigorously contended that the court had no jurisdiction to substitute a new party after judgment. The contention failed but Stephenson L.J warned that the

“cases in which such jurisdiction should be exercised must be rare, but the peculiar facts of this case make it ... one of them." (emphasis supplied).

It was held that the change in one of the parties was neither intended by the parties nor the court, to be material.

In SENTUM - BONSA TIMBER LANDS CONCESSION ENQUIRY (1963) 1 GLR 471 S.C. the Attorney-General, without locus standi, purported to apply for a review of an order of court but it was held that the want of locus standi was immaterial, since the order itself was a nullity and could be set aside under the inherent jurisdiction of the court. Akufo Addo, J.S.C. stated at p.483 that:

"Although I have held that a review was not the appropriate mode by which the Attorney-General should have proceeded, the proceedings in the court below do not for that reason become void, if some other ground in law can be found to justify not only the step taken by the Attorney-General but also the action taken by the Learned Judge thereupon. In my view the proceedings can be so justified." (emphasis supplied)

Similarly, in FORSON VRS. THE REPUBLIC (1976) 1 G.L.R. 138 an appellant combined two criminal appeals in one petition of appeal. Taylor, J. stated the need to maintain the law while striving to do justice and felt the solution lay in a "search for a legal process by which [to] avoid such blatant injustice." (emphasis supplied)

He found it under S.45 of Act 30 and made an order "directing the Senior High Court Registrar as an officer of the court, to open two separate dockets in respect of each appeal, so that there would be two appeals before me." (emphasis supplied)

In the present case, can the direct listing of the appeal for hearing by the court itself be justified on some other legal ground? I think not, because I think from the authorities I earlier adverted to in this opinion, it is a well settled legal principle that a court does not perform administrative duties (except where otherwise statutorily provided) and Taylor, J. in the Forson case respected this principle by not opening the needed two dockets of appeal himself. I do not therefore think that the course adopted by the Court of Appeal is a curable irregularity that could be saved by amending the motion for bail before it, to read appeal.

Were the present application an appeal I should have set aside the proceedings at the Court of Appeal.

But the applicant comes up against the vagaries of the remedy of certiorari. It is sometimes advocated that in certain circumstances the applicant ought to be entitled to certiorari, ex debito justitiae. But as explained by Green M.R. in R. Vrs. Stafford Justices; Ex Parte Stafford Corporation (1940) 2 K.B. 33 at page 44-45, C.A. that proposition

“merely means that unless there is something in the circumstances of the case which make it right to refuse the relief sought, the Court will grant it, and that is the way in which the Court will and must on ordinary principles exercise its discretion." (emphasis supplied)

Even where a jurisdictional error has been committed the discretion of the Court is not ousted. In R. vrs. INNER LONDON QUARTER SESSIONS, EX PARTE D'SOUZA (1970) 1 All E.R. 481 Lord Parker, C.J. said at page 482:

"The remedy by way of certiorari is, of course discretionary, and there is authority to be found in R. Vrs. Wiliams, ex parte Phillips [(1914) 1 K.B 608], to the effect that, if a party to litigation applies to this court for certiorari, certiorari will not be granted if no objection to the jurisdiction was taken before the court below, unless the party was unaware of the absence of jurisdiction.'(emphasis supplied)

In the present case the objection said to have been taken to the jurisdiction at the Court of Appeal, related to the absence of the record of appeal, not the direct listing of the appeal by the court itself. The absence of the record of appeal was, in my view, cured by the transmission of the record of proceedings of the trial court to the Court of Appeal, pursuant to its order to that effect. Though the transmitted record of proceedings was incomplete, the hearing of the appeal was not thereby vitiated. See CHIEF SUPERINTENDENT OF POLICE VRS. WADDA (1956) 1 W.A.L.R. 257, as opposed to AGBEKO VRS. THE REPUBLIC (I 977) 1 GLR 408.

In any event there was an equally effective alternative remedy open to the applicant, namely to apply to vacate the judgment of the court of Appeal under its inherent jurisdiction.

If the court was fundamentally wrong in hearing the appeal, it sought, on the other hand, on the verge of the legal vacation, to protect a fundamental human right, the liberty of the individual and as certiorari is discretionary, this factor should weigh heavily in the exercise of the court's discretion to issue or withhold it. Interest rei publicae to bear in mind what Charles Hayfron-Benjamin, J.S.C. said in THE NEW PATRIOTIC PARTY VRS. THE INSPECTOR-GENERAL OF POLICE, Writ No. 4/93 dated 30th November, 1993, S.C. that

"... This Court cannot ignore the fact that at the close of this second millennium of the modern Era the attainment and enjoyment of fundamental human rights have become prime instruments of International relations." (emphasis supplied)

The discretionary nature of the remedy of certiorari enables me to respect this principle without violence to the justice of this case.

I acknowledge that the Honourable Deputy Attorney-General has presented this application with characteristic luminous legal ingenuity, thoroughness and commitment to duty and that the course adopted by the Court of Appeal was, in several respects, provocative of Supreme litigation. But for the reasons I have advanced supra, I am constrained to dismiss this application.

 MS. AKUFFO, J.S.C.:

I also agree to dismiss this application.

COUNSEL

Mr. Martin Amidu, Deputy Attorney-General for the Applicant with him Mr. Mike Afriyie, Principal State Attorney.

Mr. Ray Kakraba Quarshie for the Respondent.