DASWANI vs. COMMISSIONER OF POLICE [1964]DLHC1893

Date	1964-01-27
Suit No.
Citation No.	[1964]DLHC1893

SOWAH J.

J. ALLOTEI COFIE FOR K. NARAYAN (H. P. SWANIKER WITH HIM) FOR THE APPELLANT.

C B. K. ZWENNES FOR THE RESPONDENT.

[1964]DLHC1893
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													<main id="main" class="content" style="min-height: 60rem" >DASWANI <o:p></o:p>vs. <o:p></o:p>COMMISSIONER OF POLICE <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1964] GLR 52<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
27 JANUARY, 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

J. ALLOTEI COFIE FOR K. NARAYAN (H. P. SWANIKER
WITH HIM) FOR THE APPELLANT.<o:p></o:p>

C B. K. ZWENNES FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SOWAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SOWAH J.<o:p></o:p>In this
appeal counsel for the Commissioner of Police has argued that there was no
right of appeal from the decision of the circuit court judge in this matter to
the High Court and in support of his argument learned counsel cited section 105
of the Criminal Procedure Code, 1960,1 which gives a right to the High Court to
review any orders made under section 104 of the Criminal Procedure Code, 19602
and further gives a right to an aggrieved person to appeal to the High Court.
Counsel argued that there was no provision enabling a person to appeal from a
decision of a circuit judge.<o:p></o:p><o:p>&nbsp;</o:p>It is a
principle of law that the right of appeal from a decision of any court is
always conferred by statute and where there is no provision for an appeal an
aggrieved person cannot do so. In my view, however, where a statute has
conferred an unlimited right of appeal from any decision of a court, unless
there is an express provision in a particular enactment excluding the operation
of the general right of limiting its operation the general right will not be
excluded by implication and will come into play on the giving of a decision by
that court.<o:p></o:p><o:p>&nbsp;</o:p>To cite a
single example: in general there is a right of appeal from decisions of a
district magistrate. In section 9 of the Rent Control Ordinance, 1952,3
however, this right is expressly excluded in cases where the district
magistrate is exercising its appellate jurisdiction from decisions of the rent
assessment committee.<o:p></o:p>By
section 29 (b) of the Courts Act, 1960,4 as amended by the Courts (Amendment)
Act, 1962,5 the High Court has been granted appellate jurisdiction from any
decision emanating from the circuit court. This appellate jurisdiction is
completely unrestricted and nowhere has counsel been able to show in the
sections cited by him that this court’s appellate jurisdiction has been taken
away. I am of the opinion that this court has jurisdiction and this objection
fails.<o:p></o:p><o:p>&nbsp;</o:p>The next
objection raised by counsel was that the appeal is not in proper form, namely,
that the appellant should have used such forms as were applicable to criminal
appeals. Counsel admits that there are no such forms authorised by statute to
be used in criminal appeals from the circuit court to the High Court,
nevertheless counsel argues that the form used should be as near as possible to
that which is used from the district court to the circuit court. No authority
was cited for this proposition. In my view there is no statutory requirement as
to the form of an appeal from the circuit court to the High Court in criminal
matters. If there were, failure to comply with it might, in certain
circumstances, be fatal: see Commissioner of Police v. Samuel Lagos.6 In this
case however counsel has displayed considerable ingenuity in meeting the
position created by the non-provision of proper forms or any forms at all. The
appeal sets out clearly the case of the appellant and gives due notice to the
respondent of the nature of the appeal. In the absence of statutory forms to be
used I consider the appeal as filed sufficient and in proper form. In my view forfeiture
of a bail bond does not amount to a conviction. I am fortified in this view by
section 104 (2), (3) and (4) of the Criminal Procedure Code, 1960,7 which gives
the power to levy execution on the movable property of the defaulter. It is
only when the penalty cannot be paid and cannot be recovered by attachment and
sale that the court has the power to send the defaulter to prison: see
subsection (4) of section 104 of Act 30.<o:p></o:p><o:p>&nbsp;</o:p>This
procedure of attachment of the person used to be the old procedure even under
civil judgments. Where a debtor was unable to pay his debt a writ of ca. sa.
was issued by which he was committed to a term of imprisonment for failure to
pay his debts. No one will however suggest that because a debtor was sent to
prison under such a writ the sentence imposed would be in pursuance of a
conviction.<o:p></o:p>