BREFOH vs. THE REPUBLIC [1979]DLHC1048

Date	1979-09-21
Suit No.
Citation No.	[1979]DLHC1048

TAYLOR J.

G. K. MENSA-ETSI FOR THE APPLICANT.

YAW WIREDU-PEPRAH ASSISTANT STATE ATTORNEY FOR THE REPUBLIC.

[1979]DLHC1048
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													<main id="main" class="content" style="min-height: 60rem" >BREFOH <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, TAMALE]<o:p></o:p>[1980] GLR 679<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
21 SEPTEMBER 1979<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">

G. K. MENSA-ETSI FOR THE APPLICANT.<o:p></o:p>

YAW WIREDU-PEPRAH, ASSISTANT STATE ATTORNEY, FOR
THE REPUBLIC.<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;
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TAYLOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>“A
statute or Act of Parliament is the will of the legislature.” This is the
opening sentence in Odgers’ exposition of the nature of a statute as is
contained in Odgers’ Construction of Deeds and Statutes (5th ed.), at p. 233.
In his oft-quoted treatise on the Interpretation of Statutes (11th ed.), Sir
Maxwell also indicated in his very first sentence the basic and paramount
principle applicable in searching for the said “will” of the legislature. As is
also so stated in Maxwell, “A statute is the will of the legislature and the
fundamental rule of interpretation, to which all others are subordinate, is
that a statute is to be expounded according to the intent of them that made
it.” This rule is supported in Maxwell by reference to Coke’s Institutes, the
famous Sussex Peerage Case (1844) 11 C1. &amp; F. 85 and Fordyce v. Bridges
(1847) 1 H.L. Cas. 1.<o:p></o:p><o:p>&nbsp;</o:p>This
fundamental rule of interpretation is the unruly horse of the judiciary of
almost all common law countries. I cannot pretend that it is easy to ride it
but by the nature of our judicial function, I must come to grips with it when
the occasion calls for it. This is one such occasion. This is simple
application for bail pending trial. In our traditional approach such cases are
invariably dealt with in as casual a manner as is consistent with some form of
expeditious justice as I had occasion to remark in Okoe v. The Republic [1976 1
G.L.R. 80 at p. 83. In this case, however, the applicant is asking for bail in
a murder case pending before this court. Applications for bail before trial
have for some time now been regulated by statutory provisions and the
entitlement of an applicant can only be ascertained on a true construction of
these provisions.<o:p></o:p><o:p>&nbsp;</o:p>There is,
however, at the moment, what I consider to be ill-conceived views in many legal
and judicial circles, that bail in murder cases has been completely proscribed
by legislation and consequently that the superior courts have absolutely no
jurisdiction to grant bail in such murder cases under any circumstances
whatsoever. This is most unfortunate and in my respectful opinion it is the
reason why it is essential that the true and proper principles applicable to
the interpretation of the subsisting statutory provisions need to be adequately
canvassed in order to determine their relevance in applications for bail
pending trial. The instant application therefore is ill-suited for casual
disposal.<o:p></o:p><o:p>&nbsp;</o:p>Furthermore,
I have noted, since 1 December 1975, when I first endeavoured to expound our
principles for bail pending trial in Okoe v. The Republic (supra) that my
learned brothers notably Osei-Hwere J. have made valiant and praiseworthy
efforts to elucidate the principles governing applications for bail pending
trial: see Boateng v. The Republic [1976] 2 G.L.R. 444 per Mensa Boison J.;
Prah v. The Republic [1976] 2 G.L.R. 278 per Aboagye J.; Donkor v. The Republic
[1977] 2<o:p></o:p><o:p>&nbsp;</o:p>G.L.R.
383 per Osei-Hwere J. and Seidu v. The Republic [1978] G.L.R. 65 per Roger
Korsah J. In a singular effort Osei-Hwere J. in Donkor v. The Republic (supra)
brought a commendable analytical mind to the problem and I think as from 6 May
1977 when Donkor v. The Republic (supra) was decided by him, further light of a
most revealing nature was thrown unto the problem.<o:p></o:p>In
focusing on the problem, Osei-Hwere J. rightly in my view, took the proper
course of subjecting the statutory provisions to judicial interpretation and
although I respectfully disagree with his conclusion I have been tremendously
assisted by his robust effort and fresh approach. The fact, however, that at
the end of it all we differ is not surprising. In Great Western Railway Co. v.
Bater [1922] 2 A.C. 1 at p. 11, Lord Buckmaster finding himself in a similar
situation in the House of Lords made these poignant remarks:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
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