KAKRABA AND ANOTHER vs. KANFA I [1990]DLCA2261

Date	1990-07-10
Suit No.
Citation No.	[1990]DLCA2261

AMPIAH JA

ESSIEM JA

OFORI-BOATENG JJ.A.

CARSON FOR THE APPELLANTS.

FOSU FOR THE RESPONDENT.

[1990]DLCA2261
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													<main id="main" class="content" style="min-height: 60rem" >KAKRABA
AND ANOTHER<o:p></o:p>vs.<o:p></o:p>KANFA I<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 2
GLR 17<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">

</div>COUNSEL:<o:p></o:p>CARSON
FOR THE APPELLANTS.<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">

FOSU FOR
THE RESPONDENT. <o:p></o:p>

AMPIAH,
ESSIEM AND OFORI-BOATENG JJ.A. <o:p></o:p>

</div>JUDGMENT
OF OFORI-BOATENG J.A.<o:p></o:p>By the
leave of this court, counsel for the respondent raised a preliminary objection
to the presumed right of the appellants to be heard by this court to argue
their appeal. Counsel argued that by virtue of section 2(3)(b) of the Courts
(Amendment) Law, 1987 (P.N.D.C.L. 191), an amendment to the Courts Act, 1971
(Act 372), anybody who, like the appellants, had lost his case twice
successively, cannot appeal as of right to the Court of Appeal but must obtain
leave either from the court below or from the Court of Appeal itself within
fourteen days from the date of judgment. Judgment of the High Court was given
on 12 January 1988. The appellants lost their case in the district court and
lost it again on appeal at the High Court but failed to obtain leave either
from the High Court or from the Court of Appeal before filing their appeal to
the Court of Appeal. As the appellants were in violation of section 2(3)(b) of
P.N.D.C.L. 191 they were not properly before the court, and the appeal should
be dismissed in limine.<o:p></o:p>Counsel
for the appellants replied that section 2(3)(b) of P.N.D.C.L. 191 sought to
amend only section 10(1) of Act 372, that is only that part relating to the
extent of jurisdiction, and did not seek to amend also section 10(3) which
dealt with the unfettered right of appeal which could not be changed except by
constitutional amendment. Counsel argued further that in so far as P.N.D.C.L.
191 sought to amend section 10(3) of Act 372, it was ineffective for it was
ultra vires Act 372 and that section 2(3)(b) of P.N.D.C.L. 191 therefore did
not or was incapable of curbing the sacrosanct right of appeal of a litigant
without leave, as provided under section 10(3) of Act 372.<o:p></o:p>The
Provisional National Defence Council (Establishment) Proclamation, 1981 and the
Provisional National Defence Council (Establishment) Proclamation
(Supplementary and Consequential Provisions) Law, 1982 (P.N.D.C.L. 42) jointly
repealed and saved some portions of the Constitution, 1979. The Proclamation
then stated that any law that conflicted with the Proclamation or any P.N.D.C.
Law would be regarded as having been amended to the extent of the conflicting
parts. That is a P.N.D.C. Law will take precedence over any law with which it
clashes. Therefore if P.N.D.C.L. 191 conflicts with the provisions of section
10(3) of Act 372, then clearly section 10(3) of Act 372 should be regarded as
having been amended by P.N.D.C.L. 191, a fortiori P.N.D.C.L. 191 was enacted
specifically to amend Act 372.<o:p></o:p>Although
it cannot be called an old law, P.N.D.C.L. 191 has been interpreted so often by
the appellate courts that the meaning of section 2(3)(b) of that law is almost
settled. The current interpretation accepted by the courts and which I find
very convincing is the same as that given by counsel for the respondent. I find
the interpretation of counsel for the appellants unconvincing, and contrary to
the normal rules of interpretation of statutes. I therefore reject it. In view
of the preceding, I would hold that the appeal is not properly before this
court, and I would accordingly dismiss it in limine.<o:p></o:p><o:p>&nbsp;</o:p>

<o:p>&nbsp;</o:p></main>