BIMPONG vs. THE REPUBLIC [1990]DLSC560

Date	1990-01-23
Suit No.
Citation No.	[1990]DLSC560

ADADE J.S.C

TAYLOR J.S.C

FRANCOIS J.S.C

WUAKU J.S.C

AMUA-SEKYI J.S.C.

FRANK DAVIS FOR NANA AKUFO-ADDO FOR THE APPLICANT.

MRS. ANSON CHIEF STATE ATTORNEY FOR THE REPUBLIC.

[1990]DLSC560
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													<main id="main" class="content" style="min-height: 60rem" >BIMPONG <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1989-90] 2 GLR 252<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:
23 JANUARY
1990<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">

FRANK DAVIS FOR NANA AKUFO-ADDO, FOR THE
APPLICANT.<o:p></o:p>

MRS. ANSON, CHIEF 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;
padding:0in 0in 0in 0in">

ADADE, TAYLOR, FRANCOIS, WUAKU AND AMUA-SEKYI
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.S.C.<o:p></o:p>Taylor
J.S.C. delivered the ruling of the court. The applicant herein was convicted at
the circuit court for the offences of falsification of accounts and stealing on
a number of counts which counsel for the Republic informs us were more than 40.
He was sentenced in all to a total term of fourteen years’ imprisonment with
hard labour. His appeal to the High Court was dismissed and on 7 November 1988
his further appeal to the Court of Appeal was equally dismissed.<o:p></o:p><o:p>&nbsp;</o:p>In the
instant notice of motion filed in this court on 31 August 1989, a little over
nine months after the dismissal by the Court of Appeal, he applies to us for an
extension of time within which to appeal against his said conviction and
sentence as so confirmed by the Court of Appeal. It is not necessary to
consider the particulars of the offences nor his complaint set out in the
grounds of appeal which he intends to urge on this court that his sentence of
fourteen years was harsh. It is sufficient to observe that the applicant is an
accountant by profession and that the value of the properties involved in the
charges was put by Mrs. Anson, counsel for the Republic, at ¢2.6 million. It is
also noteworthy that under section 296 (5) of the Criminal Procedure Code, 1960
(Act 30), as amended by the Criminal Procedure Code (Amendment) Act, 1965 (Act
261), the offences on which the applicant was arraigned carry terms of
imprisonment not exceeding 25 years.<o:p></o:p>Be that
as it may, the time for, and the manner of appealing to this court from a
decision of the Court of Appeal in a criminal cause or matter have been clearly
set out in rule 31 of the Supreme Court Rules, 1970 (C.I. 13). The relevant
provisions are as follows:<o:p></o:p>“31. (1)
Where the Republic or any person desires to appeal to the Court in a criminal
cause or matter he shall give notice of a criminal appeal or notice of an
application for leave to appeal within one month of the decision of the Court
below. (2) The period within which notice of a criminal appeal or notice of an
application for leave to appeal may be given may be extended at any time by the
Court or by the Court below on an application on notice. (3) The notice of a
criminal appeal or notice of an application for leave to appeal or notice of an
application for extension of time within which such notice shall be given, as
the case may be, shall be filed with the Registrar of the Court below. (4)
Where the Court below refuses to grant an application for leave to appeal, the
appellant shall be entitled to apply to the Court for special leave to appeal
and the Registrar shall accordingly notify the Registrar of the Court below of
any such application and its results.”<o:p></o:p><o:p>&nbsp;</o:p>(The
emphasis is mine.)<o:p></o:p>Quite
obviously the applicant is out of time and that is no doubt the reason why he
has applied to this court for an extension of time. But under rules 31 (3) and
34 of C.I. 13, such an application for extension of time must be made first to
the court below which is in this case the Court of Appeal and it is only where
the Court of Appeal does not grant the application that an applicant is
entitled to make his application to this court. In the application before us,
without first applying to the Court of Appeal for the said extension in
accordance with the rules, the applicant has rather invoked the jurisdiction of
this court in defiance of the rules and this in our view makes his application
incompetent. <o:p></o:p>Apart
from this circumstance invalidating his application, the provision of section 3
(2) of the Courts Act, 1971 (Act 372) as inserted by the Courts (Amendment)
Law, 1987 (P.N.D.C.L.191), s.1 presents insurmountable difficulty to the
propriety of the applicant’s motion before us. The provision as worded is as
follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“2. Where
a decision of the Court of Appeal confirms the decision appealed against from a
lower court, an appeal shall lie against such decision of the Court of Appeal
which may on its own motion or on an oral application made by the aggrieved
party decide whether or not to grant such leave, and where the Court of Appeal
refuses to grant the leave to appeal the aggrieved party may apply to the
Supreme Court for such leave</main>