THE REPUBLIC vs. LT. SETH ODURO [2007]DLSC2449

Date	2007-05-30
Suit No.	CRA J3/3/2006
Citation No.	[2007]DLSC2449

DR. TWUM J.S.C.(PRESIDING)

DR. DATE-BAH J.S.C.

PROF. OCRAN J.S.C.

ADINYIRA J.S.C.

ASIAMAH J.S.C

[2007]DLSC2449
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>LT. SETH ODURO<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CRA
J3/3/2006<o:p></o:p>DATE:
30th May 2007.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="text-align:justify;line-height:115%;border:none;
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</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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DR.
TWUM J.S.C.(PRESIDING), DR. DATE-BAH J.S.C., PROF. OCRAN J.S.C., ADINYIRA &nbsp;J.S.C., ASIAMAH &nbsp;J.S.C<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>DR.
DATE-BAH, J.S.C. :&nbsp;&nbsp;&nbsp; This is the ruling
of the Court on the preliminary objection raised by the respondent to the
jurisdiction of this Court in this matter. The received learning in Ghana is
that a right of appeal has to be conferred expressly by an enactment and is not
to be implied or inferred.&nbsp; More
generally and historically in the common law world, it can be said that a right
of appeal may be conferred by statute or the common law.&nbsp; However, in Ghana, we know of no right of
appeal which has been conferred by common law.&nbsp;
It is safe to state that in Ghana the system of appeals is governed by
the Constitution and statutory law.&nbsp; It
is thus entirely to be expected that the Ghanaian courts have not, except in
error, attempted to assume any appellate jurisdiction other than that conferred
on them by legislation or the Constitution.&nbsp;
As the venerable Ollennu JA (as he then was) said in Kuma v The Republic
[1968] GLR 926 at p. 928:<o:p></o:p>&nbsp;“There is no inherent right of appeal in any
one who is dissatisfied with a decision of a court; a right of appeal is a
creature of statute, and may only be exercised by the person upon whom a
statute specifically confers such a right.&nbsp;
For example, a person convicted upon a plea of guilty may be
dissatisfied with his conviction, but has no right of appeal, for section
324(3) of Act 30 expressly provides that:&nbsp;
“No appeal shall be entertained against conviction by an accused person
who has pleaded guilty and has been convicted on his plea.”&nbsp; Therefore the jurisdiction which is conferred
upon this court to entertain an appeal may only be exercised in favour of
persons upon whom a statute has conferred a right of appeal, and may be
exercised in accordance with the procedure laid down for such an appeal.”<o:p></o:p>&nbsp;Another of our venerable judges, Akufo-Addo
CJ, had earlier firmly declared in Nye v Nye [1967] GLR 76 at pp. 82-83 that:<o:p></o:p>&nbsp;“It must be appreciated that there is no
inherent right of appeal in a litigant; nor indeed is there an inherent power
in any court to hear appeals.&nbsp; Both the
right and the power are creatures of statute, and unless the enactment creating
the right of appeal and the power to hear an appeal is explicit, clear and
unambiguous in its language, no such right and no such power can ever
materialise.&nbsp; When however the right and
the power do materialise they are exercisable only within the framework of the
conditions imposed for their exercise."<o:p></o:p>&nbsp;Abban JA, as he then was, articulated a
similar position in&nbsp;&nbsp; In Re Yendi Skin
Affairs, Yakubu II v Abudulai [[1984-86] 2 GLR 226 when he said (at p. 229):<o:p></o:p>&nbsp;“The main issue of importance is whether or
not the applicant has a right of appeal to the Supreme Court, he not having
appealed against any of the findings of the Ollennu Committee.&nbsp; An appeal is a creature of statute and if the
statute does not give a right of appeal, that is the end of the matter.”<o:p></o:p>&nbsp;(See also the judgment of Kpegah JA (as he
then was) in Otoo v Dua [1991] 2 GLR 247.)&nbsp;
To sum up, all the courts in Ghana, being creatures of the Constitution
or of statute, cannot legitimately expand their jurisdiction to encompass more
than has been conferred on them by the Constitution or the relevant statute.<o:p></o:p>&nbsp;This approach that rights of appeal are
creatures of statute is not a peculiar Ghanaian doctrine.&nbsp; It is shared with other common law
jurisdictions.&nbsp; By way of illustration,
we would like to cite the Canadian case of R v S (T) [1994] 3 S.C.R. 952, where
the Canadian Broadcasting Corporation challenged, by way of an appeal, a
banning order that had been issued by a Youth Court judge, prohibiting the publication
of the evidence and proceedings in a trial of a young offender charged with
sexual offences.&nbsp; The Supreme Court of
Canada upheld the decline of jurisdiction by the Saskatchwan Court of Appeal in
the case on the ground that the broadcaster had no statutory right of
appeal.&nbsp; The Supreme Court, in the lead
judgment by Lamer CJ, implicitly approved of the following reasoning by Bayda
C.J.S of the Saskatchwan Court of Appeal:<o:p></o:p>&nbsp;“Bayda C.J.S. continued by observing that if
the appeal before him were treated simply as an ordinary appeal in a criminal
proceeding, then, following s. 674 of the Criminal Code, the CBC would have no
right of appeal to the Saskatchewan Court of Appeal.&nbsp; Appeals are solely creatures of statute,
Bayda C.J.S. remarked, and there is no inherent jurisdiction in any appeal
court.”&nbsp; (See paragraph VIII of Lamer
CJ’s judgment).<o:p></o:p>&nbsp;We have, in this case, searched in vain for
any provision in the Constitution or any other&nbsp;
enactment which confers a right of appeal from a decision of the Court
Martial Appeal Court to this Court.&nbsp; The
preliminary objection raised by the respondent to the jurisdiction of this
Court would appear, thus, to be unanswerable.<o:p></o:p>&nbsp;The respondent, a Lieutenant in the Ghana
Army, was convicted, on 26th August 2004, of the offence of being absent
without leave by a General Court Martial.&nbsp;
On appeal to what may probably be rightly regarded as the Court Martial
Appeal Court, he persuaded the Court to quash his conviction on the ground that
the officer who had convened the General Court Martial lacked authority so to
do.&nbsp; It is from this decision that the
Republic has sought to appeal to this Court.&nbsp;
The Republic filed a Notice of Appeal on 14th November 2005, specifying
as its ground of appeal:<o:p></o:p>&nbsp;“That the court erred in law by ruling that
Brig-Gen Aryiku, GOC Northern Command had no power to convene a General Court
Martial.”<o:p></o:p>The
Republic did no</main>