JUDGMENT OF OLLENNU J.A.
OLLENNU J.A. delivered the ruling of the court. The appellants who were convicted by the High Court, Accra, on 10 May 1965, appealed to the Court of Appeal against their convictions and sentences. The appeals were listed before the ordinary bench of the court and argued; judgment was reserved at the end of the hearing without a date being fixed for its delivery.
On 2 June 1967, the court re-assembled, and the following statement was read by the presiding judge, and the appeal was accordingly adjourned:
"While we were considering our judgment in this case, we discovered that important points of law fell for decision. As these points seem to be of grave public importance, we agreed, with the approval of the Chief Justice, that judgment should not be given on these points by the ordinary bench of three judges. Instead, the Chief Justice has agreed that the appeal be argued afresh before a full court of five judges. The date for the hearing de novo will be announced in due course.”
It came again on 19 December 1967, before the full bench in accordance with the decision which the ordinary bench had taken, when the Director of Public Prosecutions raised objection to the jurisdiction of the full bench to entertain the appeal. He submitted, inter alia, that by the decision made by the ordinary bench that it [p.41] would not deliver judgment in the case, the ordinary bench abdicated its duty, and that that decision is ultra vires. Counsel based his submission on paragraph 6 of the Courts Decree, 1966 (N.L.C.D. 84), which creates two benches of the court, i.e. (a) an ordinary bench, and (b) a full bench, and paragraphs 13 and 14 of the Decree which prescribed the powers of the court when exercising appellate jurisdiction in criminal cases. He emphasised the words from N.L.C.D. 84, paragraph 13 (1):
"The Court of Appeal on any appeal under section 335 or section 337 of the Criminal Procedure Code, 1960 (Act 30), shall allow the appeal if it considers that the verdict ought to be set aside on the ground that it is unreasonable . . . and in any other case shall dismiss the appeal."
He contended that by the use of the word shall in paragraph 13 (1) of N.L.C.D. 84, and which must be interpreted as mandatory by virtue of section 24 of the Interpretation Act, 1960 (C.A. 4), the court or a bench of the court seised of a case, is enjoined to make only one or other of two orders, i.e. an order allowing the appeal or an order dismissing the app
