COMMISSIONER OF POLICE v. AKYEAMPONG AND OTHERS

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The defendants, respondents herein, were convicted by the District Court, Hohoe, on the 23rd March, 1961, on three counts charging them with offences they were alleged to have committed in November, 1960. The charges were laid under the old Criminal Code,1 now repealed, which was in force at the date of the offences; but by virtue of section 9 (c) of the Interpretation Act, 1960,2 the proceedings were prosecuted and continued under and in conformity with the Criminal Procedure Code, 1960,3 which by virtue of section 416 thereof came into force on the 1st February, 1961.

The defendants appealed against their said conviction to the Circuit Court, Ho. The circuit court allowed their appeal, declared the judgment of the district court a nullity, and ordered a re-trial. From that judgment, the Commissioner of Police, prosecutor, applied to this court on the ground that, "the ruling of the learned circuit judge that the proceedings are a nullity is erroneous in point of law."

The first point which arises is, whether the court has jurisdiction to entertain the appeal at the date of the order against which the prosecution seeks to appeal. Learned senior state attorney for the prosecution referred the court to section 335 of the Criminal Procedure Code, 1960, and submitted that it gave a right of appeal to the prosecution. The section reads:

"The prosecution or the defence may appeal from a decision of a Circuit Court [now High Court] in its appellate jurisdiction under this Part to the Supreme Court in accordance with section 14 of the Courts Act, 1960 (C.A. 9)."

He submitted that by virtue of that section the court is vested with jurisdiction to hear the appeal. He said however that he realised it would have been better if at the date when the Criminal Procedure Code, 1960, came [p.405] into force, section 14 of the Courts Act, 1960,4 was amended expressly to give jurisdiction to the court in the matter.

Counsel for the defendants said he held the view that since it is a substantive statute the prosecution relied upon for its right to appeal and not subsidiary legislation, the Act conferred jurisdiction upon the court; he however submitted that as the proceedings were in progress before the said statute came into force, the statute cannot have a retrospective effect; therefore, he submitted, the right of appeal given to the prosecution by section 335 of the Criminal Procedure