COMMISSIONER OF POLICE v. IGHAGHARA
1960
COURT OF APPEAL
CORAM
- KORSAH
- C.J.
- VAN LARE
- J.A.
- GRANVILLE SHARP
- J.A
Areas of Law
- Criminal Law and Procedure
- Civil Procedure
1960
COURT OF APPEAL
CORAM
AI Generated Summary
The Court of Appeal reviewed a case where a judge in chambers had summarily dismissed an appeal filed by an appellant in custody after the prescribed limitation period. The court held that the judge erred in dismissing the appeal in his executive capacity, as such a decision is judicial in nature. The court emphasized that when an appellant is in custody, they must be given a reasonable opportunity to be heard before an appeal can be summarily dismissed, as per Section 331 of the Criminal Procedure Code. The court also noted the practical difficulties faced by appellants in custody in accessing necessary forms for their petitions. Despite ruling in favor of the appellant on this procedural point, the court ultimately dismissed the substantive appeal by applying the proviso to Section 10(1) of the Court of Appeal Ordinance, 1957.
JUDGMENT OF GRANVILLE SHARP J.A.
Granville Sharp, J.A. delivered the judgment of the court. (His lordship stated the facts and continued.)
For the purpose of this appeal we regard this minute of the judge in chambers as a decision dismissing the appeal summarily. We therefore entertained the appellant’s appeal as properly before us, in order to have the opportunity to point out that a judge has no power in his executive capacity (that is to say, without sitting in court) to consider whether or not there is any cause which may permit the court to admit an appeal, though the period of limitation prescribed by law has elapsed. We think that a decision on such a question is a judicial decision and not an executive one; the judge therefore erred in what he did. It must be borne in mind that an intending appellant in custody does not enjoy full or easy access to the forms necessary for his petition, and it not infrequently happens that there is some delay between the time when he applied for them and the provision of them by the competent authority.
We desire to point out that even in exercising the jurisdiction under section 331 of the Criminal Procedure Code, where the High Court is empowered to dismiss an appeal summarily, a judge can do so only in certain circumstances. The proviso to section 331 (1) implies that where an appellant is in custody (and it is apparent on the record that this appellant was in custody) the court cannot dismiss the appeal summarily unless the appellant has had a reasonable opportunity of being heard in support of his appeal. The judge did not observe the necessary provision, and we hold that he had no power to dismiss the appeal in the way he did.
(The court notwithstanding the legal point in favour of the appellant proceeded to apply the proviso to section 10 (1) of the Court of Appeal Ordinance, 1957 and dismissed the substantive appeal.)
DECISION
Appeal dismissed.