KAKRABA AND ANOTHER v. KANFA I

JUDGMENT OF OFORI-BOATENG J.A.

By the leave of this court, counsel for the respondent raised a preliminary objection to the presumed right of the appellants to be heard by this court to argue their appeal. Counsel argued that by virtue of section 2(3)(b) of the Courts (Amendment) Law, 1987 (P.N.D.C.L. 191), an amendment to the Courts Act, 1971 (Act 372), anybody who, like the appellants, had lost his case twice successively, cannot appeal as of right to the Court of Appeal but must obtain leave either from the court below or from the Court of Appeal itself within fourteen days from the date of judgment. Judgment of the High Court was given on 12 January 1988. The appellants lost their case in the district court and lost it again on appeal at the High Court but failed to obtain leave either from the High Court or from the Court of Appeal before filing their appeal to the Court of Appeal. As the appellants were in violation of section 2(3)(b) of P.N.D.C.L. 191 they were not properly before the court, and the appeal should be dismissed in limine.

Counsel for the appellants replied that section 2(3)(b) of P.N.D.C.L. [p.19] 191 sought to amend only section 10(1) of Act 372, that is only that part relating to the extent of jurisdiction, and did not seek to amend also section 10(3) which dealt with the unfettered right of appeal which could not be changed except by constitutional amendment. Counsel argued further that in so far as P.N.D.C.L. 191 sought to amend section 10(3) of Act 372, it was ineffective for it was ultra vires Act 372 and that section 2(3)(b) of P.N.D.C.L. 191 therefore did not or was incapable of curbing the sacrosanct right of appeal of a litigant without leave, as provided under section 10(3) of Act 372.

The Provisional National Defence Council (Establishment) Proclamation, 1981 and the Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential Provisions) Law, 1982 (P.N.D.C.L. 42) jointly repealed and saved some portions of the Constitution, 1979. The Proclamation then stated that any law that conflicted with the Proclamation or any P.N.D.C. Law would be regarded as having been amended to the extent of the conflicting parts. That is a P.N.D.C. Law will take precedence over any law with which it clashes. Therefore if P.N.D.C.L. 191 conflicts with the provisions of section 10(3) of Act 372, then clearly section 10(3) of Act 372 should be regarded as having been amended by P.N.D.C.L. 191, a fortiori