June, 2024

Introduction:

The recent decision of the Court of Appeal in the case of Union of Industry, Commerce and Finance v. Harlequin International (Ghana) Limited  Civil Appeal No. H147/23 (‘the Harlequin case’) saw a departure from the Court of Appeal’s previous judgment in the unreported case of Civil Appeal No. H1/42/2021 Dr. Albert Walter Q. Barnor v. National Trust Holding Co. Ltd. (‘Dr. Albert Barnor case’) has sparked debate on the interpretation of the appellate jurisdiction of the Court of Appeal as outlined in the 1992 Constitution.  

Jurisdiction of the Court of Appeal:

Under Article 137 of the 1992 Constitution, the Court of Appeal has no original jurisdiction but possesses appellate jurisdiction to hear criminal and civil matters.

Article 137(1) provides “The Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of this Constitution, appeals from a judgment, decree or order of the High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred on it by this Constitution or any other law.”

Article 137 (2) further states “Except as otherwise provided in this Constitution, an appeal shall lie as of right from a judgment, decree or order of the High Court and a Regional Tribunal to the Court of Appeal.”

The combined reading of these two provisions has led to a two-pronged procedural approach towards the filing of appeals at the Court of Appeal, that is, either as of right, as expressly conferred by the Constitution or statute or where the appeal is against the decision of the High Court or a Regional Tribunal in the exercise of its original jurisdiction, and in any other case with leave of court.   

Appeals that do not lie as of right impose on the appellant the onus of satisfying the court of the threshold of a reasonable chance of success as a basis for the grant of the leave application. Though the rationale for this additional impediment to filing appeals is to ensure litigation comes to an end by weeding out frivolous appeals from suits commenced from the District and Circuit Courts, the downside of this constitutional barrier, over the years, was borne by parties dissatisfied with decisions of lower adjudicating bodies as the tribunal of first instance who will be wrung through the rigmarole of an application for leave before being granted the opportunity to appeal.

The Conflicting Decisions:

Conflicting decisions on the Court of Appeal’s jurisdiction with respect to appeals from lower adjudication tribunals emerged from the application of Section 134 of the Labour Act, 2003 (Act 651), which allows appeals from the decision of the National Labour Commission (NLC) to the Court of Appeal within a specified timeframe. Section 134 of Act 651 provides “A person aggrieved by an order, direction or decision made or given by the Commission under Section 133 may, within fourteen days of the making or giving of the order, direction or decision, appeal to the Court of Appeal.”

The Dr. Albert Barnor case:

In the Dr. Albert Barnor case, a preliminary legal objection to the jurisdiction of the Court of Appeal was raised by the Respondent which was upheld by the Court of Appeal which therefore declined jurisdiction to entertain the appeal. The Court of Appeal ruled that leave of the Court ought to be sought before appealing a decision of the NLC because the NLC is a lower adjudicating body. The Court stated: “… The current appeal clearly does not satisfy the requirements above because it did not emanate from the High Court to the Court of Appeal in the exercise of its original jurisdiction. An appeal, therefore, could not be filed as of right in this case as the Appellant purported to do.”

In reaching this decision, the Court relied on the Supreme Court case of James David Brown vrs The National Labour Commission and Ahantaman Rural Bank Limited (Civil Appeal No J4 74 2018) Judgment dated 19^th June 2019) where the same preliminary objection on the absence of leave of the Court of Appeal before filing an appeal against the decision of the NLC was raised. However, ultimately, this case was decided on other points of law, namely the time within which an appeal from the NLC ought to be filed. The Supreme Court on that occasion failed to pronounce on the objection bordering on the jurisdiction of the Court of Appeal, with the Court ruling that since Section 134 of the Labour Act (Act 651) provided that appeals from decisions of the NLC ought to be filed within 14 days, failure to adhere to this timeline, especially where Act 651 does not provide for extension of time, would make the appeal filed out of time, a nullity.

The Harlequin Case:

Taking into account the Supreme Court’s failure to pronounce on the requirement of leave or otherwise when appealing against a decision of the NLC, the Harlequin Case presented another opportunity for the Court of Appeal to depart from its previous decision in the Dr Albert Barnor case.  Here, The Court of Appeal stated that its previous decision was made per incuriam having been predicated on an incorrect application of the ratio in the James Brown Case. The Court of Appeal was emboldened to depart from its previous decision when it rightfully stated that notwithstanding Article 136(5) of the 1992 constitution, by which the Court of Appeal was bound by its own prior decisions, the Court of Appeal was at liberty to depart from its decisions where they contravene constitutional or statutory provisions.

In the Harlequin Case, the Court was of the view that since Article 137(1) of the Constitution imbued it with appellate jurisdiction if so conferred by any other statute, regard must be had to the statute conferring that jurisdiction. As such, the Court held: “both the 1992 Constitution and the Labour Act, 2003 (Act 651) do not contain any provision requiring leave of the Court of Appeal in matters whose appeal emanate from lower adjudicating bodies such as the National Labour Commission. Under Section 134 of Act 651, the provision which clothes this Court with authority to adjudicate over decisions from the National Labour Commission, such as the instant action, there is no leave requirement. We are, therefore, emboldened by the provision under Section 134 of Act 651 to answer the jurisdictional issue raised by the Respondent in the negative.”

The Court therefore concluded that where a person is dissatisfied with and aggrieved by the decision of the NLC, that person can file an appeal at the Court of Appeal as of right and did not have to seek leave before doing so.

Analysis:

Some commentators have found this decision of the Court of Appeal worrying, in light of the fact that Article 137 (2) has listed instances where an appeal shall lie as of right to the Court of Appeal, namely from a decision of the High Court or a Regional Tribunal in the exercise of its original jurisdiction. Such commentators have relied on the interpretative maxim, Expressio unius (est) exclusion alterius (The express statement of one (is) the exclusion of the other) to canvass that the express mention of appeals lying as of right from only the High Court and Regional Tribunals in the exercise of its original jurisdiction would mean that all other appeals ought to be filed with leave of the court.

Unfortunately, it would appear that this argument is flawed from the outset as from the same Article 137(2) the right to appeal as of right only from the High Court or Regional Tribunal in the exercise of its original jurisdiction is premised on there being no exceptions created by the constitution itself. It is for this reason that Article 137(2) provides: “Except as otherwise provided in this Constitution, an appeal shall lie as of right from a judgment, decree or order of the High Court and a Regional Tribunal to the Court of Appeal.”

To find such exceptions, one need not go further than Article 137(1) which states that the Court of Appeal shall have “such other appellate jurisdiction as may be conferred on it by this Constitution or any other law”.  Thus, where an enactment confers appellate jurisdiction on the Court of Appeal, the procedure and condition for exercising that right ought to be contained in that enactment. As such, until that enactment requires leave of court before filing an appeal, an appeal must lie as of right. To insist otherwise is to substitute a procedure that does not accord with the legislative intention of the statute and will in effect amount to usurpation of the powers of Parliament.

Conclusion

The decision in the Harlequin case has put to rest the procedural problems faced by numerous litigants who intend to appeal decisions of adjudicatory bodies such as the NLC, the Medical and Dental Council under the Medical and Dental Act, etc. as these Acts did not specify whether leave ought to be sought before appealing a decision of the tribunal. The clarity provided by this case will therefore not only be beneficial to employers and workers seeking to appeal the decisions of the NLC but to other persons appealing against the decision of any adjudicatory body to the Court of Appeal, where the right of appeal is conferred by statute.