JUDGMENT
____________________________________________________
WOOD (MRS.) CJ,
Article 14(7) of the 1992
Constitution provides an extra
layer of protection to personal
liberty, consolidating the
guaranteed fundamental human
right to liberty enshrined in
article 14 (1) of the 1992
Constitution. It states:
“Where a person who has served
the whole or a part of his
sentence is acquitted on appeal
by a court, other than the
Supreme Court, the court may
certify to the Supreme Court
that the person acquitted be
paid compensation; and the
Supreme Court may, upon
examination of all the facts and
the certificate of the court
concerned, award such
compensation as it may think
fit; or, where acquittal is by
the Supreme Court, it may order
compensation to be paid to the
person acquitted.”
The full scope and effect of
article 14 (7) has however never
been subjected to judicial
scrutiny since the coming into
force of the 1992 Constitution.
The dominant question in this
appeal centres on the grounds on
which an appellate court, other
than the Supreme Court, may
certify to the Supreme Court,
pursuant to article 14 (7), that
an individual who has served
either the whole or part of his
sentence, and is subsequently
acquitted, be paid compensation.
Central to this broad question
is the true and proper
construction to be placed on the
article 14(7). This appeal thus
involves an examination of the
jurisprudence on:
(a) the public law remedy
available to an aggrieved person
under article 14 (7) and;
(b)the principles governing the
payment and assessment of
compensation, against the State.
What are the key facts which
triggered this appeal? In
January 1993, the applicant and
his brother were arrested and
charged with the offences of
conspiracy to murder and murder
one Amegbor Amedorme. They were
convicted on both charges and
sentenced to death on August 7th,
2001. He however successfully
appealed his convictions on both
charges on grounds of jury
misdirection.
Following his acquittal, on the
8th of July 2004, he
applied, under article 14(7), to
the Court of Appeal differently
constituted, for certification
to the Supreme Court that he be
paidC400,000,000(four hundred
million old cedis) as
compensation for the losses he
claimed he had suffered during
the period of his incarceration.
In opposing the application the
State, inter alia, contended via
affidavit evidence that the
appellant was:
“…lawfully convicted and
sentenced according to law after
a fair trial where the Natural
Justice rule was fully
observed.” Furthermore that;
“…the mere fact that he had
been acquitted on appeal does
not give him right to make any
claim for compensation unless he
can prove that his trial,
conviction and sentence were
incongruous with legality
therefore his human rights have
been infringed by his unlawful
trial, conviction and sentence…”
The court dismissed his
application, reasoning inter
alia that:
“…Article 14(7) of the
Constitution, 1992 was intended
to cover situations where the
State had mounted oppressive
prosecution against an
individual and without basis and
just cause at all. It would also
apply in situations where the
State mounted a prosecution,
which clearly sought to infringe
on the basic fundamental human
rights of the individual. It
could also arise in situations
where the charge, which was
preferred, was unknown to the
law or the court of trial had no
jurisdiction at all. The
constitutional provision under
consideration appears to be an
innovation in our democratic
dispensation and for that matter
there are no precedents to guide
this court. In our respectful
opinion, we think that when an
application is brought under
Article 14(7) of the
Constitution, 1992, the whole
circumstances of the case must
be taken into consideration …….
the above constitutional
provision which is under
consideration, imposes a
discretion on this court and any
other court for that matter.
Such discretion like any
judicial discretion is properly
exercised when all the
circumstances is (sic) taken
into consideration. In this
case, we are of the opinion that
as the applicant went through a
proper trial which observed all
the statutory procedure in a
court of law established by this
very constitution and his arrest
and prosecution were all regular
devoid of any abuse of the law
and breach of any human rights
of the applicant, we are of the
view that this application ought
to be refused. For to allow any
applicant who claims to have
been acquitted to resort to this
constitutional provision for
redress will certainly defeat
the purpose of this provision.”
The court premised this
conclusion on the primary
finding that:
“…the above constitutional
provision, which is under
consideration, imposes a
discretion on this court and any
other court for that matter.
Such discretion like any
judicial discretion is properly
exercised when all the
circumstances are taken into
consideration.”
The Appellant being dissatisfied
with the decision has appealed
to us on two grounds:
i.
“Failure by the Court to
appreciate that the award of
compensation as provided for
under article 14(7) of the 1992
Constitution is not hedged with
any antecedent conditions other
than the simple acquittal of the
Applicant, and that this is no
doubt based on the inherent
injustice of arresting and
detaining a person on inadequate
or non-existent legal grounds.
ii Failure by the Appellate
Court to appreciate that the
fundamental abuse of the rights
of the Applicant took place at
the very moment of his arrest
and detention in Ada WITHOUT
CAUSE, and that all other
processes, whether “proper” or
not, were nugatory.”
I was minded to think, from the
appeal grounds and the arguments
advanced in support thereof,
that one narrow and
determinative question, namely,
whether or not under article 14
(7), the duty to issue a
certificate to the Supreme Court
recommending that a person
acquitted be paid compensation
is discretionary and not
mandatory, would substantially
dispose of this appeal.
But, the slow yet steady
evolution of compensation claims
under article 14 (7), -there is
another claim under article 14
(7) pending in this court-,
makes it imperative that we do
not restrict ourselves to this
narrow compass. I believe that
this apex court, in its dual
capacity as the constitutional
court and a court of last
resort, has a duty to examine
the full scope and effect of
article 14 (7), and clarify it,
for our future guidance and that
of other courts, the legal
community, and indeed the
citizenry. I am thus constrained
to address all the significant
primary and subsidiary issues
that I think are pertinent to a
fair and just resolution of this
novel case.
The first key issue a real
interpretative question relates
to the true and proper
construction to be placed on
article 14 (7). I find this the
proper approach, if we must find
answers to the following crucial
issues.
Firstly, under article 14(7),
does the acquittal per se(by
itself) of a person who has
served the whole or part of his
sentence automatically entitle
that individual to recompense,
for which reason an appellate
court (other than the Supreme
Court) which orders his
acquittal, is under a
constitutional obligation to
certify to the Supreme Court
that he be paid compensation?
Secondly, where the appellate
court certifies to the Supreme
Court that the acquitted person
be paid compensation, is the
Supreme Court bound by the
reference and is thus
mandatorily required to order
compensation against the State?
Thirdly, if the power
exercisable by the two courts is
discretionary and not mandatory,
what are the eligibility
criteria, under article 14 (7)
for certification, for ordering
that compensation be paid and
finally for assessing the
quantum?
These questions, some of which
are interrelated, arise
inescapably from the established
law covering the grounds on
which a discretionary decision
may be interfered with by an
appellate court. Thus, a
conclusion that their Lordships
of the Court of Appeal exercised
their discretion judicially
would preclude us from
disturbing their order of
dismissal.
I start off my analyses, by
reference to article 14 (7),the
subject of this enquiry, which
for ease of reference I again
reproduce:
“Where a person who has
served the whole or a part of
his sentence is acquitted on
appeal by a court, other than
the Supreme Court, the court may
certify to the Supreme Court
that the person acquitted be
paid compensation; and the
Supreme Court may, upon
examination of all the facts and
the certificate of the court
concerned, award such
compensation as it may think
fit; or, where acquittal is by
the Supreme Court, it may order
compensation to be paid to the
person acquitted.”
This appeal, as already noted,
turns on these two grounds,
namely:
i “Failure by the Court to
appreciate that the award of
compensation as provided for
under article 14(7) of the 1992
Constitution is not hedged with
any antecedent conditions other
than the simple acquittal of the
Applicant, and that this is no
doubt based on the inherent
injustice of arresting and
detaining a person on inadequate
or non-existent legal grounds.
ii Failure by the Appellate
Court to appreciate that the
fundamental abuse of the rights
of the Applicant took place at
the very moment of his arrest
and detention in Ada WITHOUT
CAUSE, and that all other
processes, whether “proper” or
not, were nugatory.”
The Appellant’s main complaint
stems from their Lordships key
finding that under article 14
(7), the duty imposed on an
appellate court to certify to
the Supreme Court that a person
acquitted, and who has served
either the full or part of his
sentence be paid compensation is
discretionary, and not
mandatory.
Appellant Counsel argued that
this primary finding, arose from
their Lordship’s failure to read
the article 14 (7) in tandem
with the mandatory article 12
(1) of the 1992 Constitution. He
contended that had their
Lordships adopted this approach,
and literally construed article
14 (7), they would not have been
misled into rationalising that
the word “may” in article
14 (7) is “permissive and
discretionary”. Neither
would they also have concluded
that both certification and the
payment of compensation, were
subject to conditions, since the
mandatory letter and spirit of
article 12 (1), does not lend
itself to that interpretation.
This argument thus presupposes
that, a person, who has served
either the whole or part of his
sentence, is, on his acquittal,
automatically entitled to
compensation, for which reason,
the court which acquitted himhas
a mandatory duty to issue a
certificate to that effect.
Counsel stoutly defended the
mandatory certification and
compensation argument by
reference to s. 133 (1) of
Criminal Justice Act 1988, of
the United Kingdom. He argued
that given the similarities
between this law, which provides
for the payment of compensation
to persons “manifestly wronged
by operation of law”, and the
article 14 (7),the court should
have been guided by the
persuasive force of the UK law
to rule in appellant’s favour.
The appeal ground2 derived from
the court’s other finding that:
“…as the applicant went through
a proper trial which observed
all statutory procedures in a
court of law established by this
very constitution and his arrest
and prosecution were all devoid
of any abuse of the law and
breach of any human rights of
the applicant, we are of the
view that this application ought
to be refused.”
Counsel challenged the validity
of this finding and conclusion
on the ground that under article
14 (7), the propriety or
legality of thetrial process
which culminated, albeit in the
wrongful conviction, is wholly
immaterial. Equating the broad
principles governing claims for
damages for the private wrong of
unlawful imprisonment with
compensation claims underarticle
14 (7), he submitted that the
overriding consideration in both
situations is the fact per se of
the denial of liberty.
Furthermore, he contended that
since right from the initial
stages, the Respondent was
seized with facts which plainly
showed that the appellant was
not in any way linked to the
crime, his arrest and subsequent
trial was absolutely without
cause and unlawful, and it
mattered very little that the
subsequent trial followed due
process.
What were the arguments
presented on behalf of the
Respondent? Counsel’s countered
the argument that article 14 (7)
imposed a mandatory duty on the
two respective courtsby
reference tos. 2 of the
Interpretation Act, 2009, Act
792,wherein “may” is
construed as “permissive and
empowering” and urged we do
not reverse the order of the
court below, since on all the
peculiar facts, the court acted
judicially.
He dismissed the arguments
related to the alleged
similarities between article 14
(7) and the s.133 (1) of the
Criminal Justice Act 1988, on
the ground that the laws are
dissimilar, as the
pre-requisites for compensation
payment under the UK law is
altogether different from those
that obtain under our
Constitution. Also, that among
other things, a distinction be
drawn between acquittal on mere
technical grounds, and
acquittals based on “some
failure or fault in the
prosecution’s handling of the
case”, or upon any of the
grounds identified by the court
below, as follows:
“…where the State had mounted
oppressive prosecution against
an individual and without basis
and just cause at all. It would
also apply in situations where
the State mounted a prosecution,
which clearly sought to infringe
on the basic fundamental human
rights of the individual. It
could also arise in situations
where the charge, which was
preferred, was unknown to the
law or the court of trial had no
jurisdiction at all.”
He argued that while an
acquittal on mere technical
grounds would not earn an
applicant a certificate for
compensation, acquittals on
substantial grounds would.
Finally, Counsel’s answer to the
contention that the acquittal
was clear evidence of unlawful
conviction and indeed a
fundamental abuse of the
applicant’s rights was that the
prosecution led evidence at the
trial, which proved that it was
the applicant who dealt the
final death blow to the
deceased, by slashing him with a
cutlass when he attempted to get
up. He argued that this singular
act, coupled with the police
power of arrest, completely
invalidates the appellant’s
claim to compensation on grounds
of his innocence.
The constitutional provision on
the payment of compensation to a
person who is acquitted on
appeal, and who has served
either the whole or part of his
prison term, is not new in our
constitutional development.
Article 14(7) is thus not a
novel provision. The
Constitutional Commission that
drafted the 1969 Constitution
clearly saw the need for
compensation for unlawful
interference with the liberty of
the individual and consequently
proposed per Paragraph 204 of
the 1968 Proposals:
“We need not hasten to add
that any person who is
unlawfully arrested or detained
by any other person or authority
be he Government or otherwise
should be entitled to
compensation from that person or
authority for the unlawful
arrest or detention.”
Based on this, provisions such
as article 15(6) ofthe 1969
Constitution which stipulated:
“Where a person who has
served the whole or part of his
sentence is acquitted on appeal,
(a)
by a Court, other than the
Supreme Court, the Court may
certify to the Supreme Court
that the person so acquitted be
paid compensation; and the
Supreme Court may, upon
examination of all the facts and
the certificate of the Court
concerned, award such
compensation as it may deem fit;
(b)
by the Supreme Court, it may
order compensation to be paid to
the person so acquitted.”
Article 21(7) of the 1979
Constitution was couched in the
same language. Thus, there is no
substantial difference between
the articles 15(6) and 21(7) of
the 1969 and 1979 Constitutions
respectively on the one hand,
and article 14(7) of the 1992
Constitution. The existing
difference between the two sets
is minor and inconsequential as
it relates to form rather than
substance, namely, the drafting
style in relation to the
paragraphs (a) and (b) of the
two previous provisions. The
substance and effect of all
three provisions however, is the
same.
It is however clear on the face
of the article 14 (7), coupled
with the strong divergent views
expressed by the parties, that
article 14(7) is not as clear
and unambiguous as not to
warrant this court’s
intervention. To the contrary,
the issues raised call firstly,
for a proper construction of
article 14 (7), an exercise that
should settle the central
question of whether the power
conferred on the Supreme Court,
and appellate courts below it is
mandatory or discretionary.
Should we conclude that the
jurisdiction conferred is
discretionary and not mandatory,
the next question relates to
factors which an appellate court
as well as the Supreme Court
would consider when exercising
its discretionary jurisdiction.
Equally significant, what
factors would the Supreme Court
take into account in assessing
the quantum of compensation
following certification, which
essentially is a recommendation,
from the court below?
This court has, through a line
of cases consistently held that
a written constitution being
suis generis in character, must
never be subjected to the
ordinary rules of statutory
interpretation. In his
concurring opinion in the
Kuenyehia v Archer [1993-4] 2
GLR 525 at 561, Francois JSC,
observed:
“Any attempt to construe the
provisions of the Constitution
1992…must perforce start with an
awareness that a constitutional
instrument is a document suis
generis to be interpreted
according to principles suitable
to its peculiar character and
not necessarily according to the
ordinary rules and presumptions
of statutory interpretation.”
Another cardinal rule of
construction requires that the
constitutional text under
consideration must not only be
broadly and liberally
interpreted, but purposively
construed as a whole, in the
context of its own wording.
Constitutional adjudication does
not therefore admit of piecemeal
and out –of-context mechanical
interpretation of words in the
written text.
Thus, Acquah JSC (as he then
was) in National Media
Commission v Attorney General
[2000] SCGLR1, at 17, opined:
“In interpreting the
Constitution, care must be taken
to ensure that all the
provisions work together as
parts of a functioning whole.
The parts must fit together to
form a rational, internally
consistent framework …”
The equally highly instructive
opinion of Dr. Date- Bah JSC in
the case of Asare v Attorney
–General [2003-2004] SCGLR 823,
is worth mentioning. The learned
Justice stated:
“What I have stated above has
been merely to emphasise what I
consider the purposive approach
to be more likely to achieve the
ends of justice in most cases.
It is a flexible approach which
enables a judge to determine the
meaning of a provision and the
broader legislative policy
underpinnings and purpose of the
text. Judicial interpretation
should never be mechanical.”
When article 14 (7) is
purposively construed in the
light of these well settled
constitutional principles, it is
obvious that the word “may”
ought to be construed as
permissive and empowering,
rather than mandatory or
imperative. My conclusion, which
affirms the position of the
court below, has not so muchbeen
influenced by the Interpretation
Act, 2009, Act 792, as by a
purposive reading of the
provision, understood in the
context of the entire article
14, and indeed other fundamental
human rights and freedom
provisions captured under
Chapter 5 of the 1992
Constitution.
It is clear that at both
judicial levels, that is the
certifying court as well as
Supreme Court, the whole tenor
of article 14 (7), as could be
judged from the consistent use
of the word “may”, is on
the exercise of discretionary
power. Thus, even where the
court below has issued a
certificate, the Supreme Court
is not bound to accept the
court’s recommendation on its
face value. The Supreme Court’s
decision to award or not to
award compensation, as well as
the quantum of compensation,
involves the exercise of
discretionary jurisdiction. And
so along the judicial chain, the
only mandatory duty imposed on
both the court which issues the
certificate and this honourable
court is the duty to act
judicially. Beyond this, a
person acquitted by an appellate
court, who has served the whole
or part of his sentence is not
automatically, by the acquittal
per se, entitled to compensation
and a fortiori, the appellate
court is not under a mandatory
duty to issue a certificate to
that effect. Similarly, the
Supreme Court is not under a
mandatory duty, on receipt of
the certificate, to order
compensation in favour of the
acquitted person.
It is noteworthy that whereas
the word used in article 14(7)
is “may”, elsewhere in
various constitutional
provisions the word “shall”
has been copiously utilised.
Interestingly, the mandatory
“shall”, not “may” is
the word used in article 14(5),
which guarantees the payment of
compensation to persons
unlawfully arrested and
detained, and is therefore akin
to article 14(7), by virtue of
them both being compensation
schemes. Indeed, the Chapter 5
Fundamental Human Rights
provisions, is the
quintessential example of a
deliberately profound use of “shall”,
demonstrating the framers
linguistic capability to use the
word “shall” as and
whenever necessary, to denote
the imposition of a mandatory
duty.
Kludze JSC, in affirming another
interpretative principle
enunciated by the majority in
the case of Attorney –General
(No 2) v Tsatsu Tsikata (No 2)
[2001-2002] SCGLR 620,
subsequently observed, in the
case of Republic v Fast Track
High Court; Ex parte Daniel
[2003-2004] SCGLR 364, that:
“We cannot, under the cloak
of constitutional interpretation
rewrite the constitution of
Ghana. Even in the area of
statutory interpretation, we
cannot amend a piece of
legislation because we dislike
its terms or because we suppose
that the law give dislikes its
terms or because we suppose that
the law giver was mistaken or
unwise. Our responsibility is
greater when we interpret the
constitution.”
Admittedly, the use of the word
“shall”, in article 12
(1)imposes an obligation to
observe all human rights
provisions, but only as provided
under the constitution, and not
otherwise. Reading article 14
(7) alongside the mandatory
article 12 (1) does not confer
jurisdiction on any court to
substitute “shall” with “may”
in article 14 (7) in order to
give it a meaning clearly
different from what the framers
intended; an act which would
have amounted to judicial
legislation, not judicial
interpretation.
Again, we cannot subordinate the
article 14 (7), a constitutional
provision with its specific use
of the word “may”, to s.
133 (1) of the Criminal Justice
Act, 1988 of the UK, as amended
by s.175 of the Anti-Social
Behaviour, Crime and Policing
Act 2014, a differently worded
express statutory provision of
another jurisdiction, in which
the word used is “shall”.
The rule that a constitution
being sui generis must be
construed in the light of its
own wording and not on the basis
of words found in any other
constitution, let alone the
statutory provisions of another
jurisdiction, would not permit
this.
Finally, another reason why
Counsel’s claim to automatic
certification must fail is that,
the article 14 (7) does not
intend that this honourable
court acts mechanically, and
routinely rubber stamp
certifications from appellate
courts below it. To the
contrary, in what I believe is
intended to validate the
certificate, which, in my
view,is, for all practical
purposes only recommends the
payment of compensation, this
court is obliged to act in a
principled manner by examining
all the facts of the case in
question, including the
certificate, to guarantee its
sanctity. The court is required
to do this before proceeding to
assess the quantum of
compensation.
If all that were required of the
Supreme Court were a mere
robotic acceptance of the
certificate issued by the
appellate court below it, what
is the logic behind the duty
implicitly imposed on the court
by the article 14 (7), which I
restate for purposes of clarity:
“…the Supreme Court may,
upon examination of all the
facts and the certificate of the
court concerned, award such
compensation as it may think
fit;…” (emphasis
supplied)
In any event, in cases in which
the acquittal is at the instance
of the Supreme Court, the
Constitution nevertheless
provides:
“…where the acquittal is by the
Supreme Court, it may order
compensation to be paid to the
person acquitted.”
The point is this: if even the
Supreme Court has no mandatory
power to automatically order
compensation payment to persons
it acquits, on what basis can it
be argued, in the absence of
express constitutional
authority, that a court below
it, entrusted with only a
limited reference jurisdiction,
is endued with any such
mandatory authority.
In sum I conclude that, article
14 (7) is not a blanket
provision for the award of
compensation, since the
jurisdiction conferred on the
Supreme Court and an appellate
court, which certifies, is
discretionary. Similarly, the
power exercisable by the Supreme
Court, on receipt of a
certificate issued by an
appellate court, is not
mandatory, but discretionary.
As rightly held by the court
below, this discretionary power
in its proper legal context, is
discharged only when it is
exercised judicially, that is
fairly andnot arbitrarily, with
due regard to relevant matters
only and notthe extraneous.
I now transition into what
undoubtedly is one of the most
vexed questions in this appeal.
The question is: what principled
criteria would inform the
appellate court’s decision to
certify to the Supreme Court
that a person acquitted be paid
compensation? Under article 14
(7), the criterion which poses
little difficulty is the
requirement that the victim must
have spent the whole or part of
his sentence. Admittedly, it
raises another troubling
question, though, namely, can a
person convicted for the offence
of murder, and who is sentenced
to death by hanging, and serves
time in prison, awaiting
execution, and who is
subsequently acquitted, be
categorised as a person who has
served the whole or part of his
sentence, in terms of article 14
(7), and consequently qualified
to apply for compensation?
I should think so given the
philosophy underlying
compensation awards and our
desire not to defeat, but
advance, the object and purpose
of the article 14 (7). Even
though the individual was not
sentenced to a specific term of
imprisonment, it is plain that
years spent under cruel prison
conditions awaiting execution of
the death sentence, is in the
nature of imprisonment, and is
obviously bound to have a
devastating effect on him. A
contrary answer is indefensible,
given this court’s outright
rejection of the mechanical
doctrinaire approach to
constitutional construction, as
expressed by Sowah JSC (as he
then was), in the famous case of
Tuffuor v Attorney-General
[1980] GLR 637, at 647-648.
Next, having established the
fact that an acquittal per se,
is not sufficient to
automatically entitle a person
to a certificate, which grounds
of acquittal would influence the
appellate court’s critical
decision to certify that the
acquitted person be paid
compensation? As a sequel, what
factors would inform the Supreme
Court’s endorsement of the
certificate and entitlement to
compensation? Finally, what
factors would the Supreme Court
take into account in assessing
the quantum of compensation? .
This admits of no easy answers
or categorisation. A written
constitution by its very
character is the basic legal
framework around which laws,
rules and regulations passed by
the legislature, as well as case
law; including judicial
interpretations of the various
provisions, are woven. This
explains why the article 14 (7)
is completely silent and
provides no relevant criteria,
grounds, factors, standards or
guidelines, some of which may
overlap, for both the appellate
court and this court. I think
the policy reason behind this
derives also from the rule that
a constitution being a living
political document, must always
be construed as such, leaving it
with sufficient space to grow to
respond to the needs of or meet
the exigencies of any given
time.
Article 14 (7) cannot thus be
tied to a fixed set of
inflexible criteria; we can only
provide indices that, on a case
by case basis, may guide courts
in arriving at fair and just
conclusions.
The factors may be deduced
firstlyfromthe rationale
underlying article 14 (7).In
every human activity, errors,
mistakes and blunders are bound
to occur. Some are glaring or
gross others minor. They may be
genuine or reckless.
Imperfections are the bane of
all human institutions and
systems, our criminal justice
system not exempted. But, at the
same time we cannot gloss over
the unpardonable blunders that
are sometimes committed and
gross recklessness that are
exhibited by individuals and
institutions, leading to
irretrievable losses. Blatant
violations of the guaranteed
rights and freedoms of ordinary
citizens, particularly, personal
liberty, are clear examples of
the anomalies that persist in
liberal democracies. While we
must not feign ignorance of the
resource and logistical
constraints and other challenges
faced by law enforcement
agencies and criminal justice
administration, it is equally
true that weak institutions
undermine our democracy. So, one
distinctive way of placing a
check on, deterring and curbing
the abuse and misuse of
investigative, prosecutorial and
judicial authority or power is
by holding individuals and
institutions accountable for
their actions. Hence provisions
such as articles 14 (5) and
14(7) of the 1992 Constitution
on the one hand, and 14 (1) of
the Criminal and Other Offences
(Procedure) Act, 1960, Act 30 on
the other, and which provides
for the payment of compensation,
inter alia, for unlawful
arrests, detention, and
frivolous or vexatious charges.
As the chief guardian of
individual liberties and
freedoms, responsibility thus
lies on this court, to uphold
and defend allthe accountability
related constitutional
provisions and other laws of
this land. Indeed, the
establishment of a compensation
scheme as exists under article
14 (7), is not only fair and
just, but will advance the rule
of law.
Secondly, reference may be made
to s.31 (1) of the courts Act,
1993, Act 459, which stipulates
the various grounds on which
appeals may be allowed, by
determining each application for
certification or compensation in
the light of these stated
grounds. It is noteworthy that
the categories are not closed.
The omnibus ground in paragraph
(c), namely, “and in any other
case…” implies that apart from
the specifically listed grounds,
a court may, on other valid
grounds, acquit.
The s. 31 of Act 459 provides:
“Subject to subsection (2),
an appellate court on hearing an
appeal in a criminal case shall
allow the appeal if the
appellate court considers.
(a)
that the verdict or conviction
or acquittal ought to be set
aside on the ground that it is
unreasonable or cannot be
supported having regard to the
evidence, or
(b)
that the judgment in question
ought to be set aside as a wrong
decision on a question of law or
fact, or
(c)
That there was a miscarriage of
justice,
and in any other case shall
dismiss the appeal”.
From our jurisprudence, I think
that the miscarriage of justice
that may significantly impact an
appellate court’s decision to
certify is that which may be
classified as substantial,
serious, grave or gross. Thus,
in compensation claims, the
nature of miscarriage of justice
complained of, would certainly
be an influencing factor.
Thirdly, since it is permissible
to resort to international
treaties and conventions as a
tool for constitutional
interpretation, (see the case of
Adjei-Ampofo v Attorney -General
[2003-2004]411 at (418) ),
grounds of acquittal which would
influence an appellate court to
certify compensation for a
wrongly convicted person, is by
reference to article 14 (6) of
the International Covenant on
Civil and Political Rights 1966
(ICCPR), (ratified by Ghana on 7th
September 2000) a compensation
scheme, which specifically
details the substantive grounds
on which compensation may be
paid. It provides:
“When a person has by a final
decision been convicted of a
criminal offence and when
subsequently his conviction has
been reversed or he has been
pardoned on the ground that a
new or newly discovered fact
shows conclusively that there
has been a miscarriage of
justice, the person who has
suffered punishment as a result
of such conviction shall be
compensated according to law,
unless it is proved that the
non-disclosure of the unknown
fact in time is wholly or partly
attributable to him.”(Emphasis
Supplied)
It is from these sources I have
highlighted that I think that an
appellate court may draw
guidance on the relevant
factors. A primary consideration
for example would be whether or
not the acquittal was based on
mere technicalities or on
substantial grounds t hat has
led to a gross miscarriage of
justice. Did the evidence
clearly show that the applicant
was completely innocent? Were
the charges trumped up, and was
the evidence led at the trial
falsely procured, are all
relevant matters a court may
take into consideration.
The ICCRP pre-conditions would
constitute sufficient grounds
which an appellate court may
consider when called upon to
certify. The grounds are that:
a) new material or substantial
fact has been discovered, that
conclusively shows that the
person has been wrongly
convicted or there has been a
miscarriage of justice, and
b) the evidence clearly shows
that the non-disclosure of the
unknown fact in time is wholly
or partly not attributable to
him.
Also, I would not; as a general
rule dismiss as irrelevant,
those instances- factors- which
the court below thought would
apply in applications under
article 14(7).
These include whether or not the
offence with which the person
was charged was known to our
criminal law, whether or not the
State had used its excessive
might and coercive powers “to
mount an oppressive prosecution
against an individual and
without basis and just cause”.
Now, this instant application
was without the full record of
proceedings; meaning the court
below was without that relevant
evidence that could well have
led to an altogether different
final conclusion.
In the rather terse affidavit
accompanying the motion, the
appellant made no reference
whatsoever to the reasons for
his acquittal. It is apparent
that Counsel approached the case
from the wrong legal proposition
that a bare acquittal, without
more, would automatically
entitle an applicant to a
certificate and compensation. On
the respondent’s part, the
factual allegation, that it was
the appellant who finally
butchered the deceased to death,
is a matter that ought to have
been proved in the court below.
But, contrary to the known rules
of law and procedure, this
allegation of fact was never
proven. This bare allegation
was only raised by the Counsel
in his arguments. It must be
emphasised that facts which
parties intend to rely on either
in support (proof) of or
opposition (disproof) to
applications under article 14
(7), need to be properly
introduced via affidavit
evidence, or face rejection on
grounds of inadmissibility.
In any event, the alleged fact
is incorrect as is clearly borne
out by the substantive findings
of this honourable court, which
heard and determined the
substantive appeal filed by the
other accused, in the case
titled In Re Matthew Sarbah v
The Republic [2009] SCGLR 728.
Their Lordships of this court
expressed the factual findings
in these terms:
“There is no doubt that the
deceased died of injuries which
from the evidence of the second
and third prosecution witnesses,
were inflicted on him by the
appellant. The appellant
admitted both in his statement
to the police and in his
evidence at the trial that he
killed the deceased.”
This clearly means there was no
scintilla of evidence to link
the appellant to the charge of
murder. As Appellant Counsel,
rightly argued, there was
absolutely no just, reasonable
or probable cause for the
arrest, subsequent prosecution
and conviction and sentence of
the appellant. Indeed, Appellant
Counsel’s concession that as
rightly held by the Court of
Appeal, oppressive prosecutions
or prosecutions mounted without
any basis or just cause ought to
entitle an applicant to
certification, justifies a
decision in favour of the
appellant in these proceedings.
How this patent and material
fact escaped both the
prosecution and the trial court
defies logic. Be that as it may,
it leads to the undoubted
conclusion that crucially, in
exercising its discretion, the
court below excluded this
material fact, that the
appellant was completely
innocent of the charge. That it
was a court of competent
jurisdiction which conducted the
trial in accord with due process
is no valid answer to the charge
of grave miscarriage of justice.
There was a complete failure of
justice which clearly merits
redress under article 14 (7).
On the basis of the rule that an
appeal is by way of re-hearing,
and also, that in an appeal
against the exercise of
discretion, an appellate court
may reverse a decision where
material facts have either been
ignored, overlooked or excluded
from the court’s consideration,
I will substitute the proper
order, and certify the appellant
is entitled to be paid
compensation.
This case, by its peculiar
nature, raises an interesting
mix of constitutional and other
legal and procedural issues. Had
the court below concluded as we
have, that the appellant was
entitled to be compensated; it
would have certified and
referred same to us for our
consideration; which essentially
is in the nature of a
verification exercise. Our role
appropriately, would have been
to examine all the facts,
including the certificate, which
on its face must contain
relevant facts justifying the
certifying court’s decision, to
enable us affirm or disaffirm
the recommendation, and then
proceed to assess the quantum of
compensation. Of course, the
procedure is different where the
acquittal is by this court.
In this instance, by reversing
the order of dismissal by the
court below, in effect, it is as
if his acquittal were at the
first instance of this court,
while sitting as an appellate
court on the substantive appeal
against his conviction.
In view of this court’s
decision that he is entitled to
a certificate, I do think that a
formal certification to
ourselves in this court,
followed by a ritualistic
re-examination of all the facts
and the certificate yet again is
unnecessary. I doubt whether the
constitution intended any such
rigmarole. And the reason is
simply this. It was an
examination of all the facts
that indeed led to a reversal of
the order of dismissal. A formal
repeat of that exercise, in my
view, would not serve any
practical or useful purpose.
Our final constitutional
obligation under article 14 (7),
an unchartered area of
constitutional adjudication, is
to undertake the equally
difficult task of assessing the
appropriate quantum of
compensatory award in this
instant case. In this regard, I
find most instructive the
opinion expressed by Dr. Date –
Bah JSC in the case of Awuni v
West African Examinations
Council SCGLR [2003-2004] 471,
where this court had to assess
damages arising, albeit from,
the breach of article 23 1992
Constitution. The learned jurist
observed:
“This measure of damage is
easier to apply in the
traditional private law of torts
area, where a plaintiff’s loss
may consist of personal injury,
damage to property, financial
loss etc. it is much more
difficult to apply where a
plaintiff’s loss is that of a
constitutional right. What is
the lever of monetary payment
that can return him or her to
the status quo ante. A similar
difficulty has been found in
trying to apply restitution n
integrum to the non-pecuniary
elements of personal injury
compensation, such as pain and
suffering. In such situations,
what the courts may end up with
is not true compensation but
what Romer LJ described in
Rushton v National Coal Board
(1953) 493 at 502 as “notional
or theoretical compensation to
take the place of that which is
not possible, namely, actual
compensation.’
In effect, the damages that are
awarded for breach of a
constitutional right under
chapter five of the Constitution
in cases where no actual damage
is proved are damages which are
“at large” in the sense in which
Lord Hailsham LC used this
expression in Cassell & Co Ltd v
Broome (1972) AC 1027 at 1073,
HL where he said:
“The expression ‘at large’
should be used in general to
cover all cases where awards of
damages may include elements for
loss of reputation, injured
feelings, bad or good conduct by
either party, or punishment, and
where in consequence no precise
limit was be set in extent. It
would be convenient if, as the
appellants’ counsel did at the
hearing, it could be extended to
include damages for pain and
suffering or loss of amenity.
Lord Devlin uses the term in
this sense in Rookes v Barnard
(1964) AC 1129, 1221, when he
defines the phrase as meaning
all cases where “the award is
not limited to the pecuniary
loss that can be specifically
proved.” But I suspect that he
was there guilty of a neologism.
If I am wrong, it is a
convenient use and should be
repeated”.
The determinant factors must
necessarily include all the
indices I have already
identified, including but not
limited to, the gravity of the
offence with which this
appellant was charged, the
period of incarceration, the
stigma associated with the
offence charged, the seriousness
of the injustice meted out to
the applicant coupled with the
nature of the sentence imposed.
We may also take into account
the specific pecuniary and
proved losses suffered as a
result of the incarceration.
In this instant case, a
completely innocent man was
wrongly and unjustly convicted.
Not only was the prosecution
oppressive, as indeed there was
not a scintilla of evidence to
connect him to the grave charge
of murder, but he was
nevertheless convicted,
sentenced to death by hanging,
left to languish in condemned
cells, with the death sentence
hanging round his neck, until
his eventual exoneration. To say
that this must have caused him
the most agonizing mental
torture and anguish,
psychological pain and suffering
is no exaggeration, not to
mention the attendant loss of
consortium, reputation,
economic, social and financial
losses following his arrest,
wrongful conviction and sentence
of death. He catalogued a number
of pecuniary losses and prayed
for a specific monetary sum, but
failed to prove same, as he was
required by law to do.
For policy reasons, and in order
to minimize the floodgate effect
and also protect the public
purse, I would affirm the
position adopted by our brothers
in the Awuni case and advocate a
rationally reasonable sum, a
global sum, to compensate for
this manifest injustice.
Taking these and other factors
that my respected brethren in
their respective opinions have
identified, we have decided that
the sum of
GH¢35,000.00
(Thirty –Five Thousand Ghana
Cedis) is adequate compensation
on the given facts.
This finally leads me to a
couple of procedural issues.
Certification to the Supreme
Court under article 14 (7) could
beat the instance of the
appellate court acting suo motu,
or on an application brought by
an acquitted person. It is
prudent that such formal
applications, be made timeously
to the same court, on account of
its first- hand in depth
knowledge of the full facts and
its nuances. Even so, the law
requires all relevant documents
to be promptly made available to
the court hearing the
application. This duty is
greater in those cases where it
is not feasible to place the
application before the court
which reversed the conviction.
Be that as this may, the
production of the full record of
proceedings and other relevant
documents, is a sine qua non, if
an applicant must avoid losing
the application.
(SGD) G. T. WOOD
(MRS.)
(CHIEF JUSTICE)
SOPHIA ADINYIRA (Mrs.) JSC:
Your Ladyship and Lordships,
oblige me to start my opinion
with this prologue:
By Guaranteeing Compensation to
the Wrongfully Convicted and
Imprisoned, a State Can Take an
Important Step towards Ensuring
the Integrity of its Criminal
Justice System
Introduction
Protection of personal liberty
is a fundamental human right,
therefore one of the few
instances, where a person can be
deprived of his personal liberty
as permitted by law is in
execution of a sentence or order
of a court in respect of a
criminal offence of which the
person has been convicted.
No system is perfect, and it
happens that some innocent
persons are wrongfully convicted
and imprisoned. Imprisonment of
an innocent person as a result
of an unjust conviction has been
described as the most serious
deprivation of individual
liberty that a society may
impose.
Causes of wrongful conviction
are generally systematic in
nature. Common systemic causes
of wrongful conviction are
incorrect informer/complainant
evidence, incorrect or false eye
witness identification, flawed
forensic evidence, police or
prosecutor misconduct,
overzealousness to secure a
conviction, incompetent or
faulty legal representation,
wrong direction of jury, and
tainting of jury for example by
corruption or even by media
influence.
Causes of wrongful conviction
may also be specific to
individuals such as the desire
to shield another person; or a
mental problem that may lead an
individual to make a false
confession
The appeal before us is the
first time that a claim for
compensation for wrongful
conviction and imprisonment has
been raised for determination in
the Supreme Court and turns on
the interpretation of Article
14(7) of the 1992 Constitution;
even though the said article is
not a novel provision as similar
provision existed in article
15(6) and 21(7) of the 1969 and
the 1979 Constitution
respectively.
In this opinion, I will consider
the right to compensation for
wrongful imprisonment under the
1992 Constitution while making a
comparison with the
International Convention on
Civil and Political Rights and
the implementation of the
concept in the US, Canada, UK
and Australian jurisdictions as
well as a purposive
interpretation of Article 14(7)
and then proffer some guidelines
as I proceed.
The Facts of the Case
Dodzie Sabbah (appellant) and
his brother Mathew Sabbah were
arrested in January 1993 for
conspiracy to commit murder and
murder.
They spent 8 years in remand
custody before their trial began
in March 2001 at the Accra High
Court. They were convicted and
sentenced to death on 7 August
2001.
The appellant’s conviction and
sentence were reversed by the
Court of Appeal on 20 January
2004. His brother, Mathew
Sabbah’s conviction and sentence
for murder were undisturbed and
subsequently affirmed by the
Supreme Court on 29 July 2009.
See Sabbah v The Republic
[2009] SCGLR 728.
The appellant spent 2 years 7
months and some weeks on death
row before his acquittal on 20
January 2004. On 15 June 2004,
the appellant applied by way of
a motion to the Court of Appeal
praying that the court certifies
payment of compensation to him
as provided by article 14 (7) of
the 1992 Constitution.
On 8 July 2004, the Court of
Appeal refused the application
holding:
“We are of the opinion that the
above constitutional provision
[article 14(7)] which is under
consideration imposes discretion
on this court and any other
court for that matter. Such
discretion like any judicial
discretion is properly exercised
when all the circumstances is
taken into consideration. In
this case we are of the opinion
that as the applicant went
through a proper trial which
observed all the statutory
procedure in a court of law
established by this very
constitution and his arrest and
prosecution were all regular
devoid of any abuse of the law
and breach of any human rights
of the applicant, we are of the
view that this application ought
to be refused. For to allow any
applicant who claims to have
been acquitted to resort to this
constitutional provision for
redress will certainly defeat
the purpose of this provision.”
The appellant being dissatisfied
appealed to the Supreme Court.
Grounds of Appeal
1.
Failure by the [Appellate] Court
to appreciate that the award of
compensation as provided for
under article 14(7) of the 1992
Constitution is not hedged with
any antecedent conditions other
than the simple acquittal of the
applicant and this is no doubt
based on the injustice of
arresting and detaining a person
on inadequate or non-existing
legal grounds.
2.
Failure by the Appellate Court
to appreciate that the
fundamental abuse of the rights
of the Applicant took place at
the very moment of his arrest
and detention at Ada without
cause, and that all other
processes, whether “proper” or
not were nugatory. [Emphasis in
script omitted]
First Ground of Appeal
Submissions by Parties
Counsel for the appellant
submits that the Court of Appeal
should have interpreted article
14 (7) literally without
attempting to impose conditions.
He submits further that:
“It is difficult to know what
inspired the Court to say the
payment of compensation was
discretional. Obviously the
Court did not read article 14(7)
in tandem with article 12(1)
which says:
“The fundamental human rights
and freedoms enshrined in this
Chapter shall be respected and
upheld by the Executive,
Legislature and the Judiciary
and all other organs of
government and its agencies and,
where applicable to them, by all
natural and legal persons in
Ghana, and shall be enforceable
by the courts as provided for in
this Constitution.”
The mandatory spirit in this
provision does not allow for the
discretion that the Appellate
Court refers to. Perhaps, it
might have been deceived by the
use of the word “may”. However,
the spirit and letter of Art 12
(1) is that the provisions on
human rights must have been
violated, and the violation
vindicated by the Courts”
The Principal State Attorney
for the Respondent, is on the
other hand of the view that the
quashing of a conviction does
not of itself prove the
innocence of that person, and
that the mere quashing of a
conviction should not be the
basis of payment of compensation
to a person. She submits that by
the use of the word “may” in
article 14(7); that provision
imposes discretion on the court
in the grant for an application
for compensation.
Consideration
It is pertinent to set out
Article 14 (7) which says:
“Where a person who has served
the whole or a part of his
sentence is acquitted on appeal
by a court, other than the
Supreme Court, the court may
certify to the Supreme Court
that the person acquitted be
paid compensation; and the
Supreme Court may; upon
examination of all the facts and
the certificate of the court
concerned, award such
compensation as it may
think fit; or, where the
acquittal is by the Supreme
Court, it may order
compensation to be paid to the
person acquitted.”[Emphasis
mine]
It is not difficult to see that
this provision does not suffer
from obscurity and equivocation,
as its core purpose is to award
compensation for persons
wrongfully convicted and
sentenced to imprisonment.
Counsel for both side invited us
to compare article 14(7) with
what exist in UK criminal law,
section 133 (1) of the Criminal
Justice Act 1988. I will
therefore examine the concept of
compensation for wrongful
imprisonment in international
conventions and as implemented
in other jurisdictions in
comparison with that of Ghana.
Concept of Compensation for
Wrongful Imprisonment
The concept for wrongful
imprisonment is not designed to
compensate a claimant for a tort
actually committed by the state,
but rather views the state as
the most appropriate party to
assume liability for an unjust
conviction. A criminal
prosecution is, after all,
brought in the name of the
“State,” a conviction is for an
act made criminal by state law
and a convicted person generally
is confined in a state
correctional facility.
As the Commission promoting New
York’s statute for compensation
for wrongful imprisonment
expressed it, “By imposing
financial liability upon the
State recognition is given to a
proposition that would seem to
be self-evident, namely that it
is the State’s obligation, and
no one else’s, to do what
justice and morality demand when
an innocent person is convicted
of a crime he did not commit”.
International Convention
Article 14(6) of the
International Covenant on Civil
and Political Rights, 1966
(ICCPR)
provides:
“When a person has by a final
decision been convicted of a
criminal offence and when
subsequently his conviction has
been reversed or he has been
pardoned on the ground that a
new or newly discovered fact
shows conclusively that there
has been a miscarriage of
justice, the person who has
suffered punishment as a result
of such conviction shall be
compensated according to law,
unless it is proved that the
non-disclosure of the unknown
fact in time is wholly or partly
attributable to him.” [Emphasis
added]
Under this convention
compensation is to be paid where
the conviction has been reversed
on the grounds that new or newly
discovered fact has been
discovered that conclusively
show there is a miscarriage of
justice, and that the
non-disclosure of the unknown
fact in time is wholly or partly
not attributable to him.
Practice in Other Jurisdictions
States Parties to the ICCPR
meet their obligations under
article 14(6) in one or more of
the following ways:
incorporation of the article (or
a rewording of the article)
directly into domestic
legislation to create a
statutory right to compensation;
conferring a dedicated
discretion on an administrative
or judicial body to determine
whether awards of compensation
should be paid; or utilizing the
general power of domestic
governments to make ex gratia
payments.
The United Kingdom for example
directly incorporated article 14
(6) into its domestic
legislation under the
Criminal Justice Act 1988,
Section 133. By its
provisions a wrongfully
convicted person must make an
application to the Secretary of
State who determines
applications for compensation on
the criteria set out in Section
133(1) of the Criminal Justice
Act 1988. Section 133 (1) has
been amended by section 175 of
the Anti- Social Behaviour,
Crime and Policing Act, 2014
by inserting another sub-section
that: “for the purposes of
subsection (1) there has been a
miscarriage of justice in
relation to a person convicted
of a criminal offence…if and
only if the new and newly
discovered facts show beyond
reasonable doubt that the person
did not commit the offence.”
In the US, Criminal Law is
written and administered by the
States, instead of the Federal
Government. Thus, of the 50
States in the US, 28 States have
adopted laws providing for
compensation of persons
wrongfully convicted and
incarcerated.
As an example, Texas has adopted
a wrongful imprisonment statute
that allows compensation where a
claimant (1) "has served in
whole or in part a sentence in
prison under the laws of this
state," and (2) "has been
granted relief on the basis of
actual innocence for the crime
for which the person was
sentenced."Tex. Civ. Prac. &
Rem. Code Ann. § 103.001(a).
Canada does not have legislation
designed to implement the
requirement under Article 14(6)
of the International Covenant on
Civil and Political Rights to
provide compensation for victims
of miscarriage of justice. In an
attempt to discharge this
mandate, Canadian federal and
provincial governments issued
guidelines in 1988 to provide
for compensation which require
statements either from an
appellate court or from the
executive that granted a pardon
to the effect that the person
seeking compensation did not
commit the crime.
In Australia, individuals
wrongfully convicted and
imprisoned do not have a common
law or statutory right to
compensation in any jurisdiction
other than the Australian
Capital Territory (ACT).
However, a state or territory
government may choose to make an
ex gratia payment
either on its own accord or as a
result of a request by a party
for such a payment.
In the above countries, redress
is provided to innocent persons
who prove that they were
unjustly convicted. The courts
or the executive body that
determines the award have
emphasized that judgments of
acquittal in criminal trials do
not constitute determinations of
innocence, and a claimant bears
the burden of proof to
affirmatively establish
innocence. In these countries a
person who receives an executive
pardon is also considered for
compensation.
Position in Ghana- A
Constitutional Human Right
In Ghana compensation for a
wrongfully convicted person is a
constitutional right enshrined
in Chapter Five of the
Constitution which guarantees
fundamental human rights and
freedoms. Article 14 (1) of the
1992 Constitution guarantees the
personal liberty of a person,
which he can only be deprived of
in accordance with procedure
permitted by law in execution of
a sentence in respect of a
criminal offence of which he has
been convicted and other cases
specified under article 14 (1)
(a) to (g). For our purposes I
will state only subsection 14
(1) and (a):
“Every person shall be entitled
to his personal liberty and no
person shall be deprived of his
personal liberty except in the
following cases and in
accordance with procedure
permitted by law_
(a)
In execution of a sentence or
order of a court in respect of a
criminal offence of which he has
been convicted;”
And where an individual is
wrongfully convicted and
imprisoned and upon acquittal by
a court, he has a constitutional
right to compensation. This
right to compensation for
wrongful conviction is
guaranteed and protected by
article 14 (7) and the award is
determined by the Supreme Court;
(and not at the High Court as
with other human rights and
freedoms in Chapter Five of the
Constitution).
It can be seen from the above
discussion that the only
similarity in all countries
including Ghana is payment of
compensation resulting from
wrongful conviction and
sentence. Article 14 (7) differs
from the Criminal Justice Act,
1988 of UK and legislations and
guidelines in other jurisdiction
on the requirements to be met by
an applicant. The article does
not require the applicant to go
through another process to prove
his innocence as pertains in
other jurisdiction. Here in
Ghana, the right to compensation
does not extend to a person
granted a Presidential pardon.
It is only the Supreme Court
that determines the award and
not the Executive.
Interpretation of Article 14 (7)
Is Compensation for Wrongful
Conviction and Imprisonment
Mandatory?
The challenge here is the proper
construction to be placed on the
wording of article 14(7). The
appellant invites us to adopt a
literal interpretation leading
to the conclusion that an
acquittal per se on
appeal of a person who has
served the whole or part of his
sentence, the Court of Appeal is
mandatorily required to certify
to the Supreme Court that an
award of compensation be made to
the person.
Though this Supreme Court has
not ruled out other techniques
of interpretation, it has
certainly departed from the
mechanistic approach to a
purposeful literal approach in
the interpretation and
enforcement of the Constitution.
For example Dr. Date-Bah JSC in
Danso-Acheampong v
Attorney-General [2009] SCGLR
353 at 358 said:
“These days, a literal approach
to statutory and constitutional
interpretation is not
recommended. Whilst a literal
interpretation of a particular
provision may, in its context,
be the right one, a literal
approach is always a flawed one,
since even common sense suggests
that a plain meaning of
interpretation of an enactment
needs to be checked against the
purpose of the enactment, if
such can be ascertained. A
literal approach is one that
ignores the purpose of the
provision and relies exclusively
on the alleged plain meaning of
the enactment in question.”
For purposes of clarity I will
reproduce article 14 (7) which
states:
“Where a person who has served
the whole or a part of his
sentence is acquitted on appeal
by a court, other than the
Supreme Court, the court may
certify to the Supreme Court
that the person acquitted be
paid compensation; and the
Supreme Court may; upon
examination of all the facts and
the certificate of the court
concerned, award such
compensation as it may think
fit; or, where the acquittal is
by the Supreme Court, it may
order compensation to be paid to
the person acquitted.”
The word “may” appear in all the
enabling parts of article 14
(7). Section 42 of the
Interpretation Act, 2009, Act
792, defines “may” as follows:
‘In an enactment the expression
“may” shall be construed as
permissive and empowering and
the expression “shall” as
imperative and mandatory.’
Looking at the context in which
it is used in article 14 (7) it
means ‘permitted to’. It
therefore gives the appellate
court the discretion to act or
not. Thus where an appellate
court has acquitted a person, it
has discretion to issue a
certificate to the Supreme Court
to award compensation, where
that person has served the whole
or part of his sentence.
Likewise the Supreme Court upon
receipt of the certificate does
not automatically make an award
but is required to consider all
the facts and the certificate
and award such compensation as
it may think fit. Where the
Court was exercising it
appellate jurisdiction it may
order compensation which is also
discretionary.
It is not the intention of the
drafters of the Constitution
that the award of compensation
under the said article to be
automatic upon acquittal per se,
otherwise it would have used the
word ‘shall’ as was done in all
the other clauses under article
14 and other articles in Chapter
Five on fundamental human rights
and freedoms. Even by Article
14 (6) of the International
Covenant on Civil and Political
Rights, 1966 (ICCPR) cited
and quoted supra which we
invariably adapted in our 1969,
1979 and 1992 Constitutions
respectively, a person is not
automatically entitled to
compensation upon his mere
acquittal; compensation is paid
where the conviction has been
reversed on the grounds that new
or newly discovered fact has
been discovered that
conclusively show there is a
miscarriage of justice, and that
the non-disclosure of the
unknown fact in time is wholly
or partly not attributable to
him. Thus the award of
compensation for wrongful
conviction and imprisonment is
discretionary and not mandatory.
Accordingly, using a purposeful
approach, I will hold that upon
a proper construction, article
14 (7) confers a right to
compensation for wrongful
conviction and imprisonment, and
it at the same time confers a
discretion on both the appellate
court and the Supreme Court to
determine upon examination of
all the facts, whether award of
compensation should be paid. It
is the Supreme Court that
considers the quantum of the
award. Appellate court includes
the High Court when it exercises
its appellate jurisdiction on
criminal matters emanating from
the Circuit and Magistrate
courts. See article 140 and
section 15 (1) (b) and (c)
of the Courts Act, 1993, Act
459.
The courts in the exercise of
their judicial discretion must
act judiciously within the
limits set in the article 14(7)
itself; and also in accordance
with the guidelines provided in
article 296 that:
“Where in this Constitution or
in any other law discretionary
power is vested in any person or
authority_
a)
that discretionary authority
shall be deemed to imply a duty
to be fair and candid;
b)
the exercise of the
discretionary power shall not be
arbitrary, capricious or biased
either by resentment, prejudice
or personal dislike and shall be
in accordance with due process
of law; …
Procedure for Enforcement
Unlike article 14(6) of the
ICCPR or what pertains in some
states in the USA, UK, Canada
and Australia, there is no
requirement in Ghana for a de
novo determination of innocence
or miscarriage of justice based
on a new or newly discovered
fact before compensation can
be considered. After all,
article 14 (7) empowers the
appellate court to recommend an
award to the wrongfully
convicted person where it
considers appropriate. Article
12 (1) imposes an obligation on
the courts to enforce human
right and freedom provisions as
enshrined under Chapter Five of
the Constitution. Article 12 (1)
states:
“The fundamental human rights
and freedoms enshrined in this
Chapter shall be respected and
upheld by the Executive,
Legislature and the Judiciary
and all other organs of
government and its agencies and,
where applicable to them, by all
natural and legal persons in
Ghana, and shall be enforceable
by the courts as provided for in
this Constitution.”
Furthermore, by the wording of
Article 14 (7) it is the
appellate court that heard the
appeal and acquitted the person
that is fully seized with all
the facts of the case and has
the record of the entire process
leading to the wrongful
conviction which in my view can
properly consider whether the
person should be compensated and
then to issue a certificate to
the Supreme Court to make an
award.
It is also the duty of counsel
for the appellant to prompt the
court that heard the appeal to
exercise its discretion to issue
a certificate. Where the
appellate court fails to
consider article 14(7), the
applicant may first apply to the
same court to claim compensation
and if it is refused then follow
up with an appeal to the Supreme
Court as has been done before
us.
Similarly where the acquittal
is by the Supreme Court, the
Court is likewise obliged to
make an award suo moto or when
prompted. A refusal by the
Supreme Court in this respect is
subject to review.
Upon a receipt of the
certificate the Supreme Court is
required to examine all the
facts and the certificate of the
court concerned before deciding
whether to award any
compensation it deems fit. The
word ‘examine’ used in this
context ordinarily means to
consider or study something
carefully or in more detail.
Chambers 21st Century
Dictionary, Revised Edition
defines ‘examine as:’ to
inspect, consider or look into
something clearly.’ Thus by the
use of the words ‘examine all
the facts and the certificate’,
the Supreme Court is required to
scrutinize in detail all the
facts and certificate issued by
the appellate court. To enable
the Supreme Court to carry out
this task, at least the judgment
of the Court of Appeal should
accompany the certificate and at
best the appeal record be added.
In addition, when the Supreme
Court embarks on its assigned
task to examine all the facts of
the case and the certificate
issued by the appellate court,
it would be prudent and helpful
for the Court to examine whether
the acquittal was not based on
any technicality or procedural
error but on section 31
of the Courts Act, 1993, Act
459, which sets out three
grounds on which an appellate
court shall allow an
appeal in a criminal case on any
of them. The section provides:
“31. Appeal allowed on
substantial miscarriage of
justice
(1) Subject to subsection
(2), an appellate court on
hearing an appeal in a criminal
case shall allow the appeal if
the appellate court considers
(a) that the verdict or
conviction or acquittal ought to
be set aside on the ground that
it is unreasonable or cannot be
supported having regard to the
evidence, or
(b) that the judgment in
question ought to be set aside
as a wrong decision on a
question law or fact, or
(c) that
there was a miscarriage of
justice,
and in any other case shall
dismiss the appeal.
(2) The appellate court
shall dismiss the appeal if it
considers that a substantial
miscarriage of justice has not
actually occurred or that the
point raised in the appeal
consists of a technicality or
procedural error or a defect in
the charge or indictment but
that there is evidence to
support the offence alleged in
the statement of offence in the
charge or indictment or any
other offence of which the
accused could have been
convicted on that charge or
indictment.”
It is my considered opinion that
if an appellate court acquits a
person on any of the grounds
specified in section 31 (1), and
the person has served the whole
or part of his sentence then
there is no question that the
person was wrongly deprived of
his personal liberty and
therefore deserves to be
considered for compensation by
the court. However as indicated
earlier the decision to make an
award is discretionary and not
automatic or mandatory, and it
depends on the circumstances of
each case.
The part of the decision of the
Court of appeal that the award
of compensation is not automatic
but discretionary is affirmed
Following the above, I will
dismiss the appeal on the first
ground.
Second Ground of Appeal
Counsel for the appellant
submits that the appellant was
completely innocent of the
charge of murder and his
acquittal by the Court of Appeal
raised the presumption of the
unlawfulness of his conviction,
and that his arrest and
detention by the Ada police was
without cause and as such all
other process were unlawful. He
submits further that if the
Court of Appeal has considered
what happened to the appellant
goes to the very root of a
person’s dignity and liberty,
they might have come to a
different conclusion
The Senior State Attorney
submits that from the facts of
the case the appellant was not
innocent and his arrest and
detention and trial and
conviction were therefore not
illegal or unlawful. There was
lawful justification for the
restraint on his movements and
he is therefore not entitled to
compensation.
The issues that arise from the
submissions of parties may be
summarized as follows: What
factors did the Court of Appeal
take into consideration in
exercising its discretion? Was
the Court justified in refusing
the application?
The Court of Appeal in
considering the merit of the
application said:
“As a constitutional provision
has been the basis of this
application, this court will
proceed to consider the merits
of the application. As said
earlier, the applicant was
arrested and put before a court
of competent jurisdiction
established by the constitution
for committal proceedings before
he was arraigned before a High
Court constituted by a Judge and
jury on charges of murder and
conspiracy to commit murder,
which are offences known to our
criminal jurisprudence. He was
convicted at the High Court only
to be acquitted on grounds of
misdirection by the trial judge.
We are of the opinion that
Article 14 (7) of the
Constitution, 1992 was intended
to cover situations where the
State had mounted oppressive
prosecution against an
individual and without basis and
just cause at all. It would
apply in situations where the
State mounted a prosecution,
which clearly sought to infringe
on the basic fundamental human
rights of the individual. It
could also arise in situations
where the charge, which was
preferred, was unknown to the
law or the court of trial had no
jurisdiction at all.”
It is obvious from the above
that the Court of Appeal took
the view that the process that
the appellant went through from
the time of his arrest and to
his prosecution, conviction and
sentence was regular and
properly done only to be
acquitted on grounds of
misdirection by the trial judge;
and consequently he did not
merit to be paid compensation.
This position of the Court of
Appeal can be gathered from its
conclusion in these words:
“We are of the opinion that the
above constitutional provision
[article 14(7)] which is under
consideration imposes discretion
on this court and any other
court for that matter. Such
discretion like any judicial
discretion is properly exercised
when all the circumstances is
taken into consideration. In
this case we are of the opinion
that as the applicant went
through a proper trial which
observed all the statutory
procedure in a court of law
established by this very
constitution and his arrest and
prosecution were all regular
devoid of any abuse of the law
and breach of any human rights
of the applicant, we are of the
view that this application ought
to be refused. For to allow any
applicant who claims to have
been acquitted to resort to this
constitutional provision for
redress will certainly defeat
the purpose of this provision.
The application is accordingly
dismissed.”
With due respect to the learned
justices of appeal, it seems to
me that by considering only the
regularity of the processes from
the time of the arrest of the
appellant to his remand in
custody, through the period of
prosecution to sentence, their
lordships took a rather narrow
approach, though these matters
were relevant. The core purpose
of article 14 (7) is to
compensate innocent people who
have been unjustly convicted and
imprisoned; it is therefore my
candid view that the threshold
question their lordship should
also have considered is whether
the grounds for overturning the
conviction rested upon facts and
circumstances probative for the
proposition that the appellant
did not commit the crime
especially when it was a
differently constituted panel
that handled the appeal. Then if
the appellant’s conviction was
reversed for reasons other than
his innocence then their
lordships justifiably declined
to issue a certificate to the
Supreme Court to make an award.
I hasten to add that the learned
justices of appeal not being the
panel that acquitted the
appellant were disabled from
taking a more liberal and
purposive approach due to the
absence of the appeal record
before them and also misled by
the facts of the case as deposed
to in the affidavits before
them.
It is therefore recommended that
in future as much as practicable
such an application should be
placed before the same panel
that heard the appeal.
In the present case was there
evidence to establish that the
appellant conspired with his
brother to commit murder and did
murder Amegbor Amedorme, the
deceased? Or is the appellant
innocent and therefore
wrongfully convicted and
sentenced to death?
The Court of Appeal in its
judgment narrated the facts of
case as:
“To appreciate the basis of the
ruling a brief summary of the
facts culminating in this
application will be necessary.
The applicant and one Matthew
Kwame Sabbah were arraigned
before a High Court, Accra
before a jury and charged with
two counts of conspiracy to
commit murder contrary to
Section 23(1) of Act 29 of 1960
and murder, contrary to section
46 of the same Code. The facts
which could be gleaned from a
copy of the judgment of this
court which was annexed to the
application shows that on
21-1-93, one Amegbor Amedorme
took two persons with him to
inspect some palm trees he
intended selling them to the
two persons. One [sic]
returning from the farm Amegbor
who was leading them was
suddenly attacked by the said
Matthew Kwame Sabbah with a
cutlass resulting in his death.
The other two persons managed to
escape but severe cutlass wounds
were inflicted on another person
in the company of the deceased.
According to the eyewitness
account, the applicant also
slashed the deceased with a
cutlass when the deceased had
attempted to get up. As said
earlier; the applicant and the
said Matthew Kwame Sabbah were
arraigned before the High Court
and tried by a jury. They were
both convicted on all the counts
and were sentenced to death.
The applicant lodged an appeal
against his conviction to this
court and it appears that on
20-1-2004, this court quashed
the convictions of the applicant
and dismissed the appeal of
Matthew Kwame Sabbah. This
application has been brought by
the applicant to pray this court
to certify to the Supreme Court
for payment of compensation
under the 1992 Constitution.”
Similarly, the Principal State
Attorney in her statement of
case said:
“Counsel also says that the
Appellant should not have been
arrested as all. My lord we
disagree with counsel. It can be
seen from the facts of the case
as set out in the ruling of the
Court of Appeal that the
Appellant herein according to
eye-witness account also slashed
the deceased with a cutlass when
the deceased attempted to get up
after the deceased had been
slashed earlier on by Matthew
Kwame Sabbah. My lords, it was
based on this that the Appellant
was charged together with
Matthew Kwame Sabbah with the
offences of Conspiracy to commit
murder, and Murder. Indeed it
was based on this allegation
that the Appellant was arrested
in the first place. It was
therefore not [sic] illegal nor
unlawful for the Ada Police to
have arrested and detained the
appellant for investigations
which eventually led to his
trial and conviction.”
The above narration by the Court
of Appeal and the Chief State
Attorney that : “the
Appellant herein according to
eye-witness account also slashed
the deceased with a cutlass when
the deceased attempted to get up
after the deceased had been
slashed earlier on by Matthew
Kwame Sabbah;” is
incorrect. This statement of
facts is clearly in
contradiction with the evidence
upon which the Supreme Court
rejected the plea of
self-defence and provocation
made by Mathew Kwame Sabbah in
his appeal which is reported as
Sabbah v The Republic [2009 ]
SCGLR 728.
For clarity I refer to excerpts
from the head notes and judgment
at pages 730 and 738
respectively of the law report.
Head notes at page 730 of
Sabbah supra:
“The Supreme Court found, on the
evidence, supported by the
evidence of the specialist
pathologist, that the deceased
had died from multiple injuries
inflicted on him by the
appellant [Mathew Sabbah]. And
in his statement to the police,
[Mathew Sabbah] said he had gone
to a land belonging to his
family; and that whilst standing
behind a palm tree looking for
ripe palm fruits to harvest, he
saw the deceased and the two
prosecution witnesses coming
towards him. He said the
deceased, who was holding a
cutlass and leading the other
two, attacked him and cut him on
the left hand wrist and left
knee. In his evidence in court,
[Mathew Sabbah] said all three
pounced on him and in the
process of brandishing his
cutlass to ward off the combined
attack, the deceased sustained a
cut on the neck and fell down
whilst the other two attackers
took to their heels.
The Supreme Court found that the
evidence before the trial court
raised the alternative defences
of provocation and
self-defence. The Supreme Court
also found that [Mathew Sabbah]
had inflicted multiple injuries
on the deceased at the time when
the appellant’s life was
apparently no longer in danger
with his main assailant on the
ground and the two assailants
fleeing in a canoe.”
At page 738, the Supreme Court
in the course of the judgment
which I wrote said:
“Looking at his evidence the
impression [Mathew Sabbah] gave
at the trial was that he had
struck the deceased only one
blow on the neck which almost
decapitated him. In contrast we
have the evidence of the second
and third prosecution witnesses
which showed that after the
deceased had fallen down and
they fled [Mathew Sabbah] more
or less chased them but they
escaped. And according to
second prosecution witness,
[Mathew Sabbah] went back and
inflicted more cutlass wounds on
the deceased who was still on
the ground. The autopsy or post
mortem report as well as the
evidence of the specialist
pathologist indicated that
[Mathew Sabbah] inflicted
multiple wound on the left
shoulder, left side of upper
neck, and left side of jaw
through angle of mouth with
partial amputation of right ear
of the deceased. These injuries,
in our opinion, are consistent
with the evidence of the second
prosecution witness that [Mathew
Sabbah] slashed the deceased
several times after the initial
attack. These injuries were
inflicted on the deceased at a
time when obviously [Mathew
Sabbah’s] life was no longer in
danger with his main assailant
on the ground and the other two
had fled in a canoe. It is
therefore our considered opinion
that the harm inflicted on the
deceased could not be said to be
said to be reasonable in the
circumstances.
The plea of self-defence
accordingly fails.”
The above excerpts from the
Sabbah case show the
appellant was innocent and was
not at the scene when Mathew
Sabbah committed the offence and
none of the eyewitnesses said he
was present. The excerpts amply
demonstrate the glaring
misrepresentation or mistakes in
the facts narrated by the Court
of Appeal and the Principal
State Attorney. There was no
iota of evidence to support the
charges and conviction and
sentence that were slapped on
the appellant. There was no
evidence suggestive of any
conspiracy with his brother
Mathew Sabbah to commit murder.
It is therefore not surprising
that the appellant was acquitted
by the Court of Appeal for
misdirection by the High Court
for non-direction of the jury to
acquit the appellant for lack of
evidence against him.
The appellant was completely
innocent and therefore wrongly
convicted and sentenced to death
by the High Court. Upon the
facts it is my candid view that
had the Court of Appeal been
properly apprised of the facts,
it may not have dismissed the
application as the arrest,
detention of the appellant by
the Ada Police, and his
subsequent trial and conviction
was without any reasonable and
probable cause and was wrongful.
Counsel for the appellant shares
the blame for not making
available sufficient material to
support the application. The
wrong recanting of the facts
invariably led to the wrong
conviction of the appellant in
the first place by the High
Court and a rejection of his
application for compensation by
the Court of Appeal. Without
mincing words this attitude
borders on dereliction of duty
by counsel.
Some wrongful convictions can be
linked to bad ‘lawyering’ by
defence counsel; but this
problem can be controlled by the
oversight of the courts and
better funding of the legal aid
program for poor defendants
relying on court appointed
lawyers.
This case is a clear example of
a systemic cause of wrongful
conviction due to lapses in the
investigation, prosecution and
by the trial court that had
oversight over the case. The
appellant’s human right to his
personal freedom was trampled
upon and callously abused for no
just cause.
Consequently, I hold that the
appellant’s arrest and detention
was unlawful and unjustified in
any way as he was innocent; and
his trial, conviction and
sentence was wrongful and is
therefore entitled to be
considered for compensation
under article 14(7).
I will allow the appeal on this
ground
Compensation for Wrongful
Conviction and Imprisonment
When an innocent person has had
his life stripped from him only
to endure the horror of
imprisonment, justice demands
that upon his acquittal, the
individual be compensated for
the harm suffered. This is
because, in spite of their
proven innocence, the difficulty
of reentering society is
profound for the wrongfully
convicted. With a criminal
record that is rarely cleared
despite innocence, the
punishment lingers long after
innocence has been proven. The
agony of prison life and the
complete loss of freedom are
only compounded by the feelings
of what might have been, but for
the wrongful conviction. Society
has an obligation to promptly
provide compassionate assistance
to the wrongfully convicted, to
restore their lives. By
guaranteeing compensation to the
wrongfully convicted, a state
can take an important step
towards ensuring the integrity
of its criminal justice system.
No guidelines were provided in
the constitution for
determination of compensation
amounts. The Supreme Court is
therefore at liberty to use its
discretion in accordance with
due process of law. Looking at
practices elsewhere in the USA
for example, courts in Ohio,
New York
and Illinois
the amount of damages is
determined in accordance with
traditional tort and other
common-law principles.
Compensation may be provided for
such damages as: lost wages,
physical or mental problems
caused by the incarceration, and
non-pecuniary losses including
the pain and suffering that
inevitably arise from fear, lack
of privacy, loss of freedom,
separation from family,
humiliation, interference with
personal relationships, and
damage to reputation and legal
fees.
In Australia where ex gratia
payment is made, factors such as
long duration of imprisonment
and the presence of negligence
or malice of government
officials would generally seem
to increase both the likelihood
and the size of an ex gratia
payment. Factors that may lower
the chances and/or size of an ex
gratia payment are the presence
of either prior criminality
generally, or lesser criminal
culpability in relation to the
conduct surrounding wrongful
conviction, although these
factors are not rigidly adhered
to.
Although the practice in other
jurisdiction may be persuasive
and help shape our thinking, I
am of the view that a formulaic
approach to compensation would
be inappropriate given the
variations between each
individual’s circumstances and
the cause of imprisonment of
other cases and levels of
sentences that might come before
us.
Coming back to our own
jurisdiction, I refer to the
case of Awuni v West African
Examinations Council [2003-2004]
SCGLR 471 at 576
where Dr. Date-Bah JSC had this
to say on the principle involved
in measuring damages arising
from a breach of aricle23:
The basic principle that the
common law courts have applied
for the measure of damages in
the private law of tort (and
indeed the law of contract) is
that of restitutio in integrum.
Lord Scarman expressed this
principle thus in Lim v
Camden Health Authority [1980]
AC 174 at 187:
“…the principle of the law is
that compensation should as
nearly as possible put the party
who has suffered in the same
position as he would have been
in if he had not sustained the
wrong.”
This measure of damages is
easier to apply in the
traditional private law of tort
area, where a plaintiff’s loss
may consist of personal injury,
damage to property, financial
loss etc. It is much more
difficult to apply where a
plaintiff’s loss is that of a
constitutional right. What is
the level of monetary payment
that can return him to or her to
the status quo ante?”
Dr Date-Bah ended up by reaching
the conclusion that:
“In effect the damages that are
awarded for breach of a
constitutional right under
Chapter Five of the Constitution
in cases where no actual damage
is proved are damages which are
‘at large’ in the sense that
Lord Halsham LC used this
expression in Cassell & C0 Ltd
v Broome [1972] AC 1027 at
1073,Hl where he said:
“The expression ‘at large’
should be used in general to
cover all cases where awards of
damages may include elements for
loss of reputation, injured
feelings…pain and suffering or
loss of amenity.”
In effect the nature of damages
our courts have been awarding
are either specific damages
where actual pecuniary loss is
or has to be proved and general
damages which are considered to
be at large and depends on the
discretion of the court, the
calculation of which is based on
the facts and circumstances of
the case and the quantum should
not unreasonable or irrational.
From the references made from
other jurisdictions, the same
basic principles are used in
awarding damages.
In our current case, the
appellant was given the death
penalty. The death penalty is
the ultimate sentence in
criminal sentencing. It is
retaliatory, cruel, harsh,
inhuman and irreversible when
executed. Many countries have
abolished capital punishment and
it is a raging debate in this
country whether it should be
abolished.
Undoubtedly, anyone with a death
penalty on his head would suffer
some mental anguish and anxiety.
In the circumstances of where a
person is acquitted of a murder
conviction, the likelihood of
the award being substantial
should be higher.
The appellant who was on a death
row for 2 years, seven months
and some weeks and before his
trial has been on remand for 8
years; has not provided any
evidence to aid us to determine
compensation to fit his
situation. But that should not
swerve this Court away from
making an award commensurate to
the abuse of his human right to
his personal liberty. It is just
and equitable to make a
reasonable award taking into
account the years that he spent
on remand before his trial for
an offence he did not commit,
the loss of liberty, mental
anguish and anxiety, shame and
degradation and despair the
appellant suffered while on
death row in prison as a result
of wrongful conviction and
imprisonment. These are all
non-pecuniary losses suffered
where in consequence no precise
limit can be set in extent.
What I will like to stress is
that an award for wrongful
conviction and imprisonment
should not be punitive or
exemplary. It should also not be
a mere pittance as that would
add insult to injury. The
Supreme Court should balance its
obligation to be fair and just
with its responsibility to
ensure that the state is not
burdened with enormous monetary
liability.
In conclusion, the appellant is
entitled to substantial damages
for the fundamental breach of
his human rights to personal
liberty.
I will also allow the appeal.
(SGD) S. O. A.
ADINYIRA (MRS)
(JUSTICE OF
THE SUPREME COURT)
DOTSE JSC:
Article 14 (7) of the
Constitution 1992 provides as
follows:-
“Where a person who has served
the whole or a part of his
sentence is acquitted on appeal
by a court, other than the
Supreme Court, the court may
certify to the Supreme Court
that the person acquitted be
paid compensation; and the
Supreme Court may, upon
examination of all the facts and
the certificate of the court
concerned, award such
compensation as it may think
fit; or, where the acquittal
is by the Supreme Court, it
may order compensation to be
paid to the person acquitted.”Emphasis
The above constitutional
provision is central and key to
the issues that fall to be
decided in this appeal.
UNDISPUTED FACTS OF THE CASE
This is an appeal by the
Applicant/Appellant (hereafter
appellant), against the ruling
of the Court of Appeal, dated 8th
July 2004 which rejected an
application by the appellant,
wherein he prayed the Court of
Appeal to certify to the Supreme
Court the payment of
compensation to him, pursuant to
article 14 (7) of the
Constitution 1992 referred to
supra.
In January 1993, the appellant
was arrested and triedon
indictment by the High Court,
Accra, alongside his brother
Mathew, on two counts of
conspiracy to murder, and murder
of one Amegbor Amedorme. The
appellant and his brother were
convicted by the jury which
tried them whereupon they were
accordingly sentenced to death
as required by law on 7th
August 2001.
The appellant successfully
appealed against his conviction
and sentence to the Court of
Appeal which on 20th
January 2004 allowed the appeal,
set aside the conviction and
sentence and thereby acquitted
and discharged him. The
appellant later applied to the
Court of Appeal to certify to
the Supreme Court for the
payment to him of compensation
under article 14 (7) of the
Constitution 1992.
This appeal by the appellant has
therefore been lodged against
the Court of Appeal ruling of 8th
July 2004 rejecting his
application for the
certification to the Supreme
Court of payment of compensation
pursuant to article 14 (7) of
the Constitution 1992.
GROUNDS OF APPEAL
The following are the grounds of
appeal that the appellant has
filed to this court:
i.
Failure by the court to
appreciate that the award of
compensation as provided for
under article 14 (7) of the 1992
Constitution is not hedged with
any antecedent conditions other
than the simple acquittal of the
Applicant, and that this is no
doubt based on the inherent
injustice of arresting and
detaining a person on inadequate
or non-existent legal grounds.
ii.
Failure by the Appellate court
to appreciate that the
fundamental abuse of the rights
of the Applicant took place at
the very moment of his arrest
and detention in Ada WITHOUT
CAUSE, and that all other
processes, whether “proper” or
not, were nugatory.
In order to appreciate the basis
of the appeal and the
circumstances of the case in its
entirety, I deem it expedient to
set out in extenso the facts of
the case from both the appellant
and respondent’s perspectives as
deposed to in affidavit’s sworn
to by counsel acting for and on
their behalf as follows:-
AFFIDAVIT OF AHUMAH OCANSEY IN
SUPPORT OF THE APPLICATION BY
THE APPELLANT FOR COMPENSATION
UNDER ARTICLE 14 (7)
1. I am the Counsel for
the Applicant and the Deponent
herein.
2. I have his authority
and consent to depose to this
affidavit.
3. That Dodzie Sabbah,
lived on an island called
Adornukewuno, at Ada, when the
incident resulting in his trial
took place in 1993.
4. That he was a farmer
and cropped things like cassava
& coconut trees. He also fished
in the river.
5. That he limbed in his
leg, and used a walking stick as
an aid.
6. That he was arrested
and unlawfully detained at the
Ada Police Station in January,
1993 and charged with his
brother with conspiracy to
murder, and murdering one
Amegbor Amedorme.
7. That he was remanded
in custody at James Fort Prisons
in 1993, where he remained
without trial until eight years
later, 2001, when he appeared
before Her Lordship, Justice
Mrs. B. A. Bempah for trial at
the Criminal Session.
8. That on 7th
August 2001, the jury found him
guilty of the charges and the
Court convicted him and
sentenced him to death.
9. That he was taken to
the condemned cells, at Nsawan
Medium Security Prisons.
10. That he appealed to
the Appeal Court, Criminal
Division, on his conviction and
sentence and his appeal was
heard on 26th
September, 2003.
11. That on 20th
January 2004, the Appeal Court,
coram their Lordships R. C Owusu
J.A (presiding) Akoto-Bamfo J.A,
Asiamah J.A. acquitted him on
both counts of conspiracy to
murder and murdering. (Exh.1).
12. That he has since been
released from Nsawan prisons
13. That Dodzie Sabbah is
hereby asking for compensation
from the State for the
indescribable mental agony,
physical destruction of
property, spiritual distress,
economic destitution, and
deterioration in health that he
suffered for 10 years inspite of
his innocence.
14. Specifically, Dodzie
has suffered these losses:
1. Loss of income from
fishing, sale of coconuts,
cassava, palm tree fruits for
palm wine.
2. Destruction of his
village and personal effects by
their adversaries, who over-ran
the island, when the two
brothers were sentenced to
death;
3. The right limping leg
has worsened out of disuse,
whilst in cells; walking, is now
more stressful than ever.
4. Dislocation from his
place of birth, growth, and
family life, thus over turning
his livelihood and sense of
integrity.
5. Discontinuation of
children’s education
6. Loss of consortium
and marital break-up.
15. For the aforesaid
losses the Applicant asks for a
¢400 million compensation from
the state.” Emphasis supplied
On the part of the respondent,
the following are the
depositions sworn to by learned
Chief State Attorney for the
republic:
AFFIDAVIT IN OPPOSITION TO
APPLICATION FOR COMPENSATION
“I Eric A. Agbolosu of
Attorney-General’s office make
oath and say as follows:
1.
That I have the authority of the
Attorney-General to swear to
matters which are peculiarly
within my knowledge by virtue of
being a law officer of the
state.
2.
That the applicant and his
brother were charged for
conspiracy to murder and murder.
3.
That they were arraigned before
an Accra High Court and
prosecuted on indictment with a
jury.
4.
That at the close of the case
the jury found them guilty of
the offence and the presiding
High Court Judge has no
alternative but to sentence them
to death.
5.
That they appealed against the
sentence and conviction and the
applicant alone was acquitted
and discharged.
6.
That during their trial they had
counsel and had the opportunity
to cross-examine the prosecution
witnesses.
7.
That they subsequently opened
their defence and produced
witnesses to testify for them.
8.
That they were therefore
lawfully convicted and sentenced
according to law after a fair
trial where the Natural Justice
rule was fully observed.”
Emphasis supplied.
The above then constitute in the
main, the undisputed facts of
the case from the perspectives
of both parties.
Indeed, apart from the
depositions on the claims for
damages, the various depositions
in the affidavits sworn to by
both counsel represent in the
main the undisputed facts upon
which the case has been heard to
date.
Even though the sworn affidavit
of the respective parties is
silent on the material evidence
which formed the basis of the
prosecution’s case at the trial
court, some attempt was made by
counsel to put this material
evidence through their
statements of case.
Since it was the Respondent
herein who had to establish the
burden of proof against the
appellant at the trial, I will
commence this discussion of the
narration of the facts from the
Respondent’s statement of case.
NARRATION OF DISPUTED AND
UNCONFIRMED FACTS FROM
RESPONDENT’S PERSPECTIVES
According to the respondents,
the deceased Amegbor Amedorme,
took some two persons with him
to inspect palm trees he
intended to sell to those
persons. Upon their return from
the farm, the deceased was
attacked by Mathew Kwame Sabbah,
(the co-accused and brother of
the appellant) with a cutlass,
resulting in his death. The two
other persons managed to escape,
but cutlass wounds were
inflicted on another person in
the company of the deceased.
According to an eye witness
account, the Appellant also
slashed the deceased with a
cutlass when he attempted to get
up.
The above constitute the
material facts upon which the
respondents mounted their
prosecution of the appellant and
his brother.
NARRATION OF THE DISPUTED AND
UNCONFIRMED FACTS FROM THE
APPELLANT’S PERSPECTIVES
The Appellant’s brother, Mathew
Sabbah was presumed to have been
attacked on his farm on an
island by persons laying adverse
claim to the land on which the
Sabbah family lived. In a fight
that ensued, Mattew Sabbah
overcame his attackers and cut
off the head of one of them.
The Appellant only went to the
farm to ascertain what had
really happened when he met his
brother Mathew returning from
the farm with the head of the
deceased. The Appellant and his
brother reported the matter to
the Ada Police. Mathew was
detained in Police cells, whilst
the Appellant was allowed to go.
Thereafter, the Appellant went
to inform members of their
family about the tragedy that
had happened in Ada and beyond.
He returned after a week and
went to the Police cells to give
food to his brother whereupon he
was also arrested, thrown into
Police cells on the allegation
that he was one of those who
killed the deceased.
Altogether, the Applicant was
kept on remand from January 1993
to August 2001 when he was
convicted of murder and
sentenced to death accordingly.
However, the Court of Appeal on
20th January 2004
quashed the Applicant’s
conviction and set aside the
sentence and acquitted and
discharged him.
DISCREPANCIES
There are a lot of discrepancies
in the narration of the facts by
the two parties stated above.
Whilst the respondent’s would
want this court to believe that
the Appellant herein was a
participis criminis, in that he
actively took part in the fight
and participated in inflicting
the injuries on the deceased
from which he died, leading to
the decapitating of his head,
the Appellant denies any
involvement.
On the other hand, the narration
by the Appellant is as if he did
not take any part in the fight
and came onto the scene only
after the tragic events had
taken place.
Further examination of the facts
recounted in the statements of
case filed by the parties
reveals a lot of illogicalities.
For example, who in the
narration from the respondent’s
narration is the eye witness who
saw the appellant slashing the
deceased when he attempted to
get up after having initially
been slashed by his brother (the
co-accused), and at a time the
deceased was presumed already as
having died.
Again, it is not clear whether
there was another or third
person apart from the two
persons who accompanied the
deceased to the Island to
inspect the palm trees.
This is because, apart from the
narration that, whilst the two
persons managed to escape,
cutlass wounds were nonetheless
inflicted on another person and
there is talk of an eye witness.
It is certainly unclear whether
these facts had been picked up
from the Bill of Indictment, the
facts of the case as recorded in
court during the trial and
capable of having a proven
source or not.
However, the decision of this
court in the case of
Sabbah v The Republic [2009]
SCGLR 728 which is the
decision of the appeal lodged by
the brother of the appellant
herein Mathew, against the
decision of the Court of Appeal
to this court, gives very clear
indications that the narration
of the facts from the
respondent’s perspective is not
correct. It is certain from
that decision that the appellant
herein is completely innocent of
the charges preferred against
him and was prosecuted without
any reasonable and probable
cause.
On the other hand, from the
appellant’s narration, some
interesting facts stare me in
the face. This is that, the
appellant went to the Police
station with his brother the
co-accused to make the initial
report. If that assertion is
capable of proof, then it meant
that the appellant was freely
allowed to go away by the Police
because they believed he was not
connected with the crime at that
stage. Indeed, nothing would
prevent the Police from further
arresting him if subsequent
investigations connected and
linked him to the offence.
From the appellant’s narration,
he went back to the Police
Station with food for his
brother, believing that he was
innocent whereupon he was
arrested and thrown into
detention and remanded to stand
trial for several years.
As stated earlier, learned
counsel for the appellant should
have done more for the appellant
by trying to produce documentary
evidence from the trial court to
support his narration of the
facts and also disprove the
contentions in the respondent’s
narration as well.
RULING BY THE COURT OF APPEAL
On the 8thday of July
2004, the Court of Appeal,
whilst rejecting the appellant’s
application for certification to
this Court for payment of
compensation held thus:-
“We are of the opinion that
Article 14 (7) of the
Constitution, 1992 was intended
to cover situations where the
State had mounted oppressive
prosecution against an
individual and without basis and
just cause at all. It would also
apply in situations where the
State mounted a prosecution,
which clearly sought to infringe
on the basic fundamental human
rights of the individual. It
could also arise in situations
where the charge, which was
preferred, was unknown to the
law or the court of trial had no
jurisdiction at all.
The constitutional provision
under consideration appears to
be an innovation in our
democratic dispensation and for
that matter there are no
precedents to guide this court.
In our respectful opinion, we
think that when an application
is brought under Article 14 (7)
of the Constitution, 1992, the
whole circumstances of the case
must be taken into
consideration.” Emphasis
supplied
In essence, the Court of Appeal
stated with some degree of
clarity that article 14 (7) of
the Constitution 1992 cannot be
automatically applied to cover
all situations where the appeal
of a convict had been allowed. I
perfectly agree with such a
rationalization.
Based on the material put at the
disposal of the Court of Appeal,
it concluded the application
thus:
“We are of the opinion that the
above constitutional provision,
which is under consideration,
imposes a discretion on this
court and any other court for
that matter. Such discretion
like any judicial discretion is
properly exercised when all the
circumstances is taken into
consideration. In this case,
we are of the opinion that as
the applicant went through a
proper trial which observed all
the statutory procedure in a
court of law established by this
very constitution and his arrest
and prosecution were all regular
devoid of any abuse of the law
and breach of any human rights
of the applicant, we are of the
view that this application ought
to be refused. For to allow
any applicant who claims to have
been acquitted to resort to this
constitutional provisions for
redress will certainly defeat
the purpose of this provision”.
Emphasis supplied
I agree in principle with the
observation and decision of the
Court of Appeal that the article
14 (7) provision in the
Constitution 1992 imposes a
judicial discretion on the
court, and like all judicial
discretions has to be exercised
when all the facts of the
surrounding circumstances of the
case have been taken into due
consideration and exercised
judiciously.
APPELLANT’S STATEMENT OF CASE
1.
Learned counsel for the
appellant Mr. Ahumah Ocansey,
anchored his statement of case
on the principle of tort, that,
a person who is unlawfully
restricted or detained is
normally compensated for injury
to his dignity and
inconveniences suffered. These
he submitted are similar to
actions for damages for false
imprisonment or malicious
prosecution. He therefore relied
and referred to cases like
Atta v Amoasi [1976] 2 GLR
201, CA. Amadjei and
others v Opoku Oware
[1963] 1 GLR 150 SC., Mansour
v EL Nass Export and Import
[1963] 2 GLR 316. See also
Clerk & Lindsell on Torts (13th
Ed) para. 681 at pg. 346.
2.
Secondly, learned counsel
disagreed with the Court of
Appeal that the Court has
discretion in article 14 (7)
situations because if the said
provisions are read in tandem
with article 12 (1) of the
Constitution, there ceases to be
any discretion on the court.
Article 12 (1) of the
Constitution 1992 states as
follows:
“The fundamental human rights
and freedoms enshrined in this
chapter shall be respected and
upheld by the Executive,
Legislature and Judiciary and
all other organs of Government
and its agencies and, where
applicable to them, by all
natural and legal persons in
Ghana, and shall be enforceable
by the Courts as provided for in
the Constitution.” Emphasis
I must point out immediately
that, the Correlation that
learned counsel sought to imply
between articles 12 (1) and 14
(7) of the Constitution 1992,
are not borne out by the letter
and spirit of the Constitution,
and I reject them as not
applicable to the circumstances
of the instant case.
In order to strengthen his
arguments learned counsel for
the appellant made reference to
Section 133 (1) of
Criminal Justice Act, 1988 of
England which states as
follows:-
“Subject to sub section (2)
below, when a person has been
convicted of a criminal offence
and when subsequently his
conviction has been reversed or
he has been pardoned on the
ground that a new or newly
discovered fact shows beyond
reasonable doubt that there has
been a miscarriage of justice,
the Secretary of State shall pay
compensation for the miscarriage
of justice to the person who has
suffered punishment as a result
of such conviction.”
(2)No payment of compensation
under this section shall be made
unless an application for such
compensation has been made to
the Secretary of State.”
Emphasis
Learned Counsel also referred to
Halsbury’s Laws of
England, 4th Ed. Vol.
11(2) paragraph 1521 and
the following cases Murray
v Ministry of Defence
(1988) I WLR 692 at 703 HL where
it was stated thus:
“The law attaches supreme
importance to the liberty of the
individual and if he suffers a
wrongful interference with that
liberty, it should remain
actionable without proof of
special damages.”
Based on the above submissions,
learned counsel for the
appellant, Mr. Ahumah Ocansey
made a case for payment of
compensation and relied on cases
such as Appiah v Mensah
[1978] GLR 342 which
unfortunately with respect is
not applicable under the
circumstances of this case.
See also H. West & Son
Limited v Shepherd (1964) A.C.
326 at 345, Dumbell v Roberts
(1944) 153 LT 384 at 386 HL.
Learned counsel finally made a
profound reference to the words
in Proverbs 3, 27 which reads as
follows:-
“Withhold not good from them to
whom it is due, when it is in
the power of thine hand to do
it.”
Emphasis
With the above words of wisdom,
learned counsel reiterated his
quest for the payment of
compensation to the appellant.
RESPONDENTS STATEMENT OF CASE
1.
Learned counsel for the
Respondent,argued in response to
the appellant’s statement of
case that, it is wrong to
conclude that once an appellate
court has acquitted an
appellant, it raises the
presumption of the unlawfulness
of his conviction.
Learned counsel submitted that,
the presumption would depend on
the grounds on which the
appellate court acquitted the
appellant which might have
nothing to do with the merits of
the case.
Learned counsel submitted that
there was no false imprisonment
as the appellant would want this
court to believe.
2. Secondly, learned
counsel for the respondent’s
submitted that article 14 (7)
provision of the Constitution
1992 indeed imposes a discretion
on the court which should be
exercised judiciously.
In expatiating on these
submissions, learned counsel
explained that, since the words
used in the formulation is “may”
and not “shall” it is therefore
permissive and flexible and not
the imperative and mandatory
meaning ascribed to the word
“shall”. See section 42 of the
Interpretation Act, 2009, Act
792.
Learned counsel for the
respondent’s also drew the
necessary linkages and
differences between articles 14
(7) and 12 (1) of the
Constitution 1992 as was
contended to by learned counsel
for the appellant.
Learned counsel for the
respondent also submittedthat,
section 133 of the Criminal
Justice Act 1988 of England
which was copiously referred to
by learned counsel for the
appellant had been amended as
follows:-
Section 175 of the U.K.
Anti-Social Behaviour, Criminal
Policing Act 2014 which came
into force on 13th
March 2014, amended section 133
of the Criminal Justice Act 1988
as follows:-
COMPENSATION FOR MISCARRIAGE OF
JUSTICE
(1)
“In section 133 of the Criminal
Justice Act 1988 (compensation
for miscarriages of justice)
after subsection (1) there is
inserted (IZA).
“For the purpose of subsection
(1) there has been a miscarriage
of justice in relation to a
person convicted of a criminal
offence in England and Wales or,
in a case where subsection (6H)
applies, Northern Ireland, if
and only if the new or newly
discovered fact shows beyond
reasonable doubt that the person
did not commit the offence (and
references in the rest of this
part to a miscarriage of justice
are to be construed
accordingly).” emphasis
In a supporting submission,
learned counsel for the
respondent stated as follows:-
“The U.K Ministry of Justice’s
impact assessment for this
change explained that the
amendment was being made to
ensure that eligibility to the
compensation scheme was limited
to applicants who could
show that they were clearly
innocent.” It stated
that the intended effect was to
lessen the burden on taxpayers
and reduce unnecessary and
expensive legal challenges to
Government decisions to refuse
compensation. By confirming a
relatively narrow definition,
the provision seeks to generate
a more predictable and
consistent approach to
identifying cases where a
miscarriage of justice has taken
place.” emphasis
(Reference Ministry of Justice,
Impact Assessment, clarifying
the circumstances under which
compensation is payable for
miscarriage of Justice (England
and Wales) 9th May
2013 page 2.)
Learned counsel finally
reiterated her submissions and
stated that payment of
compensation under article 14
(7) of the Constitution is not
automatic. She submitted that
the provision should be read and
construed as a whole.
With the above conflicting and
contrasting positions taken of
by learned counsel, it brings
into focus, the determination of
the issues identified by me as
follows:-
ISSUES FOR DETERMINATION
1. Under what
circumstances may courts lower
to the Supreme Court certify to
the Supreme Court that a
convict, whose appeal against
conviction and sentence has been
allowed, is entitled to payment
of compensation under article 14
(7) of the Constitution 1992.
2. The principles upon
which the Supreme Court conducts
the examination in arriving at a
decision for the payment of the
compensation under article 14
(7).
3. Whether the appellant
is entitled to compensation.
PRELIMINARY LEGAL PRINCIPLES
I am aware of the caution in the
memorandum to the Interpretation
Act, 2009, Act 792 which states
that the interpretation of the
Constitution 1992 should not be
tied down by the Interpretation
Act or other principles of
interpretation since the
Constitution is on a higher
pedestal than any ordinary law
of the land.
The same memorandum states that
in the Construction and
interpretation of the
Constitution, the following
factors should be considered if
the spirit of the Constitution
is to be given its due
prominence. These are:
cultural, economic, political
and social developments
of the country. The memorandum
states further as follows:-
“A Constitution is a scared
document. It must of necessity
deal with facts of the
situation, abnormal or
usual. It will grow with the
development of the nation and
face challenging changes
and new circumstances. It
must be allowed to germinate and
develop its own peculiar
conventions and construction not
hampered by niceties of language
and form that would impede its
singular progress.”
Put in musical terms, the
memorandum continues thus:
“The interpretation and
construction of the Constitution
should involve the interplay of
forces that produce a melody and
not the highlighting of the
several notes. The country is an
expanding society. Those who
deal with the constitution must
appreciate that concept.”
The above principles have been
followed in a long line of cases
by this court see cases such as:
1.
Tuffuor v Attorney-General
[1980] GLR 637 per Sowah JSC as
he then was at 647
where the principles for
constitutional interpretation
were stated thus:-
“A written Constitution such as
ours is not an ordinary Act of
Parliament. It embodies the will
of a people. It also mirrors
their history. Account,
therefore, needs to be taken of
it as a landmark in a people’s
search for progress. It contains
within it their aspirations and
their hopes for a better and
fuller life.
The Constitution has its letter
of the law. Equally, the
Constitution has its spirit. It
is the fountain-head for the
authority which each of the
three arms of government
possesses and exercises. It is a
source of strength. It is a
source of power. The executive,
the legislature and the
judiciary are created by the
Constitution. Their authority is
derived from the Constitution.
Their sustenance is derived from
the Constitution. Its methods of
alteration are specified. In our
peculiar circumstances, these
methods require the involvement
of the whole body politic of
Ghana. Its language, therefore,
must be considered as if it were
a living organism capable of
growth and development. Indeed,
it is a living organism capable
of growth and development, as
the body politic of Ghana itself
is capable of growth and
development. A broad and liberal
spirit is required for its
interpretation. It does not
admit of a narrow
interpretation. A doctrinaire
approach to interpretation would
not do. We must take account of
the principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time.
And so we must take cognizance
of the age-old fundamental
principle of constitutional
construction which gives effect
to the intent of the framers of
this organic law. Every word has
an effect. Every part must be
given effect. Perhaps it would
not be out of place to remember
the injunction of St. Paul
contained in his First Epistle
to the Corinthians, Chapter 12,
verses 14-20 (King James
Version):
“For the body is not one member,
but many. If the foot shall say,
Because I am not the hand, I am
not of the body; is it therefore
not of the body? And if the ear
shall say, Because I am not the
eye, I am not of the body; is it
therefore not of the body? If
the whole body were an eye,
where were the hearing? If the
whole were hearing, where were
the smelling…? But now are they
many members, yet but one body?”
The decision of Sowah JSC (as he
then was) in Tuffuor v
Attorney-General, referred
to supra in extenso, laid down
the blue print for
constitutional interpretation
and construction in this
country. It has had very
profound effect on the Supreme
Court’s appreciation of the
tenets of the principles which
govern interpretation and
construction of Constitutions
and this has featured
prominently in the
interpretation of all
constitutional provisions since
1979. It is therefore safe to
state that the decision in
Tuffuor v Attorney-General
has become the bedrock of
present day constitutional
interpretation. It is therefore
not surprising that all the
underlisted cases refer to this
locus classic us decision in
Tuffuor v Attorney-Generalor
some of it’s derivatives.
2.
New Patriotic Party v Attorney
General (31st
December case) [1993-94] 2 GLR
35 per Charles Hayfron Benjamin
at 168
3.
Okofoh Estates Ltd. v Modern
Signs Ltd. [1996-97] SCGLR 224
at 230 per Sophia Akuffo JSC
4.
Nsiah v Amankwaah, Nsiah v
Mensah (Consolidated) [1998-99]
SCGLR 132 at 140 per Atuguba JSC
5.
Attorney General (No. 2) v
Tsatsu Tsikate No (2)
[2001-2002] SCGLR 620 per Acquah
JSC as he then was
6.
Apaloo v Electoral Commission of
Ghana [2001-2002] SCGLR 1, at 19
per Bamford Addo JSC
7.
Awuni v WAEC [2003-2004] 1 SCGLR
at 471 per Date-Bah at 556
What I find most appealing is
the invitation made in Section
10 (4) of the Interpretation
Act, and reiterated in the
memorandum that without
prejudice, courts shall
construe or interprete the
Constitution in a manner
-
“That promotes the rule of
law and the values of good
governance,
-
That advances human rights
and fundamental freedom
c.
That avoids technicalities which
defeat the purpose of the
Constitution and of the ordinary
law of the land.
-
That permits the creative
development of the
provisions of the
Constitution and the laws of
Ghana, and
-
That avoids technicalities
which defeat the purpose of
the Constitution and of the
ordinary law of the land.”
I will therefore bear in mind
the above objectives and
principles which have been
stated and applied in
constitutional interpretations
over the years. It should be
noted that when these principles
are applied in dissecting the
issues I have put together as
arising for determination in
this case, it should be clear
that the entire Constitution
must be read as a whole with the
view to ensuring that no one
part of the Constitution is
highlighted more than the other.
It is only in that respect that
a melodious and harmonious tune
can be achieved rather than loud
individual notes discordant in
scope and character and not
appealing and satisfying those
to whom it is meant to soothe.
Indeed, in the circumstances of
the instant appeal, one thing is
clear, that the present request
for payment of compensation from
the state for embarking upon an
unlawful and wrongful arrest and
subsequent detention coupled
with malicious prosecution is as
abnormal in our judicial scheme
of things as it is challenging.
The fact that it is abnormal and
challenging should not make the
courts shy away from doing what
is expected of them.
In the end, an interpretation of
article 14 (7) of the
Constitution should be such as
would promote the values of the
rule of law and good governance
as is enumerated above.
I now proceed with the analysis
of the issues set out above as
follows:
ISSUE 1
Under what circumstances then
can the provisions of article 14
(7) of the Constitution 1992 be
made to apply?
For article 14 (7) of the
Constitution 1992 to be
applicable, the following
criteria must be satisfied:
-
The applicant must have been
convicted and sentenced to a
term of imprisonment by a
court of Competent
jurisdiction.
-
Must have served part or the
whole of the sentence.
-
Must have been acquitted on
appeal by a Court of
competent jurisdiction.
-
If the acquittal on appeal
is by a court other than the
Supreme Court, that court
may certify to the Supreme
Court that compensation be
paid.
-
Upon receipt of the
certificate, (and in all
other cases) the Supreme
Court may upon examination
of all the facts and the
certificate award
compensation as it may think
fit or appropriate.
The crux of the matter here is,
what are the factors that the
Supreme Court is expected to
examine to enable it come to a
decision whether to award
compensation or not? This is
because, there are no rules of
procedure regulating factors
which should guide courts lower
to the Supreme Court in the
preparation of the certificate
as well as guide the Supreme
Court in conducting examination
of the facts of the case under
such applications.
I am of the considered view that
whilst awaiting the Rules of
Court Committee to come out with
rules of procedure to cover
applications under article 14
(7) of the Constitution, the
Supreme Court itself should
evolve flexible rules of
procedure such as will permit
applicants to take advantage of
the provision therein contained
just as the appellant has
legitimately done.
It may therefore come by way of
an appeal against the refusal of
the Court of Appeal, or to the
Supreme Court direct if the
acquittal is by the Court
itself.
Under the prevailing
circumstances and especially
with the peculiar facts of this
case, I am of the considered
opinion that courts lower to the
Supreme Court may only certify
to the Supreme Court payment of
compensation under article 14
(7) when the following processes
have been put before them:
1. The basic court
processes upon which the
(applicant) appellant was
arraigned, and convicted before
the trial court. This should
include the judgment of the
trial court, in the instant
case, the summing up to the
jury.
2. In the special
circumstances of this case,
other court processes like the
Bill of Indictment, have to be
exhibited to the application
before the appellate court, and
in appropriate
circumstances the entire appeal
record.
3. The judgment of the
appellate Court which acquitted
the appellant.
4. The appellate court
must then certify whether in its
opinion, the prosecution of the
applicant at the trial court was
based on a reasonable and
probable cause but acquitted on
merely technical grounds as was
held in the Egbetorworkpor
v Republic [1975] 1 GLR, 485,
case.
In my understanding, it is only
when the above court processes
have been examined and found to
be favourable in the opinion of
the court that the certificate
is made to the Supreme Court.
For example there have been
instances where oppressive
prosecutions have been done at
the whims and caprices of the
rich and powerful in society. At
other times, political
considerations may have
influenced the prosecution at
the trial court which had been
reversed on appeal. Some
prosecutions are undertaken
basically to pursue civil claims
under the guise of a criminal
prosecution. In examining the
requisite record of trial and
conviction as well as the
judgment of the appellate court
acquitting the applicant, the
Supreme Court must determine
whether the prosecution of the
applicant was without any
reasonable or probable cause.
This will invariably determine
whether the prosecution was
malicious. If it was malicious,
then the applicant in my opinion
is entitled to compensation
under article 14 (7).
For me, the test to apply in
situations where applications
are made for payment of
compensation under article 14
(7) of the Constitution 1992 is
to consider each case on its
merits such as discloses gross
injustice and miscarriage of
justice to the applicant,
especially when it is apparent
there was no reasonable and
probable cause for the
prosecution of the applicant.
To conclude this discussion on
this aspect of the case, it must
be noted that apart from the
basic information that the
appellate court may certify to
the Supreme Court following an
acquittal which I have already
set out, the appellate court
must in addition state very
concisely whether in its
opinion, the prosecution of the
applicant was without any
reasonable or probable cause. It
is therefore certain that the
crux of the certificate of the
appellate court should depend on
it’s assessment and evaluation
of the acquittal of the
applicant.
As has been stated, every case
must be heard on case by case
basis as no one formula or
criteria can be applied
wholesale for all cases.
It is the reasons of the
acquittal that may determine
whether the Supreme Court will
favourably consider the
certificate for compensation.
In view of the benefit which
this court has had from the
Supreme Court case of
Sabbah v Republic,
already referred to supra, it is
clear that if the appellate
court had also had this benefit,
it would have certified the case
to the Supreme Court. This is
because, the appellant did not
furnish the appellate court with
any court process or proceedings
that would have afforded it an
opportunity to evaluate the
merits of the acquittal.
Whilst the decision of the
appellate court was rendered in
July, 2004 the Supreme Court
decision in Sabbah v Republic
which has turned the fortunes in
this case was delivered in July
2009. Under the prevailing
circumstances the appellate
court if it had been furnished
with the correct information
would no doubt have certified to
this court, for an examination
of the award for payment of
compensation under article 14
(7) of the Constitution.
ISSUE TWO
Fact of the matter is that, the
wording of the provisions in
article 14 (7) are so clear that
an acquittal on appeal of a
convict does not automatically
entitle the person to payment of
compensation. The Supreme Court
is required to undertake an
examination of the facts of the
case as well as the certificate
of the lower court, if the
acquittal is by a court other
the Supreme Court.
What does examination in the
context as used mean? The
meaning that best suits the
context in which the word has
been used is defined in the
following dictionaries as
follows:-
-
Chambers 21st
Century Dictionary, Revised
Edition – “to inspect,
consider or look into
something clearly.”
-
The Shorter Oxford English
Dictionary on Historical
Principles – Revised Edition
states of the word thus: -
“investigation by
inspection or experiment,
scrutiny”.
In all the two instances quoted
supra, examination connotes
detail and close consideration,
or an investigation by closely
inspecting and scrutinising
something. This therefore means
that, before the Supreme Court
makes an order for the payment
of compensation in circumstances
as formulated in article 14 (7)
of the Constitution, it behoves
on the court to make detail
analysis, study, scrutiny and or
investigation into not only the
facts of the case at the trial
court, but also the reasons why
the conviction and sentence were
set aside by the appellate
court. In other words, the
bonafides of the initial
prosecution of the convict must
be gone into and good and sound
basis and or reason must be
shown to exist for the
arraignment and prosecution. In
other words, were there
reasonable and probable causes
for the arrest, detention and
subsequent decision to prosecute
the applicant?
For example, if the Bill of
Indictment, the summing up of
the Judge to the jury at the
trial court, the caution
statement of the Appellant, the
evidence of the investigator
during the trial and indeed the
record of proceedings probably
up to the Court of Appeal stage
had been provided this court,
the necessary documentary
material would have been made
available upon which the
examination required under
article 14 (7) of the
Constitution 1992 would have
been duly made without any
difficulty from the inception of
this appeal.
Hints were given learned counsel
for the Appellant during the
hearing of the case before this
court about the insufficiency
and inadequacy of the material
provided for this examination.
Unfortunately, those hints were
not taken and the cue which
learned counsel should have
taken with a view to improving
the appellant’s case was lost.
If this had been done, the rival
contentions as to the role
played by the Appellant herein
in the sordid events leading to
the tragic death of the deceased
would not have been in doubt,
until resolved by the facts of
the decision in Sabbah v
Republic already
referred to supra.
This court would then have been
placed in a much better position
to determine upon due
examination of the facts of the
case whether the acquittal of
the Appellant by the Court of
Appeal was based on a
technicality.
The Court of Appeal per Apaloo
J. A. (as he then was), in the
case of Egbetorwokpor v
Republic already referred to
supra, whilst acquitting and
discharging the appellants
therein, spoke on behalf of the
court thus:-
“We fully appreciate that in
view of the result we have
reached, guilty persons may
well be escaping justice. If
this be so, we cannot but regret
it. But our duty is to do
justice not according to our own
lights, but in accordance with
the law as we conceive it.”
emphasis supplied.
It is to be noted that, the
deceased in the
Egbetorwokpor v Republic
case was also gruesomely
murdered. Unfortunately, all the
convicts had to be acquitted on
appeal after their conviction
for murder by the jury and
subsequent sentence to death by
the High Court, Ho. The Court of
Appeal was quite clear in their
minds that due to technical
reasons, and the fact that
courts have to do justice
according to law, guilty persons
may very well be escaping the
long arm of the law.
The decision in the
Egbetorwokpor v Republic case,
supra has strengthened
my decision that payment of
compensation under article 14
(7) of the Constitution 1992 has
to be done on a case by case
basis and on their own merit,
bearing in mind a lot of factors
too numerous to conjecture at
this stage.
It is now pertinent for an
examination of some of the
factors that the Supreme Court
may consider in the article 14
(7) situations for the payment
of compensation in appropriate
circumstances.
FACTORS FOR CONSIDERATION
-
The nature and or gravity of
the offence
This will in turn reflect on the
severity of the sentence. For
example, in cases of murder,
once the jury return a verdict
of guilty of the offence
charged, the sentence is
mandatorily death.
This then means that the convict
will have to be put in what is
known as condemned cells. This
will thus involve a
consideration of the trauma and
mental agony that the convict
would have gone through before
his acquittal on appeal.
-
The second factor to be
considered by the court is
the length of the period
that the applicant has
served from arrest to
acquittal
This will give an indication of
the damages suffered by the
applicant arising from the
breach of the personal liberty
i.e. right not to be confined as
is guaranteed by article 14 (1)
of the Constitution 1992. In the
instant case, I reckon the time
of the arrest of the appellant
in Ada in January 1993 up to and
including the date of his
acquittal in January 2004, a
period of almost eleven (11)
years as the length of time that
this court has to compute and
consider if compensation is to
be paid to the appellant in
terms of article 14 (7) of the
Constitution.
See the case of Adjei-Ampofo
v A.G & President, National
House of Chiefs [2011] SCGLR
1104 where the personal
liberties and freedom of
movement of persons was
guaranteed under the said
article 14 (1).
3. The court may also
consider whether an action in
malicious prosecution by the
applicant may have succeeded. In
this respect, the court may have
to consider
(a) Whether there was
reasonable and probable
cause for the prosecution,
or
(b) Whether the
prosecution of the applicant was
malicious. This will be based on
whether the prosecution was
motivated by ill will, mere
hatred, spite, political
considerations, rather than a
desire to contribute towards
bringing an offender to book.
For example, in the case of
Amadjei v Opoku Ware,
already referred to, the Supreme
Court held that an arrest is
malicious or unlawful if it is
made without reasonable
or probable cause.
Similarly, Prempeh J, as he then
was, in the case of
Mansour v El Nasr; Export Import
Company, already
referred to held that want
of probable cause is evidence of
malicious prosecution.
The court further held that in
assessing damages in such cases,
among other factors, the court
must consider whether the action
was bonafide or not. In the
instant appeal, if the appellant
had been arrested and detained
by the Police within a period of
say 6 to 12 months for
investigations into the murder
case involving his brother to
determine whether he played any
role, that would have been
considered reasonable. The
failure of any evidence before
the trial court linking the
appellant to the crime meant
that there was absolutely no
basis for the arrest and
prosecution of the appellant.
4. Fourthly, the court
will have to consider whether
the answer to (3b) above is in
the affirmative, then the
measure of compensation under
article 14 (7) should be the
same as the measure of damages
in a successful action in
malicious prosecution and
considerations for breach of his
fundamental human rights.
However, if the answer to the
question posed in (3a) is in the
affirmative, then no issue
arises, as no compensation will
be paid.
5. The Court should also
consider whether the applicant
is completely innocent of the
offence for which he was
charged, that his arrest, trial
and conviction, sentence and
subsequent acquittal has
resulted into a miscarriage of
justice. In the instant, this is
borne out by the judgment of the
case in Sabbah v Republic
already referred to.
6. The Court will also
have to consider the effect of
their decision on the public
purse. The court must be mindful
of their decision on the tax
payer as is evident in the
amended section 175 of the U.K
Criminal Policing Act 2014, Anti
Social Behaviour which came into
force on 2014 and already
referred to supra.
7. Finally, the Supreme
Court should set guidelines for
the payment of compensation
under article 14 (7) which
should reflect the courts
appreciation of the value in
money terms of the freedoms and
personal liberties of citizens
in a constitutional democrary
vis-à-vis breaches of those
guarantees of personal freedoms
which finds expression in
arbitrariness, wrongful, and
unlawful arrest and malicious
prosecution of citizens without
reasonable and probable cause.
COMMENTARY ON THE ABOVE FACTORS
It would appear that, the first
and second factors apply under
the circumstances of this case.
This is because murder is not
only a grave offence, but also
it carries the capital
punishment of death.
The decision of this court in
the case of Sabbah v Republic
already referred to, where
the court speaking through my
respected sister Adinyira JSC
whilst dealing with the appeal
of the brother of the appellant
herein against the decision of
the Court of Appeal which
dismissed his appeal against
conviction and sentence to this
court, recounted with clarity
the facts of the case that led
to the arrest and prosecution of
the appellant herein as well.
From those narrations, it is
very clear that there was
absolutely no basis whatsoever
for the arrest, detention and
prosecution of the appellant
herein. This means that the 3rd,
4th and 5th
factors supra are all resolved
in favour of the appellant.
On the basis of the above
mentioned factors in relation to
how they apply to the appellant,
it is clear that the appellant
is entitled to payment of
compensation under article 14
(7) of the Constitution 1992.
ISSUE 3
HEADS OF CLAIM FOR COMPENSATION
It is only when the court is of
the opinion that compensation
should be paid that an
assessment is made of the heads
of claims under which the
appellant claims.
The appellant herein has not
provided any credible basis for
the payment of quantifiable
compensation under any of the
heads of claims under which he
claims.
1. For example, the
appellant claims in paragraph 14
(1) and (2) of the affidavit,
loss of income from fishing,
sale of coconut, cassava, palm
tree fruits and for palm wine,
and
2. Destruction of his
village and personal effects by
their adversaries, who over ran
the island.
All the above are capable of
proof, but the appellant was
silent and did not quantify
them.
The income from fishing could
have been specifically pleaded,
so also the amounts realized
from the coconut farm, the size
of the farm, and the number of
harvest per year, and the prices
at which these are sold, etc.
could all have been stated and
proven in court as special
damages.
As a matter of fact, the
appellant failed to give details
of the village and the personal
effects that were damaged,
destroyed and or looted. The
appellant took the issue of
compensation award very lightly
and did not satisfy the court as
to whether any meaningful, and
or credible assessment should be
made in his favour.
However, from the affidavit
evidence that the appellant
proffered, a lump sum of
¢400,000,000.00 which is now
equivalent to GH¢40,000.00 was
pleaded, and this to me connotes
general damages as opposed to
special damages.
What criteria then should be
applied in this case, now that I
have upheld that the appellant
is entitled to payment of
compensation under article 14
(7) of the Constitution?
In setting out the criteria,
reference must also be made to
the factors I had already set
out supra, and that is, this
Supreme Court must set
guidelines reflecting the courts
appreciation of the value in
money terms of the freedoms and
personal liberties of citizens
in a constitutional democracy in
order to prevent arbitrary and
wrongful exercise of the state’s
prosecutorial powers. In my
opinion, this court should put
greater premium on the abuse of
the appellant’s basic human and
personal rights for the period
of eleven years to the
considerations of the effect any
order of compensation will have
on the public funds. This is
because, in a constitutional
democracy, such as the one being
practiced in Ghana, higher
premiums should be placed on the
guarantee of fundamental human
rights and freedoms as well as
the protection of all personal
liberties in chapter 5 of the
Constitution, than to any other
matter.
In my mind, the protection of
these rights, are the
philosophical underpinnings upon
which the Constitution 1992
revolves and are the soul,
spirit and body of the
constitution. The guarantee and
protection of these should
therefore be on a higher
pedestal than any other
considerations.
For a long time now, the
authorties are well settled that
damages that courts award to
litigants in successful
litigations are classified into
two categories. These are
general and special.
The courts have generally held
as follows:-
“Special damages is distinct
from general damages. General
damages is such as the law will
presume to be the natural or
probable consequence of the
defendant’s acts. It arises from
inference of law and therefore
need not be proved by evidence.
The law implies general damage
in every infringement of an
absolute right. The catch is
that, only nominal damages are
awarded. Where the plaintiff
has suffered a properly
quantifiable loss, he must plead
specifically his loss and prove
it strictly. If he does not, he
is not entitled to anything
unless general damages are also
appropriate.” emphasis
See cases of Delmas Agency
Ghana Ltd. v Food Distributors
International Limited
[2007-2008] 2 SCGLR 748
and Tema Oil Refinery v
African Automobile Limited
[2011] 2 SCGLR 907 at 934,
wherethe above principle was
stated and applied respectively.
In the instant case, I have
already pointed out that,
because of the failure of the
appellant to put values of the
items mentioned in paragraph 14
of the affidavit in support of
his claims, this court is not in
a position to quantify those
damages as special damages.
However, the issues raised by
the appellant for the
consideration of this court for
the award of damages are so
important that, I am minded to
take them seriously.
For example, it is clear that
since January, 1993 when
appellant was arrested and
detained up to January, 2004
when his conviction and sentence
to death were set aside, his
fundamental human rights and
freedoms as enshrined in article
14 (1) of the Constitution had
been violently infringed upon.
The mental agony, trauma and the
pain and suffering that he might
have gone through is difficult
to be quantified.
Considering the fact that
compensation under article 14
(7) is a special jurisdiction
conferred by the Constitution
1992 for the benefit of the
citizens of this country in
which we live, it follows that,
basic fundamental principles of
constitutional interpretation
must be strictly adhered to.
These are that, in construing
the awards for payment of
compensation, regard must be
made to the need to promote the
rule of law and the values of
good governance.
Secondly, human rights and
fundamental freedoms must be
advanced.
Thirdly, an innovative and
creative development which will
take account of the cultural,
economic, political and social
development of the Constitution
and laws of Ghana must be seen
to be permitted and promoted.
Finally, in doing so, adherence
to technicalities which have the
potential of defeating the aims
and purposes of the Constitution
and ordinary laws of the land
must be avoided.
For instance, this court must
not only frown upon the practice
whereby law enforcement agencies
are quick to prefer criminal
charges against persons whenever
a crime is committed, but are
slow or reluctant to withdraw
the same charges when proper
investigations disclose that
some of the persons initially
arrested have no connection
whatsoever with the offence.
Ghanaian cultural and social
practices do not permit and
allow the arrest, detention and
virtual fabrication of criminal
charges against persons for no
apparent reason. Let alone
abandoning such persons in
custody without any due regard
for their human rights which are
paramount.
I think the time has come for
law enforcement agencies,
including trial and appellate
courts to be very vigilant, and
assertive in ensuring that all
criminal charges or prosecutions
that do not merit the standard
are not made to see the light of
day. This is the only way to
prevent huge judgment debts
under this article 14 (7) of the
Constitution which has since
seenan upsurge in our law
courts.
The Supreme Court was called
upon in the case of Awuni
v WAEC, already referred
to supra to pronounce upon the
principles applicable in the
award of damages in giving
redress for breach of article
23, of the Constitution 1992
which provides as follows:-
“Administrative bodies and
administrative officials shall
act fairly and reasonably and
comply with the requirements
imposed on them by law and
persons aggrieved by the
exercise of such acts and
decisions shall have the right
to seek redress before a court
or other tribunal.”
Date-Bah JSC, in delivering his
opinion in the Awuni v
WAEC case already
referred to supra, on pages 576
to 577 of the report, dealt with
assessment of damages arising
from failure to apply or comply
with constitutional provisions
in article 23 referred to supra.
Since article 14 (7) of the
Constitution 1992, with which we
are dealing with in the instant
case is also part of the chapter
Five of the Constitution which
deals with Fundamental Human
Rights and Freedoms, I deem it
expedient and worthwhile to
quote in extenso from that
decision of Date-Bah JSC since
it provides useful lessons and
guidelines to be used in this
particular case. He stated
thus:-
“The basic principle that the
common law courts have applied
for the measure of damages in
the private law of tort (and
indeed of contract) is that of
restitutio in integrum. Lord
Scarman expressed this principle
thus in Lim v Cameden Health
Authority [1980] AC 174 at 187.
“…the principle of the law is
that compensation should as
nearly as possible put the party
who has suffered in the same
position as he would have been
in if he had not sustained the
wrong.”
This measure of damage is easier
to apply in the traditional
private law of torts area, where
a plaintiff’s loss may consist
of personal injury, damage to
property, financial loss etc.
It is much more difficult to
apply where a plaintiff’s loss
is that of a constitutional
right. What is the level of
monetary payment that can return
him or her to the status quo
ante. A similar difficulty has
been found in trying to apply
restitutio in integrum to the
non-pecuniary elements of
personal injury compensation,
such as pain and suffering. In
such situations, what the courts
may end up with is not true
compensation but what Romer L.J.
described in Rushton v
National Coal Board [1953] 495
at 502 as “notional or
theoretical compensation to take
the place of that which is not
possible, namely, actual
compensation.”
Similarly, how can there be
actual compensation for the
appellant’s loss of his right to
a fair hearing, on the facts of
this case? What payment can
restore him to the situation he
was in before the respondents
took their decision affecting
him without hearing him? The
difficulty of this question is
compounded by the fact that it
is to be answered without
prejudice to the substantive
rights of the parties to this
dispute. On the facts of this
case, I am not in a position to
determine whether the applicant
and his fellow students did or
did not cheat. All that this
court can determine is that the
procedure the respondent
employed to arrive at its
decision is flawed and therefore
the decision is void.
Assessing the monetary
compensation to restore the
applicant to his procedural
status quo ante will to my mind,
inevitably involve a “notional
or theoretical” exercise. It is
nevertheless worth carrying out
in order to give substance to
his constitutional right. In
undertaking this notional
exercise of compensation, the
courts will need to exercise
their judicial discretion
judiciously, taking into account
the totality of the
circumstances of each case. They
would be well advised to
restrict themselves to modest
awards because of the inevitable
subjectivity of the exercise.
In effect, the damages that are
awarded for breach of a
constitutional right under
chapter five of the constitution
in cases where no actual damage
is proved are damages which are
“at large” in the sense in which
Lord Hailsham LC used this
expression inCassell & Co Ltd v
Broome [1972] AC 1027 at 1073,
HL where he said:
“The expression “at large’
should be used in general to
cover all cases where awards of
damages may include elements for
loss of reputation, injured
feelings, bad or good conduct by
either party, or punishment, and
where in consequence no precise
limit can be set in extent. It
would be convenient if, as the
appellants’ counsel did at the
hearing, it could be extended to
include damages for pain and
suffering or loss of amenity.
Lord Devlin uses the term in
this sense in Rookes v
Barnard [1964] AC 1129, 1221,
when he defines the phrase as
meaning all cases where “the
award is not limited to the
pecuniary loss that can be
specifically proved.” But I
suspect that he was there guilty
of a neologism. If I am wrong,
it is a convenient use and
should be repeated.”
In the Ghanaian context, use of
the phrase may be convenient
shorthand for describing the
nature of the damages payable
for breach of a constitutional
right, where no actual proximate
pecuniary loss is proved.”
emphasis
The guidelines established from
the Awuni case in assessing
damages in breach of
constitutional rights are:
1.
Notional or theoretical
compensation.This as the name
implies is based on conjecture
and is not actual compensation.
2.
There must be moderation in the
award of damages because of the
inevitable subjectivity of the
exercise.
3.
Damages awarded for breach of a
constitutional right under
chapter five of the Constitution
where no damages are proved are
damages which are “at large”.
This in essence includes heads
of claims like, injured feeling,
loss of reputation, pain and
suffering etc. which are
incapable of precise proof.
4.
In the purely Ghanaian context
the phrase damages “at large”
may mean damages payable for
breach of a constitutional
right, where no actual proximate
loss is proven. This can be
referable to the exact
circumstances of this appeal
Applying the above principles to
the circumstances of this case
which have been well stated
supra, I am of the considered
view that a global amount of
GH¢35,000.00 is an adequate
remuneration for the
unquantifiable losses that the
appellant has suffered. This is
because unlike the Awuni case
where it was doubtful whether
the appellants therein cheated
or not, in the instant case, it
has been established that the
appellant was innocent of all
the humiliation he has gone
through, i.e. the arrest,
detention, prosecution for
murder, subsequent conviction
and sentence and eventual
acquittal all spanning a period
of 11 years.
CLOSING REMARKS
1. What is certain at
the end of this case is that, a
Judge definitely has discretion
in applications under article 14
(7) of the Constitution whether
to certify the case to the
Supreme Court for consideration
of the compensation, and the
Supreme Court also has
discretion in the examination it
conducts in the matter. The
caution is that, like all
judicial discretions, it must be
exercised judiciously.
To the extent that
the Court of Appeal rightly
exercised it’s discretion in the
matter, that part of the appeal
which suggests that the award of
compensation payment under
article 14 (7) of the
Constitution 1992 is automatic
and devoid of any discretion on
the part of the courts concerned
following an acquittal cannot be
sustained and is accordingly
dismissed.
2. The decision of the
state institutions, the Police
and the Attorney-General’s
Department, to undertake the
prosecution of the appellant
where there was absolutely no
basis to link him with the
offence is to be frowned upon
and condemned in no uncertain
terms.
This case should be
a wakeup call on all state
institutions involved with
arrest, detention and
prosecution of citizens that,
henceforth, their actions would
be measured in terms of the
article 14 (7) of the
Constitution. Care must
therefore be taken to prevent
persons who have been acquitted
on appeal proceeding under this
article 14 (7) provision of the
Constitution to obtain judgment
debts against the
Attorney-General. There is
therefore the need for a lot of
circumspection to be exercised
by the state institutions
involved in this aspect i.e.
arrest, investigations and
prosecutions of citizens
3.
In considering the monetary
compensation that the appellant
has been awarded, all the items
listed by the appellant in
paragraph 14 of his affidavit
were taken into consideration.
Learned counsel for the
appellant, Mr. Ahumah Ocansey,
referred us to the words in
proverbs Chapter 3 verse 27, I
respond and state that this
court cannot be seen to preside
over justice and have injustice
meted out to persons who seek
justice before us. In other
words, when it is in our power
to do good, we will not withhold
it from those to whom it is due,
only that, in all instances it
must be according to law.
Save as stated supra, the appeal
herein lodged by the appellant
against the Court of Appeal
decision dated 8th
July 2004 succeeds.
(SGD) V. J. M. DOTSE
(JUSTICE OF
THE SUPREME COURT)
BENIN, JSC:-
Article 14(7) of the 1992
Constitution which is at the
centre of this appeal provides
that:
‘Where a person who has served
the whole or a part of his
sentence is acquitted on appeal
by a court, other than the
Supreme Court, the court may
certify to the Supreme Court
that the person acquitted be
paid compensation; and the
Supreme Court may, upon
examination of all the facts and
the certificate of the court
concerned, award such
compensation as it may think
fit; or, where the acquittal is
by the Supreme Court, it may
order compensation to be paid to
the person acquitted’.
The core issue raised in this
appeal is whether the payment of
compensation under the above
quoted provision of the
Constitution is automatic and
compulsory once a person has
been acquitted on appeal after
having served the full term or a
part of it, or whether it is
discretionary as the court may
deem fit to grant. This
divergent opinion has arisen for
two reasons: firstly, there is
no precedent by way of a local
decided case to guide an
applicant. Such foreign decided
cases as are available do not
turn directly on this provision
in our Constitution so they are
not germane to this discussion.
Secondly, the provision under
consideration is blank on what
conditions or circumstances or
grounds any such compensation
may be awarded. It is unlike
article 14(5) of the
Constitution which makes the
unlawfulness of an arrest,
restriction or detention the
basis for compensation against
the person liable. It is also
unlike section 141 of the
Criminal and other Offences
Procedure Act, 1960 (Act 30)
whereby compensation may be
ordered to be paid to an accused
against a complainant in a case
of frivolous or vexatious
charge. The court thus has an
opportunity to determine the
meaning and scope of this
provision.
The brief facts of the case are
as follows. The appellant and
his brother were arraigned
before the High Court on two
charges, namely conspiracy to
commit murder and murder
contrary to sections 23(1) and
46 respectively of the Criminal
Offences Act, 1960 (Act 29). The
jury returned a guilty verdict
on both counts and the trial
judge convicted and sentenced
them accordingly. On appeal to
the Court of Appeal the
appellant herein had his appeal
allowed so his conviction and
sentence were quashed and set
aside and he was consequently
discharged. The appellant then
applied to the Court of Appeal
for compensation under Article
14(7) of the 1992 Constitution,
supra. The court did not accede
to the request. The court, in
dismissing the application, said
this:
“We are of the opinion that the
above constitutional provision,
which is under consideration,
imposes a discretion on this
court and any other court for
that matter. Such discretion
like any judicial discretion is
properly exercised when all the
circumstances (sic) is taken
into consideration. In this
case, we are of the opinion that
as the applicant went through a
proper trial which observed all
the statutory procedure in a
court of law established by this
very constitution and his arrest
and prosecution were all regular
devoid of any abuse of law and
breach of any human rights of
the applicant, we are of the
view that this application ought
to be refused.”
It is against this decision that
the appellant has appealed to
this court on two grounds,
namely:
1.
Failure by the court to
appreciate that the award of
compensation as provided for
under article 14(7) of the 1992
Constitution is not hedged with
any antecedent conditions other
than the inherent injustice of
arresting and detaining a person
on inadequate or non-existent
legal grounds.
2.
Failure by the Appellate Court
to appreciate that the
fundamental abuse of the rights
of the applicant took place at
the very moment of arrest and
detention in Ada without cause,
and that all other processes,
whether proper or not, were
nugatory.
I will consider the two grounds
together. Arguing the first
ground of appeal, Counsel for
the appellant stated that the
constitutional provision is
founded on the principles of
tort whereby a person who is
unlawfully detained or
restricted is entitled to
compensation for injury to his
personal dignity. Counsel then
argued that the Court of Appeal
concluded that payment of
compensation under the
Constitutional provision was
discretionary because it did not
consider it alongside Article
12(1) of the Constitution, which
provides:
‘The fundamental human rights
and freedoms enshrined in this
chapter shall be respected and
upheld by the Executive,
Legislature and Judiciary and
all other organs of government
and its agencies and, where
applicable to them, by all
natural and legal persons in
Ghana, and shall be enforceable
by the Courts as provided for in
this Constitution’.
Counsel submitted that “the
mandatory spirit in this
provision does not allow for the
discretion that the Appellate
Court refers to. Perhaps, it
might have been deceived by the
use of the word ‘may’. However,
the spirit and letter of Article
12(1) is that the provisions on
human rights must be enforced in
so far as it is apparent a
person’s rights have been
violated, and the violation
vindicated by the courts.”
Counsel then proceeded to make a
comparison between Article 14(7)
and section 133(1) of the
Criminal Justice Act, 1988 of
Britain. It provides:
‘Subject to subsection (2)
below, when a person has been
convicted of a criminal offence
and when subsequently his
conviction has been reversed or
he has been pardoned on the
ground that a new or newly
discovered fact shows beyond
reasonable doubt there has been
a miscarriage of justice, the
Secretary of State shall pay
compensation for the miscarriage
of justice to the person who has
suffered punishment as a result
of such conviction’.
Counsel’s position on this was
that “the similarity of the
Ghanaian and the British
provisions shows the importance
that the law attaches to the
rehabilitation of a person
manifestly wronged by operation
of law.” He then cited some
local and foreign authorities
namely Appiah v. Mensah
and others (1978) GLR 342;
Murray v. Ministry of Defence
(1988) 1 WLR 692 at 703 HL;
on the premium the law
places on individual liberty and
if he suffers wrongful
interference with it he is
entitled to be compensated.
In concluding on this ground
counsel stated that the Court of
Appeal should have given the
provision a literal
interpretation, without imposing
any conditions. In counsel’s
view if the decision by the
court below is upheld, “that
would introduce a subjective
element in the payment of
compensation to persons who are
qualified to receive
compensation and once
subjectivity comes in, the
intendment of the Constitution
would be defeated.”
On the second ground of appeal
counsel’s view was that “the
fundamental law operative under
this ground of appeal relates to
the lawfulness or legality and
unlawfulness or illegality of
the acts of the Ada Police in
arresting and detaining the
applicant.” Counsel went on to
say that “once the Court of
Criminal Appeal had acquitted
the Applicant, it raised the
presumption of the unlawfulness
of his conviction.”
Responding to these arguments,
Counsel for the respondent
supported the lower court’s view
that the provision imposes
discretion on the court in
deciding from all the
circumstances of the case
whether or not to grant an
application for compensation.
Counsel’s view was that it was
not intended to open the
floodgates that every convicted
person who serves a sentence
should be compensated when he is
acquitted on appeal. Counsel
made reference to the fact that
the legislator used the
permissive word ‘may’ which
allows for discretion therefore
the court should be free to
consider each application for
compensation in the light of all
the circumstances of the case.
Counsel then considered the
argument that Article 14(7) when
read together with Article 12(1)
would show that the spirit of
the law was to protect the
fundamental rights of the
individual by all state
institutions including the
court. In their view article
12(1) was subject to the
limitations imposed by article
12(2) which reads:
‘Every person in Ghana, whatever
his race, place of origin,
political opinion, colour,
religion, creed or gender shall
be entitled to the fundamental
human rights and freedoms of the
individual contained in this
Chapter but subject to respect
for the rights and freedoms of
others and for the public
interest’.
Counsel’s submission was that
the enjoyment of one’s
fundamental human rights was not
absolute or unbridled, but it is
subject to the rights and
freedoms of others and the
public interest, as stated in
article 12(2).
On the similarity between
article 14(7) and section 133(1)
of the British Criminal Justice
Act, 1988, supra, Counsel drew
attention to the fact that under
the latter legislation the award
of compensation was not
automatic but was subject to the
discretion of the Secretary of
State even where there was a
miscarriage of justice. Counsel
went on to mention that section
133(1) has been amended by
section 175 of the Anti-social
Behaviour, Crime and Policing
Act, 2014 which has now made
eligibility for compensation to
be dependent on whether the
claimant committed the offence
or not. The relevant part of
section 175 of the said Act
reads:
‘(1)in section 133 of Criminal
Justice Act, 1988………after
subsection (1) there is inserted
(1ZA) For the purposes of
subsection (1) there has been a
miscarriage of justice in
relation to a person convicted
of a criminal offence……..if and
only if the new or newly
discovered fact shows beyond
reasonable doubt that the person
did not commit the offence…….’.
Counsel went to great length to
cite a number of English cases;
but I am afraid they are not
relevant for the simple reason
that both English legislations
referred to above have specific
condition or ground to satisfy
in order to qualify to be paid
compensation. Thus any attempt
to compare them is not too
helpful. However, we could
employ the wisdom therein to
delimit the scope of our own
legislation in the sense that
the British legislation of 2014,
supra, has confined the scope of
miscarriage of justice to the
total innocence of a convicted
person as the sole condition for
compensation. Apparently it was
done for financial reasons which
are a sensible thing to do
therefore we may also adopt it
in a fragile economic
environment as ours. But until
specific legislation is made to
delimit the scope of Article
14(7), the Supreme Court which
is given the right to decide who
qualifies to be paid
compensation should do so in
accord with the mind and
intention of the lawmaker.
Let me return to the grounds of
appeal. I start off by erasing a
false assumption by counsel for
the appellant when he sought to
say that once the appellant was
acquitted it must be presumed
that the conviction was wrongful
and therefore the innocence of
the appellant was undoubted. It
is true that in law when an
appellant’s conviction is
quashed he becomes a free man in
the eyes of the criminal law.
But it does not mean that in
fact he was not culpable for he
might have been acquitted on a
technical ground only. Besides
he is not innocent before a
civil court in any subsequent
claim for compensation following
the acquittal whether the claim
is against the complainant or
the State, such that he can rely
on the acquittal as proof of his
innocence. His culpability may
be proved in the proceedings
before a civil court for
compensation, so he must be able
to satisfy the court,
independent of his acquittal by
the appellate criminal court,
that he is innocent. Thus it is
fallacious to assume that
because he has been set free on
appeal in the criminal court, an
applicant is not obliged to
establish his claim for
compensation. It is this fallacy
that underpins the key arguments
contained in the grounds of
appeal, especially the first
ground. If counsel’s argument is
accepted, it will mean that
every arrest, detention and
prosecution inherently infringe
a person’s rights as enshrined
in the Constitution. That is
completely false and this could
not be the intent and purpose of
Chapter 5 of the Constitution,
read as a whole or read
vis-a-vis the other provisions
of the Constitution, especially
in matters affecting the
security of the entire country
or the rights of other citizens.
It is to be noted that the word
‘may’ appears four times in
article 14(7), supra. By section
42 of the Interpretation Act,
2009 (Act 792) the word or
expression ‘may’ when used in an
enactment shall be construed as
permissive and empowering, as
opposed to the word or
expression ’shall’ which is
imperative and mandatory.
However, counsel for the
appellant is of the view that
notwithstanding the use of the
word ‘may’ in Article 14(7) of
the Constitution, the court is
bound to award compensation to a
convicted person who has served
the whole or a part of the
sentence and who is acquitted on
appeal. Counsel’s reason was
that the provision only says
that a person who is acquitted
on appeal after serving the
whole or part of his sentence is
entitled to be compensated, that
is applying a literal
interpretation. Counsel’s view
appears to give a blank cheque
to any person who is acquitted
after serving some amount of
sentence to receive
compensation. Is this the true
intendment of the Constitutional
provision?
I must point out that aword or
an expression may appear several
times in the same section or
clause of an enactment but each
may have been used differently
in the sense that it has a
different meaning, purpose and
intent having regard to the
context of its use. See the
India case of Ramnarayan
Mor v. State of Maharasira, AIR
(1964) SC 949 at p. 953; (1964)
5 SCR 1064.From the
position of counsel for the
appellant, he seems to be saying
that the word ‘may’ bears a
different meaning in one or more
places that it appears in
Article 14(7). That is legally
possible but the proponent must
satisfy the court as to why it
must be interpreted as
imperative and not permissive
which is the normal meaning of
the word. The word ‘may’ may be
construed as imperative if the
context of its use so dictates,
that is if that alone would
achieve the purpose and object
of the legislation. But the
general principle as stated by
Justice G. P. Singh in his book
Principles of Statutory
Interpretation, 13th
edition 2012, at page 749 is
that “when an Act conferring
the power does not mention the
conditions and circumstances in
which the power is to be
exercised it will be construed
as discretionary and directory.”
Thus the court will have to look
at the legislation to find out
if there are conditions,
circumstances and specific
grounds to exercise the power;
if they do exist then the
legislation imposes a duty on
the court to exercise that power
if those circumstances,
conditions and grounds are
established, notwithstanding the
use of an enabling word like
‘may’. If not, it should be
interpreted as discretionary and
permissive, unless such
interpretation will defeat the
purpose and object of the
legislation. Let me refer to a
few decided cases on these
principles.
In the words of Cotton L.J. in
the case of In re,
Nicolsvs. Baker, 59 LJ Ch 661 at
p.663“ ‘may’ can never
mean ‘must’, so long as the
English language retains its
meaning, but it gives a power
and then it may be a question,
in what cases, when any
authority or body has a power
given it by the word ‘may’ it
becomes its duty to exercise
that power.”
In the case of Julius v.
Lord Bishop of Oxford (1874-80)
All ER Rep 43 at p.
49per Lord Cairns:“where a power
is deposited with a public
officer for the purpose of being
used for the benefit of persons
specifically pointed out with
regard to whom a definition is
supplied by the Legislature of
the conditions upon which they
are entitled to call for its
exercise, that power ought to be
exercised and the court will
require it to be exercised.”
The principle is the same even
where the duty is cast upon the
court to exercise the power. In
the book cited above at page
748, the learned author writes
that “when permissive words
are employed by the Legislature
to confer power on a court to be
exercised in circumstances
pointed out by the statute, it
becomes the duty of the court to
exercise that power in proof of
those circumstances.”
Per Beg J. in the case of the
Official Liquidator v. Dharti
Dhan AIR 1977 SC 740 at 745:
“If the conditions in which the
power is to be exercised in
particular cases are also
specified by a statute then, on
the fulfillment of those
conditions, this power conferred
becomes annexed with a duty to
exercise it in that manner.”
The appellant therefore has a
duty to satisfy the court that
despite the use of the enabling
word ‘may’ in article 14(7)
which is statutorily defined to
be permissive and thus
discretionary, and despite the
absence of any conditions,
circumstances or grounds
specified therein, yet in the
context of this constitutional
provision it must have a
different meaning, precisely
that it is imperative and
obligatory.
The word ‘may’ first appears in
Article 14(7) in connection with
the appellate court other than
the Supreme Court; such
appellate court ‘may certify’ to
the Supreme Court that an
applicant be paid compensation.
The operative word here is
‘certify’. What does ‘certify’
as used in the provision mean?
There is no definition of that
word in the Constitution; we
thus have to resort to other
sources to discover the ordinary
and legal meaning of that word
in order to appreciate what the
appellate court concerned is
required to do. First the
ordinary meaning of the word
‘certify’ is to attest to as to
the truth or meeting a standard.
Synonyms of that word are words
like witness, vouch for, approve
and confirm.
As to the legal meaning, Black’s
Law Dictionary 9th
edition at page 258 defines
‘certify’ as (1) to authenticate
or verify in writing; (2) to
attest as being true or as
meeting certain criteria.
Whether in its ordinary or legal
meaning the word ‘certify’
connotes some form of
confirmation of the truth or
existence of something. In the
context of Article 14(7) supra,
what it means is that the
appellate court is required to
confirm, not the bare fact that
the applicant has been acquitted
on appeal after having served
the whole or a part of the
sentence, which the Registrar of
the court is best placed to do
but rather, whether following
his acquittal the court
considers that he should be
recommended to be paid
compensation. In other words the
appellate court must be
satisfied that given all the
facts and circumstances of the
case that it has examined in the
course of hearing the appeal,
the applicant deserves to be
paid compensation. Thus the
expression ‘may certify’ imposes
a duty on the appellate court to
examine the record in its
entirety and come to a reasoned
conclusion that the applicant
should be recommended for
payment of compensation.
Consequently, it is not
automatic or compulsory or
imperative that once a person
has served his sentence or a
part of it and is acquitted on
appeal he must be paid
compensation. That is not the
intention of the lawmaker hence
the requirement of certification
by the appellate court, which in
itself is a process that
involves the exercise
ofdiscretion. It is observed
that the certification by an
appellate court to the Supreme
Court is nothing more than a
non-binding recommendation.
After an appellate court has
certified to the Supreme Court
that the applicant may be
considered for compensation, the
Supreme Court is not bound to
accept that recommendation. It
has the right, and may examine
the entire record including the
lower court’s certificate and
satisfy itself that indeed it is
a fit case to award
compensation. The fact that this
court is required to examine the
facts, which I understand to
mean the entire record of the
case if it is available, as well
as the lower court’s certificate
go to confirm that the award of
compensation is not automatic
following an acquittal.
Besides the foregoing, this
interpretation of the provision
accords with the ordinary
meaning of the word ‘may’ which
is affirmed in section 42 of Act
792 in as much as it accords
with common sense. It is a rule
of law that when considering the
facts of a case which of the
opposing constructions of the
provision would give effect to
the legislative intention, it is
legitimate for the court to
presume that the legislator
intended common sense to be
used in construing the
enactment. The law maker could
not have intended that every
person who is acquitted after
serving some amount of
imprisonment should be paid
compensation, if for nothing at
all for its indeterminate and
incalculable cost to the
treasury and the burden it would
place on the Supreme Court if
all such persons were to have
unfettered right based on
open-ended ground to approach it
for compensation. Thus the law
maker expects the Supreme Court
to make award in deserving
cases, without putting any
fetter or clog on its
discretion.
Obviously the question that will
have to be addressed is this: on
what grounds or conditions or in
what circumstances may the
appellate court consider in
deciding whether or not to
certify that an applicant should
be recommended for consideration
by the apex court for
compensation, or for the Supreme
Court to decide that the
applicant should be paid
compensation? Admittedly, the
provision under consideration is
silent on this issue. Hence
being a matter of discretion the
appellate court will be entitled
to consider all the facts and
circumstances, as the Court of
Appeal rightly held. In the
process the court must bear in
mind that the State has a
responsibility to protect all
the inhabitants in the country,
whilst at the same time ensuring
that the individual rights and
freedoms enshrined in the
constitution are respected. Thus
while the State may arrest,
detain and prosecute any
suspected criminals and possibly
jail convicted criminals for
infractions of the law, the
provision in Article 14(7) of
the Constitution ensures that
where the State has crossed a
certain boundary to the
detriment of an individual, that
person is duly compensated. The
provision in Article 14(7), as
well as Article 14(5), acts as a
check on the dominant power of
the State to arrest, detain,
prosecute and to send to jail.
Such considerations ensure that
the balance of the various
interests which Article 12(2) of
the Constitution seeks to
maintain in society is duly
satisfied, that is individual
rights vis-à-vis the rights and
freedoms of others as well the
interest of the public at large.
They also achieve the purpose
and object of Article 14(7) that
those who have really suffered
injustice in terms as determined
by the Supreme Court are
compensated.
Consequently I hold the view
that among the factors that the
court may take into account are
the following:
i.
In particular the court may
consider whether the acquittal
was based on the complete
innocence of the applicant,
without any shadow of doubt. In
that regard an acquittal based
on a technical ground will not
pass the test.
ii.
The court may also take into
account, what I may consider to
be a reckless prosecution of the
applicant. Let us consider the
case of an applicant who pleaded
alibi and filed the required
notice and provided all
witnesses and made them
available but the investigating
authorities did not investigate
it and the prosecutor also
ignored it and the applicant was
convicted and sentenced. Then
subsequent events go to
exonerate the applicant on
ground that the alibi was true.
This will be a case of a
reckless prosecution resulting
in a miscarriage of justice.
Here too the complete innocence
of the applicant will have been
established without any doubt.
Thus the State must have a
reasonable cause to embark on a
prosecution.
It may be observed that in each
of these instances listed above,
there would be some form of
failure in the criminal justice
system that resulted in the
conviction of the applicant or
appellant, as the case may be.
However, the category of cases
in which compensation may be
awarded under Article 14(7)
cannot be exhausted so each case
will depend on its own peculiar
facts and circumstances, but
certainly the bare fact that a
convicted person has succeeded
on appeal would not suffice.
Now an appellate criminal court
has made a certification to the
Supreme Court that an applicant
qualifies for compensation. The
provision states further that
after examining all the facts
and the certificate of the lower
court and having satisfied
itself of the applicant’s claim,
the Supreme Court may then
decide that an applicant is
entitled to be awarded
compensation; the court then
decides how much to award as
compensation. It is still a
discretion vested in the court
even at that stage because there
may be some factors present on
the record that may sway the
court to award minimal or
nominal damages or none at all.
For instance if the applicant
contributed to the events
leading to the prosecution and
conviction or even to the term
of imprisonment, the court will
be entitled to take them into
account in determining the issue
of compensation payable. Thus an
applicant has a duty to satisfy
the Supreme Court that apart
from being entitled to be paid
compensation, that the court
should indeed award him the
compensation requested for,
because there is nothing
inhibiting the award. Thus
Article 14(7) supra, gives the
Supreme Court alone the right to
determine whether a person is
entitled to compensation and the
quantum to pay; every other
appellate criminal court has
only the priviledge to make
recommendation to the Supreme
Court.
Before considering my decision
in this appeal I must address
three matters that immediately
arise when this provision in
article 14(7) is invoked; they
are largely procedural in
nature. To begin with, the
provision does not state who may
invoke the court’s jurisdiction.
Obviously a prisoner who has
served his sentence or a part
thereof and has had the
conviction quashed qualifies to
apply for compensation. Can the
court act on its motion? It
appears from the wording of the
provision that the appellate
court can on its own decide that
a person whose conviction and
sentence it has quashed and set
aside on appeal deserves to be
compensated.
Next, it is certain that there
are no rules in any of the
courts to regulate the practice
in respect of the jurisdiction
conferred by Article 14(7)
supra. But the State which
stands to lose some revenue
should an order be made for
compensation to be paid is the
person directly affected by an
order for compensation and is
indeed responsible to pay the
compensation awarded and is thus
the interested party. Therefore
it is imperative to require that
the State acting per the
Attorney-General be served with
notice by the applicant, or if
the court is acting on its own
motion that the Attorney-General
is notified and to be heard. If
the court below fails to do that
the Supreme Court which is given
the right to take the decision
in respect of the question of
compensation under Article 14(7)
must invite the Attorney-General
for a hearing.
Finally, the question arises as
to what an applicant may do when
the appellate court below
rejects his application for the
court to certify to the Supreme
Court that he be paid
compensation. Until such time
that rules will be made to
regulate the exercise of this
jurisdiction, the applicant may
come to the Supreme Court by way
of a repeat application. Can an
applicant appeal against such
refusal? There are clear
provisions that govern the
appeal process. Article 131 of
the Constitution provides in
relevant part as follows:
(1) An appeal shall lie
from a judgment of the Court of
Appeal to the Supreme Court
(a) as of right in a civil
or criminal cause or matter in
respect of which an appeal has
been brought to the Court of
Appeal from a judgment of the
High Court or a Regional
Tribunal in the exercise of its
original jurisdiction; or
(b) with the leave of the
Court of Appeal, in any other
cause or matter, where the case
was commenced in a court lower
than the High Court or a
Regional Tribunal and where the
Court of Appeal is satisfied
that the case involves a
substantial question of law or
is in the public interest.
(2) Notwithstanding clause
(1) of this article, the Supreme
Court may entertain application
for special leave to appeal to
the Supreme Court in any cause
or matter civil or criminal, and
may grant leave accordingly.
See also sections 4(1) and (2)
of the Courts Act, 1993 (Act
459). The Court of Appeal does
not have original jurisdiction,
thus an application to that
court under Article 14(7) can
only be handled in the context
of the appeal process in wherein
the applicant was acquitted, in
which case the court exercises a
continuing jurisdiction which is
conferred upon it by this
provision. Therefore an appeal
will lie from a refusal by the
Court of Appeal as of right
under Article 131(1)(a), supra,
since the criminal appeal came
to the Court of Appeal from the
High Court.
As earlier held, Article 14(7)
gives the Supreme Court the sole
right to determine the question
of compensation, thus in the
absence of rules to govern the
exercise of the jurisdiction
conferred upon the court, an
interested party should be given
the unfettered right to come
before the Supreme Court after
exhausting the first opportunity
given him to apply to the court
which acquitted him. In my view
therefore an applicant may come
by way of a fresh application to
this court following a refusal
by the court below as earlier
stated, be it the High Court or
the Court of Appeal whichever of
these courts finally acquitted
and discharged the appellant, or
by way of an appeal if it is
coming from the Court of Appeal.
A fresh application will be more
cost effective and expeditious
than an appeal and is thus to be
encouraged. If the appeal
procedure is the only mode to be
employed, it will mean that
following a refusal by the High
Court the appellant/applicant
will have to appeal to the Court
of Appeal in the first place
even though the latter court has
no right to make any binding and
enforceable decision in the
matter. The Court of Appeal,
like the High Court, only has
the priviledge to make a
non-binding recommendation to
the Supreme Court, so why resort
to this circuitous and expensive
and time-consuming appeal
process. But as stated earlier
until specific rules have been
put in place this court should
accept any of the two modes
either an appeal or a fresh
application with all the
necessary documentation annexed
thereto.
Let me now apply the principles
outlined above to the facts of
this case. We have not had the
benefit of the entire record.
But as both parties have
confined themselves to the
record as we have it, we have to
go by it. However, I think that
if this court is to make an
award it is entitled to the
benefit of the full appeal
record as was placed before the
lower court, by which I mean the
first appellate court which
heard the appeal and acquitted
the appellant. However, in this
appeal the absence of the record
has not affected effective
decision-making for the reason
that we have had the benefit of
the decision by the Supreme
Court in the final appeal. I
must remark that Counsel for the
appellant was not helpful to the
court for even when he was
prompted to supply the judgment
containing the full facts he
said it was not necessary,
apparently because he had taken
a rather simplistic view of
Article 14(7) that it applied
automatically. The appellant has
just been fortunate that the
final appellate decision is
available and is reported as
Sabbah v. The Republic(2009)
SCGLR 728.The facts
recounted in the report
demonstrate without a shadow of
doubt that the appellant herein
was not even at the scene of
crime. The prosecution witnesses
all mentioned his brother as the
murderer and the said brother
also admitted it even on oath
before the trial court that he
alone did kill the deceased. The
appellant herein was thus
completely innocent right from
the beginning and was thus
wrongfully arrested, detained,
tried, convicted and sentenced.
There was no reasonable cause
for the arrest in the first
place, there was a reckless
prosecution and all the
subsequent processes were
detrimental to him. The appeal
therefore succeeds on ground (2)
but ground (1) fails for reasons
explained above. I adjudge the
appellant to be entitled to be
awarded compensation, taking
into account, inter alia,
article 14(6) of the
Constitution that is from the
date of his arrest and detention
up to the date of his discharge
from jail that is for the period
he was unlawfully incarcerated.
After I had concluded my
decision, I had the priviledge
of reading the opinions of my
learned brethren and I am
pleased we have not expressed
any significant divergent views
on this important matter. I
particularly share the view
expressed by the Honourable Lady
Chief Justice that a global sum
be awarded to the appellant
herein in the circumstances that
she has ably described in the
lead opinion.
(SGD) A. A. BENIN
(JUSTICE OF
THE SUPREME COURT)
AKAMBA, JSC:
This novel application is
premised upon two grounds of
appeal raised for this court’s
determination, namely: (i) The
failure by the court to
appreciate that the award of
compensation as provided in the
1992 Constitution is not hedged
with any antecedent conditions
other than the simple acquittal
of an Applicant, and this is no
doubt based on the inherent
injustice of arresting and
detaining a person on inadequate
or non-existent legal grounds;
(ii) Failure by the appellate
court to appreciate that the
fundamental abuse of the rights
of the Applicant took place at
the very moment of his arrest
and detention by the Police at
Ada without cause, and that all
other processes, whether
‘proper’ or not, were nugatory.
Without any measure of doubt
this application calls for an
interpretation of the relevant
provisions of the Constitution,
given the circumstances of this
case.
BACKGROUND
The appellant and Matthew Kwame
Sabbah are brothers. They were
both charged with the offences
of conspiracy to murder and
murder before the High Court
Accra. They were tried and
convicted and sentenced to death
on 7th August 2001.
Dissatisfied with the verdict,
they appealed to the Court of
Appeal which quashed the
conviction of the appellant but
dismissed the appeal of Matthew
Kwame Sabbah. Following his
release, the appellant applied
to the Court of Appeal for an
order to certify to this Court
for the payment of compensation.
The Court of Appeal found no
merit in the application and
dismissed it. The result is the
present further appeal for our
determination.
To begin with, the appeal record
is very scanty. Not much
information has been included in
the record of appeal to enable
one come to an informed view of
the circumstances leading to the
present application.
Conspicuously absent is the
record of proceedings from the
trial court and all other
relevant pieces of vital
evidence that could assist a
second appellate court deal with
this very important issue that
affects our criminal justice
system and the way ahead. I
think it is fair to observe that
in order to ascertain whether or
not the appellant is deserving
of the relief sought for such
appellant to attach the whole of
the record of proceedings in the
court below for our examination
in order to make informed
opinions or decisions. Be that
as it may, I will proceed to
deal with whatever material that
is available in this appeal
record.
RELEVANT CONSTITUTIONAL
PROVISIONS
Chapter five (5) of the 1992
Constitution regulates
Fundamental Human Rights and
Freedoms. The two relevant
articles of the 1992
constitution i.e. articles 12
(1) and 14,for our consideration
state as follows:
“Art. 12(1). The
fundamental human rights and
freedoms enshrined in this
Chapter shall be respected and
upheld by the Executive,
Legislature and Judiciary and
all other organs of government
and its agencies and, where
applicable to them, by all
natural and legal persons in
Ghana, and shall be
enforceable by the Court as
provided for in this
Constitution.”
“Article 14 (1) Every
person shall be entitled to his
personal liberty and no person
shall be deprived of his
personal liberty except in the
following cases and in
accordance with procedure
permitted by law –
-----
(7) Where a person who has
served the whole or a part of
his sentence is acquitted on
appeal by a courtother than the
Supreme Court, the court may
certify to the Supreme Court
that the person acquitted be
paid compensation; and the
Supreme Court may, upon
examination of all the facts and
the certificate of the court
concerned, award such
compensation as it may think
fit; or, where the acquittal is
by the Supreme Court, it may
order compensation to be paid to
the person acquitted.”
CONSIDERATION OF GROUND ONE
Counsel for the Appellant
submits tenaciously that Article
14 (7) of the Constitution 1992
(supra) when read together with
Article 12 (1) thereof,
eliminates any element of
discretion to the courts in the
award of any compensation
following the acquittal of a
person. Does a close reading of
Article 14 (7) (supra) and Art
12 (1) (supra) of the 1992
Constitution lend any support to
the submission by Appellant
counsel?
The Appellant’s counsel is of
the view that Article 12 (1)
circumscribes or delimits the
discretion given to the courts
in the later provision of
Article 14 (7). I think it
prudent that caution is applied
in jumping to such conclusions
when it comes to the
interpretation of legal
documents not least a
Constitutional provision. The
Privy Council’s caution in
Ditcher v Denison (1857) 11 Moo
PCC 3224 at 337 is apposite,
as follows:
“It is also a good general
rule in jurisprudence that one
who reads a legal document,
whether public or private, shall
not be prompt to ascribe, should
not without necessity or some
sound reason, impute to its
language tautology or
superfluity, and should be
rather at the outset inclined to
suppose each word intended to
have some effect, or be of some
use.”
Also the words of Lord Shaw
rendering the unanimous opinion
of the Privy Council in
Shannon Realties Ltd v Ville de
St Michel[1924] AC 185 at
192-193 PC are to the point
wherein he stated thus:
“Where the words of a statute
are clear they must, of course,
be followed; but,…where
alternative constructions are
equally open, that alternative
is to be chosen which will be
consistent with the smooth
working of the system which the
statute purports to be
regulating; and that alternative
is to be rejected which will
introduce uncertainty, friction
or confusion into the working of
the system.”
Luckily there are rules of
construction which will assist
us unravel the present stalemate
whether the notion that there is
an apparent removal of any
discretion given to the court
under Article 14 (7) by Article
12 (1) both of the 1992
Constitution, is correct, as
contended by counsel for the
applicant.
The first rule of construction
for our consideration is that
which states in Latin that
generalia specialibus non
deroganti.e.general things do
not derogate from specific
things.
The import of this rule is
highlighted in the case of
Pretty v Solly (1859) 26 Beav
606 at 610 wherein Romily
MR said:
“The rule is that where there
is a particular enactment, and a
general enactment in the same
statute and the latter taken in
its most comprehensive sense
would override the former, the
particular enactment must be
operative and the general
enactment must be taken to
affect only the other parts of
the statute to which it may
properly apply. Again whenever
two parts of a statute are
contradictory, the court
endeavours to give distinct
interpretation to each of them,
looking at the context.”
By this rule where a general
intention is expressed, and the
act expresses also a particular
intention incompatible with the
general intention, the
particular intention is to be
considered in the nature of an
exception. See Churchill v
Crease (1828) 5 Bing 177 at 180
per Best C.J. quoted with
approval in this court’s
decision in FEDYAG V Public
Universities of Ghana (2010)
SCGLR 265 at 278 SC.
Undoubtedly, Article 12 (1) of
the 1992 Constitution is clear
in its general requirement that
the fundamental human rights and
freedoms enshrined in the
chapter be respected and upheld
by the three arms of government
as well as all other organs of
government and its agenciesand
where applicable, by all natural
and legal persons in Ghana. The
requirement does not end there.
They shall be enforceable by the
courts as provided for in
this Constitution.[Underlined
for emphasis]. The Article 14
(7) of the 1992 Constitution for
its part employs the use of
certain words that denote the
intention of the framers. The
employment of such terms as
‘may’ in contradistinction from
‘shall’ denotes what the
intention is.
Significantly, Article 12 (1)
mandates the courts to enforce
the rights in the manner
provided for in the
constitution. In any case,
this court has over the years
adopted the purposive and
literal approach in the
interpretation of the
constitution instead of the
purely mechanical or literal
approach that pays no heed to
the legislative purpose or
intent. This approach to the
interpretation of our
Constitution enables a holistic
consideration of the document
which is sui generis, as a
whole, rather than piecemeal. In
National Media Commission v
Attorney General [2000] SCGLR 1,
Acquah JSC, (as he then
was), underscored this position
wherein he succinctly stated at
page 11 of the report as
follows:
“Accordingly, in interpreting
the Constitution, care must be
taken to ensure that all the
provisions work together as
parts of a functioning whole.
The parts must fit together
logically to form rational,
internally consistent framework.
And because the framework has a
purpose, the parts are also to
work dynamically, each
contributing something towards
accomplishing the intended
goal.”
What then is the essence of
Article 14 (7) of the 1992
Constitution? It does appear to
me upon reading the article
under reference a desire to put
in place a measure of
compensation to be paid to
persons who have suffered the
humiliation of being
incarcerated under our criminal
justice system without just
cause only to be later
pronounced innocent and
acquitted by our courts. The
words used in the article do not
render the compensation
automatic as counsel for the
applicant appears to understand
it. By the employment of ‘may’
in the article it seem to me
that the intendment is obviously
to grant the courts discretion
or some permission in the
determination of who qualifies
for a grant of compensation and
who does not. I come to this
view mindful that under the
Interpretation Act, Act 792 of
2009 by its section 42, it is
stipulated that the expression
‘may’ in any enactment shall be
construed as permissive and
empowering whereas the
expression ‘shall’ shall be
construed as imperative and
mandatory. This view is further
strengthened by the fact that
where a court other than the
Supreme Court certifies that a
person acquitted ought to be
paid compensation, the Supreme
Court is obliged to examine all
the facts and the certificate of
the court below and award such
compensation as it deems fit or
appropriate. Even in this, the
Supreme is obliged to exercise
discretion as to what is
appropriate. It is not a fait
accompli or automatic. The award
is not intended to be a
capricious award based on
guesswork but one informed by
the circumstances of the
totality of events leading to
the acquittal on appeal.
The article under reference also
envisages that the Supreme Court
sets out guidelines to courts
below in fashioning out
appropriate instances for
complying with the article. In
these days of economic
uncertainties and crunches it
would be suicidal to resort to
the unfettered interpretation
advocated by the appellant with
its dire consequences and
without due regard for the true
purpose of the provision.
Aharon Barak, former President
of the Supreme Court of Israel,
stated in his book Purposive
Interpretation in Law (Princeton
Univerity Press, 2005) Chapter
15, under constitutional
Interpretation, and quoted
with approval by Wood, CJ
in Brown v A/G (Audit Service
Case) (2010) SCGLR 183 @ 207,
the learned author writes:
“A constitution is a legal
text that grounds a legal norm.
As such, it should be
interpreted like any other legal
text. However, a constitution
sits at the top of the normative
pyramid. It shapes the character
of society and aspirations
throughout history. It
establishes a nation’s basic
political points of view. It
lays the foundation for social
values, setting goals,
obligations, and trends. It is
designed to guide human behavior
over an extended period of time,
establishing the framework for
enacting legislation and
managing the national
government.
It reflects the events of the
past, lays foundation for the
present, and shapes the future.
It is at once philosophy,
politics, society and law. The
unique characteristics of a
constitution warrant a special
interpretive approach to its
interpretation.”
Against the background of the
above considerations, my answer
to the first part of the
firstissue posed, that the award
of compensation based upon
Article 14 (7) of the 1992
Constitution is not hedged with
any antecedent conditions other
than the simple acquittal of an
Applicant, is inconsistent with
and contrary to the purpose of
the article in question. The
true meaning ascribed and
emergent from the article is for
an appropriate court to satisfy
itself of the merit for
compensation. The recommending
court should satisfy itself that
the person, acquitted on appeal,
has served a part or the whole
sentence imposed by a court. The
court should be satisfied that
the circumstances of the case
warrant that the person, so
acquitted, be paid compensation.
The certifying court must attach
all relevant records of the
facts and any relevant
information to enable the
ultimate court make an informed
opinion on compensation, if any.
The second segment of the first
issue is that which suggests
that the essence of such
compensation arose the moment
his client was arrested and
detained on inadequate or
non-existent grounds. Appellant
counsel has not provided any
basis for his conclusion that
his client was arrested and
detained on inadequate or
non-existent grounds. I have
perused the record of appeal
before me and find nothing that
throws any light on what
prompted the appellant’s arrest,
how he was arrested, what
transpired upon his arrest, what
statements he gave - either at
the investigation stage or upon
his charge, and what transpired
thereafter. Everything is left
for this court to exercise our
guesses, yet this application is
seeking the payment of
compensation to an appellant who
complains about inadequacies of
the criminal justice system
without demonstrating what the
inadequacies are. As it stands I
do not find any merit in the
first issue raised for
determination.
CONSIDERATION OF GROUND TWO
The second issue posed by the
appellant is that the “Failure
by the appellate court to
appreciate that the fundamental
abuse of the rights of the
Applicant took place at the very
moment of his arrest and
detention by the Police at Ada
without cause, and that all
other processes, whether
‘proper’ or not, were nugatory.”
In my consideration of this
relief I must point out as did
Acquah, JSC (as he then
was) in National Media
Commission vs Attorney General
[2000] SCGLR 1, (supra)
that“in interpreting the
Constitution, care must be taken
to ensure that all the
provisions work together as
parts of a functioning whole.
The parts must fit together
logically to form rational,
internally consistent framework.
And because the framework has a
purpose, the parts are also to
work dynamically, each
contributing something towards
accomplishing the intended
goal.”
In construing Articles 14 (7)
and 12 (1) of the constitution
sight must not be lost of
article 12 (2) in particular to
the effect that the fundamental
human rights and freedoms
contained in the chapter five
are made subject to respect for
the rights and freedoms of
others and for the public
interest. State institutions
entrusted with the
responsibility for law and order
must be given such liberty
within the law to safeguard the
public interest and respect for
other peoples’ rights. As long
as the appropriate institutions
are guided by the law they are
at liberty to function to the
fullest to safeguard individual
liberties. Should they go beyond
their powers they are amenable
for redress through such
requirements as for
compensation.
I agree with the learned authors
De-Smith, Woolf and Jowell,
in their book, Judicial
Review of Administrative Action,
Fifth Edition -19-008 at Page
758-761, writing on what
should be considered in
determining an alleged failure
of a public body or institution
to act in accordance with public
law principles in administrative
law, that the real question in
such situations in our modern
times, is whether a system of
remedies can be complete without
the provision of rights to
compensation and restitution to
people harmed by ultra vires
acts or omission of public
bodies. If compensation is to be
provided for some losses caused
by such action, the question
arises as to how best this can
be achieved. I think that we
cannot escape considering issues
such as the lawful scope of a
public body’s discretion. It
will also not be expedient to
impose a duty of care which will
be inconsistent with, or fetter
a statutory duty. This is so
because where a statute confers
discretion on a public body as
to the extent to which and the
methods by which, a statutory
duty is to be performed, only if
the decision complained of is
outside the ambit of the lawful
discretion, may a duty of care
be imposed.
Counsel for the Appellant has
quoted for our consideration the
Criminal Justice Act (1988)
which provides for compensation
for miscarriage of justice as
follows:
“133 (1) Subject to subsection
(2) below, when a person has
been convicted of a criminal
offence and when subsequently
his conviction has been reversed
or he has been pardoned on the
ground that a new or newly
discovered fact shows beyond
reasonable doubt that there has
been a miscarriage of justice,
the Secretary of State shall pay
compensation for the miscarriage
of justice to the person who has
suffered punishment as a result
of such conviction….
(2) No payment of compensation
under this section shall be made
unless an application has been
made to the Secretary of State.”
The only similarity between the
above quoted section 133 of the
Criminal Justice Act of 1988 and
Article 14 (7) of the 1992
constitution is that they both
relate to the payment of
compensation resulting from a
miscarriage of justice. They
however diverge firstly, on the
requirements to be met by an
applicant. They also differ as
to the duty imposed upon the
individual or the implementing
body. In the case of the former,
the Secretary of State is
mandated to pay the compensation
whereas in the latter, the
courts of Ghana have discretion
in determining whether the
applicant is eligible for
compensation.
Appellant counsel also cited the
Sekondi High Court decision in
Appiah vs Mensah & Ors (1978)
GLR 342 as providing the
reasons for the award of
damages. A close reading of the
holding (3) of the above
decision does not state a
blanket requirement that
whenever a person is arrested
and subsequently released, the
person is automatically entitled
to compensation. The decision
stresses that “no one should be
arrested unless the particular
circumstances justified the
arrest.”
It is thus in instances of the
arrest being without
justification that the award
would be granted by the courts
for damages for trespass.
In answer to the second issue it
is appropriate to satisfy
whether the detention was for
cause or not in the first place.
Just as I begun to try to
resolve this issue of factual
lapses in the appeal record
pertaining to what role, if any,
the appellant played in the
events under consideration, my
attention was drawn to the
reported decision of this court
in Sabbah v The Republic
(2009) SCGLR 728, which sets
out clearly that the deceased
died of injuries inflicted on
him by the appellant therein,
Matthew Kwame Sabbah. The
appellant herein Dodzie Sabbah
was never mentioned by any eye
witness as being present during
the scuffle between his
convicted brother and the
prosecution witnesses. The fact
narrative in the above cited
decision counters any
speculation attributing any role
played by the appellant herein
in the unfortunate and gruesome
attacks resulting in the
decapitation of the deceased
that fateful 21st
January 1993. In the light of
the above referred decision and
having just been privy to the
draft of my revered Chief
Justice Wood’s opinion
especially, on this second
count, I associate myself with
her analysis and conclusion to
award a global sum. Considering
the evidence and the
circumstances of the case as a
whole available to this court, a
lump sum as was stated by the
President of the court would be
appropriate under the
circumstances.
(SGD) J. B.
AKAMBA
(JUSTICE
OF THE SUPREME COURT)
COUNSEL
AHUMAH OCANSEY ESQ. FOR THE
APPELLANT.
MARINA A. APPIAH OPARE MRS.
ESQ. (PRINCIPAL STATE ATTORNEY)
FOR THE RESPONDENT
Fay v. State, 62 Ohio
Misc. 2d 640, 610 N.E.2d
622 (Ct. Cl. 1988)
An Ohio court of claims
held that a claimant who
qualified as a
wrongfully imprisoned
individual was entitled
to compensation, lost
income, and attorney's
fees. The plaintiff's
conviction for
aggravated murder and
sentence of life
imprisonment were
reversed after new
evidence led to other
suspects who had
committed the crime. The
court found the
plaintiff to qualify as
a wrongfully imprisoned
person and awarded him,
pursuant to the
statutory formula, a
total sum of almost
$130,000.
Kotler v. State, 255
A.D.2d 429, 680 N.Y.S.2d
586 (2d Dep't 1998)
A New York appeals court
affirmed an order
granting damages to a
wrongfully imprisoned
claimant pursuant to
N.Y. Ct. Cl. Act § 8-b.
The court below had
awarded the claimant the
sum of $1.51 million,
which the State
appealed, and the
claimant cross-appealed
because the award failed
to include future lost
earnings and limited his
past lost earnings. The
claimant had been
incarcerated for more
than 10 years as a
result of a wrongful
conviction for two
counts of rape in the
first degree. Based on
the results of DNA
testing, his conviction
was vacated, and he
brought this action for
wrongful imprisonment
under the statute. The
State had contended that
the DNA sample was
contaminated but the
court below rejected
that contention and
determined that the
claimant met his burden
of proving his innocence
by clear and convincing
evidence. Finding no
error in the award of
damages, the court
affirmed.
Dillard v. State of
Ill., 31 Ill. Ct. Cl.
424, 1976 WL 19422 (Ill.
Ct. Cl. 1976)
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