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E

MRS J. BAMFORD-ADDO, J.S.C.

The Appellants herein are in effect praying this court for a grant to them of the right of Appeal to enable them to appeal their conviction and sentence of Death for Robbery Contrary to Section 149 of the Criminal Code 1960 (Act 29).

They were tried and convicted by the Ashanti Regional Public Tribunal Kumasi on the 4th March 1991 but failed to appeal to the National Appeal Tribunal until after the 1992 Constitution. On January 12th 1998 they appealed to the Court of Appeal which dismissed their appeal for lack of jurisdiction relying on the Supreme Court case of The People v. Sarpong and others No. 2/93 dated 28/6/93 S.C. unreported.

Under Section 7 (3) of the Transitional Provisions of the 1992 Constitution cases partly heard before the National Tribunal shall be continued and completed before that Tribunal after which the Tribunal shall cease to exist either on completion of the hearing or within six months after the coming into force of 1992 Constitution which ever is earlier. In this case there was no pending case before the National Public Tribunal as the Appellants failed to appeal, until the Tribunal ceased to exist.

They have now applied to us to grant them a right of Appeal but since the right of appeal is a statutory right given by legislation this court has no power to grant their request and their application is therefore dismissed in respect of the request for a right of Appeal.

There is no doubt that the Regional Tribunal has jurisdiction to try the offence of Robbery see S.4(c) of PNDCL 78. However we have considered the legality of the sentence of Death imposed on Appellants. Under Section 16(1) of PNDCL 78

“16 (1) Subject to (7) of this section the death penalty may be imposed by a Public Tribunal for such offences as may be specified in writing by the council and in respect of cases where the Tribunal is satisfied that very grave circumstances meriting such a penalty have been revealed.”

Section 16(5) also provides that:

“S. 16(5) where a Public Tribunal determines that an offence triable under this law is subject to specified penalties under a pre-existing law at the time of its commission the Tribunal may in its discretion apply such penalties in appropriate cases in so far as such application is consistent with the terms, effect and purposes of this law.”

In this case the trial Tribunal should have specified the reasons why the Appellants merited the death sentence rather than the sentence applicable to Robbery under Section 149 of the Criminal substitute a fixed sentence of 15 years imprisonment with Hard Labour on Appellants. Accordingly in place of the Death sentence the Appellants are sentenced to 15 years imprisonment with Hard Labour with effect from the date of their original conviction.

HAYFRON-BENJAMIN, J.S.C.:

I agree.

ADJABENG, J.S.C.:

I agree.

MS. AKUFFO, J.S.C.:

I also agree.  

ATUGUBA, J.S.C.:

The applicants apply to this Court for what would seem to be an extension of time within which to appeal against their conviction and sentence for robbery by the erstwhile National Public Tribunal, dated the 4th day of March 1991. There is no discoverable legal provision which vests this court with jurisdiction to entertain any such application. In REPBULIC VS. ADU-BOAHEN AND PRATT, Reference No. 1193 dated 28 June 1993 unreported and PEOPLE VS. SARPONG SUBNOM. REPUBLIC VS. NATIONAL PUBLIC TRIBUNAL; EX PARTE OFFICE OF THE SPECIAL PUBLIC PROSECUTOR, Reference No. 2193, 28 June 1993 unreported this court had to construe the provision of section 7 of the transitional provisions of the  constitution which are the relevant provisions relating to this case. The section provided as follows:

“7(1)  All cases partly heard before any of the following Public Tribunals immediately before the coming into force of this Constitution, may be continued and completed before that public tribunal-

a.     the National Public Tribunal;

X              X            X

(2)     X                X           X

(3)  The National Public Tribunal shall cease to exist upon completion of the partly heard cases referred to in subsection (1) of this section, or within six months after the coming into force of this Constitution, whichever is earlier.

(4) All cases other than those referred to in subsection (1) of this section pending before the coming into force of this Constitution, shall be transferred to such court or tribunal as the Chief Justice may direct.”

It is too obvious that from the construction placed on those provisions in those two cases, supra, and the facts of this case, the present application is not covered at all and therefore this court has no jurisdiction to entertain the same. I would however prefer the views of Ampiah J.S.C. in the Sarpong case that a review petition could properly be filed before the abolition date of the National Public Tribunal.

In a drive to ensure that no remediable injustice should be suffered by the applicants this court called for, inter alia, the record of proceedings in the case.

It is noticeable that under the National Public Tribunal Law, 198 (PNDCL 78) the offence of robbery carried either a sentence of life imprisonment or death provided there were grave circumstances warranting it. The Tribunal imposed the death sentence without disclosing the considerations that led it to that option.

But do questions as to the propriety, legality, nullity, or the like of the sentence so imposed arise? I think not. If they did I might be inclined to consider the consequences of an order of  a court that is a nullity because the same is unwarranted by any rule of  law or procedure as expounded in the celebrated case of MOSI VS. BAGYINA (1963) 1 GLR 337 S.C. and as sustained and further developed by the decisions of this court in KUMNIPAH II VS. AYIREBI 1987-88) 1 G.L.R. p. 265, S.C., ACHEAMPONG VS. THE REPUBLIC (1996-97) S.C.G.L.R. 566 S.C., AMOASI III VS. TWINTOH (1987-88) 1 G.L.R. 554, S.C,  to cite a few.

But one comes up against section 34(3) and (4) of the transitional provisions of the 1992 Constitution of Ghana which provide as follows:

“(3)  For the avoidance of doubt, it is declared that no executive, legislative or judicial action taken or purported to have been taken by the Provisional National Defense Council or the Armed Forces Revolutionary Council or a member of the Provisional National Defense Council or the Armed Forces Revolutionary Council in the name of either the Provisional National Defense Council or the Armed Forces Revolutionary Council shall be questioned in any proceedings whatsoever, and accordingly, it shall not be lawful for any court or other tribunal to make any order or grant any remedy or relief in respect of any such act.

(4)  The provisions of subsection (3) of this section shall have effect notwithstanding that any such action as is referred to in that subsection was not taken in accordance with any procedure prescribed by law.”

It is obvious that save as to numbering, these provisions are the ipsissima verba of section 15(2) and (3) of the transitional provisions of the 1979 Constitution of Ghana.

It is trite learning that these provisions have been construed exhaustively in the celebrated case of KWAKYE VS. ATTORNEY-GENERAL (1981) GLR 944 S.C. It is clear from the pronouncements of the majority in that case (Apaloo C.J., Sowah, Archer, Charles Crabbe and Adade JJ.S.C.) that this ouster clause completely ousts the jurisdiction of the courts not only in respect of judicial actions of the then A.F.R.C. but also its purported judicial actions. Their Lordships stressed the point, that a purported judicial action includes one that is irregular, unsatisfactory or even a nullity, provided it is a sort of judicial proceeding leading to a decision. It is refreshing to quote some of the excerpts set out in the headnote.

“Per Sowah J.S.C. A review of the facts in the case leads me to only one conclusion that the proceedings were intended to be judicial proceedings. Its object was to try the accused; and if found innocent to acquit or if found guilty to convict. Even though I consider the trial conviction and sentence of the plaintiff was a nullity because the trial did not match up to the criteria set up by A.F.R.C.D. 3, S.5 nonetheless, I hold the view that it was a purported trial, a fortiori, a purported judicial action. The word “purported” is not a term of art, its ordinary meaning includes “the specious appearance of being, intending, claiming…

“Per Archer J.S.C., (1) The true meaning of section 15(2) appears to be that whenever the court is satisfied that the A.F.R.C. took or purported to have taken an executive, legislative or judicial action, then that court shall not question the validity, the correctness, the fairness or the justice of that decision or action.”

“Per Charles Crabbe J.S.C. In the context, then, in which purported is used in section 15(2) of the transitional provisions to the Constitution, 1979, what is the interpretation to be given to the word?  It means simply semblance-“what looks like.”  In other words, an action, be it executive, legislative or judicial, which is not an executive action, which is not a legislative action, which is not a judicial action, but looks like or has the outward appearance of an executive, legislative or judicial action….. The issue then is not whether the trial of the plaintiff had been held in accordance with the law under which the special court sought to exercise, its jurisdiction. The issue is whether what was done looks like or has the outward appearance of, a judicial action or could be considered as intended to seem, or made to appear, as a judicial action.” [e.s. throughout].

In NEW PATRIOTIC PARTY VS. ATTORNEY-GENERAL [The 31st December Case Suit No. 18/93 dated 8/3/94 Amua Sekyi J.S.C. held that Kwakye vs. Attorney-General, (supra) was wrongly decided in as much as the whole object of the transitional provisions in Section 15(1)(2) (same as section 34(3) and (4) of the transitional provisions of the 1992 Constitution) was to protect the persons concerned from actions for damages for wrongful acts during the administration of the military government.

It is however a settled rule of the construction of statues as stated per James L.J. in Ex Parte Campbell; Re Cathcart (1870) L.R.5 Ch.App. 703 at 706, that:

“Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts and the Legislature has repeated them without any alteration in a subsequent statute………. the Legislature must be taken to have used them according to the meaning which a court of competent jurisdiction has given to them.”

That being so the majority decision in Kwakye’s case is strengthened by this canon of construction.

I would further observe that the provisions of S.34(3) are primarily aimed at debarring the questioning of the acts covered by it and not the persons by whom they are committed. Kwakye’s action, for example, was not against any one such but because it sought to question the judicial or purported judicial act of the A.F.R.C special courts, it was disallowed.

In BRITISH AIRWAYS VS. ATTORNEY-GENERAL (1996-97) S.C.G.L.R. 547 at p. 565 I said: “ In a compelling case, a court may take up judicial arms against an obvious injustice.” I agree that this case is a compelling one but I cannot see any judicial arm which I can take up to rectify the situation. The arms a court may take up against an obvious injustice must be judicial, not otherwise.

It seems the nearest to a judicial arm which can be taken up in case like this, is what my judicial predecessors sometimes did, namely an appeal for executive redress, but in view of the majority decision I need not resort to that.

It is for these reasons that, though not lacking in judicial benevolence, I felt constrained to chart a solitary path. I do not think that, even barring the transitional provisions, this court can exercise its supervisory jurisdiction over a defunct tribunal. See the views of Amua Sekyi J.S.C. in Kumnipah II vs. Ayirebi, supra.

I would therefore dismiss this application.

COUNSEL

The Attorney-General absent.

Applicants present in person.

I.W.