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C
Constitutional law - 1992
Constitution - article 14 (7) -
Jurisdiction - Whether 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
- Whether 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; - Whether the Supreme
Court, may order compensation to
be paid to the person acquitted.
HEADNOTES
The case against appellant was
that on or about 12th November,
2003, while teaching
The background to the matter
herein may be set out shortly as
follows. The applicant was
convicted on a charge of
defilement by the High Court on
September 05, 2005. His appeal
to the Court of Appeal was
unsuccessful but a further
appeal to this court was allowed
in an unreported judgment dated
January 26, 2017, a copy of
which has been exhibited to the
proceedings herein as “A”.
Following his acquittal, the
applicant has applied to us
under article 14(7) of the
Constitution and a related
provision contained in article
14 (5) of the Constitution for
compensation. The substance of
the complaint made under article
14 (5) is that as the conviction
was founded upon his arrest on
November 14, 2003 and he
remained in custody from that
date until he was acquitted and
discharged by the Supreme Court,
the period of his confinement
before the trial process be
taken into account in
determining the appropriate
compensation to which he is
entitled. Article 14 (5) of the
Constitution
HELD :-For policy reasons, and in order to
minimize the floodgate effect
and also protect the public
purse, I would affirm the
position adopted by my brothers
in the Awuni case and advocate a
rationally reasonable sum, a
global sum, to compensate for
this manifest injustice.”
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Courts Act, Act 459
CASES REFERRED TO IN JUDGMENT
Dodzie Sabbah (no 2) v The
Republic [2015-2016] 1 SCGLR 402
Awuni v West African
Examinations Council
[2003-2004]1 SCGLR No 2)471
BOOKS REFERRED TO IN JUDGMENT
Nigerian Issues In
Wrongful Convictions”, published
by University of Cincinnati in
80 U. Cin. L. Rev. (2012)
Compensation for wrongful
conviction by Adrian Hoel
entitled
COUNSEL.
VICTOR KWESI OPEKU FOR THE
APPLICANT.
VICTORIA ASIEDUWAH, SENIOR
STATE ATTORNEY FOR THE
RESPONDENT.
GBADEGBE, JSC:-
We have before us in the
exercise of our jurisdiction
under article 14 (7) of the
Constitution a claim by the
applicant herein for
compensation. Article 14(7)
provides:
“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 background to the
matter herein may be set out
shortly as follows. The
applicant was convicted on a
charge of defilement by the High
Court on September 05, 2005. His
appeal to the Court of Appeal
was unsuccessful but a further
appeal to this court was allowed
in an unreported judgment dated
January 26, 2017, a copy of
which has been exhibited to the
proceedings herein as “A”.
Following his acquittal, the
applicant has applied to us
under article 14(7) of the
Constitution and a related
provision contained in article
14 (5) of the Constitution for
compensation. The substance of
the complaint made under article
14 (5) is that as the conviction
was founded upon his arrest on
November 14, 2003 and he
remained in custody from that
date until he was acquitted and
discharged by the Supreme Court,
the period of his confinement
before the trial process be
taken into account in
determining the appropriate
compensation to which he is
entitled. Article 14 (5) of the
Constitution provides:
“A person who is
unlawfully arrested, restricted
or detained by any other person
shall be entitled to
compensation rom that other
person.”
Our understanding of the
claimant’s prayer to the court
is that as his arrest and
detention before his trial was
at the instance of the Republic,
the period commencing from
November 14, 2003 to the date of
his release on January 26, 2017
be used in determining the
length of his confinement for
the purpose of computing his
entitlement. Although article
14(7) utilizes the words “… a
person who has served the whole
or part of his sentence is
acquitted on appeal……….” before
conferring the right to
compensation on persons who come
within that category, a
detention arising from an arrest
for a crime though strictly
speaking not a sentence, it is
interrelated with the criminal
process which was initiated by
the Republic and therefore may
in appropriate cases be taken
into account in determining the
period conviction of
confinement suffered by an
acquitted person since it is
substantially, a violation of
article 14(1) of the
Constitution by which it is
provided:
“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.”
The is approach converges
with the definition of Daniel
Ehighaluqa in his Essay
“Nigerian Issues In Wrongful
Convictions”, published by
University of Cincinnati in 80
U. Cin. L. Rev. (2012) wherein
he stated as follows:
“Wrongful conviction in
this sense encompasses the whole
gamut of miscarriages of justice
beginning when an accused person
is arrested, interrogated, up
through the court
proceedings-including the
appeal, sentencing, execution
and clemency stages”.
The scope and full effect
of article 14 (5) and (7) of the
Constitution was considered and
pronounced upon by the Supreme
Court in the case of Dodzie
Sabbah (no 2) v The Republic
[2015-2016] 1 SCGLR 402 in which
the nature of the power
conferred on the court and the
factors that may guide it in the
award of compensation were spelt
out. The effect of the said
decision which is binding on us
is that the award of
compensation is not automatic
upon an acquittal on appeal but
is discretionary. Again, the
court unanimously came to the
view that the nature of
compensation that may be awarded
to a person under article 14(7)
is in its nature general damages
except where in a particular
case, the victim of wrongful
conviction satisfies the court
that beyond the invasion of his
right to freedom of movement
enshrined in article 14(1), he
has suffered damages that
require to be awarded
specially, being in their nature
damages in fact such as
pecuniary damage or loss subject
to the applicant discharging the
burden which he assumes in the
matter. Where the applicant is
unable to satisfy the court on
his entitlement to an award
beyond general damages, a modest
and reasonable global sum of
money would be an adequate
recompense. Although the learned
justices of the Supreme Court in
the Dodzie Sabbah case (supra)
delivered plurality judgments,
each such judgment emphasised
the discretionary nature of the
right to compensation and the
relevant factors to be taken
into account by the court in
making an award under article
14(7) and the related provision
contained in article 14 (5), we
wish to commend the painstaking
effort of the learned justices
of the Court. We wish to say
that but for time constraints,
we would have referred to the
various judgments by way of
acknowledgement of the
remarkable industry that the
learned justices exhibited in
providing us with a clear and
authoritative pronouncement on
the scope of the provisions of
the Constitution on which this
case turns. But as it is,
reference is made only to the
lead judgment of the learned
Chief Justice, Wood JSC (as she
then was) at page 433 wherein
she delivered herself in the
following words:
“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 the 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 as a result of the
incarceration.”
Applying the principles
expounded in the said judgment
to the claim before us in these
proceedings, we are of the view
that the applicant has made a
case out for the exercise of a
discretion in his favor
regarding his entitlement to
compensation. In our opinion,
the new evidence led on appeal
with leave of the Supreme Court
was decisive in compelling the
learned justices to the view
that the claimant had nothing to
do with the act that was alleged
to have resulted in the
pregnancy of the victim of the
defilement. A reasonable
inference that can be made from
the evidence introduced on
appeal to the Supreme Court is
that the claimant is innocent of
the offence with which he was
charged. This concession is a
clear indication that the claim
has been brought within the
statutory remit contained in
section 31 of the Courts Act,
Act 459 for allowing appeals in
criminal and in particular
that the conviction of the
claimant was an instance in
which the ends of justice were
not well served. It being so,
the matter before us is a fit
one in which we are entitled
under article 14(5) and (7) to
make a recompense to the
applicant. In our considered
view, the applicant who from the
date of his arrest on November
14, 2003 to the date of his
release in January, 2017 was
deprived of his freedom of
movement or in detention for a
period of more than 13 years. As
indicated elsewhere in the
course of this judgment, the
claimant’s entitlement to
compensation is derived
primarily from article 14(5) and
(7) of the Constitution.
The question which then
emerges is what is the quantum
of compensation that may be
awarded in his favor? In
describing the consequences of
the wrongful conviction and
subsequent imprisonment on the
applicant, we wish to refer to
an article by Adrian Hoel
entitled “Compensation for
wrongful conviction” published
by the Australian Institute of
Criminology dated May 2008 in
which the following description
was made of victims of wrongful
conviction:
“Wrongful convicted people
may experience psychiatric and
emotional effects from the
conviction and subsequent
imprisonment. They undergo
enduring personality changes
similar to that experienced by
people suffering a catastrophic
experience. They often exhibit
serious psychiatric morbidity
and display symptoms of
disorders including
post-traumatic stress disorder.
Wrongfully convicted
people may also suffer ongoing
emotional effects from the
conviction and the disengagement
from society that it brings.
Fear of physical and or sexual
assault may cause some people to
develop physically
aggressive/intimidating
character traits as a coping
mechanism. They often exhibit
feelings of bitterness, loss,
threat, paranoia and
hopelessness. Ironically, the
accelerated pace of release that
the discovery of a wrongful
conviction will normally herald
can have adverse effects.
The process of being
inducted into ‘total
institutions’ such as a prison
involves stripping away the
prisoner’s former identity. Anew
identity is forced upon them by
the institution and or other
prisoners. This new identity may
simply be ‘a prisoner’ or ‘an
offender’ but also may extend to
specific identities such as ‘a
rapist’ or ‘a murderer”
We are of the opinion as
indeed any reasonable person
would that wrongfully convicted
persons suffer loss of dignity
arising from the conviction and
subsequent imprisonment and
require some form of solatium as
provided in the provisions of
the Constitution with which we
are concerned in these
proceedings. The applicant has
in an attempt to satisfy us on
the appropriate damages to be
awarded in his favor filed a
process dated August 22, 2017
described as “Further Affidavit
Evidence and Variation in
Respect of Compensation Claim
Pursuant to leave of The Court”
in which he claimed a total
amount of 7,335, 725.70
comprising various heads of
damages that were set out in
paragraph 26 as follows:
GH₵
(1)
Average lost salary for 13
years -
226,525.70
(2)
Part-time teaching wages for 13
years -
78, 000.00
(3)
Extra Classes wages for 13
years -
31, 200.00
(4)
Compensation for lost business
investment
over 13
years
- 2,000.000.00
(5)
Loss of Opportunity to attain
degree in Business
Administration
- 2,000.000.00
(6)
Loss of Social business and
lifetime opportunities -
2,000,000.00
(7)
Mental and Psychological
anguish
- 1,000,000.00
In the course of the proceedings
before us in this matter,
learned Principal State Attorney
for the Republic-Respondent
informed the court that the
applicant had been reinstated
into office, an indication which
was concurred in by learned
counsel for the applicant. In
our opinion the said unequivocal
indication by the parties has
the effect of their having
reached an understanding or
agreement in regard to the
applicant’s prayer contained in
relief (c) of his further
affidavit by which he sought ‘An
order directed at the Ghana
education Service to reinstate
or reengage me with my salary
arrears over the 13 years with
various promotions and increment
benefits’. That agreement has
the effect of superseding the
demand made on us to determine
the said claim and precludes us
from proceeding to make any
determination of his entitlement
thereto. Accordingly, we are
without jurisdiction to
determine the said claim.
The applicant has regard to the other
heads of damages numbered as
2-6, which in our view belong to
the category of special damages,
exhibited an unfortunate
misconception of the nature of
compensation to which he is
entitled by virtue of article
14(5) and (7) of the
Constitution. Although as said
by the Supreme Court in the
Dodzi Sarbah case (supra) and
reiterated in this delivery, an
applicant may be awarded damages
beyond that which the law
imputes from the invasion of his
constitutional rights, to
succeed in such a claim the
applicant does not satisfy the
court merely by listing figures
against alleged heads of damage
and by a simple process of
arithmetical computation invite
the court to make an accession
thereto. A claim for special
damages is an allegation that
the claimant has suffered
particular loss of income which
having actually been suffered is
capable of computation and
relates to income that he would
have earned but for the tort
which is the cause of action.
In asserting his claim to such
damages, an applicant is not
entitled to base his claim on
income which he could have
earned hence the insistence by
courts that special damages be
proved strictly. As the
applicant has not been able to
satisfy the evidential burden
relating to the said heads of
damage, it is difficult to
accept them as appropriate heads
of damage arising from the
wrongful conviction. The
applicant’s claim therefore in
relation to reliefs (2-6) are
hereby dismissed.
Regarding the claim numbered as relief
(7) for mental and psychological
anguish, the applicant has not
made any effort to explain that
he has actually suffered any
mental or psychological illness
consequent upon the conviction
such as to entitle him to the
huge sum of money claimed in
relation to it. From the
circumstances of the case, we
are of the view that the
applicant must only have
suffered lost emotions which can
be adequately compensated by
employing the model which was
applied by this Court earlier on
in the Dodzi Sarbah case.
Indeed, throughout his
appearance before us, the
applicant impressed us as a
healthy looking young man who
has braved the prison
environment with a little or no
impact upon him. The applicant’s
claim contained in relief (7) is
also dismissed.
We are now left with the damages which
the law imputes from the
invasion of the applicant’s
constitutional right. In the
Dodzie Sabbah case (supra) which
also concerned a claim for
wrongful conviction under
article 14(7) of the
Constitution, the Supreme Court
after a careful consideration of
the amount of compensation to be
awarded to the victim of a
wrongful murder conviction the
court affirmed its approach in a
previous case entitled Awuni
v West African
Examinations Council
[2003-2004]1 SCGLR No 2)471 and
advocated the award of what it
considered to be a “rationally
reasonable sum, a global
sum...." The learned Chief
Justice, Wood JSC (as she then
was) preceded the award of
compensation with the following
words:
“For policy reasons, and in order to
minimize the floodgate effect
and also protect the public
purse, I would affirm the
position adopted by my brothers
in the Awuni case and advocate a
rationally reasonable sum, a
global sum, to compensate for
this manifest injustice.”
Utilizing the said approach, the
Supreme Court awarded to the
applicant, whose appeal from a
conviction for murder and a
sentence of death it had
allowed, a sum of GH₵35, 000.00.
The said award was made
notwithstanding the fact that
the learned justices of the
Supreme Court thought that the
prosecution was oppressive and
unjustified, and concerned a
graver offence and a more
serious punishment than that
before us in these proceedings.
Taking into account the fact
that the value of the cedi has
suffered a slump since the date
of the said award, we propose to
utilize the multiplier of GH₵3,180.00
in the Dodzie Sabbah case
(supra), for each year that the
applicant herein was in unlawful
custody. By a simple
arithmetical computation, the
applicant is awarded the sum of
GH₵3,180.00 x 13 which comes to
GH₵41,340.00, a figure which we
round up to GH₵45, 000. 00.
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
VICTOR KWESI OPEKU FOR THE
APPLICANT.
VICTORIA ASIEDUWAH, SENIOR STATE
ATTORNEY FOR THE RESPONDENT. |
