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RULING
ACQUAH, J.S.C.:
This is a reference from the
Circuit Court, Accra, for the
determination of the following
issues:
1. Whether or not the
deconfiscation order directed by
the President of the 4th
Republic through the Confiscated
Assets Committee in respect of
the said house is in
contravention of the letter and
spirit of the 1992 Constitution
particularly Article 35(1) and
(2) of the Transitional
Provisions of the said
Constitution.
2. Whether or not section 3 of
PNDCL 325 is in contravention of
Article 35(2) of that
transitional provisions of the
1992 Constitution.
Let us point out here that the
provisions of the Transitional
Provisions are properly referred
to as ‘sections and not
articles.’
The background to the reference
was that one Group Captain P.K.
Agyekum acquired by way of a
lease from the State Housing
Corporation in 1960, estate
house No. 1153 Awudome Estate,
Accra. The estate house was
later confiscated by the
erstwhile Armed Forces
Revolutionary Council, and
allocated in January 1990 to
the Office of the State Security
and Foreign Affairs for the use
of Ex WO1 Adjei Boadi. In a
letter dated 18th April, 1997
addressed to the Security Co-ordinator,
the President directed the
deconfiscation of this estate to
its former owner, Group Capt.
Rtd. P.K. Agyekum. On 23rd May
1997, another letter was written
requesting the occupant, Ex WO1
Adjei Boadi to vacate the
premises and hand over the keys
on or before the 30th June,
1997. WO1 Adjei Boadi refused to
vacate. Accordingly, Group Capt.
P.K. Agyekum took out a Writ of
Summons at the Circuit Court,
claiming against WO1 Adjei Boadi.
(a) Recovery of possession of
estate House No. 1153, Awudome
Estate, Accra.
(b) General damages for trespass
or for use and occupation.
In his defence, the WO1 Adjei
Boadi admitted the fact of the
confiscation but challenged the
deconfiscation on grounds that
same was void by virtue of the
transitional provisions. On the
bases of this challenge, the
above questions posed for this
Court’s determination, were
formulated.
Now the reference papers from
the Circuit Court included:
i. The letter of Allocation of
the Estate House to the office
of the State Security and
Foreign Affairs.
ii. The letter of deconfiscation
dated 18th April 1997, and
iii. The letter of 23rd May 1997
requesting the defendant to
vacate the house by 30th June
1997.
In his Statement of case, WO1
Adjei Boadi contended that the
deconfiscation was not in line
with or was in contravention of
section 35(1) and (2) of the
Transitional Provisions. He
states:
“It is the submission of the
defendant that the
deconfiscation is not lawful, it
being in contravention of the
provisions of the Article 35(1)
and (2) of the Transitional
Provisions to the 1992
Constitution. Subject to
subsection (2), Article 35(1)
ousts the jurisdiction of any
authority under the Constitution
to reverse the confiscation of
any property and any other
penalties imposed by or under
the authority of AFRC. It is
submitted that that the two
subsections of Article 35 must
be read together to get the
import of this provision. When
so read together it becomes
clear that the only body or
authority vested with the power
to deal with or investigate
issue related to confiscated
assets is the Commission for
Human Rights and Administrative
Justice (CHRAJ) … It is
therefore respectfully submitted
that the alleged deconfiscation
of House No. 1153 Awudome
Estate, Accra, by the President
without any reference to the
CHRAJ is unlawful”.
He thereafter referred to
section 3 and 4 of PNDCL 325 and
submitted that
“…The two provisions contravene
Article 35 of the Transitional
Provisions to the Constitution
to the extent that whilst the
PNDC is no more in existence it
does not make reference to the
role of the CHRAJ in such
matters as provided for under
the Constitution.
It is therefore submitted that
the provisions of PNDCL 325
being in contravention of the
1992 Constitution any action
taken or purported to have been
taken pursuant to that Law is
unconstitutional and therefore
unlawful”.
Group Captain Agyekum, on the
other hand in his Statement of
Case submitted:
“By section 32(1) of the
Transitional Provisions of the
1992 Constitution the house in
dispute vested in the President
who is the Chief Executive of
the State. He, representing the
Government, has the right and
authority to deconfiscate the
house on behalf of the State.
The defendant relies on section
35(1) in opposing the
application in Court. I
respectfully submit that this
section must be read in
conjunction with section 34(3)
of the Transitional Provisions
where actions taken by the PNDC
cannot be questioned in any
proceedings in any Court or
Tribunal. The plaintiff in this
case is NOT questioning the
action of the PNDC. He is asking
the Court to give effect to what
the successor the PNDC i.e. the
present Government through the
President has directed…
The CHRAJ can only assume
jurisdiction where the property
“was confiscated on the basis of
his holding a public or
political office on any other
basis”.
To Group Captain Agyekum, PNDCL
325 did not conflict with any
provision of the Constitution.
Now although PNDC is no more, a
vacuum is not created by the
Constitution in respect of
enactments like PNDCL 325
wherein PNDC is mentioned. For
section 29 of the Transitional
Provisions takes care of that.
This reference therefore seeks
an interpretation of section
35(1) and (2) of the
Transitional Provisions
vis-à-vis the Confiscated Assets
(Removal of Doubt) Law 1993,
PNDCL 325 particularly sections
3 and 4 thereof.
It is true that Article 130(2)
of the 1992 Constitution
empowers any Court to refer a
question of law to this Court,
but where that question had
already been determined by this
Court, then no reference arises,
as the Court which intends to
refer that question of law is
bound by Article 129(3) of the
1992 Constitution to follow the
decision of this Court on that
question of law. The Article
reads:
“129(3) The Supreme Court may,
while treating its own previous
decisions as normally binding,
depart from a previous decision
when it appears to it right to
do so; and all other courts
shall be bound to follow the
decisions of the Supreme Court
on question of law” (emphasis
supplied).
Now the meaning and scope of
section 35 (1) and (2) of the
Transitional Provisions of the
1992 Constitution and PNDCL 325
particularly section 4 thereof
had been the subject-matter of
SC Writ No.3/96 Commission on
Human Rights and Administrative
Justice vrs. Attorney-General,
23/6/99 reported in (1998-99)
SCGLR 871. The Commission on
Human Rights and Administrative
Justice is hereinafter referred
to as CHRAJ, and Writ No. 3/96
will also be referred to as
CHRAJ’s case.
The facts of the Chraj case were
that one Colonel C.R. Tachie
Menson (Rtd.) submitted a
complaint dated 15th August 1994
to Chraj pursuant to section
35(2) of the Transitional
Provisions of the 1992
Constitution, praying for the
restoration of his movable and
immovable properties confiscated
to the State by the AFRC Special
Court on or around, 1979. He
also prayed for the restoration
of his end of service benefits.
The complainant asserted that
from 4th June 1979 to 24th of
September 1979 when the AFRC
constituted the Government of
Ghana he continued to act as
Ghana’s Ambassador to Italy. On
12th October, 1979 however, it
was published in the state owned
newspaper that he had been
sentenced to 25 years
imprisonment and that his assets
and those of his wife had been
confiscated to the state by the
Special Court. The complainant
instructed his solicitors to
apply before the Special
Tribunal for a review of the
sentence imposed by the Special
Court claiming that he had never
been tried nor was he aware that
charges had been preferred
against him. The application for
review, it was alleged, was
never heard by the Special
Tribunal, but the complainant
was granted safe conduct back to
Ghana in 1987 by the
Co-ordinator, Revenue
Commissioner and Investigations.
Having returned to Ghana he
wrote further petitions to the
President and other state organs
challenging his conviction and
sentence and requesting the
restoration of his confiscated
assets. These petitions were not
successful. After the coming
into force of the 1992
Constitution, and the
establishment of CHRAJ he
decided to complain to CHRAJ
under section 35(2) of the
Transitional Provisions.
Accordingly, CHRAJ commenced
investigations into the
complaint but the
Attorney-General objected to
CHRAJ’s power to investigate the
complaint on the grounds that
Chraj cannot investigate
judgments and orders of a court
of competent jurisdiction such
as the AFRC Special Court, which
convicted and sentenced the
complainant.
CHRAJ therefore issued the writ
No. 3/96 to assert his right to
investigate and possibly restore
properties confiscated during
the AFRC and PNDC
administrations by Courts or
Tribunals. In that writ CHRAJ
claimed against the
Attorney-General:
(a) A declaration that section
35(2) of the Transitional
Provisions of the 1992
Constitution which empowers the
Plaintiff to restore properties
confiscated by the state applies
to and embraces all confiscation
of property made by the Armed
Forces Revolutionary Council and
the Provisional National Defence
Council under any Decree or Law
made by that Council, whether
such confiscations were made by
a Special Court or Tribunal such
as the Armed Forces
Revolutionary Council Special
Court set up under the AFRCD
(Special Courts) Decree, 1979
(AFRCD 3) as amended by the
AFRCD (Special Courts)
(Amendment) Decree, 1979 (AFRCD
19).
(b) A declaration that, even
assuming, (which is denied) that
the plaintiff has no
jurisdiction under the said
section 35(2) to entertain a
petition for the restoration of
confiscated property where the
initial confiscation was made by
a special court or other
judicial tribunal the
plaintiff’s power under section
35(2) would become exercisable
where the initial confiscation
is later confirmed by a
subsequent Decree or Laws such
as the Confiscated Assets
(Removal of Doubt) Law, 1993.
Seven issues were agreed for
determination, to writ:
1. Whether the plaintiff’s power
under section 35(2) of the
Transitional Provisions of the
1992 Constitution to restore
confiscated properties extends
to and covers confiscations made
by a Special Court or Tribunal
such as the Armed Forces
Revolutionary Council Special
Court set up under the AFRCD 3
as amended by the AFRC (Special
Courts) (Amendment) Decree 1979
(AFRCD 19).
2. Whether if the answer to
issue (1) is in the negative,
the plaintiff’s power under
section 35(2) would nevertheless
become exercisable or operative
where the initial confiscation
is later confirmed by a
subsequent Decree or Law such as
the confiscated Assets (Removal
of Doubt) Law 1993 (PNDCL 325).
3. Whether under issue (1), the
plaintiff would be entitled to
enquire into an allegation by
the petitioner that he was never
tried, convicted and sentenced
by the AFRC Special Court.
4. Whether or not the plaintiff
has jurisdiction to review any
decision of any Court, Special
Court or Tribunal established by
and under the authority of the
Armed Forces Revolutionary
Council (AFRCD) or the
Provisional National Defence
Council (PNDC) within the
meaning of section 34(3) and (4)
of the Transitional Provisions
to the 1992 Constitution.
5. Whether plaintiff can
exercise supervisory
jurisdiction over decisions of
Courts properly established or
under the authority of the AFRC
and PNDC.
6. Whether or not the plaintiff
has power under section 35(2) of
the Transitional Provisions of
the Constitution to restore
properties confiscated by AFRC
and PNDC which confiscations
were subsequently confirmed by
Decrees or Law such as
Confiscated Assets (Removal of
Doubt) Law 1993 (PNDCL 325).
7. Whether or not the plaintiff
writ and Statement of Case
disclose any cause of action
against the defendant.
Section 35 of the Transitional
Provisions read:
“35(1) Subject to subsection 2
of this section, any
confiscation of any property and
any other penalties imposed by
or under the authority of the
Armed Forces Revolutionary
Council and the Provisional
National Defence Council, shall
not be reversed by any authority
under this Constitution.
(2) Where any property or part
of any property of a person was
confiscated on the basis of his
holding a public or political
office or on any other basis,
and it is established to the
satisfaction of the Commissioner
for Human Rights and
Administrative Justice that the
property or that part was
acquired before he assumed the
public or political office, or
that it was otherwise lawfully
acquired, the property or that
part shall be returned to the
person”.
For a better appreciation of the
case of the parties in CHRAJ’s
case, it is vital to look at how
confiscation of property and
assets were affected at the
time.
Now during the AFRC and PNDC
regimes, various judicial and
quasi judicial bodies were
established by statute with
power, inter alia, to order
confiscation of assets and bank
accounts—these included:
i. The AFRC Special Courts,
established under the Armed
Forces Revolutionary Council
(Special Courts) Decree 1979,
AFRCD 3 as amended by AFRCD 19.
ii. The AFRC Special Tribunal
set up under the AFRC (Special
Tribunal and other Matters)
Decree, 1979, AFRCD 23.
iii. The Citizens Vetting
Committee established under
PNDCL 1 of 1982.
iv. The National Investigations
Committee established by virtue
of PNDCL 2.
v. The Office of Revenue
Commissioner set up under the
Revenue Commissioners Law 1984
(PNDCL 80).
vi. The State Housing
(Allocation Policy and
Implementation) Commission
established by PNDCL 83, and
vii. The Public Tribunals set up
under PNDCL 78.
Each of the above bodies had
authority to order confiscation
of assets or bank accounts
following a trial or
investigation of the affected
persons. Apart from
confiscations made by these
bodies, the AFRC and the PNDC
themselves by virtue of decrees
and or law, made other
confiscations. Thus by section 1
of the Forfeiture of Assets and
Transfer of Shares and other
Proprietory Interests (Unipress
Limited), Law, 1982, PNDCL 3,
the assets and banks accounts of
Unipress Limited were
confiscated to the State. Again
the Forfeiture of Assets (Amadu
Duri) Law, 1982 PNDCL 9 also
confiscated all the assets of
one Amadu Duri. These and
similar confiscations made by
the AFRC and PNDC themselves
were made by virtue of laws
passed to that effect, and not
as a result of trial or
investigation by any of the
seven bodies listed earlier.
The case of CHRAJ in the Writ
No.3/96 was that it had
authority under section 35(2) of
the Transitional Provisions to
deconfiscate if satisfied assets
and bank accounts confiscated
either by the AFRC and PNDC
themselves under a law or by any
of the courts/Tribunals and the
investigative bodies established
by the said regimes. Whereas the
Attorney-General contended that
CHRAJ’s authority under the said
section 35(2) was in respect of
confiscations by the AFRC and
PNDC themselves under law, and
that CHRAJ had no authority to
review and deconfiscate assets
confiscated by the AFRC and PNDC
courts/tribunals and the
investigative bodies.
Now according to CHRAJ, the
combined effect of section 35
(1) and (2) was that it has
authority to restore confiscated
properties whether by a court or
tribunal, but cannot review any
other penalties imposed by
Courts or Tribunals.
Thus at page 6 of the Written
submissions of CHRAJ, it argued:
“ … if the makers of the
Constitution intended to exclude
confiscations ordered by Courts
and Tribunals they would have
stated so expressly in the same
manner as “any other penalties”
were excluded from the ambit of
section 35(2). Section 35(2)
flows from section 35(1) and the
two cannot be construed in
isolation. The expression used
in section 35(1) is ‘any
confiscation’ without
distinction as to the means by
which the act of confiscation
arose…”
Having conceded that penalties
are excluded in section 35(2),
the next obvious question is
whether CHRAJ would have
authority to restore a
confiscated property if the
confiscation was part of the
penalty imposed by a court.
Thus Attorney-General in
paragraph 16 of his Written
submission stated:
“ The issue in our humble
submission is whether “any other
penalties” may not include a
confiscation. What is the
ordinary meaning to be assigned
to the words “confiscation”
within section 35(1).”
The Attorney-General, then in
his paragraph 17 and 18 of his
statement of case argued:
“ 17. In our submission a
penalty may be the result of a
Court Order and may involve a
confiscation. In such a case
because the confiscation is in
the nature of or part of a
judicial or quasi-judicial
penalty it cannot fall under
section 35(2). The penalties
imposed by a judicial or
quasi-judicial tribunal are so
inextricably interwoven that one
cannot separate the penalties
imposed by calling one a
forfeiture or confiscation of
property and the other an
imprisonment, fine or death
penalty. How can one determine
that the forfeiture or
confiscation was unlawful when
he cannot review the penalties
as a whole? In any case,
section 35(2) talks of the basis
of confiscation being the result
of “holding a public or
political office or on any other
basis”. In our submission the
Court or quasi-judicial bodies
established by law do not make
orders based on holding public,
political or on any other office
but they try, convict or fine,
and sentence or impose penalties
on public, political or other
office holders based on a
criminal charge or some illegal
conduct in their establishing
enactment: Thus a public,
political or other office holder
who is convicted and sentenced,
by a court or is found liable
and a penalty imposed by a
tribunal including the
confiscation of his assets
cannot fall within the meaning
of section 35(2). Section 35(2)
on its ordinary meaning will not
include penalties or
confiscations resulting from the
holding of public, political or
any other office.
18. It may be argued that the
words ‘any other basis’ include
convictions and sentences by a
Court of competent jurisdiction.
But ‘any other basis’ can only
be read ejusdem generis with
public or political office. The
ordinary meaning of the words
cannot extent to convictions
based on a charge for the
commission of a criminal offence
by a Court of competent
jurisdiction. Neither can it
extend to findings and penalties
imposed by competent judicial or
quasi-judicial tribunals. The
confiscation must be based on
the holding of a public or
political office or an office in
the nature of or incidental to a
public or political office
before section 35(2) can be
applicable. It cannot apply just
in any other case unrelated to
the holding of an office per se.
If this were not so then there
was no reason for the framers of
the Constitution to have
referred to holders of public or
political office specially.
There would also not have been
the need to have referred to the
words “or otherwise lawfully
acquired” following upon the
words ‘public or political
office’ in the last four lines
of section 35(2) above”.
Referring further to section 34
of the Transitional Provisions
the Attorney-General pointed out
that section 34(3) of the
Transitional Provisions made it
abundantly clear that judicial
or purported judicial acts of
the regimes under reference
shall not be questioned in any
proceedings whatsoever and it
shall not be lawfully for any
Court or any other tribunal to
make any order or grant any
remedy or relief in respect of
any such acts. Accordingly, the
Attorney-General contended that
the non exception of section 34
under section 35 was deliberate
in view of the language of
section 35(1). Section 35(1)
provided a complete ban on any
deconfiscations of any property
and any other penalties imposed
during the AFRC and PNDC era.
The exception it made under
section 35(2) was only in
respect of where any property or
part of any property of a person
was confiscated on the basis of
his holding a public or
political office or on any other
basis, and it is established to
the satisfaction of the
Commission that that part was
acquired before he assumed the
public office or political
office, or that it was lawfully
acquired.
On the basis of these rival
submissions, the Supreme Court
(Hayfron-Benjamin, Ampiah,
Adjabeng, Atuguba, Sophia Akuffo
JJ.S.C.) in it’s unanimous
decision read by
Hayfron-Benjamin, J.S.C. held in
respect of the issues relevant
to this case, first, that the
Commission for Human Rights and
Administrative Justice, though
in its investigative functions
had certain powers akin to those
of the regular courts and
tribunals, had no judicial power
in the performance of its
functions. Thus it had no power
to review decisions of other
courts or tribunals; nor did it
possess any supervisory powers
over such courts or tribunals.
In the words of the court at
page 883:
“…the plaintiff commission has
neither the power to review
decisions of other courts or
tribunals; nor does it possess
any supervisory power in respect
of such courts or tribunals …
for it cannot be said that the
commission has carte blanche
authority to roam the highways
and bye-laws of the legislative,
judicial and executive intents
and acts of the erstwhile AFRC,
the PNDC and the courts or
tribunals, in the exercise of
its powers of investigation in
search of cases and matters
which it may review and over
which it may exercise any
semblance of a supervisory
function or jurisdiction”.
As a follow up of the above
holding, the court then held
that the Commission was not
entitled under section 35(2) of
the Transitional Provisions of
the 1992 Constitution to review
and restore to the former
owners, where it was satisfied,
properties and assets
confiscated by the orders or
decisions of the special courts
or tribunals set up by the AFRC
and the PNDC.
The expression “or on any other
basis” in section 35(2), the
court continued, must be
constructed ejusdem generis with
the expression “on the basis of
his holding a public or
political office. “Thus
construed, the expression “or on
any other basis” meant “or on
the basis of holding any public
or political office so
designated by law or akin to
such office with similar powers
and responsibilities.
At pages 891 to 892 of the
report, the court said:
“In our respectful opinion, it
matters not whether such public
or political office is held
substantially or honorary. The
important thing, is proof that
the confiscated assets or any
part thereof was acquired before
the assumption of that office.
The classes of persons thus
affected are limited to former
public and political
functionaries. It is not open to
the generality of the citizenry
to avail themselves of this
subsection. Construing section
35 of the Transitional
Provisions as a whole, section
35(1) constitutes a clamp tight
barrier against the reversal by
any, authority under the
Constitution of ‘any
confiscation of any property and
any other penalties imposed’
while subsection (2) therefore
merely creates a “chink” wherein
a limited class of
persons—public or political
officers—may obtain redress… The
plaintiff Commission contends
that a combination of its powers
under section 35(2) and what it
considers to be the
retrospective effect of PNDCL
325… give it the power to review
ALL confiscated property and if
it is satisfied, restore the
properties and assets to their
former owners. In our respectful
opinion, such a proposition
surely has within it an
uncertain ambit, which would
permit the plaintiff Commission
to ferret about the archives of
the past military regimes in
order to fulfil the functions of
its office. Such power will also
be speculative and extend the
limited discretionary power into
areas of constitutional
conflicts.”
As to who has power to restore
confiscated property not covered
by section 35(2) of the
Transitional Provisions, the
Court held that in terms of
section 4 of PNDCL 325 and
section 29(3) Transitional
Provision, it was the President
who had such power.
As the Court put it at page 880:
“It must be mentioned in
passing, that PNDCL 321, which
came into force on 23 April
1993, a date which postdates the
coming into force of the 1992
Transitional Provisions, is a
valid piece of legislation and
is currently of full force and
effect”.
Then at page 892, the Court went
on:
“The defendant urges this court
to accept his several
submissions in opposition to the
plaintiff’s contention that is
has power to do the things it
claims in its writ. The
defendant submits further that:
“(We) cannot urge this court to
grant the plaintiff a power to
restore properties not covered
by section 35(2). We think no
such power exists. The defendant
is right. The exercise of that
power rests with the President
in terms of section 4 of PNDCL
325 and section 29(3) of the
Transitional Provisions of the
1992 Constitution.”
Now from the decision in the
CHRAJ’s case, the answers to the
two questions posed for our
consideration are quite clear.
First, the deconfiscation by the
President cannot be said to be
in contravention of Section
35(1) and (2) of the
Transitional Provisions. For as
held by the Court, CHRAJ has no
authority to deconfiscate
properties which were
confiscated by the courts or
tribunals and the investigative
bodies set up by the AFRC and
the PNDC. CHRAJ’s authority is
in respect of confiscations made
by law or decrees of the AFRC
and the PNDC. And even in
respect of these confiscations,
only a limited class of
persons—i.e. public or political
officers—may obtain redress.
Secondly, PNDCL 325 was held to
be a valid piece of legislation
of full of force and effect.
Sections 3 and 4 of this law
read:
“3. Notwithstanding the
provisions of the Confiscated
Assets Committee Decree 1979 (AFRCD
25), any confiscated assets held
by the Confiscated Assets
Committee shall be released by
the said Committee to such
person, organization or body as
the Provisional National Defence
Committee may in writing direct.
4. Notwithstanding the other
provisions of this Law or any
other law, the Provisional
Defence Counsel my in writing
release any assets confiscated
to the States to such person as
the Counsel may determine”.
Under both section 3 and 4 of
PNDCL 325, the responsibility
lies on the PNDC, now the
President under section 29(3) of
the Transitional Provisions, to
authorize the release of a
confiscated asset or property to
any person, organization or
body. Now section 2(1) of AFRCD
25 spelt out the functions of
the Confiscated Assets
Committee. One of which
functions according to section
2(1)(c) was to ensure that the
beneficiaries of confiscated
assets and properties did not
include individuals and
non-State organizations. Section
3 of PNDCL 325 seeks to amend
this limitation to enable
confiscate assets and properties
to be released to any person,
organization or body as directed
by the PNDC.
Since in both sections 3 and 4
of PNDCL 325, it is the
President who is to direct the
release, and the decision in
CHRAJ’s case upholds the
constitutionality of the
exercise of such power by the
President, it would follow by
that decision that section 3
likewise passes the text of
constitutionality.
(G .K. ACQUAH)
JUSTICE OF THE SUPREME COURT
AMPIAH J.S.C.:
I agree.
(A.K.B. AMPIAH)
JUSTICE OF THE SUPREME COURT
KPEGAH, J.S.C.:
I agree.
(F.Y. KPEGAH)
JUSTICE OF THE SUPREME COURT
ADJABENG, J.S.C.:
I agree.
(E.D.K. ADJABENG)
JUSTICE OF THE SUPREME COURT
AKUFFO, J.S.C.:
I agree.
(S.A.B. AKUFFO (MS.)
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. T.A. Nelson-Cofie for
Plaintiff
Mr. Kobina Darko Asiedu for
Defendant |
