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Courts – Public Tribunals – Jurisdiction – Plea of accused taken and case adjourned for hearing – Whether case partly heard – Whether National Public Tribunal has jurisdiction to proceed with case upon coming into force of 1992 Constitution as a partly heard case – 1992 Constitution, 1st Schedule section 7.

Courts – Jurisdiction – Objection – Nature of, – Accused expressing lack of confidence in tribunal – Statement not an objection to the jurisdiction but refusal to plead out of malice - Criminal Procedure Code 1960 (Act 30) s 171(4).

The 1992 Constitution, 1st Schedule, section 7(1) provides that all cases partly heard before the National Public Tribunal immediately before the coming into force of the constitution be continued and completed before the tribunal. Section 7(3) provided that upon completion of those partly heard cases or within six months after the coming into force of the constitution, whichever was earlier, the National Public Tribunal would cease to exist. Section 7(4) provided that all other cases pending before the National Public Tribunal immediately before the coming into force of this Constitution, be transferred to such court or tribunal as the Chief Justice might direct.

In December 1992, witness summonses were served on Professor Adu Boahen and Kwesi Pratt Jnr commanding them to appear before the Public Tribunal to testify in a case. They both refused to respond to the summons and were charged with the offence of disobedience of summons, contrary to s 25(a) of the Public Tribunal Law 1984 (PNDCL 78). When arraigned before the tribunal on 22 December 1993, they refused to plead, the first accused proclaimed that he did not accept the authority of the tribunal because it was an instrument of oppression of the opponents of the government, the PNDC. The 2nd accused alleged, inter alia, that the PNDC members had committed murders and that Ato Austin, a member of PNDC had embezzled millions of cedis but they were not prosecuted. Both accused maintained that they would not have a fair trial. The tribunal entered pleas of not guilty and the prosecution stated the facts intended to be proved.

The tribunal ruled that hearing of the case was to proceed and adjourned to the next day, 22 December 1992, for definite hearing. On the adjourned day, instead of taking evidence, the tribunal called on the prosecution to answer the complaint by the accused persons that they would not have a fair trial. The prosecution made its submission and the case was adjourned for a ruling.

On 7 January 1993 the 1992 Constitution came into force. The tribunal stated a case to the Supreme Court whether the case against the accused persons was part heard before the constitution came into force. The Assistant Special Public Prosecutor submitted in the Supreme Court that the plea of the accused having been taken and the facts presented to the tribunal the case became partly heard.

Held (1) Matters that were saved under the Transitional Provisions of the 1992 Constitution were those pending before the tribunal before 7 January 1993. Because section 7(4) excluded all other cases referred to in subsection (1) from the definition of pending cases, if the hearing of a case was commenced before the tribunal but not concluded within the six months grace period it would abate. Section 7(4) excluded such cases from those eligible for transfer upon the directions of the Chief Justice.

(2) The tribunal having adjourned the case for hearing on 22 December 1992 it could not be said that the case had been partly heard. Once hearing was yet to be commenced it could not be said by any stretch of imagination that a matter was part heard. Awoonor Renner v Thensu (1930) 1 WACA 77, In re Clagette’s Estate; Fordham v Clagett (1882) 20 Ch D 637, CFAO v Zacca [1972] 1 GLR 366, CA, Osei v Republic [1968] GLR 704, CA cited.

Per Amua-Sekyi JSC. A case is part heard when a hearing on the merits has begun, that is, when the court or judge has started to enquire into the substance of the cause or matter brought before him. In criminal matters, such steps as taking the plea of an accused person, listening to, and recording the facts alleged against him and which the prosecution intend to prove at the trial do not constitute a hearing of the complaint. The hearing begins and the case becomes partly heard only when the prosecution begins to adduce evidence to prove the charge. Before then the case can be transferred to another court or judge for hearing; but once the hearing starts this can only be done if the trial is aborted and a fresh hearing ordered.

Per Kpegah JSC. I do not think the sentiments expressed by the accused persons can be said to be plea in bar to jurisdiction so as to make an entry of a plea of not guilty for the accused persons a nullity. An objection to jurisdiction, when raised is either in relation to territorial limitation affecting the tribunal or lack of jurisdiction over the subject matter of dispute or charge (in criminal cases), or lack of jurisdiction over the parties, or non-existence of a condition precedent to the assumption of jurisdiction. The recognition or non-recognition of a court by an individual cannot be a plea in bar to jurisdiction. The sentiments expressed by the accused persons could be said to be a challenge to the sovereign authority and can properly be described as a refusal to plead out of malice as provided under section 171 (4) of the Criminal Procedure Code 1960 (Act 30).

Cases referred to:

Akainyah v Republic [1968] GLR 548, CA.

CFAO v Zacca [1972] 1 GLR 366, CA.

Fordham v Clagett, re Clagette’s Estate; (1882) 20 Ch D 637.

Kwakye v The State [1965] GLR 647, SC.

Osei v Republic [1968] GLR 704.

Re Green (1881) 51 LJ QB 44; sub nom Green v Penzance (Lord) 6 App Cas 657, 45 LT 353, 46 JP 115, 30 WR 218, HL.

Renner v Thensu (1930) 1 WACA 77.

Republic v Akainyah [1968] GLR 330.

Republic v Asafu-Adjaye (No 2) [1968] GLR 567, CA.

CASE STATED by the National Public Tribunal to the Supreme Court.

T D Brodie-Mends, with him, Ben Annan, Afram Asiedu for the respondents.

Ahlijah, Assistant Special Public Prosecutor, for the applicant.

FRANCOIS JSC. The National Public Tribunal invokes the jurisdiction of this court by way of case stated under the Supreme Court Rules (CI 13) to seek answers to questions of a constitutional nature arising from a case before it.

It must be pointed out that the enabling authority is article 130 of the constitution. CI 13 is merely the machinery of resort for a reference under the said article.

Article 130 is as follows:

“130(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in -

(a) all matters relating to the enforcement or interpretation of this Constitution; and

(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.

130(2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in

a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.”

The proceedings disclosed that the tribunal was fully aware of the enabling force of article 130, invoking the adjectival rather than the substantive law, consequently is a mere slip.

The questions posed involve the interpretation of the words “partly heard” and “pending”, as appearing in section 7 subsections (1), (3) and (4) of the First Schedule i.e. the Transitional Provisions of the 1992 Constitution. The tribunal also seeks an all-embracing pronouncement of the ambit and intendment of section 7 sub-sections (1), (2) and (4) of the said Transitional Provisions.

The case from which the application derives, relates to charges which were brought against Professor Adu Boahen and Mr Kwesi Pratt, the respondents herein, at the National Public Tribunal, under section 25 (a) of PNDCL 78.

Briefly, the facts alleged against the two respondents are that they disobeyed a summons to testify as witnesses at a criminal trial. When charged for disobeying the summons, the respondents refused to plead to the charges and pleas of “Not guilty” were entered by the tribunal on their behalf.

The jurisdiction of the tribunal has been challenged. The stated case consequently seeks a resolution of the tribunal's powers, based on the interpretation of the sections and sub-sections of the Transitional Provisions aforementioned.

For an appreciation of the issues, section 7 of the Transitional Provisions and its sub-sections (where relevant) are reproduced below.

“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;

(b) Regional Public Tribunals;

(d) Community Public Tribunals.

7(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.

7(4) All cases other than those referred to in subsection (1) of this section pending before the National Public Tribunal immediately before the coming into force of this Constitution, shall be transferred to such court or tribunal as the Chief Justice may direct.”

Since the coming into force of the constitution on 7 January 1993, the jurisdictional power of public tribunals has been seriously curtailed. Section 7 of the Transitional Provisions clearly shows that the National Public Tribunal is being allowed slowly to bleed to death with its ultimate demise to be pronounced 6 months from 7 January 1993, at the latest.

The vehicle for this translation appears in section 7(1), (3) and (4) of the Transitional Provisions.

At the commencement of the constitution i.e. on 7 January 1993, the National Public Tribunal could not commence or entertain any new case. All partly heard cases were to be completed not later than 6 months from 7 January 1993, thereafter its jurisdiction would lapse, and it would cease to exist.

Cases that were pending before this tribunal immediately before 7 January 1993 should be transferred to an appropriate court on the directions of the Chief Justice. By force of reasoning, if there were no cases before the National Public Tribunal, which were partly heard before 7 January 1993, the tribunal would be entirely divested of jurisdiction forthwith. Cases would earn the distinction of being partly heard if they were commenced before the coming into force of the constitution.

Pending matters which were saved were those pending immediately before 7 January 1993. But here there was a catch because section 7 (4) excludes all cases referred to in sub-section (1) from the definition of pending. As a result if a case had been partly heard before the tribunal and had not been concluded within the 6 months grace period it would seem to abate for no special provision had been made to save it. Moreover section 7(4) would then exclude such cases from those eligible for transfers to courts upon the Chief Justice's directions.

Turning to the definition of “partly heard” and “pending”, it must be observed that “partly heard” creates no great problem in interpretation. Hearing generally connotes a decisive step taken in the process of a trial and its adjudication, like taking evidence, which would disqualify and render improper a new tribunal’s continuation of the matter without authority to commence de novo.

This court is spared the task of discussing the definition of “hearing” further by the tribunal's own ruling after rejecting the challenge to its jurisdiction, that “under the circumstances hearing is to commence”.

Obviously when hearing is yet to be commenced it cannot be said by any stretch of the imagination that the matter has been partly heard.

The term “pending” can boast of compendious glossary. Restricting ourselves to a few authorities, we note that in Awoonor Renner v Thensu (1930) 1 WACA 77, the justices of the West African Court of Appeal endorsed Jessel MR's definition in Re Clagette’s Estate; Fordham v Clagett (1882) 20 Ch D 637 that:

“A cause is said to be pending in a Court of Justice when any proceedings can be taken in it. That is the test. If you can take any proceeding it is pending. “Pending” does not mean that it has not been tried. It may have been tried years ago. In fact in the days of the old Court of Chancery, we were familiar with cases which had been tried fifty or even one hundred years before and which were still pending. Sometimes, no doubt, they require a process which we call reviving, but which the Scotch call waking up; but nevertheless they were pending suits…”

This interpretation was adopted by the Court of Appeal in CFAO v Zacca [1972] 1 GLR 366. And it should suffice. There is no need here for a further refinement of definitions to distinguish between “pending” before a judge and “pending” before a court as was illustrated in Osei v Republic [1968] GLR 704 at p 712. In the Osei case, supra, the Court of Appeal, while refusing to define the word “pending” in vacuo nevertheless postulated a definition of the expressions “pending” before a judge or ”seised” of him which, in the context or the intendment of section 7 of the Transitional Provisions to the constitution, is too wide. It is clear that the framers of the constitution were not indulging in the mere felicity of language in the use of the words “partly heard” and “pending”, but that those words should have real meaning and be interpreted as such.

From the discussion of the legal position stated above the following answers must be given to the questions submitted.

1. The matter before the tribunal was not partly heard to clothe the tribunal with even the limited jurisdiction to allow it to continue hearing to a conclusion within the 6 months' time frame.

2. Cases filed with the registry of the tribunal before 7 January 1993 and awaiting their turn for hearing, would be pending for determination. The tribunal was seised of this matter on 22 December 1992. The matter accordingly qualifies for transfer to an appropriate forum upon the directions of the Chief Justice being duly sought.

3. Since a request was made for section 7 of the Transitional Provisions to be construed in its entirety, we cannot end without adding an important rider.

Normally a partly heard case would qualify as a matter pending before the tribunal hearing it. But by the force of section 7 (4) of the Transitional Provisions, a partly heard case is excluded from cases that could be transferred under the rubric of pending matters.

The rationale is quite clear. As no new cases could be commenced after 7 January 1993, the framers of the constitution must have regarded a time span of 6 months sufficient enough to conclude or dispose of any matter began before 7 January 1993.

The intention to take away completely the jurisdiction of the National Public Tribunal, contained in section 7 (3), imposed a need to exert some pressure on the tribunal to wrap up all its work within 6 months. Thereafter matters could be commenced afresh before a different forum wherever the appropriate machinery was invoked.

In such an event no directions from the Chief Justice in terms of section 7 (4) would be needed.

AMUA-SEKYI JSC. Although I am in broad agreement with the opinion just read, I find it expedient that I set forth my own views in a few words.

The question on which the opinion of the court is sought is whether case No NT/297/92 entitled: The People v 1 Albert Adu-Boahen 2 Kwesi Pratt Jnr, now pending before the National Public Tribunal was partly heard by it before the constitution came into force, that is, before 7 January 1993. If it was, then the tribunal is competent to hear it to a conclusion, provided of course, it can do so before 7 July 1993. If it was not partly heard, then section 7(4) requires that it be transferred to such court or tribunal as the Chief Justice may direct.

A case is partly heard when a hearing on the merits had begun, that is, when the court or judge, has started to enquire into the substance of the cause or matter brought before him. In criminal matters, such steps as taking the plea of an accused person, listening to, and recording, the facts alleged against him and which the prosecution intend to prove at the trial, do not constitute a hearing of the complaint. The hearing begins, and the case becomes partly heard, only when the prosecution begins to adduce evidence to prove the charge. Before then, the case can be transferred to another court or judge for hearing; but once the hearing starts, this can only be done if the trial is aborted and a fresh hearing ordered.

According to the proceedings submitted to us, all that had happened in case No NT2/97/92 as at 7 January 1993 was that on 22 December 1992 the accused persons appeared before the tribunal charged with disobedience of summons. They refused to plead to the charge, and a plea of not guilty was entered on their behalf. The prosecution made a statement setting out the facts they intended to prove, and the accused persons stated they could not expect a fair trial before the tribunal. The case was adjourned, in the words of the tribunal, to the next day, for “definite hearing”.

The next day, instead of taking evidence, the tribunal called on the prosecution to answer the submission that the accused persons would not have a fair trial. The prosecution did so, and the case was adjourned to 5 January 1993 for a ruling on this preliminary point. As it happened, the ruling was not given on 5 January, but on 12 January, that is five days after the constitution had come into force. I am satisfied that as no evidence of any kind had been adduced before 7 January 1993, to prove the charge of disobedience

of summons, the case was not partly heard as at that date and, therefore, it cannot be lawfully “continued and completed” before the National Public Tribunal. The matter falls to be dealt with under section 7(4) of the Transitional Provisions.

AIKINS JSC. I am in agreement with the reasoning and conclusion of the judgment just read by my brother Francois JSC as well as the answers given to the questions submitted. I have nothing to add.

WIREDU JSC per Aikins JSC. My brother Edward Wiredu JSC who for one or two reasons is unable to be with us, has authorised me to say that he concurs with the judgment of my brother Francois JSC.

HAYFRON-BENJAMIN JSC. I have had the benefit of reading the lucid opinion of my learned and respected brother Francois JSC and the instructive contribution of my learned and respected brother Kpegah JSC before-hand and I also agree that the matter concerned in this application, namely The People v Albert Adu-Boahen and Kwesi Pratt Jnr, is pending before the National Public Tribunal and is accordingly covered by section 7 (4) of the 1st Schedule to the constitution, otherwise denominated the Transitional Provisions.

AMPIAH JSC. I have had the privilege of reading the opinion of my senior brother Justice Francois. I agree with him; I have nothing useful to add to that opinion.

KPEGAH JSC. Before completing my ruling, I had the benefit to read the ruling just delivered by my noble brother Francois JSC, and I agree with everything he said. I will therefore describe my ruling as an appendix to his. For while my brother Francois holds the view that we have been spared the task of discussing the definition of “hearing” because of the tribunal's own admission that it was yet to commence hearing, I have found it necessary to discuss it. But, before then I will give the brief antecedents of the case.

On 9 December 1992, witness summons were issued out of the registry of the National Public Tribunal and served on Professor Adu-Boahen and Kwesi Pratt Jnr, commanding them to appear before the said tribunal and testify in a case then pending before it.

The 1st accused, Professor Adu-Boahen, was served with the witness summons on 11 December 1992, while the 2nd accused, Mr Kwesi Pratt, was served on 14 December 1992.

The 1st accused wrote to inform the tribunal of his unpreparedness to obey the summons and appear before it. The 2nd accused also refused to respond to the summons served on him. Both accused persons were therefore charged with the offence of disobedience of summons contrary to section 25(a) of the Public Tribunals Law 1984 (PNDCL 78). They both refused to plead to the charges preferred against them. The tribunal, suo motu, entered a plea of ‘Not guilty’ for both accused.

When the case came up for hearing on 23 December 1992, the accused persons raised objection to the panel on what can be said to be grounds of bias.

On 12 January 1993, when the 1992 Constitution had come into force, the tribunal overruled the objection and decided to proceed with the trial. It was at this stage that Mr Brodie-Mends, acting as an amicus curia, raised a plea in bar to jurisdiction on behalf of the accused persons. He contended that the case was not “partly heard” before the tribunal within the meaning of section 7(1) of the Transitional Provisions of the 1992 Constitution. Therefore, the matter could not be heard by the tribunal and that it has to be re-assigned to another tribunal or court by the Chief Justice as provided under section 7(2) of the said Transitional Provisions.

Mr Ahlijah, the Assistant Special Prosecutor on the other hand contended that since the plea of the accused persons had been taken, and the facts presented by the prosecution, the case could be said to be “partly heard” and fall within the purview of section 7(1) of the Transitional Provisions to enable the tribunal continue with the hearing.

The tribunal held the view that the matter involves the interpretation of section 7(1), (3) and (4) of the Transitional Provision of the constitution and therefore stated a case to this court for the interpretation of those provisions and direction.

The provisions we are called upon to interpret are as follows:

(a) The National Public Tribunal;

(b) Regional Public Tribunals;

(d) Community Public Tribunals.

(3) The National Public Tribunal shall cease to exist upon completion of the partly heard cases referred to in sub-section (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 sub-section (1) of this section pending before the National Public Tribunal immediately before the coming into force of this Constitution, shall be transferred to such court or tribunal as the Chief Justice may direct.”

Limited to the facts of this case, the real bone of contention is the meaning or scope of the words “cases partly heard”. Before I proceed any further I would like, speaking for myself, to express an opinion which may appear contrary to an earlier one seemingly expressed by the court in the course of argument. This relates to the legal status of the plea of “Not guilty” entered for the accused persons by the tribunal.

The burden of Mr Ahlijah's submission before us, just as before the tribunal, was that the plea of the accused persons having been

taken and the facts of the case presented by the prosecution, the case could properly be described as partly heard or part heard. Asked, where an accused disputed the jurisdiction of a court to try him and refused to plead to the charges, it would be proper for the court to enter a plea of “Not guilty” and if such a step was taken, whether such plea would be valid, learned counsel properly conceded the point. Jurisdiction being so fundamental, where it is challenged, that issue must be resolved first.

If this case could be said to be one such case, then, of course, Mr Ahlijah’s argument would simply bubble out, since if the proceedings were void then nothing could be said to have taken place and one could hardly claim that the case is partly heard. I say so for, where the jurisdiction of a tribunal is challenged it has jurisdiction to determine that issue only, not to embark on the main enquiry it was called upon to make before its jurisdiction is called into question. In my humble view, the matter is not so simple in this case. When the accused were called upon to plead to the charges against them, each refused to plead and gave reasons for so doing. The 1st accused, Professor Adu Boahen, had this to say:

“I was summoned by this same court to give evidence which I refused. Now I have been brought to face this same tribunal as an accused. I am refusing to plead to this charge because I do not accept the authority of the tribunal, because it is an instrument that is used to oppress the opponents of the PNDC Government. For these reasons I will not plead.”

“I am unable to plead for a number of reasons. First, the facts in the particulars are not true. The state is not interested in punishing offenders. PNDC members have committed murders but they have not been prosecuted. Even Ato Austin has embezzled millions of cedis and he has not been prosecuted.”

It was following these statements that the tribunal proceeded to enter a plea of “Not guilty” for the accused persons.

For the orderly governance of society, it is generally agreed and accepted that every sovereign authority must, as a matter of necessity, have the power to adjudicate on disputes between its subjects or between itself and subjects. These disputes may relate to life, liberty and property. This power is the judicial power of the state, and it is often vested in some tribunal or court with the jurisdiction to give authoritative and binding decisions, whether subject to appeal or not. The judicial power we are referring to does not only entail the power to give binding and authoritative decisions with the power to enforce same, but also includes the power to enforce the attendance of witnesses.

I do not think the sentiments expressed by the accused persons as quoted above can be said to be plea in bar to jurisdiction so as to make an entry of a plea of “Not guilty” for the accused persons a nullity.

An objection to jurisdiction, when raised, is either in relation to territorial limitations affecting the tribunal or lack of jurisdiction over the subject matter of dispute or charge (in criminal cases), or lack of jurisdiction over the parties, or non-existence of a condition precedent to the assumption of jurisdiction. The recognition or non-recognition of a court by an individual cannot be a plea in bar to jurisdiction. The sentiments expressed by the accused persons could be said to be a challenge to the sovereign authority and can properly be described as a refusal to plead out of malice as provided under section 171 (4) of the Criminal Procedure Code 1960 (Act 30). The National Public Tribunal was perfectly within limits in my view and cannot be faulted when it entered a plea of not guilty for the accused persons.

The next point is whether the taking of a plea, coupled with the presentation of the facts of a case by the prosecution, make a criminal trial a “partly heard” case before the court, or constitutes “hearing” of a case in law.

A plea of “Not guilty” is a general denial of the charge by an accused, which makes it imperative that the prosecution proves its case against an accused person. Since no admissions are made or may be made, unlike civil cases, the prosecution, when a plea of “Not guilt” is voluntarily entered by an accused or is entered for him by the trial court, assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt.

It seems to me hardly tenable to say that where no step is taken in a criminal case towards the discharge of this primary burden, such case can be said to be partly heard or part-heard by the mere taking of the plea of an accused. I am assuming, for the moment, that the court is operating under its ordinary procedure.

But when one considers the words “partly heard” or, “part-heard” case in their wider context, the view of Mr Ahlijah that there can be a “hearing” without evidence being actually led is not wholly without justification.

In the case of Kwakye v The State [1965] GLR 647, the issue concerned committal proceedings in the district court. The Supreme Court gave consideration to the words “there shall be a preliminary hearing of the case by the court” appearing in section 181 of the Criminal Procedure Code 1960 (Act 30) and the words “if the court is of opinion that there is…” appearing in section 184(4) and (5) of the said Code.

It was contended on behalf of the appellants that their committal by the district court for trial at the High Court was a nullity as no evidence was taken before the district court upon which the said court could in law form the opinion that there was a case for the appellants to answer before committing them.

The legal argument advanced was that where a statute states that a court should hear a case and make a decision on it, this imposes a duty to hear evidence, and bestows on the party likely to be affected by the said decision the right to listen to the evidence and cross-examine thereon. It was further submitted that it is inconceivable to say that a decision can in law be made by a judge without evidence.

The Supreme Court per Ollennu JSC, dismissed this contention in the following words:

“…the submission that where an enactment confers jurisdiction on a court to hear and determine a cause or matter, i.e. to adjudicate upon a cause or matter it in all cases ipso facto imposes a duty upon the court to take evidence on oath and also implies a right in the parties to the cause or matter that the determination should not be made except upon evidence on oath is not the law of the land.”

And in the case of Akainyah v Republic [1968] GLR 548, Sir Dingle Foot, QC also advanced a similar argument that a judge cannot legally “hear” a case without physically seeing and listening to the witnesses. Apaloo JA rejected the argument in these words:

“In our opinion, a case can be legally “heard” by a judge without his physically seeing or listening to witnesses.”

Both dicta taken out of context or in isolation may appear to lend some support to the views of Mr Ahlijah. But in the very next sentence in the Kwakye case, Ollennu JSC states the law thus:

“… the principle of law is that where an enactment confers jurisdiction on a court, the court in hearing and determining that cause or matter, must follow the procedure laid down by the enactment conferring that cause or matter, unless it is otherwise expressly provided.” (Emphasis mine.)

For this proposition, Ollennu JSC relied on the House of Lords case of Re Green (1881) 51 LJ QB 44 where Lord Blackburn said:

“Unless there is something which by natural intendment, or otherwise, would cut down the meaning, I apprehend there can be no doubt that the legislature, when they direct a particular case to be heard in a particular Court, mean that it should be heard and finally disposed of there. And further, when they say that it is to be heard - (meaning heard and finally disposed of) - in a particular Court, they mean, unless there is something in the context which either by natural interpretation or by necessary implication would cut it down, that in all matters which are not provided for that the Court is to follow its ordinary procedure.”

It seems to me that in ascertaining whether a case is “part-heard” or “partly heard”, or what “hearing” means, one must consider a number of factors. The first of these would seem to be the forum and the cause or matter which falls for determination or hearing by the tribunal.

The second factor is the procedure prescribed in the said forum for the determination, on the merits, of the cause or matter which calls for adjudication. This second factor is particularly important because the circumstances under which any adjudicating body could assume jurisdiction in any matter and determine same are regulated by rules of procedure established by statute. This is what Lord Blackburn referred to in Re Green supra as the “ordinary procedure” of the tribunal or court.

The case of Kwakye v The State, supra is a classic example of how the hearing of a matter can be dependent on the procedure in the particular forum. It was held there could be hearing of a matter without necessarily hearing evidence in committal proceedings.

In some cases the enactment under which the matter is brought itself indicates the procedure by which the matter can be brought before it and the mode of trial of the issues for determination between the parties. In civil cases the procedure is regulated by the rules of court, and in criminal trials, either by virtue of the provisions of the enactment under which the charges are laid, or in accordance with the provisions of the Criminal Procedure Code 1960 (Act 30).

The case of Republic v Akainyah [1968] GLR 330 offers a good example of the procedure for trial or hearing of a case being prescribed by the enactment under which the charge is brought. The proceedings were brought under the Corrupt Practices (Prevention) Act 1964 (Act 230). The accused were persons against whom adverse findings had been made by the commission appointed under the Act. By the provisions of sections 5 and 6 of the Act, where a prosecution is initiated under Act 230, the accused should not be asked to plead to the charge nor should the prosecution lead any evidence except where the accused alleged that the findings of the commission could not be supported by the evidence adduced before it. The adverse finding constituted a prima facie case and raised a presumption of guilt against the accused who ought to be convicted and sentenced unless he showed cause in the manner prescribed by the Corrupt Practices (Prevention) (Procedure) Regulations 1967 (LI 571) made under Act 230.

The case first came before the High Court on 2 February 1968 before Edusei J who granted bail. After a number of adjournments, it came before Azu Crabbe JA, sitting as an additional High Court judge. This was on 7 March 1968. He adjourned the case to 14 March 1968 for hearing. In view of the procedure prescribed under the Act under which the proceedings were initiated, the only step taken by Azu Crabbe JA for the determination of the case was to hear counsel and satisfy himself that the provisions of the Act had been complied with. A copy of the report of the commission was then tendered by the accused. After argument by counsel both accused were convicted. On appeal, sub nom, Akainyah v Republic [1968] GLR 548, it was argued that Azu Crabbe JA could not hear the case without a formal order of transfer by the Chief Justice, as Edusei J was already seised of the matter. The argument was rejected and it was held that Edusei J could not be said to have been seised of the case. This is what the court had to say:

“At no time was objection taken to Azu Crabbe, JA hearing this case and it is difficult to conceive what valid objection could have been taken especially as no hearing was began by Edusei J.” (Emphasis mine).

Holding 1 in the case Republic v Asafu-Adjaye (No 2) [1968] GLR 567, states that the jurisdiction of a High Court judge or a circuit judge before whom a person was brought under Act 230 to show cause why he should not be sentenced was analogous to that of an appellate tribunal called upon in an appeal against conviction to review the facts upon which the conviction is based. This was so because, like a convict appellant, a person brought before a court under Act 230 was immediately faced with concluded facts against him, and to succeed in his defence he must satisfy the court that those findings of fact could not, either as a matter of law or fact, be sustained.

Apart from granting bail in the Akainyah case, which is a normal exercise of criminal jurisdiction, Edusei J never, within the parameters of the procedure prescribed by Act 230 under which the proceedings were initiated, took any decisive judicial step towards the determination or hearing of the matters left in controversy the accused persons showing cause why they should not be sentenced. He was therefore held not to have been seised of the case at any point to necessitate a formal order of transfer being made. This is also another instance where the procedure, determined what amounts to hearing of a case.

This should bring me to the third, and possibly the last, factor which should help decide when hearing can be said to have taken place in a cause or matter or in a case. This factor, in my view, is the taking of some judicial step, within the confines of the prescribed procedure for determining such matters, by the tribunal concerned towards the adjudication and determination of the cause or matter on the merits.

I have therefore always held the view that when lawyers talk of a cause or matter or a case being “part-heard” or “partly heard”, they are referring to a situation where the adjudicating tribunal has taken a decisive judicial step, within the confines of its procedure for the determination on the merits of the issue or issues joined between the parties, but has, for some reason, not been able to complete the process to finally decide the matter.

Within this definition it may be possible for us to talk of an interlocutory matter as being part-heard, even though the substantive case has not commenced. For example, taking argument from an applicant only in an application for interim injunction and adjourning the proceedings. Such an application is partly heard. The substantive case cannot be so described unless the proper procedure has been initiated for its determination on the merits.

The law under which criminal proceedings were initiated against the accused persons in this case, Public Tribunals Law 1984 (PNDCL 78), does not prescribe any special procedure for the determination of such matters or for the hearing of the case. The matter, therefore, has to be resolved within the purview of what Lord Blackburn called the “ordinary procedure” of the court.

Our system of criminal justice is adversarial. And, as I have already stated, where an accused pleads “Not guilty” or a plea of “Not guilty” has to be entered for him by the court, the prosecution assumes the onus to prove his guilt beyond all reasonable or nagging doubts. This is the ordinary procedure in our administration of criminal justice. No special procedure has been prescribed by PNDCL 78 for the hearing of offences under it. We therefore use the ordinary procedure.

In the case of The People v Albert Adu-Boahen and Kwesi Pratt Jnr no judicial process or step, within the procedure of the tribunals, was ever initiated towards the determination of the guilt or otherwise of the accused persons. No hearing was commenced within the procedure ordinarily followed by the National Public Tribunal.

This is the way I have come to look at the principal question of law involved and it is difficult for me to say otherwise than that the case is not a partly heard case within the intendment of section 7(1) and (3) of the Transitional Provisions of the constitution.

As was stated by my noble and learned brother Francois JSC in the opinion just read,

“When hearing is yet to be commenced, it cannot be said by any stretch of the imagination that the matter has been partly heard.”

The case not having been partly heard immediately before the coming into force of the constitution, it cannot be brought under section 7(1). That is to say, the tribunal cannot assume jurisdiction over it in a so-called continuation and completion exercise.

As to whether the case can be said to be “pending” to enable it being brought under the purview of section 7(4), I agree with the views expressed and the conclusion reached on this issue by my brother Francois JSC.

The inescapable conclusion is that the matter falls under section 7(4); the case is pending within the meaning of section 7(4) of the Transitional Provisions and a direction of the Chief Justice is needed.