REASONS FOR JUDGMENT
C. HAYFRON-BENJAMIN. J.S.C.:
On the 31st July, 1998 this
Court dismissed the writ of the
Commissioner invoking the
assistance of this Court to
resolve an apparent conflict in
the relative positions of the
parties vis-a-vis their
respective functions under the
Constitution. For whereas the
Plaintiff (Commissioner for
Human Rights and Administrative
Justice) is:
"In the performance of (their)
functions, not subject to the
direction or control of any
person or authority",
the Defendant (Attorney-General)
on the other hand is a member of
the Executive Branch of
Government and Chief Legal
Adviser to the Government. The
principles of the separation of
powers to which to a great
extent our Constitution gives
support enjoin this Court as
arbiters of conflicts within the
Constitution in the
interpretation or enforcement
thereof not to adopt attitudes
and positions which may appear
to incline us into proffering
advice on matters which do not
come within the ambit of our
adversarial adjudicatory system
as sanctioned by our
Constitution. The parties to
this litigation are
constitutionally independent,
yet the Plaintiff contends that
their paths may so cross each
other as to authorise him to
compel the Defendant to take a
stand on matters regarding the
exercise of the Plaintiffs
functions. Thus by his Writ of
Summons the Plaintiff claims
against the Defendant are:
(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
confiscations of property made
by the Armed Forces
Revolutionary Council and the
Provisional National Defence
Council under any Decree or Law
made by the 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 AFRC
(Special Courts) Decree 1979
(AFRCD 3) as amended by the AFRC
(Special Courts) (Amendment
Decree, 1978), (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 or 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 Law such as
The Confiscated Assets (Removal
of Doubt), Law 1993.
The Plaintiff by his Statement
of Case expounds Sections 35(1)
and (2) of the Transitional
Provisions in extenso and
furnishes by way of example the
case of one Col. C.R.
Tachie-Menson (Rtd.) in Tr. Case
No. 780/94 who petitioned the
Plaintiff's Organisation for:
"The restoration of his
confiscated properties pursuant
to Section 35(2) of the
Transitional Provisions of the
1992 Constitution.
The said Col. C.R. Tachie-Menson
contends that he was acting as
our Ambassador to Italy in 1979
when on the 13th October, 1979
it was published in a
state-owned newspaper that he
had been sentenced to 25 years
imprisonment and the assets of
his wife and himself had been
confiscated to the state. The
Colonel subsequently obtained
the necessary information and
instructed Solicitors to apply
for a review of that decision
before the Special Tribunal.
The application for review was
never heard, but the Colonel was
granted safe conduct back home
in 1987 by the Co-ordinator,
Revenue Commissioners and
Investigations. The Plaintiff
then recites the Provisions of
Section 1 of the Confiscated
Assets (Avoidance of Doubt) Law
1993 (PNDCL 325) which was
passed on the 5th January, 1993
and came into force on the 23rd
April, 1993 and contends that it
was in those circumstances that
the Colonel invoked Section
35(2) of the Transitional
Provisions of the 1992
Constitution and applied to the
Plaintiff for the return to him
of his properties or assets.
It appears that the Colonel's
petition was also addressed to
the Defendant because the
Plaintiff states in his
Statement of Claim that:
"The issue was raised as to
whether the Plaintiff had
jurisdiction to entertain the
petition having regard to the
fact that the Petitioner's
properties were confiscated by a
Court of competent jurisdiction
namely the AFRC Special Court in
the first instance."
The Plaintiff then in obvious
anticipation of the possible
defences available to the
Defendant, attempts to pre-empt
such defence by setting them out
in extenso thus:
12. It was suggested by Counsel
for the State that Section 35
(2) aforesaid applies only to
persons whose properties were
confiscated without an judicial
process by a Court of competent
jurisdiction.
13. The Plaintiff will contend
that the language used in
Section 35(2) of the
Transitional Provisions of the
1992 Constitution Provisions of
the 1992 Constitution is
all-inclusive and wide enough to
apply to all confiscations made
by the State during the AFRC and
PNDC Administrations, whether by
a Special Court or Tribunal or
State Institution empowered to
confiscate Property. The
legislative intent of and policy
objective underlying Section
35(2) was that the whole
question of confiscation of
properties under the AFRC and
PNDC Administrations should be
revisited by the Commissioner.
14. The Plaintiff will contend
that any interpretation of the
scope and ambit of Section 35(2)
which seeks to exclude
confiscations made by a Court or
other Judicial Tribunal
tantamounts to reading into the
clear and unambiguous language
of the Section a non-existent
limitation or exclusion, an
approach which is contrary to
all known rules or canons of
interpretation.
15. The Plaintiff will further
contend that on a combined
reading of Sub-Sections (1) and
(2) of Section 35, the only
condition necessary to empower
the Plaintiff to entertain a
petition under Section 35(2), is
the existence of a confiscation
of property imposed by or under
the authority of the Armed
Forces Revolutionary Council or
the Provisional National Defence
Council under any Decree or Law
made by the Council.
16. The Plaintiff says that in
interpreting the scope and ambit
of Section 35(2) any attempt to
draw a distinction between
confiscation made on the one
hand by the AFRC Special Court
established under the AFRC
(Special Courts) Decree 1979
(AFRCD 3) as amended by the AFRC
(Special Courts) (Amendment)
Decree, 1979 (AFRCD 19) on the
one hand and confiscations of
property on the other hand by
the Citizens Vetting Committee
and Office of the Revenue
Commissioners (established under
PNDCL 1 and amended by PNDCL 80
would amount to creating an
arbitrary and unjust distinction
which was and never could have
been intended by the framers of
the Constitution.
17. The Plaintiff will also
contend that, even assuming that
Section 35(2) aforesaid does not
empower him to investigate
confiscations made by the AFRC
Special Court or other such
Judicial Tribunal, where the
said confiscation has been
confirmed and/or repeated in a
subsequent legislative
instrument such as The
Confiscated Assets (Removal of
Doubt) Law 1993, PNDCL 325, the
Plaintiff will be vested with
authority under Section 35(2) of
the Transitional Provisions of
the 1992 Constitution and made
an order of restoration in
appropriate circumstances.
18. The Plaintiff will further
contend that by the use of the
phrase "on any other basis" in
Section 35(2) of the
Transitional Provisions of the
1992 Constitution, the Plaintiff
has the power to investigate
confiscations made by a Court or
Tribunal during the AFRC and
PNDC Administrations and if
satisfied, order restoration of
that property.
It must be mentioned in passing
that PNDCL 325 which came into
force on the 23rd January, 1993
a date which post dates the
coming into force of the 1992
Transitional Provisions is a
valid piece of legislation and
is currently of full force and
effect.
The Defendant in his Statement
of Case did not only deny that
the Colonel's claims to
ignorance of his trial and
confiscation of his properties
were untrue but also clearly
denied those averments which I
have said were designed to
pre-empt any possible defences
that could be raised by him. The
Defendant further contends that
the Plaintiff had no power to
review the decisions of any
Courts or lawfully constituted
Tribunals:
"By restoring any properties
confiscated by such Court or
Tribunal established by and
under the authority of the Armed
Forces Revolutionary Council
(AFRC) or the Provisional
National Defence Council (PNDC)
within the meaning of Section
34(3) and (4) of the
Transitional Provisions
scheduled to the 1992
Constitution."
Contending that during the AFRC
and PNDC Regimes all judicial
power was vested in those
administrations and denying the
Plaintiff's assertion that he
had power and authority to
review the decisions of courts
and Tribunals so established,
the Defendant averred that such
exercise of a review power would
amount to a "usurpation of
judicial power by the Plaintiff
to review even confiscations by
any Court exercising judicial
power or purported judicial
power under those regimes". The
Defendant further contended that
in attempting to review such
decision the Plaintiff was in
fact exercising a supervisory
jurisdiction over the decisions
of the Courts and Tribunals over
confiscation of assets by them.
The Defendant finally asserts
that the Plaintiff while
admitting that Section 35(2) of
the Transitional Provisions was
inapplicable to confiscations by
Courts of law is nevertheless
"seeking an advisory opinion of
the Court as to the extent of
his jurisdiction".
The memorandum of issues agreed
by the parties are set out:
"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 AFRCD (Special
Courts) Amendment Decree 1979
(AFRCD 19).
2. Whether, if the answer to
issue (1) is in the affirmative,
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 by restoring
any properties confiscated by
such Court or Tribunal
established by and under the
authority of the Armed Forces
Revolutionary Council (AFRC) or
the Provisional National Defence
Council (PNDC) within the
meaning of Section 34(3) and (4)
of the Transitional Provisions
scheduled to the 1992
Constitution.
5. Whether the Plaintiff can
exercise supervisory
jurisdiction over decisions of
Courts properly established by
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
Decree or Laws such as
Confiscated Assets (Removal of
Doubt) Law 1993 (PNDCL 325).
7. Whether or not the
Plaintiff's Writ and Statement
of Case disclose any cause of
action against the Defendant."
Two preliminary issues are
raised in this Writ namely
1. Whether the Plaintiff has a
power of review over the
decisions of other Courts and
Tribunals in respect of
confiscated assets ordered by
them and
2. Whether the Plaintiff has
supervisory power or
jurisdiction over the decisions
of the aforesaid Courts and
Tribunals.
It is easy to answer issue (2)
in the negative. The supervisory
jurisdiction is conferred by
statute. In the 1992
Constitution such supervisory
jurisdictions are given to the
Supreme Court and the High Court
by Articles 132 and 141
respectively. If any such
jurisdiction exists in the
Plaintiff then it must be
contained in the statute
creating that organisation.
Then again it is generally true
that every Tribunal has an
inherent power to review its own
decision. Whether any such
Tribunal has the jurisdiction to
review the decision of another
Tribunal - save by way of an
appeal which is itself conferred
by statute - must be deduced
from the statute creating such
Tribunal.
In the instant case the
Plaintiff does not lay any
pretence to being a Court or
Tribunal, but he contends he has
power to review the case of Col.
Tachie-Menson so presented to
him by way of a petition. The
Defendant says he has no such
power or jurisdiction so to
review the decision taken by a
lawfully constituted authority.
The Plaintiff owes his existence
from — THE COMMISSION ON HUMAN
RIGHTS AND ADMINISTRATIVE
JUSTICE ACT (Act 456). It is
therefore necessary at the
outset to examine the Act and to
distinguish the purpose of the
Plaintiff from the manner he
seeks to effect it and the scope
and ambit within which such
function may be exercised. The
long title to the Act sets his
purpose out clearly thus:
"AN ACT to establish a
Commission on Human Rights and
Administrative Justice to
investigate complaints of
violence of fundamental human
rights and freedoms, injustice
and corruption; abuse of power
and unfair treatment of persons
by public officers in the
exercise of their duties, with
power to seek remedy in respect
of such acts or omissions and to
provide for other related
purposes."
The Act 456 is, of course, made
in pursuance of authority
granted to Parliament under
chapter 18 of the 1992
Constitution. The functions -
and this is the expression used
in Article 218 of the
Constitution - which the
Plaintiff may exercise are taken
almost verbatim from the
Constitution and restated in
Section 7 of Act 456. Similarly
the manner in which such
functions may be exercised are
copied verbatim from Article 219
and are contained in Sections 8
and 9 of the Act. Taken together
it is clear that the objects of
the Plaintiff are investigative
and educational. For the
purposes of effective exercise
of its investigative objects,
the Plaintiff has certain powers
akin to those of the regular
Courts and Tribunals. But it
must be said that in exercising
those powers the Plaintiff does
not thereby constitute a Court
or Tribunal properly so called
nor does he thereby assume any
jurisdiction to do anything in
his investigations. However, the
Plaintiff may institute legal
action "before any Court in
Ghana and may seek any remedy
which may be available from that
Court."
Clearly the Plaintiff has no
judicial power nor does he in
the performance of his function
thereby assume any jurisdiction
cognisable at law. Jurisdiction
is simply "the power of a judge
to entertain an action, petition
or other proceeding" and "the
district or limit within which
the judgments or orders of a
Court can be enforced or
executed" (See Osborn's Concise
Law Dictionary 8th ed.); no such
attributes attach to the
Plaintiff's Commission. The 1992
Constitution defines the
expression "function" generally
as including "powers and
duties". The expression
"function" generally as
including "powers and duties".
The expression "function"
however is not a term of art and
must therefore be given its
ordinary dictionary meaning. In
FUNK & WAGNALL'S STANDARD
DICTIONARY of the English
Language, International Edition
the word is variously defined
but I incline to the definition
which states that function is
"one's appropriate or assigned
business, duty, part or office".
Thus within the context of Act
456 the expression "function"
means the exercise by a duly
appointed person to whom such
duties as are stated in the Act
are assigned. His strict
obedience to the scope and ambit
of authority is necessary for
the due performance of the
duties assigned to him. Indeed
the Plaintiff has no enforcement
powers unless he applies to the
Court therefor. Therefore in my
respectful opinion the Plaintiff
has neither the power to review
over decisions of other Courts
or Tribunals nor does he possess
any supervisory power in respect
of such Courts or Tribunals.
Normally it would suffice to
define the objects and functions
of the Plaintiff's Commission.
But as I have just said it is
necessary that I should examine
the scope and ambit of its
operations. In this respect I
find the English case of
WILKINSON VRS. HOLLINGTON
(1944) 1 K.B. 16 very
instructive and an essential aid
to the exact purpose of the
Plaintiff's Commission; for it
cannot be said that the
Plaintiff has carte blanche
authority to roam the highways
and bye-laws of the legislative,
judicial and executive intent
and acts of the erstwhile AFRC,
the PNDC and the Courts and
Tribunals in the exercise of
their powers of confiscation in
search of cases and matters
which he may review and over
which he may exercise any
semblance of a supervisory
function or jurisdiction.
The Wilkinson case, supra,
contains very interesting dicta
which I find relevant to the
present enquiry. GODDARD L.J.
(as he then was) at page 22 of
the Report said:
"When one is construing the
words of an Act of Parliament
one must, to use the words of
Lindley M.R. in Thomson vrs.
Lord Clanmorris (1) have regard,
not only to the words used, but
also to the history of the Act,
and the reasons which led to it
being passed. Regard must be had
to the mischief which had to be
cured as well as the cure
provided, du Parcq L.J. put the
same consideration in Butcher
vrs. Poole Corporation when he
said (2): "It is impossible to
construe words in an Act of
Parliament without reference to
their context and the whole
tenor of the Act."
And then also in the same Report
at page 20 thereof SCOTT L.J.
when invited to construe
sections 1 and 2 of the COURTS
(EMERGENCY POWERS)
Act 1939 said:
"I should have thought that the
ambit of the sub- section was
satisfied by applying it to
ordinary forms of distress for
rent, but there is an additional
reason for so limiting the
interpretation of its
words. Where ambiguous language
is used in an Act one is
entitled to look at the long
title."
Then again in the English case
of JEREMIAH AMBLER & SONS
LIMITED VRS. BRADFORD
CORPORATION (1902) 2 Ch. 585 at
page 594 ROMER L.J. said at page
594 of the Report:
"I agree with argument on behalf
of the Plaintiffs in the present
case, that in construing the Act
the Court may and ought to look
to the general scope of the Act
as expressed in its title."
Thus assured by authority,
albeit persuasive, we think that
we may confidently proceed not
only to look at the long title
of the Act under reference but
also examine "the history of the
Act and the reasons which led to
its being passed" and "paying
due regards to the mischief
which had to be cured as well as
the cure provided".
No difficulty arises in
ascertaining the scope and ambit
of the functions of the
Plaintiff from an examination of
the long title of Act 459.
Clearly the Plaintiff's
functions are
"to investigate complaints of
violations of
(a) human rights and freedoms
(b) injustice and corruption
(c) abuse of power and unfair
treatment of persons by public
officers in the exercise of
their duties with power to seek
remedy in respect of such acts
or commissions."
We do not think that it is
necessary to set out the
mischief which the legislation
was intended to address and to
provide a cure. It is evident
from the Commissioner's powers
that what were sought to be
corrected or cured concerned
human rights abuse and the
provision of avenues for dealing
with injustices, corruption and
the abuse of administrative
power and to provide remedies
therefor. Clearly the scope of
the Commission's investigative
powers must be limited to
matters covered by Chapter 5 of
the Constitution the matters
elucidated in the long title to
Act 459 and no more. The history
of abuse of human rights within
our municipality is too well
documented and of which judicial
notice will be taken to merit
any further reference in this
opinion. The important thing,
however, is that the framers of
the Constitution determined to
remedy the mischief and the cure
for it was the establishment of
the Plaintiff's Commission. The
framers of the 1992 Constitution
it would appear quite
independently entrenched
Articles 218 and 225 of Chapter
12 thereof and thereby assured
the Commissioner's permanence
and independence within the new
social scheme.
Our conclusions thus far would
ordinarily have sufficed to
determine the scope and ambit,
indeed the parameters, of the
Plaintiff's functions to warrant
any further discussions of his
plaint before this Court.
However, the Plaintiff claims
that Section 35(2) of the
Transitional Provisions of the
1992 Constitution invests him
with certain powers by which he
could restore the confiscated
properties and assets made by
the orders or decisions of the
Special Courts or Tribunals set
up by the Armed Forces
Revolutionary Council and the
Provisional National Defence
Council regimes and the Special
Court. The Plaintiff further
submits that even if he has no
power under Section 35(2) his
powers derived under that
Section would "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)".
The Defendant submits in reply
that the Plaintiff misapprehends
the import of that Section and
contends that the Plaintiff is
seeking to extend the plain,
ordinary and grammatical meaning
of the Section to include
"confiscation orders made by, a
Court or Tribunal".
Interestingly the Plaintiff
himself presents this Court with
a catalogue of situation in
which he contends assets and
properties could be validly
confiscated. The following is an
abstract from the submissions of
the Plaintiff:—
"During the era of the AFRC and
PNDC regimes various judicial
and quasi-judicial bodies were
established (by statute) with
power to order confiscation of
assets and the bank accounts.
Those included the AFRC Special
Counts, established under the
Armed Forces Revolutionary
Council (Special Courts) Decree,
1979, AFRCD 3 as amended by
AFRCD 19, the AFRCD Special
Tribunal set up under the AFRC
(Special Tribunal and other
matters) Decree 1979, AFRCD 23,
and the Citizens Vetting
Committee established under PNDC
Law 1 of 1982. Others are the
National Investigations
Committee established by virtue
of PNDCL 2, the Office of
Revenue Commissioners set up
under the Revenue Commissioners
Law 1984 (PNDCL 80), the State
Housing (Allocation Policy and
Implementation) Commission
established by PNDCL 83, and the
Public Tribunals set up under
PNDCL 78."
Some of the offences triable
before the AFRC Special Courts
and the Public Tribunals (and
for which a person's property
could be forfeited to the State)
were also triable for example by
the C.V.C. For example, under
Section 3(1)(b) of AFRC Decree
3, the Special Courts could try
the offence of:
"illegal or dishonest
acquisition of property by a
public officer, citizen of Ghana
or other person resident in
Ghana. The Public Tribunals
could also try the same offence
under Section 9(1)(k) of PNDCL
78 which provided that it was an
offence for any person "being a
public officer, citizen of Ghana
or other person resident in
Ghana, illegally or dishonest
(proof of which shall be on him)
acquires property."
On conviction for commission of
these offences, that AFRC
Special Courts and the Public
Tribunals could invoke Section 4
of AFRCD 3 and Section 16(6) of
PNDCL 78, respectively, to
confiscate a person's properties
to the State.
Similarly, under Section 4(1) of
the Citizen Vetting Committee
Law, PNDCL 1, the C.V.C. was
enjoined to "investigate persons
whose life styles and
expenditures substantially
exceed their known or declared
incomes".
Under Section 7(1)(a) the
Citizens Vetting Committee had
the discretion to order
confiscations. The said Section
provided as follows:
"7(1) The Committee may after
investigation of any matter
under this law —
(a) order the forfeiture to the
State of any property."
In effect, a person investigated
by the C.V.C. under Section 4(1)
of PNDCL 1 could have his
property or assets confiscated
under Section 7(1)(a) of the
said law.
The Plaintiff submits that any
person who was investigated by
the C.V.C. under Section 4(1)
for the reason that his life
style and expenditure
substantially exceeded his known
and declared income, could
equally have been tried by the
Public Tribunal under Section
9(1)(k) of PNDCL 78 for
"illegally or dishonestly
acquiring property". This is so
because the person's excess
expenditures could reasonably be
presumed to have been made
possible by illegal or dishonest
acquisition. In effect both the
C.V.C. on the one hand and the
Public Tribunals on the other
hand could try the same offence
and order the confiscation of
the property of anyone found
guilty of that offence.
In addition the Plaintiff
concedes that there were others
whose properties were
"confiscated by enactment" and
contends that if the Defendants
arguments were right then a
construction of the Section
35(2) in his favour would not
only be discriminatory of those
who were entitled to take the
benefit of the Section, but, an
anomalous situation would be
created wherein a party could
obtain redress dependent on the
manner - and perhaps even the
Tribunal - by which his property
was confiscated. In the
Plaintiff's view such a
construction would not make
sense. The Plaintiff finally
contends that:
The purpose of the Section was
to give the Plaintiff the power
and opportunity to review all
confiscations made during the
AFRC and PNDC eras in line with
the PNDC declared policy of
national reconciliation."
(emphasis mine).
In reference to the Plaintiff's
immediately preceding
submission, the Plaintiff does
not contend that any such
"declared policy of
reconciliation" ever became law,
nor does he demonstrate by
example any policy was actually
applied by the PNDC with respect
to confiscated property or
assets. However, inherent in
that submission are two matters
upon which the Plaintiff has
made submissions and in respect
of which this Court must address
if the circle of the Plaintiff's
functions are to be rendered
complete.
First the Plaintiff contends
that even if he had no
jurisdiction (which he denies)
to investigate confiscations
ordered by a Court or Tribunal
such as the Special Court, the
whole issue of confiscation
"nevertheless becomes subject to
Plaintiff's jurisdiction where
it is confirmed by an Act or
Decree such as the Confiscated
Assets (Removal of Doubt) Law
1993 PNDCL 325."
In other words by the passing of
PNDC Law 325, which we have said
is existing law, the whole
question of confiscation of
assets has been resuscitated and
in relation to Section 35(2) of
the Transitional Provisions,
must be applied retrospectively.
The issue of "retrospectivity"
has been raised in a relative
presentation before us - Writ
No. 17/97 - in which we have
also given our judgment. But we
think that as we have said, for
the more complete consideration
of the limits of the Plaintiff's
functions the ends of justice
will be served if we address the
issue in this opinion. The
Plaintiff places great reliance
on the case of LINDA DUPUIS VRS.
BRITISH COLUMBIA (Ministry of
Forestry) C.H.R.R. (Canadian
Human Rights Reports Vol. 20 of
15th December, 1993 paragraphs 1
- 104 a case on sexual
harassment in which the issue of
retrospectivity as to the
application of a statute is
discussed. In paragraph 74 of
the Report the following
appears:-
"74. It is more difficult to
determine whether the
construction of the statute
sought by counsel for Dupuis is
retrospective. The test for
determining whether there is
retrospective operation of a
state is described by Driedger
as follows at pp. 191 - 192:
'When can it be said that a
construction gives retrospective
effect to a statute? In all but
the simplest enactments there is
set out what may be called the
fact situation, namely, the
facts that bring the rule of law
into operation. This fact
situation can be set out by
defining the subject of the
enactment, by describing the
circumstances that bring the
rule into operation, or partly
in the one way and partly in the
other. The fact situation may
include a reference to past
facts by employing clauses in
the past or perfect tenses; the
question then arises whether the
facts that arose before the
enactment bring it into
operation, or only those that
arose between the time of the
enactment and the time of its
application. These past facts
may describe a status or
characteristic, or they may
describe an event. It is
submitted that where the fact
situation is a status or
characteristic (the being
something), the enactment is not
given retrospective effect when
it is applied to persons or
things that acquired that status
or characteristic before the
enactment, if they have it when
the enactment comes into force;
but where the fact situation is
an event (the happening of or
the becoming something), then
the enactment would be given
retrospective effect if it is to
be applied so as to attach a new
duty, penalty or disability to
an event that took place before
the enactment."'
Learned Counsel's proposition on
the issue of retrospectivity is
predicated on argument that with
the coming into force of PNDCL
325 the whole issue of
confiscation has been re-opened
and he is therefore entitled to
investigate any confiscation of
property or assets referred to
therein and where appropriate
restore them to their owners.
I have considered the passages
quoted above from the Report
which passages are themselves
taken from DR. DRIEDGER'S
Learned treatise on (pages 191 -
192) and must express my
disagreement with Learned
Counsel on the position he
takes. In the passages just
cited it is stated inter alia
that —
" … where the fact situation is
a status or characteristic (the
being something) the enactment
is not given retrospective
effect when it is applied to
persons or things that acquired
that status or characteristic
before the enactment, if they
have it when the enactment comes
into force."
The above statement sets out the
principle of retrospectivity
very clearly. Thus if the
"status or characteristic" of a
law or legislation is certain or
can be ascertained a subsequent
legislation affecting the same
matters will not raise the
matters afresh. In other words
the subsequent legislation will
not have the effect of
resuscitating the provisions of
an existing law. In the instant
case P.N.D.C.L 325 which by its
title was for (REMOVAL OF
DOUBTS) did not confer any new
rights nor did it resuscitate
any moribund titles in any
properties or assets. The
expression for the removing
doubts in this context therefore
means that the identity of the
confiscated properties and
assets were made more certain by
their being included in the
schedules to that law. Any such
property or asset so mentioned
in the schedules to P.N.D.C.L.
325 shall in accordance with
section 35(1) of the
Transitional Provisions to the
1992 Constitution remain
confiscated to the state and
"shall not be reversed by any
authority under this
Constitution."
Thus immediately preceding bar
would affect the Plaintiff - the
Commissioner for Human Rights
and Administrative Justice. Nor
would any Constitutional
Provision exempt him from
compliance with section 35(1) of
the Transitional Provisions
since there is ample authority
in support of Article 299 to
assure the supremacy of the
Transitional Provisions when it
comes in conflict with a
provision of the Constitution.
Next think it is proper to deal
in this opinion with the issue
whether the Plaintiff in the
exercise of his investigative
functions is "caught by the
statute of limitations or other
limitations of time before or
upon the coming into force of
the 1992 Constitution having
regard to section 13(2) of Act
456." It is conceded by the
parties hereto that the
provisions of the LIMITATIONS
DECREE do not apply to the
exercise of the Plaintiff's
functions since the Plaintiff in
the exercise of his functions
does not constitute a Court. But
the Plaintiff contends that by
virtue of section 13(2) of Act
456 he has a discretion
"to refuse to entertain a
complaint where the complaint
relates to a decision,
recommendation, act or omission
or which the complainant has had
knowledge for more than twelve
months before the complaint is
received by the Commission."
This may well be so. That
section however has a built in
time limit of twelve months.
Where such is the case — and
even though the burden on the
complainant to demonstrate that
he is within the time limit - it
is not the duty of the
Commissioner out of compassion
or a desire to address human
rights issues to exercise his
discretion in such a manner as
would have the effect of opening
a pandora's box of matters upon
which some other committee or
commission has made definite
conclusions - more so when such
conclusions are supported by
government white papers. The age
old principle that it is in the
interest of the public that
there is an end to litigation
must apply to stale claims for
redress. The discretionary power
vested in the Plaintiff must be
exercised in aid of the vigilant
and not to succour the claims of
the indolent. The argument of
the Plaintiff as to the extent
of the exercise of his
discretion being founded on
factors such as
"whether the petitioner has
slept on his rights and the
political climate that existed
during the P.N.D.C.
Administration which made it
impossible or difficult to
challenge the decision of the
then military regime"
cannot be accepted and must be
rejected as an objective test
for determining the exercise of
a discretion.
In the welter of arguments
advanced by the Plaintiff runs
the unbroken cord of the case of
Col. Tachie-Menson. The
Plaintiff presents a simplistic
argument in support of the
Colonel's case and contends that
he is entitled by the terms of
section 35(2) of the
Transitional Provisions to the
1992 Constitution to review that
case and where necessary to
restore his properties and asset
to him. The Plaintiff contends
that in so doing he has at the
back of his mind his own
construction of the expression
"or on any other basis" used in
the sub-section which if
accepted would open wide the
gates of his enquiry into all
confiscated properties.
The parties however agree that
the expression must be construed
ejusdem generis with the
preceding descriptive words.
Thus the expression "or on any
other basis" must be construed
ejusdem generis with the
expression "on the basis of his
holding a public or political
office". The Constitution
defines who is a public officer,
though I do not think the
definition is exhaustive. Indeed
there are existing laws which
classify certain ad-hoc
appointees as public officers
and it is riot inconceivable
that in future such legislation
may occur. I take as an example
a priest or minister of religion
when performing a marriage
ceremony. The expression
"political office" is not
defined in the Constitution.
However, the Electoral laws
define such personalities who
may be responsible for the
management of political
parties. Thus the expression
"or on any other basis" means
"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".
Sub-section (2) of section 35 of
the Transitional Provisions
would therefore read:
"where any property of a person
was confiscated on the basis of
his holding a public or
political office or on the basis
of holding any other public or
political office so designated
by law or akin to such offices
with similar powers or
responsibilities ……"
In my respectful opinion it
matters not whether such public
or political office is held
substantively or honorary. The
important thing is proof that
the confiscated asset 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
sub-section. Construing section
35 of the Transitional
Provisions as a whole, section
35(1) constitutes a claim tight
barrier against the reversal "by
any authority under this
Constitution" of "any
confiscation of any property and
any other penalties imposed...."
while sub-section (2) thereof
merely creates a "chink" wherein
a limited class of persons -
public or political officers -
may obtain redress. In the
instant case Col. C.R.
Tachie-Menson having been
convicted in 1979 a petition by
him to the Plaintiff in 1994
would be squarely caught by
section 13(2) of Act 459.
Nor would that be all. As
already premised, the Colonel's
case is the unbroken cord on
which the whole entitlement of
the Plaintiff's investigative
powers in respect of
confiscation decided under the
former military regimes could be
hung. The Plaintiff contends
that a combination of his powers
under section 35(2) and what he
considers to be the
retrospective effect of
P.N.D.C.L. 435 - which we say is
not the correct view - gives him
the power to review ALL
confiscated property and where
if he 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 will
permit the Plaintiff to ferret
about the archives of the past
military regimes in order to
fulfil the functions of his
office. Such a power will also
be speculative and extend the
limited discretionary power into
areas of constitutional
conflicts. In any case as we
have found the matters under
consideration
"neither raises any issue of
interpretation nor enforcement
of any provision of the 1992
Constitution."
It is enough at this stage to
deal with the Defendant's
objection that the Plaintiff had
no cause of action. A cause of
action is of course a set or
combination of facts which when
traversed gives rise to an
action at law. It must be a
presentation in which a Court of
law would be able to adjudicate
in favour of one or the other of
the contesting parties or,
indeed, against both or all
parties. In other words, there
must be a lis - an issue or
issues between the parties to be
resolved by the Court. In the
instant presentation there is no
doubt that so many issues have
been raised and traversed by the
parties. The Defendant urges
this Court to accept his several
submissions in opposition to the
Plaintiff's contention that he
has power to do the things he
claims in his 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 P.N.D.C.L. 325 and
section 29(3) of the
Transitional Provisions of the
1992 Constitution. Surely it is
to determine the scope, ambit,
limits and parameters within
which any Constitutional or
Statutory body could operate.
This litigation arises and the
several arguments of the parties
have been advanced on the total
misapprehension of the
fundamental difference between a
"function" and a "jurisdiction".
It is for the above reasons that
we unanimously dismissed both
claims by the Plaintiff
Commission.
CHARLES HAYFRON BENJAMIN,
JUSTICE OF THE SUPREME COURT
A.K.B. AMPIAH,
JUSTICE OF THE SUPREME COURT
E.D.K. ADJABENG,
JUSTICE OF THE SUPREME COURT
W. ATUGUBA,
JUSTICE OF THE SUPREME COURT
SOPHIA AKUFO (MS),
JUSTICE OF THE SUPREME COURT
COUNSEL
E.K. OFOSU-QUARTEY FOR THE
PLAINTIFF.
HON. MARTIN D.K. AMIDU, DEPUTY
ATTORNEY-GENERAL
WITH HIM MRS. BETTY MOULD
IDDRISU, CHIEF STATE ATTORNEY
FOR THE DEFENDANT. |