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RULING
ACQUAH, J.S.C:
On 15th July, 1997, Constable
Yebbi and Cpl. Avalifo were
arraigned before the Greater
Accra Regional Tribunal on
charges of conspiracy to steal
and stealing ¢100,000,000.00
contrary to section 23(1) and
124(1) respectively of the
Criminal Code 1960 (Act 29). The
money is said to belong to the
National Democratic Congress (NDC),
a political party registered
under the Political Parties
Registration Law 1992, (PNDCL
281).
In the course of the trial the
accused challenged the
jurisdiction of the tribunal.
They pointed out that under
Article 143(1) of the 1992
Constitution, a regional
tribunal has jurisdiction to try
such offences against the state
and public interest as
Parliament may by law prescribe.
But the offences they were
facing could not be said to be
against the state or public
interest since the money
involved was admitted to belong
to a political party which
obviously is not a state
institution, neither is the
theft of a political party's
money, an offence against public
interest. A Regional Tribunal
can therefore not try such an
offence.
The prosecution sought to resist
the objection by contending that
once Parliament has exercised
its discretion by enacting in
the Court's Act 1993 (Act 459)
section 24(1) thereof, that a
regional tribunal has
jurisdiction in all criminal
matters, it follows that the
tribunal was seised with
jurisdiction in the matter.
But the accused in reply
submitted that section 24(1) of
Act 459 is not consistent with
Article 143(1) of the 1992
Constitution and consequently
null and void. They supported
their contention with the Court
of Appeal's decision in CA
16/97: Jonathan Dey vrs. The
Republic 12th February 1998
(unreported).
The trial Regional Tribunal
accordingly referred the
following issues to this court
under Article 130(2) of the 1992
Constitution:
i. Whether on a true and proper
interpretation of Article 143(1)
Parliament had power to provide
that a Regional Tribunal had
jurisdiction in all criminal
matters.
ii. Whether section 24(1) of the
Court's Act 1993 (Act 459) is
inconsistent with the said
Article 143(1) of the 1992
Constitution and to the extent
of such inconsistency void;
iii. Whether or not the stealing
of monies belonging to a
political party is a crime
against the state or public
interest.
In Jonathan Dey vrs. The
Republic (supra) relied on by
accused at the Regional
Tribunal, the appellant who was
a store keeper of the
complainant, one Mrs. Bertha
Nunyuie at Ho, was charged with
one count of Stealing ¢4,999,400
and ¢2,224,600 being the
proceeds from the sale of cement
and drinks respectively. The
offence was alleged to have been
committed between 19th March and
4th April 1996. He was tried and
convicted by the Ho Regional
Tribunal and sentenced to 3
years I.H.L. In his appeal at
the Court of Appeal, he
contended, inter alia, that the
Regional Tribunal had no
jurisdiction in so far as the
offence levelled against him was
not against the State or public
interest as provided for in
Article 143(1) of the 1992
Constitution. He submitted that
the offence was against Mrs.
Bertha Nunyuie, a private
person, and that section 24(1)
of Act 459 which gave the
Regional Tribunal jurisdiction
in all criminal matters subject
to the Constitution and the
provisions of Act 459, was
inconsistent with Article 143(1)
of the 1992 Constitution.
The Court of Appeal upheld the
arguments of Jonathan Dey and
concluded that the Regional
Tribunal had no jurisdiction in
the matter. As Foster J.A put
it.
"... the property charged to
have been stolen belonged to
Mrs. Bertha Nunyuie. It was not
owned by the state or a public
body. Nor was the property one
in which all the people of Ghana
could claim to be joint owners
with Mrs. Nunyuie, so as to
bring the offence of stealing
within the jurisdictional
competence of a Regional
Tribunal. In the light of the
considerations I have canvassed
in this opinion, the Regional
Tribunal had no jurisdiction to
try the appellant. I would
accordingly allow the appeal
quash the conviction, set aside
the sentence and discharge the
appellant".
Now until the above judgement of
the Court of Appeal is set
aside, the Regional Tribunal is
bound by Article 136(5) of the
1992 Constitution to follow the
questions of law settled in that
decision. The Article reads:
136(5). Subject to clause (3) of
article 129 of this
Constitution, the Court of
Appeal shall be bound by its own
previous decisions; and all
courts lower than the Court of
Appeal shall follow the decision
of the Court of Appeal on
questions of law" (emphasis
supplied).
Yet the Regional Tribunal herein
did not examine Jonathan Dey's
decision to determine whether it
offers answers to the questions
raised for determination of this
court. The obvious issue arising
therefrom is whether a lower
court can in the face of a
binding decision of a higher
court, refer questions already
determined in that decision to
the Supreme Court for
determination.
Of course, the Attorney-General
in his written submission,
paragraph 29 thereof, contended
that in so far as the Court of
Appeal purported to interpret
Article 143(1) of the
Constitution and by implication
rendered section 24(1) of Act
459 inconsistent with that
Article, the Court of Appeal
acted in clear breach of Article
130(1) of the Constitution and
consequently its decision was
invalid. Fair enough! But the
Regional Tribunal offered no
such explanation in failing to
follow that decision.
Be that as it may, the propriety
of this reference in the face of
the decision in Jonathan Dey's
case, has not been raised by
either party. Indeed it appears
that the reference was with the
consent of both parties. We
would therefore proceed to
examine the questions posed for
consideration.
The first two issues are indeed
two sides of the same coin. In
that, issue (1) arises from the
fact that section 24(1) of Act
459 vests regional tribunals
with original jurisdiction in
all criminal matters, subject of
course, to the provisions of the
1992 Constitution. And if the
said section 24(1) is
inconsistent with Article 143(1)
of the 1992 Constitution, then
it follows that Parliament has
no power to vest such original
jurisdiction in all criminal
matters in the regional
tribunals. Issue (2) will
therefore be dealt with first.
Now Article 143(1) of the 1992
Constitution provides:
"A regional tribunal shall have
jurisdiction to try such
offences against the State and
the public interest as
Parliament may by law
prescribe".
Compare the above provision with
Article 140(1) of the same 1992
Constitution dealing with the
jurisdiction of the High Court.
Article 140(1) provides
“140(1) The High Court shall,
subject to the provisions of
this Constitution, have
jurisdiction in all matters and
in particular in civil and
criminal matters and such
original, appellate and other
jurisdiction as may be conferred
on it by this Constitution or
any other law”.
The above provision clearly
gives to the High Court,
jurisdiction in all criminal and
civil matters subject to the
provisions of the Constitution.
Whereas the original
jurisdiction of the regional
Tribunal is confined to "such
offences against the state and
public interest as Parliament
may by law prescribe".
From the clear language of
Articles 140(1) and 143(1) the
High Court and Regional Tribunal
are not meant and were not
intended to have the same
original jurisdiction. Yet
section 24(1) of Act 459
provides:
"Subject to the provisions of
the constitution, this Act and
any other law, a regional
Tribunal shall have concurrent
original jurisdiction with the
High Court in all criminal
matters and shall in
particular..."
In the World Book Dictionary,
the word "concurrent" is
defined, inter alia, as "having
equal authority or
jurisdiction". Certainly the
Constitution did not confer the
same or equal jurisdiction on
the High Court and the Regional
Tribunal.
Furthermore the Constitution did
not grant the Regional Tribunal
jurisdiction in “all criminal
matters”.
In his written submissions, the
Attorney-General attempts to
justify section 24(1) of Act 459
by submitting that all crimes
are by definition, offences
against the State and the public
interest and therefore by
providing that regional
tribunals have original
jurisdiction in all criminal
matters, no inconsistency is
created between such a provision
and Article 143(1). For under
section 1 of Act 29, the word
‘offence’ has the same meaning
as the word ‘crime’. He further
quotes from page 27 of A.N.E.
Amissah’s Criminal Procedure in
Ghana, wherein it is stated:
“The theory of crime is that
crimes are wrongs against the
state which ought to be
prosecuted by the State itself.”
Now it cannot be doubted that
jurisprudentially, every crime
is an offence against the State.
As defined in Baron’s Law
Dictionary, crime is
“Any act which the sovereign has
deemed contrary to the public
good; a wrong which the
government has determined
injurious to the public and
hence, prosecutable in a
criminal proceedings”.
But within this broad or general
sense, it cannot be denied that
some crimes are meant to protect
the person of the individual;
others to protect the peace and
security of the state; while
others protect the environment,
administration of justice,
public office and so on. Thus in
Russell on Crimes, offences are
divided into twelve broad areas.
These cover offences against the
security of the state;
disturbance of the public peace;
the due administration of
justice; public office; the
person, status and reputation of
the individual; property public
or private, nuisance and kindred
offences; trade; criminal
conspiracy; rights and revenue
of the Crown; religion and
public worship; and finally the
law of nations.
Again the criminal Code 1960
(Act 29) treats offences under
four main parts. Apart from part
one which covers preliminary
matters, attempts to commit
crimes, abetment and conspiracy,
part two deals with offences
against the person; part three
covers offences against rights
of property; and part four deals
with offences against public
order, health and morality.
There are therefore divisions
within the broad definition of a
crime. And the framers of the
Constitution cannot be said to
be unaware of these divisions.
The very fact that Article
143(1) talks of "such offences
against the state and public
interest" while Article 140(1)
talks of "all matters and in
particular, in civil and
criminal matters” clearly shows
that the drafters were fully
aware of the divisions within
crime, and therefore intended to
confine regional tribunals to
“such offences against the state
and public interest".
Furthermore from the proceedings
of the Consultative Assembly
which drew up the draft of the
1992 Constitution, it is
evidently clear that after much
debate on the status and
jurisdiction of the public
tribunals, it was finally agreed
that the public tribunals should
be part of the unified judicial
system but with jurisdiction in
certain criminal cases only. Not
in all criminal cases as,
section 24(1) of Act 459 now
provides. For as Mr. Kofi Attor
(CDR) put it, the public
tribunal established under the
PNDC be retained
“as part of a unified judicial
system with jurisdiction to
cover economic crimes, treason,
insurrection, rebellion,
narcotics and other crimes
against the state” See: No. 1
Col. 257 of the Proceedings.
To attempt therefore in section
24(1) of Act 459 to vest
original jurisdiction in all
criminal matters in the Regional
Tribunals, does not only negate
the clear and unambiguous
language of Article 143(1) of
the 1992 Constitution, but also
the intention of the framers of
the Constitution.
But the Attorney-General further
submits that to restrict the
original jurisdiction of the
Regional Tribunal to offences
against the state and public
interest would disable the
Regional Tribunals from
entertaining appeals from the
Community and Circuit Tribunals
in offences other than those
affecting the state and public
interest. For as he points out,
the appellate jurisdiction of
the regional Tribunals according
to Article 143(2) is in relation
“to matters described in clause
(1) of this Article, as may be
prescribed by law”.
In our opinion therefore section
24(1) of Act 459 which vests in
the Regional Tribunal concurrent
original jurisdiction in all
criminal matters with the High
Court, is clearly inconsistent
with the letter and spirit of
the 1992 Constitution. And by
Article 1(2) thereof, same is
null and void. It follows that
on a true and proper
interpretation of Article 143(1)
Parliament had no power to
provide that a Regional Tribunal
had jurisdiction in all criminal
matters.
As already noted, Article 143(1)
empowers Regional Tribunals to
try "such offences against the
state and the public interest"
as Parliament may by law
prescribe. Is the word 'and'
coming in between 'state' and
'public interest' in the
provision, to be read as
disjunctive or conjunctive? In
other words does it mean that
any such offence should be
against both the state and the
public interest;- or is it
enough if the offence is either
against the state or against
public interest?
Generally the word 'and' is
conjunctive and 'or'
disjunctive. But to carry out
the intention of the legislature
it may be necessary to read
'and' in place of the
disjunction 'or' and vice versa:
Anisminic Ltd. vrs. Foreign
Compensation Commission (1969) 1
All ER 208 HL.
Thus in R. vrs. Newbound (1962)
2 QB 102 Winn J held that the
expression "local and public
authorities in section 4(2) of
the Prevention of Corruption Act
1961 did not "mean authorities
which are both local and public
…[but] authorities which are
either local or public.
Again in John G. Stein & Co.
Ltd. vrs O'Halloran (1965) AC
890, section 48(1) of the Mines
and Quarries Act 1954 provided:
"It shall be the duty of the
manager of every mine to take,
with respect to every road and
working place in the mine, such
steps by way of controlling
movement of the strata in the
mine and supporting the roof and
sides of the road or working
place as may be necessary for
keeping the road or working
place secure".
Lord Reid said at page 904
thereof, that he could not
“suppose that it was intended
that in every case the manager
must both attempt to control
movement of the strata and
provide support ... the natural
meaning of the words of the
section is that one or other of
the prescribed methods must be
adopted in every case"
In the instant case, we are not
dealing with an ordinary Act of
parliament but a national
Constitution. And unless there
are compelling reasons for
interpreting the word 'and' in
Article 143(1) as being only
conjunctive, it would be more
desirable to interpret it
liberally to encompass both
conjunctive and disjunctive.
Thus Regional Tribunals can try
such offences against both the
state and the public interest,
or against the state or against
the public interest. The ‘and’
is therefore to be read as
"and/or".
The next issue then is whether
the stealing of monies belonging
to a political party, is an
offence against the state and/or
public interest?
Certainly under our present
system, a political party is not
a state institution in the sense
that it is not set up nor owned
by the state. And therefore the
theft of its money cannot be
said to be a theft of state
money. But is it an offence
against public interest?
Article 295(1) of the 1992
Constitution defines public
interest as follows:
“public interest includes any
right or advantage which enures
or is intended to enure to the
benefit generally of the whole
of the people of Ghana".
(emphasis supplied)
It is significant to note that
the word used in defining public
interest is 'includes' and not
‘means’.
The word 'means' when used in
defining a word usually implies
that the meaning of the word is
restricted to the scope
indicated in the definition
section. On the other hand, the
word 'includes' is often used
"in order to enlarge the meaning
of word or phrases occurring in
the body of the statute; and
when it is so used these words
or phrase must be considered as
comprehending not only such
things which the interpretation
clause declares that they shall
include". Per Lord Watson in
Dilworth vrs. Commissioner of
Stamps (1899) AC 99 at 105.
In Robinson vrs. Barton-Eccles
Local Board (1883) 8 App Cas 798
it was held that the word in
respect of which 'includes' is
used bears both its extended
statutory meaning and its
ordinary, popular and natural
sense whenever that would be
applicable.
Again in Wagen-stein vrs. Graham
(1954) 4 DLR 540 at 542,
O'Holloran J.A. said
"the latter word ('includes’ in
a statutory definition) in
contrast to 'means' is inserted
in an interpretation section to
permit enlargement of the
meaning of terms occurring in
the body of the statute. It
signifies that which is
"included" is in addition to
some thing else that is not
specifically stated to be so
included and may not need to be
so included".
It follows therefore that the
word 'includes' used in defining
public interest in Article
295(1) does not restrict the
meaning of public interest to
the scope indicated in the
definition. For as was correctly
pointed out by the Attorney
General in his written
submissions, public interest
exists even if the interest is
only of a section of the
populace. Thus in Cartwright vrs
Post Office (1969) 1 All ER 421,
the placing of a telegraphic
line on persons land in order to
serve the households of two
adjoining framers was regarded
as of public interest in as much
as an efficient farming industry
was in the public interest.
Again in Miller vrs Hackson
(1977) 3All ER 338, the interest
of a village in preserving a
cricket ground for recreation
and enjoyment was seen as a
public interest which should
outweigh a private interest.
Now the NDC whose money is
alleged to have been stolen is
undoubtedly a political party
registered under the Political
Parties Law 1992 (PNDCL 281);
and by that registration the
party is deemed to have complied
with the relevant provisions set
out in the 1992 Constitution and
PNDCL 281. Article 55(1) of the
1992 Constitution provides that
"Every political party shall
have a national character, and
membership shall not be based on
ethnic, religious, regional or
other sectional divisions".
Again under Article 55(14) every
political party is required by
law
“(a) to declare to the public
their revenues and assets and
the sources of those revenues
and assets; and
(b) to publish to the public
annually their audited accounts"
(emphasis supplied).
Accordingly section 19(1) of
PNDCL 281 provides that every
political party is obliged to
maintain at its head or national
office an accurate and permanent
record of the following:
(a) a list of its membership;
(b) any contribution, donation
or pledge of contribution or
donation whether in cash or in
kind made by the founding
members of the political party;
(c) a statement of its accounts,
showing the sources of its funds
and the name of any person who
has contributed to the funds,
membership dues paid, donations
in cash or in kind and all the
financial transactions of the
political party which are
conducted through, by or with
the head or national office of
the party;
(d) any property that belongs to
the political party and the time
and mode of acquisition of the
property; and
(e) such other particulars as
the Commission may require with
respect to the foregoing or any
other matters.
Section 19 (3) requires every
political party to have its
accounts audited and published
once every year; while section
19(4) empowers each and every
member of the public to inspect
the said audited accounts on the
payment of a fee.
Why should our law impose such
heavy burden on political
parties, and further lay bare
their affairs and finances to
the view and scrutiny of the
general public?
The answer lies in the
experiences of our past history
and the recognition of the
importance of political parties
in democratic government
worldwide. For notwithstanding
the minuses of political
parties, it has now become
universally accepted that
political parties are
indispensable mechanism for the
conduct of truly democratic
government. Lord Bryce, in his
Modern Democracies 1921, points
out that political parties are
inevitable and that no free
country has been without them.
While he agrees that many people
at different times have attacked
the evils of the party system,
yet no one has shown how
representative government could
be worked without them. For him
"The parties keep a nation's
mind alive, as the rise and fall
of the sweeping tide freshens
the water of long ocean inlets.
Discussions within each party,
culminating before elections in
the adoption of platform, brings
certain issues to the front,
defines them, expresses them in
formulas which, even if tricky
and delusive, fix men's minds on
certain points, concentrating
attention and inviting
criticism. So few people think
seriously and steadily upon any
subject outside the range of
their own business interest that
public opinion might be vague
and effective if the party
searchlight were not constantly
turned on". (quoted at page 107
of the Memorandum on the
proposals for a Constitution
1968)
For the above and other reasons,
we the people of Ghana on our
quest for a good Governance
recognised that political
parties would enable us in
achieving our objective of
establishing
“a framework of government which
shall secure for ourselves and
posterity the blessings of
liberty, equality of opportunity
and prosperity" - See the
Preamble to the 1992
Constitution.
And as the late Professor E.A.
Boateng noted at page 37 his
book, Government and the People
1996:
"Because of the pre-eminence of
their role in the political
process, political parties have
now become virtually the only
basis for contesting political
power in democratic countries.
Their organisation mode of
operation, their finances and
objectives are accordingly
matter of widespread public
interest”. (emphasis supplied)
It is therefore clear that from
the elaborate legal requirements
and the hopes and aspirations of
Ghanaians in political parties
to secure for them the earthly
kingdom of Heaven, political
parties are an essential part of
the framework of government, and
that their operations and
finances are controlled by the
State and the public at large.
Accordingly, if the NDC alleges
that its ¢100,000,000.00 had
been stolen, the members of the
party who are owners therefore
are obviously interested in
ensuring that those at fault are
brought to book. The very fact
that the theft affects directly
the members of the party, does
not mean that no public interest
exists in the theft. As already
demonstrated, and further held
in R. vrs. Sussex Confirming
Authority, ex parte Tamplin &
Sons Brewery (Brighton) Ltd.
(1937) 4 All ER 106 at 112 per
Justice Parcq:
"It is fallacious to say that a
condition is not in the public
interest, or may not be in the
public interest, if it is the
case that a great many of those
persons who constitute the
public are not directly affected
by it; and it is equally
fallacious to say that a
condition cannot be in the
public interest if a great many
members of the public neither
know nor care anything about
it".
At page 108 Lord Hewart LCJ put
it this way:
"If the condition is in the
interests of a considerable part
of the public, then it is true
to say that it is in the
interests of the public, of
which that is a part. It would,
I think, be fantastic to argue
that a condition cannot be in
the interests of the public
unless it is in the interest of
every part of the public … If it
is in the interests of the
public concerned, then it is in
the interests of the public as a
whole". (Emphasis supplied)
But in the instant case, the
alleged theft of the money is
not in the interest of only the
members of the NDC, but also the
entire Ghanaian public who are
by law entitled to inspect and
take copies of the audited
accounts of the NDC.
It cannot therefore be denied
that under our law governing the
establishment and running of
political parties, the theft of
money belonging to a political
party is an offence against the
public interest. Indeed the
numerous press comments in the
various newspapers and talk
shows at the various FM Radio
Stations on the alleged theft
testify to the general public
interest in the matter.
Accordingly we answer the issues
posed for our determination as
follows:
i. On a true and proper
interpretation of Article
143(1), Parliament had NO power
to provide that a Regional
Tribunal had jurisdiction in all
criminal matters.
ii. Accordingly that part of
section 24(1), which reads that
"a Regional Tribunal shall have
concurrent original jurisdiction
with the High Court in all
criminal matters" is
inconsistent with the said
Article 143(1) of the 1992
Constitution and to the extent
of such inconsistency, void.
The remaining part of section
24(1), (a)(b)(c) are consistent
with Article 143(1).
iii. The stealing of monies
belonging to a political party
is a crime against public
interest.
Consequently the Regional
Tribunal trying Constable Yebbi
and a Corporal has jurisdiction
under Article 143(1) of the 1992
Constitution.
ACQUAH,
JUSTICE OF THE SUPREME COURT
AMPIAH,
JUSTICE OF THE SUPREME COURT
KPEGAH,
JUSTICE OF THE SUPREME COURT
ADJABENG,
JUSTICE OF THE SUPREME COURT
MS. AKUFFO,
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Anthony Gyambiby, Principal
State Attorney, for the
Republic.
Mr. Efah Dateh for Accused. |
