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JUDGMENT
PROFESSOR MODIBO OCRAN, JSC.
INTRODUCTION.
This case came before us by way
of an appeal from the Judgment
of the Court of Appeal,
delivered on 27th
November 2003, in which the
latter court upheld the
rejection by a High Court of a
motion of submission of no case
made after the close of the
prosecution’s case. The
appellant was arraigned before
the High Court on three counts
of wilfully causing financial
loss to the state, contrary to
section 179A(3)(a) of the
Criminal Code, 1960(Act 29), as
amended; and on a fourth count
of intentionally misapplying
public property, contrary to
section 1(2) of the Public
Property Protection Decree,
1977(SMCD 140).
Counsel for the Appellant and
the Director of Public
Prosecution have obliged us
respectively with “Submissions
On Behalf of Appellant” and
“Statement of Case by the
Prosecution/Respondent”, along
with a string of local and
foreign judicial opinions to
buttress their cases. The
submissions by Appellant’s
Counsel were rather detailed,
and actually amounted to
submissions within submissions.
Nonetheless, because the liberty
of his client is at stake, we
will accord them the detailed
consideration they deserve.
GROUNDS OF APPEAL ;
The Appellant has filed nine
grounds of appeal against the
decision of the Court of Appeal
delivered on 27 November 2003.
By regrouping and dealing with
some of the grounds of appeal
together in the Submission on
Behalf of the Appellant, his
Counsel implicitly acknowledges
that there is some overlap
between the various grounds.
Nonetheless, we will attempt as
far as possible to deal with all
aspects of the Grounds of Appeal
raised by Counsel under one head
or another. Rather than setting
out the grounds of appeal
seriatim, we state each
ground or related grounds of
appeal separately, followed
immediately by our consideration
and holding on the matters
raised therein, before moving on
to deal with the next ground of
appeal.
GROUND(A).
In Ground (a),
Appellant’s Counsel states that
“the Court of Appeal erred in
using a repealed law as the
basis for its failure to enforce
Article 19(5) of the
Constitution when the charges
against the accused were not
brought under that law.”
Article 15(5) of the
Constitution essentially
prohibits the creation of and
punishment for retroactive
crimes. Counsel’s submission in
this regard is a reference to
the portion of the Judgment of
the Court of Appeal in which
Justice Amonoo-Monney took note
of the argument of the Director
of Public Prosecutions (DPP)
that section 3 of Act 458, which
created the offence with which
the appellant is charged in the
first three counts, i.e. section
179A(3)(a) of the Criminal Code,
was a direct successor of
section 9(1)(a) of the Public
Tribunals Law, 1984 [PNDCL 78].
The latter enactment came into
force on 21st
December 1983 but was repealed
on 6th July, 1993 by
Act 459. Section 9(1) (a) of the
Law did contain the offence of
“wilfully causing monetary loss
to a public body”.
Nothing in the Judgment of the
Court of Appeal suggests that
its decision was based on the
repealed PNDCL 78. The Court
would indeed have been in error
if it did so. For, while PNDCL
78 was in force in 1991 when the
events leading to the indictment
of the appellant began to
unfold, that statute was not
referred to in the charge sheet,
nor was it subsequently amended
to reflect what would have
amounted to a critically
important change. However, it
seems to us that Justice
Amonoo-Monney was merely making
a reference to the historical
fact that the essence of the
crime of causing financial loss
to the state was not new to our
criminal law. Nowhere in the
judgment of the Court of Appeal
did the Court endorse
retroactive crimes. We will
therefore give no further
consideration to Appellant
Counsel’s submissions on the
accepted presumption against
retroactivity embedded in the
1992 Constitution.
As Counsel himself notes in his
Statement (p.13), the real issue
here is “… whether in fact any
action was undertaken by the
accused, after section 179A (3)
(a) had come into force, that
could give rise to the criminal
liability alleged against him
under this legislation.” As
regards the latter issue,
Appellant Counsel has made
separate and important
submissions, all seeking to
establish their core argument
that in applying section
179A(3)(a) to the Appellant for
acts purportedly done in 1991,
while the provision in question
did not come into effect until
July 1993, the Director of
Public Prosecutions has in
effect applied this provision
retroactively, contrary to
Article 19(5) of our
Constitution. The argument is
that the charge against the
Appellant is founded on the
signing on 11th March
1991 of the Guarantee Agreement
between Ghana National Petroleum
Corporation (GNPC) and Caisse
Francaise, under which GNPC
assumed the guarantor’s
obligation to make payments to
the latter agency in the event
of a default in loan repayments
by the debtor, Valley Farms
Company Ltd. There was indeed a
default, and GNPC was then
called upon to make payments,
and did make payments in 1996.
The problem here can be restated
in simple terms. If the
signing of the Guarantee
Agreement in 1991 is the
purportedly criminal act, then a
case of retroactive use of the
Criminal Code provision arises;
and the Constitution will not
sanction such a prosecutorial
act. If the payments in
1996 constituted the offence
charged, there would be no
question of retroactivity; and
the main remaining question for
determination is whether the
Appellant had anything to do
with the payments by GNPC. This
appears to be the stand of the
prosecution. If, however, the
position is taken, as indeed
Counsel for the Appellant has
done, that it is illogical or
impractical to separate the
execution of the Guarantee
Agreement and the payments made
in satisfaction of the guarantee
obligations, then we do have a
real problem on our hands. On p.
13 of Counsel’s Submissions, he
refers to “the position we have
maintained that this whole case
against the appellant is FOUNDED
on the act of the appellant in
entering into the Guarantee
Agreement….The discharge of a
valid legal obligation by making
payments in 1996 on a guarantee
entered into in 1991, even if
there were evidence that the
payments were authorized by the
accused, could not constitute a
criminal offence.” On p. 15,
Counsel continues thus: “…As
long as such obligation is
acknowledged to have been
validly created, it cannot by
virtue of a subsequent event,
become an unlawful obligation
whose performance results in
criminal liability.”
Some distinctions need to be
made at this point. First, the
genesis or background to a
criminal case may be one thing;
the immediate facts and the
criminal provisions upon which
the charge is legally founded
may be another. Secondly, the
contractual validity of an
agreement may be one thing; but
the legality of execution of the
contractual obligations assumed
thereunder may be another.
Counsel for the Appellant would
acknowledge this latter point in
view of the following
hypothetical situation he raises
on p.15.:“…Thus, if a new law
had been passed which said no
payments must be made by a state
corporation on contracts of
guarantee already entered into,
then an officer of a state
corporation who instructed
payment in defiance of the new
legislation would be exposed to
criminal liability…”. This
alleged crime has arisen in the
context of corporate execution
of contracts. Thus it is
appropriate to note that the
hypothetical raised by Counsel
would probably have amounted to
force majeure, and
therefore lead to excused
non-performance, i.e.
non-performance without ensuing
damages. Thus there is no
intrinsic inseparability
between the Guarantee Agreement
of 1991 and its execution
through default payments in
1996. Still, it is the duty of
the prosecution to show why,
in a particular case,
the execution of a presumably
valid contract by a state
corporation would amount to a
criminal action. As the
Appellant Counsel correctly
points out, there was no
specific law in the case before
us which criminalized the
execution of the Guarantee
Agreement. But was there
something else in the
circumstances under which the
execution was done that would
amount to a criminal act on the
part of a public official, such
as a criminally reckless
decision to make payments in the
face of credible evidence that
the monies would never be repaid
to the guarantor corporation, or
that the transaction in question
was entered into recklessly and
unprofessionally?
Putting together all the
submissions made under Ground
(a) of the Grounds of Appeal, we
hold that the Court of Appeal
did not use a repealed law as
the basis for its failure to
enforce Article 19(5) of the
Constitution. We also hold that
if the case should go to trial,
it would be for the trier of
facts to determine whether, in
fact, there were any factors in
the case that would have made
the guarantee payments in 1996
unlawful within the terms of
section 179A(3)(a) of the
Criminal Code 1960 as amended.
At this stage, this court is
only concerned with the question
whether the prosecution has led
prima facie evidence pointing to
such misconduct. This matter is
analysed further under Ground
(f) of the Grounds of Appeal.
GROUNDS (B) AND (C) .
Grounds (b) and (c) are stated
as follows:
“The Court of Appeal erred in
not enforcing Article 19(11) of
the Constitution;”
“The Court of Appeal erred in
regarding references in
textbooks and dictionaries as
satisfying the constitutional
requirement of a definition
by ‘written law’ of an
offence for which a person is
convicted.”
Article 9(11) does indeed
prohibit a person’s conviction
for a criminal offence unless
the offence involved is defined
and the penalty for it is
prescribed in a written law.
Counsel for the Appellant argues
that s. 179A(3), the criminal
law provision upon which Counts
1,2, and 3 are based, violates
Article 9(1) in that “in no
written law can anyone find the
definition of the offence in
S179A(3)….”. Elsewhere, he
complains that “no written law
definition is cited” in that
provision; and that words such
as “loss”, “wilful”, “State” are
left undefined in the statutory
provision.
Here, however, we believe
Counsel for the Appellant
grossly misconceives the import
of Article 9(11). It is our
understanding that this
provision was meant to outlaw
so-called common law and
customary law crimes that have
not been preserved in statutory
law. The framers of the
Constitution did not
intend to order legislators to
supply a lexicon of words within
the four corners of each and
every piece of legislation that
sought to create a crime. The
provision requires a written law
of crimes, that is, the creation
of crimes in a written form; but
not, as Counsel puts it, a
“written law definition” of all
words used in a criminal
provision. Not only would such a
task prove futile or
impracticable; it would also
ignore the fact that no statute
exists in isolation from the
general criminal law of any
legal system, in particular,
Criminal Codes and the Criminal
Procedure Codes which may
appropriately be described as
forming the beams of criminal
jurisprudence. Moreover, the
language of the law, though
specialized, cannot be
self-contained and therefore
assumes as its foundation the
general language of the country
in which the legal system
functions. No doubt, many
statutes provide what is called
intrinsic aid, that is,
internal definitions and even
examples and scenarios of
meanings. But this cannot be
done, and is not expected to be
done, for each word or term that
is deployed in creating a crime.
And where no intrinsic aid is
provided, the legal system has
always resorted to extrinsic
aid in the difficult matter
of construing or interpreting
legislation. Such acceptable
extrinsic aid has always
included specialized and general
language dictionaries. In this
connection, we note Oxford
Professor H.L.A. Hart’s
discussion of the perennial
problem of interpretation in
terms of the core and penumbral
meanings of words. While it is
clear that words falling into
the penumbral meaning create the
greatest problem of
interpretation, nowhere does
Hart suggest that words within
the core will never require
judicial interpretation.
We hold that a criminal
provision is not
unconstitutional merely because
it does not contain intrinsic
definitions of all terms used;
and we also hold that a resort
to both specialized and general
dictionaries constitute a
time-honoured and acceptable
form of extrinsic aids to
interpretation in our judicial
system.
However, a court could still be
in error in its interpretation
of particular words with the aid
of the recognized tools of
interpretation. In this
connection, Counsel for the
Appellant has questioned the
correctness of the
interpretation of key words such
as “wilful”, “financial loss”,
“the state”, “misapplied”, and
“public property”, in the two
statutory provisions underlying
the charges in this case. We
will postpone such matters and
deal with them together with
Ground (e) of the Grounds of
Appeal.
To return to the core complaint
in Ground (c) of the Grounds of
Appeal, we believe the argument
by Appellant Counsel regarding
dictionaries and definitions is
but a preliminary step to a more
serious and general attack on
the constitutionality of this
particular criminal provision on
causing financial loss to the
state based on the
constitutional
void-for-vagueness doctrine.
This issue has indeed come
before the Supreme Court in the
case of Mallam Ali Yusuf Issah
v. the Republic [unreported
judgment of the Supreme Court.
Criminal Appeal No. 4/2001,
dated 2nd April
2003]. However, Counsel invites
us to re-consider this Court’s
earlier decision because of our
duty to uphold the Constitution,
including the provisions of
Article 19(11). In view of the
continued public interest and
even outcry on this law, we
accept the invitation.
Counsel has drawn our attention
to a number of cases outlining
the parameters for determining
the constitutionality or
otherwise of enacted
legislation. Among the cases
cited is the 1972 US Supreme
Court case of Papachristou
et. al. v. City of Jacksonville
[ 405 U.S. 156; 92 S. Ct.
839; 31 L. Ed. 110; 1972 U.S.
Lexis 84], involving a statute
that dramatically exposes the
real dangers and capacity for
mischief-making embedded in
vague and overly broad statutes.
An anti-vagrancy Ordinance
passed by the city of
Jacksonville in Florida provided
that “rogues and vagabonds, or
dissolute persons who go about
begging, common gamblers,
persons who use juggling or
unlawful games or plays, common
drunkards, common night walkers,
thieves, pilferers or
pickpockets, traders in stolen
property, lewd, wanton, and
lascivious persons, common
railers and brawlers, persons
wandering or strolling around
from place to place without any
lawful purpose or object,
habitual loafers, disorderly
persons, persons neglecting all
lawful business and habitually
spending their time by
frequenting houses of ill fame,
gaming houses, or places where
alcoholic beverages are sold or
served, persons able to work but
habitually living upon the
earnings of their wives or minor
children, shall be deemed
vagrants; and, upon
conviction…shall be punished as
provided for Class (D)
offences”, i.e. 90 days’
imprisonment, $500 fine, or
both.”
We believe no one involved in
the Tsikata case presently
before us would argue that the
Ghanaian statute on wilfully
causing financial loss to the
state rises anywhere close to
the level of mischievous
vagueness demonstrated in the
Jacksonville Ordinance cited
above. Our interest in the case
arises from its enunciation of
the meaning and acceptability of
the void-for-vagueness doctrine
in constitutional law.
Eight defendants arrested under
this Jacksonville City vagrancy
statute challenged its
constitutionality, and the case
found its way up to the US
Supreme Court. Mr. Justice
Douglas, delivering the opinion
of the Court, threw more light
on the meaning of the doctrine
of void- for- vagueness. “This
Ordinance,” he wrote, “is void
for vagueness both in the sense
that it ‘fails to give a person
of ordinary intelligence fair
notice that his contemplated
conduct is forbidden by the
statute’…and because it
encourages arbitrary and erratic
arrests and convictions”.
Douglas went on to quote the
earlier Supreme Court case of
United States v. Reese [92
U.S. 214, 221], in which the
Court declared that “it would
certainly be dangerous if the
legislature could set a net
large enough to catch all
possible offenders, and leave it
to the courts to step inside and
say who could be rightfully
detained, and who should be set
at large”.
In the more recent 1982 U.S.
Supreme Court case of
Kolender, Chief of Police of San
Diego, et. al. v. Lawson
[461 U.S. 352; 103 S. Ct. 1855;
75 L. Ed. 2d 903; 1983 U.S Lexis
159] also cited by Appellant
Counsel, the Court had occasion
to revisit the problem of
void-for vagueness statutes.
This case involved a provision
of the California Penal Code,
which required persons who
loitered or wandered the streets
to provide “a credible and
reliable identification”, and to
account for their presence when
requested by a peace officer.
Appellant, who had been arrested
and convicted under the statute,
brought an action in federal
court challenging the statute’s
constitutionality. On final
appeal to the U.S. Supreme
Court, it was held that the
statute was unconstitutionally
vague on its face within the
meaning of the Due Process
Clause of the Fourteenth
Amendment by failing to clarify
what is contemplated by the
requirement that a suspect
provide a credible and reliable
identification. As such, the
statute vested virtually
complete discretion in the hands
of the police to determine
whether the suspect has
satisfied the statute and must
be permitted to go on his way in
the absence of probable cause to
arrest.
Justice O’Connor, delivering
the opinion of the Court,
clarified the problem even
further. She wrote: “Although
the doctrine focuses both on
actual notice to citizens and
arbitrary enforcement, we have
recognized recently that the
more important aspect of the
vagueness doctrine is not actual
notice, but the other principal
element of the doctrine--the
requirement that a legislature
establish minimal guidelines to
govern law enforcement. Where
the legislature fails to provide
such minimal guidelines, a
criminal statute may permit a
standardless sweep that allows
policemen, prosecutors, and
juries to pursue their personal
predilections”.
In a much earlier US Supreme
Court case of United States
v. L. Cohen Grocery Company [255
U.S. 81; 41 S. Ct. 298; 65 L.
Ed. 516; 1921 U. S. Lexis 1795],
the defendant had been indicted
pursuant to a 1917 statute which
imposed a fine or imprisonment
upon any person who wilfully
exacted excessive prices for
“any necessaries”. The district
court quashed the indictment on
the basis that the law was
unconstitutionally vague. In
sustaining the quashing of the
indictment, the US Supreme
Court, speaking through Chief
Justice White, found that the
statute provided no
ascertainable standard of guilt,
and was thus repugnant to the
Fifth and Sixth Amendments of
the US Constitution, which
required due process of law and
demanded that persons accused of
crime be adequately informed of
the nature and cause of the
accusation.
However, while the United States
as appellant lost the case, the
submission of the Solicitor
General competently stated the
broad parameters of the problem
of overbroad legislation, and
also contained what might be
considered as a reasonably fair
test for distinguishing between
acceptable and unacceptable
forms of such legislation. He
wrote:
“Undoubtedly, a statute creating
an offence must use language
which will convey to the average
mind information as to the act
or fact which it is intended to
make criminal. [United States v.
Brewer, 139 US 278, 288]. But
statutes describing crimes must
necessarily be more or less
general in their terms. It is
impossible to fix rules of
conduct to cover every
circumstance or condition that
may arise. It is perhaps equally
impossible to frame a statute so
that all men will agree as to
just what circumstances will or
will not constitute the crime
denounced. There are certain
standards both of law and of
fact which may be assumed in
enacting legislation. When these
standards are invoked, a
question of fact is presented
for the jury to determine under
the particular facts of each
case, and it is no objection to
the statute that it is necessary
to invoke these external
standards.[Miller v. Strahl, 239
US 426, 434]”.
The string of persuasive
authorities cited by Appellant
Counsel, while extremely helpful
in clarifying the constitutional
doctrine of void-for vagueness
in our own constitutional
system, are not particularly
germane to the case before us,
unless counsel for the accused
intended to challenge the
constitutionality of the main
statute upon which the accused
has been charged, that is, the
offence of wilfully causing
financial loss to the state.
This appears to be his
intention, by virtue of his
invitation to this Court to
“reconsider its earlier
decision” on the
constitutionality of s. 179A(3)
of the Criminal Code,1960, Act
29, as amended.[p.17 of the
Submissions]. If that is the
intention, we would have to
refer to more direct authorities
on the constitutionality of the
Ghanaian statute in question,
namely, two decisions of the
Supreme Court of Ghana delivered
by our learned sister Justice
Akuffo, JSC in 2003.
In Nana Adjei Ampofo v. The
Attorney General [Writ No.
3/2003, 10th December
2003], the plaintiff sought
a declaration to the effect that
section 179A (3)(a) of the
Criminal Code 1960(Act
29)----the law on causing
financial loss to the state---
was inconsistent with the letter
and spirit of the Constitution.
Among the issues raised in the
Plaintiff’s Statement of Case
was the argument that the
statute in question was void for
vagueness or void for
over-breadth; and that, while
these doctrines were not
expressly provided for in our
Constitution, they were inherent
in all democratic constitutions
such as our 1992 Constitution.
The Supreme Court refrained from
directly addressing these
contentions because it took the
position that it did not have
jurisdiction in the matter. The
Court adopted the view that
Articles 2(1) and 130(1) of the
Constitution, when read
together, indicated that it did
not have original
jurisdiction in the enforcement
of the fundamental human rights
contained in Chapter 5, which
fell into the domain of the High
Court. To the extent that the
Plaintiff’s Statement of Case
had made references to any
specific provisions of the
Constitution at all, it only
invoked Articles forming part of
the said Chapter 5.
Nonetheless, our Supreme Court
acknowledged in Nana Adjei
Ampofo that “doctrines such
as those relied upon by the
plaintiff… [Were] admittedly
widely accepted tools for the
construction of deeds and
statutes.” Thus our
constitutional case law has
already taken affirmative
cognizance of the doctrine of
void-for-vagueness. The absence
of provisions in the 1992
Constitution directly mentioning
the doctrine is of no import to
its relevance and validity.
Indeed, in the United States
Supreme Court case of
Papachristou et.al, cited supra,
Justice Douglas put the general
rationale for the doctrine in a
wider context. “Living under a
rule of law’’, he wrote,
“entails various suppositions,
one of which is that all persons
are entitled to be informed as
to what the state commands or
forbids”. And in Kolender ,
Chief of Police of San Diego,
(cited supra), the US
Supreme Court declared that the
doctrine of void-for vagueness,
even though not expressly
mentioned in the US
Constitution, was squarely
placed within the ambit of the
Due Process Clause of the
Fourteenth Amendment. The Due
Process Clause, it should be
noted, is analogous to Articles
14 and 19 of the 1992
Constitution of Ghana. We
therefore hold that the void-for
vagueness doctrine represents a
legitimate standard under the
1992 Constitution for the
judicial review of legislation.
But that is not to say that the
particular statute in question,
section 179A (3) (a) of the
Criminal Code 1960(Act 29), is
constitutionally void for
vagueness. In a second decision
of our Supreme Court, Malam
Issa v. The Republic [Unreported
CRA 28/2001, 2nd
April 2003], delivered by
our learned sister Justice
Akuffo, J.S.C, the
constitutionality of this very
statute was raised. The Court
determined that: “the charge
based on…section 179A (3)(a) is
constitutional and has been
legitimately laid under the
Criminal Code. The charge and
the provisions under which it
was brought have in no way
violated the provisions of
article 19 of the Constitution.”
We affirm this position and
hold, for the avoidance of
doubt, that section 179A (3)(a)
of the Criminal Code 1960(as
amended) is not void for
vagueness.
GROUNDS (d), (h), (i)
Ground (d) states that “ the
judgment of the Court of Appeal
was contradictory in claiming on
the one hand that the Court was
not to make findings of fact and
yet proceeding to make selective
findings of fact and not taking
into account the evidence as a
whole”.
Ground (h) contends that “the
Court of Appeal erred in its
interpretation and application
of the Evidence Decree”.
And Ground (i) states that “the
Court of Appeal erred in seeking
to overrule the decision of a
higher court”.
It is trite law that an
appellate court is not a trier
of facts. In other words, it
will not, on its own, determine
the truth or falsity of matters
alleged by the parties and their
witnesses at any stage of the
trial. To the extent that the
trial court has made
determinations as to facts, the
appellate court will ordinarily
go along with them. But it is
also accepted that in the case
of an appeal on a submission of
no case, the court, for its own
limited purpose, will have to
consider the evidence at the
trial court to the extent that
it is necessary to determine
whether the requisite level of
proof was present in respect of
all the essential ingredients of
the offence charged. This does
not put the appellate court in
the position of the trial court
in any significant sense, for as
indicated above, the trial
court, if the case should go
back for trial, will be the
ultimate determinant of the
veracity of the evidence and its
sufficiency for the purpose of
conviction. The appellate court
will not make fresh findings of
fact; but, by the same token,
it cannot avoid commenting on
aspects of the evidence
presented by either side as part
of its task of assessing
whether, for its limited
purpose, the requisite level of
evidentiary burden has been
reached. Such an exercise would
not amount to “making selective
findings of fact”.
In arguing Ground (h) of the
appeal, Counsel for the
Appellant insists that at the
stage of submission of no case,
just as at the conclusion of a
full trial, the prosecution has
the burden of proof beyond
reasonable doubt.
This submission is, in many ways
the crux of this whole case,
that is, the criteria for the
determination of the
circumstances under which a
submission of no case may be
upheld. Historically, this
matter has posed conceptual
difficulties for our courts as
well as those in other common
law jurisdictions. We therefore
take this opportunity to
consider it at some length and
to restate the law as we
understand it.
Counsel for the Appellant has
cited cases from our own courts,
from the United States, and
England to press home their
point of view. In Ghana, prior
to the 1975 case of Apaloo
and Others v. The Republic [1975
1 GLR 156], there had been
some confusion as to the
appropriate standard of evidence
for the prosecution to satisfy
in order to survive a submission
of no case. Justice Amissah, in
his Criminal Procedure In
Ghana (1982), captured this
earlier confusion when he wrote
on p. 130 :
“In R v. Ojojo [ (1959) 2
GLR 207 ], the Court of Appeal
asked why the defence was called
upon if there was doubt in the
prosecution’s case at the close
of it.” He continued: “ This
would seem to indicate that the
standard at this stage is proof
beyond reasonable doubt…But this
does not seem to have been
approved by the Supreme Court in
State v. Sowah & Esssel
[(1961) GLR (Part II) 743], in
which the court seems to be
saying that whether or not the
prosecution has proved its case
beyond reasonable doubt is a
question which must be left
until the end of the whole
case…”
In Apaloo and Others v. The
Republic (supra), Chief
Justice Azu Crabbe, speaking for
the Court of Appeal, which in
1975 was the highest court of
the land, stated the criteria
for a successful submission of
no case in no uncertain terms.
In a rather exasperated tone,
the Chief Justice wrote:
“….There has recently sprung up
the practice by some counsel to
make a submission of no case to
answer in the teeth of direct
cogent evidence implicating the
accused in the crime charged.
This invariably delays the
dispatch of work in the criminal
courts; and this court now
considers it necessary to
re-state the tests for making a
submission of no case. The
circumstances in which a
submission of no case may
successfully be made are:
a) When there has been no
evidence to prove an
essential
element in the crime charged;
(b) When the evidence adduced by
the prosecution has been so
discredited as a result of
cross-examination or is so
manifestly unreliable that no
reasonable tribunal could safely
convict upon it.”(supra
p.175)
It must be noted, in fairness
to the defence, that the phrase
“no evidence to prove an
essential element” in the above
formulation of Chief Justice Azu
Crabbe, does not mean literally
no evidence by the prosecution.
There could be some evidence,
but not enough to remit the case
for a full trial. In the 1868
English case of Ryder v.
Wombwell [1868 L.R. 4 Exch. 32
@39], Willis J. sought to
explain this phrase in the
context of trials involving
juries. He stated: “It was
formerly considered necessary in
all cases to leave the question
to the jury if there was any
evidence, even a scintilla, in
support of the case; but it is
now settled that the question
for the judge (subject of course
to review) is…not whether there
is literally no evidence but
whether there is none that ought
reasonably to satisfy the jury
that the fact sought to be
proved is established”.
In seeking to explain this
matter further in the context of
a jury trial, Crabbe J.S.C.,
after referring to Ryder
v.Wombwell in the 1962 Ghana
Supreme Court case of The
State v. Ali Kassena [1962 1
GLR 144 @149], contrasted the
above situation with the
standard of proof at the close
of the entire case. Justice
Crabbe wrote: “The question
which the judge has to consider
at the close of the case in a
trial on indictment is
‘whether the prosecution has
given reasonable evidence of the
matters in respect of which it
has the burden of proof’. It is
for him as a matter of law to
determine whether the evidence
adduced has reached that
standard of proof prescribed by
law; and for the jury to
determine whether that standard
has in fact been satisfied…”
Indeed, if the submission of
no case is made just at the
close of the prosecution’s case
and cross-examination of its
witnesses, how could one
seriously speak of proof beyond
reasonable doubt when the
defence has not had a full
chance of punching holes in the
prosecution’s case to possibly
raise reasonable doubt in the
minds of the trier of facts, by
calling its own witnesses and
presenting the counsel’s
address? It seems as if we have
to look for a lower standard of
proof at this preliminary stage
in the criminal proceedings.
In the United States, the
criteria for submissions of no
case, formerly known as
“directed verdict” and now
referred to as “judgment of
acquittal”, have had a difficult
history as well. Under US law,
the motion for judgment of
acquittal can actually be made
at three separate points in a
trial. It can be done
immediately following the
prosecution’s case (as is the
case presently before us); it
can be requested after the
defence case and before the
matter is submitted to the jury
(if it is a jury trial); and it
can also be done after a
conviction from the jury,
whereby the matter is raised
with the trial judge and/or
appellate court. Probably
because of the different points
in the trial at which the motion
might be made, there had been a
long-standing confusion in the
case law as to whether the same
language depicting the burden of
proof can be used accurately in
all situations. Discussion of
this problem in US law generally
assumes the presence of juries
because of the presumed
constitutional right to a jury
trial. We therefore need to make
appropriate intellectual
adjustments in seeking to
utilize their experience in this
area of criminal procedure.
The US case that perhaps
explains the historical
confusion most succinctly, but
also in our view, lays down the
appropriate standard with
regards to judgments of
acquittal made immediately after
the prosecution’s case, is
Curley v. United States [81 U.S
App. D.C. 389, 160 F. 2d 229;
1947 U.S. App. LEXIS 3169],
decided in 1947 by the United
States Court of Appeals for the
District of Columbia. Here, at
the conclusion of the
prosecution’s case, the
defendants moved for directed
verdicts of acquittal. The trial
court denied their motions. They
were subsequently convicted,
whereupon they appealed. The
Court of Appeals affirmed the
defendants’ convictions on
the grounds that there was
substantial evidence to support
their conviction, and that the
trial court did not err in
denying their motions for
directed verdicts.
In seeking to state the correct
rule for motions for judgments
of acquittal, Justice Prettyman,
speaking for the Court,
identified what he believed to
be the source of the confusion
from a passage in the Court’s
own earlier decision in
Hammond v. United States[1942 75
US App. D.C. 397, 127 F.2d
752,753] which read as
follows: “Unless there is
substantial evidence of facts
which exclude every other
hypothesis but that of guilt, it
is the duty of the trial judge
to instruct the jury to return a
verdict for the accused; and
where all the substantial
evidence is as consistent with
innocence as with guilt, it is
the duty of the appellate court
to reverse a judgment against
him.”
Prettyman explains that the
confusion seemed to have arisen
from the failure to observe the
clear difference between the
tests applicable to a motion for
a directed verdict and the tests
by which a jury must determine
its verdict. He notes that
originally the language quoted
in Hammond was used in
charges to the jury. He
continued: “…that language has
been repeatedly recited by
various courts as the rule which
must govern a trial judge in
passing upon the motion for a
directed verdict…[W]e are of the
opinion that that statement is
erroneous for that purpose, or
at least misleading. It is a
correct guide for a jury in
reaching a verdict.”
Justice Prettyman then goes on
to state what the Court believed
to be the correct rule thus:
“The true rule…is that a trial
judge, in passing upon a motion
for a directed verdict of
acquittal, must determine
whether upon the evidence,
giving full play to the right of
the jury to determine
credibility…. a reasonable mind
might fairly conclude guilt
beyond a reasonable doubt…;
if there is no evidence upon
which a reasonable mind might
fairly conclude guilt beyond a
reasonable doubt, the motion
must be granted. If he concludes
that either of two results, a
reasonable doubt or no
reasonable doubt is fairly
possible, he must let the jury
decide the matter…”
In a much later case from the
same US appellate second
circuit, United States of
America, Appelle v. Ralph
Kelly Taylor II, Appellant [464
F. 2d. 240; 1972 U.S. App. LEXIS
8560], the Chief Judge
remarked that almost all the
judicial circuits had adopted
“something like Judge
Prettyman’s formulation in
Curley v. United States.” And
in the 1979 US Supreme Court
habeas corpus case of Jackson
v. Virginia et. al.[ 443 U.S.
307; 99 S. Ct. 2781; 61 L. Ed.
2d. 560; 1979 LEXIS 10,
Justice Stewart, delivering the
opinion of the Court, remarked
that “…the directed verdict
criterion articulated in
Curley v. United States…is
now the prevailing criterion for
judging motions for acquittal in
federal criminal trials.”
In whatever fashion one wishes
to label the evidentiary
standard adopted in the Curley
case---whether through the prism
of “clear and convincing
evidence,” “substantial
evidentiary standard,”
“preponderance of evidence”,
“prima facie case”, “probable
cause”---it is certainly not the
standard of “proof beyond a
reasonable doubt” that a judge
in the United States deciding on
a motion for a judgment of
acquittal would utilize.
In fact, the deployment of such
traditional phrases as “the
standard of proof required by
law”, “reasonable doubt”, etc.
in the discussion of submissions
of no case, has tended to cause
so much confusion that some
legal authorities and some
superior courts now prefer to
use phrases such as ‘ probable
cause’, ‘prima facie evidence’,
‘sufficient case’ etc. in
describing the standard of
evidence required to uphold or
reject such submissions. Thus in
our own jurisdiction, our
learned brother Justice Brobbey,
now serving as Chief Justice of
Gambia, in his Practice &
Procedure In The Trial Courts &
Tribunals Of Ghana (2001)
p. 115, commenting on when it
would be appropriate for a
judge, either suo motu or at the
invitation of the defence, to
uphold a submission of no case,
writes only in terms of a
failure on the part of the
prosecution to make out “ a
sufficient case to warrant
calling on the accused to open
his defence.”
In the Ghanaian context of a
trial without a jury, such as
the case presently before us,
what all of this exposition
amounts to is that the trial
judge, as the determiner of the
law and the trier of facts, will
have to apply different levels
of proof depending on whether he
or she is pronouncing on a
motion for submission of no
case, or a substantive verdict
of guilty.
It does appear to us that on a
submission of no case, the
judge’s function is essentially
to determine whether there is a
genuine case for trial. The
inquiry has to focus on the
threshold question whether the
evidence presents a sufficient
disagreement to require
submission for a full trial, or
whether it is so one-sided that
one party must prevail as a
matter of law. Put another way,
the inquiry is whether there are
any genuine factual issues that
can properly be resolved only by
a finder of fact because they
may reasonably be resolved in
favour of either party.
We therefore hold that where
reasonable minds could differ as
to the import of the evidence
presented in a motion for
submission of no case, that
motion should not be upheld.
If, on the other hand, there can
be but one and only one
reasonable conclusion favouring
the moving party, even assuming
the truth of all that the
prosecution has to say, the
judge must grant the motion.
Where the submission is rejected
and the case goes to trial, it
is then that the judge or jury
as appropriate, being the trier
of facts, are called upon to
determine whether or not the
guilt of the accused has been
proved beyond reasonable doubt.
Applying the Azu Crabbe test in
the Apaloo case, and the
reasoning in Curley v.
United States within the US
jurisdiction, it is very
difficult for anyone who has
studied the record of the case
against Mr. Tsatsu Tsikata in
the High Court and Court of
Appeal to conclude that there is
no evidence upon which a
trial judge or jury can hang
either of two possible results,
a reasonable doubt or no
reasonable doubt. But
whether satisfactory evidence
has been led on all the
essential elements of all the
crimes charged is an open
matter at this point. This
aspect of the submissions of the
Appellant’s Counsel will be
considered later together with
Ground (f) of the Grounds of
Appeal.
In Ground (i) of the appeal, the
submission has been made that
the Court of Appeal erred in
seeking to overrule the decision
of a higher court. The decision
in question appears to be the
Supreme Court decision of
Nyarko v. The State [1963
2GLR 59]. Now this decision was
prior to the Apaloo case,
decided in 1975 by the Court of
Appeal, then the highest court
of the land. Thus, to the extent
that there is inconsistency in
the statement of the rule on
submissions of no case, the
Court of Appeal did not err in
refusing to apply the rule as
understood in Nyarko. This
ground of appeal requires no
further consideration.
GROUND (e).
In Ground (e), it has been
submitted that “the Court of
Appeal erred in holding that the
failure of the trial judge to
give reasons for her decision
was legitimate”.
It is on record that Justice
Henrietta Abban declared at the
trial court that she was under
no obligation to assign reasons
for her rejection of the
submission of no case.
In contesting the position taken
by Justice Abban, Counsel has
cited some authorities for us to
consider, among which is
Norton Tool Co. Ltd v.Tewson
[(1973) 1 All ER 183
] which dealt with a decision of
an industrial tribunal sitting
in London that was appealed to
the National Industrial
Relations Court. At issue in
that case was the assessment of
compensation for unfair
dismissal of an employee, in
which the tribunal assigned no
reason for its decision.
In criticizing the tribunal’s
failure to assign reasons for
the quantum of damages arrived
at, the Court said: “it is a
corollary of the discretion
conferred on the tribunals that
it is their duty to set out
their reasoning in sufficient
detail to show the principles on
which they have proceeded. A
similar provision lies on the
court, when sitting as a court
of first instance from which
appeal lies to the Court of
Appeal on questions of law. Were
it otherwise, the parties would
in effect be deprived of their
right of appeal on questions of
law. No great elaboration is
required and the task should not
constitute a burden.” (Lexis
p.6).Thus the Court in that case
considered that the tribunal had
erred in law because it “had not
made entirely clear the
principles on which it has
acted...” (Lexis p.6) However,
it is significant to point out
that the Court did not declare
the trial a nullity; it simply
decided to substitute its
own compensation award in place
of that of the tribunal.
In the 1977 English case of
Tramountana Armadora SA v.
Atlantic Shipping Co. SA,[1978 2
All ER 870; 1978 1 Lloyd’s Rep
391] the Queen’s Bench
Division decided an appeal on
motion from the award of a
single arbitrator in London in
respect of a charter party. This
case too makes it clear that
even in respect of
quasi-judicial processes such as
arbitration, it is important for
decision-makers to state the
reasons for their decisions.
The claimants in this case had
moved for an order that the
award as to costs be set aside
or alternatively remitted to the
arbitrator for reconsideration
by him on the grounds, inter
alia, that the arbitrator
misdirected himself and/or erred
in law by not providing reasons
for his award. Donaldson J.,
giving the judgment in the case,
decried the English traditional
practice of allowing arbitral
awards to be made without the
obligation to assign reasons. He
wrote: “Arbitrators, like
judges, can get the facts wrong.
They can get the law wrong. On
occasion, given a little ill
luck, they can get both wrong.”
Elsewhere Donaldson stated:
“…Having to give reasons
concentrates the mind
wonderfully…..And not only do
reasons concentrate the mind,
but on the whole they tend to
satisfy the parties more than
silence.” The court then
remitted the case to the sole
arbitrator to reconsider his
order for costs in the light of
their judgment.
In February 1976, the English
Court of Appeal, Civil Division,
in Capital and Suburban
Properties Ltd v. Swycher and
Others [1976] Ch 319, [1976 1
All ER 881] severely
chastised the practice of making
orders and rulings without
assigning reasons for them. The
case involved a vendor’s
specific performance action in a
real property transaction in
which the lower court had
declared the deposit paid by the
purchaser to have been forfeited
and also ordered that the
vendors were at liberty to
resell the property. The
purchaser appealed, inter alia,
against that part of the order
relating to a contingency of a
resale for less than the
contract price, for which no
reason had been assigned by the
court below.
Buckley LJ, delivering the
judgment for the majority, made
some terse remarks on the
judicial practice of “rulings
without assigned reasons”.
Describing this as “a most
unsatisfactory practice”,
Buckley went on to state the
proper approach thus: “...There
are some sorts of interlocutory
applications, mainly of a purely
procedural kind, on which a
judge exercising his discretion
on some such question as whether
a matter should be expedited or
adjourned, or extra time should
be allowed for a party to take
some procedural step, or
possibly whether relief by way
of injunction should have
been granted or refused, can
properly make an order without
giving reasons. This, being an
application involving questions
of law, is, in my opinion,
clearly not such a case.
Litigants are entitled to know
on what grounds their cases are
decided. It is of importance
that the legal profession should
know on what grounds cases are
decided, particularly when
questions of law are involved.
And this court is entitled to
the assistance of the judge of
first instance by an explicit
statement of his reasons for
deciding as he did.”
The Ghana Supreme Court sitting
today adopts this reasoning and
wishes to encourage this sound
policy of articulating reasons
for judicial decisions and
orders as a matter of judicial
best practice. There is always a
reason for a judicial decision,
even if the reason is
unarticulated or clearly
unmeritorious. If the reason is
without merit, the appellate
court will promptly overrule
that decision. If the ruling has
merit but the judge felt no
inclination to state his or her
reasons, then, in the words of
Buckley J., “the judge ought not
to have spared himself the
trouble of expressing his
reasons for deciding as he did”.
Decisions without articulated
reasons often give the possibly
unwarranted impression of
thoughtlessness, bias, or even
malice on the part of the
decision-maker.
At the same time, we know that
the lack of articulated reasons
does not always lead to a
miscarriage of justice. For even
in the English case presently
under discussion, Buckley LJ
admitted that “in the present
case we happen to know from the
transcript of the argument what
submissions were made to the
judge. We may infer, but we
cannot know, that the judge
preferred those presented by
counsel for the vendors to those
presented by counsel for the
purchaser”. In the result, he
merely deleted from the lower
court’s order the declaration
relating to the contingency
allowing for the resale of the
property by a specified date for
less than the contract price.
In the case before us, the
ruling on the submission of no
case, though made without
articulated reasons, was not
without basis in law. For the
record, the judge wrote that
:“Having listened to Counsel for
the Prosecution and the Counsel
for the defence, and looking at
the evidence so far adduced
before this honourable court, I
am of the opinion that a
substantial case has been made
against the accused to warrant
him to be called upon to open
his defence….”. It was a
situation in which, as Buckley
LJ would put it, the judge
“preferred (the submissions)”
made by the counsel for the
prosecution.
We hold that in this case, the
failure of the trial judge to
articulate her reasons for
rejecting the submission of no
case, regrettable as it is from
the standpoint of judicial best
practice, has occasioned no
miscarriage of justice. We
therefore dismiss this ground of
appeal.
GROUND (f).
Ground(f) states that “the Court
of Appeal erred in failing to
appreciate that neither in the
charge sheet nor in evidence
before the trial court was there
any showing whatsoever of
financial loss being incurred by
the state.”
1. The Meaning of “State”
in the Criminal Provision
In an effort to demonstrate that
the essential ingredients of the
offences embodied in the first
three counts have not been
established, Counsel for the
Appellant picks up the term
“state” in the relevant statute
and raises issue with the Court
of Appeal’s interpretation of
that term. It is argued that in
this statute, “the state is
recognized as distinct from a
public agency or corporation.”
In other words, assuming there
was a loss to a public
corporation, this did not mean
that there was a loss to the
state of Ghana. Counsel finds
illogicalities and non-sequiturs
in the reasoning behind the
Court’s view that a loss to a
public corporation is a loss to
the state. However, it is
rather the reasoning in
Counsel’s submission that we
find bewildering.
When the state as a body politic
transcends its role as mere
regulator of the market and
commits itself to direct
participation in the means of
production, distribution and
exchange, there have
historically been three
legal-institutional modalities
deployed in realizing its
objectives: unincorporated
establishments as divisions or
satellites of Government
Ministries; statutory
corporations or so-called
parastatals, and state-owned
companies registered as
commercial ventures at the
Office of the Registrar of
Companies. While it is beyond
question that the company or
corporation has a distinct legal
personality from its owners or
incorporators, the owners retain
their status as the legal and
almost invariably the beneficial
owners of the entity as a whole.
On the instrumentality theory of
corporate law, these bodies are
nothing more than the agencies
of the state. Thus a loss or
profit to such entities would,
in the final analysis, amount to
a loss or profit to the state,
which is the unqualified and
incontrovertible owner thereof.
At that point, we see a fusion
of economic reality and the
legal fiction of a separate
legal personality for the
corporation.
Thus we hold that in the context
of section 179A of the Criminal
Code, as amended, a loss to a
public corporation such as the
Ghana National Petroleum
Corporation (GNPC) constitutes a
loss to the state of Ghana.
But the larger questions remain
as to whether there was a
financial loss to GNPC as a
result of the acts complained of
by the prosecution; and whether
such loss, if any, was
occasioned by any acts wilfully
done by the Appellant as the
then Chief Executive of that
corporation. It is important to
re-emphasize that the
responsibility of this Court at
this stage is simply to
determine whether prima facie
evidence has been led on such
matters. With that in mind, we
now turn to a preliminary
consideration of these
questions.
2. The Meaning of a “Wilful Act”
Let us first consider the issue
of wilful acts. In Appellant
Counsel’s submissions under
Grounds (c) and (d) of the
Grounds of Appeal, he takes
issue with the Court of
Appeal’s interpretation of the
word “wilful” in arriving at
its decision. Counsel seeks in
various ways to show that the
facts as alleged by the
prosecution do not fit into the
contours of the main statute
under which his client has been
charged, i.e, wilfully causing
financial loss to the state,
contrary to section 179A(3)(a)
of the Criminal Code 1960. This
is an important submission, for
it seems clear to this Court
that even if financial loss was
caused to the state but not
wilfully, no crime has been
committed under this statute.
Appellant Counsel has referred
us to some cases ostensibly to
establish the point that even if
the facts as alleged in the
particulars of offence and the
prosecution evidence were true,
there has been no violation of
section 179A(3) of the Criminal
Code because whatever the
accused might have done was
not actuated by a bad intent.
Indeed, some of those cases,
particularly the older ones, do
support the contention of the
accused. Yet there are other
cases of equal standing that
offer a wider signification to
the adjective ‘wilful’.
In the US Supreme Court case of
Felton v. United States,
decided in October 1877
[96 US 699; 24 L. Ed. 875; 1877
U.S. LEXIS 1713], the court had
to interpret a Congressional
statute on distilleries that
provided that if any distiller
shall “knowingly and wilfully”
omit, neglect, or refuse to do
anything required by law in
conducting his business, if
there be no specific penalty or
punishment imposed by any other
section, he shall pay a penalty
of $1000. The statute required
the apparatus connecting the
receiving cisterns in a
distillery with the outlet of
the worm and condenser to be
constructed in such a manner as
to prevent the abstraction of
spirits while passing from the
outlet and condenser back to the
still and doublers. The Supreme
Court determined that (1) the
statute was designed to guard
against frauds upon the revenue;
(2) the defendant’s omission to
install a receiver of sufficient
capacity to hold low wines
distilled on the day at issue
was a result of their ignorance
of the defect until it was too
late to remedy it for the
distillation then taking place.;
and (3) there was therefore the
absence of that knowledge which
could render the neglect wilful.
If we were to adopt this as the
only characterisation of the
word wilful, we would have to
insist that the prosecution in
the case now before us lead
evidence to prove not only that
Mr. Tsikata did sign and
implement a loan guarantee
agreement, but that he did this
with the determination to harm
the finances of the state of
Ghana. There is no evidence in
the record of such a
determination on the part of
the Appellant.
In a second US Supreme Court
case, Potter v. United States
[155 U.S. 438; 15 S. Ct.
144; 39 L. Ed. 214; 1894 U.S.
Lexis 2290], decided in December
1894, the Court quoted with
approval the meaning of ‘wilful’
adopted in Felton v. United
States (supra). The defendant, a
president of a national bank was
charged and convicted of
unlawful certification of
cheques by the bank in violation
of a statute which sought to
punish any officer, clerk, or
agent of any national banking
association who “shall wilfully
violate the provisions” of the
Act. The trial court refused to
admit testimony of a bank policy
that the defendant believed was
lawful, whereby an overdraft
account was treated as a loan
from day to day, to be secured
by ample collateral. Defendant
appealed.
The Supreme Court reversed and
remanded for a new trial,
holding that the trial court
should have admitted the
testimony of the bank policy on
the issue of defendant’s wilful
violation of the statute. The
Court continued thus: “The word
wilful is omitted from the
description of the offences in
the latter part of this section.
Its presence in the first cannot
be regarded as mere surplusage;
it means something. It implies
on the part of the officer
knowledge and a purpose to do
wrong…..”
In the subsequent 1899 case of
Spurr v. United States
[174 U.S. 728; 19 S. Ct.
812; 43 L. Ed. 1150; 1899 U. S.
Lexis 1532], the US Supreme
Court stuck to the notion that
if a statute required a wilful
violation, this meant that the
defendant had to have a bad
intent. It appeared insufficient
that the defendant meant to
carry out that act, that is,
that the act was done
deliberately, consciously, or
voluntarily. Mr. Justice Field,
delivering the opinion of the
Court, expatiated on the meaning
of wilful as follows: “…Doing or
omitting to do a thing knowingly
and wilfully implies not only a
knowledge of the thing, but a
determination with a bad intent
to do or omit doing it.” Quoting
Chief Justice Shaw in an earlier
case, Justice Field continued:
“The word ‘wilful’, says Chief
Justice Shaw, in the ordinary
sense in which it is used in
statutes, means not merely
‘voluntary’, but with a bad
purpose”.
Thus, again, if our court were
to adopt this view of the
meaning of “wilful” in the case
before us, we would have to
conclude that an essential
ingredient of the charges in the
first three counts is
missing.
However, in at least two more
recent US Supreme Court cases on
this point, a wider
signification of the word
“wilful” has been acknowledged.
Thus in United States v.
Murdock [290 U.S. 389; 54 S.
Ct. 233; 78 L. Ed. 381; 1933 U.
S. Lexis 470], decided in
December 1933, Mr. Justice
Roberts, delivering the opinion
of the Court, noted that the
word “often denotes an act which
is intentional, or knowing, or
voluntary. But when used in a
criminal statute it generally
means an act done with a bad
purpose….[or] without
justifiable excuse…[or]
stubbornly, obstinately,
perversely….The word is also
employed to characterize a thing
done without ground for
believing it is lawful….or
conduct marked by careless
disregard whether or not one has
the right so to act….”
According to Justice Roberts,
“aid in arriving at the meaning
of the word wilfully may be
afforded by the context in which
it is used…” However, in the
context of the case before that
particular court, involving
certain income tax deductions
allegedly in violation of the
Revenue Act of 1926 and 1928,
the Court was of the opinion
that the word wilfully required
an evil motive or bad faith.
In Heikkinen v. United
States [355 U.S. 273; 78 S. Ct.
299; 2 L. Ed. 264; 1958 U S.
Lexis 1680], a case
decided in January 1958, the US
Supreme Court cited Murdoch
with approval and continued its
acknowledgement of the legal
point that ‘wilful’ could cover
acts other than those done with
a “bad purpose”, such as, in the
words of the Court,
“non-justifiable excuse or the
like”.
Our DPP has cited for our
consideration the 1980 English
House of Lords case of
Regina v. Sheppard and Another
[1981 AC 394 HL], in which a
divided court ruled on the
proper interpretation of the
Children and Young Persons Act
1933. Among the key words in
that English statute was the
word “wilful”. Section 1(1)
provided as follows: “If any
person who has attained the age
of 16 years and has custody,
charge, or care of any child or
young person under that age,
wilfully assaults, ill-treats,
neglects, abandons, or exposes
him...in a manner likely to
cause him unnecessary suffering
or injury to health…that person
shall be guilty of a
misdemeanour.” Evidently, among
the key words to be interpreted
was the adjective “wilful”. In
this case, the parents of a 16
months old child were convicted
for neglecting their child who
died of hypothermia and
malnutrition. Though timely
medical attention might have
saved the child’s life, the
parents, who were poor and were
said to be of low intelligence,
did not realize that he was ill
enough to require examination by
a doctor. They did not call a
doctor. The Court of Appeal
upheld the convictions but the
House of Lords allowed their
appeal.
Sheppard is a rather
difficult case to analyze and to
elicit a ratio decidendi, since
each of the five Lords made a
speech and each one of the
3-member majority gave slightly
different reasons for his
decision. However it is quite
helpful in that it proves once
again that the word wilful, even
in the statutory context, is
capable of more than one
meaning, and that it is the
context of the statute in
question which will indicate
what meaning to assign to it.
Lord Diplock, who wrote
what may be referred to as the
main opinion, distinguished
between the meaning of ‘wilful’
when it qualifies positive acts
such as to “assault”,
“ill-treat”, abandon”, and
“expose”; and ‘wilful’ when it
is directed to a failure to act,
such as to “neglect”. With
regard to positive acts,
wilful acts “may be capable of
bearing the narrow meaning that
the wilfulness required extends
only to the doing of the act
itself which in fact results in
the consequences described, even
though the doer thought that it
would not, and would not have
acted as he did had he foreseen
a risk that those consequences
might follow.” In this sense,
wilfully simply means that the
act in question was done
intentionally, voluntarily, or
deliberately, rather than
inadvertently. Whether or not
the doer intended the
consequences appears to be of no
import.
In the case of negative acts
or omissions, Lord Diplock
suggests that another meaning of
wilful is more relevant; and he
put the case of the Sheppards in
this latter category. Here, not
only should the act be
intentional or deliberate, but
the subject must also have
intended or at least foreseen
the probable consequence of
their non-action. “Such a
failure, as it seems to me,
could not be properly described
as ‘wilful’ unless the parent
either (1) had directed his mind
to the question whether there
was some risk…that the child’s
health might suffer unless he
were examined by a doctor and
provided with such curative
treatment as the examination
might reveal as necessary, and
had made a conscious decision,
for whatever reason, to refrain
from arranging for such medical
examination; or (2) had so
refrained because he did not
care whether the child might be
in need of medical treatment or
not.” This description seems to
be the same as the intentional
doing of an act with malice or
in a mental state of criminal
recklessness. Not only was the
act done voluntarily or without
coercion, but that it was done
with actual or presumed intent
to cause the consequences
complained of.
The two dissenting Lords, while
admitting the ambiguity in the
word ‘wilful’, thought that it
should more properly refer to
what Lord Diplock had labelled
as the narrow meaning of the
word. Lord Fraser of
Tullybelton, in his opinion,
cited with approval the view of
Lord Russell of Killowen C.J. in
Regina v. Downes [1 Q.B.D.
25], in which he said :“
‘Wilfully’ means that the act is
done deliberately and
intentionally, not by accident
or inadvertence, but so that the
mind of the person who does the
act goes with it.” Writing in
the same vein as Lord Frazer,
Lord Scarman stated: “In my
opinion… the conduct must be
intentional. But the word does
not import into the statutory
offence the requirement of
foresight or recklessness as to
the consequences of what was
done or not done (as the case
may be)”.
Thus, whether one adopts Lord
Diplock’s two-tier meaning, or
the essentially one-meaning
approach of the other Law Lords,
the act of a person accused
under section 179A of the Ghana
Criminal Code 1960 of causing
financial loss to the state
could still be wilful as long as
the act itself was done
intentionally or deliberately,
even if the accused did not
foresee or intend or desire the
financial loss to the state. In
Diplock’s analysis, it would be
wilful because the alleged act
was a positive act or set of
acts; and from the perspective
of Lords Fraser and Scarman, it
would be a wilful act simply
because it was allegedly done
deliberately or with no external
pressure.
Based on the foregoing analysis,
we conclude that even when used
in a criminal statute, the word
‘wilful’ could, as a matter of
law, cover cases in which a
public officer voluntarily
engages in a course of conduct
which in fact injures the state
financially, whether with an
evil or malicious intent to
injure the state, or simply
actuated by a reckless and
persistent disregard for laid
down corporate and statutory
rules, or as a result of sheer
obstinacy, or as part of a
bureaucratic culture of
financial unaccountability. But
it is also true that “wilful”
may be used to describe an act
which is done not only
deliberately or intentionally,
but in circumstances where the
doer must also have intended or
at least foreseen the probable
consequence of their non-action.
We are of the view that the
first interpretation of “wilful”
puts more teeth into the effort
to reduce corporate lawlessness
and lessen the potential
incidents of financial loss to
the state.
We therefore hold that the word
“wilful” as used in section
179A(3)(a) of the Criminal Code
1960 covers both intentional
reckless acts that in fact
end up in financial loss to the
state, as well as acts with
such consequences done with a
bad or evil motive.
However, assuming that the acts
complained of were done
wilfully, within the meaning of
section 179A of the Criminal
Code, was there a loss to the
state? More specifically, were
the payments made to Caisse
Francaise by GNPC in
satisfaction of the Guarantee
Agreement to be considered a
loss to the state? And if there
was such a loss, who was the
culprit here? In other words,
who within the GNPC set-up
caused the financial loss---the
Appellant or someone else? It
must be recalled that at this
stage of the proceedings, the
court is not seeking the
establishment of proof beyond
reasonable doubt, but whether
undiscredited evidence has been
led on this essential ingredient
of the statutory offence.
3. Was there a Financial Loss
to the State?
We disagree with the submission
by the Director of Public
Prosecutions in his Statement of
Case to the effect that because
GNPC is a state institution
funded by state resources,
repayment of the loan to Caisse
Francaise upon the default by
Valley Farms is ipso facto “a
loss to the state and a drain on
the national coffers.” The
prosecution would need to
establish more than this in
order to secure an actual
conviction in court under this
statute.
Without pretending to assume
the fine skills of a financial
analyst or accountant, we think
that when, in respect of a
transaction or a related set of
transactions, there is a net
depletion of the coffers of
the state through a deliberate,
unauthorized, and criminally
reckless, or otherwise illegal
act of a public official or
other agent of the state, there
has been a financial loss to the
state.
However, in this connection, it
needs to be emphasized that it
is the duty of the prosecution
to lead evidence aimed at
establishing the presence of
such a state of affairs as
background to the making of the
controversial payments or
corporate investments by
officials of GNPC. Is there such
evidence in the court records of
the case presently before us? In
the proceedings at the trial
court, the evidence of
Prosecution Witness Mr. Wilson
(P.W. 1) during
evidence-in-chief and
cross-examination is revealing.
Examination - in -Chief of
PW1 (Founder and Chief Executive
of Valley Farms)
led by DPP, ran as follows [Vol.
1 of Appeal Records, p.15- 18,
20-22]:
“Q: Now, Valley Farms was a
Company. What were the objects
of this Company?
A: The production of first
grade, first class cocoa.”
…………
In response to a question on the
initial contacts for the
financing of Valley Farms,,
including approaches to the
African Project Development
Facility(APDF) and the French
Agency Caisse Centrale, PW 1
replied:
“A: … Our only difficulty,
subsequently, was finding a
guarantor for the loan that
would have to be granted for the
realisation of the project….We
were short of any fixed assets
or collateral against such a
loan of that magnitude, and they
[Caisse Centrale] first said
they would help us look around.
They called me one day to join
them and accompany them to the
office of GNPC.”
At GNPC they met with the Chief
Executive in connection with
obtaining a guarantee for the
loan.
“Q: Can you tell the Court what
transpired in this office?
A: Well, there were normal
pleasantries on the meeting.
There wasn’t very much
conversation because the Chief
Executive was rather busy, and
from the way it appeared to me,
the Caisse Centrale had already
discussed the matter with him,
and they proceeded immediately
to negotiate and to sign the
guarantee agreement.”
…………………….
“Q: Do you know what the nature
of this agreement was?
A: Well, yes, but it is rather
the detailed statement that I
did not commit to
memory…a guarantee is a
guarantee. What more can I say?”
Regarding the loan agreement
with Caisse, which P.W. 1
signed, the following was the
interaction between the
questioner and the witness:
“Q: Do you know how much was
involved?
A: I am not sure of the precise
amount, but I believe it was
demarcated in French Francs
and the total was about five and
half million francs.”
Asked what steps Valley Farms
took when it began to default on
the loan, P.W 1 replied:
“A: …We had not heard anything
from Caisse Centrale so I
personally called upon the
officer-in-charge of our
accounts about the middle of
1996, and asked him how we are
going to settle this
matter…..Well, I just enquired
what was the situation in the
repayment of the loan. That was
an effort to determine how we
would be held liable and he
said, well, forget it. You know,
this is a letter from GNPC
saying that they are honouring
the agreement and that they gave
a repayment schedule and that
was the end of it.”
This evidence was not challenged
or discredited during
cross-examination. Further,
there appears to be no evidence
in the record to indicate any
legal steps, such as an
indemnity or counter-guarantee,
taken by the guarantor
corporation to assure itself of
repayment of the loan which it
had now inherited through
subrogation. Moreover, GNPC has
never been repaid for the
amounts transferred to Caisse on
account of the guarantee.
Cumulatively, what does all this
mean in terms of the
acknowledged responsibility of a
public official to carry out
negotiations for loan guarantees
and other contractual
commitments with due diligence?
Perhaps there is a plausible
explanation for what transpired;
but it requires some explanation
from the officials
involved.
4. Who Caused the Financial
Loss to the State?
As part of the submissions under
Ground (d) of the Grounds of
Appeal, Counsel for the
Appellant is at pains to
distance his client from the
payments which were undeniably
made to Caisse Francaise by
GNPC. Counsel’s argument, if we
understand him correctly, is
that apart from the very first
payment to the creditor after a
discussion between the Appellant
as Chief Executive of GNPC and
his subordinate, the Acting Head
of Finance and Administration,
all subsequent payments were
made without reference to his
client and therefore without his
authority. And that first
payment, with which the
Appellant might be reasonably
associated, does not count for
the purpose of this trial
because it is “not one of the
payments that form the basis of
the charges and is not referred
to in the charge sheet”.
Sidestepping the first payment
for the moment, Counsel’s
position regarding the
subsequent payments appears to
ignore the relevance of implied
and apparent authority in the
running of a corporate
bureaucracy. Did the Acting Head
of Finance and Administration go
off, as it were, on his own
steam, to make those transfers
to Caisse Francaise?
If the case should go to trial,
it would be for a trier of facts
to determine whether the actual
relationship of the former Chief
Executive and his senior
financial officer, at least in
respect of this set of
transactions, was one of implied
or apparent authority, and
whether it appeared likely, in
our bureaucratic culture, that
this officer would have taken it
upon himself to make such
transfers.
GROUND (g):
Ground (g)
states that “The Court of Appeal
erred in holding that section
176 of Act 30 was applicable in
respect of the fourth count as
there was only a variance
between the charge sheet and the
evidence adduced in respect of
time.”
Counsel for the Appellants
actually makes what amounts to
two separate submissions under
this head, both of which deal
with the fourth count of charges
preferred against the Appellant.
First, it is submitted that the
GNPC investment activity in
Valley Farms forming the
subject-matter of the charge
occurred in June 1990 rather
than the month of March 1991, as
indicated in the charge sheet.
Since the only evidence offered
by the prosecution concerned an
activity that supposedly
occurred in 1991, but not the
investment activity in 1990, no
relevant evidence pertaining to
the charge sheet has been
presented. Therefore, there is
no case for the Appellant to
answer.
Secondly, it is argued that the
only direct investment activity
in Valley Farms that the
Appellant caused GNPC to
undertake i.e. the purchase of
equity in 1990, was made in a
viable project with the
potential for earning foreign
exchange for Ghana. Therefore,
there has been no intentional
misapplication of public
property.
As regards the first submission,
the Court of Appeal ruled that
the difference in the dates on
the charge sheet and the
transaction on which evidence
was led, was simply a “variance
between charge and evidence” in
terms of section 176 of the
Criminal Procedure Code, Act 30,
and therefore not material, and
not necessitating an amendment
to the charge sheet.
We agree with the Court of
Appeal. There was only one
equity investment decision in
Valley Farms by GNPC within 1990
and 1991; and the time variation
between June 1990 and March 1991
was only nine months. Thus it is
most unlikely that any real
confusion would have arisen in
the minds of the accused or
witnesses. There was never the
introduction of a materially
different transaction from that
alluded to in the charge sheet.
The second submission addresses
Count 4 in a more substantive
manner. At issue here is the
amount of latitude a chief
executive of a public
corporation has in making
investment commitments in other
enterprises or companies, when
such investments arguably fall
outside the core business of
that corporation as established
by law. We grant that as a
matter of corporate law, GNPC
did have the authority to make
investments or otherwise enter
into transactions that are
incidental to its core business.
However, it is another matter
altogether when the management
of a corporation intentionally,
or as a matter of conscious
policy, embarks upon investments
in objectively unrelated areas
of business. There is clear
evidence in the record that an
equity investment of 20 million
cedis in 1990 value terms, was
made in a company whose objects
were described by its own
founder as “the production of
first grade, first class cocoa”,
by a public corporation set up
to “undertake the exploration,
development and disposal of
petroleum…”
GNPC was not set up us a finance
company or an all-purpose
investment company. Hence it is
no justification in law to show
that an arguably ultra vires
investment has the potential of
yielding enormous amounts of
foreign exchange for the
investor-corporation. Nor is it
any justification in law to
demonstrate that such an
investment forms part of that
corporation’s investment
strategy and investment
portfolio; for if a corporate
investment is wrong, it is no
less wrong because it is done as
part of a package. It also
appears from the evidence
adduced that the specific
investment by GNPC in Valley
Farms, which forms the basis of
Count 4, was not approved or
even discussed by the Board of
Directors of GNPC.
The cumulative circumstances
surrounding the GNPC equity
investment in Valley Farms does
require more explanation than
what appears in the record at
this point in the trial.
SUMMARY OF OUR HOLDINGS
We summarise our holdings in
this appeal as follows:
1. The Court of Appeal did not
use a repealed law as the basis
for its decision, and thus the
issue of a failure to enforce
Article 19(5) of the
Constitution does not arise.
2. A criminal provision is not
unconstitutional merely because
it does not contain intrinsic
definitions of all terms used;
and we also hold that a resort
to both specialized and general
dictionaries constitute a
time-honoured and acceptable
form of extrinsic aids to
interpretation in our judicial
system.
3. The void-for vagueness
doctrine represents a legitimate
standard under the 1992
Constitution for the judicial
review of legislation; but
section 179A (3)(a) of the
Criminal Code 1960, as amended,
is not void for vagueness.
4. Where reasonable minds could
differ as to the import of the
evidence presented in a
submission of no case, that
motion should not be upheld.
If, on the other hand, there can
be but one and only one
reasonable conclusion favouring
the moving party, even assuming
the truth of all that the
prosecution has to say, the
judge must grant the motion.
Where the submission is rejected
and the case goes to trial, it
is then that the judge or jury
as appropriate, being the trier
of facts, are called upon to
determine whether or not the
guilt of the accused has been
proved beyond reasonable doubt.
5. In the case before us, the
failure of the trial judge to
articulate her reasons for
rejecting the submission of no
case, while regrettable from the
standpoint of judicial best
practice, has occasioned no
miscarriage of justice.
6. In the context of section
179A of the Criminal Code, as
amended, a loss to a public
corporation such as the Ghana
National Petroleum Corporation
(GNPC) constitutes a loss to the
state of Ghana.
7.The word “wilful”, as used in
section 179A(3)(a) of the
Criminal Code 1960, covers both
intentional reckless acts that
in fact end up in financial loss
to the state, as well as acts
with such consequences done with
a bad or evil motive.
8. When, in respect of a
transaction or set of related
transactions, there is a net
depletion of the coffers of
the state through a deliberate,
unauthorized, and criminally
reckless or otherwise illegal
act of a public official or
other agent of the state, there
has been a financial loss to the
state.
9. It is the duty of the
prosecution to lead evidence
aimed at establishing, not
simply that payments were made
on a guarantee agreement, but
that these payments were made
under circumstances amounting to
a wilful financial loss to the
state as explained above.
10. If this case should go to
trial, it would be for the trier
of facts to determine whether,
in fact, there were any such
factors that would have made
the execution of the
guarantee agreement unlawful
within the terms of section
179A(3)(a) of the Criminal Code
1960 as amended
11. As regards Count #4, the
difference in the dates on the
charge sheet and the transaction
on which evidence was led, is
simply a “variance between
charge and evidence” in terms of
section 176 of the Criminal
Procedure Code, Act 30, and
therefore not material, and not
necessitating an amendment to
the charge sheet.
12. The Ghana National Petroleum
Corporation was not set up as a
finance company or as an
all-purpose investment
corporation. Further,
investments by a public
corporation arguably falling
outside their core objects or
purposes require some
justification.
13. It is unlawful and
unacceptable for the management
of a corporation to undertake
basic investments or make other
important corporate commitments
without prior underlying
approval of its Board of
Directors.
CONCLUSION:
Accordingly, we conclude that
the Appellant has a case to
answer in respect of all four
counts. The Judgment of the
Court of Appeal is hereby
upheld.
PROFESSOR T. M
OCRAN
JUSTICE OF THE SUPREME COURT
ATUGUBA, J.S.C.:-
I have had the advantage of
reading the learned, brilliant
and painstaking judgment of my
brother Justice Professor Modibo
Ocran J.S.C. It has assisted me
a lot. It is a matter of great
regret that I have not been able
to share some of the conclusions
he has reached on some of the
issues involved in this case.
The facts of this case can be
fairly gleaned from the judgment
of my brother Justice Professor
Modibo Ocran and being mainly an
appeal on questions of law, only
such specific facts as are
germane to the specific legal
questions raised, are
necessary.
There has been extensive
fighting on constitutional
issues, but in view of the
conclusion I have reached, it is
not necessary to grapple with
them. It is a sound principle
of constitutional law, owing to
the sensitive nature of issues
of Constitutionality, that if a
case can properly go off on a
non constitutional ground one
should avoid the constitutional
issue. Thus in ENNIN v. THE
REPUBLIC (1976) 1 GLR 326 C.A at
334 Apaloo C.J delivering the
unanimous judgment of the Court
of Appeal said;
“It is not in fact necessary to
decide this case on any
constitutional grounds because
the steps that have been taken
to provide for the appellant’s
representation and procure
medical evidence helpful to him,
seem to us more than ample.
Nothing has been done which
offends our sense of propriety
and fairness. Accordingly, we
ought to resist the temptation
of pronouncing on arid
constitutional questions.
Perhaps in this, we might take a
cue from the United States
Supreme Court which has a
philosophy that while it has a
duty to decide constitutional
questions, it must escape that
duty if possible. As
Frankfurter put it in his Law
and Politics 25(1939) (as quoted
in Constitutional Law, Cases and
other Problems (2nd
ed.) Vol, 1 at p. 108, edited by
Freund, Sutherland, Howe and
Brown)
But the Court has
improved upon the common law
tradition and evolved rules
of judicial administration
especially designed to postpone
constitutional adjudications and
therefore constitutional
conflicts until they are
judicially unavoidable. The
Court will avoid decision on
grounds of constitutionality if
a case may go off on some other
ground as for instance,
statutory construction.”
The policy justification for
this philosophy is to avoid the
mischief of premature judicial
intervention. The United States
Constitution has survived two
centuries and the Supreme Court
has found this a workable rule
designed to avoid constitutional
conflicts. Both constitutions
that we enacted for ourselves,
i.e. the 1960 and 1969
Constitutions have been either
abrogated or suspended and we
think, we more than the United
States Supreme Court, should
tread warily.”
The issue in this appeal is
whether, as it is often said in
our courts, a prima facie case
has been made out for the
appellant to answer and this, in
view of my conclusion in this
case, can be decided without
prejudice to either party in
this case, free from
constitutional encumbrances.
The first three charges against
the appellant allege “Wilfully
causing financial loss to the
State contrary to section 179A
(3)(a) of the Criminal Code 1960
Act 29”. The particulars of
those charges commonly allege as
follows:
“TSATSU TSIKATA as the Chief
Executive of Ghana National
Petroleum Corporation (GNPC)
in………… 1996 in Accra in the
Greater Accra Region wilfully
caused financial loss to the
State by illegally authorizing
and causing to be paid the sum
of Two Million Three Hundred and
Six Thousand Three Hundred and
Seventy-Four French Francs
Forty-One Centimes (FRF
2,306,374.41) equivalent of
Seven Hundred Seventy-Five
Million One Hundred and
Twenty-Six Thousand Three
Hundred and Ten Cedis
(¢775,126,310) from the accounts
of GNPC to Caisse Francaise de
Development on behalf of Valley
Farms Company Ltd., a private
limited liability company which
had defaulted on a loan it had
contracted from the said Caisse
Francaise de Development.”
Section 179(A)(3) of the
Criminal Code Act 1960,( Act 29)
as amended by the Criminal Code
(Amendment) Act, 1993 (Act 458)
provides, as far as relevant, as
follows: “Any person
through whose wilful, malicious
or fraudulent action or
omission…(a) The State incurs a
financial loss ….commits an
offence”. (es)
In my view, this provision has
been correctly construed by the
esteemed late Afreh J.S.C in THE
REPUBLIC V. IBRAHIM ADAM & ORS.
Suit No. FT/MISC. 2/2000 dated
28th April 2003,
unreported.
The case seems to be appellately
sub-judice. I therefore
naturally had some hesitation in
referring to it. But I only
refer to some of the principles
of law therein enunciated, not
the facts or the application in
that case of those principles to
the facts of that case. As far
as points of law are concerned
one can scarcely conceive of
that limb of the rules of
natural justice, namely, nemo
judex in causa sua or justice
manifestly appearing to be done
being infringed, were I
subsequently to deal with that
or any other cognate case.
I considered such matters at
length in THE REPUBLIC v
NUMAPAU, PRESIDENT OF THE
NATIONAL HOUSE OF CHIEFS, EX
PARTE AMEYAW II (NO. 1)
(1998-99) SC GLR 427.
It is also trite law that a
decision in a case may be final
though subject to appeal. See
NOUVION v. FREEMAN (1889) 15
App. Cas. 1.
In any case some of the same
questions of law that had to be
dealt with in THE REPUBLIC v.
IBRAHIM & ORS also arise in the
present appeal and have to be
unavoidably dealt with ex
necessitate, by this court.
After a very able survey of the
relevant statutory and judicial
considerations Afreh J.S.C
handed down the solution to
S.179(3)(A) of Act 29, as
amended in the following terms.
“To sum up, the essential
elements of causing financial
loss under S.179(3)(A) are:
i.
a financial loss;
ii.
to the state;
iii.
caused through the action or
omission of the accused; and
iv.
that the accused
(a)
intended or desired to cause the
loss; or
(b)
foresaw the loss as virtually
certain and took an
unjustifiable risk of it or
(c)
foresaw the loss as the probable
consequence of his act and took
an unreasonable risk of it; or
(d)
if he had used reasonable
caution and observation it would
have appeared to him that his
act would probably cause or
contribute to cause the loss”.
I should add to the end of
element (d) the factor that the
accused nonetheless took an
unreasonable risk of it. I was
also at first worried about the
formulation of element (a)
especially as it is related to,
“desire”, which would seem to be
of no relevance. However it
highlights perhaps, the most
obvious species of the requisite
mens rea, namely that in such a
situation the mental frame of
the accused in relation to the
actus reus, is luce clarius.
It is true that the word
“wilful” with regard to the
doing of a positive act has
often been judicially construed
in other jurisdictions and also
in Ghana as contemplating only
that the conduct concerned was
not accidental, that is to say,
it has been given a narrow
construction. But as Lord
Diplock in R. v SHEPPARD (1980)
3 AII ER 899 H.L. said at 904:-
“ Although this is a possible
meaning of “wilfully” it
is not the natural meaning even
in relation to positive acts
defined by reference to the
consequences to which they are
likely to give rise; and in the
context of the section, if this
is all the adverb “wilfully”
meant it would be otiose.
Section 1(1) would have the same
effect if it were omitted;
for even in absolute offences
(unless vicarious liability is
involved) the physical act
relied as constituting the
offence must be wilful in the
limited sense, for which the
synonym in the field of criminal
liability that has now become
the common term of legal art is
voluntary”. Further down the
same p.904 His Lordship said, in
relation to the negative acts
involved in the provision he was
considering, that the conduct
involved would not be “wilful”
unless the parent either “(1)
had directed his mind to the
question whether there was some
risk ….that the child’s health
might suffer unless he were
examined by a doctor and
provided with such curative
treatment as the examination
might reveal as necessary and
had made a conscious decision
for whatever reason, to refrain
from arranging for such medical
examination or (2) has so
refrained because he did not
care whether the child might be
in need of medical treatment or
not”.
At P.906 Lord Diplock explained
why he thought this test he laid
down with regard to the word
wilful is right. He said, among
other reasons: “The climate
of both parliamentary and
judicial opinion has been
growing less favourable to the
recognition of absolute offences
over the last few decades….”
It would be seen that the
construction placed, supra, on
S.179(3)(a) of Act 29 as amended
is similar to the test of Lord
Diplock in R v. SHEPPARD, supra,
with regard to the word wilful.
Since Lord Diplock’s
construction is based, inter
alia, on a departure from strict
construction or the idea of
absolute offences its adoption
by Afreh J.S.C in THE REPUBLIC
V. IBRAHIM ADAM & ORS, supra,
must be right in view of S.4(a)
of the Criminal Code, 1960 (Act
29) which forbids strict
construction of its provisions.
The offence which falls to be
considered in this case has of
course been inserted into this
same Act 29 by the Criminal Code
(Amendment) Act, 1993 (Act 458).
As Amissah J.A said in STATE v.
OBENG (1967) GLR 91 at 101, “I
think it proper to draw
attention to the fact that if it
were one time the law that the
provisions of the Criminal Code
should be strictly construed …
this ceased to be so with the
Code of 1960. By section 4(a)
which is one of the general
rules to be observed in the
construction of the Code, it is
provided that “ This Code shall
not be construed strictly either
as against the State or as
against a person accused of any
offence, but shall be construed
amply and beneficially for
giving effect to the purposes
thereof”.
The appellant, in respect of the
first three counts, contends
that the payments covered
therein were not made with his
authorization and therefore are
not his acts. While this
argument is not lacking in
ingenuity, it certainly cannot
hold. Pw4, the Ag Head of
Finance and Administration, on
the evidence, effected those
payments without prior further
reference to the appellant.
It is however, clear on the
evidence that when Valley Farms
defaulted on the payment of the
interest on the loan from Caisse
Francaise to it, the appellant,
per exhibit “C” directed Pw4 to
pay same on the basis only that
GNPC was liable to do so as per
the terms of its guarantee,
exhibit 1, which had been given
to Caisse Francaise by the
appellant on behalf of GNPC. In
other words the appellant’s own
authority to direct Pw4 to make
that payment rested on the said
guarantee. The terms of the same
guarantee called for the
payments made in respect of the
default by Valley Farms to pay
up on the principal sum of the
loan. If the terms of that
guarantee were the foundation of
the authority given by the
appellant to Pw4. for the
earlier payments in respect of
interest on the same loan, then
they naturally were authority
for the payments in respect of
the principal sums due and
covered by the first three
counts against the appellant.
The authority for the latter
payments was res ipsa loquitur
and was clearly the act of the
appellant. Indeed when Caisse
Francaise per exhibit ‘F’
notified the appellant of the
payments covered in the first
three counts, by Pw4, he did not
take any issue nor could he
conceivably have taken issue on
those payments, which he at no
time countermanded but which
stood required to be made, at
all material times, by the
appellant’s own act and ‘deed’
namely exhibit 1, his
aforementioned guarantee on
behalf of GNPC to Caisse
Francaise. I therefore reject
his contention that the said
payments covered by the first
three counts were without his
authority and were therefore not
his acts.
The fate of this appeal depends
on the burden that has to be
discharged by the prosecution at
the close of its case in a
criminal trial viewed against
the requisite elements of the
offence, involved; in this case,
S.179(3)(a) of Act 29,
aforesaid.
Section 173 of the Criminal
Procedure Code 1960, (Act 30)
provides; “At the close of the
evidence in support of the
charge, if it appears to
the Court that a case is made
out against the accused
sufficiently to require him to
make a defence, the
Court shall call upon him to
enter into his defence …” (e.s).
In my view, whether “ a case is
made out against the accused
sufficiently to require him to
make a defence.” depends on S.11
of the Evidence Decree, 1975
(N.R.C.D 323) which provides as
follows:
“11(1) For the purposes of this
Decree, the burden of producing
evidence means the obligation
of a party to introduce
sufficient evidence to avoid
a ruling against him on the
issue.
(2) In a criminal action
the burden of producing
evidence, when it is on the
prosecution as to any fact
which is essential to guilt,
requires the prosecution to
produce sufficient evidence so
that on all the evidence a
reasonable mind could find the
existence of the fact beyond a
reasonable doubt”.
To my mind this provision means
that, a reasonable mind,
applying his powers of reasoning
to the evidence led by the
prosecution at the close of its
case, will end in the conclusion
that it CAN BE, if no contrary
evidence is led, said that the
relevant fact which has to be
established by the prosecution
has been established BEYOND
REASONABLE DOUBT.” This
certainly calls for an
assessment of and not merely a
reading of the evidence so led,
in a manner consistent with the
requisite standard of conviction
that must at that stage of the
trial be induced in the mind of
the reasonable person. Again
such assessment must be based
“on all the evidence” and not on
only parts of the evidence, but
where there is a myriad of facts
tending to establish the same
fact one need not, after
considering them, set all of
them out in one’s opinion. I
would also, say that, applying
the maxim expressio unius est
exclusio alterius, that S. 11(2)
requires and contemplates only
one acceptable finding if the
prosecution is to qualify from
the heats unto the final stage
of a criminal competition, (if
competition it be) namely, that
the reasonable mind COULD
find that the essential elements
of the offence have been proved
beyond reasonable doubt. If the
prosecution by this test
qualifies for the finals of the
competition then it can only
succeed for a conviction if on
all the evidence, after hearing
the version of the accused, if
any, a reasonable mind MUST now
find that the crime is
established beyond reasonable
doubt. Thus, if for example, at
the end of the prosecution’s
case the evidence led points
POSSIBLY only to the guilt of
the accused but he is able to
show that it is a case of
mistaken identity of him, the
case founders.
There are several authorities
dealing with the question of
submission of no case, see inter
alia, THE STATE v ALI KASSENA
(1962) 1 GLR 144 S.C APALOO v
THE REPUBLIC (1975) 1 GLR 156,
C.A, GYABAAH v THE REPUBLIC
(1984-86) 2 GLR 461 C.A,
ZORTOVIE v THE REPUBLIC
(1984-86) 2 GLR 1 C.A, KOFI @
BUFFALO v THE REPUBLIC
(1987-88) 1 GLR 520 even though
they deal with jury trials.
Some caution therefore is called
for.
However, in THE STATE v. ALI
KASSENA (1962) GLR 144 S.C Azu
Crabbe J.S.C (as he then was)
delivering the judgment of the
Supreme Court adverted to S. 173
of Act 30 governing summary
trials at p.149 as follows:-
“S. 173 is concerned with
summary trials where the judge
decided both questions of law
and fact. It is for the judge in
a summary trial to weigh the
evidence and then decide
whether from the facts proved
the guilt of the accused can
be inferred. Evidence is
said to be sufficient when it
is of such probative force as
to convince and which if
uncontradicted will justify a
conviction.
“There can be no inference
unless there are objective facts
from which to infer the other
facts which it is sought to
establish. In some cases the
other facts can be inferred with
as much practical certainty as
if they had actually been
observed. In other cases the
inference does not go beyond
reasonable probability. But if
there are no positive proved
facts from which the inference
can be made, the method of
inference fails and what is left
is mere speculation or
conjecture.”
Per Lord Wright in Caswell v.
Powell Duffryn Associated
Collieries Ltd. Where, therefore
the evidence adduced on behalf
of the prosecution fails to take
the case out of the realm of
conjecture, the evidence is best
described as “insufficient”. It
is the type of evidence which
because it cannot convince,
cannot be believed and therefore
is incapable of sustaining
conviction. In these
circumstances it would be wrong
in a summary trial to over-rule
a submission of no case to
answer.”
This passage is further
clarified by the judgment of the
same judge in THE STATE v. SOWAH
AND ESSEL (1961) 2 GLR 743 at
745 when he said: “ it is
wrong……… to presume the
guilt of an accused merely from
the facts proved by the
prosecution. The case for the
prosecution only provides
prima facie evidence from
which the guilt of the
accused may be presumed,
and which therefore, calls for
explanation by the accused”.
It is clear from this that the
expression “presumed”
is different from the expression
“…may be presumed”.
(2)
This matter is put beyond
conjecture by Azu Crabbe C.J,
delivering the judgment of the
Court of Appeal in MOSHIE v. THE
REPUBLIC (1977) 1 GLR 287 C.A at
290 when he said:
“The law now seems to be that in
considering his duty under
section 271 of the Criminal
Procedure Code, 1960 (Act 30),
the judge should not leave a
case to the jury if he is of the
opinion that (a) there has been
no evidence to prove an
essential element in the crime
charged, or (b) the evidence
adduced by the prosecution had
been so discredited as a result
of cross-examination, or (c) the
evidence is so manifestly
unreliable that no reasonable
tribunal could safely convict
upon it, or (d) the evidence
is evenly balanced, that is to
say, the evidence was
susceptible to two likely
explanations, one consistent
with guilt, one with innocence:
see State v. Ali Kassena [1962]
1 GLR 144, S.C; Apaloo v. The
Republic [1975] 1 GLR 156, C.A.
Where any one of these elements
is evident in the case for the
prosecution, the judge ought to
charge the jury for acquittal
and not to leave the matter in
such a case to the jury. Section
271 casts a positive duty on the
trial judge to ensure that the
accused is not deprived of this
protection through either
mistake or ignorance. And the
failure of counsel for the
defence to make a submission of
no case could not absolve the
learned trial judge of his
responsibility under the
section.” (e.s)
Applying this test to this
case, the prosecution’s case as
to the element “wilfully”, as
shown by the submissions of the
learned Director of Public
Prosecutions is that the
appellant, as far as the first
three charges are concerned,
namely causing financial loss to
the state, “operated
outside the core objects and
functions of the corporation.
PNDCL 64 which established the
GNPC confined or limited the
functions and objects of the
corporation to promote (sic)
exploration and development of
petroleum, and its core business
was petroleum exploration and
development but the accused
person/Appellant veered off
intentionally to undertake cocoa
farming. In doing this the
accused/Appellant did not seek
professional advice, when Mr.
Jude Arthur and Merchant Bank
were invited to be on the Valley
Farms Board they were already
faced with fait accompli”.
Strictly speaking the appellant
never undertook cocoa farming.
Valley Farms Ltd, is the
company, on the evidence in this
case that has undertaken the
cocoa farming. But the more
important detraction from this
argument is that the mere act of
cocoa farming or participation
therein does not inherently
attract a financial loss,
otherwise it would not be one of
the Key pillars of our national
economy. There is no evidence to
show that the company, Valley
Farms Ltd., was incompetent to
undertake the cocoa project in
this case. As to not seeking
professional advice before
investing in Valley Farms, PW1’s
evidence clearly shows that a
prominent French Aid Agency,
namely The Caisse Centrale,
“…sent their own experts on how
to review the feasibility study
and to make a physical survey of
the farms”. See P.16 of Vol. 1
of the Record. Continuing at
p.17 he said. “The French made
their own financial study of the
project, which was submitted,
and they advised APDF and us
that they were interested in
investing in the project. Our
difficulty, subsequently was
finding a guarantor for the loan
that would have to be granted
for the realization of the
project”. This evaluation by
Caisse Francaise was known to
the appellant. In exhibit “T”
his cautioned statement to the
police dated the 19th
day of March 2001 the appellant
stated: “The participation of
Caisse Francaise was the key to
my interest since it would
clearly assist GNPC if an
institution like that would
provide finances for the
projects GNPC was engaged in.
I recall even meeting the Chief
Executive of Caisse Francaise
who was here in Ghana on a visit
and who spoke highly of their
technical review of the Valley
Farms Project for generating
export revenues”. (e.s)
It must also be borne in mind
that to the knowledge of the
appellant, Merchant Bank Ltd
also verified the financial
figures of the project.
It is also to be noted that the
prosecution’s evidence shows
that the appellant was very
jealous and protective of GNPC’s
investment in Valley Farms Ltd.
He got Merchant Bank to hold
that investment as a trustee
through their subsidiary,
Investments Holdings Ltd. That
trustee appointed a director
unto the Board of Directors of
Valley Farms Ltd., and the
appellant saw to it that that
Director became the Chairman of
the said company instead of
leaving Pw1 to hold both that
position and that of Managing
Director thereof. He scrutinized
the draft shareholders protocol
and some things on Proparco, the
subsidiary of Caisse Francaise.
Soon after the guarantee, a
status report on the investments
of GNPC including Valley Farms
Ltd was called for on behalf of
the appellant, which described
it as a project with “strong
prospects”. See Exh. 3. At p.
918, part of this Report states
as follows: “MIHL has handled
GNPC’s investment at all times
in close consultation with
officials of GNPC and has
representation on the Board of
Valley Farms in the persons of
Mr. Jude Arthur as Chairman and
Mr. D. Addo-Ashong as substitute
director for Mr. Jude Arthur to
enable us closely monitor the
operations of the company.
(Copies of minutes of
Board Meetings held to date are
attached for your perusal)”.
It should be noted that this
report was jointly signed by
Jude Arthur (Pw5) director and
D. Addo-Ashong the alternate
director, respectively, on
Valley Farms and is dated 5th
June 1992, before GNPC started
paying off the guarantee.
In the face of all this evidence
from the prosecution, how can
the essential element of
wilfulness in relation to the
investment in Valley Farms be
sustained even assuming that a
financial loss to the State
thereby ensued?
Surely S.179(3)(a) of Act 29 is
not and cannot be a crime of
strict liability, aforesaid.
This sort of evidence shows that
the appellant did not willfully,
that is to say consciously with
a pejorative intent, push GNPC
into the investment in Valley
Farms Ltd. In his erudite
judgment in THE REPUBLIC v.
IBRAHIM ADAM & ORS, supra, Afreh
J.S.C forcefully stressed the
element of blame worthiness in
S.179(3)(a) as follows: “ In my
opinion the use of the word
wilful (or its noun or adverb)
in a charge brought under
S.179(A)(3)(a) of Act 29
requires proof of mens rea.
It is not enough for the
prosecution to show that the
accused did a deliberate or
voluntary act which caused a
prohibited consequence. They
must also prove that the
accused person foresaw the
consequence and desired it or
took an unreasonable risk of it
occurring. I think the
context in which the word
wilful, is used in section
179(A)(3)(a) shows that it
should be interpreted as
requiring mens rea. the
other words in the section which
described mental state, ‘
malicious” and “fraudulent” are
undoubtedly mens rea
words”.(e.s)
Even at the peak of notions of
strict liability in England
there were strong judicial
outbursts against unjust
criminal liability for persons
who could not truly be said to
have acted wilfully.
I referred to this at length in
BONSU @ BENJILLO v. THE REPUBLIC
2000 S.C. GLR 112 when
commenting on the English case
of WARNER v. METROPOLITAN POLICE
COMMISSIONER (1969) AC 256, H.L
relating to strict liability in
respect of narcotic drugs At pp.
137-138 I said:
“The common theme in Warner was
that the element of mens rea
must be kept within the limits
earlier set out in this judgment
since the enactment intended
absolute liability for
possession of prohibited drugs.
But as aptly stated by the Privy
Council in Lim Chin Aik v. R
[1963] AC 160 at 174.
“…it is not enough in their
Lordships’ opinion merely to
label the statute as one dealing
with a grave social evil and
from that to infer that strict
liability was intended. It is
pertinent also to inquire
whether putting the defendant
under strict liability will
assist in the enforcement of the
regulations. That means that
there must be something he can
do, directly or indirectly,
which will promote the
observance of the regulations.
Unless this is so, there is no
reason in penalizing him, and it
cannot be inferred that the
legislature imposed strict
liability merely in order to
find a luckless victim” (the
emphasis is mine)
And Lord Wilberforce also said
in the Warner case at p.391:
“This legislation against a
social evil is intended to be
strict, even severe, but there
is no reason why it should not
at the same time be
substantially just”.
(The emphasis is mine).
Ghanaian criminal jurisprudence
shares all the foregoing
judicial sentiments and
crystallizes them legislatively.
Hence section 4 of the Criminal
Code, 1960 (Act 29) under PART
1- GENERAL PROVISIONS’ provides,
as far as is relevant, as
follows:
“4. The following general rules
shall be observed in the
construction of this Code namely
(a)
This Code shall not be
construed strictly, either
as against the State or as
against a person accused of any
offence, but shall be
construed amply and beneficially
for giving effect to the
purposes thereof”. (The
emphasis is mine).
Part 1 of Act 29 covers sections
1-29 thereof. Section 29(1)
provides:
“ A person shall not be
punished for any act which by
reason of ignorance or mistake
of fact in good faith, he
believes to be lawful”
(The emphasis is mine).
And section 5 also provides:
“Wherever under the provision of
any law for the time being in
force other than this Code any
offence is created, this Part
shall apply, except in so far as
a contrary intention appears, to
the offence as it applies to
offences under this Code”. (The
emphasis is mine).
I am constrained to think that
if the English Drugs (Prevention
of Misuse) Act, 1964 had
contained these benign and
generous provisions, Warner
would have been decided the same
way as our courts did in Amartey
v. The State, Nyameneba v. The
State and Lanquaye v. The
Republic (supra). I can find
nothing in PNDCL 236 which
requires a court to hold that
“the legislature imposed strict
liability merely to find a
luckless victim”. On the
contrary, by dint of section 4
of the Criminal Code, 1960 (Act
29), that Law prima facie,
cannot be construed strictly”.
I therefore unhesitatingly
accept the submission of
Professor E.V.O. Dankwa, counsel
for the appellant’s submission,
after referring to a shipload of
high ranking authorities from
the United States of America,
that “the interpretation of
wilful as requiring a “bad
purpose” is consistent with the
context in which wilful is used
in S.179A (3) (a) alongside the
words “malicious” and
“fraudulent”. Noscitur a
sociis”.
This being the true nature of
the mens rea required by S.179A
3(a)(a) of Act 29 the same must
be upheld by this court.
It is non pars judicis to give a
statute either an unduly
restrictive or over zealous
ambit of operation, See REPUBLIC
v. JANTUAH (1968) GLR 689 at
702-703, C.A. I hold on the
facts of this case that the
prosecution has failed to
discharge its burden of
production with regard to the
element of wilfulness in S.179A
3(a) of Act 29.
Next, is there evidence of loss?
The evidence shows that as a
result of the guarantee
provided for the loan of FRF
6,919,123.22 by Caisse Francaise
to Valley Farms at the instance
of the appellant, GNPC had to
pay that amount to Caisse
Francaise. However the evidence
clearly establishes per exhibit
1, the guarantee agreement, that
GNPC after discharging the debt
on behalf of Valley Farms, GNPC
was to step into the shoes of
Caisse Francaise, as lender of
that amount to Valley Farms.
That loan has its interest rates
attached to it. Further for
providing the guarantee GNPC
earned a commission thereon
which appreciated its
shareholding in Valley Farms
from 17% to 25%. If things go
well GNPC will be repaid its
guarantee and GNPC will continue
to enjoy its additional 8%
shares in Valley Farms. This
hardly constitutes extra
commercium but rather further
investment on the part of GNPC
in Valley Farms and not a cessio
bonorum.
Whatever irregularities that may
be associated with the act of
investing in Valley Farms, the
latter, on the evidence admits
its liability by subrogation to
GNPC in respect of the amount
of the guarantee. The courts
deal with realities within the
framework of the law. Thus in
THE STATE v. MOSHIE (1960) GLR
222 S.C at 223 Sarkodee-Adoo
J.S.C (as he then was)
delivering the judgment of the
Supreme Court said:
“In the administration of
justice, properly so
called, the law must be
applicable to the facts
in issue and not to
hypothetical
imaginations or illusions”.
It is true that the evidence
shows that Valley Farms
experienced some problems,
including the relations between
its farm manager and its
employees, the delay in
transfer of land title from
Cocobod to Valley Farms. But Pw1
has confidence in the project
and has invested ¢200,000,000.00
more cedis into it from his
pension moneys and says at p. 31
Vol.1 of the Records:-
“Well, we have got a lot of
problems. Of course the
money, which was loaned to the
Company by the
K-Central was depleted long
time ago in late 1994
and since that time I have
personally been
keeping the Company and its
operations with the
funds of my own, particularly my
American
Social Security Pension which I
have been
drawing since October 1994.
The company is in a
very healthy condition at the
moment.
In view of
recent Court case in the
Western Region where
the lands we had negotiated
for around the
town of Dadeaso were illegally
sold by an
exiled Chief and after having
arrested these
people that conduct the illegal
sale, were taken
to Court and after four years
in court the
entire area was returned to
our company. We
are regularizing that at the
moment and
anticipate planting the entire
acreage with
the cocoa and we are
expecting production
to go up.
We believe the company can
finance
all this itself at the moment,
and we look
forward to profit all our
shareholders”..
It is the evidence of the
prosecution, their very first
witness. It paints a rosy
picture of the affairs of Valley
Farms.
Continuing, Pw1 at pp. 40-41 of
Vol. 1 of the Record testified
under cross-examination as
follows, between lines 28-33 and
1-4:
“Q …I am saying that this
that, this morning you said that
the future of the project is
bright?
A. Yes
Q. And I am saying that
in so saying you were cognizance
of the fact there is an
improvement in the
international price?
A. Yes
Q. And this will
obviously affect the further
viability of this project?
A. Yes”.
Furthermore the total acreage of
the farms of Valley Farms is
given at p. 15 of the Record
Vol. 1 as “2079 acres”. We all
know that landed property keeps
on appreciating. Here there is
the added value of trees of such
high economic standing as cocoa
(of a special quality from the
evidence on record). Given the
admission of liability by Valley
Farms to GNPC on the guarantee
by subrogation I do not see how,
on these facts it can be said
that the sum involved has been
lost to GNPC.
In BONI v. THE REPUBLIC (1971) 1
GLR C.A at 474, a case involving
a provision in pari materia
though not on all fours with
the present, Azu Crabbe J.A,
delivering the judgment of the
court said:
“ In this case, can it be said
that the money expended on the
building is irrecoverable?
Certainly not. The money was
converted into a building, and
exhibit ‘G’ makes it abundantly
clear that the building belongs
to the government. And if the
money expended on it was to be
treated as a loan to Madam
Susana Boadi, as indeed the
first appellant insisted it
should be so treated, interest
would in accordance with the
normal practice, have been
charged on the loan. How then
could the Industrial Development
Corporation have incurred a loss
both in the nature of capital
and interest, as the learned
trial judge seemed to think,
albeit erroneously?” I do not
see how the equilibrium of this
reasoning would be disturbed had
the charge there related to
financial loss rather than
careless dissipation of public
property. I would therefore
mutatis mutandis adopt and apply
this reasoning to the present
case. I however hold that
reading S.179 A(3)(a) of Act
29160 as amended together with
articles 34(1), 36(1) and 2(e)
of the Directive Principles of
State Policy of the 1992
Constitution relating to the
economy of Ghana, the money or
other financial item involved,
if not to be considered as lost,
must be recoverable within a
reasonable time, having regard
to the particular circumstances
of each case. Were this time
element an issue in this case, I
should have pointed to the
copious additional evidence on
record that militates against
any argument founded thereon.
I could go on and on. But I
think I have said enough to
indicate why in my humble view
the prosecution did not
discharge its burden of
production at the close of the
case for the prosecution in
respect of counts 1-3. The case
of THE STATE v. ALI KASSENA and
others supra, show that even in
murder cases, when there is no
case to answer the charges
ought at that stage to fail and
the accused be acquitted. I
would therefore allow the appeal
in respect of counts 1-3 and
acquit and discharge the
appellant.
Count 4 charges the offence of
intentionally misapplying public
property contrary to section
1(2) of the Public Property
Protection Decree 1977 (S.M.C.D
140).
The particulars of this charge
are as follows: “TSATSU TSIKATA
as the Chief Executive of Ghana
National Petroleum Corporation
(GNPC) in or about March 1991 in
Accra in the Greater Accra
Region intentionally misapplied
the sum of Twenty Million Cedis
(¢20,000,000.00) belonging to
Ghana National Petroleum
Corporation (GNPC) to acquire
shares in Valley Farms Company
Ltd, a private liability
company”. The argument on this
charge is based on GNPC’s core
business as set out in the GHANA
PETROLEUM CORPORATION LAW, 1983
(PNDCL 64). The objects and
functions of GNPC are as stated
in S.2 of that Law as follows:
“2(1) The objects of the
Corporation are to undertake the
exploration, development,
production and disposal of
petroleum.
(2)
Without limiting the generality
of subsection (1) of this
section the Corporation shall:
(a)
promote the exploration and the
orderly and planned development
of the petroleum resources of
Ghana;
(b)
ensure that Ghana obtains the
greatest possible benefits from
the development of its petroleum
resources;
(c)
obtain the effective transfer to
Ghana of appropriate technology
relating to petroleum
operations;
(d)
ensure the training of citizens
of Ghana and the development of
national capabilities in all
aspects of petroleum operations;
and
(e)
ensure that petroleum operations
are conducted in such manner as
to prevent adverse effects on
the environment, resources and
people of Ghana.
(3)
Subject to the provisions of
this Law and any enactment for
the time being in force the
Corporation may:
(a)
advise the Secretary and the
National Energy Board on matters
relating to petroleum
operations;
(b)
engage in petroleum operations,
either alone or in association
with others;
(c)
enter into petroleum and
production agreements and other
petroleum contracts providing
for the assistance,
participation or co-operation
of contractors in connection
with petroleum operations;
(d)
either alone or in association
with others, buy, sell, trade,
store, exchange, import or
export petroleum and for this
purpose, acquire or operate any
installations, facilities or
means of transportation;
(e)
engage in research and
development programme related to
petroleum; and
(f)
engage in such other activities,
either alone or in association
with others, as may be necessary
or desirable for the carrying
out of petroleum operations.
It is clear from the evidence of
Pw2, Mr. Opoku Mensah, a former
Corporate Planning Manager and
Acting Head of Drilling and
engineering at pp. 48-49 of the
Record (Vol. 1) that GNPC’s
objects are foreign exchange
intensive and that foreign
exchange was a great handicap to
the corporation’s operations. To
take just one excerpt, at p.50
he testified under
cross-examination as to this
handicap as follows:-
Q. “Mr. Opoku Mensah you
are aware that due to this
handicap, the GNPC was on
day-to-day basis addressing the
issue of foreign currency for
the corporation?
A. Yes, we were always
looking for funds for our
projects”
X
X
X
Q. Mr. Opoku Mensah,
this issue of foreign exchange
was always highlited in your
projections for the department.
That is when you presented your
plans the issue of foreign
exchange requirement was
regularly highlited?
A. Yes, My Lord”
Towards the end of p.50 Pw2
testified as follows:-
“Q. Was GNPC ever
capitalized?
A. Not to my knowledge,
My Lord.”
Similarly in Exh. T, his
cautioned statement to the
police the appellant stated (see
p. 910 of Vol. 3 of the Record)
as follows:
“If anything, the State still
owes GNPC the capitalization
Commitments that were made but
not fulfilled. It is in this
context that the Valley Farms
project and GNPC participation
must be seen”.
It is trite law that statutory
powers include all such powers
as are necessary and incidental
to the doing of what is required
by the statute to be done. See
S.10 of the Interpretation Act
1960 (C.A. 4), and article 296
of the 1992 Constitution. See
also RHONE-POULENCE v. GNTC
(1972) 2 GLR 109 Abban J. In
DEUCHAR v. GAS LIGHT AND COKE
CO. (1925) AII ER Reprint 720, a
decision of the English House of
Lords, it was held, as per the
head note that “the company,
being expressly authorized to
work up or deal with their
residual products by converting
them into a marketable article,
had by reasonable implication a
power to provide by the process
of manufacture, instead of by
purchases, the necessary
materials for that purpose”.
In this case PNDCL 64 chose to
deal with this aspect expressly
in S. 2(3)(6) as follows:
“…(f) engage in such other
activities, either alone or in
association with others, as may
be necessary or desirable for
the carrying out of petroleum
operations”.
S. 29 defines “petroleum
operations” to mean
“…exploration, development,
production, transportation and
disposal of petroleum”. Quite
clearly this calls for intensive
foreign exchange.
The evidence of Pw1 at P.36 of
the Record (Vol. 1) and Exhibit
5A inter alia, that the Valley
Farms Project in cocoa is
foreign exchange focused, add
to this judicial notice of
cocoa as a foreign exchange
earner in Ghana and the acute
need for the same by GNPC
(evidence already set out),
warrant the investment by GNPC
in that project and cannot be a
misapplication of the funds
involved.
Under S.16 (1) of PNDCL 64 the
government of Ghana has only a
discretion and not a duty to
capitalize GNPC. Were it a
mandatory duty I should have
held against GNPC ‘s investment
in Valley Farms, but it is not.
Government did not provide the
funds whereas, of course, under
S.2(1) the Corporation’s duties
which are foreign exchange
intensive, are mandatory.
PNDCL 64, itself, in
anticipation of such activities
in view of the foreign exchange
necessarily involved in the
attainment of the objects and
functions of GNPC, has in S.19
made special provision for GNPC
to have a foreign exchange
account. It provides as
follows:-
(1)
“The Corporation shall, with the
approval of the Bank of Ghana,
open a special foreign exchange
account into which shall be paid
all moneys received in foreign
exchange by the Corporation.
(2)
The Bank of Ghana, shall
supervise and monitor the
operation of the special foreign
exchange account by the
Corporation to ensure that it is
in conformity with the approved
purposes for which the account
was established.
(3)
The purposes for which the
special foreign exchange account
may be used shall include-
(a)
repayment of principal and
interest due in foreign exchange
on any borrowing made under
section 15 of this Law;
(b)
payment for goods and services
imported from outside Ghana:
(c)
such other payments as are
required to be made in foreign
exchange in respect of
transactions related to the
objects of the Corporations.
(4)
The Corporation shall, at the
end of every period of ninety
days, transfer to the Bank of
Ghana from the credit balance of
its special foreign exchange
account such sums of money as
are not required within the
succeeding period of ninety days
for the purposes specified in
subsection (1) of this
section.”
GNPC, is of course an on-going
concern.
No canon of construction can
correctly stand in the way GNPC
sought, through Valley Farms to
source foreign exchange funds to
carry out their statutory duties
and functions. They rightly did
so with the investment in Valley
Farms under sections 1(3) and
2(3) (f) of PNDCL 64.
Owning to the presumption of
innocence, the question whether
there is a case to answer at the
close of the prosecution’s case
is a serious and fundamental
matter. As Ollenu J.A delivering
the judgment of the Court of
Appeal in ATSU v. THE REPUBLIC
(1968) GLR 716 C.A at 719 said:
“…it is the prosecution which
has the onus to prove the
guilt of the person they accuse
of an offence, and not
the accused who should
establish his innocence, the
accused should therefore not
show his hands until
the need arises.”(es)
The prosecution’s case is
heavily riddled with alluvial,
exculpatory, evidential bullets
and therefore disestablishes a
prima facie case against the
appellant. I would therefore
also allow the appeal with
regard to count 4 and acquit and
discharge the appellant.
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
COUNSEL:
MR. OSAFO SAMPONG, D.P.P (WITH
HIM AUGUSTINE OBOUR A.A.S) FOR
RESPONDENT.
PROF. E.V.O DANKWA (WITH HIM
MAJOR (RTD) AGBENOTO) FOR
APPELLANT.
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