BENNEH v. THE REPUBLIC AND ANOTHER [1974] 2 GLR 47 -

COURT OF APPEAL, ACCRA (FULL BENCH)

Date: 6 MAY 1974

AZU CRABBE CJ

CASES REFERRED TO

(1) Benneh v. The Republic [1971] 1 G.L.R. 78.

(2) Benneh v. The Republic [1971] 2 G.L.R. 354, C.A.

(3) Marfo v. Adusei, Supreme Court, 24 February 1964,unreported.

(4) Swaniker v. Adotei Twi II [1966] G.L.R. 151, S.C.

(5) Aschkar v. Karam [1972] 1 G.L.R. 1, C.A.

(6) Edwards v. Edwards (1876) 2 Ch.D. 291; 45 L.J.Ch. 391; 34 L.T.472; 24 W.R. 713, C.A.

(7) Commissioners of Customs & Excise v. Sokolow’s Trustee [1954] 2 Q.B. 336; [1954] 2 W.L.R. 575; [1954] 2 All E.R. 5; 98 S.J.217.

(8) In re Levy’s Trusts (1885) 30 Ch.D. 119; 54 L.J.Ch. 968; 53 L.T.200; 33 W.R. 895.

(9) Rein v. Lane (1867) L.R. 2 Q.B. 144; 8 B. & S. 83; 36 L.J.Q.B.81; 51 L.T. 466; 15 W.R.345; 2 Mar.L.C. 448.

(10) R. v. Norfolk County Council(1891) 60 L.J.Q.B. 379.

(11) Batcheller (Robert) & Sons, Ltd. v. Batcheller [1945] 1 Ch. 169;[1945] 1 All E.R. 522; 114 L.J.Ch. 156; 172 L.T. 298; 61 T.L.R.233; 89 S.J. 130.

(12) Re Levy; Ex parte Walton (1881) 17 Ch.D. 746; 50 L.J.Ch. 657; 45 L.T. 1; 30 W.R. 395, C.A.

(13) Hill v. East and West India Dock Co. (1884) 9 App.Cas. 448; 53 L.J.Ch. 842; 51 L.T. 163; 32 W.R. 925; 48 J.P. 788, H.L.

(14) St. Aubyn (L.M.) v. Attorney-General (No. 2) [1952] AC. 15; [1951] 2 All E.R. 473, H.L.

(15) R. v. Price (1871) L. R. 6 Q. B. 411; 24 L.T. 387; 34 J.P. 790.

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(16) In re Mayfair Property Co.; Bartlett v. Mayfair Property Co. [1898] 2 Ch. 28; 67 L.J.Ch. 337; 78 L.T. 302; 46 W.R. 465; 14 T.L.R. 336; 42 S.J. 430; 5 Mans. 126, C.A.

(17) Canada Southern Railway Co. v. International Bridge Co. (1883) 8 App.Cas. 723, P.C.

(18) Hill v. William Hill (Park Lane), Ltd. [1949] A C. 530; [1949] 2 All E.R. 452; [1949] L.J.R. 1383; 65 T.L.R. 471; 93 S.J. 587, H.L.

(19) Awoonor-Williams v. Gbedemah, Supreme Court, 8 December 1969, unreported; digested in (1970) C.C. 18.

(20) Assam Railways and Trading Co., Ltd. v. Inland Revenue Commissioners [1935] A.C. 445; [1934] All E.R. Rep. 646; 103 L.J.K.B. 583; 152 L.T. 26; 50 T.L.R. 540; 18 T.C. 509, H.L.

(21) Katikiro of Buganda v. Attorney-General [1961] 1 W.L.R. 119; 105 S.J. 85; [1960] 3 All E.R. 849, PC.

(22) Labrador Co. v. R. [1893] A.C. 104; 62 L.J.P.C. 33; 67 L.T. 730, P C.

(23) Akainyah v. The Republic, Court of Appeal, 1 July 1968, unreported; digested in (1968) C.C. 105.

(24) Attorney-General for Australia v. R. [1957] A.C. 288; [1957] 2 W.L.R. 607; [1957] 2 All E.R. 45; 101 S.J. 300, PC.

(25) Waterside Workers’ Federation of Australia v. J. W. Alexander Ltd. (1918) 25 C.L.R. 434.

(26) Inkumsah v. The State, Court of Appeal, 18 December 1967, unreported; digested in (1968) C.C. 55.

(27) Hardy v. Fothergill (1888) 13 App.Cas. 351; 58 L.J.Q.B. 44; 4 T.L.R. 603; 59 L.T. 273; 37 W.R. 177; 53 J.P. 36, H.L.

(28) Egerton v. Brownlow (1853) 4 H.L.Cas. 1; 8 St.Tr. (N.S.) 193; 23 L.J.Ch. 348; 21 L.T. (o.s.) 306; 18 Jur. 71; 10 E.R. 359, H.L.

(29) In re Mirams [1891] 1 Q.B. 594; 39 W.R. 464; 7 T.L.R. 309; 8 Morr. 59.

(30) Janson v. Driefontein Consolidated Mines Ltd. [1902] A.C. 484; 71 L.J.K.B. 857; 87 L.T. 372; 51 W.R. 142; 18 T.L.R. 796; 7 Com.Cas. 268, H.L.

(31) Ewart v. Ewart [1959] P. 23; [1958] 3 W.L.R. 680; 123 J.P. 63; 102 S.J. 861; [1958] 3 All E.R. 561.

(32) Inland Revenue Commissioners v. Hinchy [1960] A.C. 748; [1960] 2 W.L.R. 448; 104 S.J. 188; [1960] 1 All E.R. 505; [1960] T.R. 33; 53 R. & I T. 188; 33 T.C. 625; 39 A.T.C. 13, H.L.

(33) King-Emperor v. Benoari Lal Sarma [1945] A.C. 14; L.R. 72 I.A. 57; 114 L.J.P.C. 33; 61 T.L.R. 54; 88 S.J. 415; [1945] 1 All E.R. 210, PC.

(34) Spokesman (Publications) Ltd. v. Attorney-General [1974] 1 G.L.R. 88, C.A. (full bench).

(35) Donkor v. The Republic [1971] 1 G.L.R. 30, S.C.

(36) Oloto v. Williams (1944) 10 W.A.C.A. 23.

(37) Dam v. Addo [1962] 2 G.L.R. 200, S.C.

(38) Odoi v. Hammond [1971] 1 G.L.R. 375, C.A.

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(39) Seraphim v. Amua-Sekyi [1971] 2 G.L.R. 132, C.A.

(40) Esso Petroleum Co., Ltd. v. Southport Corporation [1956] A.C. 218;[1956] 2 W.L.R. 81; [1955] 3 All E.R. 864; 120 J.P. 54; 100 S.J. 32; 54 L.G.R. 91; [1955] 2 Lloyd’s Rep. 655, H.L.

NATURE OF PROCEEDINGS

APPEAL from a decision of the ordinary bench of the Court of Appeal (reported in [1971] 2 G.L.R. 354) that was originally filed with the former Supreme Court. By section 3 (2) (d) of N.R.C.D. 101 the full bench of the Court of Appeal accepted jurisdiction to determine the validity of N.L.C.D. 400. The facts are fully set out in the judgments of Azu Crabbe C.J. and Apaloo J.A.

COUNSEL

J. Reindorf for the appellant.

Dr. S. K. B. Asante, Solicitor-General (with him N. M. C. Dodoo, Chief State Attorney and E. A. Nelson, Senior State Attorney), for the respondents.

JUDGMENT OF AZU CRABBE CJ

This appeal raises very difficult problems of interpretation, and, in my view, this is the result of the proliferation of over-hasty Decrees which characterised the closing months of the administration of the National Liberation Council.

On 24 February 1966, the Government of the Convention People’s Party in the First Republic of Ghana was overthrown in a coup d’etat, and with effect from that date a military cum police government, called the National Liberation Council, was established by virtue of the Proclamation for the Constitution of a National Liberation Council for the Administration of Ghana and for other Matters Connected Therewith (hereinafter referred to simply as the proclamation). The Constitution of the First Republic of Ghana was suspended, and paragraph 3 (1) of the Proclamation provided as follows:

“Until such time as a new Constitution is promulgated by the People of Ghana, the National Liberation Council shall have power for such purposes as they may think fit and in the National Interest to make and issue decrees which shall have the force of law in Ghana.”

On 3 March 1966, the Proclamation was amended by the National Liberation Council (Proclamation) (Amendment) Decree, 1966 (N.L.C.D. 1), and paragraph 2 thereof reads as follows:

“(1) The said Proclamation is hereby further amended by the insertion immediately after sub-paragraph (2) of paragraph 1 thereof of the following new sub-paragraph-

(3) Until such time as a new Constitution is promulgated by the People of Ghana and a new Government is formed under such Constitution, the National Liberation Council shall be the Government of Ghana and shall have and exercise the executive powers of the State.’

(2) This paragraph shall be deemed to have come into force on the 24th day of February, 1966.”

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On 18 August 1966, the National Liberation Council promulgated the National Liberation Council (Investigation and Forfeiture of Assets) Decree, 1966 (N.L.C.D. 72). Paragraph 2 of this Decree, as subsequently amended by N.L.C.D. 174 reads as follows (only the relevant paragraphs are reproduced):

“(1) The National Liberation Council shall appoint one or more Commissions under the Commissions of Enquiry Act, 1964 (Act 250) which shall be charged with the investigation of the existence, nature, extent and method of acquisition of the assets of the persons described in the First Schedule to this Decree as well as the investigation of such other matters relating to such assets as the National Liberation Council may think fit.

(2) A Commission appointed by virtue of this paragraph shall consist of not less than two persons and shall have a Chairman who shall be a Judge of the High Court or of the Supreme Court or a person who has previously held any such office….

(5) A Commission shall in each case, after consideration of all the evidence coming before the Commission state:-

(b) what part if any, of such assets could not, in the opinion of the Commission have been lawfully acquired by such person having regard to his income from all sources and to his reasonable expenses and also to all circumstances of the case.”

Paragraph 3 of the Decree, as subsequently amended by the substitution by two other Decrees (N.L.C.D. 266 and N.L.C.D. 297), reads as follows:

“(1) Subject to the provisions of this Decree and to such directions as the National Liberation Council may in any particular case think fit to give, all assets which are declared by the Commission under sub-paragraph (5) of paragraph 2 of this Decree to be such as could not have been lawfully acquired shall, notwithstanding anything to the contrary save a direction as aforesaid of the National Liberation Council under this sub-paragraph, be deemed to be forfeited to the State.

(2) Any judge of the High Court shall, upon application made by the Attorney-General, make such order or orders as may be necessary for the purpose of giving full effect to any forfeiture of assets effected by sub-paragraph (1) of this paragraph and shall, in particular, but without prejudice to the generality of the foregoing, where necessary, order any person to execute such instrument as may be necessary, for enabling any asset situated outside Ghana to be vested in the State.”

On 29 May 1967, the National Liberation Council made an instrument, the Commission of Enquiry (Investigation and Forfeiture of Assets) Instrument, 1967 (E.I. 41), whereby a commission, consisting of the Honourable Mr. Justice Sowah, then a judge of the High Court, and two others, was appointed, and the commission was charged with the performance of the functions mentioned in paragraph 2 (1) of N.L.C.D. 72. It

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was provided in subparagraph (10) of paragraph 2 that except where a contrary intention was expressed, the functions conferred on the commission under the Decree would be deemed to be additional to and not in substitution of the functions conferred on a commission under the Commissions of Enquiry Act, 1964 (Act 250). In its terms of reference the commission was enjoined “to report its findings to the National Liberation Council making such recommendations to the Council as the Commission may think fit.” I have emphasized the foregoing clause, and its significance in the determination of the principal issue which we are called upon to consider will, I am certain, emerge later in this judgment.

It is not denied that the appellant (hereinafter called the plaintiff) was one of those persons specified in the First Schedule to the Decree. Indeed, he appeared before the commission, and a report was made on him: see Report of the Sowah Commission, pp. 65-75. It would appear that the report on the plaintiff was signed by the commissioners on 27 May 1969.

Nothing more was done or heard about this report, until 27 September 1969, when the Investigation and Forfeiture of Assets (Further Implementation of Commissions’ Findings) (No. 3.) Decree, 1969 (N.L.C.D. 400), was promulgated. The preamble to the Decree says that the report of the Sowah Assets Commission was published on the same day as the Decree was promulgated. It is also stated in the preamble that the Decree was promulgated in pursuance of the Proclamation, and its provisions, which appear relevant to this case, are the following:

“1. The provisions of this Decree shall be in addition to and not in derogation of the provisions of the National Liberation Council (Investigation and Forfeiture of Assets) Decree, 1966 (N.L.C.D. 72).

2. All the assets described in Parts I and II of the First Schedule to this Decree are hereby with effect from 27th day of September, 1969, vested in the State free from all incumbrances whatsoever.

3. Each of the persons specified in Column I of Parts I, II and III of the Second Schedule to this Decree shall with effect from the 27th day of September, 1969, be liable to pay to the State the sum specified in relation to him in Column 2 of the said Parts I, II and III of the said Schedule.

4. For the purpose of securing the due recovery by the State of any assets declared by paragraph 2 of this Decree to be vested in the State and also, for the purpose of securing the due payment of any moneys required to be paid to the State by any person under paragraph 3 of this Decree, each of the said paragraphs 2 and 3 shall, so far as the said assets and moneys are concerned operate as a judgment or an order of the High Court in civil proceedings from which there is no right of appeal; and accordingly all the enactments relating to the enforcement of judgments or orders of the High Court, shall, with such modifications as may be necessary, apply with respect to the enforcement of the said paragraphs as they apply for the enforcement of judgments or orders of the High Court in civil proceedings …

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7. The provisions of this Decree shall have effect notwithstanding any other law to the contrary.”

In the meantime, however, the Constitution of the Republic of Ghana had earlier been enacted on 22 August 1969, by the Constituent Assembly by virtue of paragraphs 1 and 2 of the Constituent Assembly (Amendment) Decree, 1969 (N.L.C.D. 380). N.L.C.D. 380 was published on 18 August 1969, and under paragraph 3 of that Decree, the Proclamation was to continue in force until repealed. The effect of this provision, as shown by the marginal note to the paragraph, was that the National Liberation Council was to continue to have power to make Decrees until the final handing over of power to a civilian government. This particular provision was repealed by the Constitution (Consequential and Transitional Provisions) Decree, 1969 (N.L.C.D. 406), on 30 September 1969, i.e. on the eve of the assumption of power by a civilian government. In my view, the life of the Proclamation was prolonged by N.L.C.D. 380, and therefore, I do not accept the argument of counsel for the appellant that the Proclamation spent itself on the promulgation of the Constitution.

The constitutional position of the National Liberation Council, after the promulgation of the Constitution on 22 August 1969, was explained in Part V of the Transitional Provisions of the Constitution (Sched.I), s. 14 (1) as follows:

“On the coming into force of this Constitution the National Liberation Council shall continue to exercise the legislative power of the State until the meeting of the National Assembly immediately following the formation of the Cabinet.”

Before 1 October 1969, when a parliamentary government came into being, there was no legislature to enact law, and the National Liberation Council could only exercise the legislative powers of the State by Decrees. I cannot, therefore, see any inconsistency between the Proclamation and section 14 (1), for both confer legislative power on the National Liberation Council. The only important difference between the two provisions, so far as I can discern, is that whereas under the Proclamation the National Liberation Council had absolute legislative power, the legislative power conferred by section 14 (1) was subject to the limitations circumscribed by the Constitution. The National Liberation Council operated as a caretaker government under the Constitution, and, in my view, it had no more legislative powers than the prospective National Assembly. In my judgment, this is very crucial in the determination of the real issue in this appeal.

Sometime after the promulgation of N.L.C.D. 400, the first respondent (hereinafter called the defendant) caused to be served upon the plaintiff the following document:

“In the High Court of Ghana, Eastern Region, Accra

In the matter of Investigation and Forfeiture of Assets (Further implementation of Commissions’ Findings) (No. 3.) Decree, 1969(N.L.C.D. 400)

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Between-

The State — Judgment Creditor and

Isaac William Benneh — Judgment Debtor Entry of Judgment Order 41 R.S.C.

Pursuant to the provisions of the Investigation and Forfeiture of Assets (Further Implementation of Commissions’ Findings) (No.3) Decree, 1969 (N.L.C.D. 400).

It is this day adjudged that the State do recover from Isaac William Benneh the sum of 015,302.46. Dated at Accra, This 20th day of November, 1969.

(Sgd.) O. P. Hotoba-During (Mrs.)

Senior State Attorney,

for Attorney-General.

The Senior High Court Registrar,

High Court, Accra.

And to the above-named, Mr. Isaac William Benneh, Accra.”

On 8 June 1970, the plaintiff filed a suit in the High Court, Accra, against the defendant and the Deputy Sheriff of the High Court, Accra, and in a statement of claim filed on his behalf on 9 July 1970, it was averred as set out in [1971] 1 G.L.R. 78 at p. 79 as follows:

‘(1) Plaintiff has been served, at the instance of the first defendant, with a document dated 20 November 1969 entitled ‘Entry of Judgment-under Order 41 R.S.C.,’ purporting to be an entry of judgment in this court against plaintiff for the sum of N015,302.46 in an alleged suit entitled Republic v. Benneh.

(2) In pursuance of the said entry of judgment the sheriff has caused to issue a writ of fi. fa. for the purpose of attaching and selling compulsorily certain properties of plaintiff.

(3) No unsatisfied judgment has been pronounced against plaintiff herein in favour of the State or of any other person in the said sum of N015,302.46 or in any other sum, and there has been no suit or matter before this court with the title in paragraph (1) above referred to in which the said sum or any other sum has been claimed against plaintiff herein.

(4) The said entry ofjudgment purports to be “pursuant to the provisions of N.L.C.D. 400.’

(5) The said N.L.C.D. 400, which was made on 30 September 1969, is repugnant to the Constitution, 1969, and in particular to articles 12 and 18 thereof, wherefore the said N.L.C.D. 400 is under article 1 (2) of the Constitution, void and of no effect.

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(6) Plaintiff’s claim therefore is under article 28 of the Constitution for an order of injunction to restrain the defendants, their agents, servants and assigns from carrying out any or all of the provisions of the said N.L.C.D. 400.”

In a statement of defence filed on behalf of the defendants it was also averred as follows:

“(1) The defendants admit paragraph (1) of the statement of claim and state that the entry of judgment (and service thereof) was legal and proper.

(2) The defendants admit paragraph (2) of the statement of claim and state that the writ of fi.fa. was properly issued. The second defendant will further contend that he was performing an official duty as instructed and directed by the first defendant.

(3) The defendants deny paragraph (3) of the statement of claim.

(4) The defendants admit paragraph (4) of the statement of claim. The defendants will at the trial, rely on N.L.C.D. 400.

(5) The defendants deny paragraph (5) of the statement of claim. The first defendant contends that N.L.C.D. 400 does not contravene any provision of the Constitution as alleged or at all.

(6) The defendants deny paragraph (6) of the statement of claim and contend that the plaintiff is not entitled to the relief sought or any other relief.

(7) The first defendant further contends that there is no legal basis for the plaintiff’s action for an injunction to restrain the first defendant from going into execution.

(8) The first defendant further contends that the plaintiff’s action is barred by section 13 (3) of the Transitional Provisions of the Constitution.

(9) Save as here in before expressly admitted, the defendants deny each and every allegation contained in the statement of claim as if the same were set out in detail and traversed seriatim.”

I have reproduced the pleadings in full in order to make clear the facts on which the parties relied. It will be noted that paragraph (3) of the statement of defence is a particularly vague denial of paragraph (3) of the statement of claim, for no attempt is made to specify the judgment of any legally constituted court which is sought to be enforced.

The two main issues which were formulated and agreed upon for trial were: (a) whether or not N.L.C.D. 400 was valid; and (b) whether or not the appellant’s action was barred by the provisions of section 13 (3) of the Transitional Provisions of the Constitution. The action came for hearing before Aboagye J. (reported as Benneh v. The Republic [1971] 1 G.L.R. 78) who declined jurisdiction, and (at p. 80) “accordingly [dismissed] the plaintiff s claim with liberty to bring an action in the Supreme Court for the determination of the validity or otherwise of N.L.C.D. 400.”

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Not being satisfied with the decision of Aboagye J. the plaintiff appealed to the Court of Appeal, and on 26 April 1971, that court (constituted by Koi Larbi J.S.C., Anin and Lassey JJ.A.) expressed their decision briefly as follows:

“Court: Having heard counsel for both parties, we are satisfied that there is no substance in this appeal and it should, in our opinion, be dismissed. And it is hereby dismissed accordingly. Reasons to be given later. Costs for the respondents assessed at N075. 00.”

On 31 May 1971, the Court of Appeal gave their reasons for their decision, which appeared on 26 April 1971 to have been unanimous; reported as Benneh v. The Republic [1971] 2 G.L.R. 354. But on that date, 31 May, Lassey J.A. dissented from the joint judgment of the other two members of the court. He explained his conduct in the following passage of his judgment at p. 360:

“Although I had the opportunity of reading in advance the draft of the written reasons of the majority of the members of the court which have just been read, it is a matter of some regret that I have not been able to persuade myself that the previous order of this court which I concurred in making on 26 April 1971 at first sight shortly after arguments in the case had concluded dismissing the appeal is a right one. That order seems to me to be in the nature of a non-speaking order in the sense that it was reached without any reasons being given to support it. After re-perusing the essential points canvassed by counsel, on reflection I have formed the definite conclusion that the order of 26 April 1971 dismissing the appeal was made in error, and that the proper order which ought to have been made instead was to have allowed the appeal and remitted the case back to the High Court for determination on its merit.”

Lassey J.A. found justification for resiling from the previous unanimous decision of 26 April 1971, in rule 33 of the Supreme Court [Court of Appeal] Rules, 1962 (L.I. 218), for he said at p. 360:

“I confess my mind was much exercised about the regularity of the course I propose to take in changing from the previous order of the court to which I was a concurring party, but after a patient and careful study of the terms of rule 33 of the Rules of Supreme Court, 1962 (L.I. 218), I am satisfied that, as the only limiting considerations necessary for exercising the power of review under the rule are the requirements of justice and the existence of exceptional circumstances in this appeal, I can justifiably correct the previous order which I wrongly joined in making at first blush. Rule 33 regulates the limited circumstances in which the court can review its previous order or decision. Under the rule the court will have to be satisfied, first that exceptional circumstances exist, and secondly that it is in the interest of justice that there should be a review.”

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With greatest respect to Lassey J.A. I think that the procedure he adopted was not only unprecedented, but also unsupported by the very rule upon which he relied as authority. The power to review in rule 33 is reserved for the court of three and not for a single judge of the court. Part II of L.I. 218 which deals with rules applicable to civil appeals does not contain any rule which empowers a single judge of the Court of Appeal to do any act by himself. And although a single justice of the Court of Appeal may by virtue of section 11 of the Courts Act, 1971 (Act 372), exercise any power vested in the Court of Appeal, yet this power cannot be exercised so as to affect the actual decision of the cause or matter before the court. In my view, what Lassey J.A. purported to do amounted to a review of the unanimous judgment of the court, but this was unwarranted by the rules and the Courts Act. In Marfo v. Adusei, Supreme Court, 24 February 1964, unreported, which probably is the first case on the rule, the court granted an application for a review, because it was satisfied that it was influenced by some typographical errors on the record, and consequently it omitted to consider certain issues in the appeal. In its ruling the court said:

“[T]his is a proper case for a review in compliance with the specific provision as contained in rule 33 of the Rules of Supreme Court, 1962. The judgment of this court [reported [1963] 1 G.L.R. 225] is in our view per incuriam occasioned by incorrect court notes from the court below quite apart from incoherent passages in the plaintiff’s evidence in which there are also obvious omissions. Accordingly, we are of the opinion that there are special circumstances and in the interest of justice the said judgment should be vacated and it is hereby vacated and the appeal will be relisted and heard de novo by this court as constituted.”

The rule was further considered in the case of Swaniker v. Adotei Twi II [1966] G.L.R. 151, S.C. where Sarkodee-Adoo C.J. said at p. 156 that “A review is not intended to take the place of an appeal and great care should be taken and it must always be remembered that a good ground in law for an appeal is not necessarily a ground for granting review.” In that case Ollennu J.S.C. also observed at p. 157:

“The emphasis in the rule is on ‘circumstances of the case are exceptional and that in the interest of justice there should be a review.’ No fixed rule can be laid down for determining what the court ought to regard as exceptional circumstances. Each particular case will depend upon its own merits. We can, however, find guidance from decisions of courts of this and of other countries which have or have had the discretion to review.”

Then, after considering the various decisions on the point the learned judge continued at p. 159:

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“I would here emphasise that a review is not intended to take the place of an appeal, and is not to be dealt with as if it were an appeal; therefore the mere fact that there is a good ground upon which the judgment could be set aside on appeal is not of itself a ground for granting review. As Redwar points out, an application for review is an application to the court to correct its own error, which includes omission. But the error or omission must be evident, or apparent in the judgment for the court which gave it to see and to recognise the necessity to correct it in order that justice may be done. And these, in my opinion, are the principles by which the court should be guided in considering an application for review.”

In the recent case of Aschkar v. Karam [1972] 1 G.L.R. 1, C.A. where the scope of rule 33 was again considered, it was contended that an error of law which was patent on the face of the record, and which produced manifest injustice was a ground for review under rule 33. The court rejected this argument and said at p. 4:

“It is clear on an interpretation of the Supreme Court Rules as a whole that rule 33 is not intended to take the place of appeal, and an application under that rule ought not to be dealt with as if it were a further appeal. Therefore, the mere fact that there is a good ground upon which the judgment could be set aside on appeal is not of itself a ground for granting review under rule 33. The onus on the applicant is a heavy one indeed. He must satisfy the court:

(1) That the circumstances that give rise to the application are exceptional; and

(2) That it is in the interest of justice that there should be a review.

‘Exceptional circumstances’ which may necessitate the exercise of the power of review in this context means that the particular facts alleged as the ground for review are unusual. The facts must at least show that the court had misled itself or had been misled by the winning party by a deliberate or innocent misrepresentation on both facts and law. Misapprehension of the law is not a ground of review under rule 33, and, therefore, where the court had on a particular issue given its considered opinion, it will not review and set aside its decision merely because additional arguments lead it to think that its decision was wrong. It will certainly require a strong case to justify a review under the rule.”

I am inclined to think that the separate judgment written by Lassey J. A. at pp. 360-367, was coram non judice, because: (1) there is no power in a single judge to review the unanimous decision of the court, and (2) no” exceptional circumstances” are disclosed. The fact that Lassey J.A. thought the court had misapprehended the law, did not give him jurisdiction to resile from the unanimous decision of the court. In considering this appeal, therefore, this court must look only at the judgment signed by Koi Larbi J.S.C. and Anin J.A., in which the reasons for the unanimous decision of 26 April 1971 were given at pp. 356-360.

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Between the date of the Court of Appeal’s unanimous decision and the date when reasons for the judgment were given, the plaintiff filed an appeal in the erstwhile Supreme Court on 1 May 1971. The ground of appeal was stated in these terms: “The learned judges in the Court of Appeal erred in dismissing the plaintiff s appeal from the High Court (Aboagye J.) in view of the provisions of articles 2, 28 and 106 of the Constitution.” The reliefs sought from the Supreme Court were:

“That the judgment or order appealed against be set aside, and that the court do make an order either remitting the suit to the High Court for hearing and determination on the merits, or referring the question of the validity of N.L.C.D. 400 to itself for determination and subsequent directions to the High Court.”

This appeal has now come before this court (full bench of the Court of Appeal) by virtue of section 3 (2) (d) of the Courts (Amendment) Decree, 1972 (N.R.C.D. 101). This section gives the full bench of the Court of Appeal jurisdiction “to hear and determine any appeal which had been duly filed with the Supreme Court before the commencement of this Decree.” In my view, the power conferred by section 3 (2) (d) of this Decree necessarily implies that the full bench of the Court of Appeal has all the powers to exercise the appellate jurisdiction of the former Supreme Court. We gave serious consideration to the reliefs sought by the plaintiff, and eventually opted for the second alternative.

At the commencement of the hearing of this appeal, Dr. S. K. B. Asante, Solicitor-General, who appeared for the defendants raised preliminary objections to our jurisdiction, but we overruled his objections, and our reasons for doing so have been amply stated in the judgment to be read resently by Apaloo J.A.

The real contest then between the parties is whether N.L.C.D. 400 was valid. The Decree came into effect on 30 September 1969, and its main features, in so far as these are relevant to the appeal, are as follows:

(1) The Decree fixes the date of the publication of the findings of the Sowah Assets Commission as 27 September 1969.

(2) It is to be considered as an addition to the provisions of N.L.C.D. 72; that is to say, the two Decrees are to be read as one.

(3) It vests in the State, free from all encumbrances, all the assets described in Parts I and II of the First Schedule to the Decree, which includes the property of the plaintiff.

(4) It makes the plaintiff liable to pay to the State the sum of N015,302. 46, declared by the Sowah Assets Commission to have been unlawfully acquired by him.

(5) The declarations or findings with respect to the plaintiff s assets and the money payable by him are to operate as judgments or orders of the High Court in civil proceedings from which there is no right of appeal.

(6) The rules under Order 41 (entry of judgment) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), are applicable in the enforcement of the declarations or findings.

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Before examining the merit of the main arguments of counsel, it will be necessary to consider the effect of the provisions of paragraph 3 of N.L.C.D. 72. By virtue of this paragraph all assets declared to have been unlawfully acquired are deemed forfeited to the State. What in law is forfeiture? In Jowitt’s Dictionary of English Law, it is defined thus at p. 823: “Forfeiture is where a person loses some property, right, privilege or benefit in consequence of having done or omitted to do a certain act.” Various circumstances from which forfeiture results are then stated. In the famous work Words And Phrases Legally Defined (2nd ed.), Vol.2, D-H,at p.271, we read this definition:

“Forfeiture is a punishment annexed by law to some illegal act, or negligence, in the owner of lands, tenements, or hereditaments; whereby he loses all his interest therein, and they go to the party injured, as a recompense for the wrong which either he alone, or the public together with himself, hath sustained (2 Bl.Com. 267).”

Very interesting arguments were addressed to us on the effect of paragraph 3 of N.L.C.D. 400. Arguing on the assumption that the declaration made by the Sowah Assets Commission became effective on 27 May 1969, i.e. the day on which the report was signed, Dr. Asante submitted that there is an unchallengeable declaration that the plaintiff had acquired unlawful assets, which formed the subject-matter of the plaintiff s claim; these assets were already vested in the State before N.L.C.D. 400 was promulgated. He, therefore, further submitted that by no canon of interpretation can article 18 of the Constitution, 1969, be invoked in respect of property which had been pronounced or declared, by due process of law, to have been unlawfully acquired and consequently confiscated. Dr. Asante argued that before the Constitution came into force the property of the plaintiff had already been forfeited. If I understand Dr. Asante’s argument aright, upon the signing of the Sowah Assets Commission Report, all the appellant’s interests in the assets specified in the First Schedule to the report automatically became forfeited and inured to the benefit of the State. The State, he said, had an unimpeachable legal right to the property, and the subject-matter of that property is not otherwise subject to any sanctions duly imposed by the law. Mr. Reindorf, on the other hand, contended that “forfeiture” under paragraph 3 was not automatic; it only created a right of action which could be enforced by the court. Counsel referred us to Megarry and Wade,The Law of Real Property (3rd ed.), p. 18 and submitted that forfeiture in paragraph 3 has the same connotation as forfeiture which results in breaches of covenant or conditions contained in a lease or other instruments. But the principle upon which equity gives relief is tersely stated in Snell’s Principles of Equity (26th ed.) at p. 598: “The principle which governs the court in granting relief against forfeiture, is that the court will grant relief only where the court can give compensation for the forfeiture.” I feel unable to accept Mr. Reindorf s latter argument, partly because I think the analogy is false, and partly because it is impossible to imagine how equity can give relief from forfeiture of property which had been unlawfully

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acquired. Anyone claiming relief against forfeiture in these circumstances can be met with the maxim “He who comes into equity must come with clean hands.” The expression “equity of the statute” is now an obsolete term, and the courts will not grant relief against express statutory provisions. The view was forcefully expressed by Mellish L.J. in Edwards v. Edwards (1876) 2 Ch.D. 291, C.A. He said at p. 297: “If the Legislature says that a deed shall be ‘null and void to all intents and purposes whatsoever,’ how can a Court of Equity say that in certain circumstances it shall be valid? The Courts of Equity have given relief on equitable grounds from provisions in old Acts of Parliament; but this has not been done in the case of modern Acts, which are framed with a view to equitable as well as legal doctrines.”

Mr. Reindorf s next argument was that the word “forfeited” in N.L.C.D. 72 ought to be given the same meaning it had under the Customs Ordinance, Cap. 167 (1951 Rev.), now replaced by the Customs and Excise Decree, 1972 (N.L.C.D. 114). He said that under that Ordinance where goods or properties were forfeited by Customs officials, it was still open to the owner to go to court to have his goods or properties released to him if he could show good cause. He submitted, therefore, that forfeiture under the Ordinance meant “liable to forfeiture.” Speaking for myself, I do not think that the customs laws give any assistance in the interpretation of the word “forfeited” in paragraph 3 (1) of N.L.C.D. 72. Our former Customs Ordinance was based on the English Customs Consolidation Act, 1876 (39 & 40 Vict., c. 36); section 202 of the English Act closely resembles section 203 of our Ordinance, while section 226 of the said Act is somewhat similar to our section 232. All these sections contain provisions as to forfeiture. The meaning of forfeiture in the English Act has been explained by Hilbery J. in Commissioners of Customs and Excise v. Sokolow’s Trustee [1954] 2 All E. R. 5. He said at pp. 7-8:

“When considering the use of the word forfeiture in the phrase ‘proceedings shall be taken for the forfeiture and condemnation’ of the goods, in s. 207, regard must be had to the fact that the word forfeiture’ is used in the Act to connote two distinct and different things. The word forfeiture’ is used in the Act both for the articles confiscated and for many penalties incurred in consequence of the doing of something which the Act prohibits.”

I think the word “forfeiture” means not only the penalty of an actual taking away of property on the breach of a condition or upon the occurrence of an event, but also the doing or suffering a thing which creates a liability to such a deprival. In In re Levy’s Trusts (1885) 30 Ch.D. 119, Kay J. said at pp. 124-125:

“The word ‘forfeit,’ the noun substantive, is defined in Dr. Johnson’s Dictionary to be ‘something lost by the commission of a crime;- something paid for the expiation of the crime, a fine, a mulct.’ By the same authority the verb to forfeit’ is defined to mean to lose

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by some breach of condition, to lose by some offence,’ and he gives certain illustrations, as usual, in his dictionary, and this is one: A father cannot alien the power he has over his child; he may perhaps to some degree forfeit it, but cannot transfer it.-Locke.’ There forfeit’ is contrasted with ‘alien or transfer.’ ‘Forfeit,’ the participial adjective, is defined to be liable to penal seisure; alienated by a crime, lost either as to right or possession by breach of conditions.’ Then he gives these lines from Shakespeare: All the souls that were, were forfeit once; And He that might the vantage best have took, Found out the remedy.’ (Measure for Measure.) And, again: ‘Beg that thou may’st have leave to hang thyself; And yet, thy wealth being forfeit to the state, Thou hast not left the value of a cord.’

Clearly the word forfeit’ means not merely that which is actually taken from a man by reason of some breach of condition, but includes also that which becomes liable to be so taken.”

In this case, the real question that arises is: What is the true meaning of the word “forfeited” in paragraph 3 (1) of N.L.C.D. 72?In ascertaining the meaning to be attached to a particular word or phrase in a section of an Act, the first course to take is to ascertain that meaning from a consideration of the section itself, if possible. The next step is to look at the context in which it is used. In Rein v. Lane (1867) L.R. 2 Q.B. 144, Black – burn J. said at p. 151:

“It is, I apprehend, in accordance with the general rule of construction in every case, that you are not only to look at the words, but you are to look at the context, the collocation, and the object of such words relating to such a matter, and interpret the meaning according to what would appear to be the meaning intended to be conveyed by the use of the words under such circumstances.”

I think that in ascertaining the true meaning of the word “forfeited” in paragraph 3 (1), the entire paragraph must be read as a whole. When the paragraph is read in that way, it becomes obvious that the word “forfeited” does not stand alone; it is governed by the words “shall … be deemed,” which, in my judgment, provide the key to the meaning of the word “forfeited.” In ordinary parlance, when a thing is to be “deemed” something else, it means that that thing is to be treated as something else with all the attendant consequences, though it is not that something else. If I may quote a passage from the judgment of Cave J. in R. v. Norfolk County Council (1891) 60 L.J.Q.B. 379 at pp. 380-381:

“[G]enerally speaking, when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what it is to be, and that, notwithstanding it is not that particular thing, nevertheless … it is to be deemed to be that thing.”

In Robert Batcheller & Sons, Ltd. v. Batcheller [1945] 1 Ch. 169, Romer J. said at p. 176:

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“It is, of course, quite permissible to deem’ a thing to have happened when it is not known whether it happened or not. It is an unusual but not an impossible conception to deem’ that a thing happened when it is known positively that it did not happen. To deem, however, that a thing happened when not only is it known that it did not happen, but it is positively known that precisely the opposite of it happened, is a conception which to my mind … amounts to a complete absurdity.”

In Re Levy; Ex parte Walton (1881) 17 Ch.D. 746, C. A. James L.J. said at p. 756:

“When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.”

In Hill v. East and West India Dock Co. (1884) 9 App. Cas. 448, H.L., where the words “shall be deemed to have been surrendered” were to be construed, the House of Lords approved the observations of James L.J. in Re Levy; Ex parte Walton (supra), and in the course of his judgment Lord Blackburn said at p. 458:

“[I]n delivering my judgment, I am myself relieved from that difficulty, because the late Lord Justice James in Ex parte Walton, expressed in better words than I could select … exactly what I conceive to be the ratio decidendi. I think the words here ‘shall be deemed to have been surrendered’ (and a similar observation of course applies to the other expression of the same kind, shall be deemed to be determined’) mean, shall be surrendered so far as is necessary to effectuate the purposes of the Act and no further…”

In St Aubyn (L.M.) v. Attorney-General (No. 2) [1951] 2 All E.R. 473, H.L., Lord Radcliffe explained the various shades of meaning of the word “deemed” when used in a statute. He said at p. 498:

“The word deemed’ is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.”

The word “deemed” is more often used for the purpose of creating a statutory fiction, for whilst generally speaking the mere declaration of a commission of inquiry cannot operate to affect the property and other rights of an individual, in this case the Decree says that such a declaration shall have the effect of creating a forfeiture of assets. I understand paragraph 3 (1) of N.L.C.D. 72 to mean, therefore, that the owner of all assets declared to have been acquired unlawfully loses all rights and interests in those assets, and that these inure to the benefit of the State. This means

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that the State becomes entitled to the assets, though these may still be in the possession of the original owner or a third party. This, in my judgment, is the plain meaning of paragraph 3 (1).

In my judgment the context clearly explains the meaning of the term “forfeited.” Reading paragraph 3 as a whole it is plain that forfeiture of assets in, sub-paragraph (1) does not become effective upon a declaration, until the Attorney-General has taken steps, as provided in sub-paragraph (2), to get a court order “for the purpose of giving full effect to any forfeiture of assets effected by sub-paragraph (1) . . .” If, as has been contended, the assets became confiscated merely upon a declaration, and vested in the State all the estate, right, benefit and privilege in the assets, then what is the object of sub-paragraph (2)? Could it be mere surplusage? In my view, sub-paragraph (2) cannot be contended to achieve the same result as has been provided for in sub-paragraph (1).

It is important to take note of the various amendments made to N.L.C.D. 72, particularly paragraph 3. On

29 July 1968, paragraph 3 of N.L.C.D. 72 was amended by the substitution of paragraph 1 of the National Liberation Council (Investigation and Forfeiture of Assets)(Amendment) (No. 2) Decree, 1968 (N.L.C.D. 266). The amended and substituted paragraph 3 reads:

“(1) All assets which are declared by a Commission under sub-paragraph (5) of paragraph 2 of this Decree to be such as could not have been lawfully acquired by any person shall, notwithstanding any claim made by any other person to any such assets or any order of any court in relation thereto, and also, notwithstanding any other thing whatsoever to the contrary, be deemed to be forfeited to the State and any such assets shall be disposed of in such manner as the National Liberation Council may think fit.

(3) Any person who-

(a) fails without lawful excuse (proof of which shall be on him) to hand over any asset forfeited under this paragraph when requested so to do by the National Liberation Council or by any person authorised in that behalf by such Council, or

(b) otherwise obstructs the carrying into effect of any forfeiture effected by this paragraph, shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding N050,000 or to a term of imprisonment not exceeding fifteen years or to both such fine and imprisonment.”

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As can be seen, this new amendment by N.L.C.D. 266 absolutely vests the assets deemed forfeited in the State, which could dispose of them in any manner. The assets became, to all intents and purposes, the property of the State and anyone who failed to hand them over to the State or its representative, or hindered the take over, incurred a heavy penalty. It cannot be doubted that the object or effect of the amendment was not only to make the State the real owner of the assets, but also to put the State into possession. The amended Decree, if I may be permitted to say so, installed the State upon the assets. When the legislature, in legislating in pari materia and substituting certain “provisions for those which existed in an earlier statute, has changed, or added to, the language of the prior enactment, it must be taken to have done so with some intention and motive”: per Cockburn C.J. in R. v. Price (1871) L.R. 6 Q.B. 411 at p. 416. In In re Mayfair Property Co.; Bartlett v. Mayfair Property Co. [1898] 2 Ch. 28, C.A., Lindley M.R. said at p. 35:

“In order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydon’s Case to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief.”

Now, what was the “mischief’ aimed at by N.L.C.D. 266? That “mischief’ was that without the intervention of a court order, nothing could be done about assets that were deemed forfeited and the remedy provided by the amending Decree was to make it possible for the State itself to deal directly with the assets.

Exactly three months after the promulgation of N.L.C.D. 266, i.e. on 25 October 1968, N.L.C.D. 72 was further amended by the National Liberation Council (Investigation and Forfeiture of Assets) (Amendment) Decree, 1968 (N.L.C.D. 297), by the restoration literally of the original sub-paragraph (1) of paragraph 3. The haste with which N.L.C.D. 266 was amended is indicative of the doubt that existed in the minds of the law-makers as to the effect of the forfeiture which sub-paragraph (1) purported to create. The law-makers might well have thought that it was far better to return to the beaten path of formal legality than to resort to the right of self-help created by N.L.C.D.266.

It seems that the meaning of the word “forfeited” in paragraph 3 of N.L.C.D. 72 was resolved beyond doubt by the National Liberation Council (Investigation and Forfeiture of Assets) (Further Implementation of Commissions’ Findings) (No. 3) Decree, 1969 (N.L.C.D. 400), which came into force on 30 September 1969. In the preamble an obvious reference is made to the Sowah Assets Commission’s findings and it is then recited:

“AND WHEREAS the National Liberation Council deems it fit to give due effect to the said findings …

NOW, THEREFORE, in pursuance of the Proclamation entitled Proclamation for the constitution of a National Liberation Council for the administration of Ghana and for other matters connected

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therewith,’ published in Gazette No. 11 of 28 February, 1966, this Decree is hereby made. . .;

It seems plain that the Decree was made to give effect to the declarations made by the Sowah Assets Commission. Paragraph 1 of the Decree provides that it would be “in addition to and not in derogation of the provisions of the National Liberation Council (Investigation and Forfeiture of Assets) Decree, 1966 (N.L.C.D. 72).” Then paragraph 2 provides: “All the assets described in Parts I and II of the First Schedule to this Decree are hereby with effect from 27th September, 1969, vested in the State free from all incumbrances whatsoever.”

The effect of paragraph 1 of N.L.C.D. 400 is that it shall be construed as one with N.L.C.D. 72. The court must therefore construe every part of the two Decrees “as if it had been contained in one Act, unless there is some manifest discrepancy, making it necessary to hold that the later Act has to some extent modified something found in the earlier Act”: see Canada Southern Railway Co v. International Bridge Co. (1 883) 8 App.Cas. 723, P.C., per Earl of Selborne L.C. at p. 727. Here we have it from the horse’s own mouth (the law-maker) that the assets deemed forfeited “vested in the State free from all incumbrances whatsoever” on 27 September 1969, and I think it is absolutely impossible for anyone to argue that the forfeiture took effect on an earlier date. The legislature (or the law-maker) is presumed to know the existence of the law, and, therefore, the court should be astute to impute to its language tautology or superfluity. Since N.L.C.D. 72 is incorporated in N.L.C.D. 400 it cannot be assumed that N.L.C.D. 400 is repeating anything already said in N.L.C.D. 72. Delivering his speech in the House of Lords in the case of Hill v. William Hill (Park Lane), Ltd. [1949] A.C. 530, H.L. Viscount Simon said at pp. 546-547:

[I]t is to be observed that though a Parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in an Act of Parliament is not to be assumed. When the legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out.”

In the present case if the assets of the plaintiff were effectively forfeited on the signing of the Report of the Sowah Assets Commission, then there would be nothing left to vest on 27 September 1969. Indeed, paragraph 2 of N.L.C.D. 400 would be superfluous. In my judgment, the only way to make a consistent and sensible interpretation of the two Decrees is to hold that the words “shall be deemed forfeited to the State” in paragraph 3 (1) of N.L.C.D. 72 mean that the State shall be beneficially entitled to the forfeited assets.

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But in case I should be wrong in my interpretation of the words “shall be deemed forfeited to the State” in paragraph 3 (1) of N.L.C.D. 72 I think it is still necessary to give some consideration to the word “declared” in the same paragraph of the Decree. The question which was never raised during the argument, but is nonetheless very important in the determination of the critical issue in this appeal, is: When did the Sowah Assets Commission declare that the plaintiff s assets were unlawfully acquired? We have already noticed that the commission’s report was signed on 27 May 1969. Was it that date that the plaintiff s assets were deemed forfeited? Or was it the date that the report was submitted to the National Liberation Council? Or was it the date on which the report was published? These, in my view, are crucial questions, and so much hinges upon them. I confirm my statement in Awoonor- Williams v. Gbedemah, Court of Appeal sitting as Supreme Court, 8 December 1969, unreported; digested in (1970) C.C. 18 that the word “declare” in paragraph 3 of N.L.C.D. 72 is used in the ordinary sense, and not in its restricted or legal sense. In the Concise Oxford Dictionary (4th ed.), at p. 309, the definition of the word “declare” is given as follows: “Make known, proclaim publicly, formally or explicitly (declare war, a dividend).” I think that the public element in the definition is very vital. Dr. Asante had argued confidently upon the assumption that the plaintiff s assets were forfeited on the date the report was signed. With respect, I am not impressed by that argument, because, in my opinion the commissioners did not “declare” anything by merely writing their signatures under the report. The government paper on the report (White Paper No. 15/69) does not state the date on which the report was submitted. But does the submission of the report to the National Liberation Council per se amount to a declaration? Certainly, I do not think so. A report submitted to the National Liberation Council could not be a public matter, until the council had deemed it fit to publish it formally. Though the report may be treated as an extraneous matter to show what were the surrounding circumstances with reference to which the word “declare” was used in the Decree, it is now settled that neither the reports of commissioners nor government white papers are admissible as aids to construction when the intention of a statute is in question: see Assam Railways and Trading co., Ltd. v. In land Revenue Commissioners [1935] A.C. 445, H.L. and Katikiro of Buganda v. Attorney-General [1961]

1 W.L.R. 119, P.C.N.L.C.D. 400 itself put the issue of publication beyond doubt when in the preamble it clearly states:

“WHEREAS on the 27th day of September, 1969, the Government caused to be published certain findings made by a Commission appointed by virtue of paragraph 2 of the National Liberation Council (Investigation and Forfeiture of Assets) Decree, 1966 (N.L.C.D. 72).”

The Decree itself, therefore, fixes the date of the publication of the findings of the Sowah Commission at 27 September 1969, and that is the only date on which the assets of the appellant could be deemed forfeited to the

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State. This fact which is recited in the preamble is incontrovertible, and this court is bound to take judicial notice of it: see Labrador Co. v. R. [1893] A.C. 104 at p. 123, P.C. It will be observed that N.L.C.D. 400 did not only fix the date of publication of the findings of the Sowah Commission, but it also stated that it was the findings that “declared certain assets to have been unlawfully acquired by certain persons to whom the findings relate.” It follows, in my view, that a declaration affecting assets can only be found in the findings. Indeed, it is the findings that constitute the declaration. The Decree then states its only object as follows: “AND WHEREAS the National Liberation Council deems it fit to give effect to the said findings . . .” The Decree purported to achieve this object in three different ways. Firstly, all assets declared to have been unlawfully acquired vested in the State free from all incumbrances whatsoever, with effect from 27 September 1969. Secondly, all persons who were declared to have unlawfully acquired moneys during office became liable with effect from 27 September 1969, to repay such moneys to the State. And, thirdly, the findings with regard to the first and second were to have the same effect as judgments of the High Court. Surely, if effect was given to the findings only on 27 September 1969, and notified in the Gazette of 30 September 1969, how can it possibly be argued that the findings that declared the plaintiff s assets to have been unlawfully acquired became binding before that date. That the assets of the plaintiff became forfeited only on 27 September 1969, and not on 27 May 1969, as canvassed by the defendants, is, in my judgment, clear beyond any argument. I have earlier in this judgment, stated that the Sowah Assets Commission was enjoined by its terms of reference to report its findings to the National Liberation Council. These findings were not definitive until the council had had the opportunity to peruse them and to take a decision either to accept or vary or reject them or to give any directions in relation thereto. Thus, on 21 October 1968, the National Liberation Council gave itself express power in the National Liberation Council (Investigation and Forfeiture of Assets)(Amendment) Decree, 1968 (N.L.C.D. 297), as to the manner in which it would deal with the findings of a commission appointed under N.L.C.D. 72. Paragraph 1 of the Decree reads:

“The National Liberation Council (Investigation and Forfeiture of Assets) Decree, 1966 (N.L.C.D. 72) as amended (hereinafter called the Principal Decree’) is hereby further amended in paragraph 3 thereof by the substitution for sub-paragraph (1) of that paragraph of the following new sub-paragraph:-

3. ( 1) Subject to the provisions of this Decree and to such directions as the National Liberation Council may in any particular case think fit to give, all assets which are declared by the Commission under sub-paragraph (5) of paragraph 2 of this Decree to be such as could not have been lawfully acquired shall, notwithstanding anything to the contrary save a direction as aforesaid of the National Liberation Council under this sub-paragraph, be deemed to be forfeited to the State’.”

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The portions of the Government White Paper (No. 15/69) which relate to the assets of the appellant show that in one case it is stated: “Government accepts these findings,” and in another: “Government accepts this recommendation.” And in yet another case the government varied the recommendation for forfeiture and itself decided what amount it intended to recover as if it were a judgment debt. Could the government have interfered with the findings of the commission in this manner, if, as it is argued, the signatures of the commissioners had imprinted a badge of sacrosanctity on the report on 27 May 1969? In my judgment, the Sowah Assets Commission was a fact-finding body as any commission of inquiry, and its findings were not binding until the government of the day had decided to give effect to them either in an enactment or in a White Paper.

It is plain that in this case effect was given to these findings on 27 September 1969, and, therefore, the argument that the plaintiff s assets were forfeited on 27 May 1969, cannot with all due respect, be correct. It is significant to note that in the 1969 Republican Constitution of Ghana, where a person against whom there had been an adverse finding by a commission of inquiry was disqualified from being a member of the National Assembly by virtue of article 71 (2) (b) (ii), that disqualification was removed by article 71

(3) “if five years or more have elapsed since … the date of the publication of the report of the Commission of Inquiry€”

I have referred to article 71 (2) (b) (ii) of the 1969 Constitution only to stress here the point that unless it is otherwise expressly provided by law, the signed report of a commission of inquiry per se has no effect until its findings and recommendations are accepted and published by the government that set up the commission.

We may now turn our attention to the arguments on the central issue in the present case. Mr. Reindorf submitted that N.L.C.D. 400 is inconsistent with, and is in contravention of, the Constitution and to that extent it is invalid. He referred to article 1 (2) of the Constitution which states:

“This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void and of no effect.”

Counsel referred to the provisions of paragraphs 2, 3 and 4 of N.L.C.D. 400 and also to the provisions of articles 12 to 18 of the Constitution and argued that a comparison between these articles and the paragraphs of the Decree makes the inconsistency clear. He submitted that N.L.C.D.400 offends against the Constitution because: (1) it takes away the unimpeded access to the courts of law, and (2) it also removes the protection from depredation of property rights. It impedes access to the courts of law, counsel emphasized, because it creates a fictitious judgment from which there is no right of appeal. Mr. Reindorf next referred to article 18 (2) (b) of the Constitution and submitted that judgments or orders in that clause should be interpreted as judgments or orders of the courts of law, and also that “courts” mean courts established under the laws of

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the land. He further submitted that for the purposes of article 18 a commission of inquiry is not a court, and its findings are not judgments or orders of the court. Consequently, counsel argued, since paragraphs

2 and 3 of N.L.C.D. 400 are not judgments of the court, the court machinery cannot be used to enforce them.

Dr. Asante’s answer to Mr. Reindorf s argument is: (1) that the assets of the plaintiff were declared forfeited before the Constitution came into force; (2) that the assets had already vested in the State before N.L.C.D. 400 became law; (3) that article 18 only protects property where the party invoking that article has an unimpeachable legal right to the property, and the subject-matter of the property is not otherwise subject to any sanction imposed by the law; and (4) that the National Liberation Council had power under section 14 (1) of the Transitional Provisions of the Constitution to promulgate Decree 400.

Article 18 (1) of the Constitution reads:

“No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired by the State, except where the following conditions are satisfied, that is to say,

(a) the taking of possession or acquisition is necessary in the interests of defence, public safety, public order, public morality, public health, town and country planning or the development or utilisation of any property in such manner as to promote the public benefit; and

(b) the necessity therefor is such as to afford reasonable justification for causing any hardship that may result to any person having an interest in, or right over, the property; and

(i) for the prompt payment of adequate compensation; and

(ii) securing to any person having an interest in, or right over, the property a right of access to the High Court of Justice, whether direct or on appeal from any other authority, for the determination of his interest or right, and the amount of any compensation to which he is entitled;

and for the purposes of obtaining prompt payment of that compensation.”

Clause (2) of the same article also reads (only the relevant provisions are reproduced):

“Nothing in this article shall be construed as affecting the operation of any general law so far as it provides for the taking of possession or acquisition of property ….

(b) in the execution of judgments or orders of Courts; or”…

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On 29 September 1969, when N.L.C.D. 400 was promulgated the National Liberation Council was, by virtue of section 14 (1) of the Transitional Provisions of the Constitution, exercising the legislative power of the State. This power, in my judgment, was subject to the constraints and limitations circumscribed by the Constitution. Before 30 October 1969, the National Liberation Council had legally exercised its legislative power by Decrees, and it was by virtue of that power that N.L.C.D. 400 was promulgated. And by virtue of paragraph 4 (1) of the Constitution (Consequential and Transitional Provisions) Decree, 1969 (N.L.C.D. 406), all existing Decrees were confirmed and declared as forming part of the laws of Ghana.

By definition in article 126 of the Constitution the “existing law” includes any Decree that existed immediately before the coming into force of the Constitution or which was to come into force after that date. Clause (5) of article 126 provides that:

“Subject to the provisions of this article, the operation of the existing law after the coming into force of this Constitution shall not be affected by such commencement; and accordingly the existing law shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give effect to or enable effect to be given to any changes effected by this Constitution.”

The two Decrees that are being challenged in these proceedings are N.L.C.D. 72 and N.L.C.D. 400. As we have already seen, paragraph 3 (1) of N.L.C.D. 72 seeks to forfeit assets which are declared to be unlawfully acquired. It appears that of all the Decrees promulgated during the National Liberation Council administration none was subjected to as many amendments as N.L.C.D. 72. Paragraph 4 of the original N.L.C.D. 72 gave any person aggrieved by any finding of a commission of inquiry the right to appeal to the Supreme Court. But paragraph 4 was soon repealed by the National Liberation Council (Investigation and Forfeiture of Assets) (Amendment) Decree, 1967 (N.L.C.D. 129), on 27 January 1967.

This was followed on 25 June 1968 by the National Liberation Council (Investigation and Forfeiture of Assets) (Amendment) Decree, 1968 (N.L.C.D. 253), which introduced a new paragraph 4, and this reads: “No Court constituted under the Courts Decree, 1966 (N.L.C.D. 84) shall entertain any application to that court for an order of certiorari, mandamus or prohibition to be made by that Court in respect of any proceedings, findings or any other order or decision whatsoever of a Commission appointed by virtue of paragraph 2 of this Decree…”

This new paragraph completely impedes any access to the courts for the purpose of obtaining a remedy against the finding of a commission. The position, therefore is that at the time the Constitution came into force there was no way of challenging the findings of a commission in the courts. In my view, paragraph

4 of N.L.C.D. 253 falls foul of the Constitution, and it is void to that extent.

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In this case, paragraphs 1 and 2 of N.L.C.D. 400 seek to deprive the appellant of his property, but article 18 of the Constitution forbids the expropriation of the property of any individual, unless the conditions specified in clause (1) (a), (b) and (c) are all satisfied. It follows that while the Constitution is in force the executive is here acquiring property without complying with the terms of article 18 of the Constitution.

We have already noticed that some of the main features of paragraph 4 of N.L.C.D. 400 are: (1) that paragraphs 2 and 3 of the Decree are converted into a judgment or an order of the High Court in civil proceedings; (2) there is no right of appeal; and (3) the so-called judgment or orders are to be enforced by proceedings in the High Court. Now, article 102 (1) of the Constitution provides that the judicial power of Ghana is vested in the judiciary, and accordingly no organ or agency of the executive shall be given any final judicial power. Judicial power does not only mean the power to decide controversies between parties before the court, but also the power to enforce those decisions: see Akainyah v. The Republic, Court of Appeal, 1 July 1968, unreported; digested in (1968) C.C. 105. As the Privy Council said in Attorney-General for Australia v. R. [1957] A.C. 288 at p. 310, quoting from the Australian case of Waterside Workers’ Federation of Australia v. J. W. Alexander Ltd. (1918) 25 C.L.R. 434 at p. 463: “judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted’.” The concept of judicial power has been fully considered in the judgments of the Court of Appeal and the High Court in the Akainyah case (supra) as well as in the judgment of the Gbedemah case (supra) and there is really no doubt about the conceptual meaning of this term in Ghana. In drawing the distinction between the functions of a commission of inquiry and that of a court of law in the Akainyah case the Court of Appeal had this to say: “A commission of inquiry is an administrative tribunal and not a court of law. Although it may exercise judicial functions, it is wholly bereft of judicial power …” See also Inkumsah v. The State, Court of Appeal, 18 December 1967, unreported; digested in (1968) C.C. 55. In the document filed at the High Court Registry, Accra, that purported to initiate proceedings for the enforcement of the findings of the Sowah Assets Commission it was stated: “It is this day adjudged that the State do recover from Isaac William Benneh the sum of N015,302. 46.” I believe that the word “adjudged” has been used in its technical and narrow sense. In their statement of defence the defendants were evasive in their denial of the allegation in the plaintiff s statement of claim that no unsatisfied judgment had been pronounced against him in favour of the State. The truth of the matter is that there had been no such judgment. There can be no doubt that the so called judgment which the defendants purported to enforce was the legislative judgment created by paragraph 4 of N.L.C.D. 400. In providing that paragraphs 2 and 3 of N.L.C.D. 400 shall operate as a judgment, the Decree is manifestly turning a finding made by an agency of the executive into a judgment of a court of law. This amounts, in my view, to a usurpation of the judicial power of the judiciary. Paragraphs

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2 and 3 are completely outside the purview of article 18 (2) (b), because they are not judgments or orders of a court of law: see the definitions of “Court” and “judgment” in article 172. And the conscious and complete denial of the right to any judicial remedy to the person deprived of his property amounts, in my view, to a violation of article 12 (a) of the Constitution.

Lastly, the rules of court are made for regulating the practice and procedure of the courts. In this case, the defendants purported to enforce the so-called judgment under Order 41 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N.140A). The enforcement of a judgment is the exercise of judicial power, and “judgment” in Order 41 means judgment within the interpretation of article 172. Rule 1 of Order 41 provides:

“Every judgment shall be entered by the proper officer in the book to be kept for the purpose. The party entering the judgment shall deliver to the officer a copy of the whole of the pleadings in the cause, other than any petition or summons; such copy shall be in print or typewritten, except such parts (if any) thereof as are by these rules permitted to be written: Provided that no copy need be delivered of any document a copy of which has been delivered on entering any previous judgment in such cause. The forms in Appendix F shall be used, with such variations as circumstances may require.”

It would appear that in this case the defendants used Form No. 14 of Appendix F. Rule 3 of Order 41 also provides:

“Where any judgment is pronounced by the Court or a Judge in Court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, unless the Court or Judge shall otherwise order, and the judgment shall take effect from that date: provided that by special leave of the Court or a Judge a judgment may be ante-dated or post-dated.”

It seems very obvious that the findings of the Sowah Assets Commission could not satisfy the requirements of the court rules. In my view, therefore, the findings of that commission, an agency of the executive, could not be equated to a “judgment” within the definition of article 172 of the Constitution, and I think it is a gross misuse of the machinery of the courts and amounts to a “usurpation and infringement of the judicial sphere.”

I have arrived at this conclusion with very great reluctance, because, like the other members of this court, who take a different view of this matter, I also think that the social or public policy of N.L.C.D. 72 was to correct the wrongs of the past and to ensure probity and moral rectitude in public life. But at the same time I feel I ought to heed salutary warnings of many distinguished judges of the common law about the dangers of resorting to public policy in the construction of statutes. Thus, in Hardy, v. Fothergill (1888) 13 App. Cas. 351, H.L., Lord Selborne said at p. 358:

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“It is not, I conceive, for your Lordships or for any other Court to decide such a question as this under the influence of considerations of Policy, except so far as that policy may be apparent from, or at least consistent with, the language of the legislature in the statute or statutes upon which the question depends.”

In Egerton v. Brownlow (1853) 4 H.L. Cas 1 at p. 123, H.L., Parke B. warned:

“[P]ublic policy is a vague and unsatisfactory term, and calculated to lead to uncertainty and error, when applied to the decision of legal rights; it is capable of being understood in different senses; it may, and does, in its ordinary sense, mean political expedience,’ or that which is best for the common good of the community; and in that sense there may be every variety of opinion, according to education, habits, talents, and dispositions of each person, who is to decide whether an act is against public policy or not. To allow this to be a ground of judicial decision, would lead to the greatest uncertainty and confusion. It is the province of the statesman, and not the lawyer, to discuss, and of the legislature to determine, what is the best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law only: the written from the statutes: the unwritten or common law from the decisions of our predecessors and of our existing courts, from text-writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is the best, in his opinion, for the advantage of the community.”

In In re Mirams [1891] 1 Q.B. 594 at p. 595, Cave J. observed that: “judges are more to be trusted as interpreters of the law than as expounders of what is called public policy.” In Janson v. Driefontein Consolidated Mines, Ltd. [1902] A.C. 484 at p. 500, H.L., Lord Davey said, “Public policy is always an unsafe and treacherous ground for legal decisions.” In Ewart v. Ewart [1958] 3 W.L.R. 680 at p. 687, Lord Merriman P. said: “the court in face of the plain words of the statute is not concerned with questions of public policy which are said to have prevailed before it was passed.”

In construing statutes the policy of the law can only be taken into account when the statute under consideration is not explicit. In this case, the law-makers have made it explicit that the findings became effective on 27 September 1969, and this is clear evidence of the intention of the law-makers. As Lord Reid said in Inland Revenue Commissioners v. Hinchy [1960] A.C. 748 at p. 767, H.L.:

“What we must look for is the intention of Parliament, and I also find it difficult to believe that Parliament ever really intended the consequences which flow from the appellant’s contention. But we can only take the intention of parliament from the words which they have used in the Act, and therefore the question is whether these words are capable of a more limited construction. If not, then we must apply them as they stand, however unreasonable or unjust the consequences,

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and however strongly we may suspect that this was not the real intention of Parliament.”

It seems strange that the National Liberation Council must have fixed 27 September 1969 as the date on which effect was to be given to the findings, and one may wonder whether the Council could have intended such an unreasonable consequence. But we have to take the words in N.L.C.D. 400 as we find them. The National Liberation Council must be taken to mean what they say in N.L.C.D. 400; if they have chosen inapt language for the expression of that intention, they have only themselves to blame for it. In the case of King-Emperor v. Benoari Lal Sarma [1945] A.C. 14, the question before the Privy Council was whether an Ordinance of the Governor-General of India was intra vires, just as the question before us is whether N.L.C.D. 400 is intra vires the 1969 Republican Constitution of Ghana. In delivering the opinion of the Privy Council, Viscount Simon L.C. said at p. 28:

“[T]heir Lordships feel bound to point out that the question whether the ordinance is intra vires or ultra vires does not depend on considerations of jurisprudence or of policy. It depends simply on examining the language of the Government of India Act and of comparing the legislative authority conferred on the Governor-General with the provisions of the ordinance by which he is purporting to exercise that authority … Again and again, this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used.”

In my judgment, the preamble to N.L.C.D. 400 concludes this matter, for once it is accepted that the Sowah Assets Commission’s findings became effective only on the date of the publication of the report there can hardly be any doubt that the provisions of paragraphs 2 and 3 of N.L.C.D. 400 offends against the provisions of article 18 (1), and that paragraph 4 also contravenes the provisions of articles 12 (c) and 102 (1).

I think the plaintiff has clearly established his case and to the extent that N.L.C.D. 400 is inconsistent with the Constitution, I would declare it void and of no effect. In the result, I would allow the appeal and set aside the judgment of the Court of Appeal and would enter judgment for the appellant.

JUDGMENT OF APALOO J.A.

Apaloo J.A. delivered the majority judgment. On 20 November 1969, the State, acting under Order 41 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), entered judgment (in a suit entitled Republic v. Benneh, High Court, 9 December 1969, unreported) against the appellant (hereinafter referred to as the plaintiff). Its obvious object was to proceed by writ of fi. fa. to attach the leasehold property of the plaintiff known as 69 Ringway Estate and further to recover from him, the sum of £G4,250. The plaintiff complained that no judgment was recovered

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against him by the State and that the latter should be enjoined from pursuing its intended course of action. The State conceded that no judgment was pronounced against the plaintiff by a court in the conventional way but it claimed statutory authorisation for its course of action. It based itself on the Investigation and Forfeiture of Assets (Further Implementation of Commissions’ Findings) (No. 3) Decree, 1969 (N.L.C.D. 400). The plaintiff replied that that legislation was violative of articles 12 and 18 of the 1969 Constitution inasmuch as it sought to expropriate him of his property without compensation. The plaintiff invited the court to strike down that statute on that basis. To this, the State demurred.

Accordingly, the real hub of the controversy between the parties was the validity or invalidity of N.L.C.D. 400. The learned trial judge, to whom this matter went as of first instance, gave expression to his appreciation of the issue in these words (see [1971] 1 G.L.R. 78 at p. 79):

“From the pleadings it is quite obvious that the only material issue to be tried is whether or not N.L.C.D. 400, by virtue of which judgment was entered against the plaintiff, is void and of no effect because it contravenes articles 12 and 18 of the Constitution. If the decree is valid then everything done under it will also be valid. If, on the other hand, it is invalid as being repugnant to articles 12 and 18 of the Constitution then everything done under it including the entry of judgment against the plaintiff and the subsequent attachment of his property in execution of the judgment will be unlawful.”

It is manifest that the plaintiff was seeking to invoke the “Fundamental Human Rights” provisions of the Constitution and in particular articles 12 and 18 which debarred the State from depriving him of his property without compensation. Article 28 of the Constitution empowered the High Court to determine a plaint of this nature and to grant redress in a fit case. Although pressed with this article, the learned trial judge (Aboagye J.) considered himself inhibited from determining this matter by the provisions of article

2 (1) and (2) of the Constitution. His judgment was that the plaint could only properly be entertained in the Supreme Court. He accordingly declined jurisdiction and dismissed the suit but reserved to the plaintiff, liberty to prosecute this matter in the Supreme Court.

This conclusion gave no satisfaction to the plaintiff. So he appealed against it to this court (reported in

[1971] 2 G.L.R. 354). He sought it determined that the learned trial judge was in error in holding that article 28 of the Constitution did not clothe him with jurisdiction to entertain the action. He prayed that the action be resurrected and remitted to that court for hearing and determination and that any question affecting the proper interpretation of N.L.C.D. 400 which might arise in the course of the hearing, be referred to the Supreme Court.

The appeal came before the ordinary bench of this court on 23 and 26 April 1971. The court affirmed the conclusion of the High Court but did not accept its ratio decidendi. It seems to have accepted sub silentio, that the suit was properly cognisable by the High Court but it declined to

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remit it there. It founded itself on section 13 of the State Proceedings Act, 1961 (Act 51), and argued that the injunctive relief which the plaintiff sought could not properly be granted against the State and thought it would stultify itself if it remitted the case to the High Court to determine a relief which Act 51 peremptorily debarred it from granting.

The plaintiff said that conclusion was equally faulty. Accordingly, on 1 May 1971, he further appealed to the Supreme Court-then the court of final resort in this country. As articulated in his grounds of appeal, his complaint to that court was that the ordinary bench of this court misinterpreted the provisions of the State Proceedings Act, 1961 (Act 51), and under that erroneous interpretation affirmed the conclusion but not the ratio of the High Court. He prayed the Supreme Court either to remit the case to the High Court for determination or in the alternative, he asked the court to refer to itself and hereafter determine the validity or otherwise of N.L.C.D. 400. That court was in being when this appeal was made to it. It did not live to determine it. Its life was brought to an end by the Courts (Amendment) Decree, 1972 (N.R.C.D. 101), which came into force on 13 September 1972. Section 3 (2) (d) of that Decree conferred on this court a truncated jurisdiction of the Supreme Court in the following words: “to hear and determine any appeal which had been duly filed with the Supreme Court before the commencement of this Decree.” It is in virtue of the power conferred on us by this section that we entertained this appeal.

When this matter first came before us on 7 January 1974, Mr. Dodoo, Chief State Attorney, who then appeared for the State, informed us that he did not wish to advance any argument in support of the judgment of the ordinary bench and would not resist either of the reliefs which the plaintiff sought of this court. As we said, the plaintiff sought one of two alternative reliefs, namely, that this matter be remitted to the High Court for determination or that this court should remit to itself and determine whether or not N.L.C.D. 400 was valid or invalid. We gave a great deal of thought to the question which of these alternative reliefs would best promote the cause ofjustice and the expeditious disposal of this suit. We felt no doubt that the High Court was clothed with jurisdiction to determine and grant a relief in a claim such as the present. But it seems equally plain to us that if this suit were remitted to that court, it would be faced with rival interpretations of N.L.C.D. 400. In such an eventuality, article 106 of the Constitution enjoins it to refer such a question to the Supreme Court and thereafter act in accordance with the decision of that court. That court has ceased to exist and its referred jurisdiction went with it. It seemed to us that having regard to the position which resulted from the abolition of the Supreme Court and the language in which the appellate jurisdiction of the erstwhile Supreme Court was conferred on us, this court is the best forum to pronounce on the validity or otherwise of the impugned Decree. It also appeared to us that the ends of justice plainly demanded that we should determine and bring to a finality a suit whose final determination has eluded the courts for the best part of five years. We accordingly acceded to the latter of the reliefs sought by the plaintiff and remitted to ourselves the

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determination of the question whether or not N.L.C.D. 400 was valid. To this end, we invited argument.

Dr. Asante, the Solicitor-General, who then appeared on behalf of the State, let it be known that although he was appreciative of the course which this court proposed to take, he felt it his duty to contest the jurisdiction of the court and invited us to dismiss this suit in limine on three grounds, namely: (1) that this court has no jurisdiction to entertain the suit inasmuch as the original jurisdiction of the Supreme Court was abolished; (2) that the entertainment of an action such as the present was forbidden by subsection (3) of section 13 of the First Schedule (Transitional Provisions of the Constitution); and (3) inasmuch as the plaintiff s interest in the property in dispute was extinguished before the coming into force of the constitution, the plaintiff had no standing to prosecute this action.

On the first of his three grounds, the Solicitor-General says the competence of the court to exercise jurisdiction now derives from the National Redemption Council Proclamation of 14 January 1972, and in particular the jurisdiction of the full bench is only as is conferred by the Courts (Amendment) Decree,

1972 (N.R.C.D. 101). He says the fundamental rights provisions of the Constitution have been suspended and accordingly, the jurisdiction of the High Court conferred by article 28 (1) to enforce these provisions disappeared and so also the original jurisdiction of the Supreme Court under article 106 (1). The Solicitor-General therefore invited us to hold that the constitutional jurisdiction both of the High Court and the Supreme Court was abolished and a fortiori, we can have none to exercise. He says his contention on this score is buttressed by the recent full bench decision of this court in Spokesman Publications) Ltd. v. Attorney-General [1974] 1 G.L.R. 88.

While we acknowledge that Dr. Asante’s construction is a possible one, we think it is technical and narrow and does not reflect the true policy reasons underlying the conferment of the appellate jurisdiction of the erstwhile Supreme Court in this court. In its policy declaration abolishing the Supreme Court, the government in a statement issued on its behalf by the Information Services Department on 12 September 1972, said:

“The National Redemption Council proposes to put into force the necessary legislation to protect the interest of those whose appeals are pending before the Supreme Court, and to transfer the jurisdiction of the Supreme Court in chieftaincy matters to the Court of Appeal which will now be the final appellate court in the country.”

That legislation was promulgated and became law the very next day. One of the persons whose interest that legislation seeks to protect, is the plaintiff. His appeal was then pending in the Supreme Court and that appeal cannot be determined unless, at least that part of the jurisdiction of the Supreme Court which enables it to construe legislation vis-a-vis the Constitution was conferred.

If the Supreme Court had existed and had on appeal been faced with the substantial issue with which we were faced, namely, whether N.L.C.D. 400 was inconsistent with articles 12 and 18 of the Constitution and was

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accordingly avoided by clause (2) of article 1 of the Constitution we have no doubt that it would have interpreted that legislation. It could not pronounce on whether the proposed attachment of the plaintiff s property was lawful or unlawful otherwise. We think therefore that when section 3 (2) (d) of N.R.C.D.

101 empowered this court “to hear and determine any appeal which had been duly filed with the Supreme Court…” it necessarily implied jurisdiction in this court to exercise all the powers which that court would have exercised, if it had itself existed and entertained the appeal.

In our opinion, the Spokesman case (supra) is plainly distinguishable from the instant one. In that case, the plaintiff sought in the Supreme Court, a declaration that certain sections of the amendment to the Criminal Code were inconsistent with named provisions of the Constitution. It is manifest that the plaintiff invoked the original jurisdiction of that court under article 106. That suit was pending in the Supreme Court when it was abolished. While section 3 (2) (d) of the Courts (Amendment) Decree (N.R.C.D. 101), specifically provides for pending appeals, either by accident or design, that legislation omits pending “first instance” actions. It follows that this case which was pending as an appeal before the abolition of the Supreme Court, fell within the spirit and letter of the amendment while the spokesman case did not. We think we ought to construe section 3 (2) (d) of N.R.C.D. 101 liberally and benevolently to carry out the declared intention of the law-giver. The construction put on that section by the Solicitor-General cannot but frustrate the true intention of the legislature and we could not accept it.

Dr. Asante next says, we should decline the exercise of jurisdiction because we are constitutionally enjoined by subsection (3) of section 13 of the First Schedule (Transitional Provisions) of the Constitution from doing so inasmuch as the passage of N.L.C.D. 400 was “consequent upon” the overthrow of the government of the First Republic. The provision on which reliance is placed reads as follows:

“For the avoidance of doubts, it is hereby declared that no Court shall entertain any action or take any decision or order or grant any remedy or relief in any proceedings instituted against the Government of Ghana, or any person acting under the authority of the Government of Ghana whether before or after the coming into force of this Constitution or against any person or persons acting in concert or individually to assist or bring about the change in government which took place on the twenty-fourth day of February, 1966, in respect of any act or omission relating to, or consequent upon,

(a) the overthrow of the government in power before the formation of the National Liberation Council; or

(b) the suspension of the Constitution which came into force on the first day of July, 1960, or any part thereof; or

(d) the establishment of this Constitution.”

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The Solicitor-General referred to the reported decision of this court in Donkor. v. The Republic [1971] 1 G.L.R. 30, C.A. and also cited and relied on a passage in the majority judgment of this court in the case of Awoonor Williams v. Gbedemah, Supreme Court, 8 December 1969, unreported; digested in (1970) C.C.

18. He says that case and the holding in the latter case provide support for his contention.

The relevance of section 13 (3) of the Transitional Provisions to this case, is hardly apparent. As we said ad nauseam, the question we were called upon to decide, is whether N.L.C.D. 400, on which the State stood to attach the property of the plaintiff, fell foul of any provision of the “supreme law” of the land. That Decree is clearly part of the existing law within the meaning of article 126 (1) (d) of the Constitution. If as the plaintiff contends, this law conflicts with articles 12 and 18 of the Constitution, then it is liable to be struck down. It cannot be used as a justification for attaching the plaintiff s property in 1970. The Constitution itself provides a machinery for the agitation of the grievance which the plaintiff complains of: see article 1 (2) and article 106. Yet we are asked to say that section 13 (3) statutorily enjoins us from pronouncing on the question. That contention cannot be right.

It is hardly right to say that the passing of a Decree simpliciter is an act “consequent upon” the overthrow of the government in power before the formation of the National Liberation Council within the true meaning of section 13 (3). That section, in granting the relevant immunities, relates it to any act or omission relating to or “consequent upon” the various events specified. There must therefore be such a showing between the act complained of and the various events. It is not the overthrow of the government in power before the formation of the National Liberation Council or the establishment of the National Liberation Council that the plaintiff complains of. It is the passing of N.L.C.D. 400 and its application that he claims damnifies him. True, the enactment of that legislation became possible because of the establishment of the National Liberation Council. It was the sine qua non to the passing of that law. But it is not the causa causans of the plaintiff s complaint. Clearly, the mere establishment of the National Liberation Council did not cause that Decree to follow. It was the exercise of legislative power by that government that directly led to the passing of that law.

That Decree was thus neither related to nor consequent upon any of the events specified in the subsection. In any event, we cannot accept that the mere passing of a Decree is an “act” within the true intendment of the subsection. It is the normal process of law-making by that government. It derives its authority for doing so from its self-conferred power in paragraph 3 (1) of the Proclamation of February 1966. Surely, a legislative enactment which derives from such power cannot be challenged on the ground that it was an unlawful “act.” The ground proffered for the plaintiff s attack on that law is that it failed to conform to the prescriptions of a higher order-the supreme law. It was on this account that he sought its invalidation.

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If the Solicitor-General’s interpretation is right, nothing done under a subsisting Decree can be questioned in court, however repugnant such an act may stand in relation to the Constitution, because it would have been “consequent upon” the overthrow of the Government of the Convention People’s Party. An interpretation which shields all executive acts from judicial scrutiny and makes all National Liberation Council laws inviolate and incapable of challenge after the coming into force of the Constitution, offends against the philosophy on which the Constitution itself is structured, which is that not only the executive but Parliament itself must justify its acts against the bidding of the Constitution and that legislation which precedes the promulgation of the Constitution can retain its life only if it conforms with the fundamental law.

In an otherwise able and resourceful argument, the Solicitor-General did not suggest any test by which the dividing line between what is “consequent upon” the overthrow of the Government of the Convention People’s Party and therefore constitutionally immune from forensic searchlight and what is not, can be drawn. Mr. Reindorf, however, undaunted by the difficulties inherent in such abstract formulations put forward what he says must be the test for determining what is “consequent upon” the overthrow of the former government and what is not. He says, the act to come under the umbrella of section 13 (3) must be one which could not in law have been possible unless the previous government was overthrown or the previous Constitution suspended. He says, the passing of legislation or the probing of assets of public officers was legally possible under the previous civilian government and that as a fact of history, some such probes were conducted during the Nkrumah era. He gave as an example, the rules relating to remoteness of damages in tort and contends that by that test, the passing of N.L.C.D. 400 is too remote to the events specified in the subsection.

That test is useful as it goes and can be accepted as a broad guideline. But in at least one respect, one must acknowledge its inadequacy. One of the earliest acts of the National Liberation Council was to avail itself of the Commissions of Enquiry Act, 1964 (Act 250), and conduct a probe into the ex-President’s property holdings. It is only theoretically possible for such a thing to happen during his tenure of office. Article 8 (2) of the 1960 Constitution conferred the executive power of the State on the President. It is difficult to imagine that the President would exercise that power to order a probe into his own property holdings. And it would seem no commission can properly be constituted under Act 250 without his consent.

A still more formidable obstacle, is the Presidential Affairs Act, 1960 (C.A. 2). Section 8 of that legislation grants the President immunity from legal proceedings. If a probe were ordered, there must be power to compel his attendance and he must be constrained, like all other witnesses, to answer proper and relevant questions. With the immunity that section 8 accords him, this is legally impossible. This highlights the difficulty of formulating a priori, a test, which, like Proscrustes’ bed, will fit all the situations and contingencies that may arise. The courts, no less than

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the legislature, are limited by human vision. We think, the act to enjoy the protection of the subsection, must be shown to have some intelligible causal connection with any of the four events specified in the subsection. In our view, the passing of N.L.C.D. 400 does not.

In our judgment, Donkor v. The Republic (supra) does not advance the State’s case on this point. The facts of that case do not have the slightest affinity with the present and that case does not pretend to lay down a rule of thumb which should be followed in all cases. The act complained of in that case was the seizure of a car by the new government. In one case for instance, a car belonging to a member of the former government was seized only few days after the coup. The court thought in that case, that in view of the proximity of time between the date of the coup, and the seizure, the new government must have considered the seizure necessary for its own purposes, possibly as a sort of mopping up operation. It held such seizure to be “consequent upon” the overthrow of the government in power before the formation of the National Liberation Council. In so far as that decision can be said to have laid down any interpretory guidance it is that the word “consequent” must be given its ordinary meaning. It does no more, and in deciding whether the passing of N.L.C.D. 400 is “consequent upon” any of the events enumerated in subsection, that case affords us little assistance.

The Solicitor-General who presented a very determined case, then says some observations made by the court in the case of Awoonor- Williams v. Gbedemah (supra) lent support to his contention as to the true meaning and scope of section 13 (3) and referred in particular to pages 9, 10 and 11 of the judgment. In that case, the court was invited to strike down N.L.C. Decrees 129 and 354 on the ground that they were inconsistent with article 102 of the Constitution. Although the court was split in its eventual conclusion, it was unanimous in its rejection of the plea that either of these Decrees was unconstitutional. Paragraph 4 of N.L.C.D. 129 took away the right of appeal which had hitherto been allowed by the original National Liberation Council (Investigation and Forfeiture of Assets) Decree, 1966 (N.L.C.D.72). N.L.C.D. 354 was the statutory predecessor of N.L.C.D. 400. It specified the properties forfeited to the State and provided a machinery for their take-over by the latter. In rejecting the invitation to strike them down, the majority, in its judgment, said:

“No Decree which was passed by the National Liberation Council could be struck down by the courts as unconstitutional. In our opinion therefore, not only were the two Decrees perfectly valid at the dates of their passage, but so were any acts and steps taken under them, including of course, the findings of the commissions established under Decree 72 and Act 250.

As we read the Constitution, it has no retrospective effect on Decrees passed by the National Liberation Council or on matters lawfully transacted under them. On the contrary, we read section 13 (3) of the Transitional Provisions as wholly validating them.”

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The inviolability of the Decrees to which expression was given, can only relate to the era of the National Liberation Council. It is equally clear, that the acts referred to were acts done during such an era on the authority of those Decrees. There was, during the National Liberation Council regime, no “fundamental law” against which the validity or otherwise of any legislation could be tested. The Constitution which became operative on 22 August 1969, was prospective and did not seek to invalidate acts which were done before it came into being. After the coming into force of the Constitution, those Decrees have legislative efficacy only in so far as they harmonise with the provisions of the Constitution. If they fall foul of it, they go. N.L.C.D. 400, whose validity is in question, was passed after the promulgation of the Constitution and the act of attachment about which the plaintiff complains, took place during the subsistence of the fundamental human rights provisions of the “fundamental law.” That law, that is, N.L.C.D. 400, as well as the attachment attempted under it, was not inviolable. It was, we think, open to challenge and the plaintiff was within his rights to so challenge it. In our opinion, the provisions of section 13 (3) do not preclude us from determining the validity or otherwise of the impugned legislation.

The Solicitor-General next raised against the plaintiff an issue of “standing,” his never-failing weapon in a constitutional controversy. He says, the plaintiff s interest in the attached property was extinguished as a result of adverse findings made against him by a commission established under N.L.C.D. 72 and bereft of any interest in the property, the plaintiff has no locus standi to prosecute this action. That contention flavours so strongly of a “merit argument” that it was suggested from the bench that that point be kept in reserve until the preliminary issue of jurisdiction was disposed of. To this, the Solicitor-General deferred and we were not troubled with any copious submission on this issue. Our conclusion was that this court is clothed with jurisdiction to determine the only issue of substance raised in this appeal and that the preliminary objection failed. We so ruled.

That holding cleared the way for Mr. Reindorf to attack the validity of the Decree in question. Counsel points out that that Decree came into force on 30 September 1969, when the Constitution was in force. He says, its provisions conflicted with articles 12 and 18 of the Constitution inasmuch as the State was seeking by that legislation to acquire property without the payment of compensation. Article 18 of the Constitution, says counsel, provides a constitutional injunction against that. He contends that although article 18 (2) (b) excepts “the execution of judgments or orders of Courts,” a commission is not a court. As the commission is not a court, so the argument ran, the machinery of the courts cannot be used to enforce its findings. Such user would offend against the law.

Mr. Reindorf of course did not fail to notice that N.L.C.D. 400 by its title sought to do no more than implement the findings of a commission. The preamble to the Decree makes that plain and leaves no doubt that the finding it sought to implement was the finding of a commission appointed under the National Liberation Council (Investigation and

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Forfeiture of Assets) Decree, 1966 (N.L.C.D. 72). Counsel realised that if that Decree stood, his attack was not likely to bite much, so he argued also against the validity of that Decree. Counsel says, although that Decree originally conferred a right of appeal to the courts, that right was taken away by subsequent legislation. Having denied complete access to the courts, it became invalid on the coming into force of the Constitution. At the tail end of his reply to the Solicitor-General, Mr. Reindorf invited us not to make any pronouncement on the validity or otherwise of that Decree on the formal ground that it was not raised in the pleadings.

It is impossible to do justice to this case without considering whether N.L.C.D. 72 was valid or not. That Decree was passed in August 1966, to meet what the government of that day thought to be a felt need. Rightly or wrongly, it believed that members of the former government and some principal functionaries of the party which formed the government, had come by assets which they could not have come by lawfully. As they were thought to have used their public positions for this purpose, it must have been considered that they should be divested of those assets in favour of the State. The scheme of that legislation and the actual provisions of the law amply bear this out. But not all of the properties which the “specified persons” acquired can have been obtained unlawfully. To determine which was lawful and which was not, a commission was appointed to investigate this. A fair and competent resolution of this matter would require much sifting of evidence. The Decree took account of this and sub-paragraph (2) of paragraph 2 provides that the chairman of the commission of three “shall be a Judge of the High Court or Supreme Court.” It is fair surmise that in view of the penalty that the finding of the acquisition of unlawful assets carried, the legislature thought it should be handled by a person skilled in the sifting and evaluation of evidence. Paragraph 3 (1) of the Decree then makes provision for what was described in the marginal note as “ill-gotten gains.” It says:

“All assets which are declared by a Commission under sub-paragraph (5) of paragraph 2 of this Decree to be such as could not have been lawfully acquired shall, subject to the provisions of this Decree, and notwithstanding anything to the contrary, be deemed to be forfeited to the State.”

The finding which N.L.C.D. 400 sought to implement is one that was made by a commission appointed under this Decree and such finding was dated 27 May 1969. That Decree was perfectly valid at the date of its passage and at least throughout the era of the National Liberation Council. So also are the findings made under it. Indeed Mr. Reindorf does not dispute this. The properties which the State sought to attach, and which provoked this action, were declared by the commission to have been acquired unlawfully. The question therefore is what was the status of these properties at the date of the promulgation of the Constitution? That must depend on the meaning of the words “forfeited to the State” in the context of this legislation.

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In its ordinary connotation the word “forfeit” means to lose, usually as a result of some default. According to the Concise Oxford Dictionary, forfeit means, “lost owing to crime or fault.” The conjunction of that word with the words “to the State” must mean what has been so lost enured to the State. In other words, the title to the properties in the person found against was divested by the force of the action and became automatically vested in the State. The title could not remain in caelo. If the person found against was relieved of it, it must vest in someone. The section vests it in the State.

Mr. Reindorf, however, submits that the act of forfeiture creates a right in the State which it can enforce in court and that a court before whom enforcement is sought can, in the exercise of its equitable jurisdiction, relieve against forfeiture. True, equity leans against forfeiture but the rules devised by a court of equity to relieve against forfeiture in breaches of covenant between landlord and tenant, are wholly inapplicable to a case like the present. It is a platitude that equity never seeks to override legislation. The forfeiture was ordained by the conscious exercise of legislative will and for conduct which equity would itself disapprove.

Accordingly, unless the legislature itself conferred power on the court to grant relief, it would be powerless to do so. In this case, the legislature evinced a definite intention not to submit this matter to the ordinary judicial process. A right of appeal to the court which it conferred before was taken away (see N.L.C.D. 129). Even the limited right of access to the courts by the prerogative orders was forbidden (see N.L.C.D. 253). To relieve against forfeiture in hard cases, it gave itself power to grant relief (see N.L.C.D. 297). To say, therefore, that the words “forfeited to the State” imports a right in the State to seek enforcement in court, would be to fly in the face of these provisions.

In view of the divergence of opinion in this court as to the true meaning and effect of some of the words used in N.L.C. Decrees 72 and 400, it is necessary to look at these laws a little more closely. What can “All assets which are declared by a Commission under sub-paragraph (5) of paragraph 2 of this Decree to be such as could not have been lawfully acquired” in paragraph 3 (1) of N.L.C.D. 72 mean in the context of this sub-paragraph? The word “declared” may indeed, in an appropriate context, mean to proclaim or make known publicly, but one of the meanings it also has, according to the Shorter Oxford Dictionary is “to pronounce to be.”

Which of these meanings is apposite in the context of this legislation, can, we think, be ascertained by considering the question, who is charged with the duty of making the declaration envisaged in the sub-paragraph? Quite clearly, it is the commission not the government. It must follow that the word “declared” as used in this paragraph means “pronounced to be.” It clearly cannot mean publish since the sub-paragraph casts no duty on the commission to publish its report. In so far as it has a duty to communicate its findings to anyone, it is only to the person found against and any person which the commission believed to be affected by its finding. Paragraph 2 (9) spells out the commission’s duty in this respect in these words:

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“The Commission shall cause notice of any finding it makes under sub-paragraph (5) of this paragraph to be served in the manner referred to in sub-paragraph (2) of paragraph 1 of this Decree on the person in respect of whose assets the finding is made and on any person who appears to the Commission to be affected by the finding of the Commission.”

Thus, although the commission has no obligation to publish the report in the sense of making it known to the public, yet the automatic consequence of any “declaration” it makes about the unlawful acquisition of assets, is that it becomes forfeited to the State. The Government has no duty under the Decree to publish the report although it may, in its discretion, do so. It would be politic for it to do so. But such publication, will, in the nature of things, be posterior in time to the date of the finding or declaration. The section does not enact that the forfeiture shall be incurred on publication. A great deal of time may elapse between the finding of the commission and its publication by the government. But it is the finding that attracts the forfeiture not its publication to the world at large.

That this is the true meaning of the word “declared,” is shown by its juxtaposition to the word “publish” in N.L.C.D. 400. It is to be remembered that paragraph 1 of that Decree states that:

“The provisions of this Decree shall be in addition to and not in derogation of the provisions of the National Liberation Council (Investigation and Forfeiture of Assets) Decree, 1966 (N.L.C.D. 72).”

The preamble to N.L.C.D. 400 reads:

“WHEREAS on the 27th day of September, 1969, the Government caused to be published certain findings made by a Commission appointed by virtue of paragraph 2 of National Liberation Council (Investigation and Forfeiture of Assets) Decree, 1966 (N.L.C.D. 72);

AND WHEREAS the said findings declared certain assets to have been unlawfully acquired by certain persons to whom the finding relate…”

(The emphasis is ours.) Can there be any doubt that the law-giver was using published in contradistinction to declared?

The 1969 Constitution itself followed in the footsteps of both N.L.C. Decrees 72 and 400 and used the words declared and published in the same senses. Article 71 (2) (b) (ii) imposes disqualification from membership of the National Assembly on, inter alia, a person who, “has been adjudged or otherwise declared (ii) by the report of a Commission of Inquiry … that while being a public officer he acquired assets unlawfully …” Clause (3) of article 71 removes that disqualification after the lapse of time and says, in so far as is relevant: “if five years or more have elapsed since … the date of the publication of the report of the Commission of Inquiry that person shall not be disqualified to be a member of the National

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Assembly . . .” In both Decrees and the Constitution, the word “declared” was used to mean “found” or “pronounced to be,” while “publish” was used to mean “make known publicly.”

That being so, the question which must be resolved is on what date did the forfeiture take effect? The commission was performing judicial functions and was expected to arrive at a conclusion after an appraisal of the evidence available to it. Before committing its findings into a formal declaration, it must at least have reached a decision in its mind. But the earliest ascertainable date on which it can be said to have “declared” the assets to be unlawfully acquired must be the date it authenticated its finding by appending its signature to the report. The forfeiture must be deemed to have taken effect on that date.

Neither notice to the specified person nor publication to the public can affect the divestiture. Indeed the notice of its finding which paragraph 2 (9) of N.L.C.D. 72 obliges it to give to the person found against, can lawfully be given on that same day.

One ought to bear in mind that N.L.C. Decrees 72 and 400 are house-cleaning pieces of legislation whose clear policy objective cannot be missed, namely, to maintain probity in public life and to return to public ownership, assets which its fiduciaries obtained in breach of their fiduciary duties. The attainment of this goal is recognised and fully endorsed by the Constitution (see section 11 (2) of the Transitional Provisions and article 71 of the Constitution.) It therefore behoves the court whose constitutional role is interpretory, not to put any construction on this legislation which will defeat this desirable social objective.

Since under paragraph 2 (9) of N.L.C.D. 72, the specified person may be lawfully notified of the adverse finding against himself long before its formal publication by government, if the forfeiture is not incurred before such publication, the person found against can defeat the forfeiture and thus frustrate the whole investigatory exercise by the simple expedient of alienating the “unlawfully acquired” assets before publication. An alienation to a bona fide purchaser in the interim, will pass title in the assets to him and subsequent publication would avail the State nothing. Take the instant case for example. The commission having made certain findings of fact against the plaintiff, proceeded to state in paragraph 9 of the findings as follows: “In the result, we order the forfeiture of house No. 69, Ringway Estate, Accra.” The report was signed and dated 27 May 1969. According to N.L.C.D. 400, this report was not published till four months afterwards, that is, on 27 September 1969. Would it be right to put on the word “declared” an interpretation which will make the forfeiture inoperative until 27 September and thus enable the plaintiff to dispose of this asset in the meantime? We think both the policy-oriented mischief rule of legislative interpretation and the obvious meaning of the word “declared” argue against any such construction.

There is also a suggestion that since paragraph 3 (2) of N.L.C.D. 72 enables the Attorney-General to apply to the High Court to make orders to give full effect to the forfeiture, the confiscation cannot be effective

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until such steps have been taken. We cannot bring ourselves to subscribe to that view. If no rights became vested in the State by the “declaration” or finding, it is difficult to conceive what the Attorney-General would seek to enforce. The sub-paragraph clearly envisages that although formal title to the “unlawfully acquired assets” passed to the State on the date of the declaration, the commission had no machinery to realise and reduce them into the former’s possession. This sub-paragraph obliges a judge of the High Court on the application of the Attorney-General, to make such order as would enable the State to “get in” these assets. For instance, in the case at bar, the judge could order that a writ of possession do issue to put the State in physical possession of house No. 69, Ringway Estate. Can such a provision be pointless? We do not believe that it is.

Our appreciation of the true object of paragraph 3 (2) of N.L.C.D. 72 can be illustrated by a common-place example. Suppose X. brings an action against Y. for a declaration of title to Blackacre, recovery of possession and 01,000.00 damages for trespass. On 1 March, the court enters judgment in X.’s favour on all the reliefs claimed. Suppose by 1 June the judgment had not been satisfied and on that date, X. took out a writ of possession and also applied and obtained from the court, a garnishee order to attach the sum of 01,000.00 in Y.’s bank to meet the payment of the damages. Can it be said that the judgment pronounced on 1 March was ineffective on that date because steps taken to enforce it were taken three months afterwards? If that argument is not tenable on those facts, it cannot be on a correct appreciation of paragraph 3 (2) of N.L.C.D. 72.

The view that paragraph 3 (2) of N.L.C.D. 72, which was re-enacted in N.L.C.D. 266, are mere “enforcement provisions” is, we think, fortified by a comparative analysis of N.L.C.D. 72 and N.R.C.D.

19. N.L.C.D. 72 was repealed by the present government on 10 February 1972, but it enacted in its place the Investigation and Forfeiture of Assets Decree, 1972 (N.R.C.D. 19). Not only did this law seek to achieve the same goal as its statutory predecessor, but its main provisions re-enacted that legislation compendiously with its various amendments. It specified in a Schedule the persons whose assets are to be probed, established an assets committee to be presided over by a judge and charged the committee with the task of investigating the existence, nature, extent and method of acquisition of the assets of such specified persons. It required it to determine what parts of their assets were lawfully acquired and what were not.

One fundamental divergence of approach between N.L.C.D. 72 and N.R.C.D. 19, is that while under the former legislation, the assets were deemed forfeited to the State only after they were declared by the commission to be such as could not have been lawfully acquired, the latter legislation forfeits the assets of the specified persons even before the determination by the committee. It enacts in section 1 (1) as follows: “All rights, assets and property whatsoever which immediately before the 13 th day of January, 1972 were held by or which belonged to any person specified in the First Schedule to this Decree are hereby forfeited to and vested in the State.”

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It is only after the findings of the committee satisfy the National Redemption Council that any particular asset of the specified person was lawfully acquired, that the government incurs an obligation to restore it to the person by written notice see; section 9 of N.R.C.D. 19. Yet section 11(1) of this Decree enacts verbatim the provisions of paragraph 3 (2) of N.L.C.D.72 which was itself repeated in N.L.C.D. 266. It describes this provision in the marginal note as, “Provisions to give effect to forfeiture.” The actual text of section 11 (1) reads as follows:

“Any Justice of the High Court shall, upon application by the Attorney-General, make such order or orders as may be necessary for giving full effect to any forfeiture of assets effected under this Decree and shall in particular, but without prejudice to the generality of the foregoing, where necessary order any person to execute such instrument as may be necessary for enabling any asset situated outside Ghana to be vested in the State.”

The position therefore is, that although the assets are clearly said to be forfeited and vested in the State, yet this section authorises the Attorney-General to seek the aid of a judge “for giving full effect” to the forfeiture. In the scheme of this legislation, section 11 leaves no room for doubt that paragraph 3 (2) of N.L.C.D. 72, just as its successor section 11 (1) of N.R.C.D. 19, are mere “enforcement provisions.” They clearly do not affect the passing of property in the assets. This, in our view, puts an end to the argument that the forfeiture was ineffective until the Attorney-General moved the court to give full effect to it or that this provision is surplusage.

Mr. Reindorf referred to paragraph 2 of the impugned Decree (N.L.C.D. 400) and pointed out that it states that the assets in question are said by that legislation to be vested in the State from 27 September 1969. He submits that this is indicative of the fact that the law-giver itself cannot have thought that the divestiture occurred before that day. Indeed this section became a high water-mark of the argument against the divestiture taking place before 27 September 1969. Paragraph 2 of that Decree enacts that:

“All the assets described in Parts I and II of the First Schedule to this Decree are hereby with effect from the 27th day of September, 1969 vested in the State free from all incumbrances whatsoever.”

In order to appreciate this particular paragraph, it is necessary to consider in what language the confiscation was ordained at the date of the “declaration” that the plaintiff acquired assets unlawfully, that is, 27 May 1969. That requires a careful consideration of the wording and true purport of N.L.C.D. 297. Paragraph 1 of that Decree amended N.L.C. D. 72 by the substitution of a new paragraph 3 (1) providing that:

“3. (1) Subject to the provisions of this Decree and to such directions as the National Liberation Council may in any particular case think fit to give, all assets which are declared by the Commission

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under sub-paragraph (5) of paragraph 2 of this Decree to be such as could not have been lawfully acquired shall, notwithstanding anything to the contrary save a direction as aforesaid by the National Liberation Council under this sub-paragraph, be deemed to be forfeited to the State.”

It seems clear on a fair reading of this provision, that the extinction of rights to the “unlawfully acquired assets” is aimed at the “specified person,” namely, in this case, the plaintiff. It is only his rights that were extinguished by this sub-paragraph. But one of the main incidents of property ownership, is the right to alienate or otherwise charge the property. Such rights as third parties may have had in the property cannot have been overriden by this provision. Suppose before 27 May 1969, the plaintiff entered into any restrictive covenants in respect of house No. 69, Ringway Estate. Such covenants will bind his assignee as they “run with the land and the reversion.” Or suppose that the plaintiff before that date, charged the premises in question by way of legal mortgage to secure a facility. These rights which inhere in third parties to the property, are in conveyancing terminology, encumbrances on the plaintiff s title. Title passed to the State on the date of the finding subject to these encumbrances. Section 2 of N.L.C.D. 400 sweeps away all such third party rights by coercive state power. That explains why both the enacting provision of paragraph 2 and the marginal note say that on 27 September 1969, such assets vest in the State free from all incumbrances whatsoever.”(The emphasis is ours.) There is nothing in paragraph 2 which necessarily precludes a vesting of the assets in the State before that day. As this particular legislation is said to be in addition to N.L.C.D. 72, and as, in our view, the title of the State in the unlawful assets vested before 27 September, such vesting was subject to all existing encumbrances. Any such burdens on the State’s title disappeared on 27 September 1969. It follows that it is only on or after that date that the State can itself convey house No. 69, Ringway Estate as “beneficial owner” with the consequences which the use of that expression imports in the English Conveyancing Act, 1881 (44 & 45 Vict., c. 41).We accordingly find ourselves unable to accede to the contention that paragraph 2 of N.L.C.D. 400 provides almost irrefutable evidence of legislative intent against the vesting before 27 September. In our judgment, therefore, the complaint that N.L.C.D. 400 expropriated the plaintiff s property without compensation and was violative of articles 12 and 18 of the suspended Constitution was ill-founded.

If N.L.C.D. 400 did not confiscate the plaintiff s property what did it seek to achieve? We attempted an answer to this question in Awoonor-Williams v. Gbedemah (supra). Although that answer was given in relation to N.L.C.D. 354, that legislation is not only in pari materia with the law in question, but its enacting provisions used the ipsissima verba of N.L.C.D. 400. We said of N.L.C.D. 354: “What about Decree 354? Its professed object was to implement the findings of the commission and to provide a convenient machinery for getting in assets and moneys found to have been acquired unlawfully.” It did just that.

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Does any provision of the Constitution inhibit Parliament from enacting legislation which will enable the State to utilise the administrative machinery of the courts to realise and get in the forfeited assets, especially as legal title to these properties vested in the State before the coming into force of the Constitution? Article 18 which is alleged to have been breached decrees no such injunction. No provision of the Constitution, that we have been able to discover, does this. That being the case, can the courts consistently with their duty, do otherwise than take cognisance of and enforce this clear manifestation of the legislative will or to use Austinian terminology, this “command of the sovereign?”

As title to these properties is vested in the State, it is entitled as against the plaintiff, to immediate possession and can gain this by the ancient but still lawful method of self-help. Or as the learned editors of Clerk and Lindstell on Torts (13th ed.) at p. 290, para. 557, put it:

“He who is entitled to the immediate possession of realty may make an entry, and may justify in a civil action the use of so much force as is necessary to enable him effect the entry and expel an intruder therefrom, provided the degree of violence used does not exceed what is reasonably necessary to effect his purpose.”

No public agency can marshal more force or wrench these properties from the plaintiff more effectively than the State. Yet it opted for the restrained and less crude compulsion of the courts. N.L.C.D. 400 gave it legislative fiat to do this. Dr. Asante suggests, we think aptly, this was a more civilised method of getting in the assets. We agree and cannot but enforce that law. Our view therefore, is that the National Liberation Council (Investigation and Forfeiture of Assets) (Further Implementation of Commissions’ Findings) (No. 3) Decree, 1969 (N.L.C.D. 400), was valid at the date of the entry ofjudgment and that the plaintiff s contention to the contrary cannot be accepted.

It is suggested that N.L.C.D. 253 sinned against the Constitution and was void on that account inasmuch as it prevented unimpeded access to the courts. It is not easy to see on what principle of justice an adverse decision can be arrived at against the defendant on any such view. The validity or otherwise of that law was never put in issue. No argument of any sort was addressed to us by the plaintiff on that law. The respondent was not invited to defend the validity of that Decree. The claim which the appellant made to the court below was that the respondent should be restrained from proceeding into execution against him by reason of an alleged judgment based on N.L.C.D. 400. He sought no more than the invalidation of that legislation.

The issues which he himself settled and on which he invited the court’s decision were:

“(a) Whether or not Decree 400 was valid.

(b) Whether the plaintiff’s action was barred by section 13 of the Transitional Provisions.”

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These were the issues that were fought both in the High Court and before the ordinary bench of this court. It was indeed only on the issue of the validity of N.L.C.D. 400 that we remitted this matter to ourselves and it was in respect of it that we invited argument. It certainly would come as a surprise to the defendant that one of the grounds on which an adverse decision to him was rested, was the invalidity of N.L.C.D. 253.

For the court itself to raise this issue and found a conclusion on it, even in part, would hardly conform to our conception of the role of a judge in our adversary system of administering justice as an umpire in a dispute. Such appellate decisions as Oloto v. Williams (1944) 10 W.A.C.A. 23, Dam v. Addo [1962] 2 G.L.R. 200, S.C., Odoi v. Hammond [1971] 1 G.L.R. 375, C.A., Seraphim v. Amua-Sekyi [1971] 2 G.L.R. 132, C.A. and the English decision of Esso Petroleum Co., Ltd. v. Southport Corporation [1956] A.C. 218, H.L. counsel a court against founding a conclusion on an issue not raised or canvassed by the parties or pronouncing for a party on a case inconsistent with the one he put up.

In any case, we find it difficult to appreciate the relevance of N.L.C.D. 253 in the context of this controversy. Although the validity of N.L.C.D. 72 was not formally put in issue, since it is said to be in addition to the impugned N.L.C.D. 400, one can see some rationale in considering it. What of N.L.C.D. 253? Its relevant paragraph, that is 4, merely forbade the court questioning a finding of a commission established under N.L.C.D. 72 by the known prerogative remedies of certiorari, mandamus and prohibition. The case at bar was not that the plaintiff, after the coming into force of this Constitution, applied to the court by any of these remedies to challenge the finding against himself and was met by N.L.C.D. 253. As far as we are aware, he at no time questioned the finding that he had acquired assets unlawfully. So that finding stood against him to the present day. What he complained about was that the law by which the State sought to enforce this finding against him fell foul of the Constitution and was invalid on that account. We think any consideration of the validity or otherwise of N.L.C.D. 253, is wholly irrelevant to this case. In our judgment it would be wrong to found any adverse conclusion against the defendant on it.

It is also suggested that the main features of N.L.C.D. 400 usurped judicial power and fell foul of article 102 of the Constitution and were void on that account. This view is rested on the argument that the Decree converted a finding made by an agency of the executive into a judgment of a court of law. The observations we saw fit to make on striking down N.L.C.D. 400 because of the alleged invalidity of N.L.C.D. 253, apply with equal force to this aspect of the case.

The term “judicial power” is an abstract and complex legal term which does not easily admit of any conceptual definition. Although article 102 of the Constitution vests “judicial power” in the judiciary, it provides no definition of this concept. The plaintiff made no issue of this notion and the respondent did not find any cause to defend the Decree on the ground that it usurped judicial power. The term involves a legal concept on which neither judges nor legal scientists are agreed.

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In the unreported case of Akainyah v. The Republic, Court of Appeal, 1 July 1968; digested in (1968) C.C. 105, this court examined some of the characteristics of this difficult concept and referred to some of the case law on the subject. de Tocqueville, for instance in his Democracy in America, says at Chapter. 6 on “Judicial power in the United States” that that concept has three characteristics: first, it is concerned with arbitration of disputes and it can only act on a case brought before it; second, judicial power pronounces on special cases and not on general principles; and third, it can only be put in motion by a party.

If we appreciate paragraphs 1 and 2 of N.L.C.D. 400 aright they do nothing bearing on this concept. These paragraphs did not even forfeit but merely sought to vest in the State, free from encumbrances, assets already forfeited to the latter. Paragraph 4, which has some affinity with a court, does not establish a new commission and does not confer on it the like functions and powers of a court. It only gave recognition, for enforcement purposes only, to the findings already made by a commission established under N.L.C.D. 72. Its expressed purpose and clearly limited role, is to make available to the State, the tried and tested machinery of the courts for realising the forfeited assets. This paragraph does not even enact that the finding shall have the force of a judgment of the High Court with such known consequences as its amenability to the plea of res judicata, etc. It is only to operate, to quote the ipsissima verba of the paragraph: “For the purpose of securing the due recovery by the State of any assets declared . . . to be vested in the State and . . . for the purpose of securing the due payment of moneys required to be paid to the State . . .” It is difficult to see how “judicial power” is usurped by any of these provisions. We therefore find it impossible to share the view that N.L.C.D. 400 either in whole or in part, usurps judicial power.

In view of the footing on which the plaintiff launched this litigation, we think it not out of place to make this observation. The requirement that public officers of certain standing should be inhibited from exploiting their official positions to acquire assets for themselves by use of their offices, is not only aimed at rectitude in public life, but is dictated by the known experience of this country. It is not a totalitarian concept. The public policy goal reflected in N.L.C.D. 72 was continued by the Constitution itself. Article 67 obliges members of the government to declare their assets and liabilities on assuming office and ordinary members of Parliament were equally obliged by article 89 to make such a declaration on taking their seats and on the dissolution of Parliament. Can these requirements have any object save to ensure uprightness in public life?

Ought the courts, which, after all, are one of the organs fashioned by the State to enforce this constitutional objective, on a proper appreciation of their role, strike down legislation whose professed purpose and phraseology is to implement this objective? It would indeed be incongruous if we were to hold that the Constitution nevertheless put its protective umbrella on these “unlawfully acquired assets,” and guaranteed the

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delinquent public officers “quiet enjoyment” of them. And this decision is reached, not by any value judgment by the courts of the social undesirability of these aims, but by the use of judge-made rules which are designed to discover and enforce the true legislative will.

In view of the opinions we formed and which we have expressed on the various points canvassed and uncanvassed in this case, and the general observations that have so far fallen from our lips, our eventual conclusion can hardly be in doubt, but counsel pressed us with a constitutional argument of some importance and a discussion of this took so much of the court’s time that it would be cowardly if we refrained from pronouncing on it. Mr. Reindorf asserts, and Dr. Asante denies, that such legislative power as the National Liberation Council exercised after the promulgation of the Constitution was done under section 14 (1) of the Transitional Provisions and as such, must conform with the provisions of the Constitution or risk being struck down as unconstitutional. Dr Asante says no and that the National Liberation Council was entitled to legislate in the plenitude of its legislative power under the Proclamation of February 1966 until the meeting of the National Assembly.

Paragraph 3 (1) of the National Liberation Council Proclamation of 26 February 1966 reads:

It is not in issue that the Constitution came into force on 22 August 1969. It is also beyond dispute that section 14 (1) of the Transitional Provisions empowered the National Liberation Council to continue to exercise legislative power until the meeting of the National Assembly following the formation of a cabinet. But the National Liberation Council was then described as a caretaker government and it would stand to reason that they would have no more legislative power than the Parliament for which they were acting. The legislative power of Parliament is itself limited and its enactments can be struck down if they fall foul of the fundamental law. Reason suggests that the National Liberation Council’s legislative power should be similarly limited.

But Dr. Asante says the National Liberation Council has power under paragraph 9 of its Proclamation to amend, revoke and suspend the Proclamation. He says, they exercised that power on 18 August 1969 and by paragraph 3 of the Constituent Assembly (Amendment) Decree, 1969 (N.L.C.D. 380), extended the life of its legislative competence to the date of repeal of the Proclamation. This was not until 30 September 1969, when paragraph 3 of the Constitution (Consequential and Transitional Provisions) Decree, 1969 (N.L.C.D. 406), repealed the Proclamation.

Accordingly, he contends that N.L.C.D. 400, which became operative on 27 September 1969 need not stand the test of constitutionality. When Dr. Asante was asked, if on his argument, the National Liberation Council could lawfully abolish by proclamation the Constitution which had

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then become operative, he was forced by the logic of his argument to give an affirmative answer. So in the end, the question becomes a trial of strength between the Constitution and the National Liberation Council Proclamation.

A court of law faced with two possible interpretations of legislative enactments, one of which is conducive to responsible and constitutional government, and the other to absolutism, can feel no doubt where it should lean. We think Mr. Reindorf s is the better of the two views. The National Liberation Council continued to exercise legislative power both on its own steam (it had prolonged its legislative competence by N.L.C.D. 380), and by the express consent of the Constitution. But we think the exercise of that power should then become subject to the Constitution which prescribed how legislative power could properly be exercised. Accordingly, had we felt satisfied that N.L.C.D. 400, which was passed when the Constitution was operative, was repugnant to that supreme law, we would have conceived it our duty to accede to the plaintiff s prayer to strike it down. As we found that the Decree was not infected with that vice, the contention on this aspect of the case was purely academic.

Counsel on both sides argued this appeal with manifest erudition and are glad to acknowledge that they put us in their debt. Our conclusion is, the National Liberation Council (Investigation and Forfeiture of Assets) (Further Implementation of Commissions’ Findings) (No. 3)Decree, 1969 (N.L.C.D. 400), was perfectly valid and so were the steps taken under it. It follows that the plaintiff fails in this action which we hereby dismiss. We give judgment for the defendants. We note that on 24 June 1970, the High Court granted an interim injunction restraining the State from proceeding into execution pending the final determination of this suit. That order is now spent and ought to be and is hereby discharged.

DECISION

Appeal dismissed.

T.G.K.

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