APPIAH vs. THE REPUBLIC [1997-98] 1 GLR 219

CASES REFERRED TO:

(1) Appiah v The Republic [1987-88] 2 GLR 377, SC.

(2) Republic v Adu-Boahen [1993-94] 2 GLR 324, SC.

NATURE OF PROCEEDINGS

APPLICATION by the applicant under the inherent jurisdiction of the Supreme Court for an order setting aside the majority decision of the Supreme Court in Appiah v The Republic [1987-88] 2 GLR 377, SC affirming the judgment of the Court of Appeal allowing the appeal by the Republic from the judgment of the High Court and restoring the judgment of the trial Circuit Court, Accra convicting and sentencing the appellant on it charge of extortion

[p.221] of [1997-98] 1 GLR 219 for demanding and obtaining the sums of £1,000 and £10,000 from D and O, respectively, fugitives from justice and whose cases were then before the special tribunal of which he was then the special prosecutor. The facts are sufficiently stated in the ruling.

COUNSEL

E D Kom for the applicant.

J C Amonoo-Monney, Director of Public Prosecutions (with him Anthony Gyambiby, Senior State Attorney) for the Republic.

JUDGMENT OF KPEGA JSC.

Kpegah JSC delivered the judgment of the court at the invitation of Charles Hayfron-Benjamin JSC. This application is brought, to quote from the motion paper, “under the inherent jurisdiction of this court to set aside the majority judgment of the court dated 31 May 1988 in the case of Appiah v The Republic [1987-88] 2 GLR 377, SC. The ground urged in support of the application is lack of jurisdiction in the trial circuit court and, for that matter, any court in Ghana. It was submitted on behalf of the applicant that if any crime was proved to have been committed at all, the said offence took place in London. And since the criminal jurisdiction of our courts is territorial, an offence outside Ghana can never be lawfully tried by Ghanaian courts.

I think it will be useful in view of the nature of the argument to recount in brief the antecedents of the case. The applicant, Mr J E A K Appiah, a lawyer by profession, was until his conviction and sentence employed in the Attorney-General’s Department. In order to ensure the continuation of its house cleaning exercise it had embarked upon, the then Armed Forces Revolutionary Council Government before its departure from the political scene, set up a special tribunal under the Armed Forces Revolutionary Council (Special Tribunal and Other Matters) Decree, 1979 (AFRC 23). And in a letter dated 22 September 1979 the applicant was appointed the tribunal’s special prosecutor. His duties were specified in section 9 of AFRD 23 and section 17(6) of the transitional provisions of the Constitution, 1979. The applicant’s duties defined in the statutes are purely that of prosecution. In the words of section 17 of the transitional provisions of the Constitution, 1979, for example, the special prosecutor “shall be

[p.222] of [1997-98] 1 GLR 219 responsible for the initiation and conduct of all prosecutions of criminal offences before the Speciual1(1)[sic] Tribunal.”

By an irony of fate, the man who was charged with assisting to exorcise corruption from the social fabric of the nation, became himself possessed of that evil spirit. He was convicted on 22 September 1986 by the Circuit Court, Accra of the offence of extortion contrary to section 239(11) of the Criminal Code, 1960 (Act 29) and sentenced to seven years’ imprisonment with hard labour. The basis of the charges against him was that, he being a public officer under the colour of that office did obtain £1,000 from one Henry Kodjo Dzaba, and £10,000 from one E K Owusu. The amounts were paid into the applicant’s account with Barclays Bank International Ltd, London. Both Mr Henry Dzaba and Mr E K Owusu of Kowus had matters pending before the tribunal but were in exile at the material time.

The circuit court convicted the applicant and jailed him for seven years’ imprisonment with hard labour. He successfully appealed against his conviction to the High Court which set side both his conviction and sentence. The prosecution in turn appealed to the Court of Appeal which allowed the appeal and restored the applicant’s conviction and sentence. He then unsuccessfully appealed to the Supreme Court which in a majority decision of four to one affirmed the Court of Appeal decision.

After serving his sentence, and eight years after his appeal was dismissed, Mr Appiah now brings this application in prayerful supplication to our “inherent jurisdiction” to set aside his conviction sentence on grounds of lack of jurisdiction in our courts to try him. He urges lack of particularity in the charge sheet in support of his submission, that is to say, the failure of the prosecution to state in the particulars of offence the date and place of the commission of the alleged offence of extortion.

The circumstances under which a plea in bar of jurisdiction can be raised were succintly2(2)sic stated in the case of Republic v Adu-Boahen [1993-94] 2 GLR 324 at 336, SC by me thus:

“An objection to jurisdiction, when raised, is either in relation to territorial limitations affecting the tribunal, or lack of jurisdiction over the subject matter of dispute or charge (in criminal cases), or lack of jurisdiction over the parties, or

[p.223] of [1997-98] 1 GLR 219 non-existence of a condition precedent to assumption of jurisdiction. “

In criminal matters, the fundamental rule is that the jurisdiction of our courts is primarily territorial. So that the powers of our courts extend over the whole of the territorial area of the state including its air space and sea, its ships or aircrafts which are registered or licensed in Ghana. Any criminal act perpetrated in any of the above areas is justiciable by the courts of Ghana. So conversely, crimes allegedly committed outside our territorial limits are beyond the jurisdiction of our courts. There are exceptions. Amissah in his book, Criminal Procedure in Ghana at p 10 said:

“But there are exceptions taking in crimes committed outside the physical territory of Ghana, which make a sizeable dent into this general principle. In some cases the assumption of jurisdiction would run side by side with the competing claim of another state. In others, without the Ghanaian courts taking jurisdiction, a criminal act may go unpunished as no other state would wish to exercise jurisdiction over it.”

The exceptions will be dealt with later, after a critical examination of the grounds urged in support of the instant application.

On behalf of the applicant it was submitted before us that there was no act or omission alleged in the charge sheet, or proved to have been done by the applicant to warrant his being put before the Ghanaian courts. And that there is no indication in what manner the applicant did obtain the various sums. The gravamen of the motion is best expressed in the applicant’s own words in his written submission to this court. This is what he said:

“The case of the prosecution is . . . reduced to the payment of moneys into the account of the applicant in London without his knowledge in circumstances in which the applicant did nothing whatsoever in Ghana, and did not cause any person or persons to do anything in London. This is therefore an alleged criminal offence in which no part of the act or acts giving rise to the offence took place within the Republic of Ghana.”

[p.224] of [1997-98] 1 GLR 219

In respect of the submission that “contrary to the law and practice of criminal procedure” the place where the offence was alleged to have been committed was not disclosed in the particulars of offence in the charge sheet, we can only say that a defective charge sheet has never been known to subvert the jurisdiction of a trial court. The proviso to section 26(12) of the Courts Act, 1972 (Act 372) clearly provides for the dismissal of an appeal based on grounds of defect or error in the charge sheet, provided there is available evidence to support the offence alleged in the statement of offence, or any other offence of which the accused could have been convicted.

The Supreme Court in the majority decision read by Francois JSC demonstrated its abiding faith in the time-honoured principle that an appeal is essentially a re-hearing in these words at 381: “. . . it has been our duty to examine afresh the material preferred by the prosecution in proof of the charge against the appellant, and, in relation to the applicable law, to test the legal viability of the appellant’s conviction.”

After an exhaustive and critical examination of the evidence on the record, the court made certain important findings of fact some of which are:

(a) that the applicant had a secret channel of communication with the Owusus;

(b) that he took advantage of the use of a common letterhead by both the tribunal and its registry to proclaim authorisation from the tribunal itself;

(c) that the chairman of the tribunal had no idea of his clandestine correspondence with the Owusus;

(d) that by the extensive use of “we” in his correspondence, the applicant created the impression that he was part of the tribunal or could influence its decision;

(e) that his so-called leverage over the tribunal is capable of being translated in criminal terms as “representation by colour of office.”

And in determining whether the applicant’s influence was in fact so translated to acquire criminality, the court extensively com-

[p.225] of [1997-98] 1 GLR 219 pared certain exhibits with the Kowus ruling itself and concluded thus at 385-386:

“Authorship aside, they disclose a singular persuasiveness of the appellant’s views on the tribunal. Where whole chunks of the appellant’s reasoning and conclusions were unreservedly and unstintedly incorporated in the Kowus ruling, his views commanded nothing but their highest approval and respect. It follows that the appellant not only wielded influence, but that that influence was of a decisive character. This is the ‘influence’ that is the nub of the prosecution’s case.”

I must say that “Kowus”, a company owned by Mr E K Owusu, and one Mr Henry Djaba both had petitions pending before the tribunal for the restoration of certain assets seized by the then Armed Forces Revolutionary Council Government. It was at this crucial time that the applicant’s account with Barlcays Bank International Ltd, Oceanic House, 1 Cockspur Street, London which had been dormant, inexplicably and fortuitously began to swell as a result of lodgements by both Mr Owusu and Mr Djaba. Not to mention the obvious difficulty of these people coming by and locating the applicant’s bank account in the normal cause of innocent commercial transactions.

We are all men of the world and one need not be clairvoyant before concluding that the applicant had lot of explanation to do about this inexplicable “coincidence.” The findings of fact made by the Supreme Court clearly show that all the essential elements of the charge of extortion were proved against the appellant. That is to say, that the applicant, being a public officer, did under the colour of his office obtain the lodgement of £1,000 in his bank account in London by Henry Kojo Djaba, and he also obtained under similar circumstances the lodgement of £10,000 by E K Owusu into the said account as consideration for a favourable consideration of their petitions.

So the submission of the applicant that he cannot be amenable to the jurisdiction of our courts is not tenable. This submission fails to take into account the legal position that in certain circumstances under our laws, a person’s status can either confer jurisdiction on our courts, or deny them jurisdiction. The

[p.216] of [1997-98] 1 GLR 219 commonest example of the later situation is where a person carries diplomatic immunity. By the provisions of section 1 of the Diplomatic Immunities Act, 1962 (Act 148), article 31 of the Vienna Convention on Diplomatic Relations has been incorporated under our laws and forms part of our domestic or municipal law. Article 31(1) of the Convention states: “1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall also enjoy immunity from its civil and administrative jurisdiction.” There are exceptions but these relate to civil jurisdiction in certain situations. The law justifying the former situation is to be found in section 51(3) of Act 372 which has been re-enacted in section 56(3) of the new Courts Act, 1993 (Act 459). Section 51(3)(a) of Act 372 which was the relevant law at the time the applicant was tried provided:

“(3) Any citizen Ghana who— (a) while employed in the service of the republic of Ghana … does outside Ghana, any act which if done in Ghana would be punishable as an offence… shall be guilty of an offence of the same nature as the act in question would have constituted if done in Ghana and may . . . be proceeded against, tried and punished in Ghana accordingly. “

The above provision should put an end to any argument that the applicant could not have been subject to the jurisdiction of our courts because the alleged offence was committed outside Ghana. The applicant is a citizen of Ghana, employed by the Republic of Ghana and alleged to have misused his official position to commit the offence. Even if done in London, the applicant can be tried by the courts of Ghana by virtue of section 51(3) of Act 372.

We will accordingly dismiss the application and it is hereby dismissed.

DECISION

Application dismissed.

Endnotes

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