BECKLEY AND OTHERS vs. THE REPUBLIC [1999-2000] 1 GLR 469

CASES REFERRED TO

(1) Tawiah III v Ewudzi (1931) 3 WACA 52.

(2) Otsiwa v Kwaseko (1931) 3 WACA 230

NATURE OF PROCEEDINGS

APPEAL by the appellants to the Court of Appeal from their convictions and sentences by the Western Regional Public Tribunal on a charge of, inter alia, doing an act to sabotage the economy of Ghana on the ground, inter alia, that the panel which delivered the judgment at the end of their trial was not the panel which had tried their case. The facts are sufficiently stated in the judgment of Baddoo JA.

COUNSEL

B Nutsukpui for the appellants.

Merly Wood (Mrs), Senior State Attorney, for the Republic.

JUDGMENT OF BADDOO JA.

Nine accused persons including the appellants herein were charged before the Western Regional Public Tribunal on June 9 1987 with conspiracy to commit a crime, to wit doing an act to sabotage the economy of Ghana. The seventh, eighth and ninth accused persons who are now at large were further charged with abuse of office for private profit while the sixth appellant herein was additionally charged with abetment of crime.

On 3 August 1988, almost fourteen months later after the trial begun in June 1987, all the appellants including the seventh eighth and ninth accused persons, were convicted and sentenced to the following terms of fines and imprisonment:

“(1) The first to ninth accused are sentenced to one year Imprisonment on count one.

(2) The first to ninth accused are sentenced to a fine of ¢500,000 each or in default five years’ imprisonment with hard labour on count two.

(3) The eighth accused is sentenced to one years’ imprisonment with hard labour on count five.

(4) The seventh accused is sentence to one years’ imprisonment with hard labour on count seven.

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(5) The seventh accused is sentenced to one years’ with hard labour on court eight.

The sentences are to run concurrently.”

The seventh, eighth and ninth accused persons were tried and sentenced in absentia and are still at large. So they have not appealed against their convictions. But the six appellants herein have appeal- ed against their convictions and sentences since I September 1988. They have already served their sentences

Grounds of appeal

The main ground of appeal filed on behalf of the appellants was that the judgment was so unreasonable and cannot be supported by the evidence. In June 1999, an additional ground of appeal was filed on behalf of the appellants that the panel which delivered the judgment of the Western Regional Public Tribunal, was not the panel which tried the appellants. It is my considered opinion that this additional ground of appeal is the most important ground, which this court has to consider.

Arguments for the appellants

For the appellants, it was submitted that the trial started on ninth June 1987 before a panel constituted by GK Nyewolema Esq, presiding; AA Whyte, member; CA Dogo, member; and Inspector TE Beeche. The trial proceeded up to addresses which was started on 12 April 1988 and ended on 14 April 1988 before the same panel. After the addresses, the tribunal adjourned to 26 May 1988 for judgment. But on 26 May 1988, the tribunal did not sit. When it sat on 3 August 1988, the panel was constituted by Mr Eric Nyavor, presiding; Albert Viala, member; and Pokoo Aikens, member. The appellants were convicted and sentenced to various tenns of imprisonment. It is the contention of the appellants that these convictions were invalid and a nullity and should be set aside.

Submissions for the Republic For the Republic, it was submitted that the change of panel members at the time of the delivery of the judgment did not invalidate the decision of the tribunal. Counsel for the Republic referred to section 24(2) of the Public Tribunals Law, 1982 (PNDCL 78) under which and which reads as follows:

“(2) No decision, order, finding, ruling or proceedings of a the appellants were tried, which enactment has now been repealed Public Tribunal set up under this Law shall be regarded as invalid by reason of any

defect in the composition of the Tribunal or in the appointment of any member thereof.”

It was submitted for the Republic that this section gave authority or power to a new panel other than the panel which tried the appellants, to deliver the judgment of the tribunal, by adopting the proceedings of the trial tribunal. It was further submitted that this has not occasioned any substantial miscarriage of justice and therefore the appeal should be dismissed.

Counsel for the Republic also referred to section 406(1) of the Criminal Procedure Code, 1960 (Act 30) which reads as follows:

“. . . no finding, sentence, or order passed by a Court of competent jurisdiction shall such error, omission, irregularity or misdirection has in fact occasioned a substantial miscarriage of justice.”

What is a defect

First, let me examine section 24(2) of PNDCL 78 which states that the decision of the tribunal shall not be regarded as invalid by reason of any defect in the composition of the tribunal or in the appointment of any member thereof. It seems to me that this section is talking about a defect in the composition of the panel. A defect is a shortcoming or an imperfection. Thus if a panel which should be constituted by three or four members for the hearing of case, is constituted, two members, there is a defect in the composition of the panel. Section 24(2) of PNDCL 78 declares that such a defect shall not invalidate the decision of tribunal. But what occurred in this case is not a defect in the composition of the tribunal. An entirely new panel was substituted for the panel which tried the case. So we have a substituted where the panel which delivered the judgment, never heard the witnesses, never saw the witnesses. It is my considered opinion that such an irregularity is not a mere technicality, or procedural error, but irregularity which has occasioned a substantial miscarriage of justice.

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It is trite law, that the court which tried a case, must be the court to deliver judgment in that case. In the case of Tawiah III v Ewudzi (1931) 3 WACA 52, the West, African Court of Appeal held that since all the members who sat upon the case and gave judgment were not present throughout the hearing, the trial was a nullity and the judgment must be set aside. Again, in Otsiwa v Kwaseko (1931) 3 WACA 230, the court held that since the composition of the court of the paramount chief varied on several occasions, and the court was differently constituted on those occasions, the judgments delivered by the court was nullity.

In those two cases even though there was a defect in the composition of the tribunal, in that two of the members who gave judgment had not been present throughout the whole proceedings, the West African Court of Appeal held that the judgment was a nullity since those two people did not hear all the evidence. In the present case none of the panel members who delivered the judgment had been present at any time during, the trial and did not hear any evidence whatsoever. Consequently, I shall set aside the convictions and sentence against the appellants. Since they have already served their various sentence, there will be no need to order a retrial. They are discharged forthwith.

JUDGMENT OF OFORI-BOATENG JSC. I agree.

JUDGMENT OF GBADEGBE JA. I also agree.

DECISION Appeal allowed.

LSNA