DEY vs. THE REPUBLIC [1997-1998] 2 GLR 919

CASES REFERRED TO:

(1) Derbyshire (County Council of) Mayor, Aldermen and Burgesses of Derby,; In re [1896] 2 QB 53, sub nom.

[p.921] of [1997-1998] 2 GLR 919

(2) Derby Corporaton v Derby Country Council [1897] AC 550; 66 LJQB 701; 77 LT 107, HL.

(3) Zimmerman v Inland Revenue Commisisioner (1960) NZLR 8.

Ayikoi Otoo (with him Sophia Quantson) for the appellant.

Owoo, Chief State Attorney, for the Republic.

Forster JA. The appellant was a storekeeper of a shop owned by the complainant, Mrs Bertha Nunyuie, at Ho. The goods sold at the shop included cement and drinks. The appellant was charged in one count for stealing the sum of ¢4,999,400 and ¢2,224,600 being the proceeds from the sale of cement and drinks respectively. The offence was charged to have been committed between 19 March and 4 April 1996. He was tried at the Regional Tribunal, Ho and was convicted and sentenced to three years imprisonment with hard labour. It is from that conviction that he appealed to the Court of Appeal. In his notice of appeal, the only ground was that “the conviction is unreasonable having regard to the evidence.”

In this appeal the matters raised by counsel were those itemised in the additional grounds of appeal. These were that:

“(1) The Regional Tribunal which tried the appellant had no jurisdiction in so far as the offence alleged was not against the State or the public interest.

(2) The trial Regional Tribunal failed adequately to consider the defence put forward by the appellant.

(3) Having regard to all the circumstances of the case, the sentence imposed was harsh.”

As to the want of jurisdiction, Mr Ayikoi Otoo submitted that since the criminal jurisdiction of a Regional Tribunal was specific ally limited, under article 143 (1) of the Constitution, 1992 to trial of offences against the State and the public interest, the offence of stealing the property of Mrs Bertha Nunyuie was excluded by article 143 (1) from the jurisdiction of the Regional Tribunal.

Mr Owoo, Chief State Attorney, countered however that all criminal offences were wrongs against the State or public interest. In his view the fact that all criminal offences are prosecuted in the name state supported his claim that the offence charged in the

[p.922] of [1997-1998] 2 GLR 919 instant case was an offence against the State and thus within the jurisdiction of the Regional Tribunal.

The present tribunals, existing by virtue of the Constitution, 1992 and the Courts Act, 1993 (Act 459), are successors of the former pre-constitutional public tribunals created and vested with criminal jurisdiction. Thus, by section 115 (2) of Act 459:

“(2) The Regional Tribunal established under this Act shall subject to the provisions of this Act, be successors to the Regional Public Tribunal in existence immediately before the coming into force of this Act.”

I think it would be immensely helpful in determining the issue in contention in this appeal to view in retrospect the jurisdiction of the regional public tribunals in existence immediately before the coming into force of the Constitution, 1992. The regional public tribunals, among others, were established under the Public Tribunals Law, 1982 (PNDCL 24) in 1982 as subsequently substituted by the Public Tribunal Law, 1984 (PNDCL 78). They were vested with extensive jurisdiction to try practically all criminal offences.

The regional public tribunal had concurrent jurisdiction with the National Public Tribunal to try specified offences under the Criminal Code, 1960 (Act 29), being stealing (s 124); fraud by false pretences (s 131), robbery (s 149) forgery (ss 158 and 159), destruction of documents by public officer (s 250), and issue of false cheque (s 3 13A). Other offences were those relating to price control, rent control, exchange control and government revenue. They also had jurisdiction to try certain offences committed against the security of the State and the government. Besides these offences, the regional public tribunals had also jurisdiction to try such offences under any enactment that the Provisional National Defence Council may refer to it, and as at September 1990 the council had referred no less than 32 enactments to the regional public tribunal, including yet again offences under thirty-two sections of Act 29.

Significantly, all these offences in respect of which the regional public tribunal exercised jurisdiction included offences committed against private individuals, public organisations, the State, the government and those committed against the public interest. All these offences were within the junrisdiction of the regional public

[p.923] of [1997-1998] 2 GLR 919 tribunals and it did not matter that they were committed against an individual or the State or government or the public interest.

On 6 July 1993, Act 459 came into force and by section 120 and the Third Schedule to the Act, PNDCL 78 was repealed and the public tribunals established under the Law ceased to exist. But that tribunal system had come to be acknowledged as an effective dispenser of criminal justice and was therefore retained in the Constitution, 1992 except that the “public” in their nomenclature was dropped and their extensive criminal jurisdiction was considerably restricted.

The jurisdiction of the Regional Tribunals is provided in article 143 (1) of the Constitution, 1992 and it reads:

“(1) A Regional Tribunal shall have jurisdiction to try such offences against the State and the public interest as Parliament may, by law, prescribe.

(2) A Regional Tribunal shall have such appellate jurisdiction relating to the ii’Imatters described in clause (1) of this article, as may be prescribed by law.”

Thus, both the original and appellate jurisdictions of the Regional Tribunals have been limited or restricted to such offences as are committed against the State and the public interest and, further, such offencçes must also have been prescribed by Parliament as friable by a Regional Tribunal. The discharge of this constitutional duty by Parliament was made the more urgent as manifested in terms of section 6 of the transitional provisions of the Constitu tion, 1992 which provides as follows:

“6. Parliament shall, within six months after the coming into force of this Constitution (a) prescribe by law the jurisdiction of Regional Tribunals for the purposes of article 143 of the Constitution.”

In obedience to the imperative command of the Constitution, Parliament sought to prescribe such offences against the State and the public interest which in its legislative wisdom should be friable by Regional Tribunals. This it did by enacting Act 459 and providing in section 24 of Act 459 the “Original and appellate jurisdiction of Regional Tribunal.” It may be mentioned in passing that the jurisdiction of a Regional Tribunal had already been provided in article 143 of the Constitution, 1992. What Parliament

[p.924] of [1997-1998] 2 GLR 919 was required to do was to specify such offences against the State and the public interest that a Regional Tribunal could try. Section 24 (1) of Act 459 which deals with the original jurisdiction, provides:

“24. (1) Subject to the provisions of the Constitution, this Act and any other law, a Regional Tribunal shall have concurrent original jurisdiction with the High Court in all criminal matters and shall in particular try —

(a) the special offences specified under Chapter 4 of Part III of the Criminal Code, 1960 (Act 29);

(b) offences arising under — (c) Customs Excise and Preventive Services Mana gement Law, 1993 (PNDCL 330);

(i) Income Tax Decree, 1975 (SMCD 5);

(ii) Narcotic Drugs (Control Enforcement and Sanctions) Law, 1990 (PNDCL 236); and (d) any other offence involving serious economic fraud, loss of state funds or property.”

(The emphasis is mine.) Part III of the Criminal Code referred to in section 24 (l) (a) above contains all “Offences Against Rights of Property.” The “Special Offences” specified in Chapter 4 of Part III were inserted by the Criminal Code (Amendment) Act, 1993 (Act 458) which came into force concurrently with Act 459 on 6 July 1993. The preamble to Act states:

“AN ACT to amend the Criminal Code, 1960 (Act 29) to include in the Code the offences of genocide and hijacking and related punishments; to include special offences relating to loss of state funds; to provide for harsher punishment for physical crimes against females; to provide for sitting or voting in Parliament without authority and for other purposes.”

(The emphasis is mine.) The special offences inserted by the amending Act 458 were:

“179A. (1) Any person who by a wilful act or omission causes loss, damage or injury to the property of any public body or any agency of the State commits an offence.

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(2) Any person who in the course of any transaction or business with a public body or any agency of the State intentionally causes damage or loss whether economic or otherwise to the body or agency commits an offence.

(3) Any person through whose wilful, malicious or fraudulent action or omission —

(a) the State incurs a financial loss; or

(b) the security of the State is endangered, commits an offence

(4) In this section ‘public body’ includes the State, Government of Ghana, public board or corporation, public Institution and any company or other body in which the State or a public corporation or other statutory body has a proprie tary interest.”

Parliament therefore has, by the provisions of section 24 (l) (a),(b) and (c), specifically prescribed such offences against the State and the public interest that shall be friable by a Regional Tribunal. In my considered opinion the theft of property owned by the government or any public body established by the government to promote the general welfare of the people, would be an offence committed against the State and the public interest.

It is clear therefore that the offence of stealing committed against the proprietary right of Mrs Bertha Nunyuie, as the owner of the cement and drinks, the proceeds of whose sale were charged as having been stolen by the appellant, was not an offence within the jurisdiction of a Regional Tribunal. The goods did not belong to the State.

Section 24 (1) seeks to confer further jurisdiction in the Regional Tribunal. That section, in addition to the particular offences prescribed, provides that — “24. (1) Subject to the provisions of the Constitution, this Act and any other law, a Regional Tribunal shall have concurrent original jurisdiction with the High Court in all criminal matters …”

(The emphasis is mine.) The opening phrase of the sub-section reflects the draftsman’s acknowledgement of the overriding provisions of article 143 of the Constitution, 1992. In effect, any offences contemplated as included “in all cnriminal matters,” must

[p.926] of [1997-1998] 2 GLR 919 in terms of article 143 be offences against the State and the public interest. In each case therefore the question that must first be addressed is whether the particular offence charged against an accused is or is not an offence against the State and the public interest. If it is not, then the offence is excluded by article 143 from the jurisdiction of a Regional Tribunal.

A “State” is defined in the Advanced Dictionary of Current English as: “an organised political community with its apparatus of government.” Section 32 the Interpretation Act, 1960 (CA 4) defines “government” as follows: “ ‘Government’ includes any authority by which the executive power of the State is duly exercised in a particular case.” The government therefore is a creature of the State; an off-spring exercising the executive powers of the State.

Mrs Nunyuie is definitely not a State. She is a private individual. She is not an organ of the State nor a governmental agent or authority. Her private property does not belong to the State. But could it be said the offence of stealing committed against her private property is an offence against the public interest? Definitely not. “Public interest” is defined in article 295 (1) of the Constitution, 1992. It states: “public interest’ includes any right or advantage which endures or is intended to enure to the benefit generally of the whole of the people of Ghana.” I comprehend that public interest or right in property connotes those rights or advantages in things that are public juris and therefore considered as vested in the public, the entire State or community and not restricted to the dominion of a particular private person. I can conceive such public interest in a clean environment, the unfettered right to enjoy the beaches and the greenery. Offences such as dumping of toxic matter, practicing medicine without license, dangerous driving, printing forged notes, riot, unlawfhul assembly and interference with legal proceedings are clearly offences committed against the public interest.

It seems to me that besides the offences involving serious economic fraud, loss of State funds or property and the special offences prescribed by section 2 (1) of the Act 459, there are specific offences in the existing Act 29 which could properly be tnried by a Regional Tribunal. These are the offences falling under Part IV of the Code and described as “Offences Against Public Order, Health and Morality” which by their nature are offences

[p.927] of [1997-1998] 2 GLR 919 against the State and public interest, and respond to the general classification of “all criminal matters” in respect of which section 24 (1) purports to vest jurisdiction in a Regional Tribunal.

The framers of the Constitution, 1992, the consultative assem- bly, must plainly have been aware of the extensive and legally unlimited jurisdiction of the regional public tribunals conceived and tailored to respond to the quest for a judicial system, self-contained, responsible to no other but the revolutionary refrain into which it was born. They were made independent of the existing orthodox judicial system to which they ran parallel. Their decisions were not subject to appellate review by the highest court of the land, possibly so that the purity of their revolutionary purpose may not be contaminated or suffer dilution. I take judicial notice of the fact that several prominent members of the assembly had at one time or another been actively involved in the operations of the public tribunals system. Those honourable men and women purposefully sought to hold in halters the all pervading jurisdiction of the erstwhile public tribunals, and articulated their objective in the language of article 143 of the Constitution, 1992.

Neither the tribunals nor the prosecuting agencies of the State can claim .to be wiser by seeking to invest in the Regional Tribunals jurisdiction which the framers of the Constitution, 1992 in their wisdom, excluded. To do so would be arrogating to themselves the power to grant to the Regional Tribunals a dispen- sation from obedience to the imperative provisions of the Consti- tution, 1992 an exercise in which this court cannot be party. If indeed there is a felt need for enlargement of the scope of the jurisdiction of the Regional Tribunals so as to empower them to try all manner of criminal offences, and irrespective of the nature or the status of the victim or complainant, then that desired objective may be pursued elsewhere.

In conclusion, the property charged to have been stolen belonged to Mrs Bertha Nunyuie. It was not owned by the State or a public body. Nor was the property one in which all the people of Ghana could claim to be joint owners with Mrs Nunyuine, so as to bring the offence of stealing within the jurisdictional competence of a Regional Tribunal.

In the light of the considerations I have canvassed in this opinion, the Regional Tribunal had no jurisdiction to try the appellant. I would accordingly allow the appeal, quash the conviction, set aside the sentence and discharge the appellant.

[p.928] of [1997-1998] 2 GLR 919

And in view of the conclusion that the tribunal lacked jurisdiction, I consider it unnecessary to deal with the other grounds of appeal.

Benin JA. The appellant was arraigned before the Regional Tribunal at Ho, charged with one count of stealing under section 124 of the Criminal Code, 1960 (Act 29). He is alleged to have stolen a certain sum of money belonging to a Mrs Bertha Nunyuie. The facts have been sufficiently set out in the judgment just read by my brother who is presiding. I need not recount them. A full tnrial was conducted following a plea of not guilty by the appellant. At the end of the day, he was found guilty, convicted and sentenced to a term of Tthree years imprisonment with hard labour. An appeal was filed within a month of the conviction.

A number of grounds of appeal have been canvassed but I intend to deal with additional ground (1) only since it is so fundamental and I believe of interest to the entire legal community in this country. That ground of appeal relates to the jurisdiction of the Regional Tribunal. The ground in question says this: “The Regional Tribunal which tried the appellant had no jurisdiction in so far as the offence alleged was not against the State or the public interest.”

The question of jurisdiction is being raised here in this case for the first time. I believe that such a fundamental issue should be raised as early as practicable before the trial court in order not to unduly delay or protract the proceedings; and also bearing in mind that some hardship is likely to be caused to every participant in the drama: the prosecutor, the accused, their lawyers and even witnesses. It should also be borne in mind that a trial vitiated on ground of lack of jurisdiction in the trial court may not operate to set the accused free, however long he may have spent in custody,; he is only liable to be tried de novo by a court of competent jurisdiction. But it is not late to raise this question on appeal.

Jurisdiction as defined in Hailsbury ‘’s Laws of England (3rd ed), Vol 9, para 822 at pp 350-351, is: “… “the authority which a court has to decide matters that are litigated before it or take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restnriction or limit is

[p.929] of [1997-1998] 2 GLR 919 imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics . . . Where a court takes iit upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

(The emphasis is mine.) It’s precisely because of the nullity of any court decision given without jurisdiction that every judge presiding over any court must satisfy himself that the particular court has jurisdiction to entertain the particular matter before he proceeds to hear same. There is nothing like jurisdiction conferred by conduct or acquiescence or by silence or inaction where the particular court’s jurisdiction is clearly defined on paper. Hence the issue of the Regional Tribunal’s jurisdiction in this matter is rightly raised and must therefore be dealt with as a fundamental issue.

The original jurisdiction of the Regional Tribunal is conferred primarily by article 143 (1) of the Constitution, 1992. This provides: “A Regional Tribunal shall have jurisdiction to try such offences against the State and the public interest as Parliament may, by law, prescribe.” “Offences” as used here clearly denotes infraction of some laws, or acts of commission or omission for which some penalty is prescribed by law: see Re County Council of Derbyshire and Mayor, Aldermen and Burgesses of Derby (1l’896) 2 QB 53, also reported on appeal in [1897] AC 550 and Zimmerman v Inland Revenue Commissioner (1960) NZLR 8 at 13, per Hardie Boys J. The offences friable by the Regional Tribunal must be found to be against the State as well as against the public interest; but if it is found to be against public interest only it could be accepted if “and” is read disjunctively; and I think it should be so read. And it is Parliament which was mandated to pass legislation to designate the particular offences the Regional Tribunal should try. Hence the enactment of the Courts Act, 1993 (Act 459), section 24 thereof in particular.

The relevant portions of section 24 of Act 459 are these:

“(1) Subject to the provisions of the Constitution, this Act and any other law,. a Regional Tribunal shall have concurrent

[p.930] of [1997-1998] 2 GLR 919 original jurisdiction with the High Court in all criminal matters and shall in particular try — (a) the special offences specified under Chapter 4 of Part III of the Criminal Code, 1960 (Act 29);

(b) offences arising under — (i) Customs, Excise and Preventive Services Management Law, 1993 (PNDCL 330);

(ii) Income Tax Decree, 1975 (SMCD 5);

(iii) Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236); and

(c) any other offence involving serious economic fraud, loss of state funds or property.

(2) A Regional Tribunal shall not have jurisdiction to try a criminal offence if the trial requires the participation of a jury or assessors.”

Parliament which was entrusted with the responsibility of passing the relevant legislation must be deemed to have acted in conformity with the Constitution; that is, that Act 459 will give the Regional Tribunal jurisdiction to deal with only offences that are against the State and/or in the public interest. The only logical inference being that the Regional Tribunal will not have the jurisdiction to deal with any offence that fails the classification of offence against the State and/or in the public interest. When read disjunctively, it has to be an offence against the State or the public interest.

The Constitution, 1992 defines “public interest” under article 295 (1) to include “any right or advantage which endures or is intended to enure to the benefit generally of the whole of the people of Ghana.” This definition coupled with the classification of offences for which Parliament gave the Regional Tribunal onriginal jurisdiction will no doubt show that the Regional Tribunal has no jurisdiction over what can pass for purely private rights or breaches thereof even though criminal in nature. I think it is clearly untenable to argue, as did the learned counsel for the Republic, that all criminal offences are against the State and the public interest and therefore article 143 of the Constitution, 1992 covers the entire gamut of criminal activity or offences. If that was the intention of the framers of the Constitution and Parliament, they would not have specifically mentioned offences against the State and public interest and listed specific offences all of which [p.931] of [1997-1998] 2 GLR 919 are public in character as those friable by the Regional Tribunal. The term “public” actually signifies an intention, a deliberate one at that, on the part of the law-makers, to qualify those offences, and clearly distinguish same from private ones over which the Regional Tribunal has no jurisdiction. And those offences which qualify under this classification are those in which the entire people of this country must have an interest.

I think the law-makers of Act 459 were very mindful of the constitutional limitation imposed by article 143 of the Constitu tion, 1992 in respect of the original jurisdiction of the Regional Tribunal; hence the enactment of section 24 (1) thereof. And particularly with regard to section 24 (l) (a), the only portion of Act 29 over which the Regional Tribunal was given specific jurisdiction is chapter 4 of Part III. It is significant to note that this chapter 4 of Part III of Act 29 was introduced by the Criminal Code (Amendment) Act, 1993 (Act 458) by way of an amendmenlt which came into force simultaneously with Act 459. And I believe in order to appreciate the restrictive nature of the original jurisdiction granted the Regional Tribunal, it is relevant to refer to the new chapter 4 of Part III of Act 29 introduced by section 3 olf Act 458. It provides:

“3. The principal enactment is amended by the insertion after section 179 of the following —

CHAPTER 4 –- SPECIAL OFFENCES.

179A (1) Any person who by a wilful act or omissiorn causes loss, damage or injury to the property of any public body or any agency of the State commits an offence.

(2) Any person who in the cause of any transactiorn or business with a public body or any agency of the State intentionally causes damage or loss whether economic oir otherwise to the body or agency commits an offence.

(3) Any person through whose wilful, malicious of fraudulent action or omission —

(a) the State incurs a financial loss; or

(b) the security of the State is endangered, commits an offence.

(4) In this section ‘public body’ includes the State Government of Ghana, public board or corporation, public Institution and any company or other body in which the State

[p.932] of [1997-1998] 2 GLR 919 or a public corporation or other statutory body has a proprietary interest.

179B (1) Any person who without lawful authority (proof of which shall be on him) imports into Ghana any explosives, firearms or ammunitions commits an offence.

(2) For the purpose of this section, explosives, firearms or ammunition shall have the same meaning as provided under section 192 of this Code.

179(C) Any person who (a) while holding a public office corruptly or dishonestly abuses the office for private profit or benefit; or (b) not being a holder of a public office acts or is found to have acted in collaboration with a person holding public office for the latter to corruptly or dishonestly abuse the office for private office or benefit, commits an offence.

179D A person convicted of an offence under any of the offences specified in this Chapter is liable on conviction to a fine of not less than ¢5 million or imprisonment not exceeding ten years or both.”

Even a cursory reading of the foregoing provisions will disclose that the State and/or public interest runs through. Part III of Act 29 deals with offences against rights of property running from sections 120 through 179. Significantly included therein is the offence of stealing under section 124. The law-maker deliberately left out sections 120-1 79 and rather included the newly introduced sections 179A–179D in the jurisdiction of the Regional Tribunal. Of course this is not to say that no charge of theft under section 124 of Act 29 can be tried by the Regional Tribunal. No! It has jurisdiction where the theft is against State property or to put it in a more liberal way property in which the State has an interest and that surely will cover property owned by even companies in which the State has proprietary interest. Therefore where the theft is against a private person or any ordinary citizen of the country and the State cannot be said to have proprietary interest in that private or ordinary person’s property stolen; the Regional Tribunal will not have jurisdiction to try it.

[p.933] of [1997-1998] 2 GLR 919

In my view therefore the Regional Tribunal will always have to decide first whether it has jurisdiction to deal with a particular charge put before it by asking itself whether the offence charged is against the State and/or in the public interest, the emphasis being placed on the “public” character of the offence. The consideration is not whether the offence is serious or not, nor that it has aroused public interest by the amount of publicity given to it; but whether it is an offence which is essentially against a private as against public interest. In this connection every charge must be examined in its own context and a decision reached and it will be inexpedient to set down in any detail which offence will be classified as being against the State and which will not. But as I have already said, a theft committed against a private or ordinary person’s property in which the State has no proprietary interest cannot be classified as an offence against the State or public interest or both within the meaning of article 143 of the Constitution, 1992 and section 24 of Act 459.

Mrs Bertha Nunyuie whose property was stolen is a private or ordinary person and the property is owned by her only without the State having any proprietary interest in it. For that reason the Regional Tribunal did not have jurisdiction to try the offence.

To confirm the restrictive nature of the Regional Tribunal’s original jurisdiction, one only has to look at the jurisdiction granted the circuit tribunal by section 44 of Act 459. The relevant sub-sections provide:

“44. (1) Subject to subsection (2) of this section a Circuit Tribunal shall within the area of its jurisdiction have original jurisdiction in all .criminal matters arising within the jurisdiction.

(2) A Circuit Tribunal does not have jurisdiction to try —

(a) the offence of treason or murder; or

(b) an offence declared by any enactment to be first degree felony; or

(c) an offence punishable by death or by life imprisonment.”

It is noted that whereas the circuit tribunal is given jurisdiction to try all criminal offences except those that are specifically precluded by law, the Regional Tribunal does not have that right to try all criminal cases. It is not by accident that this apparent

[p.934] of [1997-1998] 2 GLR 919 discrimination has been maintained in favour of circuit tribunals. It is deliberate so that the Regional Tribunal can concentrate on those offences, that are committed against the State or its exclusive interest. If it was intended that the Regional Tribunal shall try all criminal offences, the law-maker would have said so expressly like in the provisions relating to the circuit tribunal.

I will accordingly allow the appeal for this reason that the Regional Tribunal lacked jurisdiction.

Aryettey J. I agree.

Appeal allowed LSNA