HIGH COURT, HO
Date: 31 MAY 1974
ANDOH J
CASES REFERRED TO
(1) Painter v. Liverpool Oil Gas Light Co., Ltd. (1836) 3 Ad. &. El. 433; 111 E.R. 478.
(2) Harper v. Carr (1797) 7 T.R. 270; 101 E.R. 970.
(3) Gibbs v. Stead (1828) 8 B. & C. 528; 108 E.R. 1138.
(4) R. v. Totness Union Guardians (1845) 7 Q.B. 690; 2 New Sess. Cas. 82; 14 L.J. M.C. 148; 5 L.T. (o.s.) 240; 9 J.P. 584; 9 Jur. 660.
(5) R. v. North; Ex parte Oakey [1927] 1 K.B. 491; 96 L.J.K.B. 77; 136 L.T. 387; 43 T.L.R. 60; 70 S.J. 1181, C.A.
(6) Craig v. Kanssen [1943] K.B. 256; [1943] 1 All E.R. 108; 112 L.J.K.B. 228; 168 L.T. 38; 87 S.J. 48, C.A.
(7) Chettiar v. Chettiar [1962] 1 W.L.R. 279; 106 S.J. 151; [1962] 2 All E.R. 238, P.C.
(8) R. v. Chancellor, Master and Scholars of the University of Cambridge (1723) 1 Str. 557; 93 E.R. 698.
NATURE OF PROCEEDINGS
APPLICATION for an order of certiorari to quash restitution orders whereby the applicants, who were intended prosecution witnesses to a criminal charge of stealing, were ordered to pay the unrecovered part of the stolen money though they were strangers to the charge. The facts are set out sufficiently in the ruling of the court.
COUNSEL
Adjabeng for L. K. Mawudoku for the applicants.
Nii Amassah-Kotey, Assistant State Attorney, for the respondent.
JUDGMENT OF ANDOH J
On 26 November 1973, his honour Judge A. Gogo, sitting at the Circuit Court, Hohoe, had arraigned before him two gentlemen charged with stealing 02,000.00 and 040.00 respectively. The property the subject-matter of the prosecution, was laid in the Ghana Government. Each accused pleaded guilty to the particular offence preferred against him. The learned judge accepted the plea of each accused and convicted them and on learning of their antecedents which revealed at least two previous convictions each, the learned judge sentenced them to five years’ and two years’ imprisonment with hard labour respectively.
The record of proceedings shows that about 030 or 0300 out of the 02,000 was recovered. This was ordered to be paid into government chest. Neither of the accused persons has appealed against the conviction nor sentence or both and in view of their antecedents, I think myself that their sentences were well merited. The learned circuit judge did not order suo motu or on application of the prosecution that the moneys, which were not recovered at the time of the conviction and sentence, be refunded by them on expiry of the sentence into government chest: see sections 146 and 147B
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(1) – (5) of the Criminal Procedure Code, 1960 (Act 30), as substituted by the Criminal Procedure (Amendment) (No.2) Act, 1964 (Act 254). He rather ordered, strangely enough, that two persons who were to be called as prosecution witnesses, had the case been contested, were to pay 0850.00 each into government chest as according to him one of them, the complainant, had been careless in keeping such a huge sum of money in a cupboard, and the other, the union secretary of the Cocoa Buying Agency had failed to provide the former with a safe in which the government moneys were to be kept. The aggrieved parties, namely, those affected by this order have applied to this court in the exercise of its supervisory powers over inferior courts to have the said orders brought before this court for the purpose of being quashed by an order of certiorari. The order of the learned circuit judge sought to be quashed reads as follows:
“Now looking at the case I am of the opinion that Mr. H. K. Atalu is extremely careless, by placing such a huge sum in an ordinary cupboard in his office. Obiri is also to blame because it is his duty to provide Atalu with a safe or something secure in which to keep such sums. For failing to do so and failing to supervise Atalu to make sure that all moneys paid to him were safe, he is also severely to blame for the loss of the 01,700.00. I therefore order that the two of them make good the loss of 01,700.00 by each paying back into government chest forthwith 0850.00 each.”
The grounds relied upon and argued by Mr. Mawudoku, counsel for the applicants, are two, namely:
(1) That the orders were ultra vires and therefore illegal; and
(2) that the orders offended the rules of natural justice in that the applicants were condemned into paying such amount when they had not been given an opportunity to defend themselves.
The learned assistant state attorney conceded that the orders of the learned circuit judge were illegal and offended against the principles of natural justice and that therefore the applicants are entitled ex debito justitiae to have the said orders scrapped, expunged and quashed from the record.
Before considering the submissions of Mr. L. K. Mawudoku, counsel for the applicants, and Mr. Kotey, assistant state attorney, counsel for the learned circuit judge, it is necessary to incorporate into this ruling a certified true copy of the facts of the case as stated by the prosecution and recorded in the proceedings by the learned circuit judge which are as follows:
“On 25 October 1973 the complainant in this case, i.e. the secretary receiver, received an amount of 02,500.00 from his union secretary for the purchase of cocoa. The complaint used 0500.00 on that day and kept the remaining 02,000.00 in the office cupboard. On 28 October 1973, the complainant went to the office and discovered that the money had been stolen. He also discovered that the door to the office was not forced. A report was made to the police and after
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investigations it was discovered that the first and second accused (now at large) went and stole the money. The third accused who was with first accused also stole 040.00 from the first accused while he was asleep. Only 0300.00 out of the whole amount was recovered from first accused’s sister as a result of information from the third accused.”
These two government officials who were condemned to pay 0850.00 each for their alleged carelessness or failure or both to provide a safe in which government moneys are to be kept had not been charged with the crime of conspiring jointly with the others in committing the crimes. They were complete strangers to the criminal prosecution. If anything, they were merely to be witnesses for the prosecution. The property, the subject-matter of the prosecution, was laid in the Government of Ghana. There is no evidence from the facts stated above as certified by the registrar of the circuit court that the secretary receiver had been instructed to keep government moneys in his “castle.” There is no evidence that he had been provided with a safe in which to keep government moneys. In fact there is no evidence that he had been instructed to keep moneys anywhere other than the place where he kept the money. The union secretary mentioned in the facts certified by the registrar, is not under any obligation to buy a safe from his own pocket for the use of the Government of Ghana. In fact in some government institutions not excluding the Judicial Service, some officers have had to buy “toilet paper” for their own use from their own pocket. That is understandable because the commodity is cheap and not a luxury, but I am yet to see any head of department who can buy a safe for the use of the Government of Ghana even if the funds are available from his own pocket. Without exaggeration, a visit to public conveniences in many offices of government will reveal that probably there is no toilet paper. Some of the officials are reluctant to use their own money in buying these basic commodities themselves. It is only when these officials are forced by internal combustions over which they have little control that they rush for these items. I do not see therefore how these officials can be castigated and penalised for not providing a safe which the government is in duty bound to provide for the efficient running of its machinery. In any case, from the facts as stated in the certified true copy, the conclusions reached by the learned circuit judge appear to have emanated from his own imagination. They are not borne out by the record. Section 146 of Act 30 as substituted by Act 254 reads as follows:
“Where any person is convicted of having stolen or having obtained any property fraudulently or by false pretences, the Court convicting him may order that the property or part thereof be restored to the person who appears to it to be entitled thereto.”
(The emphasis is mine.)
Section 147B as substituted by Act 254 also reads:
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“(1) Where sentence is imposed for an offence involving dishonesty and any property including money is not recovered, the court on sentencing the offender on its own motion or on the application of the prosecutor or the victim of the offence, may make an order for the return by the offender to the victim of the offence of the property not recovered and for payment, in default, of the value of any property not returned.
(2) An order under this section shall be deemed to be an exercise of the civil jurisdiction of the court in an action between the victim of the offence as plaintiff and the offender as defendant and shall be enforceable in the same manner and be subject to the like appeal as are orders for the return of chattels or of money . . .
(5) An order under this section may be enforced either during the term of sentence imposed, or at any time within ten years after the expiry thereof.”
(The emphasis is mine.)
A careful examination of these sections referred to above clearly points to the fact that these orders as to restitution are made against convicted persons. These orders by necessary implication cannot be made against strangers and in any case, not until they have had an opportunity of being heard before the tribunal.
No proposition has been more clearly established than the one under consideration that a man cannot incur the loss of liberty or property for an offence by a judicial proceeding until he has had a fair opportunity of answering the case against him, unless indeed the legislature has expressly or impliedly given an authority to act without that necessary preliminary step being taken. The rule was said by Hawkins in his Pleas of the Crown i, 420, to be implied in the construction of all penal statutes: see also Painter v. Liverpool Oil Gas Light Co., Ltd. (1836) 3 Ad. & El. 433 at pp. 448-449.
Thus a party is not to suffer in person or in purse without an opportunity of being heard. Service of a summons upon a party affected by it is always regarded as a condition of the validity of such proceedings not only in criminal matters but also in applications for the issue of distress warrants and orders for the levying of taxes and other charges imposed by public authorities upon the subject: see Harper v. Carr (1797) 7 T.R. 270, Gibbs v. Stead (1828) 8 B. & C. 528, R. v. Totness Union Guardians (1845) 7 Q.B. 690, R. v. North; Ex pert Oakey [1927] 1 K.B. 491, C.A., Craig v. Kanssen [1943] K.B. 256, C.A. and Chettiar v. Chettiar [1962] 1 W.L.R. 279, PC.
In this case, the accused persons pleaded guilty and these applicants now condemned were never even interrogated by the court. The prosecutor who was seised of all the facts in the case never said anything derogatory about the conduct of the two men so as to justify their condemnation to pay 01,700. 00 into government chest as ordered by the learned circuit judge. I find no special circumstances surrounding this case as to justify a
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departure from the normal requirements and the observation of the rules of natural justice in this case. The learned circuit judge should have called on the applicants to show cause, granting their conduct fell short of that of prudent men, before proceeding to make the order. The rule of natural justice has an impressive ancestry and the principle that no man is to be judged unheard was a precept known to the Greeks who had it inscribed in ancient times upon images in places where justice was administered and dispensed: see G. Del Vecchio’s Justice, pp. 172-173.
The origin of the rule of natural justice can manifestly be traced to the Bible in the book of Genesis. Thus in R. v. Chancellor, Master and Scholars of the University of Cambridge (1723) 1 Str. 557 at p. 567 Fortescue J. observed that, “even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I command thee that thou shouldst not eat?” It was after God had heard Adam’s explanation and that of his wife Eve that God banished them from the Garden of Eden. Again in John Chapter VII, verse 51 is written: “Doth our law judge any man before it hear him and know not what he doeth?” The answer to this is that despite the shortcomings of man, this fundamental law, the principle of the rules of natural justice, is part of the law of Ghana and of all civilised countries.
These quotations from the Bible clearly show that the need to provide an opportunity to one to enable him to defend himself before condemnation or incarceration is not a recent theory propounded by any particular nation. It has its origin from God. The principle must continuously and jealously be guarded and preserved if not by an individual, at least by all tribunals and administrative bodies vested with authority to investigate and adjudicate on any controversy between two parties or individuals and government. In the administration of justice, a violation of this fundamental principle is unpardonable.
The learned circuit judge unwittingly violated this elementary principle. In so doing, he erred and exceeded his jurisdiction. The applicants are therefore entitled ex debito justitiae to have the said orders brought before this court to be quashed.
I make no order as to costs.
DECISION
Order of circuit court quashed.
S.E.K.
