REPUBLIC vs. YEBBI & AVALIFO [1999-2000] 2 GLR 50

CASES REFERRED TO

(1) Dey v The Republic, Court of Appeal [1997-98] 2 GLR 919.

(2) Attorney-General v Birmingham Tains & Rea DD Board [1912] AC 788; 82 LJCh 45; 107 LT 353, HL.

(3) Anisminic Ltd v Foreign Compensation [1969] 2 AC 147; [1969] 2 WLR 163; [1969] 1 All ER 208, HL.

(4) R v Newbould [1962] 2 QB 102; [1962] 2 WLR 648; [1962] 1 All ER 693.

(5) John G Stein & Co Ltd v O’Hanlon [1965] AC 890.

(6) Dilworth v Commissioner of Stamps [1899] AC 99; 79 LT 473; 15 TLR 61, PC.

(7) Robinson v Barton-Eccles Local Board (1883) 8 App Cas 798; 53 LJCh 226; 50 LT 57, HL.

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(8) Wagen-Stein v Graham [1954] 4 DLR 540.

(9) Cartwright v Post Office [1969] 2 QB 62; [1969] 2 WLR 323; [1969] 1 All ER 421, CA.

(10) Miller v Jackson [1977] 3 All ER 338 (a).

(11) R v Sussex Confirming Authority; Ex parte Tamplin & Sons Brewery (Brighton) Ltd [1937] 4 All ER 106; 157 LT 590; 101 JP 562, DC.

REFERENCE by the Regional Tribunal, Greater Accra under article 130(2) of the Constitution, 1992 for the determination by the Supreme Court of, inter alia, the issues of whether section 24(1) of the Courts Act, 1993 (Act 459) was inconsistent with article 143(1) of the Constitution, 1992 and whether the stealing of moneys belonging to a registered arty was a crime against the State and the public interest. The facts are fully set out in the ruling of the court delivered by Acquah JSC.

Gyambiby, Principal State Attorney, for the Republic.

Captain Effah-Dartey for the accused.

Acquah JSC. Delivered the ruling of the court. On 15 July 1997, Constable Yebbi and Corporal Avalifo were arraigned before the Greater Accra Regional Tribunal on charges of conspiracy to steal and stealing ¢100,000,000, contrary to section 23(1) and 124(1) respectively of the Criminal Code 1960 (Act 29). The money is said to belong to the National Democratic Congress (NDC), a political party registered under the Political Parties Registration Laws, 1992 (PNDCL 281).

In the course of the trial, the accused challenged the jurisdiction of the tribunal. They pointed out that under article 143(1) of the Constitution, 1992 a Regional Tribunal has jurisdiction “to try such offences against the State and public interest as Parliament may by law prescribe.” But the offences they were facing could not be said to be against the State or public interest since the money involved was admitted to belong to a political party which obviously is not a state institution; neither is the theft of a political party’s money, an offence against public interest. A Regional Tribunal can therefore not try such an offence.

The prosecution sought to resist the objection by contending that once Parliament has exercised its discretion by enacting in section 24(1) of the Courts (Act 459) that a Regional Tribunal has

[p.55] of [1999-2000] 2 GLR 50 jurisdiction in all criminal matters, it follows that the tribunal was seised with jurisdiction in the matter. But the accused in reply submitted that section 24(1) of Act 459 is not consistent with Article 143(1) of the Constitution, 1992 and consequently null and void. They supported their contention with the Court of Appeal’s decision in Dey v The Republic [1997-98] GLR 919, CA.

The trial Regional Tribunal accordingly referred the following issues to this court under article 130(2) of the Constitution, 1992:

“(i) Whether on a true and property interpretation of article 143(1) Parliament had power to provide that a Regional Tribunal had jurisdiction in all criminal matters.

(ii) Whether section 24(1) of the Courts Act 1993 (Act 459) is inconsistent with the said article 143(1) of the Constitution, 1992 and to the extent of such inconsistency void.

(iii) Whether or not the stealing of moneys belonging to a political party is a crime against the State or the public interest.”

In Dey v The Republic (supra), relied on by the accused at the Regional Tribunal, the appellant who was a storekeeper of the complainant, one Mrs Bertha Nunyuie at Ho, was charged with one count of stealing ¢4,999,400 and ¢2,224,600 being the proceeds from the sale of cement and drinks respectively. The offence was alleged to have been committed between 19 March and 4 April 1996. He was tried and convicted by the Regional Tribunal, Ho and sentenced to three years imprisonment with hard labour. In his appeal at the Court of Appeal, he contended, inter alia, that the Regional Tribunal had no jurisdiction in so far as the offence levelled against him was not against the State or public interest as provided for in article 143(1) of the Constitution, 1992. He submitted that the offence was against Mrs Bertha Nunyuie, a private person, and that section 24(1) of Act 459 which gave the Regional Tribunal jurisdiction in all criminal matters subject to the Constitution and the provisions of Act 459, was inconsistent with Article 143(1) of the Constitution, 1992.

The Court of Appeal upheld the arguments of Jonathan Dey and concluded that the Regional Tribunal had no jurisdiction in the matter. As Foster JA put it:

“. . . the property charged to have been stolen belonged to Mrs Bertha Nunyuie. It was not owned by the State or a public

[p.56] of [1999-2000] 2 GLR 50 body. Nor was the property one in which all the people of Ghana could claim to be joint owners with Mrs Nunyuie 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.”

Now, until the above judgment of the Court of Appeal is set aside, the Regional Tribunal is bound by article 136(5) of the Constitution, 1992 to follow the questions of law settled in that decision. The article reads:

“(5). Subject to clause (3) of article 129 of this Constitution, the Court of Appeal shall be bound by its own previous decisions; and all court lower than the Court of Appeal shall follow the decision of the Court of Appeal on questions of law.”

(The emphasis is mine.) Yet, the Regional Tribunal herein did not examine the decision in the Dey case to determine whether it offers answers to the questions raised for the determination of this court. The obvious issue arising therefrom is whether a lower court can, in the face of a binding decision of a higher court, refer questions already determined in that decision to the Supreme Court for determination.

Of course the Attorney-General in paragraph (29) of his written submission contended that in so far as the Court of Appeal purported to interpret article 143(1) of the Constitution, 1992 and by implication rendered section 24(1) of Act 459 inconsistent with that article, the Court of Appeal acted in clear breach of article 130(1) of the Constitution, 1992 and consequently, its decision was invalid. Fair enough! But the Regional Tribunal offered no such explanation in failing to follow that decision. Be that as it may, the propriety of this reference in the face of the decision in the Dey’s case (supra), has not been raised by either party. Indeed, it appears that the reference was with the consent of both parties. We would therefore proceed to examine the questions posed for consideration.

The first two issues are indeed two sides of the same coin in that issue (1) arises from the fact that section 24(1) of Act 459 vests

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Regional Tribunals with original jurisdiction in all criminal matters, subject of course to the provisions of the Constitution, 1992. And if the said section 24(1) of Act 459 is inconsistent with article 143(1) of the Constitution, 1992 then it follows that Parliament has no power to vest such original jurisdiction in all criminal matters in the Regional Tribunals. Issue (2) will therefore be dealt with first. Now, article 143(1) of the Constitution, 1992 provides:

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

Compare the above provision with article 140(1) of the same Constitution, 1992 dealing with the jurisdiction of the High Court. Article 140(1) of the Constitution, 1992 provides:

“140. (1) The High Court shall, subject to the provisions of this Constitution have jurisdiction in all matters and in particular in civil and criminal matters and such original, appellate and other jurisdiction a may be conferred on it by this Constitution or any other law.”

The above provision clearly gives to the High Court, jurisdiction in all criminal and civil matters subject to the provisions of the Constitution. Whereas the original jurisdiction of the Regional Tribunal is confined to “such offences against the State and public interest as Parliament may by law prescribe”.

From the clear language of articles 140(1) and 143(1) of the Constitution, 1992, the High Court and Regional Tribunal are not meant and were not intended to have the same original jurisdiction. Yet, section 24(1) of Act 459 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 . . .”

In the World Book Dictionary, the word “concurrent” is defined, inter alia, as “having equal authority or jurisdiction” Certainly, the Constitution did not confer the same or equal jurisdiction on the High Court and the Regional Tribunal. Furthermore, the Constitution, 1992 did not grant the Regional Tribunal jurisdiction in “all criminal matters.”

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In his written submissions, the Attorney-General attempts to justify section 24(1) of Act 459 by submitting that all crimes are by definition, offences against the State and the public interest and therefore by providing that Regional Tribunals have original jurisdiction in all criminal matters, no inconsistency is created between such a provision and article 143(1) of the Constitution, 1992. For under section 1 of Act 29, the word “offence” has the same meaning as the word “crime.” He further quotes from page 27 of A N E Amissah’s Criminal Procedure in Ghana, wherein it is stated: “The theory of crime is that crimes are wrongs against the State which ought to be prosecuted by the State itself.”

Now, it cannot be doubted that jurisprudentially, every crime is an offence against the State. As defined in Barons Law Dictionary, crime is: “Any act which the sovereign has deemed contrary to the public good; a wrong which the government has determined injurious to the public and hence, prosecutable in a criminal proceeding.” But within this broad or general sense, it cannot be denied that some crimes are meant to protect the person of the individual; others to protect the peace and security of the State; while others protect the environment, administration of justice, public office and so on. Thus, in Russell on Crimes, offences are divided into twelve broad areas. These cover offences against the security of the disturbance of the public peace; the due administration of justice; public office; the person, status and reputation of the individual; property, public or private; nuisance and kindred offences; trade; criminal conspiracy; rights and revenue of the Crown; religion and public worship; and finally the law of nations. Again, Act 29 treats offences under four main parts. Apart from part one which covers preliminary matters, attempts to commit crimes, abetment and conspiracy; part two deals with offences against the person; part three covers offences against rights of property; and part four deals with offences against public order, health and morality.

There are therefore divisions within the broad definition of a crime. And the framers of the Constitution, 1992 cannot be said to be unaware of these divisions. The very fact that article 143(1) of the Constitution, 1992 talks of “such offences against the State and public interest” while article 140(1) of the Constitution, 1992 talks of “all matters and in particular, in civil and criminal matters” clearly shows that the drafters were fully aware of the divisions

[p.59] of [1999-2000] 2 GLR 50 within crime, and therefore intended to confine Regional Tribunals to “such offences against the State and public interest.”

Furthermore, from the proceedings of the consultative assembly which drew up the draft of the Constitution, 1992, it is evidently clear that after much debate on the status and jurisdiction of the public tribunals, it was finally agreed that the public tribunals should be part of the unified judicial system but with jurisdiction in certain criminal cases only, not in all criminal cases, as section 24(1) of Act 459 now provides. For as Mr Kofi Attorney, representing the Committee for the Defence of the Revolution put it, the public tribunal established under the Provisional National Defence Council needed to be retained “as part of a unified judicial system with jurisdiction to cover economic crimes, treason, insurrection, rebellion, narcotics and other crimes against the State.” See No 1 Col 257 of the proceedings. To attempt therefore in section 24(1) of Act 459 to vest original jurisdiction in all criminal matters in the Regional Tribunals does not only negate the clear and unambiguous language of article 143(1) of the Constitution, 1992 but also the intention of the framers of the Constitution.

But the Attorney-General further submits that to restrict the original jurisdiction of the Regional Tribunal to offences against the State and the public interest would disable the Regional Tribunals from entertaining appeals from the community and circuit tribunals in offences other than those affecting the State and the public interest. For, as he rightly points out, the appellate jurisdiction of the Regional Tribunals according to article 143(2) of the Constitution, 1992, is in relation to “matters described in clause (1) of this article, as may be prescribed by law.”

It is true that under section 44(1) of Act 459, a circuit tribunal has been given original jurisdiction in all criminal matters arising within its jurisdiction, except the offences set out in section 44(2) thereof. Similarly, section 48 of Act 459 also empowers a community tribunal to try a number of offences in addition to those against the State and the public interest. But we think it is quite well settled that a court of law has no power to grant a dispensation from obedience to a statute: see Attorney-General v Birmingham Tame & Rea DD Board [1912] AC 788 at 795. Thus, the fact that offences other than those against the State and the public interest tried by the circuit and community tribunals cannot be heard on appeal by the Regional Tribunals by virtue of article 143(1) and (2) of the Constitution, 1992 is no legal justification to

[p.60] of [1999-2000] 2 GLR 50 clothe the Regional Tribunals with jurisdiction not provided for in article 143(1) thereof. After all, the High Courts, subject to the provisions of the Constitution, 1992 have original and appellate jurisdiction in all criminal matters, and are therefore legally competent to handle such appeal which fall outside the jurisdiction provided in article 143(1) of the Constitution, 1992. There would thus be no failure of justice.

In our opinion therefore, section 24(1) of Act 459 which vests in the Regional Tribunal concurrent original jurisdiction in all criminal matters with the High Court, is clearly inconsistent with the letter and spirit of the Constitution, 1992. And by article 1(2) thereof, same is null and void. It follows that on a true and proper interpretation of article 143(1) of the Constitution, 1992 Parliament had no power to provide that a Regional Tribunal had jurisdiction in all criminal matters.

As already noted, article 143(1) of the Constitution, 1992 empowers Regional Tribunals to try “such offences against the State and the public interest” as Parliament may by law prescribe. Is the word “and” coming in between “State” and “public interest” in the provision to be read as disjunctive or conjunctive? In other words, does it mean that any such offence should be against both the State and the public interest; or is it enough if the offence is either against the State or against the public interest? Generally the word “and” is conjunctive and “or” disjunctive. But to carry out the intention of the legislature, it may be necessary to read “and” in place of the conjunction “or” and vice versa: see Anisminic Ltd v Foreign Compensation Commission [1969] 1 All ER 208, HL. Thus, in R v Newbould [1962] 2 QB 102, Winn J held that the expression “local and public authorities” in section 4(2) of the Prevention of Corruption Act, 1916 did not “mean authorities which are both local and public . . . [but] authorities which are either local or public.” Again in John G Stein & Co Ltd v O’Hanlon [1965] AC 890, section 48(1) of the Mines and Quarries Act, 1954 provided:

“It shall be the duty of the manager of every mine to take, with respect to every road and working place in the mine, such steps by way of controlling movement of the strata in the mine and supporting the roof and sides of the road or working place as may be necessary for keeping the road or working place secure . . .”

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(The emphasis is ours.) Lord Reid said at 904 thereof, that he could not:

“. . . suppose that it was intended that in every case the manager must both attempt to control movement of the strata and provide support . . . the natural meaning of the words of the section is that one or other of the prescribed methods must be adopted in every case.”

In the instant case, we are not dealing with an ordinary Act of Parliament but a national Constitution. And unless there are compelling reasons for interpreting the word “and” in article 143(1) as being only conjunctive, it would be more desirable to interpret it liberally to encompass both conjunctive and disjunctive. Thus Regional Tribunals can try such offences against both the State and the public interest, or against the State or against the public interest. The “and” is therefore to be read as “and/or”.

The next issue then is whether the stealing of moneys belonging to a political party is an offence against the State or the public interest or both? Certainly, under our present system, a political party is not a state institution in the sense that it is not set up nor owned by the State. And therefore the theft of its money cannot be said to be a theft of state money. But is it an offence against the “public interest”?

Article 295(1) of the Constitution, 1992 defines “public interest” as follows:

“public interest” includes any right or advantage which enures or is intended to enure to the benefit generally of the whole of the people of Ghana.”

(The emphasis is ours.) It is significant to note that the word used in defining public interest is “includes” and not “means”. The word “means” when used in defining a word usually implies that the meaning of the word is restricted to the scope indicated in the definition section. On the other hand, the word “includes” is as noted by Lord Watson in Dilworth v Commissioner of Stamps [1899] AC 99 at 105-106, often used:

“in order to enlarge the meaning of word or phrases occurring in the body of the statute; and when it is so used these words or phrase must be construed as comprehending, not only such things as they signify according to their natural import but

[p.62] of [1999-2000] 2 GLR 50 also things which the interpretation clause declares that they shall include . . .”

In Robinson v Barton-Eccles Local Board (1883) 8 App Cas 798, HL it was held that the word in respect of which “includes” is used bears both its extended statutory meaning and its ordinary, popular and natural sense whenever that would be applicable. Again in Wagen-stein v Graham [1954] DLR 540 at 542, O’Holloran JA said:

“the latter word (‘includes’ in a statutory definition) in contrast to ‘means’ is inserted in an interpretation section to permit enlargement of the meaning of terms occurring in the body of the statute. It signifies that which is “included” is in addition to something else that is not specifically stated to be so included and may not need to be so include.”

It follows therefore that the word ‘includes’ used in defining public interest in article 295(1) does not restrict the meaning of “public” interest to the scope indicated in the definition. For as was correctly pointed out by the Attorney-General in his written submissions, public interest exists even if the interest is only of a section of the populace. Thus in Cartwright v Post Office [1969] 1 All ER 421, CA the placing of a telegraphic line on a person’s land in order to serve the households of two adjoining framers was regarded as of public interest in as much as an efficient farming industry was in the public interest. Again in Miller v Jackson [1977] 3 All ER 338 the interest of a village in preserving a cricket ground for recreation and enjoyment was seen as a public interest which should outweigh a private interest.

Now, the National Democratic Council whose money is alleged to have been stolen, is undoubtedly a political party registered under the Political Parties Law 1992 (PNDCL 281); and by that registration the party is deemed to have complied with the relevant provisions set out in the Constitution, 1992 and PNDCL 281. Article 55(1) of the Constitution, 1992 provides that:

“55. (1) Every political party shall have a national character, and membership shall not be based on ethnic, religious, regional or other sectional divisions.”

Again, under article 55(4) of the Constitution, 1992 every political party is required by law: “(a) to declare to the public, their revenues and assets and, the sources of those revenues and assets;

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(and) (b) to publish to the public annually their audited accounts” (The emphasis is ours.) Accordingly, section 19(1) of PNDCL 281 provides that every political party is obliged to maintain at its head or national office an accurate and permanent record of the following:

“(a) a list of its membership;

(b) any contribution, donation or pledge of contribution or founding members of the political party;

(c) a statement of its accounts, showing the sources of its funds and the name of any person who has contributed to the funds, membership dues paid, donations in cash or in kind and all the financial transactions of the political party which are conducted through, by or with the head or national office of the party;

(d) any property that belongs to the political party and the time and mode of acquisition of the property; and (e) such other particulars as the Commission may require with respect to the foregoing or any other matters.

Section 19 (3) requires every political party to have its accounts audited an published once every year; while section 19(4) empowers each and every member of the public to inspect the said audited accounts on the payment of a fee.

Why should our law impose such heavy burden on political parties, and further lay bare their affairs and finances to the view and scrutiny of the general public? The answer lies in the experiences of our past history and the recognition of the importance of political parties in democratic government worldwide. For, notwithstanding the minuses of political parties, it has now become universally accepted that political parties are indispensable mechanism for the conduct of truly democratic government. Lord Bryce, in his Modern Democracies 1921 points out that political parties are inevitable and that no free country has been without them. While he agrees that many people at different times have attacked the evils of the party system, yet no one has shown how representative government could be worked without them. For him, as quoted at page 107 of the Memorandum on the Proposals for a Constitution of Ghana (1968):

“The parties keep a nation’s mind alive, as the rise and fall of the sweeping tide freshens the water of long ocean inlets. Discussions within each party, culminating before elections in

[p.64] of [1999-2000] 2 GLR 50 the adoption of platform, brings certain issues to the front, defines them, expresses them in formulas which, even if tricky and delusive, fix men’s minds on certain points, concentrating attention and inviting criticism. So few people think seriously and steadily upon any subject outside the range of their own business interest that public opinion might be vague and ineffective if the party searchlight were not constantly turned on.”

For the above and other reasons, we the people of Ghana in our quest for good governance recognized, as noted in the preamble to the Constitution, 1992, that political parties would enable us achieve our objective of establishing “a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity.” And as the late Professor E A Boateng noted at page 37 of his book, Government and the People; Outlook for Democracy in Ghana (1996): “Because of the pre-eminence of their role in the political process, political parties have now become virtually the only basis for contesting political power in democratic countries. Their organization mode of operation, their finances and objectives are accordingly matter of widespread public interest.”

(The emphasis is ours.) It is therefore clear that from the elaborate legal requirements and the hopes and aspirations of Ghanaians in political parties to secure for them the earthly kingdom of heaven, political parties are an essential part of the framework of government, and that their operations and finances are controlled by the State and the public at large.

Accordingly, if the National Democratic Congress alleges that its ¢100 million had been stolen, the members of the party who are owners therefore, are obviously interested in ensuring that those at fault are brought to book. The very fact that the theft affects directly the members of the party, does not mean that no public interest exists in the theft. As already demonstrated, and further held in R v Sussex Confirming Authority; Ex parte Tamplin & Sons Brewery (Brighton) Ltd [1937] 4 All ER 106 at 112, per Du Parcq J: “It is fallacious to say that a condition is not in the public interest, or may not be in the public interest, if it is the case

[p.65] of [1999-2000] 2 GLR 50 that a great many of those persons who constitute the public are not directly affected by it; and it is equally fallacious to say that a condition cannot be in the public interest if a great many members of the public neither know nor care anything about it.”

At 108 Lord Hewart LCJ put it this way:

“If the condition is in the interests of a considerable part of the public, then it is true to say that it is in the interests of the public, of which that is a part. It would, I think, be fantastic to argue that a condition cannot be in the interests of the public unless it is in the interest of every part of the public. . . . If it is in the interests of the public concerned, then it is in the interest of the public as a whole.”

(The emphasis is ours.) But in the instant case, the alleged theft of the money is not in the interest of only the members of the NDC, but also the entire Ghanaian public who are by law entitled to inspect and take copies of the audited accounts of the NDC.

It cannot therefore be denied that under our law governing the establishment and running of political parties, the theft of money belonging to a political party is an offence against the public interest. Indeed the numerous press comments in the various newspapers and talk shows at the various FM radio stations on the alleged theft, testify to the general public interest in the matter.

Accordingly, we answer the issues posed for our determination as follows:

(i) On a true and proper interpretation of article 143(1), of the Constitution, 1992 Parliament had no power to provide that a Regional Tribunal had jurisdiction in all criminal matters.

(ii) Accordingly that part of section 24(1) of Act 459, which reads that “a Regional Tribunal shall have concurrent original jurisdiction with the court in all criminal matters” is inconsistent with the said 143(1) of the Constitution, 1992 and to the extent of such inconsistency, void. The remaining part of section 24(1), namely clauses (a) (b) and (c) are consistent with article 143(1) of the Constitution, 1992.

(iii) The stealing of moneys belonging to a political party is a crime against public interest. [p.66] of [1999-2000] 2 GLR 50 Consequently, the Regional Tribunal trying Constable Yebbi and Corporal Avalifo has jurisdiction under article 143(1) of the Constitution, 1992.

Determined and ordered accordingly.

LSNA