BRITISH AIRWAYS AND ANOTHER vs. ATTORNEY-GENERAL [1997-98] 1 GLR 55

CASES REFERRED TO

(1) Yiadom I v Amaniampong [1981] 1 GLR 3, SC.

(2) Republic v High Court Registrar Kumasi; Ex parte Yiadom I [1984-86] 2 GLR 606, SC. (3) Republic v High Court, Sekondi; Ex parte Slippi Mensah, Supreme Court, 24 May 1994, unreported.

(4) Bennetti v Tatton (1918) 88 LJKB 313.

(5) Postlewaite v Katz (1943) 59 TLR 248.

(6) Spokesman (Publications) Ltd v Attorney-General [1974] 1 GLR 88, CA (full bench). (7) Ennin v The Republic [1976] 1 GLR 326, CA.

(8) State v Adabo [1961] 1 GLR 321.

(9) Boddington v Wisson [1951] KB 606, CA.

(10) Republic v National Public Tribunal; Exparte Office of the Special Public Prosecutor [1993—94] 1 GLR 478, SC.

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NATURE OF PROCEEDINGS

APPLICATION by the plaintiff invoking the supervisory jurisdiction of the Supreme Court under articles 2(1)(a) and 130 of the Constitution, 1992 for, inter alia, a declaration that their prosecution under the External Companies and Diplomatic Missions (Acquisition or Rental of Immovable Property Law, 1986 (PNDCL 150) PNDCL 150 after it had been repealed by the Statute Law Revision Act, 1986 (Act 516) was unlawful. The facts are sufficiently stated in the judgment of Bamford-Addo JSC.

COUNSEL

J B Quashie-Idun for the plaintiffs-applicants.

J C Amonoo-Monney, Director of Public Prosecutions, for the Republic-respondent.

JUDGMENT OF BAMFORD-ADDO JSC.

The plaintiffs invoked the original jurisdiction of this court under articles 2(1)(a) and 130 of the Constitution, 1992 for the following reliefs:

“(a) A declaration that the provisions of the External Companies and Diplomatic Missions (Acquisition or Rental of Immovable Property) Law, 1986 (PNDCL 150) are inconsistent with the provisions of articles 17(1) and (2), 18(2), 36(4) and 125(3) of the Constitution, 1992 of the Republic of Ghana and consequently void for all legal and practical purposes as from 7 January 1993.

(b) A declaration that the prosecution by the defendant of the plaintiffs in the Circuit Tribunal, Accra under the said PNDCL 150 by summons issued on 27 of November 1995, with reference No RO 97/95, is unlawful.

(c) An order directed at the defendant herein requiring him to discontinue the said prosecution (reference No 96/95) in the Circuit Tribunal, Accra and to take no further steps towards prosecuting the plaintiffs under PNDCL 150.”

The question is whether the plaintiffs have a legitimate course of action in the case.

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The Supreme Court in article 130(1)(a) of the Constitution, 1992 has exclusive original jurisdiction in all matters relating to the enforcement or interpretation of the Constitution. Article 2(1) of the Constitution, 1992 also provides:

“2. (1) A person who alleges that—

(a) an enactment or anything contained in or done, under the authority of that or any other enactment; or (b) any act or omission of any persons; is inconsistent with or, is in contravention of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

(The emphasis is mine.) And article 1(2) of the Constitution, 1992 provides:

“(2) This Constitution shall be the Supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be [null and] void.”

(The emphasis is mine.) The original jurisdiction of this court under article 2(1) of the Constitution, 1992 consists in the Supreme Court declaring any enactment or law found to be inconsistent with any provision of the Constitution, 1992 null and void. An impugned law or enactment, therefore must be an existing law within the laws specified in article 11(1)(d) and (4) of the Constitution, 1992. The External Companies and Diplomatic Missions (Acquisition or Rental of Immovable Property) Law, 1986 (PNDCL 150) which the plaintiffs seek to declare unconstitutional, a non-existent or a repealed law, cannot be voided by this court as it no longer exists. It was repealed by the Statute Law Revision Act, 1966 (Act 516) which Act repealed certain enactments includings[sic](1) PNDCL 150, the law under consideration in this case. The repeal of PNDCL 150 at once removed the basis of the plaintiffs’ claim in relief (a) The plaintiffs claimed three reliefs from this court, namely (a), (b) and (c) as set out above. The plaintiffs were charged with criminal offences under PNDCL 150 in December 1995 per summons No RO 96/95 as appearing in

[p.60] of [1997-98] 1 GLR 55 the charge sheet. During their trial at the Circuit Tribunal Accra, Act 516 was passed to repeal among others PNDCL 150 and therefore this court has no existing law before it which can be tested or voided for unconstitutionality. The court cannot decide a non-existent controversy nor engage itself in a futile academic exercise of no consequence. For this reason, the plaintiffs’ action in respect of their relief (a) would be dismissed as the court would not adjudicate a case in a vacuum. In the words of the court in the case of Nana Yiadom I v Nana Amaniampong [1981] GLR 3 at 8, SC: “It would, we think, be a waste of mental effort and thoroughly pointless exercise.” In view of the foregoing, I would dismiss relief (a) sought by the plaintiffs.

This takes me to the other reliefs wherein the plaintiffs seek an order requiring the discontinuation of their prosecution in case No RO 96/95 pending before the Circuit Tribunal, Accra for offences under the repealed PNDCL 150. The question is whether this court has jurisdiction or power to make such as an order as requested by the plaintiffs, and, if so, whether this is a deserving case for the grant of this relief?

In my opinion, the answer to this question is Yes! The Supreme Court under its supervisory jurisdiction contained in article 132 of the Constitution, 1992 is clothed with jurisdiction to issue orders and directions to any lower court or tribunal when the interest of justice so demands. Article 132 of the Constitution, 1992 provides:

“132. The Supreme Court shall have supervisory jurisdiction over all courts and over any adjudicating authority and may, in the exercise of that supervisory jurisdiction issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power,”

(The emphasis is mine.) And article 161 of the Constitution, 1992 provides that: ‘“supervisory jurisdiction’ includes jurisdiction to issue writs or orders in the nature of habeas corpus, certiorari, mandamus, probihition[sic](2) and quo warranto.” These articles provide that, apart from the prerogative writs, other orders and directions can be made in the exercise of this court’s supervisory jurisdiction over all other courts, in appropriate cases. The plaintiffs, the

[p.61] of [1997-98] 1 GLR 55 accused persons in the criminal suit, raised the unconstitutionality of PNDCL 150 before the trial circuit tribunal and applied to the trial court for the reference of the issue to the Supreme Court for interpretation of that Law before its repeal. The circuit tribunal refused the application and adjourned the case for the trial to continue at an adjourned date. Whereupon the plaintiffs invoked the original jurisdiction of the Supreme Court for the above stated reliefs.

I have already dismissed relief (a) as stated above. Reliefs (b) and (c), however, are in a different category altogether and ought be considered under different principles under article 132 of the Constitution, 1992 dealing with the supervisory jurisdiction of this court as stated in articles 132 and 61 of the Constitution, 1992. This jurisdiction ought to be exercised in appropriate and deserving cases in the interest of justice. In the exercise of that supervisory jurisdiction, the Supreme Court may issue prerogative orders, as well as any appropriate orders and directions, to lower courts to ensure the proper, lawful, and fair administration of justice in any matter which comes before it. This is the final court of the land, a court in which is reposed the duty of interpreting the Constitution, 1992 as well as safeguarding the Constitution, including protecting and enforcing the guaranteed fundamental human rights and supervising all lower courts. It is therefore our constitutional duty to prevent or remedy any breaches of the human rights of persons who complain of such breaches or intended breaches in any matter before us, by the exercise of our supervisory jurisdiction. A timely intervention by this court, is therefore required in this case, where the plaintiffs’ rights to liberty is being jeopardised or threatened. This is a necessary and efficacious way of enforcing the constitutional provisions equitably, expeditiously and effectively.

For this reason, it in my opinion that whenever in the course of any matter brought to this court it is found that there exists in any lower court any matter which would in the long run result in injustice or in illegality, it is the duty of the court to at once intervene, and issue orders and directions, with a view to preventing such illegalities or injustice even before they occur. This case appears to me to be one such case, which requires our intervention by the granting of the other two reliefs requested by

[p.62] of [1997-98] 1 GLR 55 the plaintiffs, through the exercise of our supervisory jurisdiction under article 132 of the Constitution, 1992. In the case of Republic v High Court Registrar, Kumasi; Ex parte Yiadom [1984-86] 2 GLR 606, SC, the Supreme Court discussed the scope and limits of article 119 of the Constitution, 1979 dealing with the supervisory jurisdiction of the Supreme Court, as stated in the headnote, holding (3) thereof. The court specified two types of supervisory jurisdiction of the court thus:

“(3) The supervisory jurisdiction of the Supreme Court under article 119 of the Constitution, 1979 consisted of two parts: the first part ending at the semi-colon, conferred supervisory powers generally, the second part conferred general supervisory powers extending to and including prerogative writs.

As far as prerogative writs were concerned, there was no difficulty about the scope of the court’s jurisdiction: countless precedents and pronouncements could be resorted to to guide the court, if necessary, on the grounds upon which application for prerogative writs might be considered. The same could not be said of the general supervisory powers of the Supreme Court. No general principles seemed to be readily available for guidance. The court did not think such general principles were desirable—each case ought to be considered on its merits, all relevant circumstances being taken into consideration.”

(The emphasis is mine.)

Article 119 of Constitution, 1979 is in pari materia with articles 132 and 161 of the Constitution, 1992. The Supreme Court in the case of Republic v High Court Sekondi; Ex parte Slippi Mensah, Supreme Court, 24 May 1994, unreported, adopted the reasoning and principles in the Yiadom I case (supra). In the Slippi Mensah case my learned brother Charles Hayfron-Benjamin JSC considered the effect of the Ex parte Yiadom I case and article 132 of the Constitution, 1992 and delivered himself of the following dictum:

“Thus the distinction made in Ex parte Yiadom I (supra); has gained constitutional acceptance. The purpose of the

[p.63] of [1997-98] 1 GLR 55 constitutional provision is to enable the Supreme Court—and the High Court—to control the actions of all others[sic](3) courts in matters not necessarily involving the issuance of prerogative writs and to issue such orders and give such direction as will ensure fairness and the expeditious disposal of cases.” I would rely on that case in considering reliefs (b) and (c) of the plaintiffs’ claim.

While it is true that a court will not assume jurisdiction if it should not, it is equally true that it must take jurisdiction if it should. Therefore this court has to attend to matters which fall within its powers and issue appropriate orders and directions in deserving cases, each case depending, of course, on its merits. It would be unfair and unjustified and an abdication of duty if this court in a deserving case were to neglect to correct clear injustices and illegalities existing in a lower court when relief is requested from the court. No self-imposed limitation on our wide supervisory powers clearly granted by the Constitution, 1992 should be allowed to prevent us from exercising our powers in the supreme interest of justice, nor should justice be sacrified[sic](4) on the altar of technicalities. In this case, to require the plaintiffs to go through their futile trial when they can neither be convicted nor punished in the absence of any written law defining an offence or providing punishment for same, in view of the repeal of PNDCL 150, would be a negation of our duty and a condonation of an illegality which if not stopped, would result in the interfence[sic](5) with, and breach of, the plaintiffs’ liberty and rights.

Even before 7 January 1993 when the Constitution, 1992 became effective, section 8 of the Criminal Code, 1960 (Act 29) provided that: “8. No person shall be liable to punishment by the common law for any act.” The exception to this rule is in the case of contempt. It means that criminal offences must be so designated in a written law. This rule has been given constitutional effect in article 19(11) of the Constitution, 1992 thus: “(11) No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.” As at now, the circuit tribunal, though PNDCL 150 has been repealed, still continues trying an offence which is not defined in any existing law when the plaintiffs can neither be convicted nor punished by

[p.64] of [1997-98] 1 GLR 55 the court. Wherein lies the justification then in allowing such a futile to continue at the circuit tribunal, contrary to article 19(11) of the Constitution, 1992, to the jeopardy of the plaintiffs herein?

The defendants sought to justify the continuation of the criminal trial by resort to the provisions of section 8 of the Interpretation Act, 1960 (CA 4) dealing with the effect of a repeal, revocation or cesser of an enactment, but in view of article 19(11) of the Constitution, 1992, section 8 of CA 4 is inapplicable to the criminal cases pending against the plaintiffs. It is unconstitutional today to convict or punish any person unless a written law defines the offence or provides sanctions for same as required under article 19(11) of the Constitution, 1992, and the criminal case against the plaintiffs falls within the prohibition in article 19(11). For this reason, the provision of section 8(e) of CA 4 is inapplicable to the criminal matters pending against the plaintiffs at the circuit tribunal.

Section 8 of (CA 4) states:

“8. (1) The repeal or revocation of an enactment shall not—. . .

(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked.”

This provision is now inconsistent with article 19(11) of the Constitution, 1992 in respect of criminal offences contained in a repealed law such as PNDCL 150. It would have been a different matter if the plaintiffs had been convicted before the repeal of PNDCL 150 by Act 516 or if Act 516 had saved offences committed before the repeal of PNDCL 150, but Act 516 was silent on this; it merely repealed PNDCL 150, and consequently the provision of article 19(11) of the Constitution, 1992 came into play in respect of the criminal case pending against the plaintiffs.

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It should be noted, however, that in respect of civil matters, the consequences of a repeal in section 8 of CA 4 still applies. Article 19(11) of the Constitution, 1992 deals only with criminal cases in which the accused persons are yet to be tried, convicted and sentenced.

The liberty of the individual is an important guaranteed human right. However, this liberty is subject to certain limitations listed in article 14(1)(a)-(g) of the Constitution, 1992. Article 14(1)(a) provides that:

“14. (1) Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law—

(a) in execution of a sentence or order of a court in respect of a criminal offence of which he has been convicted. . .”

As can be seen, the personal liberty of the plaintiffs would be limited only where they have been convicted and sentenced for a criminal offence designated as such in a written law and in accordance with law. If therefore the Constitution, 1992 prohibits their conviction or sentence, they should not be jeopardised by a futile and illegal trial, because to do so, would amount to an interference with their right to personal liberty. Whenever any of the fundamental human rights and freedoms are breached or even threatened, it becomes the sacred duty of the courts to prevent such breaches timeously, more so in the case of the right to personal liberty, without which the other rights cannot be enjoyed in the fullest measure as envisaged in the Constitution, 1992.

It is not enough that these rights exist, they must in practice be fully enjoyed with the aid and blessing of the courts. The Supreme Court which is the highest and the only court invested with original jurisdiction to interpret and enforce the Constitution, 1992 is invested with wide powers to enable it perform its duties, and when its aid is sought, it should in the interest of justice willingly issue preventive or corrective orders in deserving cases. On the facts of this case, I am of the view that the plaintiffs are entitled to reliefs (b) and (c). However, the supervisory jurisdiction of this

[p.66] of [1997-98] 1 GLR 55 court under article 132 of the Constitution, 1992 extends only over lower courts not the defendant Attorney-General in this case.

I would therefore in the interest of justice order the trial Circuit Tribunal, Accra to discontinue the trial of the plaintiffs in view of article 19(11) of the Constitution, 1992 in the criminal case No RO 96/95 now pending before the said court and to strike out that case. This is without prejudice to the civil matters based on the same facts, the appeal of which is pending at the Court of Appeal.

JUDGMENT OF ACQUAH JSC.

In support of the erudite opinion just read by my noble and respected sister Bamford-Addo JSC, I would like to comment briefly on the reliance by the defendant on section 8 of the Interpretation Act, 1960 (CA 4) to sustain the prosecution of the plaintiffs at the Circuit Tribunal, Accra.

The records before us disclose that the plaintiffs face two counts of refusal to pay rent in convertible currency in respect of immovable property contrary to sections 4, 9(1) and 9(3) of the External Companies and Diplomatic Missions (Acquisition or Rental of Immovable Property) Law, 1986 (PNDCL 150). The charge sheet is dated 6 December 1995 and the particulars of offence against the plaintiff British Airways, read:

“British Airways, from October 1986 to 1995 in Accra in the Greater Accra Region being an external company and a lessee under a lease in respect of immovable property situated in Ghana, namely house No D561/4 Kojo Thompson Road, Tudu, Accra, refused to pay the rent in respect of the said property in convertible currency.”

The particulars of offence against Tim Isaac also reads:

“Tim Isaac in 1995 in Accra in the Greater Accra Region, being an officer of an external company, namely the manager of British Airways which is a lessee under a lease in respect of immovable property situated in Ghana, namely house No D561/4 Kojo Thompson Road, Tudu, Accra refused to pay rent in respect of the said property in convertible currency.”

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The case was presented to the circuit tribunal on 6 December 1995, and the court thereafter started taking evidence. In the course of the trial, PNDCL 150 was repealed by the Statute Law Revision Act, 1996 (Act 516). The plaintiffs thereupon filed the instant writ challenging the constitutionality of PNDCL 150 and their prosecution thereupon, and a further order to terminate the said prosecution. The Attorney-General, resisting the plaintiffs’ action relied on section 8 of CA 4. However, having regard to the provisions of article 19 (11) of the Constitution, 1992, can section 8 of CA 4 sustain the prosecution of the plaintiffs from the date of the coming into force of Act 516?

Section 8 of CA. 4 reads:

“8. (1) The repeal or revocation of an enactment shall not—

(a) revive anything not in force or existing at the time when the repeal or revocation takes effect; or (b) affect the previous operation of the enactment or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed thereunder; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment, and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked.

(2) When an enactment expires, lapses or otherwise ceases to have effect this section shall apply as if the enactment had not been repealed or revoked.”

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Now, section 8 of CA 4 is a general statutory saving as to the effect of repeals. Its general effect is to preserve existing rights and obligations and the previous operation of repealed or revoked enactments. Section 8 (2) of CA 4 extends the rules to cases where the enactment ceases to have effect otherwise than by express repeal or revocation. Now, having regard to the present trial of the plaintiffs at the Circuit Tribunal, Accra and the stand of the defendant, the relevant provision is section 8(1)(e) of CA 4 which refers to presentation of proceedings in respect of a penalty or punishment And by this provision, a person can now be prosecuted under a repealed enactment: see Bennett v Tatton (1918) 88 LJKB 313; and Postlewaite v Katz (1943) 59 TLR 249. But then article 19 of the Constitution, 1992 dealing with the right to a fair trial, provides in its clause 11 thereof as follows: “(11) No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.”

Now, the provisions of this article 19(11) of the Constitution, 1992 (hereinafter referred to as the “article 19 (11) formulation”) is one of the various formulations of the principle of legality underlying the administration of justice in democratic countries. There is another formulation of the principle in article 19 (5) of the Constitution, 1992 (hereinafter referred to as the “article 19 (5) formulation”) which reads: “(5) A person shall not be charged with or held to be guilty of a criminal offence which is founded on an act or omission that did not at the time it took place constitute an offence.” In article 8 of the French Declaration of Rights of Man and of the Citizen (1789), the principle was formulated in the following words: “8. The law should impose only such penalties as are absolutely and evidently necessary and no one ought to be punished but by virtue of a law promulgated before the offence, and legally applied.” Indeed, before the promulgation of the Constitution, 1992 our Criminal Code, 1960 (Act 29) provided in section 8 thereof, the following: “8. No person shall be liable to punishment by the common law for any act.” The only exception, as provided in section 10 of Act 29 is the power of a court to punish for contempt of court. And in the United Kingdom, A V Dicey in his book, Introduction to the Study of the Law of the Constitution (10th ed), boasted at p 202 thus: “Englishmen are ruled by the law, and by the law alone; a man may with us be

[p.69] of [1997-98] 1 GLR 55 punished for a breach of law; but he can be punished for nothing else.”

Now, by the principle of legality as explained by Granville Williams in his book, Criminal Law, The General Part (2nd ed), the individual must be able to ascertain beforehand how he stands with regard to the criminal law; otherwise to punish him for breach of that law is purposeless cruelty. Punishment in whatever form it takes is a loss of rights or advantages consequent on a breach of law. When it loses this quality, it degenerates into an arbitrary act of violence that can produce nothing but bad social effects. Opinions about what people ought to do may differ, but opinions about what people are obliged to do must be capable of being ascertained by legal research. This, in brief, is the substance of the principle of legality which is expressed in the Latin maxim nullum crimen sine lege, nulla poena sine lege, that is, there must be no crime or punishment except in accordance with a fixed predetermined law. The principle involves rejecting “criminal equity” as a mode of extending the law.

The principle of legality, though found in early sayings and legal writings, was seriously formulated in article 8 of the French Declaration of the Rights of Man, quoted supra, and reappeared in the French Constitution of 1791. In Germany it was introduced to the Bavarian Code of 1813, stood at the head of the German Penal Code of 1871, and was guaranteed by the Weimar Constitution. The rule became a democratic platitude and was adopted in a number of international declarations and national Constitutions. The American Constitution of 1789, art 1, s 9(3) expressed it by forbidding ex post facto laws. The principle was laid down in article 11 (2) of the Universal Declaration of Human Rights, 1948, and repeated in article 7 of the European Convention on Human Rights.

Now, the article 19(5) formulation of the principle seeks to ensure that the offence alleged to have been committed by any individual was legally in existence (that is, there must be a law declaring the act an offence) at the time it was committed before the individual can be charged or convicted of it. If at the time the individual did the act, there was no law rendering that act an offence, it would be against the principle of legality to subsequently pass a law rendering that past act, an offence. As [p.70] of [1997-98] 1 GLR 55

Hobbes aptly put it in his book, The Leviathan (1651), chapts 27 and 28: “No law made after a fact done, can make it a crime … For before the law, there is no transgression of the law.” The article 19(5) formulation therefore relates to the time the act was committed and not what happens thereafter.

What then would be the position when the law in force at the time the offence was committed, is later repealed? It is in answer to this question that the article 19(11) formulation becomes relevant. The article 19(11) formulation is concerned with the legality of the investigation and subsequent prosecution of the offence up to and including the conviction. Under section 8(1)(e) of CA 4, once an individual has committed an offence under a law, the subsequent repeal of that law would not bar investigation and prosecution of the offence under that repealed law. But then the repealing law may either repeal entirely the law creating the offence together with the punishment, or the repealing law itself or any other enactment may save the offence and the punishment. The former situation will result in leaving no existing law to support the offence and the punishment. Whereas the latter situation will result in saving the enactment constituting the law, to justify continued investigation and prosecution of the offence. In other words, in the latter situation, the saving law will be a written law within the context of the article 19(11) formulation to satisfy the requirement in that formulation. Whereas the former situation is caught by the prohibition in the article 19(11) formulation since there is no saving law to justify the continued investigation and prosecution of the offence. For the article 19 (11) formulation in effect requires that at every stage of the investigation and prosecution of an offence, there must be a written law creating the offence and prescribing the punishment for it.

Now, for a fuller appreciation of the import of the article 19(11) formulation, I will once more quote the article: “(11) No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.” (The emphasis is mine.) Note that the verb used is, is and not was. If it had been was, the formulation would have referred to the past and not the present. The use of “is” clearly shows that the formulation looks beyond the time of the commission of the offence to ensure the legality of what happens thereafter. If at

[p.71] of [1997-98] 1 GLR 55 any stage before the conviction, the law creating the offence and the punishment is totally repealed without any saving, the investigation and proceedings cannot be continued.

Now, article 19(5) and (11) by virtue of article 1(2) of the same Constitution, 1992, overrides section 8 (1)(e) of CA 4 in respect of criminal investigations and trials. The two formulations, therefore represent the current legal position, and article 19(11) of the Constitution, 1992 applies to the pending criminal trial of the plaintiffs at the Circuit Tribunal, Accra.

There is no doubt that this criminal trial had not concluded. And Act 516 which is stated to be “an Act to repeal certain statutes that are no longer applicable or have become spent” repealed the entire PNDCL 150, without saving either the offence nor the punishment for it. Neither is there any other legislation re-enacting the offence and punishment in PNDCL 150. The position, therefore, is that as from 13 September 1996 when Act 516 received Gazette notification, the offence the plaintiffs were facing at the Circuit Tribunal, Accra ceased to be defined and the punishment thereof equally ceased to be prescribed in any written law. The continued prosecution of the plaintiffs for the said offence will therefore be inconsistent with article 19(11) of the Constitution, 1992 and same can therefore not be legally permitted.

It is of course important to point out that both article 19(5) and (11) of the Constitution, 1992 apply to criminal offences and not civil wrongs and liabilities. Accordingly, as far as the civil litigation between the property owners and the plaintiffs are concerned, the provisions of section 8 of CA 4 are of full force and effect.

JUDGMENT OF ATUGUBA JSC.

The facts of this case have been amply related in the judgments that have preceeded mine and I do not need to repeat them in detail.

The plaintiffs by their writ impugn the constitutionality of the External Companies and Diplomatic Missions (Acquisition or Rental of Immovable Property) Law, 1986 (PNDCL 150). This writ was filed in this court on 30 July 1996. The law in question suffered repeal on 8 August 1996 by the Statute Law Revision Act, 1996 (Act 516).

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The reliefs claimed by the plaintiffs however include:

“An order directed at the defendant herein requiring him to discontinue the said prosecution (Reference No RO 97/95) in the Circuit Tribunal, Accra, and to take no further step towards prosecuting the plaintiffs under PNDCL 150.”

The law having been repealed, can it still be declared unconstitutional and therefore void?

In Spokesman (Publications) Ltd v Attorney-General [1974] 1 GLR 88 at 92, CA the Court of Appeal said: “A change in the existing law does not, as a rule, affect accrued rights, unless there are plain words to the contrary in the enactment affecting the change.” There the plaintiffs sued in the Supreme Court created under the Constitution, 1969 for a declaration that certain provisions of the Criminal Code, 1960 (Act 29) were inconsistent with and contravened some fundamental human rights provisions of the Constitution, 1969. However, before the action could be heard and determined that Constitution was suspended by section 2 (1) of the National Redemption Council Proclamation, 1972. The Supreme Court itself was abolished by the Courts (Amendment) Decree, 1972 (NRCD 101). The plaintiffs’ action was eventually dismissed by the full bench of the Court of Appeal created by NRCD 101 for want of jurisdiction. The court, however, observed that had the Supreme Court not been abolished, the plaintiffs could have prosecuted their action since their right to sue had already accrued before the suspension of the Constitution, 1969. However, having regard to the result reached in this case, I do not consider it useful to consider the constitutionality or otherwise of the said impugned law. As Apaloo JA (as he then was) said in Ennin v The Republic [1976] 1 GLR 326 at 334, CA:

“It is not in fact necessary to decide this case on any constitutional grounds … Perhaps in this, we might take a cue from the United States Supreme Court which has a philosophy that while it has a duty to decide constitutional questions, it must escape that duty if possible. As Frankfurter put it in his Law and Politics 25 (1939) . . .

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‘But the Court has improved upon the common law tradition and evolved rules of judicial administration especially designed to postpone constitutional adjudications and therefore constitutional conflicts until they are judicially unavoidable. The Court will avoid decision on grounds of constitutionality if a case may go off on some other ground, as, for instance, statutory construction.’’’

In this case, the impugned law having been repealed, it has certain terminal effects on the criminal case pending before the Circuit Tribunal, Accra, the trial of which it is the plaintiffs’ target to escape. This remedy can be given them by directing the circuit tribunal to stop the trial of the plaintiffs altogether on some grounds other than constitutionality. The real question in this case, therefore, is what is the legal effect of the repeal on the criminal case pending before the trial Circuit Tribunal, Accra?

I have considered closely the provisions of section 8(1) of the Interpretation Act, 1960 (CA 4) and have come to the conclusion that they cannot save the criminal proceedings in the Circuit Tribunal, Accra against the plaintiffs. The pertinent provisions thereof, namely section 8(1)(c), (d) and (e) relate to liability, penalty, punishment etc but each of them is governed by the words “acquired, accrued or incurred thereunder,” respectively. While a person who contravenes section 9(1) of PNDCL 150, commits an offence, under subsection (3) “such person or body shall be liable upon summary conviction to a fine not exceeding ¢100,000 or to a term of imprisonment not exceeding two years or to both.” It is clear from this that the accused can only incur the liability or punishment therein specified “upon summary conviction.” Since the proceedings in this case show that the plaintiffs have not yet been convicted of their charges, they have incurred no liability or punishment which can be enforced in any legal proceeding or remedy in respect thereof. Section 9 of CA 4 does not apply since the repealing Act has not substituted another enactment by way of “amendment, revision or consolidation.”: see State v Adabo (Kofi) [1961] GLR 321, SC. Nor does any other provision of the said CA 4 apply to the proceedings at the circuit tribunal where they pended before the said repeal was effected: see Boddington v Wisson [1951] K B 606, CA where the English Court of Appeal

[p.74] of [1997-98] 1 GLR 55 applying the provisions of section 38(2) of the English Interpretation Act, 1889 ((52 & 53 Vict, c 63) which are in pari materia with our local CA 4, held that, where no prior right, obligation, etc existed before the repealing statute was enacted, section 38(2) did not apply to the case at all.

If, however, the plaintiffs had been convicted on their charges but not sentenced before the repeal in this case then, as I said before, section 8(1) of CA 4 would have saved the proceedings and they could then be sentenced. In that event, I would not say that the conviction would have contravened the provisions of article 19(11) of the Constitution, 1992 which provides: “(11) No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.” This is because where section 8(1) of CA 4 applies the legal proceeding, remedy, liability, etc may be pursued “ … as if the enactment had not been repealed or revoked.” The effect of this is that, toties quoties as the section applies, the enactment in question, fictione juris, is kept alive and remains lex scripta to the satisfaction of article 19 (11) of the Constitution, 1992. So Russell on Crime (12th ed, 1964), Vol 1, at p 69 states as follows:

“Repealing Acts, however sometimes contain clauses for the purpose of keeping alive the statutes they repeal, so far as they relate to offences committed against them, and in repeals after 1889 there is a presumption to this effect.”

Then, in the footnote 43, he refers to the Interpretation Act, 1889, s 38(2) which I have already indicated is in pari materia with section 8(1) of out local CA 4.

In this case, with section 8(1) of CA 4 out of the way, the common law remains and to the effect that a repealed Act is regarded, in the absence of a contrary provision, as having never existed except as to past and closed matters or transactions. Since PNDCL 150 has nothing to the contrary of this rule, it follows that the charges against the plaintiffs at the Circuit Tribunal, Accra are dead and must be buried.

In a compelling case, a court may take up judicial arms against an obvious injustice. It is therefore not unknown that people who have never appealed against their convictions and sentences have

[p.75] of [1997-98] 1 GLR 55 been, in fitting cases, acquitted and discharged. So in the cases of Republic v High Court Sekondi; Ex parte Slippi Mensah, Supreme Court, 24 May 1994, unreported, and Republic v National Public Tribunal; Ex parte Office of the Special Public Prosecutor [1993-94] 1 GLR 478, SC this court gave directives in respect of matters pending in lower courts to secure the ends of justice. In the latter case, the procedure by which the special public prosecutor invoked the jurisdiction of this court for directives to be issued to the erstwhile National Public Tribunal to stop it from exceeding its jurisdiction was severely criticised by Adade JSC as being most irregular and without locus standi, but the court nonetheless granted the reliefs sought in order to avoid injustice.

For these reasons, I concur in the order to the Circuit Tribunal, Accra in respect of the criminal charges against the plaintiffs herein since I do not think that this court can compel the Attorney-General in whom plenary powers of initiating and conducting all cases on behalf of the State are vested to discontinue the same.

As regards the civil proceedings, they are not before this court in any way, but for purposes of guidance, and since the matters are still sub judice, I will merely express the opinion that if the obligations therein were incurred before the repeal of PNDCL 150 then they are saved by section 8(1) (c) and (e) of CA 4.

JUDGMENT OF AMPIAH JSC.

I agree.

JUDGMENT OF KPEGAH JSC.

I agree with the reasoning of my learned brother Acquah JSC. I have nothing useful to add.

DECISION

Judgment for the plaintiffs in part.

Endnotes

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