OJO AND ANOTHER vs. THE REPUBLIC [1999-2000] 1 GLR 169

CASES REFERRED TO

(1) R v Gilbert [1975] 1 WLR 1012; [1975] 1 All ER 742; [1975] Crim LR 179; sub nom R v Gilbert (Arthur Ernest) (1974) 60 Cr App R 220, CA.

(2) Djaba v The Republic, Court of Appeal, 15 December 1994, unreported.

(3) Republic v Adu-Boahen [1993-94] 2 GLR 324, SC.

(4) Yendi Skin Affairs, In re; Yakubu II v Abudulai [1984-86] 2 GLR 226, CA.

(5) Nye v Nye [1967] GLR 76, CA (full bench).

(6) Food Specialities (Ghana) Ltd v Ramia [1989-90] 2 GLR 324, SC.

(7) Amoasi III v Twinto [1987-88] 1 GLR 4, SC.

NATURE OF PROCEEDINGS

APPEAL by the appellants to the Court of Appeal from the decision of the erstwhile national appeal tribunal sentencing them to ten years’ imprisonment upon their conviction for narcotic drugs offences under sections 1(1) and 2(1) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236). The facts are sufficiently stated in the judgments of Brobbey and Benin JJA.

COUNSEL

Dankwa Wiafe for the appellants.

J C Amonoo-Monney, Director of Public Prosecutions (with him Mrs Acquah, State Attorney) for the Republic.

JUDGMENT OF BENIN JA

Benin JA delivered the first judgment at the invitation of Wood JA. The appellants were among four persons who were arraigned before the erstwhile National Public Tribunal in connection with narcotic drug offences. They were found guilty, convicted and sentenced to

[p.172] of [1999-2000] 1 GLR 169 the mandatory minimum sentence of ten year’s imprisonment. That was on 6 July 1993. On 8 December 1997 this court, differently constituted, granted the appellant’s application for extension of time within which to appeal. Pursuant to the said order the appellants filed their notice of appeal raising just one legal ground which reads: “That the tribunal erred in law in failing to take into account article 14 (6) of the Constitution, 1992 of the Republic of Ghana”.

Article 14 (6) of the Constitution, 1992 provides:

“(6) Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.”

It is the contention of counsel for the applLants that if this constitutional provision had been taken into account, the sentence imposed would have begun to run from the date they were first taken into lawful custody, which in their case was 14 February 1991. And the trial court must say that it has taken this constitutional provision into account in imposing the sentence.

Counsel for the Republic, however, argued that by section 315(2) of the Criminal Procedure Code, 1960 (Act 30) the court cannot impose a retroactive sentence. And in respect of the narcotic offence with which the appellants were charged, the minimum sentence is ten years, so the trial court had no discretion in the matter other than to impose a minimum sentence of ten years from the date of their conviction. So that all that this court can do is to affirm the sentence which was not illegal.

Section 315(2) of Act 30 provides: “A sentence of imprisonment shall commence on and include the whole of the day on which it is pronounced.” Clearly, this provision does not entitle a court to back-date a sentence. Thus a court cannot impose a sentence today and say it should take effect from yesterday. Article 14 (6) of the Constitution only enjoins a court before sentencing a convicted person to take into account the period he has spent in lawful custody. So that if the court is mindful to impose six months and the convict has spent two months in lawful custody, the court has to impose four months to start from the date of the conviction. The court is not

[p.173] of [1999-2000] 1 GLR 169 entitled to impose six months and then say it should start from the date the convict was taken into lawful custody, ie two months back.

Indeed, provisions similar to section 315 (2) of Act 30 and article 14(6) of the Constitution, 1992 existed in the English Criminal Justice Act of 1967. Hence in R v Gilbert (Arthur Ernest) (1974) 60 Cr App R 220, CA it was held that the expression that a sentence takes effect from the beginning of the day on which it is imposed unless the court otherwise directs did not allow the court to ante-date a sentence. It may be observed that under the English provision the court could otherwise direct when the sentence should start, yet it was held that it did not include ante-dating it; the court may direct the sentence to begin on a later day.

The relevant provisions under the English Act are as follows:

“67. (1) The length of any sentence of imprisonment imposed on an offender by a court shall be treated as reduced by any relevant period. And ‘any relevant period’ is defined as follows:

67(1) (A)— (a) any period during which the offender was in police detention in connection with the offence for which the sentence was passed, or (b) any period during which he was in custody (I) by reason only of having been committed to custody on order of court made in connection with any proceedings relating to that sentence or the offence for which it was passed or any proceedings from which those proceedings arose.”

It is to be seen that under these English provisions, which do not apply here anyway, the sentence imposed is automatically treated as reduced if the convict has spent some period in lawful custody, this enables the reduced sentence to commence on the day of conviction.

But Article 14(6) of the Constitution, 1992 parts company with the English provisions in this sense that under our law it is the judge who has to take the period spent in custody into account before imposing sentence. So that the moment the court imposes a term of imprisonment which by section 315 (2) of Act 30 takes effect from

[p.174] of [1999-2000] 1 GLR 169 the date of conviction, the court must be presumed to have imposed the sentence in the light of the law, namely article 14(6) of the Constitution, 1992. The court could not have imposed the mandatory minimum ten years’ imprisonment and say it should run from the date the appellants were first taken into lawful custody, for that would clearly be contrary to law, namely section 315 (2) of Act 30. It could not also have imposed eight years’ imprisonment in view of the two years spent in lawful custody for such a sentence would also be wrong in law in the light of the mandatory provisions of the enactment under which the appellants were charged. I think much as it is desirable for the trial court, in such circumstances where the accused were in custody before their conviction, to state that it had considered article 14(6) of the Constitution, 1992 before sentence, yet failure to do so is not fatal in a case like this where the minimum sentence is fixed by law to take effect from the date of conviction. I could foresee a problem arising in offences where no mandatory minimum sentence is set out by law and the trial court fails to state whether or not it considered this constitutional provision. For the avoidance of doubt, trial courts are directed to take article 14(6) of the Constitution, 1992 into account, where applicable, and to record same in the proceedings.

There was another legal point argued by counsel for the Republic. It was this, that this appeal is not coming from a High Court, a Regional Tribunal or a circuit court so as to give this court automatic jurisdiction to entertain it. It is coming from the erstwhile National Public Tribunal in a judgment delivered on 6 July 1993. By section 7(1) of Schedule 1 of the transitional provisions of the Constitution, 1992 partly heard cases before that tribunal could be continued for a stated period after the coming into force of the Constitution. There is no successor court or tribunal to the National Public Tribunal, so there is no right of appeal from its decisions. He cited in support this court’s decision in the case titled Djaba v The Republic, Court of Appeal, 15 December 1994, unreported coram: Amuah JA (as he then was), Brobbey and Essilfie-Bondzie JJA. Their lordships affirmed that cases heard by the national public tribunal after the coming into force of the Constitution could not come before any other court or tribunal on appeal or otherwise since no constitutional provision existed for that. In the words of Brobbey, J A:

[p.175] of [1999-2000] 1 GLR 169

“If I may repeat for the sake of emphasis, it is my view that since no court was created to succeed the national public tribunal, there is no forum to pursue any former national public tribunal case, filed after 7 January 1993 which is not regarded as pending or partly heard.”

I believe this was a very serious oversight on the part of the framers of the Constitution, 1992. It’s unfortunate but unintentional.

But the right, if at all, to appeal is not an inherent one, it must always be conferred by some legislation; next, there must also be a forum to hear an appeal where the right to appeal is conferred. Thus apart from the fact that by article 136(5) of the Constitution 1992, this court is bound to follow its own previous decisions, yet the law on appeal is very well settled as just stated. Since no right of appeal from the decisions of the National Public Tribunal delivered after 7 January 1993 was given, and no forum was created to hear them, if at all, no other court or tribunal could assume jurisdiction over those cases either by way of appeal or otherwise. Thus the assumption of jurisdiction by this court in even granting leave to the appellants to appeal out of time was wrong in law, and was made per incuriam. This court has no jurisdiction to entertain this appeal and on this score too it must fail.

It may be observed that in the light of the mandatory constitutional provision contained in article 14(6) of the Constitution, 1992, it would appear section 315(2) of Act 30 will be applicable only where the person convicted is not in lawful custody within the meaning of article 14(6) of the Constitution, 1992. And if that is accepted then those enactments, which prescribe mandatory minimum jail terms, will also have to be revised to take into account article 14(6) of the Constitution, 1992. But not until the laws have been revised by the appropriate authorities, or the Supreme Court has given definite interpretation to article 14(16) of the Constitution, 1992 and declared section 315 (2) of Act 30 to be inconsistent with it, the courts cannot ante-date any sentence. As the law stands now this court cannot allow this appeal.

JUDGMENT OF BROBBEY JA

The appellants were charged before the erstwhile National Public Tribunal (NPT) on two counts of unlawful importation of narcotic drugs contrary to section 1 (1) of the Narcotic

[p.176] of [1999-2000] 1 GLR 169 Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236) as well as unlawful possession of narcotic drugs contrary to sections 2(1) and (2) of the same PNDCL 236. They were tried and each was convicted and sentenced to ten years’ imprisonment, the period of imprisonment to be operative from the date of sentence.

They have now appealed to this court against sentence. Their sole ground of appeal was this: They were arrested and detained two years before their sentences and were not granted bail. The period when they were in detention was not taken into account when they were sentenced as required by the Constitution, 1992 art 14(6). The appeal has been opposed by counsel for the Republic who has raised a number of arguments. The most fundamental of their arguments is that this court has no jurisdiction to hear the appeal.

The history of the case at the trial court vindicates the argument against jurisdiction. The case first went to court on 21 May 1991. The trial was started at the then National Public Tribunal, which operated under the Public Tribunal Law, 1984 (PNDCL 78). When the Constitution 1992 was promulgated, PNDCL 78 was repeated and the National Public Tribunal ceased to exist. The case had not been concluded when the Constitution, 1992 came into force in January 1993. It was concluded on 6 July 1993.

Since the trial was concluded on 6 July 1993 when the appellants were convicted, the case would not be described as being “partly heard” so as to be covered by section 7(1) of the transitional provisions of the Constitution, 1992. If anything at all, it could only be considered in another forum under section 7(4) of the transitional provisions of the Constitution, 1992 which reads:

“(4) All cases other than those referred to in subsection (1) of this section pending before the National Public Tribunal immediately before the coming into force of this Constitution, shall be transferred to such court or tribunal as the Chief Justice may direct.”

In the terms of this provision, the Chief Justice should expressly direct the court or tribunal where any case like the instant one could have been sent, provided the case was regarded as “pending” before the National Public Tribunal. The word “pending” was explained by the Supreme Court in the case of Republic v Adu-Boahen [1993-94]

[p.177] of [1999-2000] 1 GLR 169

2 GLR 324, SC to mean that there should be some step or process to be taken towards the completion of that case before it can be said to be pending.

After judgment had been given in the instant case on 6 July 1993 and the appellants convicted and sentenced, the case was completed by the National Public Tribunal it could not therefore be said to have been “pending” any longer before the National Public Tribunal. In any case, counsel for the appellants in his arguments never referred to the fact that any direction had been given by the Chief Justice as to when the case would be continued beyond, the National Public Tribunal. The record does not disclose any such direction by him either.

As a general rule, every appeal is a creature of statute. No one has the right to appeal except as specifically provided by a statute: see In re Yendi Skin Affairs; Yakubu II v Abudulai [1984-86] 2 GLR 226, CA and Nye v Nye [1967] GLR 76 at 283, CA (full bench). In the later case the then full bench of the Court of Appeal held that there is no inherent right of appeal nor inherent right in any court to hear an appeal. With specific reference to this Court of Appeal, its jurisdiction is expressly provided by statute or the Constitution. Any appeal filed in this court can only be heard if authorised by the express terms of a statute. For these, see also the Constitution, 1992, arts 137 and 138 and the Courts Act, 1993 (Act 459), ss 11 and 12. The jurisdiction of this court as set out in Act 459 and the Constitution, 1992 does not contain any stipulation that an appeal may be filed to this court against the decision of the erstwhile National Public Tribunal. It follows from all the foregoing that this court has no jurisdiction to entertain the instant appeal in any guise or form, so long as it remains an appeal against a decision of the National Public Tribunal for which there is no successor court or tribunal.

This is not a novel point. A similar issue once arose in this court in the case of Djaba v The Republic, Court of Appeal, 15 December 1994, unreported which Mr Amonoo-Monney for the Republic relied upon. In that case too it was ruled that this court could not assume jurisdiction over a case emanating from the National Public Tribunal unless so directed by the Chief Justice.

The issue of jurisdiction is quite fundamental and goes to the very basis of the entire appeal. It is no answer that the point was not taken timeously. That an issue as to jurisdiction can be taken at any

[p.178] of [1999-2000] 1 GLR 169 stage of the proceedings has not been in doubt. In Food Specialities (Ghana) Ltd v Rama [1989-90] 2 GLR 324, SC, the parties consented that the Court of Appeal could exercise jurisdiction in an arbitration case. One of the parties later changed his mind and challenged the jurisdiction of the Court of Appeal over the case when it proceeded to the Supreme Court. Notwithstanding the fact that the issue of jurisdiction was raised for the first time in the Supreme Court, it was held that the Court of Appeal had no jurisdiction in the matter and the fact of the consent of the parties did not make any difference to that want of jurisdiction. The same view was taken by the Supreme Court in Amoasi III v Twinto [1987-88] 1 GLR, SC 4. In that case a dispute went to the Eguafo Traditional Council and proceeded to the Central Regional House of Chiefs and finally to the National House of Chiefs, from where the case went on further appeal to the Supreme Court. The issue of jurisdiction was raised for the first time there. It was held that the time of raising the jurisdiction notwithstanding, the traditional council, the Central Regional House of Chiefs and the National House of Chiefs had no jurisdiction over the dispute and therefore the proceedings and judgments emanating from all three Judicial tribunals were declared null and void.

In the instant case, since this court has no jurisdiction whatsoever to entertain the appeal filed by the two appellants, I would dismiss it. The issue of jurisdiction alone is sufficient to dispose of the appeal.

If this court has no jurisdiction to entertain the appeal, the arguments relating to the failure or otherwise to take the period of incarceration into account before passing sentence will be obiter dicta and of academic interest only. The provision in the Constitution, 1992, ie article 14(6) on which the appellants pegged their arguments against sentence was in the following terms:

“(6) Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into amount[sic](1) in imposing the term of imprisonment.”

Both appellants were in custody for two years continuously before they were convicted and sentenced. On the face of the record

[p.179] of [1999-2000] 1 GLR 169 before the court, there is no reference to the fact that the trial court took into account the period prior to the completion of their trial when both were in custody. To my mind, the most relevant expression in the constitutional provision is this: “in imposing the term of imprisonment.”

The answer to the complaints of the appellants lies in the interpretation to be put on that expression. By the Constitution, 1992, art 130 (1), only the Supreme Court has power to interpret provisions of the Constitution. Therefore, if the appellants seriously desired that their complaints should be considered on the merits, their basic course of action lies in proceedings to the Supreme Court. This point further reinforces the view that this court is devoid of jurisdiction to consider the points raised even if the appeal were properly filed before this court.

As a general guide however, trial courts will be well advised to state expressly in the record of proceedings when they take a period of prior incarceration into account in imposing terms of imprisonment. This should be incorporated in the record and read out or announced before the precise period to be served in prison has been announced publicly by the trial judge.

It was further argued that the statute under which the accused were charged, ie PNDCL 236, mandatorily required that the minimum sentence to be imposed for the offence charged should be ten years. PNDCL 236 should be applied in the light of the provisions of the Constitution, 1992 art 14 (6). If the provisions of PNDCL 236 and article 14 of the Constitution, 1992 are in conflict, it is obvious that those in article 14 of the Constitution, 1992 should prevail. Further, if PNDCL 236 is in conflict with article 14(6) of the Constitution, 1992, the former may be declared in the Supreme Court as void to the extent of the inconsistency or conflict. Because the issue involves interpretation of article 14(6) of the Constitution, 1992 it is my further view that if the applicants really want their arguments considered on the merits, their rightful course of action is to proceed to the Supreme Court under article 130(1) of the Constitution, 1992.

Notwithstanding all the points made concerning the sentence and the period while the appellants were in custody, I would dismiss the appeal for the simple reason that this court lacks jurisdiction to entertain an appeal from the erstwhile National Public Tribunal

[p.180] of [1999-2000] 1 GLR 169 without any direction from the Chief Justice as contained in section 7(4) of the transitional provisions of the Constitution, 1992.

JUDGMENT OF WOOD JA.

I agree.

DECISION

Appeal dismissed.

LSNA

Endnotes

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