COMMISSION ON HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE vs. ATTORNEY-GENERAL [1999-2000] 1 GLR 697

CASES REFERRED TO

(1) Watkinson v Hollington [1944] 1 KB 16; [1943] 2 All ER 573; 112 LJKB 643, CA.

(2) Ambler (Jeremiah) & Sons Ltd v Bradford Corporation [1902] 2 Ch 585; 71 LJCH 744; 87 LT 217, CA.

[p.702] of [1999-2000] 1 GLR 697

(3) Attorney-General v Commission for Human Rights and Administrative Justice [1999-2000] 1 GLR 358, SC.

(4) Dupuis v British Columbia Ministry of Forestry (1933) CHRR (Vol 20), 1.

NATURE OF PROCEEDINGS

ACTION by the Commission for Human Rights and Administrative Justice against the Attorney General for a declaration, inter alia, by the Supreme Court that the commission has under section 35(2) of the transitional provisions of the Constitution, 1992 the power to review all confiscations of properties made by any special court or tribunal or State institution set up by or under the Armed Forces Revolutionary Council and the Provisional National Defence Council. The facts are sufficiently set out in the judgment of the court delivered by Charles Hayfron-Benjamin JSC.

COUNSEL

E K Ofosu-Quartey for the plaintiff.

Martin A B K Amidu, Deputy Attorney-General (with him Mrs Betty Mould-Iddrisu, Chief State Attorney) for the defendant.

JUDGMENT OF CHARLES HAYFRON-BENJAMIN

Charles Hayfron-Benjamin JSC delivered the judgment of the court. On 31 July 1998 this court dismissed the writ of the commission invoking the assistance of this court to resolve an apparent conflict in the relative positions of the parties vis-à-vis their respective functions under the Constitution, 1992. For whereas the plaintiff (Commissioner for Human Rights and Administrative Justice) is “In the performance of (their) functions, not subject to the direction or control of any person or authority”, the defendant (the Attorney-General) on the other hand is a member of the executive branch of government and the chief legal adviser to the government.

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The principles of the separation of powers to which to a great extent our Constitution, 1992 gives support enjoin this court as arbiters of conflicts within the Constitution, 1992 in the interpretation or enforcement thereof, not to adopt attitudes and positions which may appear to incline us into proffering advice on matters which do not come within the ambit of our adversarial adjudicatory system as sanctioned by our Constitution. The parties to this litigation are constitutionally independent, yet the plaintiff contends that their paths may so cross each other as to authorise him to compel the defendant to take a stand on matters regarding the exercise of the plaintiff’s functions. Thus by his writ of summons the plaintiff claims against the defendant are:

‘‘(a) A declaration that section 35(2) of the transitional provisions of the Constitution, 1992 which empowers the plaintiff to restore properties confiscated by the State, applies to and embraces all confiscations of property made by the Armed Forces Revolutionary Council and the Provisional National Defence Council under any Decree or Law made by the council, whether such confiscations were made by a special court or tribunal such as the Armed Forces Revolutionary Council Special Court set up under the AFRC (Special Courts) Decree, 1979 (AFRCD 3) as amended by the AFRC (Special Courts) (Amendment) Decree, 1978// (AFRCD 19).

(b) A declaration that, even assuming, (which is denied) that the plaintiff has no jurisdiction under the said section 35 (2) of the transitional provisions of the Constitution, 1992 to entertain a petition for the restoration of confiscated property where the initial confiscation was made by a special court or other judicial tribunal, the plaintiff’s power under section 35(2) would become exercisable where the initial confiscation is later confirmed by a subsequent Decree or Law such as the Confiscated Assets (Removal of Doubt) Law 1993.”

The plaintiff by his statement of case expounds sections 35(1) and (2) of the transitional provisions of the Constitution, 1992 in extenso and furnishes by way of example the case of one Col CR

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Tachie-Menson (Rtd) in Tr Case ND 780/94 who petitioned the plaintiffs organisation for: “The restoration of his confiscated properties pursuant to section 35(2) of the transitional provisions of the Constitution, 1992.” The said Col CR Tachie-Menson contends that he was acting as our ambassador to Italy in 1979 when on 13 October 1979 it was published in a state-owned newspaper that he had been sentenced to 25 years’ imprisonment and the assets of his wife and himself had been confiscated to the state. The colonel subsequently obtained the necessary information and instructed solicitors to apply for a review of that decision before the special tribunal. The application for review was never heard, but the colonel was granted safe conduct back home in 1987 by the Co-ordinator, Revenue Commissioners and Investigations. The plaintiff then recites the provisions of section 1 of the Confiscated Assets (Removal of Doubt) Law, 1993 (PNDCL 325) which was passed on 5 January 1993 and came in to force on 23 April 1993 and contends that it was in those circumstances that the colonel invoked section 35(2) of the transitional provisions of the Constitution, 1992 and applied to the plaintiff for the return to him of his properties or assets.

It appears that the colonel’s petition was also addressed to the defendant because the plaintiff states in his statement of claim that:

“The issue was raised as to whether the plaintiff had jurisdiction to entertain the petition, having regard to the fact that the petitioner’s properties were confiscated by a court of competent jurisdiction, namely the AFRC Special Court in the first instance.”

The plaintiff then in obvious anticipation of the possible defences available to the defendant, attempts to pre-empt such defence by setting them out in extenso thus:

“(12) It was suggested by counsel for the State that section 35 (2) of the transitional provisions of the Constitution, 1992 applies only to persons whose properties were confiscated without a judicial process by a court of competent jurisdiction.

(13) The plaintiff will contend that the language used in section 35(2) of the transitional provisions of the Con

[p.705] of [1999-2000] 1 GLR 697 stitution, 1992 is all-inclusive and wide enough to apply to all confiscations made by the State during the AFRC and PNDC administrations, whether by a special court or a tribunal or a state institution empowered to confiscate property. The legislative intent of and policy objective underlying section 35(2) was that the whole question of confiscation of properties under the AFRC and PNDC administrations should be revisited by the Commissioner.

(14) The plaintiff will contend that any interpretation of the scope and ambit of section 35(2) which seeks to exclude confiscations made by a court or other judicial tribunal tantamounts to reading into the clear and unambiguous language of the section, a non-existent limitation or exclusion, an approach which is contrary to all known rules or canons of interpretation.

(15) The plaintiff will further contend that on a combined reading of subsections (1) and (2) of section 35, the only condition necessary to empower the plaintiff to entertain a petition under section 35(2), is the existence of a confiscation of property imposed by or under the authority of the Armed Forces Revolutionary Council or the Provisional National Defence Council under any Decree or Law made by the council.

(16) The plaintiff says that in interpreting the scope and ambit of section 35(2), any attempt to draw a distinction between confiscation made on the one hand by the AFRC Special Court established under the Armed Forces Revolutionary Council (Special Courts) Decree, 1979 (AFRCD 3) as amended by the Armed Forces Revolutionary Council (Special Courts) (Amendment) Decree, 1979 (AFRCD 19) on the one hand and confiscations of property on the other hand by the citizens vetting committee and Office of the Revenue Commissioners established under the Citizens Vetting Committee Law, 1982 (PNDCL 1) and amended by the Revenue Commissioners Law, 1984 (PNDCL 80) would amount to creating an arbitrary and unjust distinction

[p.706] of [1999-2000] 1 GLR 697 which was and never could have been intended by framers of the Constitution, 1992.

(17) The plaintiff will also contend that, even assuming that section 35(2) aforesaid does not empower him to investigate confiscations made by the AFRC Special Court or other such judicial tribunal, where the said confiscation has been confirmed or repeated in a subsequent legislative instrument such as the Confiscated Assets (Removal of Doubt) Law 1993, (PNDCL 325) or both, the Plaintiff will be vested with authority under section 35(2) of the transitional provisions of the Constitution, 1992 to make an order of restoration in appropriate circumstances.

(18) The plaintiff will further contend that by the use of the phrase ‘on any other basis’ in section 35(2) of the transitional provisions of the Constitution, 1992, the plaintiff has the power to investigate confiscations made by a court or tribunal during the AFRC and PNDC administrations and if satisfied, order restoration of that property.”

It must be mentioned in passing that PNDCL 325 which came into force on 23 January 1993, a date which post dates the coming into force of the transitional provisions of the Constitution, 1992, is a valid piece of legislation and is currently of full force and effect.

The defendant in his statement of case did not only deny that the colonel’s claims to ignorance of his trial and confiscation of his properties were untrue but also clearly denied those averments which we have said were designed to pre-empt any possible defences that could be raised by him. The defendant further contends that the plaintiff had no power to review the decisions of any courts or lawfully constituted tribunals:

“By restoring any properties confiscated by such court or tribunal established by and under the authority of the Armed Forces Revolutionary Council (AFRC) or the Provisional National Defence Council (PNDC) within the meaning of section 34(3) and (4) of the transitional provisions scheduled to the Constitution, 1992.”

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Contending that during the Armed Forces Revolutionary Council and Provisional National Defence Council regimes all judicial power was vested in those administrations and denying the plaintiff’s assertion that had power and authority to review the decisions of courts and tribunals so established, the defendant averred that such exercise of a review power would amount to a “usurpation of judicial power by the plaintiff to review even confiscations by any court exercising judicial power or purported judicial power under those regime.” The defendant further contended that in attempting to review such decisions the plaintiff was in fact exercising a supervisory jurisdiction over the decisions of the courts and tribunals over confiscation of assets by them. The defendant finally asserts that the plaintiff while admitting that section 35(2) of the transitional provisions of the Constitution, 1992 was inapplicable to confiscations by courts of law is nevertheless “seeking an advisory opinion of the court as to the extent of his jurisdiction.”

The memorandum of issues agreed by the parties are set out:

“1 Whether the plaintiff’s power under section 35(2) of the transitional provisions of the Constitution, 1992 to restore confiscated properties extends to and covers confiscations made by a special court or tribunal such as the Armed Forces Revolutionary Council Special Court set up under the Armed forces Revolutionary Council (Special Courts) Decree, 1979 (AFRCD 3) as amended by the AFRCD (Special Courts) Amendment Decree, 1979 (AFRCD 19).

2 Whether, if the answer to issue (1) is in the affirmative, the plaintiff’s power under section 35(2) would nevertheless become exercisable or operative where the initial confiscation is later confirmed by a subsequent Decree or Law such as the Confiscated Assets (Removal of Doubt) Law 1993, (PNDCL 325).

3 Whether under issue (1), the plaintiff would be entitled to enquire into an allegation by the petitioner that he was never tried, convicted and sentenced by the AFRC Special Court.

4 Whether or not the plaintiff has Jurisdiction to review any decision of any court, special court or tribunal by restoring any properties confiscated by such court or tribunal

[p.708] of [1999-2000] 1 GLR 697 established by and under the authority of the Armed Forces Revolutionary Council or the Provisional National Defence Council within the meaning of section 34(3) and (4) of the transitional provisions scheduled to the Constitution, 1992.

5 Whether the plaintiff can exercise supervisory jurisdiction over decisions of courts properly established by or under the authority of the AFRC and PNDC.

6 Whether or not the plaintiff has power under section 35(2) of the transitional provisions of the Constitution, 1992 to restore properties confiscated by the AFRC and the PNDC which confiscations were subsequently confirmed by Decree or Laws such as Confiscated Assets (Removal of Doubt)

Law, 1993 (PNDCL 325).

7 Whether or not the plaintiff’s writ and statement of case disclose any cause of action against the defendant.”

Two preliminary issues are raised in this writ, namely:

(1) whether the plaintiff has a power of review over the decisions of other courts and tribunals in respect of confiscated assets ordered by them; and (2) whether the plaintiff has supervisory power or jurisdiction over the decisions of the aforesaid courts and tribunals.

It is easy to answer issue (2) in the negative. The supervisory jurisdiction is conferred by statute. In the Constitution, 1992 such supervisory jurisdictions are given to the Supreme Court and the High Court by articles 132 and 141, respectively. If any such jurisdiction exists in the plaintiff then it must be contained in the statute creating that organisation.

Then again it is generally true that every tribunal has an inherent power to review its own decision. Whether any such tribunal has the jurisdiction to review the decision of another Tribunal, save by way of an appeal which is itself conferred by statute must be deduced from the statute creating such tribunal. In the instant case the plaintiff does not lay any pretence to being a court or tribunal, but it contends it has power to review the case of Col Tachie-Menson so presented to it by way of a petition. The defendant says he has no such power or jurisdiction so to review the decision taken by a lawfully constituted authority.

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The plaintiff owes its existence to the Commission on Human Rights and Administrative Justice Act, 1993 (Act 456). It is therefore necessary at the outset to examine the Act and to distinguish the purpose of the plaintiff from the manner it seeks to effect it and the scope and ambit within which such function may be exercised. The long title to the Act sets its purpose out clearly thus:

“AN ACT to establish a Commission on Human Rights and Administrative Justice to investigate complaints of violations of fundamental human rights and freedoms, injustice and corruption; abuse of power and unfair treatment of persons by public officers in the exercise of their duties, with power to seek remedy in respect of such acts or omissions and to provide for other related purposes.”

Act 456 is, of course, made in pursuance of authority granted to Parliament under chapter 18 of the Constitution, 1992. The functions—and this is the expression used in article 218 of the Constitution—which the plaintiff may exercise are taken almost verbatim from the Constitution, 1992 and restated in section 7 of Act 456. Similarly, the manner in which such functions may be exercised are copied verbatim from article 219 of the Constitution, 1992 and are contained in sections 8 and 9 of Act 456. Taken together, it is clear that the objects of the plaintiff are investigative and educational. For the purposes of effective exercise of its investigative objects, the plaintiff has certain powers akin to those of the regular courts and tribunals. But it must be said that in exercising those powers the plaintiff does not thereby constitute a court or tribunal properly so-called nor does it thereby assume any Jurisdiction to do anything in its investigations. However, the plaintiff may institute legal action “before any Court in Ghana and may seek any remedy which may be available from that Court.”

Clearly, the plaintiff has no judicial power nor does it in the performance of its function thereby assume any jurisdiction cognisable at law. Jurisdiction is simply “the power of a judge to entertain an action, petition or other proceeding” and “the district or limit within which the judgments or orders of a Court can be enforced or executed”: see Osborne’s Concise Law Dictionary (8th ed); no such attributes attach to the plaintiffs commission. The

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Constitution, 1992 defines the expression “function” generally as including “powers and duties.” The expression “function” however is not a term of art and must therefore be given its ordinary dictionary meaning. In Funk and Wagnall’s Standard Dictionary of the English, International Edition the word is variously defined but I incline to the definition which states that function is “one’s appropriate or assigned business, duty, part or office.” Thus within the context of Act 456 the expression “function” means the exercise by a duly appointed person to whom such duties as are stated in the Act are assigned. Its strict obedience to the scope and ambit of authority is necessary for the due performance of the duties assigned to it. Indeed, the plaintiff has no enforcement powers unless it applies to the court therefor. Therefore in my respectful opinion, the plaintiff has neither the power of review over decisions of other courts or tribunals nor does it possess any supervisory power in respect of such courts or tribunals.

Normally it would suffice to define the objects and functions of the plaintiff commission. But as I have just said it is necessary that I should examine the scope and ambit of its operations. In this respect I find the English case of Wilkinson[sic](2) v Hollington [1944] 1 KB 16 very instructive and an essential aid to the exact purpose of the plaintiff commission; for it cannot be said that the plaintiff has carte blanche authority to roam the highways and bye-laws of the legislative, judicial and executive intent and acts of the erstwhile AFRC, the PNDC and the courts and tribunals in the exercise of their powers of confiscation in search of cases and matters which it may review and over which it may exercise any semblance of a supervisory function jurisdiction.

The Watkinson case (supra) contains very interesting dicta which I find relevant to the present inquiry. Goddard LJ (as he then was) at 22 of the report said:

“When one is construing the words of an Act of Parliament one must, to use the words of Lindley M.R. in Thomson v Lord Clanmorris [[1900] 1 Ch 718 at 725], have regard, not only to the words used, but also to the history of the Act, and the reasons which led to it being passed. Regard must be had to the mischief which had to be cured as well as the cure provided, du Parcq L.J. put the same consideration in Butcher v Poole

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Corporation when he said [[1943] KB 58]: It is impossible to construe words in an Act of Parliament without reference their context and the whole tenor of the Act.”

And then also in the same report at 20 thereof, Scott LJ when invited to construe sections 1 and 2 of the Courts (Emergency Powers) Act, 1939 said:

“I should have thought that the ambit of the sub-section was satisfied by applying it to ordinary forms of distress for rent, but there is an additional reason for so limiting the interpretation of its words. Where ambiguous language is used in an Act one is entitled to look at the long title.”

Then again in the English case of Jeremiah Ambler & Sons Ltd v Bradford Corporation [1902] 2 Ch 585 at 594 Romer LJ said: “I agree with argument on behalf of the plaintiffs in the present case, that in construing the Act the Court may and ought to look to the general scope of the Act as expressed in its title.”

Thus assured by authority, albeit persuasive, we think that we may confidently proceed not only to look at the long title of the under Act reference but also examine “the history of the Act and the reasons which led to its being passed” and “paying due regards to the mischief which had to be cured as well as the cure provided.”

No difficulty arises in ascertaining the scope and ambit of the functions of the plaintiff from an examination of the long title of Act 459. Clearly, the plaintiff’s functions are: to investigate complaints of violations of:

(a) fundamental human rights and freedoms;

(b) injustice and corruption; and

(c) abuse of power and unfair treatment of persons by public officers in the exercise of their duties with power to seek remedy in respect of such acts or commission.

We do not think that it is necessary to set out the mischief which the legislation was intended to address and to provide a cure. It is evident from the commission’s powers that what were sought to be corrected or cured concerned human rights abuse and the provision of avenues for dealing with injustices, corruption and the abuse of administrative power and to provide remedies therefor. Clearly, the scope of the commission’s investigative powers must be limited

[p.712] of [1999-2000] 1 GLR 697 to matters covered by chapter 5 of the Constitution, 1992 and the matters elucidated in the long title to Act 459 and no more. The history of abuse of human rights within our municipality is too well documented and of which judicial notice will be taken to merit any further reference in this opinion. The important thing, however, is that the framers of the Constitution, 1992 determined to remedy the mischief, and the cure for it was the establishment of the plaintiff’s commission. The framers of the Constitution, 1992, it would appear, quite independently entrenched articles 218 and 225 of chapter 12 thereof and thereby assured the commission’s permanence and independence within the new social scheme.

Our conclusions, thus far, would ordinarily have sufficed to determine the scope and ambit, indeed the parameters, of the plaintiff’s functions so as not to warrant any further discussions of its plaint before this court. However, the plaintiff claims that section 35(2) of the transitional provisions of the Constitution, 1992 invests it with certain powers by which it could restore the confiscated properties and assets made by the orders or decisions of the special courts or tribunals set up by the Armed Forces Revolutionary Council and the Provisional National Defence Council regimes. The plaintiff further submits that even if it has no power under section 35(2) of the transitional provision of the Constitution, 1992 its powers derived under that section would “become exercisable or operative where the initial confiscation is later confirmed by a subsequent Decree or Law such as the Confiscated Assets (Removal of Doubt) Law, 1993 (PNDCL 325).” The defendant submits in reply that the plaintiff misapprehends the import of that section, and contends that the plaintiff is seeking to extend the plain, ordinary and grammatical meaning of the section to include “confiscation orders made by a Court or Tribunal.”

Interestingly the plaintiff itself presents this court with a catalogue of situations in which it contends, assets and properties could be validly confiscated. The following is an abstract from the submissions of the plaintiff:

“During the era of the Armed Forces Revolutionary Council and Provisional National Defence Council regimes various judicial and quasi-judicial bodies were established (by statute) with power to order confiscation of assets and the bank

[p.713] of [1999-2000] 1 GLR 697 accounts. Those included the Armed Forces Revolutionary Council Special Courts, established under the Armed Forces Revolutionary Council (Special Courts) Decree, 1979 (AFRCD 3) as amended by AFRCD 19; the AFRCD Special Tribunal set up under the Armed Forces Revolutionary Council (Special Tribunal and Other Matters) Decree, 1979 (AFRCD 23) and the citizens vetting committee established under Citizens Vetting Committee Law, 1982 (PNDCL 1). Others are the national investigations committee established by virtue of the National Investigations Committee Law, 1982 (PNDCL 2), the Office of Revenue Commissioners set up under the Revenue Commissioners Law, 1984 (PNDCL 80), the State Housing (Allocation Policy and Implementation) Commission established by the State Houses (Allocation Policy and Implementation) Commission Law, 1984 (PNDCL 83), and the public tribunals set up under the Public Tribunals Law, 1984 (PNDCL 78).”

Some of the offences triable before the AFRC special courts and the public tribunals (and for which a person’s property could be forfeited to the State) were also triable for example by the citizens vetting committee. For example, under section 3(1)(b) of AFRCD 3, the special courts could try the offence of: “illegal or dishonest acquisition of property by a public officer, citizen of Ghana or other person resident in Ghana.” The public tribunals could also try the same offence under section 9(1)(k) of PNDCL 78 which provided that it was an offence for any person who “being a public officer, citizen of Ghana or other person resident in Ghana, illegally or dishonestly (proof of which shall be on him) acquires property.”

On conviction for commission of these offences, that AFRC special courts and the public tribunals could invoke section 4 of AFRCD 3 and section 16(6) of PNDCL 78, respectively, to confiscate a person’s properties to the State. Similarly, under section 4(1) of PNDCL 1, the citizens vetting committee was enjoined to “investigate persons whose life styles and expenditures substantially exceed their known or declared incomes.” Under section 7(1)(a) of PNDCL 1 the citizens vetting committee had the discretion to order confiscations. The said section provided as follows:

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“7 (1) The Committee may after investigation of any matter under this law— (a) order the forfeiture to the State of any property.”

In effect, a person investigated by the citizens vetting committee under section 4(1) of PNDCL 1 could have his property or assets confiscated to the State under section 7(1)(a) of the said Law.

The plaintiff submits that any person who was investigated by the citizens vetting committee under section 4(1) of PNDCL 1 for the reason that his life style and expenditure substantially exceeded his known and declared income, could equally have been tried by the public tribunal under section 9(1)(k) of PNDCL 78 for “illegally or dishonestly acquiring property.” This is so because the person’s excess expenditures could reasonably be presumed to have been made possible by illegal or dishonest acquisition. In effect, both the citizens vetting committee on the one hand and the public tribunals on the other hand could try the same offence and order the confiscation of the property of anyone found guilty of that offence.

In addition the plaintiff concedes that there were others whose properties were “confiscated by enactment” and contends that if the defendant’s arguments were right, then a construction of section 35(2) of the transitional provisions of the Constitution, 1992 in his favour would not only be discriminatory of those who were entitled to take the benefit of the section, but an anomalous situation would be created wherein a party could obtain redress dependent on the manner—and perhaps even the tribunal—by which his property was confiscated. In the plaintiff’s view, such a construction would not make sense. The plaintiff finally contends that:

“the purpose of the section was to give the plaintiff the power and opportunity to review all confiscations made during the AFRC and PNDC eras in line with PNDC declared policy of national reconciliation.”

(The emphasis is ours.)

In reference to the plaintiff’s immediately preceding submission, the plaintiff does not contend that any such “declared policy of reconciliation” ever became law, nor does it demonstrate by example any policy that was actually applied by the Provisional National Defence Council with respect to confiscated property or assets.

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However, inherent in that submission are two matters upon which the plaintiff has made submissions and in respect of which this court must address if the circle of the plaintiff’s functions are to be rendered complete.

First, the plaintiff contends that even if he had no jurisdiction (which he denies) to investigate confiscations ordered by a court or tribunal such as the special court, the whole issue of confiscation “nevertheless becomes subject to plaintiff’s jurisdiction where it is confirmed by an Act or Decree such as the Confiscated Assets (Removal of Doubt) Law, 1993 (PNDCL 325).” In other words, by the passing of PNDCL 325, which we have said is an existing law, the whole question of confiscation of assets has been resuscitated and, in relation to section 35(2) of the transitional provisions of the Constitution, 1992, must be applied retrospectively.

The issue of “retrospectivity” has been raised in a relative presentation before us in Attorney General v Commission for Human Rights and Administrative Justice [1999-2000] 1 GLR 358, SC (ante) in which we have also given our judgment. But we think that, as we have said, for the more complete consideration of the limits of the plaintiff’s functions, the ends of justice will be served if we address the issue in this opinion. The plaintiff places great reliance on the case of Linda Dupuis v British Columbia (Ministry of Forestry) C.H.R.R. (Canadian Human Rights Reports) Vol 20 of 15 December, 1993, para 1-104, a case on sexual harassment in which the issue of retrospectivity as to the application of a statute is discussed. In paragraph 74 of the report the following appears:

“74. It is more difficult to determine whether the construction of the statute sought by counsel for Dupuis is retrospective. The test for determining whether there is retrospective operation of a state is described by Driedger as follows at pp. 191-192:

‘When can it be said that a construction gives retrospective effect to a statute? In all but the simplest enactments there is set out what may be called the fact situation, namely, the facts that bring the rule of law into operation. This fact situation can be set out by defining the subject of the enactment, by describing the circumstances that bring the rule into operation, or partly in the one way and partly in

[p.716] of [1999-2000] 1 GLR 697 the other. The fact situation may include a reference to past facts by employing clauses in the past or perfect tenses; the question then arises whether the facts that arose before the enactment bring it into operation, or only those that arose between the time of the enactment and the time of its application. These past facts may describe a status or characteristic, or they may describe an event. It is submitted that where the fact situation is a status or characteristic (the being something), the enactment is not given retrospective effect when it is applied to persons or things that acquired that status or characteristic before the enactment, if they have it when the enactment comes into force; but where the fact situation is an event (the happening of or the becoming something), then the enactment would be given retrospective effect if it is to be applied so as to attach a new duty, penalty or disability to an event that took place before the enactment.”’

Learned counsel’s proposition on the issue of retrospectivity is predicated on the argument that with the coming into force of PNDCL 325 the whole issue of confiscation has been reopened and the commission is therefore entitled to investigate any confiscation of property or assets referred to therein and where appropriate restore them to their owners.

I have considered the passages quoted above from the report, which passages are themselves taken from Dr. Dreidger’s learned treatise, Driedger on the Construction of Statutes, pp 191-192 and I must express my disagreement with learned counsel on the position he takes. In the passages just cited it is stated, inter alia, that “. . . where the fact situation is a status or characteristic (the being something) the enactment is not given retrospective effect when it is applied to persons or things that acquired that status or characteristic before the enactment, if they have it when the enactment comes into force.”

The above statement sets out the principle of retrospectivity very clearly. Thus if the “status or characteristic” of a law or legislation is certain or can be ascertained, a subsequent legislation affecting the same matters will not raise the matters afresh. In other words, the

[p.717] of [1999-2000] 1 GLR 697 subsequent legislation will not have the effect of resuscitating the provisions of an existing law. In the instant case, PNDCL 325 which by its title was for the “Removal of Doubts” did not confer any new rights nor did it resuscitate any moribund titles in any properties or assets. The expression for the “removal of doubts” in this context therefore means that the identity of the confiscated properties and assets were made more certain by their being included in the schedules to that Law. Any such property or asset so mentioned in the schedules to PNDCL 325 shall in accordance with section 35(1) of the transitional provisions to the Constitution, 1992 remain confiscated to the State and “shall not be reversed by any authority under this Constitution.”

Thus the immediately preceding bar would affect the plaintiff, the Commission for Human Rights and Administrative Justice. Nor would any constitutional provision exempt it from compliance with section 35(1) of the transitional provisions since there is ample authority in support of article 299 of the Constitution, 1992 to assure the supremacy of the transitional provisions when it comes in conflict with a provision of the Constitution, 1992.

Next, I think it is proper to deal in this opinion with the issue whether the plaintiff in the exercise of its investigative functions is “caught by the statute of limitations or other limitations of time before or upon the coming into force of the Constitution, 1992 having regard to section 13(2) of Act 456.” It is conceded by the parties hereto that the provisions of the Limitations Decree, 1972 (NRCD 54) do not apply to the exercise of the plaintiff’s functions since the plaintiff in the exercise of its functions does not constitute a court. But the plaintiff contends that by virtue of section 13(2) of Act 456 it has a discretion: “to refuse to entertain a complaint ‘where the complaint relates to a decision, recommendation, act or omission or which the complainant has had knowledge for more than twelve months before the complaint is received by the Commission.”’

This may well be so. That section however has a built in time limit of twelve months. Where such is the case—and even though the burden is on the complainant to demonstrate that it is within the time limit—it is not the duty of the commission out of compassion or

[p.718] of [1999-2000] 1 GLR 697 a desire to address human rights issues to exercise his discretion in such a manner as would have the effect of opening a pandora’s box of matters upon which some other committee or commission has made definite conclusions—more so when such conclusions are supported by government white papers. The age old principle that it is in the interest of the public that there is an end to litigation must apply to stale claims for redress. The discretionary power vested in the plaintiff must be exercised in aid of the vigilant and not to succour the claims of the indolent. The argument of the plaintiff as to the extent of the exercise of its discretion being founded on factors such as “whether the petitioner has slept on his rights and the political climate that existed during the PNDC administration which made it impossible or difficult to challenge the decision of the then military regime” cannot be accepted and must be rejected as an objective test for determining the exercise of a discretion.

In the welter of arguments advanced by the plaintiff, runs the unbroken cord of the case of Col Tachie-Menson. The plaintiff presents a simplistic argument in support of the colonel’s case and contends that he is entitled by the terms of section 35(2) of the transitional provisions to the Constitution, 1992 to review that case and where necessary to restore his properties and asset to him. The plaintiff contends that in so doing it has its own construction of the expression “or on any other basis” used in the subsection which if accepted would open wide the gates of its inquiry into all confiscated properties. The parties however agree that the expression must be construed ejusdem generis with the preceding descriptive words. Thus the expression “or on any other basis” must be construed ejusdem generis with the expression “on the basis of his holding a public or political office.” The Constitution, 1992 defines who is a public officer, though we do not think the definition is exhaustive. Indeed, there are existing laws which classify certain ad-hoc appointees as public officers and it is not inconceivable that in future such legislation may occur. We take as an example a priest or minister of religion when performing a marriage ceremony. The expression “political office” is not defined in the Constitution, 1992. However, the electoral laws so define such personalities who may be responsible for the management of political parties. Thus the expression “or on any other basis” means on the basis of holding any public or political office so designated by law or akin to such office

[p.719] of [1999-2000] 1 GLR 697 with similar powers and responsibilities.” Subsection (2) of section 35 of the transitional provisions of the Constitution, 1992 would therefore read:

“where any property of a person was confiscated on the basis of his holding a public or political office or on the basis of holding any other public or political office so designated by law or akin to such offices with similar powers or responsibilities. . .”

In our respectful opinion, it matters not whether such public or political office is held substantively or honorary. The important thing is proof that the confiscated asset or any part thereof was acquired before the assumption of that office. The classes of persons thus affected are limited to former public and political functionaries. It is not open to the generality of the citizenry to avail themselves of this subsection. Construing section 35 of the transitional provisions of the Constitution, 1992 as a whole, section 35(1) constitutes a claim tight barrier against the reversal “by any authority under this Constitution” of “any confiscation of any property and any other penalties imposed. . .”, while subsection (2) thereof merely creates a “chink” wherein a limited class of persons—public or political officers—may obtain redress. In the instant case, Col CR Tachie-Menson having been convicted in 1979, a petition by him to the plaintiff in 1994 would be squarely caught by section 13(2) of Act 459.

Nor would that be all. As already premised, the colonel’s case is the unbroken cord on which the whole entitlement of the plaintiff’s investigative powers in respect of confiscation decided under the former military regimes could be hung. The plaintiff contends that a combination of its powers under section 35(2) of the transitional provisions of the Constitution, 1992 and what it considers to be the retrospective effect of PNDCL 435—which we say is not the correct view—gives him the power to review confiscated property and where if it is satisfied restore the properties and assets to their former owners. In our respectful opinion such a proposition surely has within it an uncertain ambit which will permit the plaintiff to ferret about the archives of the past military regimes in order to fulfill the functions of his office. Such a power will also be

[p.720] of [1999-2000] 1 GLR 697 speculative and extend the limited discretionary power into areas of constitutional conflicts. In any case as we have found the matters under consideration “neither raises any issue of interpretation nor enforcement of any provision of the Constitution, 1992.”

It is enough at this stage to deal with the defendant’s objection that the plaintiff had no cause of action. A cause of action is of course a set or combination of facts which when traversed gives rise to an action at law. It must be a presentation in which a court of law would be able to adjudicate in favour of one or the other of the contesting parties or, indeed, against both or all the parties. In other words, there must be a lis, ie an issue or issues between the parties to be resolved by the court. In the instant presentation, there is no doubt that so many issues have been raised and traversed by the parties. The defendant urges this court to accept his several submissions in opposition to the plaintiff’s contention that he has power to do the things he claims in his writ. The defendant submits further that:” [We] cannot urge this court to grant the plaintiff a power to restore properties not covered by section 35(2). We think no such power exists.”

The defendant is right. The exercise of that power rests with the President in terms of section 4 of PNDCL 325 and section 29(3) of the transitional provisions of the Constitution, 1992. Surely, it is to determine the scope, ambit, limits and parameters within which any constitutional or statutory body could operate.

This litigation arises and the several arguments of the parties have been advanced on the total misapprehension of the fundamental difference between a “function” and a “jurisdiction”.

It is for the above reasons that we unanimously dismissed both claims by the plaintiff commission.

DECISION

Action dismissed.

EAA

Endnotes

1 (Popup – Footnote) [sic] same in original. 2 (Popup – Footnote) [sic] same in original.