Sources of criminal procedure

 Constitution

 Criminal offences Act ( Act 29)

 Criminal an other offences procedure Act ( Act 30)

 Courts Act ( Act 459)

Constitutional and Individual Rights

Right to life
Commented [K1]: (1) No person shall be deprived of his life

Principle Statute Case

All persons have a right Article 13
intentionally except in the
exercise of the execution of a sentence of a court in respect of a
criminal
offence under the laws of Ghana of which he has been convicted.
(2) A person shall not be held to have deprived another person of his
life
in contravention of clause (1) of this article if that other person dies

to life and nothing

as the
result of a lawful act of war or if that other person dies as the result
of the
use of force to such an extent as is reasonably justifiable in the

must be done to
particular
circumstances.-
(a) for the defence of any person from violence or for the defence
of property; or
deprive a person of (b) in order to effect a lawful arrest or to prevent the escape of a
person lawfully detained; or
(c) for the purposes of suppressing a riot, insurrection or mutiny; or
(d) in order to prevent the commission of a crime by that person

1
this right

Exceptions to

the right to

life [Article

13 (1&2)]

 Where a person is

sentenced to

death after having

been convicted of

a crime

 Where a person

looses his or her

life a result of a

2
 lawful act of war

 Where a person Commented [K2]: Article 13(2) (a-d)

(a) for the defence of any person from violence or for the defence
of property; or
(b) in order to effect a lawful arrest or to prevent the escape of a
loses his life a s a person lawfully detained; or
(c) for the purposes of suppressing a riot, insurrection or mutiny; or
(d) in order to prevent the commission of a crime by that person

result of a

reasonable act of

application of

force justifiable

under the

circumstances set Commented [K3]: (1) Every person shall be entitled to his
personal liberty and no person shall be deprived of his personal
liberty except

out in clause (a-d)
Protection of personal Article 14
Commented [K4]: 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; or
(b) in execution of an order of a court punishing him for contempt of
court; or
(c) for the purpose of bringing him before a court in execution of an

liberty
order of a court; or
(f) for the purpose of preventing the unlawful entry of that person
into Ghana, or of effecting the expulsion, extradition or other lawful
removal of that person from Ghana or for the purpose of

Exceptions to the right Article 14 (1)
restricting that person while he is being lawfully conveyed through
Ghana in the course of his extradition or removal from one country
to another; or
(g) upon reasonable suspicion of his having committed or being
about to commit a criminal offence under the laws of Ghana.

3
to personal liberty (a, b,c,f&g)

 In execution of a

sentence

 Punishment for

contempt of court

 Bringing a person

before the court

 To prevent un law

entry into the

country

 On suspicion of

having committed

a crime or about

4
 to commit a crime
Rights of the arrested Article 14(2)
person
 Reasons for arrest
 A right to a lawyer
of his choice
Republic v Akosah: The first accused was charged on an Commented [K5]: (2) A person who is arrested, restricted or
detained shall be informed
immediately, in a language that he understands, of the reasons for
his
indictment with attempted abortion contrary to the arrest, restriction or detention and of his right to a lawyer of his
choice
Criminal Code, 1960 (Act 29), ss. 18 (2) and 58. The sixth
prosecution witness, a police officer, tendered in evidence
"without objection, two incriminating police statements
voluntarily made by the accused. In a submission of no
case made at the close of the prosecution's case, counsel
for the first accused raised an objection to the
admissibility of the statements, contending that the
statements ought not to have been admitted because the
accused was not informed of his right to consult counsel of
his own choice in contravention of article 15 (2) of the
5
1969 Constitution. In reply, counsel for the prosecution

submitted that the statements were admissible because

since under the Proclamation, 1972, s. 2 (1), the operation

of the 1969 Constitution was suspended, the fundamental

human rights provisions including article 15 (2) enshrined

in the Constitution must also be deemed to have been

suspended. Held: since under section 3 (2) of the

Proclamation, 1972, enactments and rules of law in

existence immediately before 13 January 1972 were saved

and not abrogated in spite of the suspension of the

operation of the 1969 Constitution, and since article 15 (2)

was clearly a rule of law, i.e a fundamental human right,

the statements made by the accused in contravention of

6
article 15 (2) were inadmissible and the objection must

therefore be sustained. Since the statements were the

only evidence against the first accused, he should not be

called upon to make his defence

Okorie alias Ozuzu v Republic

It was provided by article 15 (2) of the Constitution, 1969

that:

"(2) Any person who is arrested, restricted or detained

shall be informed immediately, in a language that he

understands, of the reasons for his arrest, restriction or

detention and of his right to consult Counsel of his own

7
choice."

In the course of police investigation of a crime of murder

shortly after the promulgation of the Constitution 1969,

the investigating officer took two cautioned confession

statements from B. The officer did not inform B. of his

right to consult counsel of his own choice as required by

article 15 (2) of the Constitution, 1969, neither did B.

himself make any request to consult counsel. A. and B.

were subsequently charged with murder. Evidence

adduced at the trial in support of the charge was

essentially circumstantial evidence, but in the case of B.,

the prosecution relied on the two confession statements

made by him. Counsel for B. objected to the admission of

8
the confession statements solely on the ground that they

were not made voluntarily. The objection was overruled.

Both A. and B. were convicted of murder and sentenced to

death. On appeal, counsel for B. for the first time raised,

inter alia, the issue that the two confession [p.273]

statements were made in breach of article 15 (2) of the

Constitution, 1969, and consequently that the statements

ought to have been excluded. The issues for the

determination of the court were: (a) whether B. could be

deemed to have waived the constitutional safeguard

provided for the protection of a suspected person to be

told of his right to consult counsel of his choice and

whether the point was belatedly taken and (b) if he did not

9
waive his constitutional right, whether the statements

were thereby rendered inadmissible in evidence.

Held, dismissing the appeal:

(1) the failure of a party at a trial to object to the

admission of inadmissible evidence did not preclude that

party from raising the objection on appeal, if the

admission of the inadmissible evidence constituted a

breach of a rule of law. An accused person could not be

held to have acquiesced in the loss of or to have waived his

fundamental rights and the prosecution must prove that he

knowingly waived those rights. In this case, there was no

proof of any conscious waiver and the objection to the

10
admissibility of evidence in breach of the supreme law of

the land could be taken at any stage and even on appeal.

Carnley v. Cochran, Corrections Director 369 U.S. 506

(1961) at p. 516 and Kojo v. Solaz (1938) 4 W.A.C.A. 191

cited.

(2) The object of the whole provision of article 15 (2) of

the Constitution, 1969, was to enable a person who thought

he was unlawfully detained or restricted to apply or to

instruct counsel to apply on his behalf to the High Court

for an order of habeas corpus to secure his release. Since

the Constitution was the fundamental law of the land, it

was the duty of the court to ensure its strict observance.

It was therefore irrelevant that an infringement of a

11
 constitutional right had not occasioned a miscarriage of

justice; any breach of the provisions of the Constitution

carried with it not only illegality, but also impropriety,

arbitrariness and dictatorship. Although the confession

statements were obtained in violation of the appellant's

constitutional rights and were inadmissible in evidence,

there was nevertheless sufficient evidence aliunde to

justify the conviction.

Commented [K6]: (3) A person who is arrested, restricted or
detained -
(a) for the purpose of bringing him before a court in execution of
an order of a court; or
(b) upon reasonable suspicion of his having committed or being

The 48 Hour Rule Article 14 (3)

about to commit a criminal offence under the laws of Ghana, and
who is not released, shall be brought before a court within fortyeight
hours after the arrest, restriction or detention.
Commented [K7]: (4) Where a person arrested, restricted or
The right of the Article 14(4) Gorman v The Republic detained under paragraph (a) or
(b) of clause (3) of this article is not tried within a reasonable time,
then,
accusecd to be realised What without prejudice to any further proceedings that may be brought
against
him, he shall be released wither unconditionally or upon reasonable
conditions, including in particular, conditions reasonably necessary
unconditionally or upon constitutes a to
ensure that he appears at a later date for trial or for proceedings
preliminary to trial.

12
reasonable conditions reasonable

if not tried within a time has been

reasonable time held to

depend on the

circumstances

of each case

Brefo v The Republi

reasonable time means a time reasonable in all the

circumstances. Such a time may be extended beyond its

normal span by special circumstances, and these may

include circumstances which did not exist at the time of

the contract but which supervene later, hampering

performance."

13
The meaning of reasonable time is now well settled: see

for instance Hartwells of Oxford Ltd. v. British Motor

Trade Association [1951] Ch. 50, C.A. After studying these

authorities I also in Dogbe v. The Republic (supra) offered

a definition. I said at p. 96:

"In view of the authorities it can safely be said that

reasonable time for an act is such period of time the

duration of which may be fairly conceded by any

reasonable person having regard to the purpose for which

the time is required, the nature of the act or duty to be

performed and all the attendant circumstances reasonably

existing or anticipated or supervening."

14
In this case the applicant was taken into custody on 17

April 1976. Committal proceedings were completed before

the district court and he was committed to this court on

10 January 1979. The trial of the case has been delayed

because on one or two occasions witnesses for the

prosecution have unavoidably been absent from court

through no fault of the prosecution. Furthermore, other

murder cases committed to the High Court before the

applicant's case are taking their turn on the court's cause

list. It seems therefore that there has not been delay

and if this delay is unreasonable time and in the applicant

has not been tried within a reasonable time and in the

circumstance he would be entitled to be released on bail.

15
However, in Dogbe v. The Republic (supra) at p. 97 I

furthermore dealt with unreasonable delay. In that case,

I referred to the observation of Lord Watson in Hick v.

Raymond and Reid [1893] A. C. 22 where he said at pp. 32-

33:

"... the condition of reasonable time has been frequently

interpreted; and has invariably been hold to mean that the

party upon whom it is incumbent duly fulfils his obligation,

notwithstanding protracted delay, so long as such delay is

attributable to causes beyond his control, and he has

neither acted negligently nor unreasonably."

[p.702]

16
As I have already pointed out, there has clearly been delay

in trying the applicant. The question is, is the delay

unreasonable? In the Dogbe case (supra) I proffered a

definition of unreasonable delay. I said at p. 97:

In my view an unreasonable delay necessarily means that

the person on whom it is incumbent to act has been

unreasonable in not acting timeously as Lord Watson points

out in the Hick case (supra). Such a person must

necessarily be at fault

Dogbe v The RepublicTthe applicants were committed to

the High Court to stand trial for murder and abetment of

17
murder. They applied to the High Court for bail pending

their trial but the application was refused. On 10

December 1975, they applied again for bail this time to

another judge of the High Court who was [p.83] seised

with the cases for the criminal session and before whom

were pending a long list of criminal cases. The application

which was based on grounds that the trial was likely to be

unreasonably delayed and that some of the applicants were

old and in state of ill-health, was again refused

Held: Held:

(1) the provisions of Act 30, s.96 (7) as amended by

N.R.C.D. 309 were mandatory and imperative. They ousted

18
the hitherto unquestionably ancient and time honoured

discretion of the courts to grant bail to a person accused

of crime when the case was, inter alia, even murder. In the

instant application no legal reasons had been urged on

behalf of the applicants which would entitle the court to

ignore the mandatory provisions of Act 30, s.96 (7). The

reasons given by the Attorney-General for which he

thought bail could be granted, ie. the age and health of the

four named applicants, were matters to which the court

had considered in the previous application. Okoe v. The

Republic [1976] 1 G.L.R. 80 at p. 97 applied. R. v. Kirby

(1714) Gilb. Cas. 310 cited.

(2) Although by virtue of Act 30, s.96 (7) as amended by

19
N.R.C.D. 309 the court was enjoined generally to refuse

bail in all murder cases, having regard to the language of

the provisions of the Constitution, 1969, art. 15 (3)(b) and

(4) it was quite clear that in all cases, murder cases

included, if an accused person in custody was not tried

"within a reasonable time" then he was entitled to be

released. A reasonable time for an act was such period of

time the duration of which might be fairly conceded by any

reasonable person having regard to the purpose for which

the time was required, the nature of the act or duty to be

performed and all the attendant circumstances reasonably

existing or anticipated or supervening

20
 Martin Kpebu v the Attorney General

Constitutionality of section 96(7) of Act 30 vis a vi Article

14(4), 19|© and 21 of the constitution.

Right to compensation Article 14 (5) Dr Solomon Sarfor v IGP & Attorney General Commented [K8]:

for unlawful arrest,

restriction and

detention ( this right is

to be enforced in the

civil courts)

The period of lawful Article 14(6) Gabriel Bosso v The Republic Commented [K9]:
Commented [K10]:

incarceration in
Brief Facts
respect of a n offence

is to be taken into On the 21st of January, 2009, we affirmed the decision of

21
consideration after a the Court of Appeal which substituted the appellant’s

person is convicted of murder conviction for manslaughter. Furthermore, we

an offence and is enhanced the sentence of 15 years imposed on him to 21

being sentenced.( the years with hard labour and reserved our reasons. We now

above provision does assign our reasons for those decisions that we took.

not allow the courts to

The appellant appeared at the jury trial in the High Court
impose a sentence less
Tamale, as the 1st Accused, was convicted with one other
than the minimum set
person for the murder of one Debora Biggor and
by statute)
sentenced to death, for conspiracy to murder and murder.

On appeal, the Court of Appeal substituted his conviction

of murder with manslaughter and imposed a sentence of 15

years with hard labour. It is from this decision of the

Court of Appeal that the Appellant, has appealed to this

22
court against both conviction and sentence on the following

original and additional grounds, four in all.

GROUNDS OF APPEAL The Court of Appeal erred by

convicting the Appellant for manslaughter when there is no

evidence that he was responsible for the death of Debora

Bigoor. The Court of Appeal erred by not acquitting and

discharging the Accused person (appellant herein) when

the evidence on record is that he mutilated the corpse of

Debora Bigoor which act cannot constitute manslaughter.

Sentence is excessive in view of the offence

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

that:

23
“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.” These clear

constitutional provisions enjoin judges, when passing

sentence, to take any period spent in lawful custody

before the conclusion of the trial into account. A

legitimate question which might arise in any given case and

which does indeed arise for consideration in this instant

appeal is how do we arrive at the conclusion that this

24
constitutional mandate has been complied with.

The record speaks for itself. Neither the appellant nor

the court made the slightest reference whatsoever to the

period the appellant had spent in custody before the trial

was concluded. We also find no reference to the

constitutional provision under reference or words, express

or implied to the effect that it weighed on the minds of

their Lordships. The only just conclusion in the

circumstances of this case is that the learned justices

failed to take Article 14 (6) into account before settling

on the term of 15 (fifteen) years imprisonment.

25
The rule that appeals are by way of rehearing is not

limited to substantive appeals only, but the sentences

passed, provided an appeal lies therefrom. We have taken

into account the period of 1 (one year) 3 (three) months

(25th December 2000 – 26th March 2001) he spent in

custody before conviction by the trial court. But we have

also taken into account all the circumstances surrounding

this case including the appellant’s own confession of the

barbaric manner in which he disposed of the dead body.

Certainly, he should have used the experiences he has

garnered over the years as a medical attendant much more

productively and certainly more profitably for the good

people he was supposed to serve than in the manner that

26
he did in respect of Debora and in the grotesque and

totally uncustomary manner in which he gruesomely

disposed of her corpse. We did not find any mitigating

circumstances justifying a sentence lower than that which

we imposed.

Ojo & Anor v The Republic

The appellants and two others were tried and convicted by

the national public tribunal on two counts of unlawful

importation of narcotic drugs contrary to section 1(1) of

the Narcotic Drugs (Control, Enforcement and Sanctions)

27
Law, 1990 (PNDCL 236) and unlawful possession of

narcotic drugs contrary to section 2( I) and (2) of PNDCL

236, and they were sentenced to the mandatory minimum

sentence of ten years' imprisonment on 6 July 1993.

Subsequently, the appellants appealed against their

sentence to the Court of Appeal on the ground that since

they had been arrested and detained without bail for two

years before they were sentenced, the tribunal had erred

in not taking those two years into account when they were

sentenced as required by article 14(6) of the Constitution,

1992.

Held: Per Benin JA. Although article 14(6) of the

Constitution 1992 . enjoined a court before sentencing a

28
convicted person to take into account any period he had

spent in lawful custody, since by the provision of section

315(2) of the Criminal Procedure Code, 1960 (Act 30) a

sentence of imprisonment should start from the date it

was pronounced, a court was not entitled to backdate a

sentence. Accordingly, under the law, the judge had to

take the period spent in lawful custody into account

before imposing the sentence. Thus when a court imposed

a term of imprisonment it should be presumed to have

imposed it in the light of article 14(6) of the Constitution,

1992. Accordingly, in the instant case, the tribunal could

not have imposed the mandatory [pg 171] minimum ten

years= imprisonment on the appellants with a direction

29
that it shou1d run from the date the appellants were taken

into lawful custody since that would be contrary to the

provision of section 315(2) of Act 30. Nor could it have

imposed eight years' imprisonment on them in view of the

two years they had spent in lawful custody since such a

sentence would be contrary to the mandatory provision of

PNDCL 236. R v Gilbert (Arthur Ernest) (1974) 60 Cr App

R 220, CA applied.

Per curiam per Brobbey lA. As a general guide, 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

30
 announced before the precise period to be served in prison

has been announced publicly by the trial judge.

Right to compensation Article 14(7) Dodzie Sabbah v The Republic Commented [K11]: “Where a person who has served the whole
or a part of his sentence is acquitted on appeal by a court, other
than the Supreme Court, the court may certify to the Supreme Court
that the person acquitted be paid compensation; and the Supreme
after acquittal on WOOD (MRS.) CJ, Court may, upon examination of all the facts and the certificate of
the court concerned, award such compensation as it may think fit;
or, where acquittal is by the Supreme Court, it may order

appeal Article 14(7) of the 1992 Constitution provides an extra

compensation to be paid to the person acquitted.”

layer of protection to personal liberty, consolidating the

guaranteed fundamental human right to liberty enshrined

in article 14 (1) of the 1992 Constitution. It states:

“Where a person who has served the whole or a part of his

sentence is acquitted on appeal by a court, other than the

Supreme Court, the court may certify to the Supreme

Court that the person acquitted be paid compensation; and

31
the Supreme Court may, upon examination of all the facts

and the certificate of the court concerned, award such

compensation as it may think fit; or, where acquittal is by

the Supreme Court, it may order compensation to be paid

to the person acquitted.”

The full scope and effect of article 14 (7) has however

never been subjected to judicial scrutiny since the coming

into force of the 1992 Constitution. The dominant question

in this appeal centres on the grounds on which an appellate

court, other than the Supreme Court, may certify to the

Supreme Court, pursuant to article 14 (7), that an

individual who has served either the whole or part of his

sentence, and is subsequently acquitted, be paid

32
compensation.

Central to this broad question is the true and proper

construction to be placed on the article 14(7). This appeal

thus involves an examination of the jurisprudence on:

(a) the public law remedy available to an aggrieved person

under article 14 (7) and;

(b)the principles governing the payment and assessment of

compensation, against the State.

Facts: In January 1993, the applicant and his brother were

arrested and charged with the offences of conspiracy to

murder and murder one Amegbor Amedorme. They were

convicted on both charges and sentenced to death on

August 7th, 2001. He however successfully appealed his

33
convictions on both charges on grounds of jury

misdirection.

Following his acquittal, on the 8th of July 2004, he applied,

under article 14(7), to the Court of Appeal differently

constituted, for certification to the Supreme Court that

he be paidC400,000,000(four hundred million old cedis) as

compensation for the losses he claimed he had suffered

during the period of his incarceration. In opposing the

application the State, inter alia, contended via affidavit

evidence that the appellant was:

“…lawfully convicted and sentenced according to law after

a fair trial where the Natural Justice rule was fully

observed

34
The Appellant being dissatisfied with the decision has

appealed to us on two grounds:

i. “Failure by the Court to appreciate that the award

of compensation as provided for under article 14(7)

of the 1992 Constitution is not hedged with any

antecedent conditions other than the simple

acquittal of the Applicant, and that this is no doubt

based on the inherent injustice of arresting and

detaining a person on inadequate or non-existent

legal grounds.

ii Failure by the Appellate Court to appreciate that the

fundamental abuse of the rights of the Applicant took

place at the very moment of his arrest and detention in

35
Ada WITHOUT CAUSE, and that all other processes,

whether “proper” or not, were nugatory.”

Firstly, under article 14(7), does the acquittal per se(by

itself) of a person who has served the whole or part of his

sentence automatically entitle that individual to

recompense, for which reason an appellate court (other

than the Supreme Court) which orders his acquittal, is

under a constitutional obligation to certify to the Supreme

Court that he be paid compensation?

Secondly, where the appellate court certifies to the

Supreme Court that the acquitted person be paid

compensation, is the Supreme Court bound by the

reference and is thus mandatorily required to order

36
compensation against the State?

Thirdly, if the power exercisable by the two courts is

discretionary and not mandatory, what are the eligibility

criteria, under article 14 (7) for certification, for ordering

that compensation be paid and finally for assessing the

quantum?

Held: The question is: what principled criteria would

inform the appellate court’s decision to certify to the

Supreme Court that a person acquitted be paid

compensation? Under article 14 (7), the criterion which

poses little difficulty is the requirement that the victim

must have spent the whole or part of his sentence.

Admittedly, it raises another troubling question, though,

37
namely, can a person convicted for the offence of murder,

and who is sentenced to death by hanging, and serves time

in prison, awaiting execution, and who is subsequently

acquitted, be categorised as a person who has served the

whole or part of his sentence, in terms of article 14 (7),

and consequently qualified to apply for compensation?

I should think so given the philosophy underlying

compensation awards and our desire not to defeat, but

advance, the object and purpose of the article 14 (7). Even

though the individual was not sentenced to a specific term

of imprisonment, it is plain that years spent under cruel

prison conditions awaiting execution of the death

sentence, is in the nature of imprisonment, and is obviously

38
 bound to have a devastating effect on him. Commented [K12]: (1) The dignity of all persons shall be
inviolable.
(2) No person shall, whether or not he is arrested, restricted or
retained, be
Right to human dignity Article 15 subjected to -
(a) torture or other cruel, inhuman or degrading treatment or
punishment;

/ respect for human

(b) any other condition that detracts or is likely to detract from his
dignity and worth as a human being.
(3) A person who has not been convicted of a criminal offence shall
not be

dignity. treated as a convicted person and shall be kept separately from

convicted
persons.
(4) A juvenile offender who is kept in lawful custody or detention
The juvenile offender shall be
kept separately from an adult offender.
Commented [K13]: (1) A person charged with a criminal
has the right too be offence shall be given a fair hearing
within a reasonable time by a court.
(2) A person charged with a criminal offence shall -

kept separately from

(a) in the case of an offence other than high treason or treason, the
punishment for which is death or imprisonment for life, be tried by
a judge and jury and -
(i) where the punishment is death, the verdict of the
the adult offender jury shall be unanimous; and
(ii) in the case of life imprisonment, the verdict of
the jury shall be by such majority as Parliament
may by law prescribe;
Fair trail and the right Article 19 (b) in the case of an offence tribal by a Regional Tribunal the
penalty for which is death, the decision of the Chairman and the
other panel members shall be unanimous;

to be heard within a
(c) be presumed to be innocent until he is proved or has pleaded
guilty;
(d) be informed immediately in a language that he understands,
and in detail; of the nature of the offence charged;
reasonable time. (e) be given adequate time and facilities for the preparation of this
defence;
(f) be permitted to defend himself before the court in person or by

This right avails both

a lawyer of his choice;
(g) be afforded facilities to examine, in person or by his lawyer, the
witnesses called by the prosecution before the court, and to obtain
the attendance and carry out the examination of witnesses to testify

the accused who is on on the same conditions as those applicable to witnesses called by
the prosecution;
(h) be permitted to have, without payment by him, the assistance of
an interpreter where he cannot understand the language used at the
trial; and ...

39
bail and the accused

who is on remand.

Article mandates jury

trail for offences

which are punishable by

death or by

imprisonment for life.

In the above instance

the verdict of the jury

must be unanimous

Exception to the

above:

 In the offence of

40
 treason it is tried

by 3 justices of

the High court

whose decision

shall be unanimous.

 An acussed person

is innocent until

proven guilty

The general rule is for Article 19

all proceedings to be

conducted in the

presence of accused

41
person and the courts

would normally adjorn

proceddings if an

accused is absent from

court.

Exceptions to the Article Bonsu alias Benjilo v The republic

above principle 19(3)(a) (b) one GA, an employee of the General Post Office, Accra,

 Where the the fourth accused, collected an EMS parcel posted from

accused refuse to Thailand and addressed to one 1M 2nd put it in a disused

appear in court fridge in his office. When he was later arrested by

after being duly officials of the Narcotics Control Board and the Customs

notified. Excise and Preventive Service who had amounted

42
 Where the surveillance on him, he retrieved the parcel and led the

accused conducts officers to the office of one A, the third accused, to

himself in a whom he handed over the parcel. After A has passed on

manner as to make the parcel to a stationary dealer in front of his office, he

the continuation was also arrested. When questioned as to the owner of the

of the proceedings parcel, he led the officials to the shop of the appellant and

in his presence gave the parcel to him and he also passed it on to his

impracticable and secretary to record it in their receipt of letters and

court orders him books. Upon subsequent interrogation by the officials, the

to be removed for appellant claimed that the parcel belonged to one M who

trail to proceed had asked him to keep it until it was collected from him by

[pg 200] the first accused, a Nigerian.

Held: On further appeal by the appellant from that

43
decision to the Supreme Court, he contended, inter alia,

that the trial tribunal had erred in trying the first and

fifth accused person~ in their absence and (hat that error

had vitiated the whole trial.

Held, dismissing the appeal: (I) since the first and fifth

accused persons had been notified of the charges of drug

offences against them and their trial had started in their

presence in the circuit tribunal but they had absconded

upon the grant of bail to them and they had refused

thereafter to attend their trial, they had demonstrated

by their conduct that they were not prepared to appear

for an~' trial, and the transfer of the case to the Regional

Tribunal, a higher court, would not have changed their

44
intention not to attend their trial. Since they had been

notified of their trial in accordance with the provisions of

[pg 201] article 19(3)(a) of the Constitution, 1992 the

mere transfer of their cases to the Regional Tribunal

could not be said to have altered the fact that they had

earlier been notified of their trial, nor should that be

allowed to nullify the earlier notification given to them.

Since by their own conduct of leaving the jurisdiction,

they had refused to stand trial and had intentionally

prevented service of any further documents on them, they

could not be allowed to benefit from their misconduct.

Accordingly, they would be held to have known of their

trial in absentia at the time of their notification. In any

45
 case, the trial of the first and the fifth accused in

absentia, even if wrong, could not benefit the appellant.

Under the 2nd

exception, the accused

person is entitled to

the record of

proceedings and hes is

to be furnished with it

within a reasonable

time not exceeding 6

months

Aricle 19 also

46
gurantees that a

person is not charged

with a criminal offence

founded on an act of

omission

Article 107(b) does not Commented [K14]: (b) which operates retrospectively to
impose any limitations on, or to adversely affect the personal rights
and liberties of any person or to impose a burden, obligation or
liability on any person except in the case of a law enacted under
permit parliament to articles 178 0r 182 of this
Constitution.

pass an act that has

retrospective effect

limiting the rights and

liberties of persons.

Article 19(5) prohibits
retrospective
Commented [K15]: (5) A person shall not be charged with or
held to be guilty of a criminaloffence which is founded on an act or
omission that did not at the time it
took place constitute an offence.

47
punishment

It also prohibits the

courts from imposing

on the accused person

a penalty more that the

maximum penalty

pesdcribed for that

offence Article 19(6) Commented [K16]: No penalty shall be imposed for a criminal
offence that is severer in degree or description than the maximum
penalty that could have been
imposed for that offence at the time when it was committed.
Article 19(7). The Exceptions to the principle in Article 19 Commented [K17]: (7) No person who shows that he has been
tried by a competent court for a criminal offence and either
convicted or acquitted, shall again be tried for that offence or for any
principle of autrefois  Where the subsequent trail is on the of a superior other criminal offence of which he could have been
convicted at the trial for the offence, except on the order of a
superior court in the course of appeal or review proceedings relating

acquit/convict court in the course of an appeal or review proceedings

to the conviction or acquittal.

This a plea by a person in relation to the conviction or acquittal

that he or she has  Where the original trial is in respect of an acquittal

48
already been tried and
acquitted or convicted
for the offence of high treason or treason Article Commented [K18]: (8) Notwithstanding clause (7) of this
article, an acquittal of a person on a trial for high treason or treason
shall not be a bar to the institution of proceedings for any other
offence against that person.
19(8)

by a court of  Where a member of the disciplined force is being

competent jurisdiction tried for a criminal offence after having been

of the same offence convicted or acquitted under the disciplinary law of

or for any other the force

offence that could Article 19(16)(b) Commented [K19]: (b) clause (7) of this article, to the extent
that the law in question
authorises a court to try a member of a disciplined force for a
criminal offence notwithstanding any trial and conviction or
have been convicted of acquittal of that member under the disciplinary law of the force,
except that any court which tries that member and convicts him
shall, in sentencing him to any punishment, take into account any

at the trail of the

punishment imposed on him under that disciplinary law.

offence

Right of an accused Article 19(10) Okyere v Republic Commented [K20]: (10) No person who is tried for a criminal
offence shall be compelled to
give evidence at the trial.

person to remain silent Where an accused person in the exercise of his

at his trail. he shall not constitutional right refuses to give evidence at his trial,

49
be compelled to give fails or refuses to give a statement to the police when he

evidence is charged with a crime, the trial judge ought not to infer

guilt from the accused person’s constitutional right to

keep silent.

No person shall be Article 19(11) British airways v AG Commented [K21]: (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.

convicted of an offense Since under article 19(11) of the Constitution, 1992 it was

unless it is defined and unconstitutional to convict or punish any person unless a

the penalty for it written law defined or provided sanctions for the offence,

prescribed under law the provision of section 8( 1)( e) of the Interpretation

Act, 1960 (CA 4) dealing with the effect of a repeal,

revocation or cesser of an enactment was unconstitutional

in respect of criminal offences contained in a repealed law

such as PNDCL 150 and therefore inapplicable to the

50
criminal case pending against the plaintiffs. It would have

been different if the plaintiff 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

ISO. Since Act 516 was silent on that issue and merely

repealed PNDCL ISO the provisions of article 19(11)

became applicable to the criminal case pending against the

plaintiffs.

Tsatsu Tsikata v The Republic

In Ground (a), Appellant's Counsel states that "the Court

of Appeal erred in using a repealed law as the

basis for its failure to enforce Article 19(5) of the

Constitution when the charges against the accused were

51
not brought under that law."

Article 15(5) of the Constitution essentially prohibits the

creation of and punishment for retroactive

crimes. Counsel's submission in this regard is a reference

to the portion of the Judgment of the Court of

Appeal in which Justice Amonoo-Monney took note of the

argument of the Director of Public

Prosecutions (DPP) that section 3 of Act 458, which

created the offence with which the appellant is

charged in the first three counts, i.e. section 179A(3)(a)

of the Criminal Code, was a direct successor of

section 9(1)(a) of the Public Tribunals Law, 1984 [PNDCL

78]. The latter enactment came into force on

52
21st December 1983 but was repealed on 6th July, 1993

by Act 459. Section 9(1) (a) of the Law did

contain the offence of "wilfully causing monetary loss to a

public body".

Nothing in the Judgment of the Court of Appeal suggests

that its decision was based on the repealed

PNDCL 78. The Court would indeed have been in error if it

did so. For, while PNDCL 78 was in force in

1991 when the events leading to the indictment of the

appellant began to unfold, that statute was not

referred to in the charge sheet, nor was it subsequently

amended to reflect what would have amounted to a

critically important change. However it seems to us that

53
 Justice Amonoo-Monney was merely making a

reference to the historical fact that the essence of the

crime of causing financial loss to the state was not

new to our criminal law. Nowhere in the judgment of the

Court of Appeal did the Court endorse

retroactive crimes. We will therefore give no further

consideration to Appellant Counsel's submissions on

the accepted presumption against retroactivity embedded

in the 1992 Constitution.

Commented [K22]: (12) Clause (11) of this article shall not
prevent a Superior Court from
MALLAM ALI YUSUF ISSAH v. THE REPUBLIC no 2 punishing a person for contempt of itself notwithstanding that the act
or
omission constitution the contempt is not defined in a written law
and the
penalty is not so prescribed
Commented [K23]: (13) An adjudicating authority for the
Exception to the above Article 19(12) determination of the existence or
extent of a civil right or obligation shall, subject to the provisions of
this

Adjudicating authority Article 19(13) Aboagye v Ghana Commercial Bank Ltd

Constitution, be established by law and shall be independent and
impartial; and where proceedings for determination are instituted by
a
person before such an adjudicating authority, the case shall be given
a fair
hearing within a reasonable time.

54
shall be independent,

impartial and any case

brought before it shall

be given a fair hearing

within a reasonable The rule of natural justice as defined in Osborns Concise Law
Dictionary is as follows:
time.
"The courts in the interest of fairness impose certain obligations
upon those with power to take decisions affecting other people.
These obligation arise from the rules of natural justice which
although "sadly lacking in precision have generally been subsumed
under two heads, the audi alteram partem" rule and the
"nemo judex in sua" rule. By virtue of these rules decision makers
must act fairly, in good faith and without bias and must afford each
party the opportunity to adequately state his case".
Natural justice is actually fair play in action and is applicable to the

55
ordinary courts, adjudicating tribunals and administrative bodies
which have the power to adjudicate in disciplinary cases, and which
make decisions affecting rights of other persons. In other words, the
fundamental rules of natural justice include trial and strict adherence
to the rules of procedure applicable to the proceeding In this case the
administrative body trying the plaintiff, who suffered the highest and
toughest sanction of dismissal, should in the cause of fair trial have
been served with proper disciplinary charges and given adequate
notice of the date of hearing as well as be given the opportunity to
be heard. The mere fact that the rules of the Bank did not mention
this does not relieve defendant of the duty to comply with the rules
of natural justice and fair trial. Just as in a civil proceeding proper
service of notice on a defendant is a condition precedent to a fair
trial so also in this case a proper notice to plaintiff is a sine qua non
to a fair hearing of the case against him. If this is neglected to be
done a final decision would be declared a nullity.

56
 I think that the Appellant has succeeded in showing that he did not
receive a fair trial by the Defendant Bank in respect of the
disciplinary proceedings held against him and that his conviction
and the decision to dismiss him for negligence is null and void. The
Court of Appeal erred in reversing the decision of the High Court.
The appeal of Appellant is allowed and the decision of the trial High
Court wholly restored, including the award of damages granted to
the Plaintiff by the High Court.
Proceeding should be Article 19(14) Commented [K24]: (14) Except as may be otherwise ordered by
the adjudicating authority in the interest of public morality, public
safety, or public order the
proceedings of any such adjudicating authority shall be in public.
generally held in public.

The only exception is

where in the interest

of public morality,

safety or order the

57
court orders that the

matter would not be

heard in public

Proceedings before a Article 19(15)
court to be held in
Commented [K25]: (15) Nothing in this article shall prevent an
adjudicating authority from
excluding from the proceeding persons, other than the parties to the
proceedings and their lawyers, to such an extent as the authority-
(a) may consider necessary or expedient in circumstances where
publicity would prejudice the interests of justice; or
(b) may be empowered by law to do in the interest of defence,

camera
public safety, public order, public morality, the welfare of persons
under the age of eighteen or the protection of the private lives of
persons concerned in the proceedings.

Article

19(16)(b) Commented [K26]: (16) Nothing in, or done under the authority
of, any law shall be held to be
inconsistent with or in contravention of, the following provisions
(a) paragraph (c) of clause (2) of this article, to the extent that the
law in question imposes upon a person charged with a criminal
offence, the burden of providing particular facts; or
(b) clause (7) of this article, to the extent that the law in question
authorises a court to try a member of a disciplined force for a
criminal offence notwithstanding any trial and conviction or
acquittal of that member under the disciplinary law of the force,
except that any court which tries that member and convicts him
shall, in sentencing him to any punishment, take into account any
punishment imposed on him under that disciplinary law

58