APPIAH vs. THE REPUBLIC [1988]DLSC706

Date	1988-05-31
Suit No.
Citation No.	[1988]DLSC706

SOWAH C.J.

TAYLOR JSC

FRANCOIS J.S.C

LAMPTEY JA

ESSIEM J.A

ENOCH KOM (WITH HIM GEORGE KOM AND MRS. SYLVIA CUDJOE) FOR THE APPELLANT.

SAMMY BADDOO CHIEF STATE ATTORNEY (WITH HIM OSAFO SAMPONG PRINCIPAL STATE ATTORNEY) FOR THE REPUBLIC.

[1988]DLSC706
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													<main id="main" class="content" style="min-height: 60rem" >APPIAH <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1987-88] 2 GLR 377<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE
31 MAY 1988<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ENOCH KOM (WITH HIM GEORGE KOM AND MRS. SYLVIA
CUDJOE) FOR THE APPELLANT.<o:p></o:p>

SAMMY BADDOO, CHIEF STATE ATTORNEY (WITH HIM OSAFO
SAMPONG, PRINCIPAL STATE ATTORNEY) FOR THE REPUBLIC.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SOWAH C.J., TAYLOR AND FRANCOIS
J.J.S.C., LAMPTEY AND ESSIEM J.J.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.S.C.<o:p></o:p>Francois
J.S.C. delivered the judgment of the majority of the court. The cathartic
attempts to cleanse Ghana of corruption and the other ills of society which
accompanied the Armed Forces Revolutionary Council’s (the AFRC’S) assumption of
power in 1979 was not meant to end with the AFRC’s withdrawal from office. A
special tribunal was set up under the Armed Forces Revolutionary Council
(Special Tribunal and Other Matters) Decree, 1979 (AFRCD 23) to continue the
exercise, and Mr. J.E.K.A. Appiah, the appellant herein, by a letter dated 22
September 1979 was appointed its special prosecutor. His duties were spelt out
in section 9 of AFRCD 23 and section 17 (6) of the transitional provisions of
the Constitution, 1979.<o:p></o:p><o:p>&nbsp;</o:p>It is a
cruel irony that the prosecutor to whom was entrusted the continuation of the
duty of stable cleaning, has himself fallen foul and is criminally tainted. In
protesting his innocence, he urges a critical examination of the evidence led
in proof of the charges against him and to pronounce them inept. This appeal,
understandably in less express terms, urges also a consideration of the
backdrop of animosity and scheming hatred that the duties of prosecutor would
necessarily provoke, to explain the appellant’s predicament.<o:p></o:p><o:p>&nbsp;</o:p>An appeal
is essentially a rehearing, consequently it has been our duty to examine afresh
the material proffered by the prosecution in proof of the charges against the
appellant and, in relation to the applicable law, to test the legal viability
of the appellant’s conviction. We have also considered critically the
possibility of the appellant being the innocent victim of a criminal
conspiracy.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant’s duties under the statutory instruments above mentioned, revolved
purely around criminal prosecutions. Indeed, section 17 (6) of the transitional
provisions of the Constitution, 1979 stated:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(6) The
Special Prosecutor referred to in the Armed Forces Revolutionary Council
(Special Tribunal and Other matters) Decree, 1979 (AFRCD 23) shall be
responsible for the initiation and conduct of all prosecutions of criminal
offences before the Special Tribunal established under that Decree.”<o:p></o:p><o:p>&nbsp;</o:p>But it
would seem that the special tribunal itself on a number of occasions fell on
him for advice which he furnished in the form of minutes or comments. This role
outside his statutory functions was well known. Emboldened by the reliance
placed on his advice, the appellant’s own conception of his duties expanded to
embrace a wide spectrum of activity. He assumed the role of adviser to a number
of bodies who were tying up ends to assets confiscated under commissions of
inquiry. The appellant’s enthusiasm in this regard knew no bounds as he
extended himself outside the province of the tribunal itself. He invariably
signed documents as authorised by the tribunal’s chairman. This was disowned by
the chairman on at least two occasions. An unfortunate confusion was also
created by the tribunal and its registry using the same letterheads. These
matters emphasise a scenario which the prosecution claims met the legal
requirement of the charge, namely representation by colour of office. We shall
advert to this later, but for the moment two examples will be given of the
stage setting that could be criminally exploited. The GEA group of companies
had been dealt with by an appropriate authority and its assets confiscated. No
petition had been submitted to the tribunal to found any plausible jurisdiction
under section 23 of AFRCD 23 to enable GEA matters to be reopened. Yet the
appellant kept writing instructions regarding the disposal of GEA’s assets. The
point was reached when the co-ordinator of GEA sought clarification from the
tribunal itself. The cold print of evidence cannot conceal the shock and
surprise of the tribunal’s chairman at the extent of the appellant’s meddling
with GEA matters. A rebuke and instructions to renounce any interest in GEA
only provoked exhibit ZL, an irate response putting the blame rather on GEA.<o:p></o:p>