TSATSU TSIKATA vs. THEREPUBLIC [2004]DLSC11117

Date	2004-11-08
Suit No.	(CRIMINAL APPEAL NO JJ/4/2004)
Citation No.	[2004]DLSC11117

ATUGUBA JSC

SOPHIA AKUFFO JSC

WOOD JSC

BROBBEY JSC

PROF OCRAN JSC

PROF£ VO DANKWA (WITH HIM MAJOR (RTD) RS AGBENOTO) FOR THE APPELLANT

OPP (WITH HIM AUGUSTINE OBUOR ASSISTANT STATE ATTORNEY) FOR THE RESPONDENT

[2004]DLSC11117
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													<main id="main" class="content" style="min-height: 60rem" >TSATSU TSIKATA<o:p></o:p>vs.<o:p></o:p>THEREPUBLIC<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">(CRIMINAL
APPEAL NO JJ/4/2004)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;DATE:
8 NOVEMBER 2004<o:p></o:p>

</div>COUNSEL:<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>CORAM:<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

ATUGUBA JSC, SOPHIA AKUFFO JSC, WOOD JSC,BROBBEY JSC, PROF OCRAN JSC<o:p></o:p>

</div>&nbsp;PROF OCRAN JSC
delivered the judgment of the majority of the court. This case came before us
by way of an appeal from the judgment of the Courtof Appeal, delivered on
27November 2003, in which the Court of Appeal upheld the rejection by the Fast
Track High Court, Accra of a motion of submission of no case made by the
appellant after the close of the prosecution's case.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The appellant was arraigned before the
Fast Track High Court, Accra on three counts of wilfully causing financial loss
to the State, contrary to section I 79A(3)(a) of the Criminal Code, 1960 (Act
29), as amended by the Criminal Code (Amendment) Act, 1993 (Act 458); and on a
fourth count of intentionally misapplying public property, contrary to section
I (2) of the PubI ic Property Protection Decree, 1977 (SMCD 140). Counsel for
the appellant and the Director of Public Prosecutions have obliged us
respectively with "submissions on behalfof appellant" and
"statementof case by the prosecution/respondent", along with a string
of local and foreign judicial opinions to buttress their cases. The submissions
by the appellant's counsel were rather detailed, and actually amounted to
submissions within submissions. Nonetheless, because the liberty of his client
is at stake, we will accord them the detailed consideration they deserve.<o:p></o:p>Grounds of appeal<o:p></o:p>The
appellant has filed nine grounds of appeal against the decision of the Court of Appeal delivered on
27 November 2003. By putting them in groups and dealing with some of the
grounds of appeal together in the submission on behalf of the appellant, his
counsel implicitly acknowledges that there is some overlap between the various
grounds. Nonetheless, we will attempt, as far as possible, to deal with all
aspects of the grounds of appeal raised by counsel under one head or another.
Rather than setting out the grounds of appeal seriatim, we shall state each
ground or related grounds of appeal separately, followed immediately byour
consideration and holdingon the mattJrs raised therein, before moving on to
deal with the next ground of appea .<o:p></o:p>Ground (a) of the grounds of appeal<o:p></o:p>In
ground (a), the appellant's counsel states that "the yourt 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 not brought under
that law."<o:p></o:p>Article
19(5) of the 1992 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 whi h
Amonoo-Monney JA took note_of thelargument of the Director of Public
Prosecutions (DPP) that section I19A.(3)(a) of the Criminal Code, 1960 (Act
29), as amended by Act 45 , which created the offence with which the appellant
is charged in the first three counts, was a direct successor of section 9(1)(a)
of the Publi Tribunals Law, 1984 (PNDCL 78). The latter enactment came into
force on 21 December 1983 but was repealed on 6 July 1993 by Act 458. Section
9( I )(a) of the Law did contain the offence of "wilfully dausi_ng
monetary loss to a public body."&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>We
have to point out that 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 appel Iant began to unfold, that
statut9 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 Amonoo-Monney JA 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 ap</main>