THE REPUBLIC vs. CHARLES WEREKO- BROBBEY AND KWADWO OKYERE MPIANI [2010]DLHC4858

Date	2010-08-10
Suit No.	CASE NO. ACC 39/ 2010
Citation No.	[2010]DLHC4858

SAMUEL MARFUL-SAU (JUSTICE OF APPEAL)

MR. ANTHONY GYAMBIBY

CHIEF STATE ATTORNEY WITH HIM

MRS. KEELSON

PRINCIPAL STATE ATTORNEY AND MR. PAUL ABARIGA

STATE ATTORNEY FOR THE REPUBLIC.

MR. AKOTO AMPAW WITH HIM MR. ALEX QUAYNOR FOR THE FIRST ACCUSED/ APPLICANT

MR. YONY KULENDI WITH HIM MR. EGBERT FAIBELLE JNR. FOR THE SECOND ACCUSED/APPLICANT

[2010]DLHC4858
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>CHARLES WEREKO- BROBBEY AND KWADWO OKYERE MPIANI<o:p></o:p>[HIGH
COURT (FAST TRACK DIVISION), ACCRA]<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">

CASE NO. ACC 39/ 2010&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 10TH
AUGUST, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
ANTHONY GYAMBIBY, CHIEF STATE ATTORNEY WITH HIM&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; MRS. KEELSON,
PRINCIPAL STATE ATTORNEY AND MR. PAUL ABARIGA, STATE ATTORNEY FOR THE REPUBLIC.<o:p></o:p>MR.
AKOTO AMPAW WITH HIM MR. ALEX QUAYNOR FOR THE FIRST ACCUSED/ APPLICANT<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">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>The
first accused person namely Charles Wereko Brobbey, was the Chief Executive
Officer of the Ghana @ 50 Secretariat. The second accused Kwadwo Okyere Mpiani
was the Chairman of the National Planning Committee of the Ghana @ 50
Celebration.&nbsp; The second accused was also
the former Chief of Staff and Minister for Presidential Affairs under the government
of former President J. A. Kuffour.<o:p></o:p>The two have been charged
before this court with four counts of willfully Causing Financial Loss to the
State contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960 (Act
29).&nbsp; The two have pleaded not guilty to
all the four counts.&nbsp; Before the
prosecution could start adducing evidence to discharge its burden, the accused
persons separately filed two motions on notice challenging the jurisdiction of
this court in trying them.&nbsp; The
application filed by the first accused on the 24th May 2010, prayed
as follows:<o:p></o:p>‘’ (a) an order striking out the
instant criminal action and charges against the first accused person and dismissing
same as being premature and a gross violation of the right of appeal of first accused
person against adverse findings of a Commission of Inquiry under Article 280
(1), (2), (3), (4), (5) and (6) of the 1992 Constitution or in the alternative;
<o:p></o:p>‘’(b) an order staying proceedings of
this criminal action until such time as the period allowed under the Constitution
for first accused to challenge any adverse findings made against him by the
Commission of Inquiry into the activities of Ghana @ 50 Secretariat has
elapsed.<o:p></o:p>Attached to first accused
application were the Charge Sheet filed in this case and a photocopy of the
White Paper on the Report of the Ghana @ 50 Commission of Inquiry.<o:p></o:p>The second accused in his
application to this court prayed that the charges against him be struck out and
the criminal action dismissed as being unlawful and a gross violation of his
constitutional right.&nbsp; The second accused
also exhibited the Charge Sheet and the White Paper on the Report of the
Commission of Inquiry on the Ghana @ 50 celebrations. For purposes of easy
reference the two accused persons will be referred to simply as applicants in
this ruling.<o:p></o:p>APPLICANTS
ARGUMENTS<o:p></o:p>Learned Counsel for both applicants
have argued strongly that the prosecution mounted against the applicants
violates articles 278 and 280 of the 1992 Constitution.&nbsp; The main thrust of learned Counsel for applicants
argument &nbsp;is that, in as much as the
charges preferred against the applicants originates from the adverse findings of
the Ghana @ 50 Commission of Inquiry, the Attorney General is wrong in law by
initiating this trial against applicants, who have a right of appeal against
the said findings.&nbsp; The reasons advanced
by Counsel are that by virtue of Article 280 of the 1992 Constitution the
adverse findings of the Commission of Inquiry constitute a judgment of the High
Court. They argued that being a judgment of the High Court; the Attorney
General cannot prefer charges from the adverse findings. According to learned
Counsel for applicants the only court proceedings that could take place after
the Commission’s report, is for the applicants to exercise their right of
appeal against the findings of the Commission at the Court of Appeal.&nbsp; Counsel submitted that in view of applicants’
constitutional rights of appeal, which they intend to exercise, the High Court
cannot investigate or evaluate the adverse findings as the Attorney General is
seeking to do in mounting this prosecution. Counsel for the second applicant in
particular traced the constitutional history of Commissions of Inquiry in Ghana
before the 1969 constitution and submitted that the framers of the 1969, 1979
and 1992 constitutions accepted the proposal that the findings of Commissions
of Inquiry should no longer form the basis of criminal trials. Learned Counsel
argued that the period before 1969 when adverse findings of Commissions of
Inquiry were deemed prima facie evidence against persons adversely affected was
no longer the law in view of article 280(2) of the 1992 constitution, which
virtually is a re-enactment of the provision in the 1979 constitution. Counsel
further argued that the applicants appeared before the Commission as witnesses
complying with the Commission’s requirement and like all such persons they
should not be subjected to any civil or criminal proceedings, under any
enactment in accordance with section 8(2) of the Commission of Inquiry (Ghana@
50) Instrument, 2009, CI 61. Learned counsel again submitted that by initiating
this prosecution contrary to the provisions of article 280(2) of the 1992
Constitution as well as section 8(2) of CI 61, the Attorney General was exercising
her discretion wrongly and arbitrary contrary to article 296 of the 1992
constitution. <o:p></o:p>Learned Counsel for the
applicants therefore submitted forcefully that the instant prosecution of their
clients is a blatant violation of their constitutional rights and for that
matter the criminal charges should be struck out and the action against the
applicants dismissed or stayed until their rights of appeal as provided by the
constitution elapses.<o:p></o:p><</main>