IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
DANIEL AYAREBA - (Appellant/Applicant)
ATTORNEY GENERAL - (Respondent/Respondent)
DATE: 23RD MARCH, 2017
CRIMINAL APPEAL/MOTION NO: H3/6/2017
JUDGES: KUSI-APPIAH J.A. SITTING AS A SINGLE JUDGE
MR. ANTHONY NAMOO FOR THE APPELLANT/APPLICANT
MRS. MARINA APPIAH OPARE, CHIEF OF STATE ATTORNEY FOR THE RESPONDENT/RESPONDENT
This application turns on the correct interpretation to place on article 14(7) of the 1992 Constitution.
There are other ancillary matters too. The article provides that:
“14(7)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 Supreme Court that the person acquitted be paid compensation, and 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 the acquittal is by the Supreme Court, it may order compensation to be paid to the person acquitted.”
The appellant/applicant (hereinafter referred to as the applicant) contends that by this provision a person who has served the whole or a part of his sentence is acquitted on appeal by a court, is entitled to be paid compensation upon that court certifying same to the Supreme Court. The respondent/respondent (hereinafter called the respondent) contends otherwise. This is the bone of contention in this application, but as I said earlier there are other matters which will be unfolded shortly.
For the proper appreciation of the facts which culminated in this application, let me give a brief background information to this case. The applicant and five others were arraigned before the High Court on two charges, namely conspiracy to commit robbery, and robbery contrary to Sections 23(1) and 149 respectively of the Criminal Offences Act, 1960 (Act 29). The jury returned a guilty verdict on both counts and the trial judge convicted and sentenced them accordingly to 45 years I.H.L. each on 16th June, 2011.
Dissatisfied with the decision of the trial High Court, the applicant appealed against his conviction and sentence to the Court of Appeal. On 25th June, 2015 this court (differently constituted) allowed the appeal, set aside the conviction and sentence and thereby acquitted and discharged him.
Pursuant to the applicant’s successful appeal, he applied by way of a motion to this court, praying for a certificate to the Supreme Court recommending payment of compensation to him under article 14(7) of the Constitution 1992.
Arguing the application, counsel for the applicant gave a resume of the case from applicant’s arrest in July 2006 to prosecution and conviction on 16th June 2011 for 45 years I.H.L. He submitted that the applicant’s appeal succeeded after he had spent almost 9 years in prison custody. Counsel argued that the applicant has suffered a lot and particularised same in paragraph 11 of his affidavit in support of his motion and makes references to the time he spent in confinement, the loss of his livelihood and wife’s consortium while in custody and the general stigma attached to his conviction among others.
Learned counsel for the application stated that article 14(7) of the Constitution is founded on the principles of tort that, a person who is unlawfully detained or restricted is entitled to compensation for injury to his personal dignity. These he submitted are similar to actions for damages for false imprisonment or malicious prosecution. He therefore relied and referred to the case of: Dodzie Sabbah vrs. The Republic (2015) 88 G.M.L.R. page 1 at page 5 where the Supreme Court held inter alia that:
“When an innocent person has had his life stripped from him only to endure the horror of imprisonment, justice demands that upon his acquittal, the individual be compensated for the harm suffered… The agony of prison life and the complete loss of freedom are only compounded by the feelings of what might have been, but for the wrongful conviction. Society has an obligation to promptly provide compassionate assistance to the wrongfully convicted to restore their lives…”
Counsel’s position on this was that the law places a high premium on individual liberty and if he suffers wrongful interference with it he is entitled to be compensated. He is thus enabled to argue that the mandatory spirit in article 14(7) does not allow for the discretion on the part of the court because if this provision is read in tandem with article 12(1) of the Constitution, there ceases to be any discretion on the court.
Learned counsel invited the court to get the state to compensate the applicant as he has suffered miscarriage of justice following his wrongful conviction and incarceration.
Responding to these arguments, counsel for the state in opposing the application contended inter alia via affidavit evidence that article 14(7) is not automatic that once a person is acquitted and discharged from a criminal offence, he or she is entitled to compensation. Counsel submitted that the whole tenor of article 14(7) of the constitution indeed imposes a discretion on the court in deciding from all the circumstances of the case whether or not to grant an application for compensation.
Learned counsel argued that the applicant was lawfully convicted and sentenced according to law after a fair trial. She therefore maintained that the applicant was not wrongly convicted or innocent of the charges preferred against him. Counsel reiterated that the mere fact the applicant had been acquitted on appeal does not give him the right to make any claim for compensation unless he can prove that his trial, conviction and sentence were in-congruous with legality, that is, his human rights have been infringed by his unlawful trial, conviction and sentence. Counsel’s view was that the court of appeal in the instant case held that the failure of prosecution to call material witnesses was fatal to its case as same created doubt in the case which doubt ennures to the benefit of the applicant.
On the issue whether article 14(7) is mandatory or discretional, learned counsel explained that since the words used in the formulation is “may” and not “shall” it is therefore permissive and flexible and not imperative and mandatory in meaning as ascribed to the word “shall”. Counsel’s view was that the word “may” allows for discretion on the part of the court to freely consider each application for compensation in the light of all the circumstances of each case.
Counsel next distinguishes Dodzie Sabbah case from the case of the applicant herein. She contended that in Dodzie’s case, the Supreme Court held that the appellant/applicant was completely innocent of the charge as he was not at the scene of the crime. But a different scenario occurred in the applicant’s case, because he was not wrongly charged. Neither was he innocent of the charges preferred against him. Counsel maintained that the failure to call material witnesses does not mean that applicant is completely innocent of the charges preferred against him. Counsel for the state concluded that the applicant is not entitled to an award of compensation as he has not shown any reasonable cause why he should be awarded compensation.
The basic issue raised in this application is: On what grounds or conditions or in what circumstances may the appellate court consider in deciding whether or not to certify that an applicant should be recommended for consideration by the apex court for compensation? Put differently, is payment of compensation under article 14(7) of the constitution automatic and compulsory once a person has been acquitted on appeal after having served the full term or a part of it, or is it discretionary as the court may deem fit?
Counsel for both parties urged the court to see and understand this provision the way either of them appreciates it. While counsel for the applicant claims that article 14(7) is automatic and compulsory, counsel for the respondent contended otherwise, saying it is discretionary and not mandatory. This divergent opinion appears to be the bone of contention between the parties herein.
So the crux of the matter is: What are the factors, guidelines or criteria that the certifying court is expected to take into consideration to enable it to come to a decision whether to recommend an award of compensation or not?
Faced with similar issues, the Supreme Court in the historic case of Dodzie Sabbah vrs. The Republic (2015) 88 G.M.L.R. page 1 which is on all fours with the instant case, examined the meaning and scope of article 14(7) of the 1992 constitution and came out with the factors, guidelines and eligibility criteria that the certifying court has to take into consideration for payment of compensation under this provision.
These factors or considerations are set out at page 93 of the judgment as follows:
“i. In particular the court may consider whether the acquittal was based on complete innocence of the applicant, without any shadow of doubt. In that regard an acquittal based on a technical ground will not pass the test.
ii. The court may also take into account, what I may consider to be reckless prosecution of the applicant…resulting in a miscarriage of justice” (Emphasis mine).
From the foregoing, these questions will have to be addressed:
1. Was the prosecution of the applicant at the trial court based on a reasonable and probable cause but was acquitted on merely technical grounds?
2. Was the applicant completely innocent of the charge(s) preferred against him?
3. Was the prosecution of applicant malicious that is, motivated by ill-will, mere hatred, spite, political consideration or rather than a desire to contribute towards bringing an offender to book? If it was malicious, then the applicant is entitled to compensation under article 14(7)
Now, let me apply the principles outlined above to the facts of this case. I must say that I did not have the benefit of the entire record of appeal. To enable me do justice to the case, I requested for the record of appeal which acquitted the applicant from the Court’s Registry and invited counsel for the parties to address me on that with special emphasis on the caution statement of one Kwabena Nimako, the 2nd Accused, which was tendered in evidence as Exhibit “E”.
The undisputed facts recounted in the record of appeal indicates that the applicant herein was acquitted and discharged on appeal by this court ostensibly because material witnesses for the prosecution were not called to testify which invariably was fatal to the case of the prosecution. The record of appeal also demonstrates that the said material witness (Kwabena Nimako) gave information to police during investigation that the applicant hired them (he and the other accused persons) to rob the complainant, Richard Kwakye and his family. Part of Kwabena Nimako’s (2nd Accused) caution statement – Exhibit E, reads:
“…I have no doubt in my mind that Daniel Ayareba was the exact and only person who contacted me for us to rob victim. He received his share of the booty of one mobile.”
Counsel for the applicant took the court through the legal effect of A2‘s unsworn statement implicating the applicant, which in counsel’s view is not only inadmissible but also not binding on the applicant herein. Consequently, learned counsel maintained that such unsworn statement has no probative value in evidence and same should have been excluded in accordance with section 52(b) of the Evidence Act, 1975 (N.R.C.D. 323). Counsel supported his stand with a litany of cases, including:
Bonsu alias Bejillo vrs. The Republic (1999-2000) 1 G.L.R. 199 at 201 S.C., Dogbe vrs. The Republic (1975) 1 G.L.R. 118 holding 2; the Supreme Court of Appeal of South Africa case, Moses Moshe Litako & 4 Ors vrs. The State, case no. 584/2013 dated 16th April, 2014 at paragraph 33 of page 14.
I warmly agree with the above submission by counsel for the applicant. But I must say with due difference to counsel for the applicant that the issue at this stage is not about the admissibility or otherwise of A2’s caution statement. What is at stake now which is not in dispute is that, the police acting on the information of A2 as stated in his caution statement which implicated the applicant, arrested and prosecuted him. Would you say that the arrest and prosecution of the applicant was unlawful, malicious, that is, motivated by ill-will, mere hatred, spite or rather based on a reasonable and probable cause?
In any case, our criminal justice system empowers the police in the course of their investigation to arrest, detain and prosecute person(s) suspected to have committed criminal offence with a desire to bringing such offender(s) to book. In the instant case, the A2 having emphatically mentioned the name of the applicant in his cautioned statement as the one who hired or recruited them to rob the complainant, which he alleged they did with the applicant having his fair share of the booty in the form of one mobile phone, the prosecution had every right to act on that piece of information linking the applicant to the crime. It follows that the arrest and prosecution of applicant based on the allegation of A2 cannot be said to be unlawful, oppressive, reckless or malicious.
To me, the applicant was arrested and prosecuted with a desire to contribute towards bringing a suspected offender to book which is permitted by law. Consequently, I find that the applicant’s arrest and prosecution was based on a reasonable and probable cause.
Next to consider is whether the applicant was completely innocent of the charge(s) preferred against him thereby resulting his trial and conviction, sentence and subsequent acquittal in a miscarriage of justice. The Supreme Court in Dodzie Sabbah’s case, supra, per Adinyira (Mrs.) J.S.C. at page 38 of the report observed:
“The core purpose of article 14(7) is to compensate innocent person who have been unjustly convicted and imprisoned, it is therefore my candid view that the threshold question their lordship should also have considered is whether the grounds for overturning the conviction rested upon facts and circumstances probative for the proposition that the appellant did not commit the crime especially when it was a differently constituted panel that handled the appeal. Then if the appellant’s conviction was reversed for reasons other than his innocence then their lordships justifiably declined to issue a certificate to the Supreme Court to make an award” (Emphasis mine).
Guided by the above principles of law, I hold that it is the reasons of the acquittal that may determine whether the certifying court will favourably consider recommended an award of compensation to the applicant.
Counsel for the applicant reiterated his earlier submission that the applicant has suffered miscarriage of justice following his wrongful conviction and incarceration. He argued that the applicant having suffered injustice in terms of imprisonment, is entitled to be compensated. Learned counsel invited the court to adopt and apply a literal interpretation of article 14(7) leading to the conclusion that an acquittal per se on appeal of a person who has served the whole or part of his sentence, the Court of Appeal is mandatorily required to certify to the Supreme Court that an award of compensation be made to the person.
This brings me to the question whether the payment of compensation under article 14(7) of the constitution is automatic and compulsory once a person has been acquittal on appeal after having served the full term or a part of it, or whether it is discretionary as the court may deem fit to grant.
The Supreme Court in the same Dodzie Sabbah case supra put to rest the issue whether article 14(7) is automatic and compulsory or discretionary and not mandatory when it held that:
“It is not the intention of the drafters of the constitution that the award of compensation under the said article to be automatic upon acquittal per se, otherwise it would have used the word ‘shall’ as was done in all the other clauses under article 14 and other article in Chapter Five on fundamental human rights and freedoms” (Emphasis mine).
At page 56 of the same report, the Supreme Court per Dotse J.S.C. went on to say that:
“I agree in principle with observation and decision of the Court of Appeal that the article 14(7) provision in the constitution 1992 imposes a judicial discretion on the court, and like all judicial discretions has to be exercised when all the facts of the surrounding circumstances of the case have been taken into due consideration and exercised judiciously.”
His Lordship Dotse J.S.C. continued in Dordzie Sabbah case already referred to supra as follows:
“the wording of the provisions in article 14(7) are so clear that an acquittal on appeal of a convict does not automatically entitle the person to payment of compensation. The Supreme Court is required to undertake an examination of the facts of the case as well as the certificate of the lower court, if the acquittal is by a court other than the Supreme Court.”
Applying the above principles to the instant case, I hold that this court is bound by the decision of the Supreme Court in Dordzie Sabbah’s case that the award of compensation under article 14(7) is discretionary and not automatic or mandatory. It follows that the certifying court like the Supreme Court is also required to undertake an examination of the facts and circumstances of the case to satisfy itself that the application is deserving. It is pertinent to note that in such situation, the applicant is also required by law to satisfy the court, independent of his acquittal by the appellant criminal court, that he is innocent.
Now, back to the central issue of whether the applicant was completely innocent of the charges preferred against him. On this issue, learned counsel for the applicant falsely assumed that once the applicant was acquitted it must be presumed that the conviction was wrongful and therefore the innocence of the applicant was undoubted.
Bennin J.S.C. in discussing the full scope and effect of article 14(7) in Dordzie Sabbah’s case (supra), on the same issue, had this to say at page 88 of the report:
“It is true that in law when an appellant’s conviction is quashed he becomes a free man in the eyes of the criminal law. But it does not mean that in fact he was not culpable for he might have been acquitted on a technical ground only… Thus it is fallacious to assume that because he has been set free on appeal in the criminal court, an applicant is not obliged to establish his claim for compensation.”
The ratio in Bennin J.S.C. reasoning is that one may be acquitted by law (on technical ground) but not innocent on the charges preferred against him.
Guided by the above authority, the applicant is obliged to establish his claim for compensation before the certifying court that he is innocent of the charges preferred against him, independent of his acquittal. The question now is: Was the applicant herein able to establish his innocence? What does the evidence say?
In his attempt to establish his claim for compensation, the applicant rely basically on the judgment of the appellant criminal court which states at page 17 of the report thus:
“The failure of prosecution to call 2nd, 5th accused nor the informant creates doubts in their case as to whether the allegations they made against the appellant were true or false. That doubt inures to the favour of the appellant in the instant case. The trial judge erred in calling upon him to open a defence and should have acquitted and discharged him out right… This appeal is allowed. The conviction is hereby quashed and the appellant acquitted and discharged.”
My understanding of the judgment of this court, that is, the appellate Criminal Court above mentioned is that the applicant was acquitted by law on technical ground but not innocent on the charges preferred against him. It is significant to note that the acquittal of the applicant based on the failure of the prosecution to call material witnesses does not mean that in fact he was completely innocent of the charges against him. I must add that by this failure, the applicant lost the chance or opportunity of cross-examining the said material witnesses to establish the veracity or otherwise of their allegation against him. In effect, the guilt or innocence of the applicant was not established notwithstanding his acquittal.
From the foregoing, it is patently clear that the applicant was acquitted on merely technical grounds and not based on his complete innocence. See: Egbetorworkpor vrs. The Republic (1975) 1 G.L.R.
It follows that the instant case is distinguishable from Dordzie Sabbah’s case where the applicant therein was completely innocent of the charge as he was not at the scene of the crime. And as was held in Dordzie Sabbah’s case supra, an acquittal based on technical grounds will not pass the test for an award of compensation.
For these reasons, the applicant’s application for an award of compensation fails and the same is hereby dismissed.