Tsatsu Tsikata v. The Republic Criminal Appeal No. J3/4/2004

Material Facts:

On 11 March 1991, the appellant, as the Chief Executive of Ghana National Petroleum Corporation (GNPC), signed a Guarantee Agreement between the GNPC and Caisse Francaise. Per this guarantee agreement, GNPC was to act as a guarantor for a loan advanced by Caisse Francaise to Valley Farms Company Ltd. When Valley Farms Company Ltd. defaulted on repaying the loan, GNPC, in fulfillment of its obligations as a guarantor, paid ¢775,126,310 to Caisse Francaise in 1996.

The appellant was charged with wilfully causing financial loss to the State contrary to Section 179A (3)(a) of the Criminal Code Act 1960 (Act 29) as amended by the Criminal Code (Amendment) Act, 1993 (Act 458).

Procedural History:

At the end of the case of the prosecution in the trial court, the appellant made a submission of no case (this may be done when one of the elements of the offence is absent. If successful, the court will hold that there is no genuine case for trial.) This motion was rejected by the High Court. On appeal to the Court of Appeal, the Court of Appeal upheld the High Court’s rejection of the motion of submission of no case. The appellant is appealing against this decision.

Issue:

Whether or not Section 179A (3)(a) of the Criminal Code Act 1960 (Act 29) as amended by the Criminal Code (Amendment) Act, 1993 (Act 458) violates Article 19 (11) of the 1992 Constitution which prohibit a person’s conviction for a criminal offence unless the offence involved is defined and the penalty for it is prescribed in a written law.

Arguments of the Appellant (And Grounds for Appeal):

1. That there is no written law that defines the offence of wilfully causing financial loss to the state in Section 179A (3)(a) (supra)

2. That the words “loss”, “wilful”, “State” are left undefined in the statutory provision and this omission is contrary to Article 19 (11) .

Holding:

Section 179A (3)(a) is not inconsistent with Article 19(11) on grounds that what amounts to wilfully causing financial loss to the state is not defined in a written law.

Ratio Decidendi:

In light of the appellants arguments, their lordships provide the following clarification of Article 19(11):

It is our understanding that this provision was meant to outlaw so-called common law and customary law crimes that have not been preserved in statutory law. The framers of the Constitution did not intend to order legislators to supply a lexicon of words within the four corners of each and every piece of legislation that sought to create a crime. The provision requires a written law of crimes, that is, the creation of crimes in a written form; but not, as Counsel puts it, a “written law definition” of all words used in a criminal provision. Not only would such a task prove futile or impracticable; it would also ignore the fact that no statute exists in isolation from the general criminal law of any legal system, in particular, Criminal Codes and the Criminal Procedure Codes which may appropriately be described as forming the beams of criminal jurisprudence. Moreover, the language of the law, though specialized, cannot be self-contained and therefore assumes as its foundation the general language of the country in which the legal system functions. No doubt, many statutes provide what is called intrinsic aid, that is, internal definitions and even examples and scenarios of meanings. But this cannot be done, and is not expected to be done, for each word or term that is deployed in creating a crime. And where no intrinsic aid is provided, the legal system has always resorted to extrinsic aid in the difficult matter of construing or interpreting legislation. Such acceptable extrinsic aid has always included specialized and general language dictionaries

...

We hold that a criminal provision is not unconstitutional merely because it does not contain intrinsic definitions of all terms used; and we also hold that a resort to both specialized and general dictionaries constitute a time-honoured and acceptable form of extrinsic aids to interpretation in our judicial system.

Principles in Case:

1. Article 19(11) merely outlawed common law and customary law crimes that have not been preserved in statutory law.

2. Failing to define the words in an offence does not mean the offence is not defined in a written law.