Sabbah v. Republic [2015] GHASC 133 (11 June 2015)

Material Facts:

In January 1993, authorities arrested the appellant and his brother on charges of conspiracy to commit murder and the murder of one Amegbor Amedorme. They spent 8 years in remand custody before the trial began in March 2001. They were convicted and sentenced to death in August 2001. The appellant successfully appealed against both charges in January 2004 on grounds of jury misdirection.

Following the acquittal of the appellant, pursuant to Article 14(7) of the 1992 Constitution , he applied to the Court of Appeal for compensation for wrongful arrest, conviction, and sentence to death.

Subsequently, the conviction and sentence of the appellant’s brother were affirmed by the Supreme Court in the case of Sabbah v. The Republic [2009] SCGLR 728 . In that case, his brother confessed to single-handedly causing the death of Amegbor Amedorme. The effect of this is that the appellant was completely innocent.

Procedural History:

The application was dismissed on the grounds that Article 14(7) was only meant to cover situations where the State had mounted oppressive prosecution against an individual without basis and just cause. In the present case, the applicant was taken through a proper trial, and his arrest and prosecution were all regular and devoid of any abuse of the law and breach of any human rights. Also, the court reasoned that, contrary to the applicant’s contention, the certification of the Court of Appeal to the Supreme Court was discretionary and not mandatory. The appellant appealed to the Supreme Court.

Issues:

1. Whether or not the acquittal of a person who has served the whole or part of his sentence automatically entitles him to recompense under Article 14(7) of the 1992 Constitution, for which reason an appellate court is obliged to certify to the Supreme Court that he be paid compensation?
2. Where an appellate court certifies to the Supreme Court that an acquitted person be paid compensation, whether the Supreme Court is bound by the referenced and mandatorily required to order compensation against the state?
3. If the power exercisable by the two courts is discretionary and not mandatory, what are the eligibility criteria, under Article 14(7) for certification, for ordering that compensation be paid and finally for assessing the quantum?

Arguments of the Appellant:

1. That the word “may” in Article 14(7) is not merely permissive and discretionary, but mandatory. That if the Court of Appeal had read Article 14(7) in light of Article 12(1), which enjoins the courts to uphold and protect human rights, it would have noticed that the mandatory spirit in that provision does not allow for the discretion it refers to.
2. That a person who has served his sentence is automatically entitled to compensation on acquittal; the propriety or legality of the trial process that culminates in a wrongful conviction is wholly immaterial. What is essential is that there was a wrongful conviction that deprived the applicant of his liberty.
3. That from the initial stages it was clear to the State that the appellant was not linked to the crime. Consequently, his arrest and subsequent trial were without cause, and it did not matter that the trial followed due process.

Arguments of the Respondent (Republic)

1. That the fact that he has been acquitted on appeal does not give him the right to make a claim for compensation unless he can prove that his trial, conviction, and sentence were incongruous with legality; therefore, his human rights have been infringed by his unlawful trial, conviction, and sentence.
2. That per the Interpretation Act, 2009, Act 792, “may” is construed as “permissive and empowering.” Consequently, the court was not mandated to certify to the Supreme Court.
3. That an acquittal on technical grounds will not earn an applicant a certificate for compensation (remember the appellant was acquitted because there was a misdirection). That it is only acquittals on substantial grounds that would.
4. That at trial, evidence led by the prosecution showed that it was the appellant who delivered the final blow. That this, coupled with the police power of arrest, invalidates the appellant’s claim to compensation on grounds of his innocence.
5. That the enjoyment of one’s fundamental human rights was not absolute or unbridled, but it is subject to the rights and freedoms of others and the public interest, as stated in Article 12(2) .

Holdings:

1. Acquittal of a person who has served the whole or part of his sentence does not automatically entitle him to compensation under Article 14(7) of the 1992 Constitution. The Court of Appeal has the discretion to certify to the Supreme Court that the person be compensated.
2. Upon certification by the Court of Appeal, the Supreme Court equally has discretion to decide whether the person should be compensated.
3. The court will consider the eligibility criteria on a case-by-case basis. However, factors such as the actual innocence of the accused, time spent in incarceration, gravity of the offence, seriousness of the injustice meted out to the applicant, among others.

Ratio Decidendi:

Article 14 (7) of the 1992 Constitution provides that:

‘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 the 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.

On the first and second issues, their lordships unanimously agree that Article 14(7), with its several uses of the word “may,” and in light of the principles of constitutional interpretation such as the need to adopt a liberal, broad, and purposive approach to interpretation, gives discretion to the Court of Appeal to certify to the Supreme Court that a person acquitted should be paid compensation. On receipt of such certification, the Supreme Court equally has the discretion to order that compensation be paid. On this point, Wood CJ extensively delivered herself as follows:

When article 14 (7) is purposively construed in the light of these well-settled constitutional principles, it is obvious that the word “may” ought to be construed as permissive and empowering, rather than mandatory or imperative. My conclusion, which affirms the position of the court below, has not so much been influenced by the Interpretation Act, 2009, Act 792, as by a purposive reading of the provision, understood in the context of the entire article 14, and indeed other fundamental human rights and freedom provisions captured under Chapter 5 of the 1992 Constitution.

It is clear that at both judicial levels, that is the certifying court as well as Supreme Court, the whole tenor of article 14 (7), as could be judged from the consistent use of the word “may,” is on the exercise of discretionary power. Thus, even where the court below has issued a certificate, the Supreme Court is not bound to accept the court’s recommendation on its face value. The Supreme Court’s decision to award or not to award compensation, as well as the quantum of compensation, involves the exercise of discretionary jurisdiction. And so along the judicial chain, the only mandatory duty imposed on both the court which issues the certificate and this honourable court is the duty to act judicially. Beyond this, a person acquitted by an appellate court, who has served the whole or part of his sentence is not automatically, by the acquittal per se, entitled to compensation and a fortiori, the appellate court is not under a mandatory duty to issue a certificate to that effect.

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Finally, another reason why Counsel’s claim to automatic certification must fail is that, Article 14(7) does not intend that this honourable court acts mechanically, and routinely rubber stamp certifications from appellate courts below it. To the contrary, in what I believe is intended to validate the certificate, which, in my view, is, for all practical purposes only recommends the payment of compensation, this court is obliged to act in a principled manner by examining all the facts of the case in question, including the certificate, to guarantee its sanctity. The court is required to do this before proceeding to assess the quantum of compensation. If all that were required of the Supreme Court were a mere robotic acceptance of the certificate issued by the appellate court below it, what is the logic behind the duty implicitly imposed on the court by the article 14 (7), which I restate for purposes of clarity: “…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;…” (emphasis supplied)

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In sum, I conclude that, Article 14 (7) is not a blanket provision for the award of compensation, since the jurisdiction conferred on the Supreme Court and an appellate court, which certifies, is discretionary. Similarly, the power exercisable by the Supreme Court, on receipt of a certificate issued by an appellate court, is not mandatory, but discretionary.

Given the unanimous acceptance that the courts have discretion under Article 14(7), their lordships equally agree that the exercise of that discretion must be guided by certain principles. In deciding whether to certify to the Supreme Court that an acquitted person be paid compensation, their lordships (individually and collectively) suggest that the following factors should be considered as a guide:

1. Per Article 14 (7) of the 1992 Constitution, the applicant/victim must have spent the whole or part of his sentence.
2. A primary consideration, for example, would be whether or not the acquittal was based on mere technicalities or on substantial grounds that have led to a gross miscarriage of justice. Did the evidence clearly show that the applicant was completely innocent?
3. Oppressive prosecutions or prosecutions mounted without any basis or just cause, ought to entitle an applicant to certification.
4. The nature and/or gravity of the offence: For example, if it is murder, the accused is put in what is known as condemned cells. We will consider the trauma and mental agony that the convict would go through.
5. Length of the period applicant has served from arrest to acquittal. This gives an indication of damages suffered.
6. Whether an action in malicious prosecution may have succeeded. If malicious prosecution would have succeeded, the measure of compensation under article 14(7) should be the same as the measure of damages in a successful action in malicious prosecution.
7. The effect of the decision on the public purse.

Further, their lordships discussed the factors that should be taken into consideration by the Supreme Court in assessing the quantum. This area equally involves the exercise of discretion and ought to be considered on a case-by-case basis. What is, however, well established is that damages can be in the nature of special or general damages. In addition, the factors advanced above to guide the court in exercising its discretion to certify to the Supreme Court may equally guide the Supreme Court in the award of general damages. Special damages, however, must be specifically pleaded. Finally, in awarding compensation, “the Supreme Court should balance its obligation to be fair and just with its responsibility to ensure that the state is not burdened with enormous monetary liability.”

Applying the above principles to the present case, the appellant was completely innocent as established by the decision in Sabbah v The Republic [2009] SCGLR 728 . His arrest, detention, and prosecution span a period of 11 years. He is therefore entitled to compensation. He is hereby awarded Ghc 35,000.00.

Principles:

1. The award of compensation under Article 14(7) is not automatic upon the acquittal of a person; it is discretionary.
2. The discretion should be guided by principles such as the innocence of the acquitted person, the period he spent in lawful custody, the manner the prosecution was conducted, among others.