British Airways & Another v. Attorney-General [1997-98] 1 GLR 55

Material Facts:

The first plaintiff is an external company that leased immovable property in Ghana, and the second plaintiff is the manager of the first plaintiff company. Contrary to various provisions in the External Companies and Diplomatic Missions (Acquisition or Rental of Immovable Property) Law, 1986 (PNDCL 150) , the plaintiffs refused to pay the rent for the leased property in convertible currency. Consequently, criminal proceedings were instituted against them in the Circuit Tribunal.

During the trial, the Statute Law Revision Act, 1996 (Act 516) was passed, which, among others, repealed PNDCL 150 in its entirety. The plaintiffs then invoked the original jurisdiction of the Supreme Court under article 2(1) and 130 of the 1992 Constitution, seeking, among others, "an order directed at the defendant herein requiring him to discontinue the said prosecution (reference No. 96/95) in the Circuit Tribunal, Accra, and to take no further steps towards prosecuting the plaintiffs under PNDCL 150." The plaintiffs primarily contend that since PNDCL 150 was repealed before the conclusion of the trial, there was no written law that made their refusal to pay rent in convertible currency an offence.

Issue:

Whether the plaintiffs could still be prosecuted under PNDCL 150 even after its repeal.

Arguments of the Attorney General:

1. Section 8(1)(e) of the Interpretation Act, 1960 (CA 4) provides that "the repeal or revocation of an enactment shall not…affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any penalty, forfeit­ure or punishment may be imposed, as if the enactment had not been repealed or revoked." Consequently, the repeal of PNDCL 150 does not affect the current legal proceeding by virtue of section 8.

Holding:

The plaintiffs could no longer be prosecuted under PNDCL 150 following its repeal.

Ratio Decidendi:

The present case falls within the supervisory jurisdiction of the Supreme Court under article 132 of the 1992 Constitution. The supervisory jurisdiction of the Supreme Court allows it to issue orders and directions to any lower court or tribunal when the interest of justice so demands or to ensure proper, lawful, and fair administration of justice. To their lordships, the present case is appropriate for the court’s exercise of its supervisory jurisdiction. Per Bamford Addo JSC,

…In this case, to require the plaintiffs to go through their futile trial when they can neither be convicted nor punished in the absence of any written law defining an offence or providing punishment for same, in view of the repeal of PNDCL 150 , would be a negation of our duty and a condonation of an illegality which if not stopped, would result in the interference with, and breach of, the plaintiffs' liberty and rights.

Thus, upon the repeal of PNDCL 150, the plaintiffs could no longer be convicted because there was no longer a written law that defined their refusal to pay the rent in convertible currency as an offence. Further, her lordship referred to section 8 of the Criminal Code 1960 (Act 29), which prevents persons from being punished under the common law. The effect of this provision is that all criminal offences must be designated in a written law before anyone can be punished for them. More importantly, article 19(11) of the 1992 Constitution provides that "No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law." The continuous trial of the plaintiffs when no written law defines and prescribes a penalty for their acts is at best futile and at worst contrary to article 19(11) in respect of criminal prosecutions.

On the defendant’s argument that the plaintiffs can be prosecuted by virtue of section 8 of the Interpretation Act, Bamford Addo JSC ruled:

This provision is now inconsistent with article 19(11) of the Constitution, 1992 in respect of criminal offences contained in a repealed law such as PNDCL 150. It would have been a different matter if the plaintiffs had been convicted before the repeal of PNDCL 150 by Act 516 or if Act 516 had saved offences committed before the repeal of PNDCL 150, but Act 516 was silent on this; it merely repealed PNDCL 150, and consequently the provision of article 19(11) of the Constitution, 1992 came into play in respect of the criminal case pending against the plaintiffs. It should be noted, however, that in respect of civil matters, the consequences of a repeal in section 8 of CA 4 still applies. Article 19(11) of the Constitution, 1992 deals only with criminal cases in which the accused persons are yet to be tried, convicted, and sentenced.

Acquah JSC specifically focused on section 8 of the Interpretation Act in his judgement. Per his lordship, the effect of section 8(1)(e) was that once a person has committed an offence under a law, the subsequent repeal of the law will not bar investigation and prosecution under that repealed law. His lordship then commented on the effect of a repeal with reference to article 19(11):

…the repealing law may either repeal entirely the law creating the offence together with the punishment, or the repealing law itself or any other enactment may save the offence and the punishment. The former situation will result in leaving no existing law to support the offence and the punishment. Whereas the latter situation will result in saving the enactment constituting the law, to justify continued investigation and prosecution of the offence. In other words, in the latter situation, the saving law will be a written law within the context of the article 19(11) formulation to satisfy the requirement in that formulation. Whereas the former situation is caught by the prohibition in the article 19(11) formulation since there is no saving law to justify the continued investigation and prosecution of the offence. For the article 19(11) formulation in effect requires that at every stage of the investigation and prosecution of an offence, there must be a written law creating the offence and prescribing the punishment for it.

In the present case, Act 516 repealed PNDCL 150 entirely without saving the offence or the punishment. Under article 19(11), his lordship noted that

…the verb used is, is and not was. If it had been was, the formulation would have referred to the past and not the present. The use of "is" clearly shows that the formulation looks beyond the time of the commission of the offence to ensure the legality of what happens thereafter. If at any stage before the conviction, the law creating the offence and the punishment is totally repealed without any saving, the investi­gation and proceedings cannot be continued.

Since the law that created the offence for which the plaintiffs were being prosecuted was repealed, there is no written law under which the plaintiffs could be convicted and punished. Consequently, the Circuit Tribunal was ordered to discontinue the trial (note that the order was not given to the Attorney General due to his plenary powers to initiate and conduct prosecutions on behalf of the state. It was given to the Circuit Tribunal, over which the Supreme Court has supervisory jurisdiction).

Meaning of the Principle of Legality:

Acquah JSC beautifully explained the meaning of the principle of legality and its basis as follows:

Now, by the principle of legality as explained by Granville Williams in his book, Criminal Law, The General Part (2nd ed), the individual must be able to ascertain beforehand how he stands with regard to the criminal law; otherwise to punish him for breach of that law is purposeless cruelty. Punishment in whatever form it takes is a loss of rights or advantages consequent on a breach of law. When it loses this quality, it degenerates into an arbitrary act of violence that can produce nothing but bad social effects. Opinions about what people ought to do may differ, but opinions about what people are obliged to do must be capable of being ascertained by legal research. This, in brief, is the substance of the principle of legality which is expressed in the Latin maxim nullum crimen sine lege, nulla poena sine lege , that is, there must be no crime or punishment except in accordance with a fixed predetermined law. The principle involves rejecting "criminal equity" as a mode of extending the law.

…

Now, the article 19(5) formulation of the principle seeks to ensure that the offence alleged to have been committed by any individual was legally in existence (that is, there must be a law declaring the act an offence) at the time it was committed before the individual can be charged or convicted of it. If at the time the individual did the act, there was no law rendering that act an offence, it would be against the principle of legality to subsequently pass a law rendering that past act, an offence.