HIGH COURT, SUNYANI
Date: 9 MAY 1975
OSEI-HWERE J
CASES REFERRED TO
(1) State v. Ayeh, Supreme Court, Cyclostyled Judgments, January-December, 1964, Vol. II, p. 79.
(2) Makin v. Attorney-General for New South Wales [1894] A.C. 57; 63 L.J.P.C. 41; 69 L.T. 778; 58 J.P. 148; 10 T.L.R. 155; 17 Cox C.C. 704, P.C.
(3) R. v. Girod and Girod (1906) 70 J.P. 514; 22 T.L.R. 720; 50 S.J. 651, C.C.R.
(4) R. v. Bond [1906] 2 K.B. 389; 75 L.J.K.B. 693; 95 L.T. 296; 70 J.P. 424; 54 W.R. 586; 22 T.L.R. 633; 50 S.J. 542; 21 Cox C.C. 252, C.C.R.
(5) R. v. Fisher [1910]1 K.B. 149; 79 L.J.K.B. 187; 102 L.T. 111; 74 J.P. 104; 26 T.L.R. 122; 22 Cox C.C. 270; 3 Cr.App.R. 176, C.C.A.
(6) R. v. Fuidge (1864) 3 New. Rep. 442; 33 L.J.M.C. 74; 9 L.T. 777; 28 J.P. 132; 10 Jur. (N.S.) 160; 12 W.R. 351; 9 Cox C.C. 430; 169 E.R. 1443, C.C.R.
(7) R. v. Gbadamosi (1940) 6 W.A.C.A. 84.
(8) Kwame v. The State [1964] G.L.R. 612, S.C.
(9) Asagba v. The State [1966] G.L.R. 214, S.C.
NATURE OF PROCEEDINGS
APPEAL against the judgment of the Circuit Court, Sunyani, in which the appellant was convicted on
two counts of publishing false news and deceit of a public officer contrary to sections 208 and 251 of Act
29 respectively. The facts are stated fully in the judgment.
COUNSEL
Owusu-Afriyie for the appellant.
C. S. K. Agbanu, Senior State Attorney, for the Republic.
JUDGMENT OF OSEI-HWERE J.
The appellant was arraigned before the Circuit Court, Sunyani, on two counts. The first count charged him with publishing false news contrary to section 208 of the Criminal Code, 1960 (Act 29), and the second count charged him with deceiving a public officer contrary to section 251 of the Criminal Code, 1960 (Act 29). The particulars of offence of the first charge read as follows:
“Nana Adu Sei II, during the month of February 1973 at Sunyani in the Brong-Ahafo Circuit, did publish a statement, that Nana Akromfi Ameyaw, ex-Techimanhene on 7 February 1973 visited Sankore in furtherance of a plot with certain citizens of Sankore to overthrow the Government of the National Redemption Council, a statement which is likely to disturb the public peace, and which he has reason to believe to be false.”
The particulars of offence of the second charge also ran as follows:
“Nana Adu Sei II, on February 1973, at Sunyani in the Brong-Ahafo Circuit, with intent to injure Nana Ameyaw, ex-Techimanhene, endeavoured to deceive Mr. D. K. Eyiah of the Ghana Police Service, a public officer by a false statement that the said Nana Akromfi
[p.229] of [1975] 2 GLR 225
Ameyaw on 7 February 1973 visited Sankore in furtherance of a plot with certain citizens of Sankore to overthrow the Government of the National Redemption Council, a statement which he had no good reason to believe to be true.”
The appellant pleaded not guilty and after his trial he was (on 14 March 1973) found guilty and convicted on both charges and sentenced to a term of two years’ imprisonment with hard labour on each count with the sentences to run concurrently.
The background to the appellant’s prosecution, as clearly appears from the record of the proceedings is that some time in February 1973 Nana Akumfi Ameyaw (not Akromfi Ameyaw as appears in the record of proceedings), the ex-Techimanhene, visited Sankore where the appellant was the chief. According to Nana Akumfi Ameyaw, the fourth prosecution witness, he went to Sankore to visit some relations and after he had been welcomed by his entire family he went to present his respects to the appellant. He presented half a bottle of schnapps to the appellant and told him he had come to greet him and the appellant in turn presented a half bottle of schnapps to him and he thereafter left the appellant’s house with his followers. Subsequently the appellant sent to him four cedis seventy pesewas to cover his transport. Early the following morning the fourth prosecution witness left Sankore. In his evidence at the trial the fourth prosecution witness paid a glowing tribute to himself thus:
“I was the first president of the Brong-Ahafo House of Chiefs. I was responsible for the creation of the Brong-Ahafo Region. It was I who gathered the chiefs of Brong-Ahafo together. I appealed to the government to demarcate the boundary between Ashanti and Brong-Ahafo. I also requested the government to appoint a separate regional commissioner for Brong-Ahafo and Mr. de-Graft Dickson was appointed the first regional commissioner for Brong-Ahafo. I also petitioned the government to create a separate judiciary for Brong-Ahafo and this was done. I also requested that secondary schools should be established in Brong-Ahafo and this was done. I did several other things. I am at present the Vice-President of the Brong-Ahafo Youth Association.”
Shortly after the fourth prosecution witness had left Sankore the appellant addressed to the Asantehene a letter which, in its original wording, ran as follows:
“Dear Nana,
To your kind information. I am here at Sankore and on the 7th day of February, 1973, there arrived one Mr. Akomfi Ameyaw, the ex-chief of Techiman whose mission was, he has been appointed the chairman of chiefs destoolment, in this wise, he purposely came here to have a plot to overthrow the present Government.
Upon my strong investigations, I have discovered that he came here to demand some amount from the following persons, who have unlawfully plotted to overthrow the present Government.
[p.230] of [1975] 2 GLR 225
In view of foregoing on sir, on my capacity as a chief of Sankore, have to give you an immediate information
for your early and prompt action.
These are following:
1. Kwaku Nyame, 2. Yaw Mensah, 3. Kwabina Marfo, 4. Kojo Kuru, and 5. Kojo Senyah, of which N¢400 (four hundred cedis) contribution have been paid towards that.
The principal witnesses are afraid to reveal to me the facts, so on receipt of this letter, kindly contact the C.I.D. for further investigations. Advise the C.I.D.’s to contact me first for further informations.
Hoping to hear from you in no distant date.
Your Chief
Nana Aidoo II his x mark
Nana Aidoo Sei RTP.”
At the trial the appellant told the court how be came to write the letter, exhibit A. This is what he said in-chief:
“About a year ago at about 9.p.m. Kwabena Amanor and Annor Kwabena came to my palace and reported to me that Nana Akromfi Ameyaw the fourth prosecution witness said that he would destool me the following day. They therefore advised me to run away. I told them that I would not run away for he should come and destool me. The next day Kwabena Amanor came to tell me that the fourth prosecution witness and his followers were coming. When the fourth prosecution witness got to the entrance of my palace I requested him to turn back and not to enter my palace. The fourth prosecution witness refused to turn back and said that he had been empowered by the government to come to the palace and so he would enter it. I then allowed him to enter it. I then offered him and his followers seats. I inquired about his mission. He told me he came to Kukuom to do something and after that he came to Sankore to visit his relations. He further said that the government had empowered him to enstool and destool chiefs in the Brong-Ahafo Region and further he was the seventh adviser to the government and that he had power to destool any chief who did not want to serve Brong-Ahafo. I told the fourth prosecution witness to spend the night at Sankore but he refused. The fourth prosecution witness said that if he wanted to destool any chief and the Head of State did not agree he the fourth prosecution witness had power to overthrow the Head of State. The fourth prosecution witness left the palace with his followers. I gave four cedis seventy pesewas to my linguist by name Kwadwo Badu to send to the fourth prosecution witness for his transport. Three days later Kwabena Amanor came to tell me that some persons had contributed money and had given it to the fourth prosecution witness. He told me this in the presence of Kwadwo Donkor, Kwasi Tawiah, Kramo Siaka and Kofi Adadey. I asked Kramo Siaka to go with me to see whether it was true. I went with Kramo Siaka. We
[p.231] of [1975] 2 GLR 225
saw a vehicle moving ahead of us and we were told by one Ofori that the fourth prosecution witness was in that vehicle. I returned to the palace. The next day I called Kwabena Yeboah, a brother of the fourth prosecution witness, and asked him whether the fourth prosecution witness spent three days at Sankore. He denied. He said that he heard that the fourth prosecution witness left Sankore, Saturday last. It was on a Sunday that I called Kwabena Yeboah. Kwabena Yeboah then said that as the fourth prosecution witness spent three days at Sankore without seeing him being his brother, it might be true as Kwabena Amanor said that some people contributed money and gave it to the fourth prosecution witness. I decided to report the matter to the Asantehene. I called in a letter writer in my house and dictated what he should tell the Asantehene. Exhibit A is that letter.”
It is clear from the record of proceedings that the appellant was represented by counsel on the day when, after so many adjournments, he was called upon to take his plea. On that day and at the subsequent hearing dates the senior state attorney himself was responsible for the prosecution. On the day the appellant’s plea was finally taken his counsel prayed for an adjournment to enable the leading counsel for the appellant to be present. This was granted and at the next adjourned date his counsel wrote for another adjournment as he was engaged outside Sunyani. The court adjourned the case for definite hearing to 2 January 1974. On this day the appellant’s counsel wrote another letter praying for an adjournment but this was firmly rejected by the court and the prosecution opened their case. From then on the appellant was not represented at his trial except for two late appearances by his counsel. When the defence opened the appellant called the second defence witness, who gave his age as 68 years, to testify on his behalf. In the course of his evidence (which was not substantially different from the evidence of the appellant and the first defence witness except as to where the accused presented the uncontroversial four cedis seventy pesewas to the fourth prosecution witness) the trial judge felt that he was deliberately telling lies to the court and so he ordered that he be remanded in custody for two days. As will be seen hereafter this has been one of the causes of complaint against the conduct of the trial.
Aggrieved with his conviction and sentence the appellant appealed to this court upon the following
grounds:
“(1) The conviction and sentence are bad in law for existence of a legal, moral or social duty under which the statement on a matter of public interest was published by the prisoner to the recipient who had a
corresponding interest in receiving same.
(2) The judgment is bad in law for misdirection on the issue of publication of the statement without proof of malice.
(3) The verdict is erroneous or cannot be supported having regard to the evidence.
(4) The sentence passed on the prisoner is rather excessive.”
[p.232] of [1975] 2 GLR 225
On 14 April 1974 the appellant was released from custody on bail upon his application for bail pending
his appeal.
Arguing ground (2) of the grounds of appeal the appellant’s counsel contended that the words “statement,” “rumour” and “report” appearing in section 208 (1) of Act 29 are not synonymous but that each constitutes a different ingredient of the offence. It was therefore wrong for the trial judge to have lumped all the three together as he did in his judgment. Counsel argued that the appellant was thereby prejudiced as he could not know which of the three ingredients he was to defend. Counsel also argued at some length on his contention that having regard to the charges laid against the appellant, the evidence led by the prosecution was bad in law as the witnesses attacked the appellant’s character. It was improper for the trial judge to have sat by and permitted the appellant’s character to be attacked especially as he was unrepresented by counsel. Counsel further contended that the trial judge was biased against the appellant and that this and the conduct of the trial went to the very root of a denial of justice.
It was submitted by counsel that there was no publication of the alleged false statement to the public and therefore there could not have been a conviction on the first charge. Counsel further submitted that although the five persons against whom the appellant made the alleged false statement denied what was alleged against them they were never confronted by the appellant. A material witness named by the appellant as his informant was never contacted by the police and his prosecution was, therefore, premature. If the appellant heard that some people were engaged in subversion, counsel argued, it was his duty to report to the police. On the second charge counsel argued that from the evidence of the seventh prosecution witness himself it was strange that his name was used as the person deceived as the appellant addressed his letter to the Asantehene who is himself a public officer. Counsel submitted that all that the seventh prosecution witness did was to carry out his duty in contacting the appellant to find out whether he wrote the letter and he said he did. The investigative process of the police was placed under attack because counsel felt that they prejudged the appellant’s guilt on the second charge before he was arraigned before the court and also because the first defence witness who obviously was in the appellant’s
house and heard what transpired there was not contacted by the police. The trial judge himself was not left unscathed in his conduct of the trial as counsel contended that he put fear in the defence witnesses by remanding the second defence witness in custody for two days without any charge.
On the third ground of appeal it was urged on behalf of the appellant that nobody should place any reliance on the denials made by the material prosecution witnesses as no one would expect them to admit, in a military regime, that what was alleged against them was true. It was also urged that the trial judge made wrong inferences to establish the falsity of the statement made by the appellant in his letter to the Asantehene. Counsel finally submitted that the defence evidence ought to have been accepted as it is clear from the appellant’s evidence and statement to the
[p.233] of [1975] 2 GLR 225
police that the fourth prosecution witness went to Sankore and bluffed his way through that he would depose any chief who did not support him and that if the government opposed him he would overthrow the government.
The senior state attorney exhaustively argued in support of the appellant’s conviction and sentence. In answer to the contention that the attack on the appellant’s character amounted to a denial of justice he argued that similar facts are always admissible to show the guilty state of mind of an accused person. As the appellant was saying that he was only imparting information innocently to his superior, the Asantehene, it was relevant and admissible that the prosecution should rebut this innocence. It was, therefore, not improper for the prosecution to show that on similar occasions the appellant made similar reports against some of the prosecution witnesses to their detriment. Even if the evidence attacking the appellant’s character was wrongly admitted it was his contention that the misreception of the evidence was not fatal provided there is evidence on which the conviction could be based. He invited the court, therefore, to look at the record of the proceedings to find out whether there was enough evidence to support the offences charged. To this end the senior state attorney took much pains to mercilessly dissect the evidence for the defence and to demonstrate that the appellant who admitted the authorship of the letter (exhibit A) to the Asantehene well knew the contents to be false and that he and his witnesses could in no way be credited as truthful witnesses.
In his argument both at the hearing of the motion for bail and at the hearing of the appeal counsel for the defendant flourished the construction which the Supreme Court put on section 208 of Act 29 in State v. Ayeh, Supreme Court, Cyclostyled Judgments, January – December 1964, Vol. II, p. 79 as his trump card. The senior state attorney strenuously strove to impress on the court that the appellant can find no solace in that decision, particularly as it did not attempt to say that publication cannot be made to two persons or that publication must be made at rallies or proclaimed with a gong-gong. Counsel argued that it could be said, by inference, that Ayeh’s case was laying it down that publication could be made even to one person. Counsel contended that the statement was likely to cause fear and alarm because as the court rightly observed the Government of the National Redemption Council came into power by a coup and so for anyone to say that there was a plot to overthrow that government is such a bit of news as was likely to disturb the peace. Counsel submitted that the appellant was properly convicted on charge (1).
On charge (2), the senior state attorney argued that the ingredients of the offence were proved. Counsel relied on his earlier submissions to show that the statement was false and that the appellant knew of its falsity. Counsel also submitted that the status of the seventh prosecution witness as a public officer was not in dispute. When the appellant was confronted with exhibit A he admitted its authorship and he orally confirmed it when he had every opportunity to retract it. There is no difficulty, he argued, in concluding that the appellant’s intent was to injure the
[p.234] of [1975] 2 GLR 225
fourth prosecution witness. The fourth prosecution witness was indeed invited to the police station and a statement taken from him. This, counsel contended, was sufficient injury suffered by him. He concluded his argument on the conviction of the appellant by inviting the court to consider that it cannot reverse the findings of fact made by the trial judge.
Section 208 (1) of Act 29 under which the appellant was charged provides as follows:
“208. (1) Any person who publishes or reproduces any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace, knowing or having reason to believe that the statement, rumour or report is false is guilty of a misdemeanour.”
It is, indeed, true that the words “statement,” “rumour” and “report” are not synonymous and it will be a wrong finding of fact to consider them as such. In his judgment the learned judge said: “It is clear, therefore, that the accused published the statement, rumour or report to all these persons.” In the judgment the trial judge considered these words all along as if they imported the same meaning. The appellant was in no way prejudiced by the trial judge’s treatment of these words as, if the charge as laid was indeed proved against the appellant, the appellate court will be entitled to give the true construction to these words and uphold the conviction. The particulars of the charge, it will be noted, accurately informed the appellant of what had been alleged against him to constitute the offence.
There is abundant evidence on record that at the trial the first and third prosecution witnesses gave evidence-in-chief which could have served no other purpose than to attack the character of the appellant.
This is what the first prosecution witness was led in-chief to say:
“We were not on good terms because the accused alleged that I was a Convention People’s Party member and I set fire to his house. After the overthrow of the Convention People’s Party Government in 1966, the accused and his followers reported to the authorities that I was planning to go and bring Kwame Nkrumah from Guinea to Ghana. As a result I was detained for a period of five months. Again the accused and his followers reported to the authorities that I was sending £G500 or ¢1,000 to Kwame Nkrumah in Guinea and that I jubilated when the late General Kotoka was assassinated. I did not do any of the things the accused alleged against me. I did not burn the house of the accused.”
The third prosecution witness, in turn, was also led to say:
“I was a staunch Convention People’s Party member and during the Busia regime the accused made a report against me and I was detained. This happened when the late General Kotoka was assassinated. The accused made a report that we jubilated over the death of the late General Kotoka. I was in detention for about five months.”
[p.235] of [1975] 2 GLR 225
There is no contradicting that the prosecution well shot their mark in painting the appellant black to the court for the trial judge relied on this and made it a crutch to support his judgment. This is what he said:
“I rather find from the evidence before the court that the accused deliberately published the false statement in order to harm the fourth prosecution witness and the others. The evidence shows that he was destooled a few days after the fourth prosecution witness left Sankore and the other persons he mentioned in his report (exhibit A) were once his political opponents, and a civil case is pending between him and one of these people. The first prosecution witness said that in 1966, after the overthrow of the former Convention People’s Party Government, the accused and his followers reported to the authorities that he was planning to go and bring back the late Kwame Nkrumah from Guinea to Ghana and that he was sending £G500 or ¢1,000 to the late Kwame Nkrumah in Guinea and also that he jubilated when the late Kotoka was assassinated. As a result he was detained for five months. The third prosecution witness also said that the accused reported to the authorities that he rejoiced over the assassination of General Kotoka and as a result he was detained for five months. Accused made no effort to challenge or refute the allegations. This shows that truly he once reported the first prosecution witness and the third prosecution witness to the authorities and that was why they were detained for five months. This again shows that the accused adopted the same method to have his opponents detained once more. This depicts the accused as a very wicked person.”
The senior state attorney who was himself in charge of the prosecution of the appellant tried to justify what he led the witnesses to say by arguing that these were similar facts which were introduced to show the guilty state of mind of the appellant and backed this with a number of authorities. According to him section 129 (5) of the Criminal Procedure Code, 1960 (Act 30), on which the appellant’s counsel relied did not, therefore, apply. That subsection (5) provides:
“A person charged and called as a witness in pursuance of this Code shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless—
(a) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or
(b) he has personally or by his counsel asked questions of the witnesses for the prosecution with a view to establish his own good character or has given or called evidence of his own good character; or
[p.236] of [1975] 2 GLR 225
(c) the nature or conduct of the defence is such as to involve imputations against the character of the prosecutor or the witnesses for the prosecution which are not reasonably necessary for the conduct of the defence; or
(d) he has given evidence against any other person charged with the same offence.”
The appellant’s counsel argued that if the prosecution is excluded by the above subsection from cross-examining an accused person on his bad character then a fortiori the prosecution have no right to lead evidence on his bad character. It is common learning that in a criminal trial, to prove that the accused committed the offence charged, evidence may not be given either that he (1) bore a bad reputation in the community; or (2) had a disposition to commit crimes of that kind; or (3) had on other occasions committed particular acts of the same class evincing such a disposition. In my ruling on the appellant’s motion for bail I had occasion to observe as follows:
“It has been authoritatively stated that an unrepresented accused is entitled to the protection of the court so that where the accused person cross-examines a prosecution witness in a way that will leave open his character to attack the court should come to his side and warn him of the danger of his cross-examination: see Avegavi v. The Republic [1971] 1 G.L.R. 428 at p. 437, C.A. As Taylor J. has well pointed out in Tanoh v. The Republic [1971] 2 G.L.R. 482 the exclusion of evidence of previous conviction of an accused, and I would add of his bad character, is in origin a part of the common law of England. Our courts have consistently applied this common law principle in the protection of accused persons at criminal trials: see Avegavi v. The Republic (supra). It is true that where such improper evidence has been admitted it is for the court to consider whether the impression created on the mind of the court can or cannot be affected when the task of forming the judgment arises: see Jenkins v. Feit (1923) 87 J.P. 129. If the court forms the opinion at the trial that its mind has been prejudiced by an improper disclosure then the time honoured practice is that the trial magistrate or judge should refrain from further hearing of the case and should adjourn the case to be heard by a different bench: see Elkington v. Kesley [1948] 2 K.B. 256.”
The rules of evidence on similar facts have been stated at p. 153 of Phipson on Evidence (7th ed.), thus:
“Facts which are relevant merely from their general similarity to the main fact or transaction … therewith . . .are not admissible to show its existence or occurrence. Nor, to prove that an act was done by a given party, may evidence be given of similar acts done either by himself, with the object of showing a general disposition, habit, or propensity to commit, and a consequent probability of his having
[p.237] of [1975] 2 GLR 225
committed, the act in question … If, however, the similar acts are so related to the main act as to show the party’s identity irrespective of any general propensity, they will be admissible notwithstanding that they may also tend to show such propensity.”
Elsewhere Phipson also states that after evidence has been given that an act has been done by a party, similar acts done by the same party and connected therewith, are admissible to show his state of mind in doing the act, where his state of mind is material. Evidence of such similar acts may, therefore, be given to establish the animus of the act and rebut, by anticipation, the obvious defences of ignorance, accident, mistake or other innocent state of mind: see Makin v. Attorney-General for New South Wales [1894] A.C. 57, P.C. There are, however, certain qualifications to this latter rule. For instance, prima facie proof both of the main act, and of the connection of the party implicated, is a condition precedent to the admission of similar facts. Again there must be prima facie evidence sufficient to submit to the jury or the court in proof of the similar facts. If, therefore, after such evidence has been admitted it turns out insufficient the jury should be warned (or the court should warn itself) to disregard it (see R. v. Girod and Girod (1906) 22 T.L.R. 720, C.C.R.); or, if the prejudice be considerable, the case may be tried before a fresh jury: R. v. Bond [1906] 2 K.B. 389 at pp. 413-414, C.C.R. It is also for the judge (or the court) to
decide whether the facts are similar. The prosecution are not entitled to adduce evidence of a general tendency to commit crime or of the commission of another dissimilar offence: R. v. Fisher [1910] 1 K.B. 149, C.C.A.; or of another isolated offence—R. v. Fuidge (1864) 33 L.J.M.C. 74, C.C.R.—unless the prisoner’s character was in issue.
These principles have been stated to enable the court to consider whether the type of evidence led by the first and third prosecution witnesses went to establish similar facts designed to rebut the appellant’s state of mind or whether it was a pure attack on the appellant’s conduct which tends to show that he has a general disposition to commit crime and that he therefore committed the offences with which he was charged. In the first place the facts alleged against the appellant are dissimilar as there was no publication of false news nor deceit of a public officer alleged against the appellant or on which he had been charged and convicted. Secondly those facts are isolated and not connected with the present charges. Thirdly there was no prima facie proof that the appellant committed those acts alleged against him. The trial judge, indeed, did not consider the defence impartially when he found that the appellant “made no effort to challenge or refute the allegations.” To the first prosecution witness he clearly suggested that when Kotoka died it was Kwaku Mensah who caused his arrest and to the third prosecution witness he made the general suggestion that his evidence to the court was lies. I am satisfied that the attacks on the appellant’s character by the prosecution were
[p.238] of [1975] 2 GLR 225
unwarranted and highly prejudicial to his fair trial and the trial judge’s admission of those attacks and his reliance upon them in his judgment amounted to a substantial miscarriage of justice and it is not even necessary to consider whether the convictions could otherwise be supported.
It is, without doubt, the role of a judge in the fair administration of criminal justice to assist an accused person who is not represented by counsel in putting his defence before the court: see R. v. Gbadamosi (1940) 6 W.A.C.A. 84 at p. 89. It is not for him therefore to put impediments in the way of the defence of such an unrepresented accused person. The evidence of the appellant and his witnesses which they gave to the court was by no means improbable. The appellant, from the record of proceedings, avowedly owes his allegiance to the Golden Stool. The constitutional struggle for power now waging before the Coussey Committee between the Asantehene and some of his wing chiefs in Kumasi on the one hand and certain chiefs in this Brong-Ahafo Region on the other hand (and the militant role played by the Brong-Ahafo Youth Association) are all matters of common repute. It is not unlikely that the fourth prosecution witness who claims to have steered the chiefs and people of this region through the creation of the region and is also currently the Vice-President of the Brong-Ahafo Youth Association would go and bluff his way in the manner described by the defence to get the appellant to submit to his cause.
The trial judge, of course, had no misgivings about the veracity of the fourth prosecution witness and the other prosecution witnesses who were his followers at Sankore. He thought that the second defence witness was telling deliberate lies just because, as it seems, his evidence that the four cedis and seventy pesewas was given to the fourth prosecution witness at the appellant’s house did not agree with the evidence of the appellant and the first defence witness that the four cedis and seventy pesewas was given to the fourth prosecution witness at his lodging. No one ever denied that four cedis and seventy pesewas was presented to the fourth prosecution witness. The place where it was presented becomes then very immaterial.
The liberties of every man before our courts in Ghana depend upon the existence of established and known rules of law limiting the authority and discretion of our judges and magistrates charged with the administration of justice. It is thus an established legal rule that a judge cannot deprive of his liberty a man appearing before him without due process of the law. If he should imprison or remand in custody there must be a legal backing for it. The only apparent authority of the trial judge to imprison a witness summarily for telling lies is as provided under section 152 (1) (b) of Act 30 where he can impose a penalty for perjury as for contempt of court. The contempt must however first be brought to the notice of the witness who must be called upon to explain why he should not be so punished. In Kwame v. The State [1964] G.L.R. 612, S.C. the Supreme Court laid down the essential conditions to be fulfilled for charging a
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person with perjury. These are: (a) that he took an oath; (b) he made or verified a statement upon the oath and that (c) he made or verified the statement knowing it to be false in a material particular, or had no reason to believe it to be true. The second defence witness never lied in any material particular to merit his summary remand into custody. The questions asked of him in cross-examination before the trial judge decided to visit his wrath on him related to very irrelevant matters. The powers given to the court to punish for contempt under section 152 (1) (b) of Act 30 must, indeed, be employed in exceptional circumstances. The need that the court must aim at getting at the truth instead of scaring away witnesses has been recognised in many legal circles. In Britain the Criminal Law Revision Committee made a recommendation in the terms that the paramount interest of the law should be to obtain true evidence at the trial and that if it is a matter of choice between having true evidence at the trial and having the satisfaction of prosecuting for perjury after the trial it would be better to have the truth and forego the satisfaction. The trial judge’s punishment of the appellant’s witness, far from advancing the course of justice, rather tended to subvert it and it is hoped that section 152 (1) (b) of Act 30 will be rarely resorted
to by our courts.
Much of the argument at the hearing of both the appellant’s motion for bail and at this appeal centred on whether or not there was publication by the appellant to find him guilty on the first charge. In this regard the appellant’s counsel relied heavily on State v. Ayeh (supra). The senior state attorney would, however, let it suffer from a dimunition of its authoritative weight in its application to this case under appeal by highlighting what it did not seek to decide. The use of cases is, of course, for the propositions of law they contain and not for the propositions of law that are wanting. In State v. Ayeh the Supreme Court laid down the construction to be put on section 208 of Act 29 and particularly on the words “publish” and “public” as appear in the section thus at p. 80 the court said:
“According to the Shorter Oxford English Dictionary the word ‘published’ means ‘to make publicly or generally known; to declare openly or publicly; to tell or noise abroad.’ It is the body of the public to whom the communication is made that the law seeks to protect. It must be made publicly or generally known. The statement, rumour or report must be one ‘likely to cause fear and alarm to the public or to disturb the public peace.’ The expressions referring to ‘the public’ in the Criminal Code, 1960 (Act 29), refer not only to the citizens of the Republic as a whole but also to the persons inhabiting or using any particular place or any number of such persons, and also to such indeterminate persons as may happen to be affected by the conduct with reference to which the expressions are used. It means the body of the public to whom the statement, rumour or report is communicated.”
[p.240] of [1975] 2 GLR 225
It was further laid down that to involve conviction the publication must be with intent to cause, or likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility.
It is clear from the foregoing that where the appellant wrote a private letter to the Asantehene complaining about the conduct of the fourth prosecution witness, even though the appellant knew the statement to be false, and the Asantehene also handed this letter over to the police, the investigating agency of the State, purely for the purpose of investigation as requested by the appellant, it cannot be said that there is publication of the statement by the appellant in the sense that he had made the statement publicly or generally known or that he had declared it openly or publicly. We may do well to remind ourselves, as the Supreme Court did in Ayeh’s case, that section 208 comes under the head “Offences against the Peace,” and takes its place among sections relating to offences against the public peace and tranquility. Section 208 must, indeed, relate to an offence committed in the eye of the public. It certainly will not apply where the appellant has addressed his letter privately to the Asantehene. Indeed section 208 embraces such an offence as reproducing false news. If his conduct in writing exhibit A is therefore criminal what about the Asantehene who also reproduced it by forwarding exhibit A to the police?
The mere making of a false and highly mischievous statement such as is found by the trial court to be contained in exhibit A is no offence under section 208 of Act 29 unless it is published and is likely to cause fear and alarm to the public or to disturb the public peace. In this case the appellant was charged for publishing false news likely to cause a breach of the peace. The test whether the offence is committed is not the actual result, but whether the false statement was likely to cause a breach of the peace. In this regard it is necessary to have due regard to the character of the persons to whom the false statement was communicated in this case. The trial judge considered none of these matters when he made this finding:
“It cannot be disputed that the statement, rumour or report published by the accused in exhibit A, would disturb the public peace. A coup is a violent overthrow of a government in power. It involves bloodshed and affects the smooth running of public affairs. The report or rumour of a coup is a disturbance of the public peace.”
It was, indeed, wrong for the trial judge to have considered the statement in isolation and then come to the conclusion that “it would disturb the peace” and that “the report, or rumour of a coup is a disturbance of the public peace.” If the trial judge had considered whether the Asantehene and the few police officers to whom the statement was communicated for the purpose of investigation are men of reasonable fairness there would have been no need to make his isolated finding above. It is for all the
[p.241] of [1975] 2 GLR 225
above reasons that I hold that the offence in the first charge was in no way proved against the appellant and his conviction on that charge was, therefore, erroneous.
The facts alleged against the appellant in the second charge are no more than that when Assistant Superintendent of Police Eyiah was handed exhibit A to investigate he caused the appellant to be brought before him and when he was asked whether he wrote exhibit A the appellant had said “Yes.” At the tail end of his evidence-in-chief, Assistant Superintendent of Police Eyiah, the seventh prosecution witness, in an obvious endeavour to clinch the charge against the appellant, concluded thus:
“When I questioned the accused in my office he said that it was he who caused the letter to be written for Nana Akromfi Ameyaw the fourth prosecution witness [sic.] went to Sankore and consulted some of his subjects and they contributed money towards the overthrow of the National Redemption Council government. The fourth prosecution witness is an ex-Techimanhene. The accused said that those the fourth prosecution witness consulted were some inhabitants of Techiman who were resident at Sankore.”
Section 251 of the Criminal Code, 1960 (Act 29), which creates many offences provides as follows:
“251. Whoever with intent to defeat, obstruct, or pervert the course of justice, or the due execution of the law, or to evade the requirements of the law or to defraud or injure any person, or to obtain or assist in or facilitate the obtaining of any passport, instrument, concession, appointment, permission or other privilege or advantage, endeavours to deceive or to overreach any public officer acting in the execution of any public office or duty, by personation, or by any false instrument, document, seal, signature, or by any false statement, declaration, or assurance, whether written or verbal, or by any written or verbal statement, declaration, or assurance which the person making such statement, declaration, or assurance, did not have good reason to believe to be true, is guilty of misdemeanour.”
The particulars of the offence, as noted before, stated that the appellant with “intent to injure” the fourth prosecution witness “endeavoured to deceive” the seventh prosecution witness by that false statement particularised on the charge sheet. The trial judge found in his judgment that all the ingredients of the offence had been proved against the appellant. The trial judge delivered himself on the criminal “intent to injure” thus:
“Again, as I have already stated, the purpose of the accused in making the false statement was to get his opponents and those he thought were responsible for his destoolment detained as he was able to do
[p.242] of [1975] 2 GLR 225
successfully on a previous occasion when General Kotoka was assassinated. There is therefore a clear intent to injure those he mentioned as contributing money to overthrow the government.”
The words “defraud” and “injure” which appear in section 251 of Act 29 and express a species of the criminal intent, namely, the intent “to defraud or injure” are, to my mind, used conjunctively and the injury intended must therefore, be in the same sense as, defrauding, i.e. as defined by the Shorter Oxford English Dictionary at p. 472 “taking or withholding from (a person) by fraud what is his right; cheating . . .” There are many false statements which may injure a person (for instance injure his reputation or moral standing) which no one will say will attract the sanctions of the Criminal Code if made to a public officer. To interpret the word “injure” with such laxity will, undoubtedly, lead to many harmful results. The case of Asagba v. The State [1966] G.L.R. 214, S.C. did not attempt to construe the word “injure” as laid in the charge. The Supreme Court was there concerned with what must be proved in establishing the falsity of the statement. The conviction of the appellant was, at any rate, quashed by the Supreme Court on the ground that the falsity of the statement was not proved. I have no doubt that the “or” connecting “defraud” with “injure” is meant to construe the two words conjunctively. The injury contemplated in
section 251 is not in the sense that the person about whom the false statement is made will be imprisoned or in any other way incarcerated. It is for the reason that the appellant did not intend to defraud or injure the fourth prosecution witness by the false statement that I hold that the second charge was also not proved against the appellant. The appeal therefore succeeds and I set aside the conviction and sentence of the appellant on both charges and in their place I enter an acquittal and discharge.
DECISION
Appeal allowed.
Appellant acquitted and discharged.
S. E. K.
