HIGH COURT, CAPE COAST
Date: 11 APRIL 1975
EDWARD WIREDU J
CASE REFERRED TO
Cozens v. Brutus [1973] A.C. 854; [1972] 3 W.L.R. 521; [1972] 2 All E.R. 1297; 56 Cr.App.R. 799, H.L.
NATURE OF PROCEEDINGS
APPEAL by the appellant against the judgment of a district court wherein the appellant was convicted of “using abusive term of reproach” contrary to section 298 of Act 29. The facts are adequately set out in the judgment.
COUNSEL
F. E. Short for the appellant.
G. B. Adinyira, State Attorney, for the Republic.
JUDGMENT OF EDWARD WIREDU J.
This sole point for consideration in this appeal is whether section 298 of the Criminal Code, 1960 (Act 29), creates a single or several offences. The facts which have provoked the above consideration may be briefly stated as follows. The appellant was arraigned before the Essiakyir District Court Grade II on 4 March 1974 charged with two counts under section 298 of Act 29. The statements and their particulars are in the following form:
“(1) Using abusive term of reproach: section 298 of the Criminal Code, 1960 (Act 29).
(2) Using abusive term of reproach: section 298 of the Criminal Code, 1960 (Act 29).
Particulars of Offences
Kwesi Bosuo Farmer: For that you on the 2nd day of March 1974 at Essuehyia market in the Central Magisterial District, and within the jurisdiction of this court, then being a public place and within sight of hearing did use abusive terms of reproach against Nana Akyin VI, Omanhene of Ekumfi Traditional Area, and his chiefs, to wit: ‘These hopeless Ekumfi chiefs. You have no respect for any of them. The so-called Omanhene being a fraudulent person.’
Charge Two
Kwesi Bosuo Farmer: For that you on the 2nd day of March 1974, at Essuehyia market in the Central Magisterial District
[p.381] of [1975] 1 GLR 279
and within the jurisdiction of this court, then being a public place and within sight of hearing did use abusive terms of reproach against one Hagar Quansah to wit: ‘You are a hopeless and dirty woman.”
He pleaded not guilty to each of the charges but was tried and found guilty on both counts. He was therefore convicted and sentenced to a fine of ¢100.00 on each count the statutory maximum prescribed by law. The sentences were to be cumulative and to run consecutively. The sole evidence led by the prosecution was that the appellant had abused Nana Akyin in a market place to the hearing of one Madam Hagar Quansah (the first prosecution witness) and had also insulted the said Madam Hagar Quansah. The relevant portion of the trial court’s judgment reads as follows:
“On the whole the balance of evidence swings very strongly in favour of the prosecution. The accused has no excuse for saying that Nana Akyin VI is a fraudulent person and a swindler. The accused has totally failed to prove his allegations against Nana Akyin. The accused added more insult to injury when he told Madam Hagar Quansah alias Aba Yaaba wife of Nana Akyin VI that she is a hopeless and dirty woman. The accused has only tried to disgrace this very beautiful and very clean and neat woman. I find the accused guilty of the offences with which he is charged. I convict him accordingly and sentence him to a fine of ¢100.00 (one hundred cedis) or 6 (six) months’ imprisonment with hard labour on each of the two counts. Sentences are cumulative or consecutive.”
His appeal to this court against his conviction was grounded on two main points. The first was that the charge was bad in law and the conviction secured thereunder was unsustainable. Learned counsel for the appellant attacked the charges as laid down and submitted that they created no triable offences in our courts. He argued that the statements and their particulars disclose no triable offences under section 298 of the Criminal Code, 1960 (Act 29). He submitted that the term “abusive term of reproach” is one of the acts the prosecution may prove to bring an offender within the offence contemplated under that section. He therefore contended that the term “use of abusive term of reproach” by itself does not constitute any triable offence with which the appellant could be tried.
The second and the last point taken was that the evidence adduced by the prosecution was found wanting in material particulars to support a conviction under section 298 of Act 29. He argued that no prima facie case was established against the appellant who was not represented at the trial to justify his being called upon to open his defence. Counsel therefore contended that his conviction was wrong in law.
Mr. Adinyira, state attorney, who appeared for the Republic conceded that the conviction was unsupportable in view of the extreme paucity of the prosecution’s evidence. He, however, argued that he did not share the view of learned counsel for the appellant that section 298 of Act 29
[p.382] of [1975] 1 GLR 279
creates just a single offence. According to him the section contemplates a host of offences one of which was the “use of abusive term of reproach.” He therefore contended that if counsel for the appellant’s arguments had been confined to this aspect of the case then he would have seriously resisted the appeal under section 26 (12) of the Courts Act, 1971 (Act 372), but for the evidence. Learned state attorney also referred to section 112 of the Criminal Procedure Code, 1960 (Act 30), and submitted that the rules as to drafting of charges are now more flexible than they used to be in the past.
Had this appeal been argued solely on the evidence there would have been no need to write any reasoned judgment. The rival submissions on the construction aspect of section 298 of Act 29 raise an interesting point of law worthy of consideration. Does the section create one or several offences?
In order to resolve this we shall have to examine in some detail the language of section 298 of Act 29 to ascertain which of the two rival submissions is the correct one whether it creates more than one offence as was urged by learned state attorney or whether it envisages only one offence as was urged by learned counsel for the appellant. Section 298 of Act 29 reads as follows:
“Whoever in any public place, or in any place within sight or hearing of persons then being in a public place, disturbs the peace by fighting or quarrelling with any other person, or by making any loud or unseemly noise; or abets an unlawful fight, or uses or applies to any other person then being in such public place or within sight or hearing thereof, any violent or abusive term of reproach, or sings any profane, indecent, or obscene song, or exposes any defamatory or insulting writing or object, or with the intention of annoying or irritating any other person, sings any scurrilous or abusive song or words, whether any person be particularly addressed therein or not or is guilty of any riotous, indecent, disorderly, or insulting behaviour, to the obstruction or annoyance of any passenger or person in such public place, shall be liable to a fine not exceeding fifty pounds.”
A careful and critical examination of the ordinary language of the section reveals that the gravamen of the offence contemplated thereunder is the disturbance of the peace in a public place. The section sets out in what may be described as exhaustive language a number of acts each of which when done in a public place or to the hearing of persons then within sight in a public place is capable of constituting that offence. Among the acts enumerated under the section are quarrelling, fighting, making loud or unseeming noise, use of abusive term of reproach, etc. In its proper construction each of such acts even though it may take a different form does not by itself constitute a separate offence under section 298 of Act 29. They all come under the umbrella of disturbing the peace in a public place. In this connection I think the interpretation that section 298 of the Criminal Code, 1960 (Act 29), creates only one offence as urged by
[p.383] of [1975] 1 GLR 279
Mr. Short for the appellant is to be preferred to the interpretation of Mr. Adinyira. If section 298 of Act 29 was intended to create more than one offence, I am of the view that the various acts enumerated thereunder could have been numbered and paragraphed and would perhaps have taken the form of section 296 of the same Act. A charge properly laid under the section may take one of the following forms:” (a) Disturbing the peace in a public place contrary to section 298 of Act 29.” This will be followed by particulars setting out in some detail including one of the acts enumerated in the section. Or (b) Disturbing the peace in a public place by “using abusive term of reproach” followed by similar particulars.
My endeavours to look for a corresponding English statutory provision have not been successful but an analogous provision to it is section 207 of our own Criminal Code, 1960 (Act 29), which is drafted on similar lines as section 298. The corresponding English provision to section 207 is section 5 of the English Public Order Act, 1936 (1 Edw. 8 & 1 Geo. 6, c. 6). This latter Act is in identical language as our own section 207 of Act 29 and they both create the offence commonly described as “breach of the peace” or “conduct conducive to a breach of peace.” Section 207 of the Criminal Code, 1960 (Act 29), is in the following language:
“Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of a misdemeanour.”
I do not think it would be correct for any one to say that section 207 of Act 29 creates more than one offence: see Cozens v. Brutus [1972] 3 W. L. R. 521, H.L. So that strictly and technically speaking the term “use of abusive term of reproach” by itself is not a separate and distinct offence under section 298 of Act 29 for what constitutes the offence contemplated thereunder is the disturbance of the peace in a public place. On this score I am inclined to accept Mr. Short’s submission as the correct view.
The appeal therefore succeeds and it is accordingly allowed. Conviction of the appellant on each of the counts is hereby quashed and sentence set aside. He is acquitted and discharged on each count.
DECISION
Appeal allowed.
Conviction quashed.
Appellant acquitted and discharged.
S. E. K.
