COURT OF APPEAL
DATE: 11 DECEMBER 1967
BEFORE: CRABBE, APALOO AND LASSEY JJ A.
CASES REFERRED TO
(1) R. v. Grunshie (Abisa) (1955) 1 W.A.L.R. 36, W.A.C.A.
(2) R. v. Christie [1914] A.C. 545; 10 Cr.App.R. 141; 111 L.T. 220; 30 T.L.R. 471, H.L.
(3) R. v. Djomoh [1960] G.L.R. 193, C.A.
(4) Rutherford v. Richardson [1923] A.C. 1; 92 L.J.P. 1; 128 L.T 399; 39 T.L.R. 42; 67 S.J. 78, H.L.
(5) Kotey v. The Republic [1963] 1 G.L.R. 41, S.C.; Supreme Court Written Judgments, January-June 1963, p. 23.
NATURE OF PROCEEDINGS
APPEALS from a judgment of Baidoo J. sitting with assessors in the High Court, Kumasi, convicting the appellants of abetment of abortion and abortion respectively. The facts are fully stated in the judgment.
COUNSEL
Kofi Sackey for the first appellant.Koi Larbi for the second appellant.
Victor Kisseih, Senior State Attorney, for the Republic.
[p.708] of [1967] GLR 707
JUDGMENT OF APALOO J.A.
Apaloo J.A. delivered the judgment of the court. On 14 June 1966, both appellants were convicted of the offences of abetment of abortion and abortion respectively by Baidoo J. at the High Court, Kumasi, and each was sentenced to ten years’ imprisonment with hard labour. The complainant Akosua Nyarko is a trader and a housewife of Kumasi. Until the events which gave rise to this prosecution, the complainant lived with her eighteen-year-old niece Cecilia Kodom in the same house. The latter was in August 1965, a pupil attending a primary school at Kumasi. Akosua Nyarko’s hometown is Nkoranza and the evidence shows that on or about August 1965, she paid a visit to her home at Nkoranza. She left her niece Cecilia at home. When she returned, she met Cecilia lying in bed. There was plenty of blood in her pants as well as on the bed on which she lay. When Cecilia was asked to get up, she could not. When the complainant helped her up, she noticed that Cecilia was bleeding from her female parts and appeared to be very weak. After consulting her husband Mr. Adomako, the complainant ran Cecilia to St. Mary’s Hospital — a private hospital at Mbrom Street. There, Dr. Appiah diagnosed Cecilia’s illness as incomplete abortion.
The doctor performed an emergency operation on Cecilia and evacuated from her womb the remaining products of pregnancy and blood clots. Dr. Appiah was of opinion that Cecilia’s case was not natural miscarriage but that there was an interference with the pregnancy. This, the doctor said, was proved by the fact that there was a tear of the uterus and such tear in the doctor’s opinion, could have been caused by a sharp instrument. When Cecilia recovered from the operation, she admitted to her parents that abortion was caused on her with an instrument by a person who lived at Bantama but whose name she did not then know. She took the complainant and her step-father Mr. Adomako to a house at Bantama and there pointed to a room in which the person who used the instrument on her lived. An inmate of that house gave the name of the second appellant as the occupant of that room and described his place of work as the blood laboratory, Central Hospital. Upon receipt of this information, Cecilia who was still on admission at St. Mary’s Hospital, was returned there while her step-father in company of Adjei, her brother, proceeded to the Central Hospital with a view to locating the second appellant. They located him without difficulty. According to the evidence which the learned trial judge accepted, Mr. Adomako upon seeing the second appellant inquired from him whether he was the person who used an instrument on a school girl called Cecilia to procure her abortion. The second appellant replied
[p.709] of [1967] GLR 707
that he had indeed used instrument to cause abortion on a school girl but could not know whether that girl was the Cecilia to whom Mr. Adomako referred. The second appellant was then invited to go with Mr. Adomako and Adjei to identify Cecilia. The second appellant readily agreed and all the three were run to St. Mary’s Hospital in a taxicab. As soon as the second appellant saw Cecilia, he said “Yes this is the girl.” Cecilia for her part, identified the second appellant as the person who used the instrument on her to cause the abortion. A few days after this the police contacted the second appellant. He again admitted in a cautioned statement to the police that he had used the instrument in procuring abortion on a girl and thathe did so to oblige a soldier-friend called Prince. The voluntariness of this statement was disputed by the second appellant in court but this issue was decided against him. On the day that the second appellant admitted responsibility for Cecilia’s abortion, Akosua Nyarko alsotestified that she confronted the first appellant independently and he made an admission which becamethe only real piece of evidence against him. According to the complainant, while Cecilia was still on admission at St. Mary’s Hospital, she went home and prepared a meal for her. While en route for the hospital, she saw the first appellant. She had already been told that he was the author of Cecilia’s pregnancy. Akosua Nyarko said, she told the first appellant that he had done her some wrong. The rest ofthe story is best told from her own lips and we quote her evidence: “I told the first appellant that Cecilia is a very young girl while he Adjei is fairly grown up. That when he made Cecilia pregnant, he should have told me about it and not taken her to Bantama for the second appellant to use instrument on her to cause abortion. That if I had not returned from Nkoranza that day, Cecilia would have died.” The complainant swore that in reply to this the first appellant begged her but she said it was not a matter of begging but invited him to come with her to the hospital to see the condition of Cecilia. To this request, the first appellant acceded and joined her to the hospital. At the hospital, the first appellant was taken to the ward where Cecilia lay and the complainant then pointed to the first appellant the former’s condition, remarking at the same time, “You see what has happened?” Akosua Nyarko then said: “After the first appellant had admitted his guilt, I considered the situation with my husband Adomako and then reported the matter to the police.” A few days after this, the police took an investigation cautioned statement from the first appellant. He admitted being a boy friend
[p.710] of [1967] GLR 707a
to Cecilia for about two months but denied any knowledge of her pregnancy. As we said earlier, when the second appellant was contacted, he said although he used an instrument to cause abortion on Cecilia, he did this not from any profit-making motives but out of fellow-feeling for a soldier-friend called Prince; the second appellant said it was this Prince who brought Cecilia to him. As isonly to be expected, Adomako and Cecilia’s brother Adjei expressed a desire to meet Prince. The second appellant agreed and went with them to an army school. They there met a man by name Prince Jonah Yeboah. The second appellant said he was the person who brought Cecilia for the operation. The second appellant then confronted Prince and accused him of telling him falsehood in that he represented Cecilia as his own girlfriend whereas Cecilia was a girlfriend to somebody else. According to the evidence which the learned judge accepted, Prince’s reply to this was: “Why did you go to accept responsibility without first contacting me?” Mr. Adomako then requested Prince to tell them who the real boy friend of Cecilia was and the latter said he was a soldier and could not be reached save on the telephone. Prince left under the pretext of ringing Cecilia’s boyfriend up but did not return. Prince was himself subsequently charged in this matter with aiding the second appellant in the commission of abortion but was acquitted. Since Prince was acquitted and as he was not an appellant before us, no object would be served in giving any further consideration to his case but his acquittal was urged as an important factor in the argument on behalf of the first appellant and it is necessary to state how this came to be. Shortly after being interviewed at the army school by Mr. Adomako, Prince was also contacted by the police. He was invited to make an investigation statement on caution but he declined to say anything. When Prince was put on his trial, he unlike the first and second appellants, went into the witness-box and related his part of the story. The pith of his evidence is, that on 13 August 1965, Messrs. Adomako and Adjei called at the army school and interviewed him. He had never met Mr. Adomako previously but thelatter told him that he had come to solicit his help. According to Prince, Mr. Adomako said, a soldier had made his daughter pregnant and that soldier who was called Adjei, shared the same house with him. Mr.Adomako was desirous of extorting £G100 from the soldier’s father and the help which the latter sought of him was to admit falsely that he Prince in fact took Mr. Adomako’s daughter to a nurse who performed the abortion. Prince said he was infuriated at this wicked plan especially as he did not know the Adjei referred to.
[p.711] of [1967] GLR 707a
According to Prince, he could not contain his anger and spoke with some harshness to Mr. Adomako. Prince said he made up his mind to give Adomako and Adjei in custody but fortunately for them, the Sergeant-Major was outdoors at the time. He characterised as completely false Mr. Adomako’s version of the incident at the army school. This is a remarkable story and it is sufficient for us to say that the learned trial judge pronounced it false. At the trial, Cecilia who made a very comprehensive statement to the police implicating all the appellants as well as Prince, recanted her story and was, with the court’s leave, treated as a hostile witness. The learned judge held her not only to be an accomplice to the crime, but a thoroughly untruthful witness. Accordingly, the prosecution, bereft of a key eyewitness’s testimony, were left to support their case with such admissions of the crime as were made by any of the persons then accused. Although the learned trial judge considered both Adomako and Cecilia’s brother Adjei as truthful witnesses, he held that there was some conflict in their testimony as to what Prince actually said when he was confronted at the army school. On this account, the judge said he was in some doubt whether Prince in fact made any admission. Relying on the oft-cited case of R. v. Abisa Grunshie (1955) 1 W.A.L.R. 36, W.A.C.A. the judge concluded that although he rejected Prince’s case, he ought to give him the benefit of the doubt. Having given him that benefit, he proceeded to acquit him. In regard to the first and second appellants, the learned trial judge felt no difficulty. He said the evidence that it was the second appellant who procured the abortion on Cecilia was overwhelming and that his oral and written admissions were strongly indicative of guilt. He concluded his finding against the second appellant in the following words: “I believe the third accused [meaning the second appellant] did make all those damaging admissions against himself and 1 find as a fact that it was the third accused who caused the abortion on Cecilia on or about 5 August 1965, using an instrument.” The learned judge was no less satisfied of the first appellant’s guilt. After examining the cases of R. v. Christie (1914) 10 Cr.App.R. 141, H.L. and R. v. Djomoh [1960] G.L.R. 193, C.A. the judge said: “I have considered fully the circumstances of this case. I believe Akosua Nyarko’s [the second prosecution witness] evidence that she confronted the first appellant [the first accused] with the clear accusation that he had done wrong in sending Cecilia to Bantama for abortion to be caused on her and that in consequence of the resultant abortion, Cecilia would have died if she (Akosua Nyarko) had not fortuitously returned from Nkoranza to Kumasi in time to send Cecilia to St. Mary’s [p.712] of [1967] GLR 707 Hospital. The first appellant on hearing the accusation begged whereupon Akosua Nyarko (the second prosecution witness) replied that it was no trifling matter and that he the first appellant should accompany her to the hospital to see for himself Cecilia’s condition.”
The learned judge then concluded the judgment against the first appellant in the following words: “On the evidence, I find as a fact that the first appellant acknowledged the truth of the whole accusation made or repeated to him by Akosua Nyarko in the street.” It is against these findings and the conviction thereupon that the appellants appealed to this court.The ground of appeal filed on behalf of the second appellant shows that the judgment was going to be attacked on the ground that “the conviction cannot be supported having regard to the evidence.” But Mr. Koi Larbi who appeared for the appellant, felt himself unable to quarrel with the conviction on that or any other ground. He concedes, as the judge found, that there was overwhelming evidence against the second appellant. He laments the fact that the second appellant was not advised to go into the witness-box and says that that advice was wrong. His plea to us was, that the conviction should be set aside and the case remitted to the court below for rehearing so that the second appellant may be enabled to give evidence. He says, such a course is demanded by justice. As Mr. Koi Larbi well knows, that is not a plea that we can entertain. There was here, a trial conducted with perfect regularity and in strict compliance with the provisions of the Criminal Procedure Code, 1960 (Act 30). The second appellant was professionally represented and as Mr. Koi Larbi himself admits, the prosecution led very strong evidence against him which he elected not to answer. In those circumstances, we cannot see that any rule of law or justice requires us to order a retrial and impose on the prosecution, a fresh burden of proving a case against the second appellant. In our opinion, there is no merit in the appeal of the second appellant. It is in respect of the first appellant that arguments worthy of consideration were addressed to us. His conviction was contested on three main grounds. Firstly, it is said that the mere fact that when confronted with the accusation, the first appellant was alleged to have begged was not conclusive of guilt; secondly, it is argued that as Prince was acquitted, the nexus between the first appellant and the crime was destroyed; thirdly, it is said that as the assessors were unanimously of opinion that the first appellant was not guilty, the learned judge ought not to differ from them without giving good reasons.
[p.713] of [1967] GLR 707
With regard to the first ground of complaint, counsel referred to the case of R.v. Djomoh [1960] G.L.R. 193, C.A., where it was held, among other things, that a confession of having done wrong accompanied by an apology does not necessarily amount to a confession that a crime has been committed. It is said, in this case by counsel that as the first appellant had put Cecilia in family way, he has done wrong and his apology might well be intended for that. Accordingly, it is argued that the begging was at best an equivocal admission. In our opinion, the case of R.v. Djomoh (supra) is plainly distinguishable from the instant one. In the Djomoh case, when the appellant was accused of stealing a child, he offered an explanation which the Court of Appeal considered might well be true. That explanation was that the child was showing him a certain house. At a latter stage, the appellant in the Djomoh case told other witnesses that “he had done it” and apologised. The trial court completely overlooked the explanation and appeared to have concluded his guilt on the alleged confession. The Court of Appeal thought “a probability that the appellant’s explanation may have been true cannot be excluded.” In this case, when the first appellant was accused of taking Cecilia to Bantama for the second appellant to use an instrument on her to procure abortion, the first appellant offered no explanation of any sort. If this accusation were untrue, a denial would spring from his lips unasked. When he was invited to see the near critical condition in which the abortion put Cecilia, the first appellant agreed and accompanied the complaint to the hospital to see the latter’s condition. In our opinion, the only conclusion which the evidence warrants is that the first appellant was by his silence and conduct acquiescing in the allegation which the complainant then made. Mr. Sackey argues that in begging, the first appellant might well have been apologising for the wrong of putting Cecilia in the family way but not for the allegations concerning the abortion. Were this the case, the appellant would, while admitting the pregnancy, have vehemently denied the abortion part of the accusation. At the very least, when the court held that there was a prima facie case against him, as undoubtly there was, the first appellant would have explained why he begged inanswer to a serious accusation. The first appellant made no denial of the accusation or offered any explanation for apologising when the accused of a serious crime. The complainant regarded this as an admission of guilt, because she said: “After the first appellant had admitted his guilt, I considered the situation with my husband and then reported the matter to the police.”
[p.714] of [1967] GLR 707a
We think that is an eminently reasonable conclusion to form in the circumstances and we think the learned trial judge was amply warranted in his conclusion that “the first appellant acknowledged the truth of the whole accusation.” Mr. Sackey next argues that on the prosecution’s case, Cecilia was taken to the second appellant for the abortion by Prince and that the latter did so at the first appellant’s behest. It is argued therefore that by acquitting Prince, the learned trial judge rejected this story. Accordingly, counsel says, there was no nexus between the first appellant and the second appellant who was alleged to have caused the abortion. The first appellant and Prince were charged on separate counts of aiding and abetting the second appellant to commit abortion. That abortion was proved to have been committed. Mr. Sackey produces no authority to show that if one of two persons accused of abetting a third in the commission of a proved offence was acquitted, a conviction of the other was legally incompetent. In this case, had the second appellant been acquitted of causing abortion, then it might be permissible to argue that neither of the persons charged with aiding and abetting him could be convicted. But Mr. Sackey does not profess to base his contention on law but on logic. But is logic always a handmaid of law? Can any rule of logic justify a conclusion often perfectly legitimately reached in the courts that B. has committed adultery with C., but not that C. has committed adultery with B.? Mr. Sackey’s contention that the learned judge found that Prince did not take Cecilia to the second appellant for the abortion is not borne out by the judgment. There was no admissible evidence against Prince that he in fact took Cecilia there and his guilt was sought to be inferred from the oblique admission he was alleged to have made when the second appellant confronted him with this fact at the army school. The learned trial judge unequivocally rejected Prince’s account of what happened but could not be certain as to what his reply actually was to the accusation. Accordingly, the judge said his mind was afflicted with doubt and it is the benefit of that doubt that he gave to Prince. That was the basis of his exculpation. In those circumstances, to say that the judge did not accept the prosecution’s case against Prince, would be plainly contrary to the facts. As the basis of the convictions of the first and second appellants was admission made or deemed to have been made by them, such admissions bound them only and cannot be the foundation of any adverse conclusion against Prince. Had the learned trial judge been able to make positive pronouncement that Prince did not in fact take Cecilia to the second appellant for the purpose of the abortion,
[p.715] of [1967] GLR 707
then the question may well be asked whether in view of the evidence that the first and second appellants were total strangers, the first appellant’s admission of guilt could be relied on or as Mr. Sackey puts it, whether there was any nexus between the first appellant and the crime of abortion. But in view of the basis of Prince’s acquittal, this question does not arise. In our opinion therefore, the acquittal of Prince in no way affects the conviction of the first appellant based as it was on his own admission. It is right that we should say that in reaching this conclusion, we derived no small degree of guidance from the very instructive speech of Viscount Birkenhead in Rutherford v. Richardson [1923] A.C. 1 at p. 6, H.L. Lastly, Mr. Sackey argues that since the issue in this case was primarily one of fact and as all theassessors were unanimous in pronouncing the first appellant not guilty, the learned judge ought to give sound reasons for differing from them. In the case of Kotey v. The Republic [1963] 1 G.L.R. 41, the Supreme Court in effect laid down the principle in substantially similar terms. It said at p. 41: “… that although in a trial with assessors, the judge is, by section 287 (2) of the Criminal Procedure Code, 1960 (Act 30), not bound to conform to the opinion expressed by the assessors, and is entitled to come to his own conclusions upon the facts against the unanimous opinion of the assessors, yet in the case of a prosecution based entirely upon facts, a court should not ignore the opinion of assessors which is unanimous in favour of an accused unless it can show good reasons for rejecting it.” In the Kotey case, the appeal was allowed and the conviction quashed but the ratio decidendi shows that this was done not because the court considered that the learned judge failed to give good reason for differing from the assessors, but because the learned judge did not give sound reasons for his own judgment and appears to have convicted the accused because of what he conceived to be weakness in the accused’s story. Thus the court said in Kotey v. The Republic: “Thus when the facts and circumstances of the case are subjected to legal test, it is made abundantly clear that the learned judge did not in fact examine the case for the prosecution with that care and attention as required by law.” And the court concluded finally that, “The serious misdirections by the learned judge have led to grave miscarriage of justice and the resultant conviction should not be allowed to stand.” See Supreme Court Written Judgments January-June 1963 at p. 31.a[p.716] of [1967] GLR 707 It seems clear therefore that notwithstanding the manner in which the court expressed itself, the principle it laid down appears to be that where the assessors are unanimous in favour of the accused, the learned judge, though entitled as a matter of law to differ from them, must not do so unless he gives cogent reasons for his own judgment. If that be the true principle, to what extent can it be said that the judgment appealed from was in default? The learned trial judge examined the law and the facts with great care and came to the wholly sound conclusion that the first appellant acknowledged the truth of the serious accusation made against him. Mr. Sackey has not been able to point out any flaws in the reasoning of the learned judge nor was he able to pinpoint one inaccurate proposition of law made by the judge. We think therefore that the judgment conformed with the principle laid down in the Kotey case. If the true principle laid down in the Kotey case is not that the judge must justify his judgment by his own reasons but must give cogent reasons for differing from the assessors, it would seem difficult of application. While the judge is obliged by law to give reasons, the assessors, are not so obliged. How then is he to demonstrate the superiority of his reasoning to that of the assessors whose reason for their opinion, must, by the very nature of things, be purely hypothetical? How is the judge to show any fallacy in the conclusion of the assessors or how is an appeal tribunal to judge whether the reasons given by the judge was superior to the undisclosed reasons on which the blanket opinion of the assessors is based? We think the first interpretation which we put on the Kotey judgment is the right one because it is supported not only by the very basis of that judgment but also seems to fall within the spirit of section 287 of Act 30.
In our opinion, the conviction of the first appellant, like that of the second appellant, was justified. It follows that the appeal of each appellant ought to be and is dismissed.
DECISION
Appeals dismissed
S. O.
