DIVISION: IN THE HIGH COURT, ACCRA
DATE: 17TH MAY, 1963
BEFORE: AKAINYAH J.
CASES REFERRED TO
(1) R. v. Edem (1943) 9 W.A.C.A. 25
(2) Ejukolem v. Inspector-General of Police (1952) 14 W.A.C.A. 161
(3) R. v. Dogbe (1947) 12 W.A.C.A. 184
(4) R. v. Tawell (1845) 2 Car. & Kir. 309n.; 175 E.R. 128
NATURE OF PROCEEDINGS
APPEAL against conviction for fraud by false pretences. The State did not support the conviction of the
appellant.
COUNSEL
B.E. Kwaw-Swanzy, Attorney-General, (with him Gyeke-Darko) for the respondent.
Ofori-Atta for Patrick Anin for the appellant.
JUDGMENT OF AKAINYAH J.
The appellant was charged with fraud by false pretences, contrary to section 131 of the Criminal Code,
1960,1 and the particulars of the offence are as follows:
“Paul Achampong Cofie Atuahene, Regional Organiser, Builders Brigade, Koforidua, on or about the 7th
day of April, 1960, at Tafo in the Eastern Magisterial District, defrauded Benjamin Akuamoah Boateng of
the sum of £G20 by falsely pretending that the said sum of money was payable to Ebenezer Aikins-Hawkson
the then Regional Organiser of the Builders Brigade at Koforidua before the said Benjamin Akuamoah
Boateng could be promoted to the post of Group Leader in the said Builders Brigade.”
[p.450] of [1963] 1 GLR 448
On the 14th April, 1962, the appellant was convicted by the district magistrate, Koforidua, and sentenced
to a term of six months imprisonment with hard labour. Against his conviction, he lodged an appeal and
an application for bail was made by counsel on his behalf to the Circuit Court, Accra, (the then appellate
court) but the same state attorney who conducted the prosecution at trial and who was seised of the facts,
opposed the application successfully. Consequently he was compelled to serve the six months prison term
but prosecuted the appeal only to test the validity of the conviction.
I have carefully perused the record of proceedings and heard defence counsel’s arguments. In my view, it
is needless to review the facts in this judgment. It is sufficient to say that the prosecution failed to prove
the case beyond all reasonable doubt and, therefore, the appellant was entitled to an acquittal. At all
events, all the material witnesses upon whose testimony the prosecution relied to discharge the onus
probandi were particeps criminis and on the vital issue as to whether or not any sum of money was paid at
all to the appellant, their evidence was conflicting. Apart from the incomplete evidence of the first
prosecution witness, who was the only independent witness, the evidence of the accomplices was not
corroborated. The learned magistrate failed completely to direct himself that it was unsafe and dangerous
to convict on the uncorroborated evidence of accomplices.
When I read the record and heard the appellant’s counsel on the 22nd April, 1963, I formed the opinion
that the trial was most unfair to the appellant and therefore I decided to grant him leave to appeal and to
hear the Attorney-General. On the 7th May, 1963, the learned state attorney who appeared for the
respondent announced in court that he did not intend to support the conviction. I thought that was very
wise and I allowed the appeal and acquitted the appellant. But in view of the fact that the record of
proceedings clearly showed that the state attorney who appeared for the prosecution at the court below
conducted the case in contravention of the principles of justice, I decided to write a considered judgment
embodying my reasons and comments.
The appellant was arrested without warrant on the 12th December, 1961, and was granted police bail on
the same date to appear before the District Magistrate’s Court, Koforidua, on the 18th December, 1961.
At the request of the prosecuting state attorney, the appellant was put before the court on Saturday, the
16th December, 1961, instead of the return date, Monday the 18th December, 1961, and he pleaded not
guilty. His counsel then quite rightly made an application for an adjournment to the 18th December, 1961,
for the reason that he had been briefed the previous day, and was not yet ready to go on. The prosecuting
state attorney vehemently opposed the application on the ground that a prosecution witness was leaving
for Russia. He insisted that that witness should be heard by all means and, if need be, he would remain in
the country until released by the court. Following the state attorney’s suggestion, the court rejected the
defence counsel’s application and made the following order, “I will
[p.451] of [1963] 1 GLR 448
hear this witness to help me to decide whether this witness should be released or not.”
The witness Edmond Asare Addo was then sworn, and he gave evidence for the prosecution incriminating
the appellant. He deposed inter alia that the appellant admitted in his presence that he had paid the £G20,
the subject-matter of the charge, to one Hawkson, the then Regional Organiser of the Workers Brigade.
This piece of evidence turned the scale substantially in favour of the prosecution, therefore the appellant
was entitled as of right, to test the veracity of the witness and the accuracy of his evidence by
cross-examination, but only one question was asked by defence counsel when the case was adjourned. On
the 18th December, 1961, when the case was called no evidence was taken and it was adjourned to the
30th December, 1961, and again to the 8th January, 1962, for mention. On the 8th January, 1962, the state
attorney reported to the court that the appellant had been interfering with witnesses (whose names he
failed to mention) and that, upon his instructions, the police had taken a statement which he had in his possession, and upon which, charges could be preferred against the appellant and requested that bail be rescinded. This highly prejudicial and improper report was denied by the accused, and although his counsel gave an unqualified undertaking that he would see to it that there was no interference, the court yielded to the state attorney’s request and accordingly rescinded the bail, remanded the appellant in
custody, and adjourned the case for hearing at Nkawkaw.
On the 18th January, 1963, the state attorney told the court (sitting at Nkawkaw) that Edmond Asare
Addo who was to have appeared in court for cross-examination had left Ghana for Russia and was not
available for cross-examination by counsel for defence. In other words, the state attorney did not keep his
word that the witness would remain in the country until released by the court. In the interests of justice,
the learned magistrate should have expunged the incomplete evidence of the witness from the record, or
insisted upon his appearance in court. On the contrary, he just proceeded to hear the other witnesses
without expressing disapproval. Strangely enough, in his address to the court at the end of the trial, the
state attorney who caused all the confusion about Edmond Asare Addo turned round to criticise and
stigmatize the defence by saying that:
“Defence mentioned that Edmond Asare Addo was to produce some documents, but these documents were
never produced and were never mentioned. The defence’s fourth witness, Colonel Ababio failed to turn up
for further cross-examination. If Mr. Addo’s evidence should be ignored then what about this defence
witness? Colonel Ababio described accused as a first class brigader but this man of integrity wrote a letter to
Mr. Addo to employ brigaders illegally. This letter is not in evidence but then when it was shown to the
accused he was taken aback. This shows the bad character of the accused. The accused took £G400 for the
fourth prosecution witness, Djaba, and because Djaba took no receipt for the amount, the accused denied
taking this money. This was very wicked of the accused. He is not a person to be believed.”
[p.452] of [1963] 1 GLR 448
That statement was most improper and should not have been made at all because the appellant did not
attack the character of prosecution witnesses. The state attorney knew that through his instrumentality the
defence was prevented from cross-examining Mr. Addo but he cross-examined Colonel Ababio at length.
In fact Colonel Ababio’s cross-examination occupied ten pages of the record of proceedings. I think both
defence counsel, Mr. Ansah Twum, and Colonel Ababio deserve praise for their calmness in the face of
provocation and the state attorney’s unprecedented arrogance.
In cross-examining the accused, the prosecuting state attorney again vigorously attempted to prejudice the
case for the defence by making it appear through improper and irrelevant questions that the appellant was
a thoroughly bad man. The following were suggested or put to him: (1) That he was transferred from
Navrongo to Tafo because he was a troublesome man and very inefficient. (2) That he paid for Mr. Ansah
Twum’s (his counsel’s) legal education in England. (3) That since he came to the region he had openly
abused Ministers, Regional Commissioners, District Commissioners, Members of Parliament and chiefs.
(4) That on one occasion he had been to see Mr. Abban, Deputy Minister, Mr. Atta Mensah, Executive
Secretary to the National Co-operatives and Mr. Kojo Botsio for some assistance. (5) That he ordered
brigaders to hunt animals and used brigade vehicles to carry the animals killed for the National Organiser,
Colonel Ababio. (6) That he and Colonel Ababio’s sister, Aunt Fio, were engaged in a deal relating to
cassava cuttings. (7) That he could not maintain his wife and she had to steal the wristlet watch of Mr.
Djaba.
Many other suggestions of questionable utility were also put forward to the appellant and denied by him.
Mr. Djaba himself did not say that the appellant’s wife stole his wristlet watch.
Again, when Colonel Ababio, National Organiser of the Workers Brigade and an Assistant Commissioner
of Police, gave evidence for the defence, the state attorney accused him of stealing certain documents
which he had been subpoenaed to produce from his custody and warned him that he would be required by
the police for questioning. Colonel Ababio had to complain to the court about the threat of arrest. The
state attorney put to him all sorts of irrelevant and vexatious questions.
[His lordship summarised the questions and continued:] Colonel Ababio was not standing trial for any
criminal offence. He was only a witness for the defence, therefore, I do not see any justification for the
questions and suggestions put to him calculated to show that he and his sister were guilty of fraudulent
practices.
At the close of the case for the defence, the state attorney applied to the court for leave to call three more
witnesses. Counsel for the defence opposed the application and contended that the state attorney must
show substantial reasons for the application, but the learned magistrate ruled that he himself had decided
to call a man named Adu Amankwa who was mentioned in the case but was not called either by the
prosecution or the
[p.453] of [1963] 1 GLR 448
defence, and so granted leave. The court itself called Adu Amankwa. The evidence given by the three
witnesses called after the close of the case for the defence was calculated to strengthen the prosecution’s
weak case. The witnesses were not called to rebut something which had arisen ex improviso
The court’s power to call a witness after the close of the case for the defence was discussed by the West
African Court of Appeal in two cases namely R. v. Edem2 and Ejukolem v. Inspector General of Police.3
In the earlier case, it was held that4
“it is well established law that in a criminal trial the judge has the right to call a witness not called either by
the prosecution or the defence and without the consent of either, if in his opinion this course is necessary in
the interests of justice. But it is equally well established that, in order that injustice should not be done to an
accused person, the calling of such a witness after the close of the case for the defence should be limited to
cases where something has arisen ex improviso, which no human ingenuity could foresee, on the part of the
accused. (R. v. Frost, 9 C. & P. 129 at p. 159; R. v. Harris 28 Cox 432; 20 Cr.App.Rep. 86).”
In the latter case, the court said5
“It appears to us that the learned Magistrate did not consider the evidence before him at the close of the case
for the defence sufficient to enable him to convict the appellant, hence he found it necessary to call three
additional witnesses to strengthen the case for the prosecution. The learned Magistrate should, in the
circumstances, have acquitted and discharged the appellant instead of calling more witnesses.”
As I have already pointed out, nothing had arisen ex improvise and therefore injustice was done to the
appellant. In his judgment, the learned magistrate also considered the evidence of Mr. Addo and accepted
it as conclusive proof of the guilt of the appellant by holding that, “The first admission of guilt was made
before Mr. Addo-the accused promised to see the second prosecution witness promoted or his £G20
refunded to him.”
In my view that finding was a fatal misdirection because the magistrate failed to direct himself that in the
absence of cross-examination due to circumstances beyond the control of the appellant, the incomplete
evidence of Mr. Addo was no evidence at all. It seems to me that the learned magistrate considered
himself bound to follow suggestions made by the state attorney. The court is in no way bound to follow
suggestions put forward by the prosecution.
From the beginning of the case and throughout the trial. the prosecuting state attorney exhibited open
hostility to the defence. The course of action taken by him was, in my view, contrary to the principles of
justice and the established rules of practice and it was little short of scandalous that a state attorney should
bully and coerce a person standing
[p.454] of [1963] 1 GLR 448
trial on a criminal charge, humiliate his counsel and intimidate his witnesses. The attitude adopted by him
to obtain a conviction at all costs is foreign to criminal trials in this country. It savours of oppression and
must be condemned in no uncertain terms.
The duty of counsel for the prosecution has been succinctly stated at pages 504 and 505, para. 749 of
Kenny’s Outlines of Criminal Law, (1952 ed.) in the following words:
“A prosecuting counsel stands in a position quite different from that of an advocate who represents the
person accused or represents a plaintiff or defendant in a civil litigation. For this latter advocate has a private
duty-that of doing everything that he honourably can to protect the interests of his client. He is entitled to
‘fight for a verdict.’ But the Crown counsel is a representative of the State, ‘a minister of justice’; his
function is to assist the jury in arriving at the truth. He must not urge any argument that does not carry
weight in his own mind, or try to shut out any legal evidence that would be important to the interests of the
person accused. ‘It is not his duty to obtain a conviction by all means; but simply to lay before the jury the
whole of the facts which compose his case, and to make these perfectly intelligible, and to see that the jury
are instructed with regard to the law and are able to apply the law to the facts.’ ‘It cannot be too often made
plain that the business of counsel for the Crown is fairly and impartially to exhibit all the facts to the jury.
The Crown has no interest in procuring a conviction. Its only interest is that the right person should be
convicted, that the truth should be known, and that justice should be done.’ Thus it has been declared that
witnesses essential to the unfolding of the narratives, on which the prosecution is based, must, of course, be
called by the prosecution, whether in the result the effect of their testimony is for or against the case for the
prosecution. But there is no rule or principle of practice that the prosecution must call witnesses irrespective
of considerations of number and of reliability, or that the prosecution should discharge the functions both of
prosecution and defence. It is regarded as proper, and enough, for the prosecution to acquaint the defence
with any relevant information which has come into their hands so that the defence may have the opportunity
to use it if they desire, and so that no unfairness should be visited upon a defendant.”
Every word in the quotation applies, mutatis mutandis, to the state attorney in this country.
In fairness to the state attorney, I think that the high handed method adopted by him in this case, and his
inability to play the game fairly sprang from over-zealous ambition rather than from sadistic
temperament. It is a matter for regret that our law makes no provision whereby a court can award
compensation payable from public funds to a victim in a deserving case where a citizen has been
compelled to serve a term of imprisonment through no fault of his, as the unfortunate appellant has done.
If the law provided for it, I would have awarded substantial compensation. I understand that the state
attorney concerned has since resigned.
Another matter upon which I wish to comment is that, without any application by the prosecution or the
defence, the court on its own motion,
[p.455] of [1963] 1 GLR 448
moved to Tafo and inspected the house of Mr. Djaba where, the witnesses alleged, a meeting took place.
Witnesses were questioned there and things were pointed out, but when the court resumed hearing in the
court room, the witnesses who had been questioned at Tafo were not recalled into the witness-box for
cross-examination by the defence.
In his judgment the learned magistrate said:
“At the Tafo (Akim) meeting although the third defence witness, a policeman, was asked to go away he said
he was present and heard everything and heard accused deny the £G20 allegation. This is not true. He was
not present. The court inspected the locus in quo and the description of the meeting place as directed by this witness was completely different. I will also mention in this connection that the ninth defence witness is also a liar. He deposed that he was present at the Tafo meeting, and here I will say without hesitation this witness was not present.”
With due deference to the learned magistrate, that conclusion was a misdirection. The evidence obtained
at Tafo was clearly inadmissible. In R. v. Dogbe6 it was held that witnesses used at the inspection of the
locus should be put in the witness-box to afford the defence or the prosecution the opportunity to
cross-examine them. If that is not done, the evidence becomes inadmissible.
In R. v. Tawell7 which was tried at the Aylesbury Spring Assizes Baron Parke said that justice never
requires the sacrifice of a victim; an erroneous sentence is calculated to produce incalculable mischief to
individuals, to destroy all confidence in the justice and integrity of the tribunals, and to introduce an
alarming train of social evils as the inevitable result. Every consideration of truth, justice, and prudence
requires, therefore, that where the guilt of the accused is not incontrovertibly established, however
suspicious his conduct may have been, he shall be freed from legal accountability. No rule of procedure is
more firmly established, as one of the great safeguards of truth and innocence, than the rule in question;
and it is the invariable practice of judges to advise juries to acquit whenever they entertain any fair and
reasonable doubt.
The judgment is based upon the evidence of accomplices and a mixture of admissible and inadmissible
evidence and it is not possible to determine which lot induced the verdict of guilty. The learned
magistrate erred in convicting the appellant. An eminent judge, Sir Matthew Hale, once said, “It is safer
to err in acquitting than in convicting, and better that five guilty persons should escape unpunished than
one innocent person should die.”
For these reasons, I allow the appeal and acquit the appellant.
DECISION
Appeal allowed.
J. D.
