DIVISION: IN THE SUPREME COURT
DATE: 8TH MARCH, 1963
BEFORE: ADUMUA-BOSSMAN, CRABBE AND MILLS-ODOI JJ.S.C.

CASES REFERRED TO
(1) R. v. Aylett (1785) 1 T.R. 63; 99 E.R. 973
(2) Thompson v. Solomon (1899) 1 Ren. 154
[p.246] of [1963] 1 GLR 244
(3) Re Conviction of Webber for Perjury (1905) 1 Ren. 352; Red. 230
(4) R. v. Borson (1941) 7 W.A.C.A. 158
(5) R. v. Bandoh (1944) 10 W.A.C.A. 190
(6) King v. The Queen (1849) 3 Cox C.C. 561
(7) Clendinning v. O’Malley (1842) 2 Dr. & War. 210
(8) R. v. Koops (1837) 6 Ad. & E. 98; 112 E.R. 75
(9) R. v. Bishop (1842) Car. & M. 302; 174 E.R. 517
(10) R. v. Bartlett (1843) 12 L.J.M.C. 127
(11) R. v. McDonald (1905) 21 Cox C.C. 70
(12) R. v. Nott (1843) 4 Q.B. 768; 114 E.R. 1087
(13) R. v. Kennedy (1885) 7 Nfld. L.R. 91
(14) R. v. Schiff (1939) 72 Can. Crim.Cas. 44
(15) R. v. Hudson (1858) 1 F. & F. 56; 175 E.R. 624
NATURE OF PROCEEDINGS
APPEAL against conviction for perjury entered on the 23rd June, 1962, by the Western Circuit Court.
The facts are fully set out in the judgment of Adumua-Bossman J.S.C.
COUNSEL
Victor Owusu (with him Gaisie) for the appellant.
D. F. Annan, Senior State Attorney, for the respondent.
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
Adumua-Bossman J.S.C. delivered the judgment of the court. This appeal is against the conviction of
the appellant on the 23rd June, 1962, by the Western Circuit Court on a charge of perjury contrary to
section 210 (1) of the Criminal Code, 1960,1 the particulars being that:
“On 19th February 1951 at Sekondi … in a written statement made upon oath before Joseph Herbert
Ghansah, Commissioner of Oaths, a public officer, you did state that you were one of the subscribing
witnesses to the last will of one John Essel Ansah alias Essel Ansah, late of Takoradi deceased; that the
testator executed the said will on the date thereon in your presence and that of one Kofi Bissue the other
subscribing witness thereto, both of you being present at the same time and both of you attested and
subscribed the said will in the presence of the testator, which statement you knew to be false.”
The written statement which was sworn to and is the subject-matter of the charge was admitted as exhibit A at the trial; and an important and significant difference in the wording or terms of the oath alleged to
have been taken by the appellant as appearing in that exhibit A on the one hand, and as set out in the
charge on the other hand, should at once be noticed. It is this, namely, that whereas in exhibit A, after the
words: “the last will of John Essel Ansah alias Essel Ansah of Takoradi deceased,” the following ensuing
words also appear clearly and distinctly, that is to say, the words, “the said will being now hereto annexed
bearing date the 3rd day of March, 1946,” those latter words, whether by inadvertence or design, are
omitted from the words alleged to have been sworn to, as set out in the charge. We shall refer to and
comment on this difference
[p.247] of [1963] 1 GLR 244
or variation in the words alleged sworn to as appearing in exhibit A and the charge respectively later in
this judgment.
It seems necessary before passing on to our consideration of the questions raised in the appeal, to outline
as briefly as possible the events and occurrences which led to the appellant’s prosecution. A substantial
part of these were contained in a statement which the appellant gave to the police when they first
interviewed him about the statement on oath, exhibit A, at Kumasi on the 26th January, 1962. In his
statement to the police, he said:
“The will produced to me by the police was prepared by me on 3rd March, 1946, when I was living in
Sekondi. The will was prepared at the request of late John Essel Ansah. I prepared the will in his house at
John Sarbah Road in Takoradi. Besides myself and Mr. John Essel Ansah there was no person present at the
time. After I had read over the will to Mr. Ansah, I told him that he should sign it in the presence of two
witnesses. He said he would fetch a relative of his to sign it. This relative did not turn up so I signed it and
left, after waiting for some time. Mr. Ansah signed the will in my presence. I do not know a man by name
Kofi Bissue; I did not see him sign the will in question in my presence. I remember sometime in 1951 one of
the sons of the late Mr. Ansah contacted me about the will and asked me to swear to an affidavit as having
prepared the will. I remember I swore to an affidavit already prepared by someone. I did not see in the
affidavit the statement that the will was signed by Mr. Ansah in the presence of myself and one Kofi Bissue.
The affidavit was not drawn up by me. Mr. Koi Larbi has not contacted me about this matter, [and] I was not
called to give evidence during the hearing of the case. I am certain that the statements made by Mr. J. E.
Ansah were exactly what I wrote down as they appear in the will produced to me, and that he signed it in my
presence.” The appellant’s statement, it will be observed, narrates the story from the occasion of the preparation of
the will on the 3rd March, 1946, to the occasion sometime in 1951 when a son of the testator met him and
asked him “to swear to an affidavit as having prepared the will,” and he did so. The next noteworthy
event was that what purported to be a copy of the affidavit exhibit A, which on the face of it was sworn to
on the 19th February, 1951, but which copy bore the date the 21st March, 1951, was made use of in an
action commenced by a writ of summons issued on the 23rd February, 1952, in the Supreme Court,
Sekondi. The suit was numbered No. 21/52, and entitled: “In the Matter of the Estate of John Essel Ansah
(deceased); Tei alias J. E. L. Ansah and I. B. Ansah alias Kwa Enoo (plaintiffs) versus (1) Ngather
Kwame: administrator of the estate of James Alfonso Simmons (deceased), and (2) William Winfred
Ansah: surviving administrator of the estate of John Essel Ansah (deceased) (defendants)” The claim was,
“For recall of letters of administration granted to James Alfonso Simons (of whose estate the first defendant
is the administrator) and William Winfred Ansah, as joint administrator of the estate of John Essel Ansah
(deceased) on the 14th August, 1946; and for an order granting probate of the will of the said deceased John
Essel Ansah to the executor named in the said will.”
[p.248] of [1963] 1 GLR 244

The record of proceedings in that action was admitted as exhibit B. It appears from those proceedings
(exhibit B) that after the issue of the writ by Mr. Koi Larbi, counsel for the plaintiffs, on the 23rd
February, 1952, a statement of claim was filed on the 8th May, 1952; but on the 17th October, 1952,
notice was filed to amend paragraph 4 of the statement of claim to read:
“That in the last will and testament of the said testator dated 3rd March, 1946, he appointed the second
defendant as executor of the said will which is hereto attached together with an affidavit sworn to by
Wellington Benjamin Dadzie, one of the subscribing witnesses to the said will proving the same to be the last
will and testament of the said John Essel Ansah alias Essel Ansah and marked A and B.”
To this notice of an intended application to amend the fourth paragraph of the statement of claim was
attached, as exhibit A, what purported to be a copy of the will, and as exhibit B, what purported to be a
copy of the appellant’s affidavit but bearing the date the 21st March, 1951. It further appears from the
said proceedings, exhibit B, that the action was tried on the 22nd November, 1952, when judgment was
delivered in favour of the plaintiffs, the court (Lingley J.) ordering:
“Re-call of letters of administration to defendants . . . Letters of administration with will annexed is granted
to second defendant alone who undertakes to administer estate in accordance with terms of the will. Formal
order to be drawn up by the registrar. No order as to costs.”
It seems the defendants appealed to the West African Court of Appeal against this judgment of Lingley J.
without success, after which one of them, Kwesi Joe, who had been substituted for the original first
defendant, Ngather Kwame, upon the latter’s death in the course of those proceedings, began to make
investigations about the will, or the copy thereof used by plaintiffs in the said proceedings. The said
Kwesi Joe giving evidence as first prosecution witness at the appellant’s trial said:
“I made my own investigations and as a result I complained to police that one of the witnesses to the will
used at the trial could not have signed it. This was one Kofi Bissue. He is illiterate and cannot read and write,
yet he is supposed to have signed the will.” His complaint led to the institution of investigations by the police, in the course of which the sixth prosecution witness, Detective Sergeant Azazi, interviewed the appellant at Kumasi on the 26th January,
1962, and showed him the copies of the will and affidavit which had been attached to the notice of
amendment of statement of claim in the proceedings, exhibit B, to which reference has already been
made. Thereupon, as already indicated, the appellant wrote out his statement exhibit C hereinbefore set
out. Subsequently, however, the detective sergeant obtained the original affidavit exhibit A from the
registrar of the High Court, Sekondi, Mr. Awortwi, the fifth prosecution witness, and he then interviewed
the
[p.249] of [1963] 1 GLR 244
appellant a second time on the 26th February, 1962, and showed him exhibit A, whereupon he wrote an
additional statement under the first one, as follows, “I have seen the original affidavit produced to me.
The portion stating that the will was signed also in the presence of one Kofi Bissue [who] was not there
when I was signing the affidavit.” The detective sergeant went away with this additional statement, but
subsequently, on the 18th May, 1962, came to arrest the appellant on warrant on a charge of perjury; he
cautioned him and he stated shortly, “I have nothing to say.” In due course the prosecution leading to his
conviction was carried out, resulting in this appeal.
Before proceeding to consider and deal with the issues of fact and law raised in the case, we would deal
firstly with two subsidiary questions of law which have also arisen. The first is the question of the proper
title of the case and of this appeal. In the court below the trial proceeded under the title: “The State versus
Wellington Benjamin Dadzie”; and after conviction, notice of appeal was filed; the record of appeal was prepared, and the appeal came before us under that title. Counsel for appellant therefore in the last of his additional grounds of appeal submitted, and has argued, that, “There is no provision in the Criminal Procedure Code, Act 30, whereby if the prosecution bring a charge intituled so as to indicate that they desire it to be tried on indictment, the circuit judge can, of his own volition, deal with it summarily.” We
did not find it necessary to call on counsel for the respondent, and ruled against the submission and
arguments. It appears to us to be plain that section 39 (b) of the Courts Act, 19602, has conferred on the
circuit court, “an original jurisdiction in criminal matters in the case of offences, other than offences
where the maximum punishment is death or life-imprisonment.” Section 164 under Part III of the
Criminal Procedure Code, 1960,3 empowers the court to try offences summarily, section 179 reserving
power to it, where the case is unsuitable for summary trial, to communicate with the Attorney-General to
arrange for trial on indictment. The police perhaps presented the case to be taken on indictment, but it was
competent to the circuit judge to deal with it summarily as he did—and he would appear merely to have
omitted to change the words “The State” in the title to “Commissioner of Police.” We accordingly
ordered the title to be amended to read: “Wellington Benjamin Dadzie (Appellant) versus Commissioner
of Police (Respondent).”
The next subsidiary question of law, in respect of which learned state attorney before us has ardently and
fervently urged that we should make some pronouncement is, whether the offence of perjury as defined
under the Criminal Code, 1960, s. 211, is or is not substantially (we use the word “substantially” as we
have to exempt the exceptional case of swearing
[p.250] of [1963] 1 GLR 244
before “the National Assembly or any Committee thereof”) the same as perjury under the Perjury Act,
19114, in England. Section 211 provides:
“211. A person is guilty of perjury, if in any written or verbal statement made or verified by him upon oath
before any Court, or public officer, or before the National Assembly or any Committee thereof he
states anything which he knows to be false in a material particular, or which he has not reason to
believe to be true.” Learned state attorney supported his ardent insistence for a pronouncement on this question with the
further argument that upon the answer would depend another equally important question, namely, how far
our local superior courts would or would not be entitled to rely for guidance on some of the English cases
dealing with the elements of perjury. In yielding to the persuasion of both counsel and attempting to give
our views on this undoubtedly important and interesting question of the similarity or dissimilarity of the
elements of the offence of perjury locally and in England, and bearing in mind that the English Perjury
Act, 1911, was substantially a codification of the common law and statutory rules relating to the offence,
we would begin by adopting Lord Mansfield C.J.’s description of the elements of the offence under
English law when in R. v. Aylett5 he stated that, “In the case of perjury, I take the circumstances requisite
to be these: the oath must be taken in a judicial proceeding and it must be material to the question
depending.” Next, we take note of the historical circumstance that the offence of perjury as originally
introduced into this country by the first Criminal Code of 18926 and as it existed up to the 22nd
December, 1951, was wider in scope than perjury under English law.
Section 356 of that Code (see Cap. 9 (1936 Rev.) s. 359) which provided that, “Whoever commits perjury
shall be liable to imprisonment for 10 years” created the offence; and section 382 (see Cap. 9 (1951 Rev.)
s. 386) defined it as follows:
“A person is guilty of perjury if, in any written or oral statement made or verified by him upon oath before
any Court, or public officer, he states anything which he knows to be false, or which he has not reason to
believe to be true.” This definition came up for consideration by the Full Court (Griffith C.J. and Francis Smith J.) in
Thompson v. Solomon,7 an application for a case to be stated by the Divisional Court, when the Full
Court in its ruling refusing the application held that, “Perjury as defined in the Criminal Code is wider
than perjury under English law—and it is not necessary that the false statement should be material to the
issue in the English sense of the term.” This position was further explained by Redwar in his invaluable
[p.251] of [1963] 1 GLR 244
Comments on some of the Ordinances of the Gold Coast Colony, at p. 86, where he states:
“It is important to observe that, inasmuch as by the definition of Perjury in section 382 of the Criminal Code
of 1892, this crime is not confined to falsely swearing on matters material to the issue, it is open to the Court
to use its powers of summary punishment where the matter falsely sworn to has no bearing upon the issue
before the Court, and therefore cannot affect anything to be determined by the proceedings. The definition of
the Code is so widely worded as to extend considerably the scope of this crime, the gist of which is, in
English Law, its effect, actual or potential, upon the administration of justice.”
It is worthy of observation that the only point of difference pointed out is the point of immateriality in the
false statement so far as the local offence was concerned. Had there been other points of difference, it is
difficult to understand why those would not have been pointed out, at any rate, in Redwar’s Comments
upon the local offence as contrasted with the English offence. It is significant, however, that despite the
point of difference, namely, the immateriality of the false statement in the local offence as contrasted with
the English offence, the Full Court in Re Conviction of Webber for Perjury8 held that the ordinary rules
of evidence with regard to proof of perjury under English law, were applicable to proof of perjury locally.
In that case, Griffith C.J. (with him Francis Smith and Pennington JJ.) explained as follows9:
“There is, on the other hand, clear ground for holding that the legislature intended that the ordinary rules of
evidence as to proof should apply in cases of perjury under this section [Criminal Code, 1876, s. 44].
Paragraph (a) of the section provides that the Court may commit the accused person for trial upon
information for the perjury. Upon such a committal there should be the ordinary evidence in proof of perjury,
viz: two witnesses to each assignment of perjury, or one witness and such special circumstances as would do
away with the necessity for the second witness, if there was not before the Committing Judge such evidence
he would not be in a position to commit. . . .
But there is far stronger argument in favour of the ordinary rules of evidence. This section places in the
hands of Judges and District Commissioners very large and extra-ordinary powers, but to hold that Judges
and District Commissioners are unhampered by the ordinary rules of evidence and only governed by a
reasonable discretion would be indirectly to quadruple these large and extra-ordinary powers. To extend
to such an extent a section of so penal a character . . . direct legislation would be necessary.
In my opinion, the ordinary rules of evidence as to proof apply in the present case.”
The considerations above expressed which led or induced the Full Court to come to the conclusion that
the legislature intended that the English rules of proof of perjury should apply to proof of perjury locally,
appear to us equally to afford grounds for holding that the legislature did
[p.252] of [1963] 1 GLR 244
not intend the local offence, apart from the point of immateriality of the false statement, to be too
different in its elements from the English offence of perjury.
Be that as it may, in December 1951 an alteration in the definition of the local offence was introduced
when, just before the McElwaine Revision of the Laws of the Gold Coast, the Criminal Code
(Amendment) (No. 2) Ordinance10 was passed, by section 16 of which it was provided that, “In section 386 of the Code [which defined perjury—see Cap. 9, (1936 Revision)] immediately after the word ‘false’ there shall be inserted the words ‘in a material particular. ‘“By that alteration in the definition the local offence was brought in line with the English offence, at any rate in so far as the element of materiality of the false statement is concerned. Learned state attorney however, argued that the Full Court in pointing
out in Thompson v. Solomon, supra, that the local offence was different from the English one in respect
of the immateriality of the false statement, did not go further to state specifically that that was the only
respect in which there was a difference or variation; and therefore the removal in 1951 of that point of
difference need not necessarily mean that there was no other point of difference. He argued further that
while the making of a false statement on oath before a court locally may be the equivalent of the making
of a false statement in a judicial proceeding in England, the making of a false statement before a public
officer in this country is also perjury, whereas that does not appear to have an equivalent in England. It
seems to us, however, that the difference which learned state attorney appears to find in a statement made
before a court and one made before a “public officer,” is more apparent than real, and that in reality there
is no difference between the two, for the reason that it does not appear to us that the term “public officer”
in the context in which it appears, can be given the side interpretation given to it by section 3 of the
Criminal Code, 196011, i.e. “any person holding an office by election or appointment under any
enactment or under powers conferred by any enactment,” which is substantially the same definition as
under section 5 of the Criminal Code12 in force in February 1951, the date of the alleged offence. We are
of the opinion that the term should be given a more limited meaning as restricted to only that public
officer functioning as a court or acting in a judicial capacity, and we are impelled to this view by the
following considerations, namely: (a) the operation within the jurisdiction of the Statutory Declarations
Act, 183513, which, after exempting from the operation of the Act all oaths taken in the course of or in
connection with “judicial proceeding in any Court of Justice,” by section 7 thereof proceeded to make
unlawful all “oaths and affidavits voluntarily taken and made in matters not the subject of any judicial
enquiry, nor in anywise pending or at issue before . . . the person by whom such oaths and affidavits have
been administered or taken”;
[p.253] of [1963] 1 GLR 244
(b) the operation of the Oaths Act, 1960, s. 11 (1)14 (but at the time of the alleged offence the Oaths
Ordinance15, s. 17 (4) (a)) which conferred authority to administer lawful oaths, in effect, only on
judicial officers; those authorised in February 1951 being “the Chief Justice, any Puisne Judge, the Chief
Registrar of the Supreme Court, any Chief Commissioner, Provincial Commissioner, District Magistrate,
District Commissioner, Assistant District Commissioner, and any Commissioner for Oaths appointed by
the Chief Justice,” who were to, “administer any lawful oath or take any lawful affirmation or affidavit
which may be required to be taken or made for the purpose of complying with the requirements of this
[Oaths] Ordinance, or of any law for the time being in force in the Gold Coast or elsewhere”; and (c) the
implied interpretation given by the former West African Court of Appeal to the term “public officer” in
the definition of perjury in R. v. Borson,16 where the court held that for the purposes of the offence of
perjury by reason of the operation of section 13 of the Statutory Declarations Act, 183517, “public
officer” must be limited to a person capable of administering an oath, “touching any matter or thing
whereof such Justice or other person hath not jurisdiction and cognizance by some Statute in force at the
time being.”18
Accordingly, despite the ostensibly wide terms of the definition of the term “public officer” in the former
criminal codes and now the operative Criminal Code, 1960, seeming to suggest, at the first blush, that any
oath taken before any public officer can be the subject of perjury, it appears reasonably clear that by
reason of the considerations (a) (b) and (c) to which we have made reference supra, it is only the oath
taken before the public officer functioning in a judicial capacity in respect of “ any matter or thing

whereof such Justice or other person hath not jurisdiction and cognizance by some statute in force at the
time being,” which can properly be the subject of perjury. To that extent therefore it appears reasonably
plain that the offence locally as well as in England, was substantially identical at the material date in
February 1951, and is now under the currently operative Criminal Code, 1960, in so far at least as the
element of the oath being taken in a judicial proceeding is concerned. In point of fact, in February 1951
the date of the alleged offence, prior to the amendment by section 16 of the Criminal Code Amendment
(No. 2) Ordinance which came into force on 22nd December, 1951, the difference was rather in the
element of immateriality of the false statement so far as the local offence was concerned. After the
coming into force on the 22nd December, 1951, of that amendment, however, it seems to have been taken
for granted or accepted that the local offence was identical with the English offence; wherefore in R. v.
Bandoh,19 the court expressed the opinion that an information preferred locally should follow the form of
indictment under
[p.254] of [1963] 1 GLR 244
English law as set out in Archbold’s Criminal Pleading, Evidence and Practice. In these circumstances the
English, as well as Commonwealth, decisions, in our view, afford most helpful and useful guidance.
Turning now to the issues of fact and law raised by the respective cases of the prosecution and the
defence, the issue of law of paramount importance raised in the case is: Whether the oath taken by the
appellant in respect of the written statement exhibit A and on which perjury has been assigned, is not a
“voluntary oath” within section 13 of the Statutory Declarations Act, 183520, to which reference has
already been made, so as to bring the instant case within the decision in R. v. Borson.21 The question was
raised at the trial where counsel for appellant argued that although the affidavit was sworn with the
ostensible object of proving due execution of a will by an attesting witness, nevertheless it was a case
where the evidence of the attesting witness had to be called for by a judge and the latter had not yet called
for it. He referred the court to Order 60, rr. 25 and 26 of the Supreme [High] Court (Civil Procedure)
Rules. This should have been to Order 49, rr. 25 and 26, of the General Procedure Rules22 in force in
February 1951, but, fortunately, the provisions are the same. Counsel’s argument, as we understand it,
was that in the case of the will involved in this case (copy of which was tendered as exhibit 1 and the
original as exhibit 2) there being no attestation clause to it, by rule 26, “the Court shall require an
affidavit from at least one of the subscribing witnesses, if either of them is living, to prove that the will
was, in fact, executed in accordance with those enactments”; and it will be then that an attesting witness
who swears falsely will be plainly amenable to prosecution for perjury. But until then, any oath sworn
purporting to be towards proof of due execution of the will is manifestly voluntary, in the sense of not
being one called for by the law.
The reply of learned state attorney to this was, in substance, that in the first place, there was a statute in
force empowering the commissioner of oaths to administer oaths; then in the second place the accused
(now appellant) would be required to take the oath when the genuineness or question of the proper
execution of the will came up for investigation, i.e. in the circumstances mentioned under Order 49, rr. 25
and 26; therefore, where the affidavit would be required in due course, if a party from whom it may be
required swore to it in advance he was just preparing for the eventuality, that is to say, doing a permitted
or lawful thing in advance. Anything which a statute required to be done was lawful, and the affidavit
being one which the court could ask for, and which for that reason had been made in advance, was lawful.
Both counsel referred to the Wills Act, 183723, as the statute requiring a subscribing witness to swear to
an affidavit to prove due execution of a will. As to the foregoing submissions of learned state attorney at
the trial, the following observations might be made concerning them: that is to say, firstly, with regard to
the submission

[p.255] of [1963] 1 GLR 244
that there was a statute in force empowering the commissioner for oaths to administer oaths, as already
pointed out, section 17 (4) (a) of the Oaths Ordinance,24 in operation in February 1951 only authorised a
commissioner for oaths appointed by the Chief Justice,
“to administer any lawful oath or take any lawful affirmation or affidavit which may be required to be taken
or made for the purpose of complying with the requirements of this [Oaths] Ordinance, or of any law for the
time being in force.”
Accordingly the commissioner for oaths functioning in February 1951, must have been appointed under
section 92 of the Courts Ordinance25 which provided that:
“The Chief Justice may appoint . . . such and so many persons as may be requisite to be Commissioners for
taking affidavits and declarations and receiving production of documents, . . . . which may be necessary to be
taken in respect of any proceedings in a Court.”
He could not act legally outside the limit of the powers conferred upon him by those two Ordinances. The
crucial question therefore before the trial judge, and now before us, is whether exhibit A satisfies the
requirements of an affidavit “necessary to be taken in respect of any proceedings in a Court?” We shall
express our views about this later in the judgment. Secondly, as to the statement, first made by Mr.
Gaisie, one of the counsel for appellant in the court below, that it is the Wills Act, 183726, which has
provided that an attesting witness to a will should swear to an affidavit as to the due execution of the will,
which statement appears to have been concurred in by learned state attorney at the trial and accepted by
the learned judge, it is to be observed that the Wills Act, 1837, contains no express provision to that
effect. The statute merely provided by section 9 that every will shall be in writing and signed or
acknowledged by the testator, “in the presence of two or more witnesses being present at the same time
who shall attest and subscribe the will in the presence of the testator”; and by thus creating the necessity
for two attesting witnesses at least to be available at the execution of the will by the testator, indirectly
makes such attesting witnesses, while they remain alive, possible witnesses, especially where there is no
attestation clause to the will, when the court shall require and call for proof of due execution of the will. It
is therefore, strictly speaking, not accurate to state that the Wills Act, 1837, requires proof of a will to be
by affidavit, and if anything, it is rather the Supreme [High] Court (Civil Procedure) Rules, Order 60, rr.
25 and 26, to which both counsel in the court below referred, which can be said to constitute statutory
provisions. In February 1951, the operative rules were Order 49, rr. 25 and 26 in identical terms with the
current rules. There have, however, been in operation all the time, the provisions of section 16 of
[p.256] of [1963] 1 GLR 244
the Statutory Declarations Act, 183527, providing in sections 16 and 18 that:
“16. It shall and may be lawful to and for any attesting witness to the execution of any will or codicil, deed
or instrument in writing, and to and for any other competent person, to verify and prove the signing,
sealing, publication, or delivery of any such will, codicil, deed, or instrument in writing, by such
declaration in writing made as aforesaid; and every such justice . . . or other officer shall be and is
hereby authorised and empowered to administer or receive such declaration.” “18. And whereas it may be necessary and proper in many cases not herein specified to require confirmation of written instruments . . . or of the execution of deeds or other matters; be it therefore further enacted, that it shall and may be lawful for any justice of the peace . . . or other officer now by
law authorised to administer an oath, to take and receive the declaration of any person voluntarily
making the same before him in form in the schedule to this act annexed.”

The form given in the schedule to the Act reads:

“I, A. B., do solemnly and sincerely declare that . . . and I make this solemn declaration conscientiously
believing the same to be true, and by virtue of the provisions of an act . . . “
We have considered it worthwhile to refer to these provisions of the Statutory Declarations Act, 1835,
providing for the voluntary making of statutory declarations by attesting witnesses and other competent
persons in proof of execution of wills or codicils and deeds or other written instruments, to draw attention
to and, if possible, bring out more clearly the significant difference between the method of voluntary
proof of the due execution of written instruments including wills extra-judicially, which is provided for
by sections 16 and 18 of that statute, on the one hand; and involuntary but compulsory, as it were, judicial
method which is given recognition in sections 7 and 13 of the same statute, on the other hand. In the case
of proof of wills, in respect of which by law probate must be obtained, further provision is made for the
judicial proof of due execution when probate is sought in common form (i.e. without any contest) by the
rules of court to which we have already referred—Order 60, r. 26—that when there is no attestation
clause, a judge or the court:
“(1) . . . shall require an affidavit from at least one of the subscribing witnesses . . . to prove that the will
was, in fact, executed in accordance with those enactments. (2) The affidavit shall be engrossed and
form part of the probate, so that the probate may be a complete document on the face of it.”
In so far, therefore, as learned state attorney at the trial argued that some statute, other than rules of court,
provided for or prescribed the swearing of an affidavit by an attesting or subscribing witness to a will in
proof of the due execution of the will, and further submitted that anything which a statute enforces, or
requires to be done is lawful, he was clearly under a misapprehension.
[p.257] of [1963] 1 GLR 244
Turning, however, to the learned judge’s decision on the question raised and argued before him as to
whether or not exhibit A was a voluntary affidavit, we find that his decision was that, “the affidavit is
clearly not unlawful; it is one that may be required under law, and it is in this way distinguishable from
Borson’s case.”
In coming to that conclusion, however, it appears to us that the learned judge did not sufficiently examine
the judgment in Borson’s case to ascertain and appreciate the reason why the affidavit in that case was
held to be incapable of being the subject of perjury, and accordingly we extract from that judgment the
following material passage28:
“The Court drew attention to a point which had not been raised in the Court below, namely that the oath in
this case was what is known as a ‘voluntary oath’ the administration of which is expressly prohibited by
section 13 of the Imperial Act entitled ‘The Statutory Declaration Act, 1835’, which applies to the Gold
Coast and is in the following terms: — ‘XIII — And whereas a practice has prevailed of administering and
receiving Oaths and Affidavits voluntarily taken and made in matters not the subject of any judicial inquiry,
nor in anywise pending or at issue before the Justice of the Peace or other person by whom such oaths or
affidavits have been administered or received: and whereas doubts have arisen whether or not such
proceeding is illegal: for the more effectual suppression of such practice and removing such doubts: be it
enacted, that from and after the commencement of this Act it shall not be lawful for any Justice of the Peace
or other person to administer, or cause or allow to be administered, or to receive, or cause or allow to be
received, any oath, affidavit, or solemn affirmation touching any matter or thing whereof such Justice of the
Peace or other person hath not jurisdiction or cognizance by some statute in force at the time being.’”
In the passage above set out, in the preamble, the crucial words are, “Oaths and Affidavits voluntarily
taken and made in matters not the subject of any judicial inquiry, nor in any wise pending or at issue
before the . . . person by whom such oaths or affidavits have been administered,” and in the enacting
section, the crucial words are: “It shall not be lawful to administer any oath or affidavit . . . touching any matter or thing whereof such person hath not jurisdiction or cognizance by some statute in force at the time being.” The criterion, then, would appear to be that the oath or affidavit was taken or made, in the words of the Act, “in a matter the subject of enquiry or in somewise pending before the person by whom such oath or affidavit has been administered or received,” and was not voluntary in the sense of not
having been required by the court; but on the contrary, by reason of some well-established rule of practice
or statutory provision, called for or required by the court. Accordingly, in Borson’s case where the
affidavit of ownership, sworn to in advance to be used in the event of a dispute arising about the property
and actually used when a dispute did arise, having been made when there were no proceedings
[p.258] of [1963] 1 GLR 244
pending and without the court requiring it under any rule of practice or statutory provision, was held to be
a voluntary affidavit made illegal by the section 13 of the Act.
With regard to the making of a valid affidavit which can be a proper subject of perjury, the learned author
of Russel on Crime (11th ed.) at p. 326 has explained that:
“There must be something in the nature of a judicial proceeding, e.g., an existing cause. But the oath may be
the first step for initiating the proceeding, e.g., swearing an information, or swearing an affidavit in support
of an ex parte motion, or swearing a petition in a divorce cause.”
In respect of the examples mentioned, and others which can be thought of, it is beyond doubt that in every
instance, it is by some clearly established or well-recognised procedural rule that the making of an
affidavit as a means of initiating proceedings is permitted or sanctioned. Two reported cases may
illustrate this statement more clearly. The first is King v. The Queen,29 the headnote of which is that:
“An affidavit to hold to bail may be sworn before the issuing of the writ in the action; and, therefore, an
indictment for perjury committed in such an affidavit need not state that any action was pending.”
The point in the case for our purposes, however, is that upon the defendant’s conviction in the Queen’s
Bench the case was taken before the Court of Exchequer on a motion for error, and there defendant’s
counsel submitted that, “As to the indictment, the second count is bad. It omits the statement, contained in
the first count, that a writ of summons had been issued out when the affidavit was sworn.”30 Maule J.
promptly interposed with the observation that “The statement is quite unnecessary; for the affidavit may
be sworn before the writ issues.”31 He was followed by Parke B. who stated, ‘Yes, the practice was
settled soon after the passing of the act abolishing imprisonment for debt”; and by Williams J. who stated,
“The question was settled in Schletter v. Cohen 7 M. & W. 389”32; that is to say, here was a special
process, sanctioned by a well-settled and well-known procedure which had even received judicial
recognition through a decided case. The second case is an Irish decision referred to in the English and
Empire Digest, Vol. 15 (1957 ed.), p. 815 as No. 5081, which reads:
“When, under a statute, an affidavit in a petition matter, required by the Act, may be sworn before the
petition is filed, an indictment for perjury in making it can be sustained. Clendinning v. O’Malley (1842) 2
Dr. & War. 210.”
In other words there was a case where express statutory provisions sanction the filing of the affidavit
before the filing of the petition.
[p.259] of [1963] 1 GLR 244
Still dealing with an affidavit to initiate proceedings, it seems to be further settled, and this is the more
important matter, that any established or recognised practice whereby an affidavit can be used for
initiating any particular proceedings, must be proved as a question of fact in a perjury trial, to render the
affidavit a proper subject of a charge of perjury. This was held in R. v. Koops,33 the headnote of which is

“Perjury cannot be assigned upon an affidavit sworn in the Insolvent Debtors’ Court, by an insolvent,
respecting the state of his property and his expenditure, for the purpose of obtaining an extended time to
petition under sect. 10 of Stat. 7 Geo. 4 c. 57, without proving that the Court, by its practice, requires such
an affidavit.” The material facts were that an insolvent debtor who was incarcerated but was entitled within fourteen
days after being taken into custody to petition for his discharge, presented his petition to the court for the
relief of insolvent debtors, praying that he might be permitted to file his petition for his discharge, upon
the grounds and for the reasons set forth in his affidavit accompanying the petition, which was sworn
before a commissioner. He was charged with perjury in respect of statements in the affidavit concerning
his property and expenditure, and was convicted; rule nisi for a new trial was then obtained on his behalf
in the King’s Bench, and at the hearing of the motion for order absolute, his counsel submitted that, “there
was not evidence to show the authority under which the affidavit was made, and that in default of such
authority, no perjury could be committed in respect of such affidavit.”34 Counsel for the Crown, per
contra, submitted inter alia that, “It was not necessary that the practice should be proved, for the offence
will be perjury even though the practice should not have been accurately followed. The statement in the
affidavit is material, whether it be in strict compliance with the rules or not.”35 Denman C.J. here
interposed and observed that, “If the Court do not require the oath it is voluntary.”36 Counsel continuing
his submissions argued further that37:
“The defendant is at least in the situation of a party who, to obtain the indulgence of the Court, . . . makes a
statement of facts upon which he calls upon the Court to act. The Court, without any general practice, has
power to receive and act upon such a statement in any individual case . . . Under sec. 3, the Court has the
same authority as to affidavits which the Superior Courts at Westminster have.”
Denman C.J. again interposed and stated, “Assuming the Court to have the power, in each individual
case, to determine whether the oath be necessary or not, can perjury be proved in any individual case
without shewing that, in that case, the Court required the oath?”38 Ultimately the
[p.260] of [1963] 1 GLR 244
Bench quashed the conviction, the judges giving their respective pertinent and significant views and
reasons as follows: Per Denman C.J.39:
“The Court are not shewn to have called for the oath unless their practice be shewn. Mr. M. argues that
perjury may be assigned upon any oath taken for the purpose of inducing the Court to exercise the power
which they have under section 10. I think that is drawing the line too finely for a question of perjury. The
evidence clearly shewed that the affidavit was professedly made in pursuance of the practice. Then was the
practice proved? Take it either way. If the practice was to be shewn from a formal rule of the Court, then
some original rule should be proved, or the practice should at least be traced to something sanctioned by the
Court; as to a set of rules hung up in Court. Or suppose the evidence to rest on the knowledge of the witness:
this witness declared that he knew nothing, except from the paper, which was not shewn to be connected
with any original. It is, therefore, quite clear . . . that the foundation of the offence is done away with.”
Per Williams J.40:
“Mr. M’s argument assumes the whole question. He seems to contend that because the affidavit was in fact
brought before the Court, it is to be assumed that this was done in the course of a regular judicial proceeding.
Now it might be necessary for the Court to frame rules requiring that such an affidavit should be sworn; but
the question is, whether they have done so in fact. I cannot see that this was proved.”
Per Coleridge J.41:
“The insolvent presents a petition and makes an affidavit in support of it. To shew that perjury may be
assigned on such an affidavit, it must be proved that the affidavit was necessary for the support of the petition. For this it becomes necessary to prove the practice of the Court.” Indeed the English decisions appear to have established the position that the indictment or charge against an accused person should state or allege on the face of it (a) the particular judicial proceeding in respect
of which the taking of the oath or making of an affidavit is a prescribed necessary preliminary step; and
(b) the circumstances which indicate plainly the judicial authority of the person who administered the
oath to do so, before those allegations (as to the judicial proceedings and the authority to administer the
oath) are proved by evidence in the course of the prosecution’s case during the trial. So in R. v. Bishop,42
perjury was charged to have been committed in that which was in effect the claimant’s affidavit on an
interpleader rule; and the indictment set out the circumstances of the previous trial, the verdict, the
judgment, the writ of fi. fa., the levy, the notice by the prisoner to the sheriff not to sell and the prisoner’s
affidavit that the goods were his property, but omitted to state that any rule was obtained according to the
provisions of the Interpleader Act, 1831,43 section 6
[p.261] of [1963] 1 GLR 244
whereof conferred jurisdiction on the courts upon claims being made to goods and chattels seized in
execution as not belonging to execution debtors, upon the application of the sheriff for the court, “to call
before them … as well the Party issuing such Process as the Party making such Claim, and thereupon to
exercise, . . . all or any of the Powers and Authorities hereinbefore contained, and make such Rules and
Decisions as shall appear to be just.” Accordingly, on the prisoner’s arraignment, it was submitted on his
behalf that on the face of the affidavit it did not appear that it was made in a judicial proceeding, and there
was no allegation (in the indictment) that any application had been made under the Interpleader Act, and
therefore there was no disclosure of any proceeding in which perjury could have been committed. For the
prosecution it was admitted that if the court was of opinion that the judicial proceeding did not already
sufficiently appear on the face of the indictment, then the indictment could not be supported, inasmuch as
it omitted to set out the interpleader rule. Coleridge J. held, “The objection is fatal. For anything that
appears this was a voluntary oath, and not made in any judicial proceeding.”44 R. v. Bishop was followed
the next year by R. v. Bartlett,45 another case of perjury in an affidavit. The headnote of the case reads:
“A commitment for perjury, stating, that: ‘H. B. in a certain affidavit, made and sworn to by him before one
C.C., a competent authority by law to administer the same, did falsely, wickedly, wilfully and corruptly
commit wilful and corrupt perjury is bad, as not stating that the oath was administered in a judicial
proceeding, or before a competent authority to administer an oath in a judicial proceeding.”
The material facts were that the prisoner had been committed to prison by Sussex county justices, and
upon a habeas corpus application on his behalf the question arose whether his commitment in terms set
out above disclosed any offence of perjury. Wightman J. in his judgment making absolute the order nisi
for the prisoner’s discharge stated:46
“It (the Commitment) goes on to say, did falsely, wickedly, wilfully and corruptly commit wilful and corrupt
perjury, without saying that the oath was administered in a judicial proceeding, or that it was before a
competent authority to administer an oath in a judicial proceeding. Although a commitment need not be so
precise as an indictment, yet it ought to shew on the face of it, that an offence has been committed—The
King v. Judd. 2 Term. Rep. 255, & Kendal’s Case 2 Hale P.C. 122—On the present commitment, this does
not sufficiently appear, because this may have taken place on a voluntary affidavit, and it ought therefore to
shew that the affidavit was taken in the course of a judicial proceeding.”
Lastly, on this point of the substance of the offence and the necessity to set it out, especially the most
important ingredient that the oath was
[p.262] of [1963] 1 GLR 244

administered in judicial proceedings, there is the case of R. v. McDonald,47 another case of perjury in an
affidavit. The headnotes state that:
“In an indictment charging perjury in an affidavit sworn before a Commissioner for oaths acting under
section 2 of the Commissioners for Oaths Act, 1889, it is not sufficient simply to allege the general authority
of the Commissioner to administer the oath: the indictment must state the circumstances under which the
oath was administered, showing that the Commissioner had authority to administer the oath in the particular
matter before him.”
In that case at the opening of the trial and before the prisoner pleaded, his counsel took objection to the
indictment saying48:
“The indictment did not aver the existence of any application, proceeding, or other occasion, judicial or
otherwise, sufficient to give the Commissioner authority to administer the oath. . . . The indictment must
sufficiently condescend to particulars to enable the Court to judge whether or not the circumstances alleged
to give jurisdiction to the Commissioner were sufficient or not.”
The substance of the charge against the prisoner was that he had sworn falsely that his wife died intestate
whereas in fact she died testate. Darling J. the presiding judge at a Durham Assize upholding the
objection, ruled that49:
“The indictment did not allege how it became and was a material question whether Sarah McDonald
[prisoner’s wife] had died intestate and there was nothing to show how it came about that the prisoner made
the affidavit upon which perjury was assigned. He thought that the circumstances under which the oath was
administered should have been set out in the indictment and as this had not been done he quashed it.”
It is worthy of notice that the powers conferred on a commissioner for oaths appointed by the Lord
Chancellor under the Commissioners for Oaths Act, 1889, whereby the commission issued to him
empowers him, “to administer any oath or take any affirmation or affidavit for the purpose of any Court
or matter in England, including the ecclesiastical Courts,” is substantially the same power conferred on a
commissioner appointed by the Chief Justice locally under the former Courts Ordinance and now under
the Courts Acts, 1960.50
With regard to the necessity for setting out the circumstances alleged to give a commissioner or other
judicial officer authority to administer an oath, the following dictum by Denman C.J. in R. v. Nott51
affords one of the best explanations. He said:
“It is quite clear that the having or not having jurisdiction is matter of law depending upon facts on which the
Court is to form its opinion. The facts therefore should be so stated as to enable the Court to form its
opinion.”
[p.263] of [1963] 1 GLR 244
The English decisions which undoubtedly establish the rule of practice that the indictment or charge of
perjury on an affidavit should contain an express allegation of a “judicial proceeding” from which the
taking of the allegedly false oath stems, as well as a description of the circumstances whereby the
commissioner of oaths or other person became empowered to administer the oath, have been referred to,
not for the purpose of founding on them a decision that the charge in this case was defective. That point
was not raised in the court below or in this court to warrant our giving any decision on it. Those decisions
have been referred to because they bring out more clearly the substance, the essential elements of the
offence, which should be communicated to an accused person in order that he might know of what he is
accused. They have been referred to because, in the words of Mansfield C.J. in R. v. Aylett,52 “It is
necessary in every crime that the indictment charge it with certainty and precision to be understood by
everybody; alleging all the requisites which constitute the offence.” By referring to them we obtain guidance in our task of deciding whether the essential elements or constituents of the offence charged were, if not alleged in the charge, at any rate proved or not, in the instant case. In the light of them there can be no doubt that the essential elements of the offence of perjury, namely, the
taking of the oath in a judicial proceeding, in circumstances set out or expressly averred which indicate
the authority of the person who administered the oath to do so, were set out in the indictment or charge,
but they were not proved. Taking the most favourable view of the prosecution’s case, the prosecution set
out to prove that the affidavit exhibit A was, in the words of the citation from Russel on Crime (11th ed.),
p. 326, “the first step for initiating the proceeding.” On that hypothesis, it had to prove the particular
practice whereby that method of initiating proceedings is prescribed, and no such proof was given: See R.
v. Koops.53 Indeed on the admission of learned state attorney at the trial when he conceded that Order
60, r. 26 applied, there was in fact no legal authority for the swearing of the affidavit. It is true that exhibit
B discloses that Mr. Koi Larbi had attached it to a notice of intended application to amend paragraph 4 of
his statement of claim. In our view, however, it was a grossly improper and reprehensible use of the
affidavit—as though counsel was doing all he could to circumvent the relevant rules; for it appears to us
that counsel should have gone by the rules and endeavoured to obtain probate of the so-called will, before
instituting the action shown in exhibit B. Be that as it may, the crucial question is whether the affidavit
exhibit A was required or called for by the court at the stage when counsel sent it to be sworn to. If by any
established practice or rule of procedure it was required or called for at that stage, undoubtedly the
prosecution had the onus of establishing that,
[p.264] of [1963] 1 GLR 244
but the onus was not discharged. Apart from the Koops case (supra) to which reference has been made, a
New Foundland case referred to in the English and Empire Digest, Vol. 15 (1961 ed.), p. 835, does not
seem to be irrelevant. It is R. v. Kennedy,54 particulars of which are that:
“Prisoners were tried and found guilty on indictments for perjury in attempting to sustain by oath a document
which was not the testator’s will. In neither indictment was the pendency or contemplated institution of
judicial proceedings set out. On coming up for sentence, counsel moved in arrest of judgment that it did not
appear on the indictments that the oath was taken in a pending or contemplated judicial proceeding:— Held:
to constitute perjury the false evidence must be given in the course of a judicial proceeding, and must not
alone be proven at trial, but must appear on the face of the indictment.”
It is hardly necessary to point out that though a New Foundland decision, it is completely in accord with
the English decisions which establish that the element of judicial proceeding must be averred and appear
on the face of the indictment, before being proved in the course of the prosecution’s case.
The learned trial circuit judge saw a difference in the instant case and the Borson case because in this case
the affidavit “may be required under law.” In this view he would appear to have erred, for the test appears
to be whether it was required before being sworn to, just as evidence in court is required before a witness
who is sworn and reminded to speak nothing but the truth, gives it on oath. Said Denman C.J. in the
Koops case (supra), “If the Court do not require the oath it is voluntary.”55 Later he further asked,
“Assuming the Court to have the power in each individual case to determine whether the oath be
necessary or not, can perjury be proved, in any case, without shewing that, in that case, the Court required
the oath?”56 The learned Chief Justice’s view of the legal position expressed in the two observations
above set out appears to be supported or confirmed by a Canadian decision referred to in the English and
Empire Digest, Vol.15 (1957 ed.), p. 815, as No. 5078, R. v. Schiff57 particulars of which are given as
follows:
“No authority to take affidavit—The maker of a false affidavit substantiating a claim cannot be convicted of
perjury where substantiation is not authorised and commissioner has no authority to take the affidavit.”

In the light of the authorities therefore we hold that exhibit A did not satisfy the requirements of being “an
affidavit necessary to be taken in respect of proceedings in a Court,” because the prosecution did not
establish any legal necessity for it to be taken in respect of any proceeding in a court at the time it was
made. The prosecution did not, as it was bound to do, establish how, and by what clearly established rule
of procedure, any court required the affidavit exhibit A in any judicial proceeding at the
[p.265] of [1963] 1 GLR 244
time it was sworn to, and it was therefore a voluntary affidavit incapable of being the subject of perjury.
It remains but to deal in the briefest possible manner with the last question raised at the trial, namely, the
issue of fact which the trial judge ultimately resolved in favour of the prosecution. That issue was whether
the appellant calmly and dispassionately read, appreciated, and fully understood the contents or terms of
exhibit A, before he deliberately stated that the testator executed the said will on the date thereon in his
presence and that of one Kofi Bissue the other subscribing witness thereto, both of them being present at
the same time and both of them attested and subscribed the said will in the presence of the testator, a
statement he knew to be false; or rather, as the appellant deposed at the trial, he did not read exhibit A
before he swore to it, “because the son said it had been drawn up by a lawyer and I thought that what was
in exhibit A was that I had prepared the will and signed it and this was in the affidavit”; that he did not
even notice at the time that exhibit A was prepared by Mr. Koi Larbi and got to know that sometime later;
and that if he had read exhibit A he would certainly not have signed and sworn to it. [His lordship then set
out the evidence on this point and continued:] Assuming therefore that the prosecution had succeeded in
proving the essential elements of the charge against the appellant—which, as we have been at pains to
point out, it failed substantially to prove—we are satisfied that the appellant conclusively established his
defence that he did not read the affidavit to appreciate its contents before he swore to it, and that the
learned trial judge’s decision to the contrary cannot be supported.
Finally, from that proved circumstance that the affidavit which was intended to be sworn to with
reference to the original will as an annexure, was in fact sworn to without the annexure, flows the further
legal consequence that exhibit A cannot be a proper subject of perjury. We refer on this point to R. v.
Hudson58:
“Perjury was charged to have been committed in an affidavit of service of Notice of an application for leave
to issue execution against a share-holder in a joint-stock Coy. The affidavit was produced but the notice was
not annexed to it. Counsel for Defendant objected that it was inadmissible—and Cockburn, C.J. so ruled and
directed an acquittal.”
It would seem as though in that case the affidavit had been sworn to with the annexure, but that at the trial
it was sought to be tendered without the affidavit. A fortiori, in the instant case where the affidavit had
not been sworn to with reference to, or with, the annexure at all it seems obvious that there was not a
properly sworn affidavit at all which could be the subject of perjury.
[p.266] of [1963] 1 GLR 244
In the result therefore, we are satisfied that the appellant’s conviction cannot be supported, and we
accordingly allow the appeal, set aside the conviction and sentence and direct acquittal of the appellant.
DECISION
Appeal allowed.
Appellant acquitted and discharged.

J. D.

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