AKAINYAH AND ANOTHER v. THE REPUBLIC [1968] GLR 548

DIVISION: COURT OF APPEAL

DATE: 1 JULY 1968

BEFORE: APALOO, LASSEY AND AMISSAH JJ.A.

NATURE OF PROCEEDINGS

APPEAL against convictions for, inter alia, the offence of conspiracy to commit extortion and corruption by the High Court on the basis of adverse findings made against the appellants by a commission of inquiry appointed under the Corrupt Practices (Prevention) Act, 1964 (Act 230). The facts are fully stated in the judgment of the court.

COUNSEL

Sir Dingle Foot Q.C. (J. Reindorf and N. Y. B. Adade with him) for the first appellant.

Ansah for the second appellant.

S. S. Okunor, Principal State Attorney (Danso, Assistants State Attorney, with him), for the respondent.

JUDGMENT OF APALOO J.A.

Apaloo J.A. delivered the judgment of the court. As a result of adverse findings made against them by the Ollennu Commission appointed under the Corrupt Practices (Prevention) Act, 1964 (Act 230), (hereinafter referred to as the Act) the two appellants were prosecuted on various counts of offering to give bribe to influence a public officer, accepting bribe to influence a public officer, conspiracy to commit extortion and corruption. Availing himself of the power conferred on him by subsection (1) of section 4 of the Act, the Attorney-General preferred these charges against the appellants on the basis of the findings made against them by the commission. In due course, the charges came an for hearing before Azu Crabbe J.A., sitting as an additional judge in the High Court. The

[p.552] of [1968] GLR 548 appellants requested the court to invoke the Powers conferred on it by subsection (2) of section 6 of the Act and allow them to call evidence. The court acceded to this request and both appellants then gave evidence on their own behalves. The second appellant’s evidence was a mere repetition of the facts on which the commission’s adverse findings against him were based and the learned trial judge considered it to be a plea in mitigation. The first appellant however contested the facts and denied the evidence of the witnesses on which the adverse findings against her were grounded. The learned trial judge expressed disbelief in the first appellant’s evidence and in the end, felt himself unable to differ from the learned commissioner on the facts. Holding that the facts supported the charges, the learned judge proceeded to convict each appellant of the counts on which she or he was charged and imposed on them various terms of imprisonment. Both appellants say that the convictions are wrong and hence this appeal. Although the appellants diverged on the facts and on some of the grounds on which they contest their conviction, they share a common ground of appeal, namely, that the Corrupt Practices (Prevention) Act, 1964, was wholly invalid inasmuch as it violated the 1960 Constitution of Ghana.

The argument against the validity of the Act was not made before us for the first time. The Act was impugned both before the learned commissioner and the learned trial judge on grounds which are wholly dissimilar. Neither was impressed by the argument put forward and both declined to say that the Act was invalid. As neither the commissioner nor the learned trial judge had jurisdiction to pronounce on the validity or otherwise of the Act any way, it is only natural that that contention should be reiterated before us. And that argument was made with conspicuous ability by Sir Dingle Foot Q.C. who appeared for the first appellant. It was conceded on behalf of the State that if the Act was in fact invalid, no proper proceedings were set on foot and that the conviction of the appellants based on its provisions must be null and the appellants would be entitled to be acquitted. We think that consequence must inevitably follow if we accede to the contention of the appellants that the Act was invalid or that sections 5 and 8, at any rate, were so. It is therefore necessary to consider the grounds on which the Act was attacked.

We think the very able and helpful arguments of Sir Dingle can be summarised as follows:

(a) By article 41 of the Constitution, 1960, the judicial power of the State was conferred on the courts. Therefore nobody

[p.553] of [1968] GLR 548 other than a court may exercise judicial power without infringing the Constitution.

(b) Any legislation which purports to confer judicial power on a body other than a court must be unconstitutional unless the legislation is a proper amendment of article 41.

(c) Act 230 was not an amendment of article 41 because article 41 was an entrenched proviso and amendment of it must conform to the protective provision of article 20 which the passage of the Act did not follow.

(d) Yet the Act conferred judicial power or at least part of it on a non-judicial body, namely, the commission, the commission as such, was not a court.

It was not suggested for the State that the Act was passed after the holding of a referendum in accordance with the provisions of article 20 (2) of the Constitution. That the commission of inquiry is not a court in the ordinary or statutory acceptation of that term seems plain and although Mr. Okunor for the State made a feeble attempt to contend that a commission was a court, that attempt was abandoned. Therefore if we feel able to accept that the judicial power of the State or part of it was conferred on a commission appointed by virtue of section 1 of Act 230, then the appellants’ case is made out. Although article 41 used the words “judicial power” neither the Constitution nor the Interpretation Act, 1960 (C.A. 4), provides any definition of those words and in trying to ascertain what is comprehended by those words, we naturally, had to look for guidance elsewhere. In the ordinary ran of things, our natural place of’ resort would have been to English decisions but a contention such as was pressed on us cannot have been urged against an Act of the British Parliament for the very sufficient reason, that the British Constitution is unwritten and it could not be said with reason that an Act of Parliament infringed an unwritten constitution. This does not mean that the English courts have had no acquaintance with the term “judicial power.” Section 71 of the Constitution of the Commonwealth of Australia confers “judicial power” on the courts in terms almost identical with article 41 of our Constitution and that term often fell to be construed before the High Court of Australia and by the Judicial Committee of the Privy Council. Another common law jurisdiction which had an even earlier acquaintance with the term “judicial power” is the United States of America. Section 1 of article 3 of the Constitution of the United States provides that “The judicial power of the United States shall be vested in the Supreme Court, and in such inferior Courts as the

[p.554] of [1968] GLR 548

Congress may from time to time ordain and establish.” As early as 1891, Miller J. defined “judicial power” as the power of a court, to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision. And in 1911 in the case of Muskrat v. United States 219 U.S. 346 (1911) the Supreme Court defined judicial power as “the right to determine actual controversies arising between adverse litigants duly instituted in courts of proper jurisdiction.”

Although the High Court of Australia conceived judicial power in the same sense as the United States Supreme Court, that court defined it in rather different language. In Huddart, Parker & Co. Proprietary Ltd. v. Moorehead (1909) 8 C.L.R. 330 at p. 357 Griffith C.J. defined judicial power as used in section 71 of the Australian Constitution, as:

“the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.”

In Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation [1931] A.C. 275, P.C. this definition was approved by the Privy Council. It would seem therefore that an essential attribute of judicial power is not only the power to decide on the claims of parties in accordance with established principles of law, but also the power to enforce those decisions.

The construction which the Australian, American and English courts put on the words “judicial power” is not binding on us but it provides us with useful guidance being a consensus of the views of the highest tribunals of these common law countries on the meaning of “judicial power.” Having given the matter the best consideration we can, we think that view of the matter is right and we propose to construe that term in our own Constitution in the same sense. On that basis, it seems to us manifest that neither the whole nor indeed any part of the “judicial power” of this country was conferred on a commission by the Act in question. As it appears to us, all that a commission appointed under section 1 of the Act is empowered to do is to inquire into the truth of allegations of corruption and thereafter to submit a report in a manner required by section 3 of the Act. Although it may make adverse findings against any person, not only is that finding not binding on

[p.555] of [1968] GLR 548 that person but the commission is without power to enforce its decisions. No liability to suffer any penalty attaches to any person against whom the commissioner makes adverse findings until the Attorney-General, in exercise of the power conferred on him by section 4 of the Act, invokes the judicial power of the courts and procures a conviction. We are not of course unmindful of the fact that the commissioner conceived himself as conducting “a trial of specific accusations of corruption” and he put this as his view in paragraph 7 of the report, exhibit A. We are unable to subscribe to this view. If the commissioner was conducting a criminal trial into specific accusations of corruption, then his must be a peculiarly impotent tribunal. Indeed it must be an odd court which can adjudge guilt but is entirely powerless to impose punishment of any sort. The truth of the matter, as it seems to us, is that a commission appointed under section 1 of the Act not being a court, is wholly bereft of judicial power. It is said in any event that Act 230 circumscribed the exercise of judicial power by the courts in such a manner as to constitute an erosion of the courts’ power or an usurpation thereof. The section of the Act against which this complaint is directed, is section 5 (2) which enacts that” the findings of the Commission shall be prima facie evidence of the facts found . . .” It is urged for the appellants that the essential function of a judge in a criminal trial is not only to hear evidence of the prosecution but also that of the defence and if the accused is adjudged guilty, the judge must, in the exercise of his discretion, decide what sentence to impose. It is also complained that section 8 (2) was also in sin inasmuch as it prescribed a minimum sentence and therefore substantially took away the judge’s discretion to impose such sentence as he thought fit. For authority, the Privy Council cases of the Bribery Commissioner v. Ranasinghe [1965] A.C. 172 and Liyanage v. R. [1967] 1 A.C. 259 were relied on. The sum total of the complaint on this part of the argument is, that section 5 (2) bisected the judicial functions of the court and entrusted one half to the commission, while leaving the other half to the court. This contention is based on the supposition that the exercise of judicial functions is synonymous with the exercise of judicial power. But, in our view, this is not the case. A characteristic of judicial power is that it is conclusive. While administrative tribunals normally exercise judicial functions, it is plain they do not exercise judicial power in the ordinary signification of that term. In the Australian case of Rola Co. (Australia) Proprietary Ltd. v. The Commonwealth (1944) 69 C.L.R. 185 at p. 203 Rich J. distinguished between the two concepts as follows:

[p.556] of [1968] GLR 548

“it is important to remember that judicial power, and power in the exercise of which there is a duty to act judicially, are two different things. The former is a special case of the latter. If a person is invested with power, not to create new legal rights or to impose new legal duties or liabilities, but to determine, as between disputants, whether one of them possesses, as against the other, some already existing legal right to which he claims to be entitled, or is subject to some already existing legal liability to the other which the other is claiming against him, then, not only when exercising the power, is he required, amongst other things, to act judicially, but the power itself is judicial power.” In our opinion, what section 5 (2) of the Act does, is to regulate the form in which the evidence of the prosecution is to be presented to the court, namely, by means of a report of the commission. That is the prima facie case which the accused has to rebut. The section is in no way a statutory fetter on the court in the exercise of its power to either adjudge guilt or pronounce innocence. It follows that in our opinion, a contention that a section of an enactment which merely regulates the exercise of judicial functions constitutes an erosion of judicial power cannot be maintained. It is implicit from Sir Dingle’s argument that he considers that a judge cannot legally “hear” a case without physically seeing and listening to the witnesses, since he complains that section 5 (2) which disables a judge from hearing the prosecution evidence is an invasion of judicial power. If this be the true view of Sir Dingle, we think, with respect, it is a somewhat narrow one. In our opinion, a case can be legally “heard” by a judge without his physically seeing or listening to the witnesses. Indeed in Kwakye v. The State [1965] G.L.R. 647, S.C. in which judgment was delivered by the Supreme Court on 12 November 1965, the point was neatly raised and decided. Section 181 of the Criminal Procedure Code, 1960 (Act 30), provides that “Where a person is before a District Court charged with an offence which is not being tried summarily, there shall be a preliminary hearing of the case by the court . . .” (The emphasis is ours.) Section 184 provides in substance that the person shall be committed or discharged as the case may be after such hearing. In the Kwakye case (supra) there was no “hearing” of evidence before the magistrate. The latter committed the accused after the perusal of the summary of evidence. On being convicted, he appealed to the Supreme Court, and one of the grounds urged on his behalf, was that the accused was not properly committed and that the subsequent trial was a nullity as there was no “hearing” of witnesses before the magistrate. This argument failed as the Supreme Court held that [p.557] of [1968] GLR 548

“hearing” a case does not always mean the physical listening to witnesses.

With regard to Sir Dingle’s argument that the prescription of a minimum sentence by section 8 (2) of Act 230 interferes with the judge’s discretion and erodes judicial power, we think if the fixing of a maximum sentence by a statute is not an invasion of judicial power, then by the same token the prescription of a minimum sentence cannot be one. Learned counsel has not sought to suggest that the fixing of a maximum sentence in any way usurps judicial power. Indeed until recently, the death sentence was the automatic penalty for murder in England. Such a sentence cannot have left much scope for the exercise of judicial discretion in the sentencing power of the court. As we said, Sir Dingle referred us to a number of decided cases and in particular, the decision of the Privy Council in the two Ceylonese cases of the Bribery Commissioner v. Ranasinghe [1965] A.C. 172 and Liyanage v. R. [1967] 1 A.C. 259 and also Attorney-General of Australia v. R. [1957] A.C. 288 at p. 319, P.C. In the Ranasinghe case, it was held that members of a judicial tribunal who were appointed pursuant to the ultra vires provisions of the Bribery Amendment Act, 1958, were not validly appointed inasmuch as the Act under which they were appointed was passed in breach of the special legislative procedure laid down in section 29 (4) of the Constitution of Ceylon. That case also decides that where invalid parts of the statute which are ultra vires can be severed from the rest which are intra vires it is the alone which should be held invalid. In the view that we take of this case, no question of severing the invalid from the valid parts of the Act in question arises. Accordingly, we have not found ourselves greatly helped by this case.

The Liyanage cast (supra) seems to us the more apposite of the two and was naturally stressed by Sir Dingle as authority for the proposition that where a statute usurps judicial power in a manner inconsistent with a written constitution, it can be declared ultra vires and void. The Criminal Law (Special Provisions) Act, No. 1 of 1962, passed by the Parliament of Ceylon contained substantial modifications of the Criminal Procedure Code, inter alia, by purporting to legalise ex post facto the detention of persons suspected of having committed an offence against the State, by widening the class of offences for which trial without a jury could be ordered, by allowing arrest without warrant. The Act also provided for the admission in evidence of certain confessions and statements to the police which were inadmissible under the Evidence Code. The Act was expressed to be retrospective to cover an abortive coup d’etat in which the appellants took part and was to cease to be operative after [p.558] of [1968] GLR 548 the conclusion of all legal proceedings connected with or incidental to any offence against the State on or about the date of the coup.

The Act was challenged on two grounds, firstly, that it was contrary to the fundamental principles of justice, and secondly, that it involved a usurpation and infringement by the legislature of judicial powers. The attack failed on the first ground but succeeded on the second. It would seem from the ratio decidendi, that the reason why this particular piece of legislation was struck down, is that it was not only ad hominem and ex post facto, but its provisions were so designed to bring about one and only one result in the case brought before the court, namely, the conviction and punishment with a fixed minimum, of identifiable persons for offences for which they had already been detained. It was a legislative exercise of judicial power. The Privy Council declined to lay down a priori what will and what will not constitute interference with judicial power and said each case must be judged on its own facts. That Act 230 had none of the undesirable features of the Ceylon Act seems plain. Not only was it not ad hominem but it clearly was not ex post facto. The Act was passed to meet a social need and as its object shows, to provide a better and obviously a more expeditious method of investigating and dealing with corrupt practices— one of the greatest social evils with which this country was beset. At the date of its passage in 1964, it did not have the appellants in contemplation any more than the Criminal Code had any identifiable persons in view when it was re-enacted in 1960. As we said, the findings of the commission constitute no more than a prima facie case which an accused is entitled at the trial to rebut with all the weapons in our legal armoury. Although the learned trial judge seemed to have thought that this is limited to the methods provided by section 6 of the Act, we dissent from that view. Section 6 does not set out the only modes of showing cause. It merely sets out what may follow if the showing of cause takes a particular form. The trial judge is left entirely free after everything that can possibly be canvassed, be it law or fact, to pronounce guilt or innocence. In our opinion, therefore, the Ceylon Act has not the slightest affinity with our Act 230 and the Liyanage case (supra), useful as it is, provides no assistance to the appellants in the present case. It appears to us that the real complaint of the appellant on this ground, is that Act 230, s. 5 (2) introduced a procedure with which our courts have been hitherto unfamiliar. That procedure is on the manner evidence in a court should be introduced. Unless a departure from procedure takes away the power of independent decision and the power to enforce that decision from the courts, we think the novelty of the procedure is no erosion of judicial power. We are [p.559] of [1968] GLR 548 therefore driven to the conclusion that the Corrupt Practices (Prevention) Act, 1964, is valid, and valid in its entirety. It follows that the argument against its validity fails.

It is now necessary to deal with the other equally interesting but far less serious grounds which Sir Dingle urged on behalf of the first appellant. Counsel drew our attention to the Corrupt Practices (Prevention) Appointment of Commission) Instrument, 1966 (E.I. 93), which officially published the appointment of the commission and its terms of reference. This instrument directed the commissioner to report its findings to the National Liberation Council and the report, exhibit A, shows that this direction was obeyed. Counsel complains that the report is a nullity because it ought to have been made to the Attorney-General and not to the National Liberation Council. It is said that the Attorney-General was thus obliged to act on the directions of the National Liberation Council and not in his own discretion. It is said that although the Attorney-General was at one time subject to the directions of the President, this was no longer the case, the position having been reversed by the National Liberation Council (Proclamation) (Amendment) Decree. 1967 (N.L.C.D. 183). It was submitted therefore that the decision to .put the law in motion against the appellants was taken not by the Attorney-General whose statutory duty it is, but by the National Liberation Council. Accordingly, it is claimed the proceedings are null and void and the convictions go with them. Although Sir Dingle did not exactly say so, the burden of his complaint is interference, this time not by Parliament in the exercise of judicial power, but by the government in the Attorney-General’s statutory discretion.

In our opinion, this ground is unsubstantial and is easily answered. There is nothing in Act 230 which prohibits the submission of the report to the National Liberation Council and we should have thought it almost common sense that as the commission was appointed by that body, it is to it that the report should go. The Act provides that certified true copies of the report should be sent to the Attorney-General and the person against whom adverse findings have been made. If only copies of the report are to go to he Attorney-General and to the person reported against, it seems to us obvious that the original of the report must go somewhere. It would be unreasonable to think that the commissioner must keep it for himself. The reason why the Act obliged the commissioner to send a copy of his report to the Attorney-General, is to enable him to exercise the power conferred on him by section 4 (1) of the Act. This, the Attorney-General has done by these proceedings, namely, by preferring charges based on the findings in the report. In our opinion, the fact [p.560] of [1968] GLR 548 that the National Liberation Council also invited the Attorney-General to do what clearly was his duty seems to us of little moment. The suggestion implicit in Sir Dingle’s argument that the Attorney- General acted merely as a robot and that the law was actually put in motion against the appellants by the National Liberation Council, is unacceptable. We think this ground of appeal cannot succeed.

The record of proceedings show that this case first came before the High Court on 2 February 1968, when the appellants were granted bail. On that date, the court was presided over by Edusei J. After a number of adjournments before Edusei J., the case came before Azu Crabbe J.A. who was then sitting as an additional judge of the High Court. This was on 7 March 1968. On that date the case was adjourned for hearing to 14 March. On this later date, hearing commenced and was completed on 29 March 1968. At no time was objection taken to Azu Crabbe J.A. hearing this case and it is difficult to conceive what valid objection could have been taken especially as no hearing was begun by Edusei J. The first appellant by her counsel now complains that, the proceedings before Azu Crabbe J.A. were void because the matter was lawfully seised by Edusei J. and that Azu Crabbe J.A. had no, jurisdiction to try the case without a formal order of transfer by the Chief Justice under paragraph 38 of the Courts Decree, 1966 (N.L.C.D. 84). To this contention, Mr. Okunor for the State, gave what in our opinion, was the correct reply. He argues that jurisdiction attaches to the court and not to a particular judge and the list on which a particular case appears, is an administrative matter which need not appear on the face of the record. We agree with this view of the matter. Indeed this point was so decided by the full bench of the Court of Appeal in its ruling in the case of Asare v. The Republic [1968] G.L.R. 37 delivered on 15 January 1968. In our opinion, this ground of appeal also fails. This brings us to one of the weightier grounds of appeal urged on behalf of the first appellant. It was submitted to the learned trial judge that as many of the witnesses who testified before the commissioner were accomplices he was wrong in accepting their evidence and making adverse findings against the first appellant without corroboration. The learned trial judge rejected this contention and reasoned that as the commission was a fact-finding one and not a trial strictu sensu, the rule of practice which requires the evidence of prosecution witnesses who are accomplices to be corroborated, does not apply. Sir Dingle complains that this view of the matter must be wrong. He says, in substance, the learned judge threw away almost light-heartedly a sensible rule which gave protection to accused persons and which the courts have acted upon for years. [p.561] of [1968] GLR 548

It would seem from the report that the learned commissioner, himself an experienced judge, exercised his mind on this matter and thought that persons who paid money in certain circumstances should be deemed to be accomplices. The position is that there is a divergence of opinion between the learned commissioner who thinks that the rule should apply to a commission such as the one he held, and the learned trial judge who takes a contrary view. We feel ourselves called upon to decide which of the two is right.

It is not necessary to go into the history of this judge-made rule. It is sufficient to say that that rule which obliges judges to proceed with caution where they are called upon to act upon the evidence of a person who is himself a particeps criminis can only have been dictated by prudence and fairness. The rule does not fetter the judge in his determination of the truth and he may indeed act on that evidence if, with proper caution, he is convinced of its truth, although the safer course is for him to look out for some other confirmatory evidence. This salutary rule which has comparatively recently received the blessing of the House of Lords in the oft-cited case of Davies v. Director of Public Prosecutions [1954] 1 All E.R. 507, has no doubt commended itself to other Commonwealth courts and we should be sad to see it go. Without seeking to lay down that this rule should apply to all fact-finding commissions, we think in an inquiry held under Act 230 where the findings of fact constitute a prima facie case against an accused person in a subsequent criminal trial, the commissioner should approach the evidence of the witnesses whom he considered accomplices with the same caution as he would approach it if they were witnesses for the prosecution in an ordinary criminal trial. We think therefore that the commissioner’s is the better of the two views. It follows that on this point, we are in agreement with Sir Dingle that the learned trial judge was in error when he held that the rule which requires corroboration of an accomplice’s evidence does not apply to a commission held under Act 230. But we are unable to agree that the learned judge’s slip on this point ought to result in the consequence for which Sir Dingle contends, namely, that the first appellant is entitled to an acquittal. In this more than ordinary case, the person who should be mindful of this rule and apply it is the commissioner. That he was mindful of it and indeed approached the evidence of such witnesses in that spirit, is patent from his report. In those circumstances the mistaken view of the learned trial judge, who in the special circumstances of this case was in the position of an appellate tribunal considering findings of fact, can have no impact on the factual conclusion of the commissioner. [p.562] of [1968] GLR 548

We are of opinion therefore that this ground of appeal must also crumble.

While on this last ground of appeal, counsel for the first appellant also found cause to complain against what appears to be an obiter observation made by the learned trial judge on the construction of section 5 of the Act. The judge expressed as his view, that an adverse finding made against a person by the commissioner “is equivalent to a verdict of guilty” returned by a jury. Sir Dingle submits that this is wrong and that on a true construction of that section, it amounts only to a prima facie case. In putting forward this view, it would seem the learned judge drew inspiration from the commissioner who expressed the same view in paragraph 23 of the report. But in point of fact, the judge also said of the same section that “the adverse findings made by the commission constitute a prima facie case.” That is the footing on which he dealt with the matter because he permitted the first appellant to lead evidence to rebut the facts found against her. We do not believe that if the learned judge had given sufficient thought to the matter, he would have considered it possible for an accused against whom a verdict of guilty had been returned to be permitted to re-open the case by the adduction of evidence on the merits. We think Sir Dingle is right on this point but as the learned judge in fact treated the findings as constituting only a prima facie case, we can only conclude that his error lay only in the use of inaccurate terminology. Sir Dingle does not suggest and we do not ourselves believe that any possible injustice resulted or could have resulted from this. The first appellant’s husband was, until 6 June 1966, a judge of the Supreme Court. On that day, he was removed from office as a result of recommendation to that effect made to the National Liberation Council by the Judicial Service Commission. It would seem that the learned trial judge was at that date, a member of that commission and took part in the decision to recommend the removal. There is no evidence on the record what matters the Judicial Service Commission considered and why they felt it necessary to recommend the first appellant’s husband’s removal. Yet it is a complaint before us that the learned trial judge was in error inasmuch as he failed to inform the first appellant that he had been one of the members of the Judicial Service Commission which had already considered and reached conclusions on certain matters on which he was to adjudicate. We understood this complaint to mean that the learned judge had a fore-knowledge of the facts which was likely to prejudice his mind against the first appellant. If this is so, we should have thought some attempt would have been made to supply us with certified true copies of the minutes of the meeting so that we would be in a position to

[p.563] of [1968] GLR 548 inform ourselves to what extent the matters discussed were relevant to the facts of this case. If, as it seems to us, the learned judge thought the matters discussed at the meeting of the Judicial Service Commission were irrelevant to this case, the judge cannot have felt himself under any obligation to inform the first appellant of his participation in that meeting. In our judgment, there is no basis for this complaint and it must collapse.

Sir Dingle who said everything that could possibly be said on behalf of the first appellant, concluded his submissions by referring us to paragraph 468 of the report at page 99 and submitted that there were some discrepancies between the second appellant’s statement and his evidence before the commissioner and that his evidence against the first appellant ought not to have been accepted. He complains that notwithstanding this, the commissioner accepted it and the learned trial judge was in error in uncritically confirming that evidence.

We have gone into this complaint with care and have perused the evidence against which this complaint is directed. It seems to us that as a witness, the second appellant made a profound impression on the commissioner and although he regarded him as an accomplice, he felt it safe to rely on his evidence. That seems to us a correct approach to the matter. The learned trial judge felt there were no grounds to justify his interference with that finding. The result is, that on this particular matter, there are concurrent findings of fact. We cannot, on well-known principles, disturb that finding unless it is clearly demonstrated to us that it is wrong. In our opinion, the argument addressed to us on this aspect of the matter did not even begin to do this. Accordingly, like the learned trial judge, we decline to interfere with the facts on which count (3) of the charges is based. That concludes all the grounds which were urged on behalf of the first appellant, all of which, we think, fail. This brings us to consideration of the appeal of the second appellant. His is a curious case because the evidence on which the adverse findings were made against him was all provided by himself and the commissioner having accepted it said he “stood condemned at his own mouth.” The pith of that evidence is, that he had, in company with a number of persons, paid large sums of money to the first appellant for transmission to Kwesi Armah, Minister of Trade, in the Nkrumah regime, as bribes on import licences. When put on trial, he gave evidence but made no attempt to retract his evidence before the commission. His case therefore presented no problem of any sort to the learned trial judge who proceeded to convict him. [p.564] of [1968] GLR 548

The second appellant also contests his conviction on the following grounds:—

(1) That as a witness, he was privileged from answering self-incriminatory questions and the commissioner should have warned him of it.

(2) That the judge was wrong in failing to grant an adjournment to enable him call a witness.

(3) That being a servant of Mincara against whom no adverse findings were made, he was also exempt from adverse finding.

(4) That the learned judge failed to give reasons why he was satisfied beyond reasonable doubt of his guilt.

(5) That the learned judge was wrong in regarding his defence as a plea in mitigation and thereby failed in his duty of considering it.

These grounds were urged with clarity on behalf of the second appellant by Mr. Ansah to whom we are greatly indebted. We think, however, that of the five grounds, the only one that merits serious consideration is ground one. We will defer consideration of that ground for the present and deal with the other grounds in an inverse order.

We think the learned trial judge was right in considering his defence as a plea in mitigation because he not only repeated the facts on which the charge against him were grounded, but he is recorded as begging only “for a caution and discharge.” We think there is no point in the submission that the learned judge should have recorded reasons for finding against him because he confessed to the offence and we would have thought it odd if the learned judge had taken the trouble of setting out reasons for accepting the plea of guilty by an accused person.

In our view, the fact that the learned commissioner made no findings against Mincara who, the appellant alleged was his employer and who sent him with the moneys, in no way absolves him. The commissioner considered Mincara to be a victim of a fraudulent system in which he could not obtain licence without paying bribes. Whether the commissioner was right or wrong in this view is, to us, of no moment. The fact remains that the appellant himself well knew that what he was taking to the first appellant were bribes whose only object was to influence a public officer in the performance of his duty. The absolution of Mincara provides him with no offence. We think there is no substance in the appellant’s complaint that the learned judge was in error in not granting him adjournment to call a witness. This was a summary trial and the position of an accused calling a witness is governed by section 174 (2) of the Criminal

[p.565] of [1968] GLR 548

Procedure Code, 1960 (Act 30). It is obvious the appellant cannot have satisfied the learned trial judge that he had a witness who would give material evidence on his behalf. It is difficult to think of a material witness for an accused whose only plea is for mitigation except on the question of sentence. That the second appellant cannot have had any witness to call is proved by the fact that even on the date we heard argument, his counsel was unaware of the witness’s proposed evidence or his whereabouts. There is no merit in this complaint.

It is now necessary for us to consider the only serious complaint submitted to us on behalf of the second appellant. The way in which it was formulated by Mr. Ansah is this: That the second appellant as a witness was privileged from answering self-incriminatory questions and this privilege attaches to him by virtue of section 2 of Act 230 and section 7 (4) of the Commissions of Enquiry Act, 1964 (Act 250). That as the evidence against him was supplied by the appellant himself, the commissioner was under a duty to warn him against questions which might incriminate him and that this duty was the more compelling inasmuch as the appellant had no counsel at the commission. The question which we have to determine is, what is the true scope of this rule? We answer it in the words of Goddard L.J. (as he then was) in Blunt v. Park Lane Hotel, Ltd. [1942] 2 K.B. 253 at p. 257, C.A. as follows:

“the rule is that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the deponent to any criminal charge, penalty, or forfeiture which the judge regards is reasonably likely to be preferred or sued for.”

We will assume without deciding that a witness before a commission under Act 230 is entitled to the immunity claimed. In such a case, the role of the commissioner in the proceedings would be the same as the role of a judge before whom a witness appears at the trial. The judge as a matter of practice warns a witness that he is not obliged to answer incriminatory questions but there seems to be no rigid rule of law to that effect. The fact that the witness was ignorant of his rights does not prevent the court from utilising his evidence in subsequent criminal Proceedings brought against him. This was so decided in the Privy Council in R. v. Coote (1873) L.R. 4 P.C. 599. In so far as we understand the law on this matter, we think it is for the witness to claim the privilege by objecting to answer. If the judge is under no obligation to warn the witness, then neither was the commissioner. The case of R. v. Garbett (1847) 1 Den. 236, shows

[p.566] of [1968] GLR 548 that if the witness objects to an incriminatory question but was compelled to answer it, he is deemed to have done so involuntarily. In that event, such evidence cannot be admitted in criminal proceedings brought against him subsequently. The second appellant does not suggest he was compelled to answer any incriminatory questions before the commissioner. On the contrary, he said he volunteered the evidence because he knew it to be the truth and he deemed it his public duty to do so. In those circumstances, his ignorance that his evidence might form the basis of criminal proceedings against him is no answer for as the Privy Council said in reply to a similar submission in Coote’s case at p. 608: “Ignorantia juris non excusat.” We are not without some sympathy for the second appellant as he seemed to have given considerable factual assistance to the commission but we think the law is not on his side. There was, we believe, some argument as to what effect a warning to a witness against self-incrimination will have in an inquiry under Act 230. It was suggested by Mr. Okunor that the witness would only recoil into his shell and the object of the inquiry would have been frustrated. Every witness in an inquiry under Act 230 is a potential accused and findings made against him become prima facie evidence against him in a subsequent criminal trial. But whereas a witness simpliciter may not be compelled to answer incriminatory questions, an accused may under section 129 (4) of the Criminal Procedure Code, 1960, be compelled to answer such a question. The position is not free from doubt. But as this point does not arise for decision, we express no concluded opinion on it. We think that like the first appellant, the second appellant fails on all his grounds of appeal. Although no point was made to us by either side, we have our- selves given consideration to the question whether in view of the appellants’ hitherto unblemished character, we should not, in the exercise of our discretion, reduce the sentences which appear to be a little on the high side. However, in view of the widespread incidence of corruption in the country and the fact that the sentences imposed on the appellants are about a fourth of the statutory maximum, we have not thought it right to interfere with the sentences.

In the result, the appeal of each appellant fails and is dismissed.

DECISION

Appeals dismissed.

S. Y. B.-B.