AKAINYAH v. THE REPUBLIC [1968] GLR 330

DIVISION: HIGH COURT, ACCRA

DATE: 29 MARCH 1968

BEFORE: AZU CRABBE J. A.

NATURE OF PROCEEDINGS

TRIAL of the accused persons based on adverse findings made by a commission appointed under the Corrupt Practices (Prevention) Act, 1964 (Act 230). The facts are fully stated in the judgment of Azu Crabbe J.A. sitting as an additional judge of the High Court.

COUNSEL

S. S. Okunor, Principal State Attorney, for the Republic.

J. Reindorf (with him N.Y.B. Adade) for the first accused.

Second accused in person.

JUDGMENT OF AZU CRABBE J. A.

The proceedings in this case have been brought under the Corrupt Practices (Prevention) Act, 1964 (Act 230), (hereinafter referred to as the Act), and the two accused are persons against whom adverse findings have been made by the commission appointed under the Act. Ollennu J.S.C. (as he then was), was appointed sole commissioner by the Corrupt Practices (Prevention) (Appointment of Commission) Instrument, 1966 (E.I. 93), dated 5 March 1966, and in view of the submissions by counsel for the first accused, when putting forward matters upon which his client [p.334] of [1968] GLR 330 relies in showing cause, I think I ought to reproduce the full terms of E.I. 93. The instrument reads:

“EXECUTIVE INSTRUMENT

E.I. 93.

CORRUPT PRACTICES (PREVENTION) (APPOINTMENT OF COMMISSION) INSTRUMENT, 1966 WHEREAS reports have been received by the National Liberation Council alleging corruption in connection with the grant of certain import licences; NOW THEREFORE in exercise of the powers conferred on the National Liberation Council by section 1 of the Corrupt Practices (Prevention) Act, 1964 (Act 230) this Instrument is made this 5th day of March, 1966.

(1) There is hereby appointed a Commission consisting of Nii Amaa Ollennu, Esquire, Judge of the

Supreme Court, as sole Commissioner.

(2) It shall be the duty of the Commission to investigate and report to the National Liberation Council on—

(a) alleged irregularities and malpractices in connection with the grant of Import Licences during the relevant period perpetrated by persons paid out of public funds in the performance of their official duties;

(b) the persons involved in the alleged irregularities and malpractices; and

(c) any other matter or thing pertaining to the grant of Import Licences during the relevant period, in connection with which any allegation of corruption is made by any person.

(3) Without prejudice to any other provision of the Corrupt Practices (Prevention) Act, 1964 (Act 230) the Commission shall, in preparing its report, comply with the provisions of section 3 of that Act (which, among other things, requires the Commission to specify the reasons supporting its findings and the witnesses upon whose evidence the Commission relied to arrive at its decision.)

(4) Miguel Riberio, Esquire, Assistant State Attorney shall be Secretary to the Commission and shall perform such functions relating to the work of the Commission as the Commission may direct.

(5) In this Instrument, ‘relevant period’ means the period beginning with the commencement of the term of office of Mr. A. Y. K. Djin

[p.335] of [1968] GLR 330 as Minister of Trade and ending with the termination on the 24th day of February, 1966 of the term of office of Mr. Kwesi Armah as Minister of Trade.”

The first accused is charged in counts (3), (14) and (15) with accepting bribe to influence a public officer contrary to section 252 (1) of the Criminal Code, 1960 (Act 29); in counts (4), (5), (6) and (11) with conspiracy to extort contrary to sections 23 (1) and 239 (1) of Act 29; in counts (7) and (8) with offering to give bribe to influence a public officer contrary to section 252 (2) of Act 29; in count (9) with conspiracy to commit corruption contrary to sections 23 (1) and 239 (1) of Act 29; in count (10) with conspiracy to commit wilful oppression contrary to sections 23 (1) and 239 (1) of Act 29; in counts (12) and (13) with offering to accept bribe to influence a public officer contrary to section 252 (1) of Act 29. The second accused is charged on two counts only: count (1) with offering to give bribe to influence a public officer contrary to section 252 (2) of Act 29; and in count (2) with abetment of accepting bribe to influence a public officer contrary to sections 20 (1) and 252 (1) of’ Act 29. According to the prosecution all these charges are based upon the findings of the commission. Upon hearing counsel for the Republic, and for the first accused, and the second accused himself, I became satisfied that the provisions of section 3 (3) of the Act had been complied with.

A copy of the report of the commission of inquiry into irregularities and malpractices in the grant of import licences was tendered in evidence without objection by the prosecuting officer, and it was marked exhibit A.

It seems to me that the two important provisions of the Act, when proceedings are instituted in this court, are contained in sections 5 and 6.

Section 5 reads:

“5. (1) In proceedings under this Act, the accused shall not be asked to plead, and subject to section 6 of this Act the prosecution shall not be called upon to lead evidence.

(2) Notwithstanding the provisions of section 1 of the Criminal Procedure Code, 1960 (Act 30), the findings of the Commission shall be prima facie evidence of the facts found, and the accused shall be called upon to show cause why he should not be sentenced according to law for the commission of the offence charged.”

Section 6 also reads:

[p.336] of [1968] GLR 330

“6. (1) Where the accused, in showing cause under section 5 of this Act, states—

(a)that he had no opportunity of cross-examing any of the witnesses referred to in paragraph (b) of subsection (2) of section 3 of this Act, the Court may call such witness to be cross-examined by the accused in which case both the Court and the Attorney-General can put further questions to the witness; or

(b) that the findings of the Commission are not supported by the evidence before it, the Court or the Attorney-General may in such case call additional witnesses.

(2) In addition to any witness or witnesses which the Court may call under subsection (1) of this section for cross- examination by the accused the Court may allow the accused to call any other witness to give evidence on his behalf and the Court and the Attorney-General may put questions to the additional witness called for the accused.” The conclusion I have formed upon a true construction of section 5 is that where prosecution is initiated under the Act:

(1) The accused person shall not be asked to plead to the charge or charges preferred against him.

(2)The prosecution shall not lead any evidence, except where in showing cause, the accused person alleges that the findings of the commission cannot be supported by the evidence adduced before it.

(3) The adverse findings made by the commission constitute a prima facie case, that is to say, that those findings raise a presumption of guilt against the accused person on the charge or charges preferred against him.

(4) The accused is to be convicted and sentenced on the charge or charges preferred, unless he shows cause in the manner prescribed under regulation 5 of the Corrupt Practices (Prevention) (Procedure) Regulations, 1967 (L.I. 571).

In my view an adverse finding which is made by the commissioner appointed under the Act is equivalent to a “verdict of guilty” returned by a jury. It is a conclusion, albeit an arbitrary conclusion, which must be drawn as a matter of law, unless the accused proves the contrary or proves some other fact which the law recognises as sufficient to rebut the inference. In a case where certain facts or conclusions are presumed against an accused person until he proves the contrary, the burden of proof that lies on him is not as heavy [p.337] of [1968] GLR 330 as that which rests on the prosecution; the burden is discharged by evidence which satisfies the court of the probability of that which the accused person is called upon to prove. As Humphreys J. said in R. v. Carr-Briant [1943] K.B. 607 at p. 612, C.C.A.:

“in any case where, either by statute or at common law, some matter is presumed against an accused person ‘unless the contrary is proved,’ the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish.” Section 6 of the Act, in my judgment, states the circumstances and the ground upon which the presumption of guilt may be displaced by the accused. Firstly, the accused person may show by fresh facts elicited in the cross-examination of witnesses recalled under subsection (1) (a), that if the evidence of those witnesses had been before the commissioner and he had considered it together with the other evidence already given at the inquiry, he would not have made adverse findings against him. The fresh facts must, in my view, be capable of belief, and if the court positively disbelieves them and is satisfied that the witnesses are not speaking the truth, the court will proceed to deal with the case as if those fresh facts had not been disclosed. Though the court may disbelieve the fresh facts, if it thinks nevertheless that they might be acceptable to, or believed, by the commission, the presumption of guilt is to be taken as displaced. Secondly, the accused may show that there is no evidence to support the findings of the commissioner. In those circumstances, the question is not only that there is literally no evidence at all, but also that “there is none that ought reasonably to satisfy the [commissioner] that the fact sought to be proved is established”: per Willes J. in Ryder v. Wombwell (1868) L.R. 4 Exch. 32 at p. 39: see also State v. Ali Kassena [1962] 1 G.L.R. 144, S.C. In other words, the accused must show that the evidence adduced at the inquiry is so manifestly weak or unreliable that no reasonable tribunal could safely convict upon it. In deciding upon this matter the court must pose this question to itself: Are there facts in evidence upon which, if unanswered, men of ordinary reason and fairness might fairly say that the accused is guilty of the offence charged? If the court can find an affirmative answer to this question, it ought to convict, unless the accused in showing cause disproves the facts in evidence, or raises a doubt [p.338] of [1968] GLR 330 about his guilt, or puts forward any legal defence recognised by our law.

The accused person may, under section 6 (2) of the Act and regulation 5 of L.I. 571, give evidence on his own behalf if he desires to be heard, and he may call any additional witnesses the court may allow him to call to give evidence to support his defence. Where the accused has given evidence, then I think the court should approach his case on the basis of the principle in Lutterodt v. Commissioner of police [1963] 2 G.L.R. 429 at p. 439, S.C. That principle is: “Where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages:

(1) Firstly it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant;

(2)If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and

(3) Finally quite apart from the defendant’s explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e., prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit.” In this judgment I regret that it is impossible for me to conform strictly with regulation 10 (1) of L.I. 571, hard as I try to be brief, in view of the important submissions made by counsel, which require full discussion in my judgment; and in view also of the fact that no principles have as yet been settled in the administration of this new Act, which the courts are called upon to apply in the numerous import licence cases now pending. In his address to the court in explanation of the charges against the first accused, counsel for the Republic referred me to the adverse findings made in respect of the first accused in the various paragraphs of the report. These are recorded in my notes, and I do not think it necessary to reproduce the findings here, except those that may be necessary to elucidate my own judgment. Under section 5 (2) of the Act the findings constitute prima facie evidence in respect of the relevant counts upon which the first accused is charged. [p.339] of [1968] GLR 330

The findings and the essential evidence upon which the charge in count (3) is based are to be found under chapter 21 of the report. The principal witness is Annan, the second accused in this case, and in his report the learned commissioner adverted to certain inconsistencies in his evidence, though, as the commissioner pointed out, “the few details he felt obliged to reveal and the firmness with which he gave that part of his evidence convinced me of its truth such that even without corroboration, I would feel that justice will be done by acting upon it.” Then in paragraph 472 of the report the commissioner said: “Annan’s evidence satisfied me that the house of Mrs. Akainyah was their clearing house for these illegal transactions, bribery and corruption in connection with import licence. 1 further found that Mrs. Akainyah received £G400 on account as bribe for the £G100.000 licence issued by Kwesi Armah to Mincara.”

The first accused said in showing cause that she had nothing to do with the second accused, and that she only got to know him the following day after he had given evidence at the inquiry when he mentioned her name. The first accused denied that she received £G400 from one Said Mincara through the second accused, and said that she knew no reason why the second accused should make such serious allegations against her. The first accused did not impress me as a truthful witness, and I find it most improbable that a person whom she did not know, nor had met before in her life, could make such serious allegations against her. I am satisfied that there was before the learned commissioner sufficient evidence, which if believed, would justify his findings against the first accused. The evidence of the first accused has not raised the slightest doubt in my mind about her guilt on the charge in count (3). The charges on counts (4), (5), (6), (7) and (8) are based on the findings and evidence of witnesses recorded under chapter 22 of the report. The findings depend not only upon the direct oral evidence of Accad, but also upon inferences drawn from the other evidence adduced at the inquiry. The learned commissioner was impressed by Accad, and he expressed himself as being convinced with the veracity of Accad. Commenting on the evidence of Accad the learned commissioner said: “The cross-examination of Accad on behalf of Mrs. Akainyah did not make any inroads upon Accad’s evidence, and did not bring out any matters or points which could throw any doubts upon the evidence, or even raise any possible suspicions.” In a further comment on the same witness the learned commissioner [p.340] of [1968] GLR 330 said: “I am so impressed with his veracity, his demeanour, and certainly with the manner in which he gave his evidence, that I feel that if his evidence is acted upon, justice will not only be done, but will manifestly appear to have been done.”

In her evidence before this court the first accused denied that Accad paid the sum of £G15,000 to her, and also that Accad visited her house, or that she agreed to arrange an import licence for him. She, however, agreed with Accad’s evidence that she has a piano in her house, but she could not explain how Accad got to know about this. I am satisfied that there is abundant evidence to justify the findings of the learned commissioner of which the charges in counts (4), (5), (6), (7) and (8) are based, and I find that the first accused’s evidence that Accad never visited her house is not only untrue, but also not reasonably probable in all the circumstances. I am further satisfied beyond all reasonable doubt that the guilt of the first accused on each of the charges in those counts has been clearly established. The charges in counts (9), (10) and (11) are based on the findings and the evidence of witnesses recorded under chapter 24 of the report. The main findings against the first accused can be found in paragraph 616 of the said report. There can be no doubt that the star witness in this drama was one Mensah, who, according to the evidence, was, until the inquiry began, on the most intimate terms with the first accused and her husband. Referring to his connection with the first accused and her husband in his evidence, Mensah said: “They take me as one of their children and I go to their house often and often.” Two other important witnesses are Mr. Yao, a bank manager and the late George Sahlani. It is quite patent on the evidence led at the inquiry that the first accused was using Mensah to collect for her bribes on import licences. Yao gave clear evidence of the first accused’s connection with the £G450,000 worth of import licence granted to Blackwood Hodge. Then there is the evidence of Mensah that he went together with the first accused to the office of George Sahlani, where, in her presence, a cheque for £G4.500 was written by Mensah for Sahlani. In his evidence Sahlani said: “And after a few days later that Mr. Mensah came to my office and Mr. Mensah came to collect the money from me, and he came with Mrs. Akainyah. I knew that they are one in the matter.” The evidence shows that it was this amount that was paid to Blackwood Hodge in order to retrieve the import licence for the first accused. Whether or not one agrees that Mr. Yao was an innocent agent, the fact still remains that he gave clear evidence that he took the [p.341] of [1968] GLR 330 licence to the house of the first accused and handed it to her. Consequently, a licence for £G450,000 was issued to Sahlani.

The defence of the first accused on counts (9), (10) and (11) is firstly, that she never knew of the existence of Blackwood Hodge until the inquiry began, and she denied arranging any import licence for that company. Neither did she know Yao until he gave evidence at the inquiry. Secondly, though she admitted knowing Mensah, yet she denied that she ever sent him to Blackwood Hodge in connection with import licence, and to collect money for her. She also admitted that Sahlani was an acquaintance of hers, but denied that she had anything to do with the transaction in his office for the £G4,500 cheque. She said that Sahlani gave false evidence against her so as to save himself from harassment by the police. I do not believe the denials of the first accused that she never discussed the Blackwood Hodge deal with Mensah. The learned commissioner before whom Mensah gave evidence made the remark in his report that any time Mensah said anything detrimental against the first accused, he did it with great restraint. The learned commissioner found nevertheless that the evidence given by Mensah revealed all about the traffic in bribery carried on in the house of the first accused, “particularly the Blackwood Hodge affair.” In this court the first accused has admitted that Mensah came to her house with many people in circumstances which seem to confirm the evidence at the commission that there were some suspicious transactions being carried on in her house. In view of the special relationship which had developed between the first accused, her husband and Mensah, and the part that the first accused’s husband came to play in the Blackwood Hodge affair, I find the evidence of the first accused that Mensah must have concocted these serious allegations against her as not reasonably probable in all the circumstances. With regard to the evidence about the £G4,500 cheque the learned commissioner said at paragraph 566 of the report: “The only reasonable inference which can be drawn from that evidence and all the circumstances of the case is that the fresh licence was issued to Sahlani as part of the Blackwood Hodge transaction in connection with which Sahlani had had to advance the £G4.500, and that he must have paid further sums to make up the 10 per cent commission on the £G450,000 which Mrs. Akainyah, and no doubt Kwesi Armah were insisting upon.” I have myself examined the evidence with care, and I am satisfied that the inference which the learned commissioner made from the

[p.342] of [1968] GLR 330 facts is not only reasonable but also the irresistible conclusion one can come to on the evidence.

I do not believe, and I do not see how it can be said to be even probable, that Mensah, Yao and Sahlani agreed to frame up the first accused. I am satisfied that there is ample evidence to support the findings upon which the charges in counts (9), (10) and (11) are grounded. On the evidence as a whole I am satisfied beyond all doubt that the guilt of the first accused on each of these counts has been clearly established. The charges in counts (12) and (14) are based on the findings contained in paragraphs 629 (ii) and (iii), and the relevant evidence in support is found in chapter 25 of the report. The principal witnesses at the inquiry who gave evidence which supports counts (12) and (14) are again Mensah and one Van Loon.

The following extracts from the proceedings when Mensah was being examined by his counsel portrays the strength of the prosecution’s case:

“Mr. Akiwumi: Did you have any dealings whatsoever in import licence with Reiss?

Mr. Mensah: I went to Mrs. Akainyah one day and she asked me whether I know Reiss & Co., and I said yes, and she said that Mr. Ramia had introduced them to her and that I should see whether Reiss & Co., had received their licence. So when I met Mr. Van Loon, he told me he had received the licence and that I should tell Mrs. Akainyah, so I remember having taken this gentleman Mr. Van Loon to Mrs. Akainyah, and at another time, this Mr. Van Loon said he wanted an import licence for an Eastern Country as he had already got a licence for sterling area.

Commissioner: Do you know how much?

Mr. Mensah: In fact I do not know, so I mentioned it to Mrs. Akainyah and after some time I collected application forms from Mr. Van Loon and sent them to Mrs. Akainyah. After some time Mr. Van Loon came to my office with an amount of £2,500 which I took to Mrs. Akainyah.”

Van Loon confirmed that Mensah took him to the house of the first accused, and that the first accused promised to contact the Minister and procure for him an import licence for T.P.A. countries amounting to

£G300,000. Van Loon said that at the request of Mensah he paid £G2,500 to Mensah for the first accused.

Van Loon readily identified the first accused at the inquiry. Counsel for the first accused complained that the manner of identification was not fair to the first accused; but with respect, I do not see anything improper about the identification of the first accused by Van Loon.

[p.343] of [1968] GLR 330

The first accused at first denied in her evidence-in-chief that she knew Van Loon, and that she had ever arranged any import licence for him. But under cross-examination she admitted that she saw Van Loon at the inquiry, and that she was identified by him. Furthermore, she said that it was possible Mensah could have brought Van Loon to her house but she could not say for certain, because, to put it in her own words: “many people accompany Mensah to my house.” The first accused was evasive when being cross-examined about the licence which it was alleged she promised to procure for Van Loon. I find her untruthful about this transaction, and she has given no evidence which has the semblance of probability about it. On the evidence as a whole, I am satisfied beyond doubt that the first accused committed the offences charged in counts (12) and (14). The findings upon which the charges in counts (13) and (15) are based are contained in paragraph 637 of the report. The principal witnesses at the inquiry were Mensah and Anson. Mensah gave evidence that he received £G2,500 from one Anson and paid it to the first accused. Anson alleged that the first accused, acting through Mensah, assisted him to get a licence for 1966 and demanded a commission of ten per cent of the value thereon. He said that he gave duplicate copies of his application to Mensah and paid the sum of £G500 as a deposit. He eventually got a licence for £G100,000. Counsel for the first accused did not cross-examine Anson. The learned commissioner held that there was no justifiable reason for the issue of such a large amount of licence to Anson, and he found that the issue of the licence was corrupt. His main findings are based, as he said, upon “the unchallenged evidence given by Anson and Mensah.” The evidence which the first accused gave to explain why Mensah and Anson had given such damaging evidence against her was vague and incoherent, and I had no doubt after watching the first accused in the witness-box that it was all a pack of lies. I do not believe that Mensah went to her house and wept and apologised for giving incriminating evidence against her. It does not sound probable to me in the least. The evidence on the whole satisfies me beyond all doubt that the first accused committed the offences charged in counts (13) and (15).

I will now deal with the submissions of counsel for the first accused after the close of her case. Counsel referred me to section 5 (2) of the Act and submitted that in showing cause the first accused, whether by herself or her counsel, could raise any defences known to the criminal law. He said that the defences might roughly be [p.344] of [1968] GLR 330 divided into two types: (i) defences which attack the case on the facts and merits, and (ii) defences which rest on law without regard to the merit of the case.

With regard to the first type of defences I have already concluded that the first accused has failed on the merit on each of the thirteen counts in which she is charged.

On the second type of defences counsel raised numerous points, and I shall now endeavour to deal with each of them. Counsel first proceeded to examine E.I. 93 of 1966 and referred me to section 1 (1) of the

Act, and submitted that it must be shown that a report had been received before the commissioner was appointed, and that it was not permissible to appoint a commissioner at large. Counsel said that the commission must have been appointed under section 2 (2) of the Act, and he contended that the executive instrument should have alleged corruption or other irregularities in respect of a public officer identifiable by description. There is no allegation in the instrument that performance of public duty had been carried out irregularly. He submitted, therefore, that the power of the commission was not known and therefore was in excess.

I do not accede to the submission that the commission appointed under E.I. 93 of 1966 was at large. It is stated, first of all, in the executive instrument that the commission was to investigate allegations of irregularities and malpractices perpetrated by public officers in connection with the grant of import licences. Secondly, it was stated that the investigation was to be confined to the period commencing from the term of office of Mr. A. Y. K. Djin, Minister of Trade, to 24 February 1966 when the term of office of

Mr. Kwesi Armah came to an end. Thus the period of investigation was clearly defined. The preamble to the executive instrument states that reports alleging corruption in connection with the grant of import licence had been received by the National Liberation Council, and the executive instrument charged the commission with the duty of investigating those reports. By the definition of the “relevant period” in this case, I think the executive instrument sufficiently identified the key public officers who would be involved in this scandal. With respect, I do not find any substance in this point.

The next submission made by counsel for the first accused was that since the Act is designed to deal with allegations against public officers, and E.I. 93 of 1966 gave the commission power to investigate any person at all, it exceeded the limits laid down by the Act. He contended that findings of the commission can be made only in respect of public officers. When I drew counsel’s attention to section 1 (2) (e) and (f) he conceded that findings could be made against other persons, but he contended that since the Act was intended to

[p.345] of [1968] GLR 330 apply to public officers alone, only public officers can be dealt with under it. The intention of the Act, he maintained, was to control public officers and not to make a change in the substantive criminal law.

I do not accept the contention that only public officers can be brought within the purview of the Act. In order to appreciate the scope of the Act I think it is necessary to examine firstly the preamble. It shows that the object of the Act is to make better provision than already existing for the investigation of corrupt practices and other matters relating to corruption and for the punishment of those guilty of these corrupt practices. The existing provision which it was intended to ameliorate is the investigation into the offences of corruption by the ordinary criminal courts. Under section 2 of the Act allegations of corruption can now be investigated by a commission whose functions and procedure are the same as those of a commission of inquiry appointed under the Commissions of Enquiry Act, 1964 (Act 250). Subject to its terms of reference a commission of inquiry under Act 250 is essentially a fact-finding body, untrammelled by the strict rules of evidence, and it is free to devise its own procedure. Thus a commission is not bound to observe the provisions of the Criminal Procedure Code, 1960 (Act 30). But it has the power of enforcing the attendance of witnesses and examining them and compelling the production of documents. It is a punishable offence for anyone to flout the powers of the commission in respect of taking evidence. The matters into which the commission appointed under the Act may inquire into under section 1 (2) include not only those affecting public officers, but also matters mentioned in the following paragraphs, of section 1 (2) of the Act:

“(e) the giving or receiving of any loan, or gift, or of any other valuable consideration; or

(f) any other matter or thing in connection with the doing of which the allegation of corruption is made.”

Subsection (2) (e) says that the commission is to inquire into the “giving” and the “receiving” of bribes. A public officer cannot be a “giver” and “receiver” of a bribe at the same time. On a true construction of section 3 (1) it seems to me clear that the commission can make adverse findings against both the “giver” and the “receiver.” The “giver” may be either a public officer, or a non-public officer, but the “receiver” is invariably a public officer. Counsel of course concedes this, and, if his contention that proceedings under the Act can be taken only against public officers could be right, I have no doubt that the legislature would have said so clearly in the [p.346] of [1968] GLR 330 preamble to the Act. “The preamble of the statute” says Coke, 1 Inst. 79a, “is a good means to find out the meaning of the statute, and as it were a key to open the understanding thereof.” The construction which counsel is canvassing is not borne out by the preamble. The main aim of the Act is to eradicate bribery and corruption in public life, and, in my judgment, the Act has been so designed to make it possible to prosecute to conviction both the giver and the receiver of bribes. This is not always possible in the ordinary criminal courts. Counsel next attacks E.I. 93 of 1966 on the ground that the direction that the commission should report to the National Liberation Council was in excess of the Act. He submitted that nowhere in the Act is it provided that a commission appointed under this Act shall report to the President, now the National Liberation Council. Therefore the report of the commission is invalid. The submission that the Act does not direct that the commission’s report should be submitted to the National Liberation Council is correct, but I think that the words directing that the report should be made to the National Liberation Council are mere surplusage, and they can be ignored. The first accused was represented by council at the inquiry, and no objection was taken there to the defect in the executive instrument which is patent on the face of it. The fact that no objection was taken in a lower court does not preclude an objection being taken later in the appeal proceedings, but it is a factor that decides the appellate tribunal that the appellant was not prejudiced in any way and that no miscarriage of justice has resulted: see R.v. Thompson (1913) 9 Cr. App.R. 252, C.C.A. and R.v. Asiegbu (1937) 3 W.A.C.A. 142. In my view all that is necessary is to comply with the provisions of section 3 (3) by forwarding a certified copy of the report together with the evidence of witnesses to the Attorney-General, and to the persons against whom adverse findings have been made. It is not disputed that section 3 (3) has been complied with. I would, therefore, conclude that the defect which appears on the face of E.I. is a non-jurisdictional defect, and that it does not vitiate the proceedings before the commission. Some complaint is also made about the manner in which the commissioner has prepared his report. I think it is only enough for me to say that I do not find any merit in this complaint.

Counsel also complains that the Government issued a White Paper on the report in which it is directed that certain persons, including the first and the second accused persons, should be prosecuted. I do not see anything illegal in that, for under paragraph [p.347] of [1968] GLR 330

6 (2) of the Proclamation for the Constitution of a National Liberation Council for the Administration of Ghana and for other matters connected therewith the Attorney-General is subject to the directions of the National Liberation Council in the performance of his functions. Under section 5 (2) of the Act a presumption of guilt arises against anyone against whom the commission has made adverse findings, and in this particular case all that the White Paper (W.P. No. 4/67, para. 19 (5)) purported to do was to direct the Attorney-General “to look into the necessary charges for preferment in court.” The first accused is liable to be prosecuted once adverse findings have been made against her, and I cannot see how the White Paper, which only directed that consideration should be given to the appropriate charges, could in any way prejudice her case. Consequently, I do not accept the contention that the issue of the White Paper has invalidated the report. Counsel referred to paragraph 470 of the report in which the commissioner said: “I must repeat that in dealing with specific allegations, I am, as much as possible applying the strict principles of our criminal law.” Counsel then submitted that the commissioner did not follow strictly the criminal law, for he let in extraneous matters and inadmissible evidence which raised suspicion and prejudice against the first accused right from the beginning. I think the commissioner was being over-indulgent to the persons whose conduct he was investigating when he assured them that he was applying the criminal law strictly, for the main object of appointing him was to free him from the fetters of the strict rules of law. The commission appointed by E.I. 93 was to all intents and purposes a fact-finding one; indeed, the commissioner himself said at paragraph 604 of the report when addressing the husband of the first accused; “You know that this is a commission of inquiry, not a trial either in a civil or a criminal court, and all the commission is after is to dig out the truth.” I think this remark by the learned commissioner describes his functions more accurately, and so if he was not sitting in a criminal court, he was not bound to apply the criminal law strictly. In digging out the truth he was unrestricted by any strict rules of law, except by his own sense of fairness. In my view, the allegations of corruption which are to be investigated under the Act include rumours and suspicions, and the function of the commission appointed under the Act is to find out whether there is any substance in these rumours and suspicions. One of the major submissions made by counsel for the first accused is that the whole of the Act is invalid, and therefore any proceedings taken under it are in themselves invalid and of no effect

[p.348] of [1968] GLR 330 in law. Counsel submitted that the Act was assented to on 3 March 1964, and at that time Ghana had a written constitution, and therefore the validity of any Act passed, which is still in force today, has to be determined by the state of the law at that time. He argued that article 41 of the Constitution of the Republic of Ghana, 1960, provided that there should be a Supreme Court and a High Court which were the Superior Courts of Ghana, and by article 41(2) the judicial power of the State was conferred on the superior courts of the land. I find the submissions which follow so interesting that I would quote the words of counsel: “The question is whether a commission appointed under Act 230 is vested with judicial power. If it is vested with the exercise of judicial powers then is it a courts, superior or inferior? If it can be shown that such a commission is not a court, but nevertheless exercises judicial power then the existence of such a body would be contrary to the Constitution that was in force at the time provision was made appointing such a body. And being contrary to the Constitution it would follow that such a commission was invalid and of no effect. It would also follow that the Act which made provision for the creation of such a body was itself contrary to the Constitution and therefore invalid and of no effect”. Counsel then referred to section 5 (2) of the Act and submitted that the meaning of this subsection is that the findings of the commission amounts to a conviction nisi, but it is nevertheless a conviction. He further contended that the combined effect of section 5 (2) and section 8 and the tenor of the whole Act is that the Act is that the Act is meant to confer judicial power on a commission appointed under it; though he finally submitted that a commission appointed under the Act is not a court of any description. The pith of counsel’s submissions is that the commission appointed under the Act is not a court, and therefore if it is vested with judicial powers reserved for the courts as declared under the 1960 Ghana Republican Constitution, the exercise of that judicial power by the commission would be ultra vires, and all proceedings conducted by it would be null and void. These submissions definitely impugn the validity of the whole Act, and I was invited by counsel to act under paragraph 2 (2) of the Courts Decree, 1966 (N.L.C.D. 84), and to adjourn further hearing and to refer the question to the Court of Appeal. I declined to do so, and stated that I would give my reasons later. An Act of Parliament is presumed to be valid, until the contrary is proved, and those who allege that it is invalid assume the obligation of [p.349] of [1968] GLR 330 proving beyond all reasonable doubt that it is so. If therefore the court is to act under paragraph 2 (2) of the Courts Decree, 1966 (N.L.C.D. 84), then those who allege invalidity will have to satisfy the High Court, or any lower court, that the enactment which is challenged is prima facie invalid. They cannot have the question transferred to the Court of appeal just for the asking. In this case section 2 of the Act states that a commission appointed under the Act shall function and adopt similar procedure as a commission appointed under Act 250. A commission appointed under Act 250 is not a court; it is a fact-finding body. Counsel for the first accused maintained that a commission appointed under the Act is not a court, and he cited the case of Shell Co. of Australia v. Federal Commissioner of Taxation [1931] A.C. 275, P.c. In the course of their judgment in that case their Lordships of the Privy Council said at pp. 296-297: “The authorities are clear to show that there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power…

In that connection it may be useful to enumerate some negative propositions on this subject: 1. A tribunal is not necessarily a Court in this strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subject. 5. Nor because there is an appeal to a Court. 6. Nor because it is a body to which a matter is referred by another body. See Rex v. Electricity Commissioners ([1924] 1 K.B. 171).” I agree myself with counsel that a commission appointed under the Act is not a court.

The question that then arises is whether there is any prima facie evidence to be gathered from the Act itself that the “judicial power” of the State is conferred upon a commission appointed under it? It is necessary therefore to consider the nature of “judicial power,” and in attempting to explain it, I can do no better than quote from the judgment in Shell Co. of Australia v. Federal Commissioner of Taxation

(supra) where their Lordships said at pp. 295-296

“What is ‘judicial power’? Their Lordships are of opinion that one of the best definitions is that given by

Griffith C.J. in Huddart, Parker & Co. v. Moorehead, (8 G.L.R. 330, 357), where he says: ‘I am of opinion that the words “judicial power” as used in s. 71 of the Constitution mean the power which

[p.350] of [1968] GLR 330 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’.” Section 71 of the Australian Constitution is in substance the same as article 42 (2) of the suspended Ghana Republican Constitution of 1960. In Attorney-General for Australia v. R. [1957] A.C. 288 at p. 319, P.C. it was said that the exercise of the judicial function is concerned with the determination of a justifiable issue.

It is clear on the face of the Act that the duty of a commission appointed under it is, to use the words of the Act, “to enquire into the truth of the allegation” of corrupt practices. The commission then makes findings of facts and forwards copies of such findings to the Attorney-General. There is nothing in the Act that suggests, even remotely, that the commission is to exercise “judicial power” as defined in Shell Co. of Australia v. Federal Commissioner of Taxation (supra). In my judgment, section 4 of the Act manifests the clearest intention of the legislature that the “judicial power” of the State is to be exercised only in proceedings which follow the submission of the report of the findings to the Attorney-General. Thus the exercise of “judicial power” begins from where the fact-finding function of the commission ends. Counsel for the first accused said in the course of his argument that the word “function” in section 2 of the Act does not include “power.” I do not think that is quite correct. In section 32 (1) of the Interpretation Act, 1960 (C.A. 4), “function” is defined as including powers and duties. The commission appointed under Act 250 does not however exercise judicial powers. The issue raised in this case is different from that which arose in Attorney-General for Australia v. R. (supra) where it was held that the Federal Parliament of Australia could establish a court with judicial powers, but could not establish, what it purported to do, a court vested with partly judicial powers and partly non-judicial powers. I do not agree that the provisions of section 5 (2) of the Act provide prima facie evidence of the conferment of judicial power. The commission does not adjudicate on issues between the parties that appear before it, and it has no power to pronounce guilt or acquittal: see Bribery Commissioner v. Ranasinghe [1965] A.C. 172, P.C. As I have already said earlier in this judgment, the prima facie evidence of guilt arising from the adverse findings is only a presumption in law. [p.351] of [1968] GLR 330

Thus, in my view, a prima facie case was not made out that the Act is invalid, and it was for the above reasons that I did not accede to the application made under paragraph 2 (2) of the Courts Decree, 1966 (N.L.C.D. 84).

Even if I were to hold that section 5 (2) is ultra vires the powers of Parliament, I would still not find that the whole Act is prima facie invalid for that reason only, since in my view section 5 (2) can be excised from the rest of the Act without undermining the whole Act. Where the invalid parts of a statute which are ultra vires can be severed from the rest which is intra vires it is they alone which should be held invalid: see the Bribery Commissioner v. Ranasinghe (supra) at p. 200. Finally, counsel submitted that the witnesses on whose evidence the commissioner made adverse findings against the first accused were all accomplices within the rule of Davies v. Director of Public Prosecutions [1954] A.C. 378, H.L. and that their evidence required corroboration. These witnesses are Mensah, Yao, Brookes and Abou-Chedid. Perhaps, one may also describe the rest of the witnesses as accomplices. Counsel contended that the learned commissioner erred in treating these witnesses as victims or innocent agents rather than accomplices, and he cited R. v. Dare (1939) 5 W.A.C.A. 122. With respect, I do not think that these submissions are entirely right. In my view, the rule in Davies v. Director of Public Prosecutions (supra) does not apply to proceedings before a commission appointed under the Act. In Davies v. Director of Public Prosecutions at p. 400 the term “accomplice” is defined as including “persons who are particepes criminis in respect of the actual crime charged.” The accomplice is always a competent witness, and his evidence is admissible in law, though it is uncorroborated. The rule that his evidence requires corroboration applies to a witness called to give evidence for the prosecution. The inquiry at the commission was not a trial, and no charges were preferred against anyone. As the learned commissioner said in paragraph 12 of the report: “Every witness who testified before the Commission was a witness of the Commission not of any party.” Consequently there were no prosecution witnesses to whom the principle in Davies v. Director of Public Prosecutions would apply. It was therefore not necessary for the learned commissioner to consider the rule as to accomplices and victims of a crime. In my view, the rule becomes applicable only when proceedings commence under section 4 of the Act, and the Attorney-General calls additional witnesses under section 6 (1) (b). This, I think, disposes of the important legal submissions made on behalf of the first accused, each of which fails. In the result, I

[p.352] of [1968] GLR 330 convict the first accused on each of counts (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14) and (15).

The case for the second accused presents no difficulty. He is charged on counts (1) and (2), and the adverse findings against him based upon his own evidence given at the inquiry. His evidence in this court, when called upon to show cause, was nothing more than a plea in mitigation of sentence. I am satisfied beyond all doubt that the second accused committed the offences charged in counts (1) and (2) and I convict him accordingly. I refused permission to principal state attorney to address me after the conclusion of the case for the defence, since I do not think that the Attorney-General had a right of reply in the circumstances of this case. I have seen the ruling of Edusei J. in the Republic v. Asafu-Adjaye [1968] G.L.R. 245 in which the same point was considered, and I am happy to say that I find myself in entire agreement with that ruling. Sentence:

First accused: 3rd counts: 4 years’ I.H.L.

4th ” : 6 years’ I.H.L.

5th ” : 6 years’ I.H.L.

6th ” : 4 years’ I.H.L.

7th ” : 6 years’ I.H.L.

8th ” : 4 years’ I.H.L.

9th ” : 5 years’ I.H.L.

10th ” : 5 years’ I.H.L.

11th ” : 5 years’ I.H.L.

12th ” : 5 years’ I.H.L.

13th ” : 5 years’ I.H.L.

14th ” : 5 years’ I.H.L.

15th ” : 5 years’ I.H.L.

Sentences to run concurrently.

Second accused: 1st counts: 4 years’ I.H.L.

2nd ” : 4 years’ I.H.L.

Sentences to run concurrently.

DECISION

Accused convicted and sentenced.

S.K.T.