ASAGBA v. THE STATE [1966] GLR 214

Division: SUPREME COURT

Date: 28 FEBRUARY 1966

Before: MILLS-ODOI, BRUCE-LYLE AND SIRIBOE JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL from the decision of the High Court, Accra, upholding the conviction of the appellant by a district magistrate at Accra for the offence of deceit of a public officer. The facts are sufficiently set out in the judgment.

COUNSEL

G. D. Ampaw for the appellant.

K. A. Sekyi, State Attorney, for the respondent.

JUDGMENT OF BRUCE-LYLE J.S.C. Bruce Lyle J.S.C. delivered the judgment of the court. This is an appeal against the judgment of Archer J. dismissing summarily the appellant’s appeal against the decision of a district magistrate, at Accra, dated 26 July 1964.

[p.215] of [1966] GLR 214

In this case the appellant was charged with deceit of a public officer, contrary to section 251 of the Criminal Code, 1960,1 the particulars of the offence being as follows:

“SALIFU ASAGBA: Driver, for that you on or about the 7 May 1964, in Accra, in the Accra Magisterial District, and within the jurisdiction of this court, with intent to injure one Augustine Awotwi, building inspector of G.N.C.C., Nsawam, did endeavour to deceive a public officer, to wit, the Commissioner of Police, Accra, and other members of the Ghana Police Service, by making a false written statement to the said Commissioner of Police and other members of the Ghana Police Service, that the said Augustine Awotwi had obtained cash the sum of £G10 from one Madam Meria Adjoa and had refrained from prosecuting the said Meria Adjoa for the erection of an unauthorised building at Adoagyiri, which statement you knew at the time of making to be false, or have no reason to believe to be true. Contrary to section 251 of Act 29.”

The case for the prosecution is that the appellant lived in the same house with one Meria Adjoa the third prosecution witness, at Adoagyiri in Nsawam. Some time ago the third prosecution witness bought four rooms of a house in the Zongo area of Adoagyiri from one Awudu Sodangi. Later on the appellant also bought two rooms of the same house from the said vendor and the appellant and the third prosecution witness occupied their respective portions which were made of swish. The third prosecution witness’s portion had a verandah also made of swish in front of her rooms at the time of purchase. Later on the third prosecution witness reconstructed this verandah with cement blocks and also attempted to construct a cement wall and a drain between her portion and that of the appellant. The appellant also attempted to renovate his rooms with cement blocks and these attempted renovations resulted in a dispute between the parties as to the correct position of their boundary and this dispute resulted in a court action. It was after this court action that the appellant on 26 April 1964 wrote a letter, which is the subject-matter of this charge, to the Commissioner of Police in the following terms:

“Sir,

HOUSE No. J.42 ADOAGYIRI/ZONGONo. J.42 ADOAGYIRI/ZONGOThe above-mentioned house was a single dwelling-house of swish rooms. One Madam Meria Adjoa was in possession [p.216] of [1966] GLR 214 of two swish rooms thereof on the west, long before I also bought two rooms in the said house on the northern side. I demolished these two rooms, and made them into block ones. Soon after the completion of this the said Madam Meria Adjoa made a long verandah attached to her swish rooms with blocks. The building inspector at Nsawam, in the course of his inspection found this out and took most serious view of the matter, since she had not submitted a plan for his approval. She told me that he had threatened to prosecute her. Later on she told me that the inspector had agreed to overlook the matter, having satisfied him with £G10 (ten pounds).

This woman had no plan for that construction. If she is now having one, that fact is unaltered; in that the old swish rooms are still swish rooms whereas the verandah is but of blocks. Would any such recent plan indicate that the rooms are of swish and that the verandah of blocks, whereas physical test of the premises confirms truth?

There is however another aspect of a case from the above house, but unrelated to the question of the verandah above-mentioned. And that matter is now pending before the court. In brief it arose from the fact that the said lady converted the entrance of the house into a sleeping room and also made a party wall, thus separating me from the above dwelling-house, thus further blocking my free comings and goings to and fro my section of the house.

I have the honour to be,

Sir,

Your Obedient Servant,

His

SALIFU ASAGBA X RTP.

Mark.”

The police investigated the complaint as contained in paragraph (2) of the letter (supra) and reported that the facts therein stated were false. In proving the falsity of the complaint, the prosecution called the third prosecution witness who was alleged to have given the £G10 and the building inspector. Mr. Augustine Awotwi, the fourth prosecution witness, the person alleged to have received the amount and each of them denied the allegation. The third prosecution witness further denied in evidence that she ever told the appellant that she had given £G10 to the fourth prosecution witness to refrain from prosecuting her for putting up the cement verandah without a permit.

[p.217] of [1966] GLR 214

The appellant in his defence did not deny the authorship of the letter exhibit A and insisted that the third prosecution witness gave him the information about the £G10 she had given to Awotwi, the fourth prosecution witness, and that he had reasonable grounds to believe that the facts as contained in his paragraph (2) of exhibit A were true.

The learned trial district magistrate after reviewing the evidence both for the prosecution and for the defence found the appellant guilty of the charge, convicted him and sentenced him to six months’ imprisonment with hard labour. Against this conviction the appellant appealed first to the High Court and now to this court and his counsel has argued the appeal on the following ground, “The judgment of the magistrate’s court and the High Court is unreasonable having regard to the evidence on record.” In support of this ground counsel has urged that the statement as contained in paragraph (2) of exhibit A cannot be deemed to be a positive statement by the appellant that the third prosecution witness had paid money to the fourth prosecution witness, the building inspector and that the statement should be regarded as hearsay or information given by the appellant to the police to enable them to make an investigation into the matter. Counsel for the appellant further submitted that in fact no building permit was obtained by the third prosecution witness to put up the cement block verandah; that the fourth prosecution witness, the building inspector, who was at the time in charge of the area had taken no steps against the third prosecution witness; that from the evidence there was no doubt that the verandah was an unauthorised structure; and that on the whole of the evidence as adduced by the prosecution and the defence there were facts from which it could be inferred that the appellant had reasonable grounds to believe in the truth of the statement as contained in the charge.

Learned state attorney, Mr. Sekyi, in answer submitted that there were two separate issues of fact before the trial court: (a) whether the evidence of the third and fourth prosecution witnesses in respect of the illegal receipt of the £G10 was to be believed and (b) whether the evidence of the appellant in respect of the same subject-matter was to be believed, and that these were resolved in favour of the third and fourth prosecution witnesses. He submitted further that the trial court which resolved these issues in favour of the third and fourth prosecution witnesses took into account the long delay in reporting the matter to the police and that the appellant had earlier opportunities for reporting the same. He stated that this court should not concern itself with whether, having regard to all the circumstances, it would have convicted or acquitted if it had been the trial court, but the point for decision is whether there is evidence on record [p.218] of [1966] GLR 214 which, if believed, would support the conviction. He finally submitted that there is overwhelming evidence on record to support the conviction.

We do not quarrel with the learned state attorney’s statement as it reiterates the correct principle of law. However his submission that there is abundant evidence to support conviction is unacceptable. On a charge of deceit of a public officer it is not sufficient for the prosecution to prove the falsity of the statement made to the public officer. They must also prove that the person who made the statement did not have good reason to believe the statement to be true. These, in our view, are two separate and distinct ingredients of the charge which require strict proof. It therefore affords an answer to the charge if from the whole of the evidence for the prosecution and for the defence it can be shown that there is good reason for the person charged to believe his statement to be true.

The learned trial district magistrate in his judgment, which at first sight appears to be well reasoned, arrived at the following conclusions:

“On the evidence as a whole, I find as a fact that there is no truth in the letter written to the Commissioner of Police by the accused and as rightly said by the police he deceived them and again I find as a fact that the accused could not do anything to substantiate or confirm the allegation in it. He himself admitted that if the third prosecution witness in fact gave this money to the fourth prosecution witness he could not say. I find the charge proved. I find accused guilty and convict him accordingly. I take a very serious view of this case. If the police acting on exhibit A had found something truthful in it, I am certain they would have had either the third prosecution witness or the fourth prosecution witness prosecuted, more particularly he being a public officer and the accused should have thought carefully about the step he was taking before he wrote exhibit A. The accused has a dispute with the third prosecution witness and it is nothing but spite and malice which made him write this damaging letter to the police.

If it is true that the accused had this information in November 1960, why did he not act on it at once rather than wait till after he has lost his case in that suit to the third prosecution witness to make this report? Again why is it that when he was making the reports as contained in exhibits B and C he never made mention of this £G10 in May 1962. This shows with what intent he wrote exhibit A in 1964. It was purely to put either the third prosecution witness or the fourth prosecution witness in some sort of [p.219] of [1966] GLR 214 trouble and since this has proved otherwise, then he must suffer the consequences.”

Apart from the passages quoted above there is no other passage in the judgment which can be considered as showing any other reason for the conviction of the appellant. This passage certainly supports the contention of the learned state attorney that the learned trial district magistrate believed the evidence of the third and fourth prosecution witnesses as against the appellant in respect of the statement that the third prosecution witness had given £G10 to the fourth prosecution witness to refrain from prosecuting her for the unauthorised construction of the cement block verandah, but nowhere in the judgment was any attempt made by the trial district magistrate to consider the issue as to whether there was any evidence to show that the appellant had any good reason to believe his statement to be true. The learned judge of the High Court did not also address his mind on this vital issue before he dismissed the appellant’s appeal. It is therefore the duty of this court to find out if there is such evidence on record. On the issue as to whether there is any good reason for the appellant to believe the allegation that £G10 was given by the third prosecution witness to the fourth prosecution witness, there is no doubt that the third and fourth prosecution witnesses in their evidence denied such allegation but such denial in the circumstances of this case is not unnatural because an admission by them would probably result in their being prosecuted by the police on a criminal charge and, in the circumstances, the learned trial district magistrate should not, in our opinion, have decided the case on that issue only but should have considered whether there is evidence to show that the appellant had good reason to believe the allegation, that the third prosecution witness had no building permit for the cement block verandah to be true. There is evidence by the fourth prosecution witness that he knew the rooms purchased by the third prosecution witness were made of swish and that in 1962 he got to know from a plan submitted to him by the third prosecution witness for a permit to erect a store that the verandah in front of the room was of cement blocks and he admitted that he never at any time asked the third prosecution witness who permitted her to put up the cement block verandah. These facts clearly show that the allegation of the appellant to the effect that the fourth prosecution witness had taken no action against the third prosecution witness for the unauthorised construction of the cement block verandah cannot be said to be without foundation. This fact together with the rest of the evidence would have assisted the learned trial district magistrate to find out whether or not the appellant had any good reason to believe his statement to [p.220] of [1966] GLR 214 the Commissioner of Police to be true and which aspect of the law he completely ignored. The ground of appeal by counsel should therefore succeed.

We would therefore allow the appeal, quash the conviction and sentence by the trial court and enter a verdict of acquittal.

DECISION

Appeal allowed.

S. K. T.