ASARE AND OTHERS v. THE REPUBLIC (NO. 2) [1968] GLR 50

DIVISION: COURT OF APPEAL (FULL BENCH)

DATE: 15 JANUARY 1968

BEFORE: OLLENNU, AZU CRABBE, APALOO AND LASSEY JJ.A. AND EDUSEI J.

NATURE OF PROCEEDING

OBJECTION to panel based on a statement in the report of a commission of inquiry presided by a judge on the panel. The facts are sufficiently set out in the ruling.

COUNSEL

Narayan (with him H. Darkoh) for the first appellant.

P. A. Adjetey for the second appellant.

B. J. da Rocha for the third appellant.

J.N. K. Taylor, Director of Public Prosecutions (with him Kisseih, Senior State Attorney) for the respondent.

JUDGMENT OF OLLENNU J.A.

Ollennu J.A. delivered the ruling of the court. Learned counsel for the second appellant, Henry Kwadwoe Djaba, objected to Apaloo J.A.

[p.51] of [1968] GLR 50 joining to constitute the bench for the hearing of the appeal. He grounded his objection upon two short passages which appear in paragraph 144 at p. 24 of the report of the commission of inquiry appointed to inquire into the Kwame Nkrumah Properties, popularly known as the Apaloo Commission after its chairman, Apaloo J.A. The passages referred to read: (i) “Djaba was himself, as is well known, recently convicted of a gigantic fraud” and (ii) “It is not difficult to discern from the attitude which he put up that he expected the ex-President to intervene to stop the prosecution which resulted in his conviction.” Counsel said he took the objection with great trepidation but in the interest of justice, for, he submitted, the words “recently convicted of a gigantic fraud” is likely to convey to the ordinary man, the impression that the learned judge has already formed the opinion that the conviction of the second appellant is right, therefore by his participation in adjudicating upon the appeal, justice would not be seen manifestly to have been done. Counsel added, however, that he has no doubt of the integrity of the learned judge, that he had known him always to be open to persuasion, and would readily review a decision of his if he is convinced that it is in the interest of justice so to do. For the respondent, learned Director of Public Prosecutions submitted that the objection is frivolous, and that when the Apaloo Report said that Djaba “was recently convicted of a gigantic fraud” it is merely stating a fact, and not recording an opinion on the correctness of the conviction.

We have no hesitation in saying that we do not see how an ordinary man can read into the words cited, the meaning which learned counsel for the second appellant places upon them. We have to credit the ordinary man with a certain amount of intelligence and appreciation; and we fail to see how a man with average intelligence could possibly think that a statement that Djaba was convicted of a gigantic fraud is tantamount to expression of opinion that Djaba has been rightly, properly or justly convicted of a gigantic fraud. Furthermore, the ordinary man would have to read the whole passage, and not pick out a few clauses out of their context if he should form an opinion which should be respected. Now, paragraph 144 at p. 24 of the report from which the passages were picked reads as follows:

“Henry K. Djaba, a one time director of the Farms Machinery Supplies however, gave evidence which suggests that some of the gifts which the Ex-President received were solicited by

[p.52] of [1968] GLR 50 methods which, if true, strike us as repugnant. Djaba was himself, as is well known, recently convicted of a gigantic fraud and, on the 20th April, 1966 when he testified before us, came straight from prison. It is not difficult to discern from the attitude which he put up that he expected the Ex-President to intervene to stop the prosecution which resulted in his conviction. He has made a number of allegations which we cannot regard as proved . We therefore feel it unsafe to place reliance on his evidence unless we have corroborative evidence of a convincing kind.” The average intelligent man who is concerned to see justice appear to have been done and not merely that it should be done, cannot in all fairness to himself, form, from the context of that paragraph, an opinion that the chairman of the commission which wrote the report, has so identified himself with the conviction that the determination of the appeal against that conviction by a bench of which he is a member will not make justice appear to have been done. On the contrary the fact which cannot fail to strike the reader of the passage is that the commissioners are saying in that passage that the fact that the second appellant has been convicted of a “gigantic fraud” should not be held against his credibility, and that if the evidence he gave before the commission on any issue finds corroboration from other evidence on the record, his evidence on that issue should be accepted. For that matter, the reasonable man who reads the report will not fail to be struck by the force of paragraph 146 which shows that in spite of the reference in paragraph 144 to gigantic fraud, the commission treated Djaba as a truthful witness and accepted his evidence on all but one on the five issues on which he gave evidence, and that they were obliged to reject his evidence on the fifth issue only upon the legal ground of want of corroboration. If the commission of which the learned judge was chairman accepted Djaba as a truthful witness when it was within their powers to reject all he said, what good ground will the reasonable man have in thinking that justice will not appear manifestly to be done if the chairman of that commission sits on this appeal in his capacity as justice of appeal? Here we may refer to the case of Amponsah v. Minister of defence [1960] G.L.R. 140, C.A. where it was held as stated in the headnote that:

“the fact that a judge had sat as a member of a court which adjudicated that the court had no jurisdiction in a particular class of case, did not disqualify him from sitting as a member of a court where the same issue of law was raised as a preliminary objection in an appeal coming within the same class.”

[p.53] of [1968] GLR 50

For these reasons the objection is overruled as without substance.

The appeal is to proceed.

DECISION

Objection overruled.

S. K. T.