COURT OF APPEAL
DATE: 21 DECEMBER 1970
AZU CRABBE, JIAGGE AND ARCHER JJA
CASES REFERRED TO
(1) Henderson v. Henderson (1843) 3 Hare 100; 97 E. R. 313.
(2) R. v. Miles (1890) 24 Q.B.D. 423; 59 L.J.M.C. 56; 62 L.T. 572; 54 J.P. 549; 33 W.R. 334; 6 T.L. R. 186; 17 Cox C.C. 9, C.C.R.
(3) Connelly v. Director of Public Prosecutions [1964] A.C. 1254; [1964] 2 W.L.R. 1145; 128 J.P.
418; 108 S.J. 356; [1964] 2 All E.R. 401; 48 Cr.App.R. 183, H.L.
(4) Sambasivam v. Public Prosecutor, Federation of Malaya [1950] A.C. 458; 66 T.L.R. (Pt. 2) 254, P.C.
(5) R. v. Wilkes (1948) 77 C.L.R. 511.
(6) Mraz v. The Queen [No. 2] (1956) 96 C.L.R. 62.
(7) Brown v. Robinson (1960) S.R. (N.S.W.) 297.
(8) Bediako v. The State [1963] 1 G.L.R. 48, S.C.
(9) Vancouver General Hospital v. McDaniel (1934) 152 L.T. 56, P.C.
(10) Riddell (Potts) v. Reid [1943] A.C. 1 ; 111 L.J.P.C. 65; 167 L.T. 301; 58 T.L.R. 335; [1942] 2 All E.R. 161, H.L. (Sc.).
(11) Andrews v. Director of Public Prosecutions [1937] A.C. 576; 106 L.J.K.B. 370; 107 J.P. 386; 53 T.L.R. 663; 81 S.J. 497; [1937] 2 All E.R. 552; 26 Cr.App.R. 34; sub. nom. R. v. Andrews 156 L.T. 464; 20 Cox C.C. 576, H.L.
NATURE OF PROCEEDINGS
APPEALS against conviction entered by Edward Wiredu J. in the High Court, Accra of two appellants jointly charged under Act 121 with careless dissipation of public property. The facts are fully set out in the judgment of the court.
COUNSEL
Reindorf (Kudjawu with him) for the first appellant.
F. Asafu-Adjaye for the second appellant.
E. A. Kisseih, Senior State Attorney, for the respondent.
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JUDGMENT OF AZU CRABBE JA
Azu Crabbe J.A. delivered the judgment of the court. On 28th July 1969 the two appellants, who had been jointly charged with offences under section 1 of the Public Property(Protection) and Corrupt Practices (Prevention) Act, 1962 (Act 121), were convicted by Edward Wiredu J. and were each sentenced to six years’ imprisonment with productive hard labour. The first appellant was charged on five counts, and the second appellant alone was charged on the sixth count. The statement and particulars of offence in the first count, which, except for dates and amounts, were the same as in the other five counts, were in these terms:
“FIRST COUNT
STATEMENT OF OFFENCE
DISSIPATION OF PUBLIC PROPERTY THROUGH CARELESSNESS: contrary to section 1 of the Public Property (Protection) and Corrupt Practices (Prevention) Act, 1962.
PARTICULARS OF OFFENCE
HANS KOFI BONI on or about the 25th day of October, 1964, at Ho in the Volta Region by reason of a careless attitude to the affairs of the Industrial Development Corporation in Liquidation did so mismanage
the affairs thereof as to cause the dissipation of public property to wit £400 (N¢800.00).”
The evidence shows that the first appellant was appointed the Regional Commissioner for the Volta Region, and was stationed at Ho from 1961 to 1965. He was succeeded by the second appellant, who remained in office until the Kwame Nkrumah Government was overthrown on 24 February 1966. On 29 February 1968 the two appellants appeared before the High Court, Ho on the same charges upon which they were subsequently convicted and sentenced at the High Court, Accra, by Edward Wiredu J. At Ho, Kingsley-Nyinah J. gave a ruling in which he said:
“It is my view, therefore, that both defendants cannot, as now, be charged together and/or tried together on the very same charge sheet. I hold therefore that they must be charged separately and tried separately: See section 110 (1) (a) of Act 30.
In these circumstances, therefore, I order that each defendant herein be charged and tried separately upon separate charge sheets.
By reason of the foregoing, therefore, each defendant is hereby and accordingly discharged; section 232 (1) of Act 30.
The appellants were thereafter re-arrested, and on 25 March 1968 they were brought before Charles Crabbe J. (as he then was) at the High Court, Accra, jointly charged with practically the same offences as when they appeared before the High Court, Ho, on 29 February 1968. Counsel for the second appellant promptly raised an objection to the proceedings, and in his submissions to the court he said:
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“The first point I wish to make is that the ruling made by the High Court at Ho has not been carried out. They are charged before the court in the same way in which they were charged before the High Court at Ho. The law officers are flouting the law. We are under the rule of law and the law officers should not do that.”
The second point which counsel made was as to jurisdiction, and the third point was on the question whether the appellants had been properly joined for the trial.
With regard to the first point, Charles Crabbe J. said that it raised the “issue of estoppel by res judicata,” and that one had to consider how far the appellants were put in jeopardy before the High Court, Ho, in order to determine whether the plea could be sustained. The learned judge then observed as follows:
“From the argument of counsel for the second accused it does appear to me a preliminary point was raised as to the joinder of parties or joinder of action. The High Court at Ho, I am told, had come to the conclusion that the joinder whatever it was was bad and had therefore discharged the accused. If this assumption is correct one cannot seriously say that the accused have been put in jeopardy at the High Court at Ho and the plea of res judicata cannot therefore succeed before this court. The ruling of the High Court at Ho it is contended has not been carried out. Were the accused persons not discharged after the ruling of the High Court at Ho? If the answer to this is that they were not discharged then clearly the offence of contempt has been committed. If however, they were discharged then the argument based upon the rule of law must be advanced with some caution.”
Without giving any clear answer to either of the two questions which he had posed, the learned judge proceeded to consider the provisions of the Criminal Procedure Code, 1960 (Act 30), sections 109, 110 and 111, and ultimately he concluded that the joinder of the appellants was proper, because,
“all the offences for which they have been charged are founded on the same facts, that is to say, the appropriation of moneys belonging to the Industrial Development Corporation for the benefit of Madam Susana Boadi which moneys were to be used by her for the construction of a house for herself … I will therefore proceed with the case.”
The hearing of the case, however, continued before Edward Wiredu J., but the point of issue estoppel was not raised again, and the appellants were subsequently convicted.
Against their convictions the appellants have appealed to this court on a number of grounds, but the grounds which are worthy of serious consideration, and upon which both appellants rely, can be stated briefly as follows:
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(1) That the ruling of Charles Crabbe J. was null and void and of no effect since the judge had no jurisdiction to review and set aside the ruling of Kingsley-Nyinah J. on an issue that was at the time res judicata between the parties.
(2) That the trial was a nullity since the trial of the two appellants together was a deliberate and flagrant violation of the court’s ruling on 29 February 1968 and therefore an abuse of the process of the court and that Charles Crabbe J. should have rejected the indictment.
(3) That the joinder was bad in law.
(4) That the evidence discloses no proof of “careless attitude.”
(5) That there was no proof of “dissipation” as charged.
For the first appellant, Mr. Joe Reindorf, submitted that the issue as to joinder, having been decided against the Republic by Kingsley-Nyinah J. at Ho, it was not open to the Republic to re-litigate that issue, and that Charles Crabbe J. should have rejected the charge-sheet, and that he was not entitled to give a fresh and different ruling from that given by Kingsley-Nyinah J. on the same issue. A careful reading of the ruling of 30 November 1968 reveals that Charles Crabbe J. approached the matter as if it were a plea of autrefois acquit; for though he said the case raised an “issue of estoppel by res judicata,” and that “the essence of res judicata is that a final judgment given between the same parties or their privies on the same question by a court of competent jurisdiction is conclusive between the parties and cannot be raised again,” yet he went on to say that, “One has to consider that how far the accused persons were put in jeopardy before the High Court at Ho so as to determine whether the plea of res-judicata- which is after all what counsel for the second accused is raising-can be sustained.” It is not clear from the ruling how Charles Crabbe J. concluded this matter, but he seems to have assumed that if all that happened at the High Court, Ho, was a discharge of the appellants, then they could not have been in jeopardy, and that the plea of res judicata could not succeed before him in Accra.
With the greatest respect, we think that Charles Crabbe J. seems to have been confused about the doctrine of autrefois acquit and issue estoppel. One common characteristic of the two is that each can be pleaded in bar; and though both may be instances of res judicata, yet they are not the same. The classic exposition of the doctrine of res judicata is that propounded by Wigram V.C. in Henderson v. Henderson (1843) 3 Hare 100. He said at pp. 114-115:
“I believe I state the rule of the Court correctly when I say, that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which
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was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
In the civil law the doctrine of res judicata can be relied upon when the following conditions exist: (1) there must be the same parties, (2) suing in the same capacity, and (3) the issue before the court must be the same as that alleged to have been the subject of adjudication in previous proceedings.
The plea of autrefois acquit is grounded on the common law principle that no man shall be placed in peril of legal penalties more than once upon the same accusation — nemo debet bis puniri pro uno delicto. The principle was thus stated with clarity by Hawkins J. in R. v. Miles (1890) 24 Q.B.D.423 at p. 431, C.C.R.:
“[W]here a criminal charge has been adjudicated upon by a Court having jurisdiction to hear and determine it, that adjudication, whether it takes the form of an acquittal or conviction, is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offence . . .”
On a plea of autrefois acquit the question which calls for consideration is whether the crime charged in the later indictment is the same, or is substantially the same, as the crime charged in a former indictment, and it is immaterial that the facts under examination or the witnesses called in the later proceedings are the same as those in the earlier proceedings: per Lord Morris of Borth-y-Gest in Connelly v. Director of public Prosecutions [1964] A.C. 1254 at p. 1306, H.L. In that case Lord Devlin said at pp. 1339-1340:
“For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that with which he is then charged. The word ‘offence’ embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law.”
It will be seen, therefore, that autrefois can be successfully pleaded only by an accused person who can show that he was in jeopardy at the first trial. In this case Charles Crabbe J. overruled the submission mainly on the ground that the appellants were not in peril when they were discharged by Kingsley-Nyinah J. at Ho. But jeopardy is not an element in the doctrine of res judicata, for apart from the plea of autrefois acquit, the principle of res judicata applies, where the accused can show that a matter has already been decided in his favour by a court of competent jurisdiction. Thus in Sambasivam v. Public Prosecutor, Federation of Malaya [1950] A.C. 458, Lord MacDermott said at p. 479, P.C.:
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“The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim ‘Res judicata pro veritate accipitur’ is no less applicable to criminal than to civil proceedings.”
In Connelly v. Director of Public Prosecution [1964] A.C. 1254, H.L. the Sambasivam case was considered, and there at p. 1321 Lord Morris of Borth-y-Gest treated it as an instance of the application of the principle of res judicata to the criminal law. Lord Devlin, on the other hand, at p. 1341 regarded it as an extension of the principle of autrefois and the ground that the plea can arise “whenever, in order to prove the offence alleged on the second indictment, the prosecution is obliged to prove that the accused has committed an offence of which he has previously been either convicted or acquitted.” In this case the plea of autrefois acquit cannot avail the appellants because they were not acquitted.
We, however, think that Charles Crabbe J. was right when he said that the argument of counsel before him raised the issue of estoppel by res judicata. Issue estoppel generally arises where an issue has been determined between parties in civil proceedings and the same issue arises between the same parties in subsequent civil proceedings. Its application in the criminal law was explained by Dixon C.J. in the Australian case of R. v. Wilkes (1948) 77 C.L.R. 511 at pp. 518-519:
“Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoner … Such a question must rarely arise because the conditions can seldom be fulfilled which are necessary before an issue estoppel in favour of a prisoner and against the Crown can occur. There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding . . . Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autrefois acquit and autrefois convict. They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability. Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties.”
In Mraz v. The Queen [No. 2] (1956) 96 C.L.R. 62 at pp. 68-69 Dixon C.J. again said:
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“The law which gives effect to issue estoppels is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel, still less with the processes of reasoning by which the finding was reached in fact . . . It is enough that an issue or issues have been distinctly raised and found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding may be made by one of them against the other. Res judicata pro veritate accipitur . . . And . . . this applies in pleas of the Crown.”
And in Brown v. Robinson (1960) S.R. (N.S.W.) 297 at p. 301, (which was quoted in Connelly v. Director of Public Prosecutions [1964] A.C. 1254 at p. 1274, H.L.) Herron and Maguire JJ. also said: “Before issue estoppel can succeed in a case such as this there must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner … It depends upon an issue or issues having been distinctly raised and found in the former proceeding.”
It seems clear from the cases that in the criminal law issue estoppel arises where the same issue has been distinctly raised and found in the early proceeding between the prosecution and the prisoner. Issue estoppel operates only in respect of a finding or determination of fact on a particular issue in favour of the prisoner; it does not operate in favour of the prosecution. “Actual determination of issues is what is required for issue estoppel”: per Lord Devlin in Connelly v. Director of Public Prosecutions at p. 1345. And distinguishing issue estoppel from the doctrine of autrefois in Connelly v. Director of Public Prosecutions [1964] A.C. 1254 at pp. 1343-44, H.L. Lord Devlin said:
“The difference between issue estoppel and the autrefois principle is that, while the latter prevents the prosecution from impugning the validity of the verdict as a whole, the former prevents it from raising again any of the separate issues of fact which the jury have decided, or are presumed to have decided, in reaching their verdict in the accused’s favour. This form of estoppel is, of course, well known to the civil law where separate issues of fact are frequently decided by a judge or by a jury on a special verdict.”
In our view, the discharge of the appellants by Kingsley-Nyinah J. at Ho did not amount to a positive determination of a fact, and consequently we hold that issue estoppel could not avail them at their subsequent trial at Accra in the same indictment.
It was also contended by Mr. Reindorf that the trial was a nullity, since the trial of the two appellants together was a deliberate and flagrant violation of the ruling by Kingsley-Nyinah J. and that Charles Crabbe J. should have rejected the indictment. We think that the conduct of the prosecution in charging the appellants jointly and putting them before the High Court at Accra, after the High Court at Ho had ordered that
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they should be tried separately was a very reprehensible practice. It was an abuse of the process of the court, and we frown upon it. But the question is: Did Charles Crabbe J. have the power to reject the indictment? We think not. For as Lord Morris of Borth-y-Gest said in Connelly v. Director of Public Prosecutions (supra), at p. 1300, H.L.:
“[I]f a charge is preferred which is contained in a perfectly valid indictment which is drawn so as to accord with what the court has stated to be correct practice and which is presented to a court clothed with jurisdiction to deal with it and if there is no plea in bar which can be upheld the court cannot direct that the prosecution must not proceed. I agree with what was said by Lord Goddard C.J. in Reg. v. Chairman, County of London Quarter Sessions, Ex parte Downes ([1954] 1 Q.B. 1) that once an indictment is before the court the accused must be arrainged and tried thereon unless (on a motion to quash or demurrer pleaded) the indictment is held to be defective in substance or form and is not amended, or unless matter in bar is pleaded and the plea is tried or confirmed in favour of the accused or unless (after the indictment is found) the Attorney-General enters a nolle prosequi or unless the court has no jurisdiction to try the offence disclosed by the indictment.”
In this case there was a plea in bar that the joinder of the appellants in one indictment was contrary to the provisions of the Criminal Procedure Code, 1960 (Act 30), ss. 109, 110 and 111, as to joinder of charges and accused persons, but the plea was rejected. We have ourselves considered these provisions, and we are satisfied that Charles Crabbe J.’s conclusion on this aspect of the matter was right. Consequently, we think that he could not refuse to hear the case as presented by the prosecution. The prosecution has a right to present its case, and it is the duty of the court to hear it, unless there is some established principle of law which bars a trial.
Section 1 of the Public Property (Protection) and Corrupt Practices (Prevention) Act 1962 (Act 121), under which the appellants were charged reads:
“Any person who by reason of a careless or dishonest attitude to the affairs of the Republic, or of any State enterprise, statutory corporation, local authority, or registered co-operative so mismanages the affairs thereof as to cause the dissipation of or grave damage to public property shall be guilty of an offence . . .”
The case for the prosecution was briefly this: Sometime in 1961 the defunct Industrial Development Corporation decided to decentralise its loans scheme by transferring to each regional capital of the country the sum of N¢40,000.00 for the purpose of granting loans to assist people in small industries. Accounts were opened at the Ghana Commercial Bank branches in the regional capitals, and all moneys transferred from Accra headquarters were paid into them. The scheme was operated jointly by the bank and the various regional offices. In Ho in the Volta Region, two accounts were operated: (1) the main loans account, and (2) the “interest
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on the loans account.” The main loans account was made up of the capital and was operated jointly by the bank and the regional office, and it was from this account that loans were normally granted. The “interest on the loans account” was made up of interest charged on loans granted out of the main account. Interest was deducted at source and paid into this special “interest on the loans account.” Moneys in the “interest on the loans account” were used mainly to defray incidental expenses incurred in the loan transactions, and for the payment of staff. The interest was also used to augment the main capital. There is evidence that loans were normally granted from this “interest on the loans account,” and there was no regulation prohibiting this. Moneys were withdrawn from this account only on the personal instructions of the regional commissioner; but when money was required for the payment of staff salaries, the secretary to the regional commissioner had authority to issue instructions for the withdrawal from that account. Loans were granted upon an application first made to the office of the regional commissioner, and this was submitted to the regional commissioner for his approval. The regional commissioner had absolute discretion in approving or disapproving of an application for a loan.
The two appellants held the office of Regional Commissioner of the Volta Region at certain periods, as already stated earlier in this judgment, and the evidence is that during the tenure of their office, they each authorised the use of moneys in the “interest on the loans account” in financing the private building of a house for one Madam Susana Boadi the first prosecution witness, an activist of the disbanded Convention People’s Party. The relevant portions of Madam Susana Boadi’s evidence in this case read:
“… When I arrived at Kpandu I lived in a single room. Whilst at Kpandu I joined the local C.P.P. there as a staunch member. During my stay at Kpandu I was not well satisfied with my living accommodation so I contacted the ex-President to give me some help. I made the ex-President to understand that I was driven away because I followed him. I asked the ex-President to get me a building because I had nowhere to stay. 1 did not go to see the ex-President for a loan. I only requested him to get me a house by way of gift. I did not have any money to put up my own building at that time. When I went to see the ex-President he asked me whether I had a plot on which I could have the house built and I replied in the affirmative. The ex-President then asked me whether if he gave the money to me I could build but I said no so he told me to go and added that he would pass every information about the house through the first accused who was then the Regional Commissioner for the Volta Region. Some few months after my last meeting with the ex-President my house was erected for me. Some time after my visit to the ex-President I was invited by the first accused. When I called on the first accused he asked me whether I had made any request to the ex-President. I replied in the affirmative. The first accused further asked me whether
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I had land and to this also I answered in the affirmative. The first accused then told me that the ex-President had given him instructions about my building and that I should not worry for he was going to see to have my house built for me. The first accused then asked me to produce a plan of the building I intended to have put up for me. When I presented my plan to the first accused he told me that the construction cost of the building on my plan was going to be expensive and he invited me to see a house near by and to tell him if I liked that type. I then told the first accused that I wanted a house for my personal occupation and that he should use his own discretion to get me a suitable one. I was one day invited by the first accused and in his office he introduced one Mr. Tawiah to me as the contractor who was going to put up my building. [Tawiah identified]. I did not give any money to the first accused. The first accused did not tell me how he was going to build the house for me. I did not enter into any loan agreement with anybody concerning the building. I remember that after the contractor had been introduced to me I was made to sign a document which was alleged to be an agreement between myself and the contractor to the effect that the building to be built was mine. [Witness shown an agreement on which her signature appears which she identifies as the document signed between herself and the contractor] … After signing the agreement the building was started. I never contributed even a pesewa towards the building of the house. I do not know how the building was being financed. During the course of the construction of the house the first accused invited me and told me that he has been told by the ex-President to ask me to continue with the building myself as he, the ex-President, was no longer continuing financing the building of the house. At that time the house was already roofed remaining the fitting of the doors and windows. I asked for the reason given by the ex-President for taking that step and I was informed by the first accused’s secretary that the ex-President said I was a talkative. I decided to go and see the ex-President to verify the truth of what the first accused told me but I was unable to see him as all my attempts failed. The building is in the same condition as it was when the first accused told me that the ex-President was not going to finance the building again. The first accused was later transferred to Accra. When the first accused was transferred the second accused took over the position as the Volta Regional Commissioner. When the second accused assumed office I approached him and told him all about the building and took him to inspect the then condition of the building. The second accused then told me that he was going to think over the matter and to find some funds to continue with the building. As a result of what the contractor told me about his interview with the second accused I accompanied the contractor to Kpandu, and this was just about some few days before the coup, of February 1966. So nothing was done to the building because of the change of the Government.”
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Two senior civil servants, Mr. G. L. K. Mantey, the second prosecution witness, and Mr. W. T. Dove, the third prosecution witness, gave evidence for the prosecution. Both acted as secretary to the Regional Commissioner of the Volta Region at Ho; the former for the period 1961 to 1965 and the latter from 1965 to 1966. The cheques in respect of the various amounts which form the subject-matter of the charges were signed by them — Mr. Mantey signed the cheques for the amounts in counts one and two, and the cheques for the amounts in counts three to six were signed by Mr. Dove. The cheques in respect of the amounts in counts one to five were signed on the instructions of the first appellant, and that in respect of the amount in count six was signed on the instructions of the second appellant. All these amounts were paid to a building contractor, one Theophilus Tawiah, who also gave evidence for the prosecution, and admitted the receipt of all the amounts stated in the charges.
Theophilus Tawiah entered into an agreement (exhibit G) with Madam Susana Boadi, and the preamble to this agreement reads:
“AGREEMENT MADE the 19th day of October, nineteen hundred and sixty-four between Susana Buady [sic.] on behalf of the Government of Ghana (hereinafter called the ‘Employer’) of the one part and T. Tawiah (hereinafter called the ‘Contractor’) of Ho of the other part.”
This agreement was signed by the parties and also by the first appellant as a witness. No doubt this is a queer sort of agreement, but it was, nevertheless, an agreement to build a house for the Government of Ghana. It ought to be noted that the agreement (exhibit G) was produced from the custody of the prosecution.
Both appellants gave evidence on oath. The gist of the first appellant’s defence was that he caused the Industrial Development Corporation funds under his management to be used for the building on the instructions of the ex-President, Dr. Kwame Nkrumah; and that the moneys so used were to be treated as loans to be repaid by him, the ex-President, after the completion of the building. This is part of what the first appellant said in his evidence:
“When I returned to the country I was invited to Accra by the ex-President. I came down to see him with Mr. Kpatakpa. When we arrived the ex-President told me that when I was out of the country the first prosecution witness came to see him with one Mrs. Senanu and complained about her building. I then drew the attention of the ex-President about the funds he promised to release for the putting up of the building. He then told me that he had caused the I.D.C. to transfer sums of money to be put at the disposal of the regional commissioners for loans. He then told me to go and use this amount to finance the building for the first prosecution witness as a gift. The ex-President added that after completing the building a full bill representing the amount spent on it should be sent to him to enable him to reimburse the office of the amount taken out of the loan
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account. We therefore left for Ho. The next morning I told Mr. Kpatakpa to come with the first prosecution witness to see me at my office. The first prosecution witness and Mr. Kpatakpa therefore called out at my office the following day as requested. When they arrived I told the first prosecution witness that the ex-President has authorised me to use our funds in the office to finance her building and so she should provide me with a plan of the building she intends to put up.”
According to the first appellant, the ex-President, who had subsequently disapproved of the conduct of Madam Susana Boadi, informed him that he was no longer going to make himself responsible for payment of the building, and that Madam Susana Boadi be requested to produce sureties for the execution of a loan agreement. The first appellant said that he communicated this information to Madam Susana Boadi and instructed Mr. W. T. Dove, the secretary to the regional commissioner, not to pay any more money out of the “interest on the loans account” for the purpose of the building. Not long afterwards, the first appellant was transferred from Ho. The evidence of the first appellant was supported to the hilt by his only witness, Kofi Kuah Kpatakpa.
The defence for the second appellant was simple. He said on oath that he received an application from Madam Susana Boadi for a loan of N¢400.00 to complete her building. The application was submitted through Mr. W. T. Dove in the normal way and he approved it. The second appellant further relied upon a statement which he made to the police on 18 March 1968 during the investigation into this case. This statement was tendered in evidence and marked exhibit D. and in view of the way the learned trial judge dealt with the defence of the second appellant, we reproduce in full this statement, which reads:
“If this charge is in connection with a loan which one Susana Boadi of Ho applied for through the Regional Office Ho, then I say when I was Regional Commissioner of the Volta Region one Madam Susana Boadi of Ho applied through me and in conformity with an existing practice in the region for a loan of £G200 (Two hundred pounds) to complete the construction of her building. I approved the application. I then left for Accra and I have since then not returned to Ho. I do not know whether the money was paid or not.
(Sgd.) J. Kodzo.”
The learned trial judge reviewed the whole evidence, and then said:
“On the particulars of the offences as contained in all the counts, for the prosecution to succeed it is essential that each of the following elements must be proved beyond reasonable doubt: (a) That each of the accused persons was at one time in charge of the affairs of the I.D.C. now in liquidation in the Volta Region (i.e. during the dates named in each of the counts); (b) That each of them during these particular periods was guilty of careless attitude towards the affairs of the I.D.C.; (c) That each of them during the periods that he was
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in charge of the I.D.C. affairs mismanaged same; and (d) That such mismanagement did in fact result in the dissipation of the various sums of moneys alleged in the particulars.”
In our view the learned trial judge has, in the foregoing passage, accurately stated the essential ingredients of the offence for which the appellants were tried.
As regards the first ingredient of the offence it is really common ground that the first appellant was in charge of the affairs of the Industrial Development Corporation (now in liquidation) in the Volta Region on the dates specified in counts one to five. This goes also with the second appellant in respect of count six.
Before considering the other ingredients of the offence, the learned trial judge posed to himself certain questions, as can be observed from the following passage of his judgment:
“The question now to be decided is how far in dealing with the interest loans account as described the accused persons can be justifiably said to have mismanaged the affairs of the I.D.C. with a careless attitude and how far such mismanagements have resulted in the dissipation of the I.D.C. funds.
To answer these questions it will be necessary to find out the meanings of the various words used in the particulars of the offences. The words are (a) ‘carelessness,’ and (b) ‘dissipation’.”
He then considered in some detail the meanings which counsel attributed to these two words, and he came to the conclusion that the word “careless” should be given its natural meaning in the Concise Oxford Dictionary, which defines “careless” as “without care” or “unconcerned.” In the view of the learned trial judge “careless” in section 1 of Act 121 does not bear the same meaning as “negligence” in the Criminal Code, 1960 (Act 29).
He brushed aside a submission by counsel for the appellants that carelessness in section 1 of Act 121 connotes “gross negligence,” and said, “I therefore hold that in the absence of any definition the ordinary meaning of the word ‘careless’ should apply to this case.” And with regard to “dissipation” the learned trial judge said:
“On the word ‘dissipation’ there was a consensus of opinion on the application of its ordinary and natural meaning. All the dictionary meanings including the Concise Oxford Dictionary and The Shorter Oxford Dictionary gives the meaning as ‘to squander,”thrown away’ and in relation to funds or money as ‘wasteful expenditure.’ The word ‘dissipation’ standing in isolation gives little assistance to this case and I am of the view that it must be viewed in this context in relation to the purpose for which the money was intended. So that if money intended to be granted as loans are gifted away that conduct amounts to a waste of the loans money.”
In the opinion of the learned trial judge the evidence was unclear as to the particular type of enterprise which qualified for a loan, and he held,
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therefore, that “the purpose of the scheme was for the granting of loans generally on the application to the regional office and its approval by the regional commissioner.” After this holding the learned trial judge said, “Now the question here is: Did the first prosecution witness request for a loan? The obvious answer is in the negative, both during the tenure of office of the first and the second accused persons. Exhibit G shows that the whole transaction was shrouded with secrecy.” In relation to the second appellant the learned trial judge later observed:
“The second accused must suffer the same fate as the first accused, for his defence that there was an application by the first prosecution witness is not supported by known and accepted facts. The first prosecution witness as I have noted earlier was never asked about her having put in any application; nor was the third prosecution witness who issued exhibit F questioned about the application. The evidence of the first prosecution witness shows that she never applied for a loan.”
In our view the learned trial judge grossly erred in his approach to the defence of the second appellant, for so far as this appellant is concerned evidence was indeed given to contradict the evidence of Madam Susana Boadi that she never applied formally for a loan. The evidence of an accused is not to be rejected, merely because it is not supported by some other evidence. A trial judge is under a duty to consider the evidence on behalf of the defence, however fantastic, alongside that for the prosecution, and he cannot reject the defence evidence unless he is satisfied beyond reasonable doubt that the prosecution’s story is the true version. True, Madam Susana Boadi and Mr. T. W. Dove were not asked by counsel for the second appellant about an application for a loan; but there was no onus on the second appellant to prove his innocence. From his statement of 18 March 1968 (exhibit L), the prosecution knew in advance what his defence would be, and it was open to them to rebut it before they closed their case. When Mr. T. W. Dove the third prosecution witness gave evidence of the procedure leading to the granting of a loan, he said in his evidence:
“When a person wants a loan, he puts in an application to that effect. The regional commissioner then considers the application and has an absolute discretion to approve or disapprove. When an application is approved it is minuted by the regional commissioner to the secretary who notifies the bank in writing and the applicant is advised to contact the bank.”
Indeed, Mr. Dove signed the cheque, (exhibit F) for N¢400.00 on the instructions of the second appellant. And yet prosecuting counsel did not address a single question to him whether an application was submitted for a loan on behalf of Madam Susana Boadi. The learned trial judge seemed to think that there was an onus on the second appellant to show that an application was made in the normal way. With respect, we think
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he was wrong. In our view this is a case in which the maxim omnia praesumuntur rite esse acta applies. This presumption of regularity was not displaced by the prosecution in this case. The second appellant himself gave evidence on oath and repeated that the amount of N¢400.00 was a loan to Madam Susana Boadi, which he approved after an application for that purpose had been submitted to him. He said that he had given the same evidence before the Apaloo Commission which probed the property and assets of the ex-President. It is very significant that the second appellant’s evidence on this vital issue was not challenged on cross-examination. The law is that if on a vital issue in the case the prosecution intend to ask the court or jury to disbelieve the evidence of a witness for the defence, it is right and proper that the witness should be challenged when in the witness-box, and failure to do this may be held to imply acceptance of his evidence: see Bediako v. The State [1963] 1 G.L.R. 48, S.C. We think that on the evidence as a whole the learned trial judge was not justified in rejecting the defence of the second appellant, for as Lord Alness said in Vancouver General Hospital v. McDaniel (1934) 152 L.T. 56 at pp. 57-58, P.C. “A defendant charged with negligence can clear [himself] if he shows that he has acted in accord with general and approved practice.” Besides we do not think that the absence of a formal application by Madam Susana Boadi is fatal to the case of the second appellant, for the granting of loans, as the evidence unmistakably shows, was a matter entirely within the absolute discretion of the second appellant, and we are unable to understand how the second appellant could be guilty of carelessness by departing from a procedure which he had prescribed for his own convenience. We are satisfied that the prosecution failed to prove either careless attitude in the second appellant or mismanagement of the affairs of the Industrial Development Corporation, and that his conviction on count six ought not to stand.
We will now deal with the first appellant. With regard to the case against the first appellant the learned trial judge made three main findings: (1) that he paid out of the “interest on the loans account” instead of the main account as directed by the ex-President; (2) that his conduct in this regard was wanting in care when he authorised payment out of funds intended to be granted as loans for the purpose of financing the private building of Madam Susana Boadi, without ensuring that there was a way to recover the moneys; and (3) that there was a loss to the Industrial Development Corporation both in the nature of capital and interest, and in this regard he mismanaged the affairs of the Industrial Development Corporation resulting in the dissipation of N¢4,700.00 the property of the Industrial Development Corporation.
With regard to the first finding the learned trial judge made a further finding that in managing the affairs of the Industrial Development Corporation the first appellant was not responsible to or answerable to the ex-President, and that any directives by the ex-President would not avail the first appellant when called upon to account. If this view of the learned trial judge is right then we may ask: To whom then was the first
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appellant answerable? The ex-President was the head of the Government of Ghana, and the first appellant was the representative of the government in the Volta Region. The Industrial Development Corporation was established by the government, and, as the evidence of Mr. Joseph Therson-Cofie the eighth prosecution witness shows, it was the government that advanced money to the corporation to be used for the purpose of the loans scheme. In these circumstances, we are definitely of the opinion that the learned trial judge was wrong in holding that the first appellant showed a careless attitude in making payments on the directions of the ex-President. The first appellant had absolute discretion in the granting of loans from the Industrial Development Corporation funds, and in our opinion he could not be accused of a careless attitude if, in his discretion, he decided that payment under the loans scheme should be made either from the main account or the “interest on the loans account.”
With regard to the second finding by the learned trial judge it has been contended by Mr. Reindorf, counsel for the first appellant, that the evidence discloses absence of “careless attitude” in the first appellant as charged; it rather discloses in fact the very opposite, in that the first appellant only gave out the moneys in question upon being assured that it was to be regarded as a loan repayable by the ex-President, as soon as the building was completed. Counsel again contended that the evidence further discloses an absence of “careless attitude” in the first appellant, in that, as accepted by the learned trial judge, he refused to give any more money as soon as it became apparent that Madam Susana Boadi was not prepared to produce security, as ordered by the ex-President, for the moneys already paid out and for any future payments. The view of the learned trial judge on this aspect of the matter can be gleaned from the following passage in his judgment:
“Moreover if the statement of the first accused that he gave instructions to the third prosecution witness not to issue more cheques from the interest account to the sixth prosecution witness when the ex-President instructed him to treat all moneys already spent on the building as a loan to the first prosecution witness is accepted and I see no reason to reject that evidence since the evidence of the first prosecution witness, the sixth prosecution witness and the first defence witness support this aspect of the matter to some extent . . .”
Having regard to the view earlier expressed by the learned trial judge that the purpose of the loans scheme was for the granting of loans generally, we are unable to appreciate how the first appellant could be guilty of a careless conduct if he at first treated the moneys paid toward the building as a loan to the ex-President personally, and then subsequently asked Madam Susana Boadi to provide her own security for the moneys paid on her behalf. Moreover, we think that by the execution of exhibit G, the first appellant ensured that the ownership of the building was vested in the Government of Ghana. If, having regard to all the evidence, and the acceptance by the learned trial judge of the evidence relating to the conduct of the first appellant when Madam Susana Boadi refused to
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furnish security for the loan, the first appellant cannot be held to have showed a careful attitude, then we do not know what carefulness means.
In our opinion the first appellant could not be held to have shown a careless attitude towards the affairs of the Industrial Development Corporation, either because he acted on the directives of the executive Head of the State, whose directives he was bound to obey, or because he caused payments to be made from the “interest on the loans account” instead of from the main account, both accounts constituting a fund under his absolute control. With respect, we think that the learned trial judge was wrong in holding that the first appellant showed a careless attitude by his failure to follow a procedure he had devised for his own convenience in a matter in which he had absolute discretion.
Before we leave this aspect of the case we would like to advert to the view expressed by the learned trial judge that the word “careless” in section 1 of Act 121 should be given its ordinary meaning. It seems to this court that the learned trial judge equated carelessness under the Act with that in the civil law. With respect, we think that he was wrong. Section 1 creates a criminal offence, which is a second degree felony with the irreducible minimum sentence of five years’ imprisonment with productive hard labour. Where a person is convicted under this section the court sentencing him may order the sale of his property sufficient in value to make up the loss of the amount of the public property involved in the commission of the offence. It is beyond argument, that any offence which attracts such rigorous penalties must be established by proof of a high degree of carelessness. Careless attitude or conduct is failure to take reasonably care, which the law designates as negligence. “[N]egligence,” says Lord Porter in Riddell v. Reid [1943] A.C. 1 at p. 31, H.L.(Sc.), “is the failure to use the requisite amount of care required by the law in the case where a duty to use care exists.” Section 1 of Act 121 imposes a duty of care in the management of the affairs of the Republic and other corporate bodies. A breach of that duty of care which results in damage to public property constitutes a crime punishable by imprisonment.
The test of responsibility for negligence, i.e. careless conduct or attitude, is not the same in criminal proceedings as it is in civil proceedings. In civil proceedings the test of the defendant’s liability to pay compensation for the damage caused by his careless conduct, is whether he did or omitted to do something, which in the circumstances, would not have been done by a reasonable man. And if by the application of this test, his conduct is found to be careless, it is no defence that he acted to the best of his judgment. In criminal proceedings, on the other hand, the test is whether the prisoner was guilty of such culpable negligence as amounted to criminal misconduct deserving of punishment. The criminal law recognises degrees of negligence, and therefore, a high degree of culpable negligence must be shown in the prisoner in order to establish his guilt. This has been made clear by Lord Atkin in the famous case of Andrews v. Director of Public Prosecutions [1937] A.C. 576, H.L. where he said at p. 583: “Simple lack of care such as will constitute civil liability is not
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enough: for purposes of the criminal law there are degrees of negligence is required to be proved before the felony is established.” In Riddell v. Reid [1943] A.C.1 Lord Porter also said at p. 31; “A high degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. An obvious illustration is the difference between the degree of negligence in accident cases required to prove the crime of manslaughter and that sufficient to create civil liability.”
We think it would be harsh and unjust that a person should be made to suffer the serious consequences of a conviction under section 1 of Act 121 for mere careless conduct. The combination of the words “careless or dishonest attitude” suggests that the liability of an accused person to punishment under the section depends upon the existence of mens rea.
With regard to the third finding, counsel for the first appellant has contended that there was no proof of “dissipation”, because: (a) the evidence clearly shows that the payment made by first appellant constituted a perfectly legitimate loan to K. Nkrumah aforesaid, against whom a cause of action now exists for the recovery thereof; (b) it was proved in evidence that the subject-matter, the money paid out by the first appellant, was not “dissipated,” i.e. destroyed, lost or wasted, but was merely converted into another form of property, i.e. a house; (c) it was not proved that the said subject-matter was irrecoverable by the true owners thereof by means of re-conversion into its original form of money; and (d) the evidence showed clearly that the said subject-matter was recoverable, since the liquidator of the Industrial Development Corporation, as the true or beneficial owner thereof, could and still can take steps to follow and claim the property in the new form it has assumed in the hands of a volunteer who had given no consideration therefor and who was and still is therefore, a constructive trustee thereof, having received it from an express trustee thereof, namely the first appellant.
What is dissipated is irrecoverable in any shape or form; it is completely lost. In this case, can it be said that the money expended on the building is irrecoverable? Certainly not. The money was converted into a building, and exhibit G makes it abundantly clear that the building belongs to the government. And if the money expended on it was to be treated as a loan to Madam Susana Boadi, as indeed the first appellant insisted it should be so treated, interest would, in accordance with the normal practice, have been charged on the loan. How then could the Industrial Development Corporation have incurred a loss both in the nature of capital and interest, as the learned trial judge seemed to think, albeit erroneously?
We have read the evidence on record with great care, and it is sufficient to say that we find ourselves in entire agreement with the submissions of counsel for the first appellant. In our view the evidence does not establish that there had been any dissipation of public funds. It is one thing
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to misapply funds, and quite another to dissipate funds so as to cause total loss. We have come to the conclusion that the prosecution failed to discharge the onus of proving “careless attitude” in the two appellants and of dissipation of funds, and it was for these reasons that we allowed the appeal of both appellants, who were accordingly acquitted and discharged.
DECISION
Appeals allowed.
Appellants acquitted and discharged.
J. D.
