FOLI VIII AND OTHERS v. THE REPUBLIC [1968] GLR 768

DIVISION: HIGH COURT, HO

DATE: 9 SEPTEMBER 1968

BEFORE: KINGSLEY-NYINAH J.

NATURE OF PROCEEDINGS

APPEAL against a decision of a circuit court convicting the appellants of the offences of conspiracy to commit a crime contrary to sections 23 (1) and 24 (1), and causing harm to a dead body contrary to section 285 of the Criminal Code, 1960 (Act 29). The facts are fully set out in the judgment.

COUNSEL

I. N. Wuaku for the appellants.

A. Djabatey, State Attorney (with him J. B. Mensah, Assistant State Attorney) for the Republic.

JUDGMENT OF KINGSLEY-NYINAH J.

At their arraignment and subsequent trial before his honour Festus N. Amarteifio, circuit judge, each and all of the defendants-appellants herein suffered jeopardy on charges of:

(1) Conspiracy to commit crime contrary to sections 23 (1) and 24 (1) of the Criminal Code, 1960 (Act 29);

(2) Causing harm to dead body contrary to section 285 of Act 29. The offence of conspiracy is committed under section 23 (1) of Act 29, “If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation . . .” In Halsbury’s Laws of England (3rd ed.), Vol. 10 at pp. 310-311, para. 569 there occurs the following treatment of the offence: [p.770] of [1968] GLR 768

“If two or more persons agree together to do something contrary to law, or wrongful and harmful towards another person, . . . the persons who so agree commit the crime of conspiracy . . .

The gist of the offence lies in the bare engagement and association to do an unlawful thing (that is, a thing contrary to or forbidden by law), whether that thing be criminal or not, . . .”

Turning now to the charge, we find the particulars of offence saying that the appellants “did agree and act together with a common purpose in committing a crime to wit ‘causing harm to a dead body’; . . . without lawful authority, did cause harm to the dead body of one Abla Eworho by burning the said dead body to ashes.” Under our law the offence of conspiracy consists both in “the criminal agreement between two minds,” as well also as in “the acting together in furtherance of a common criminal objective.” This offence, conspiracy, postulates therefore, an act of the will, or an intention.

Section 285 of Act 29 under which the appellants stood their trial and fell convicted is placed under the general heading of “PUBLIC NUISANCES.” It provides as follows:

“285. Whoever unlawfully hinders the burial of the dead body of any person, or without lawful authority in that behalf disinters, dissects, or harms the dead body of any person, or being under a duty to cause the dead body of any person to be buried, fails to perform that duty, is guilty of a misdemeanour.”

This is a statutory offence of absolute prohibition, as is also section 53 (1) of the Births, Deaths and Burials Ordinance, Cap. 80 (1951 Rev.), which provides that:

“No person shall cremate or be concerned in the cremation of a corpse except such cremation is carried out with the consent in writing of the Medical Officer of Health and in accordance with such directions as he may see fit to give and subject to such regulations as may be prescribed.”

Clearly, then, to set fire to a dead body, to burn it without the permission of the health authorities, is to do an unlawful act strictly forbidden by law.

After a very serious consideration of the submissions of both learned counsel in this appeal, and upon a careful examination of the facts and the evidence disclosed upon the record of proceedings, I am left in no doubt at all that the appellants were very righteously convicted by the learned trial circuit judge.

[p.771] of [1968] GLR 768

While the appellants admitted that they knew that dead bodies must be decently interned, their defence was in confession and avoidance. It was their contention that they never accorded the deceased, Abla Eworho, a decent burial because she had violated a custom to which she was fully subject; that she had not been purified before she died, and that in accordance with the dictates of that custom, of which she was fully aware, her corpse had to be burned. It is no defence, and the argument is untenable, that she knew the consequences of what she had done before her death and that she must, therefore, be deemed to have consented to her illegal cremation. Nor can it be countenanced that the head of Abla Eworho’s family and others gave their consent. I hold that in the peculiar circumstances of this case, whatever consent was given was void and of no effect. From the record of appeal it is clear this custom has been practised for very many generations and, as Togbe Kwame Foli VIII, the first appellant and Paramount Chief of Akrofu said: “I have been on the stool for fifteen years. During the period about nine bodies were cremated. The custom is a genuine one.

It is performed on my orders.”

Even so, it is a custom the continuance and performance of which must here and now cease and determine because it is at once repugnant and obnoxious. Although native custom is recognised by our laws, our courts have always discountenanced and refused to give support to any custom which is obnoxious, repugnant and contrary to good conscience and natural justice. The custom which all the appellants so heartily upheld at the trial is one such custom and I fully support the learned trial circuit judge’s outright condemnation and rejection thereof. I have very carefully examined the judgment of the trial court in the light of all the evidence adduced by the prosecution and I am quite satisfied that it is amply supportable. I am quite satisfied that the learned circuit judge gave the appellants a fair trial, and that he took a judicious and balanced view of all the facts and the evidence before arriving at his decision. I am furthermore satisfied that that decision of guilt was righteous and reasonable in all the circumstances of the case then before him. As to the submissions of learned counsel for the appellants, I hold that all the objections he has raised in this appeal are merely technical and procedural ones. I am satisfied and I therefore hold, that those objections never went to the root of the prosecution’s case to show that none of the appellants by their acts, their utterances, their statements and their conduct, had either desecrated, or [p.772] of [1968] GLR 768 caused to be desecrated and profaned, the dead body of the deceased Abla Eworho. Notwithstanding the fact that what the appellants did touching and concerning the corpse, was in conformity with their custom, nevertheless it was an utterly unlawful act done without any legal authority or consent. That act would never have been done if the appellants had not been in like mind to do it, and if they had not also, and furthermore, obtained the permission of the paramount chief, the first appellant herein, to set fire and burn to ashes the corpse, an act unauthorised and unlawful in its entirety. And it affords the appellants no defence, or excuse, that they did not know they were offending against the law of their own country. The legal maxim here germane and applicable is: Ignorantia juris neminem excusat. An examination of the case of R. v. Jacobs [1944] K.B. 417, C.C.A., clearly shows that the offence of conspiracy consists in the agreement to do an unlawful act without reference to the knowledge, on the part of the person standing trial, of its illegality. Under and by virtue of section 29 (1) of Act 29, “A person shall not be punished for any act which, by reason of ignorance or mistake of fact in good faith, he believes to be lawful.” Relating this subsection to the facts and the circumstances of this instant case, we find nothing on the record of appeal, or in learned counsel for the appellants’ submissions, which shows, convincingly, or at all, that the appellants genuinely believed that what they did, the burning of the corpse, was lawful. There is sufficient and compelling evidence on the record showing that if either Koto Awume (the first prosecution witness), and Jonathan Bekoe (the second prosecution witness) whose aunt the deceased was, or Florence Nana Adobea (the third prosecution witness), the Queenmother, had known that Abla Eworho, their relative would be burned, they most certainly would not have paid the fines imposed on them. The onus was on the appellants also to show that they had “good faith.” That also they failed to discharge.

Subsection (2) of section 29, also provides that: “A person shall not, except as in this Code otherwise expressly provided, be exempt from liability to punishment for any act on the ground of ignorance that the act is prohibited by law.” In such a case as this instant one, charging conspiracy, the appellants’ ignorance of a material fact is completely irrelevant in relation to the conspiracy charge, because the conspiracy touches, and relevantly concerns, a statutory, and not a common law, offence. An authority well in point is the case of R. v. Churchill (No. 2 [1966] 2 All E.R. 215, C.C.A. which lays down expressly that a person can be guilty of conspiracy to commit a statutory offence which is

[p.773] of [1968] GLR 768 absolutely prohibited, without having knowledge of either the existence of that statutory interdiction or bar, or else of a material fact constituting that offence. And the fact, as in this case, that the appellants had no intention, at the time of burning the corpse, of violating the law, cannot properly exclude them from the necessary consequences of having broken the law. Harm is unlawful which is intentionally caused. In the case before the trial court, all the evidence adduced supported the counts as charged and strongly pointed to the unchallenged fact that, by their very conduct and their acts, each and all of the appellants who said they were paying strict obeisance to their custom, meant and intended to cause harm to the dead body of Abla Eworho by setting fire to and completely burning it. That was an act of public nuisance and it clearly violated the spirit, the purpose and intendment of our statutes. In all the circumstances of this matter, therefore, I am quite convinced that the judgment of the trial circuit judge cannot be successfully impeached on any of the grounds so vehemently urged by learned counsel for the appellants. I am persuaded to this stand because I find that he not only did not by his finding of guilt, and his subsequent conviction, work any miscarriage of justice against any of the appellants, but also because I am satisfied that his evaluation of the facts and the evidence before him, and his application of the law, were unexceptionable. It is for these reasons, therefore, that I uphold and confirm the conviction and sentence recorded against each and all of the appellants herein, by his honour Judge Amarteifio at the Circuit Court, Ho, Volta Region.

In the result this appeal fails and it is accordingly dismissed. The sentences and convictions are to stand.

DECISION

Appeal dismissed.

S. K. T.