KWAKYE AND ANOTHER v. THE STATE [1965] GLR 647

DIVISION: SUPREME COURT

DATE: 12 NOVEMBER 1965

BEFORE: OLLENNU, AKAINYAH AND LASSEY JJ.S.C.

CASE REFERRED TO

Re Green (1881) 51 L.J.Q.B. 44; sub nom. Green v. Penzance (Lord) 6 App.Cas. 657; 45 L.T. 353; 46

J.P. 115; 30 W.R. 218, H.L.

NATURE OF PROCEEDINGS

APPEALS against convictions for conspiracy to steal and stealing.

COUNSEL

Victor Owusu for the first appellant.

Casely-Hayford for the second appellant. Gyeke-Dako, Senior State Attorney, for the respondent.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The indictment in this case charged the two appellants jointly with two counts, namely, conspiracy to steal and stealing. The amount involved is a huge sum of money, £G52,000 being a portion of an amount of £G83,000 which the complainant had won on a football pool. The assessors, with whose aid the trial was held, were unanimous in opinion that each of the appellants was guilty on each of the two counts. And, in his lengthy and well-considered judgment, the learned trial judge, Apaloo J.S.C., found each of the appellants guilty as charged and convicted them.

As the facts are set out clearly and at length in the judgment of the High Court, it is unnecessary to repeat them; therefore only such portions of them as are relevant for the determination of the issues raised in this court will be referred to in the course of this judgment.

In the first two grounds of appeal filed on behalf of the second appellant it was contended that the trial and conviction of the appellants were a nullity and that their committal by the district court for trial in the

High Court was itself a nullity, because no evidence was taken before the district court upon which that court could in law form the opinion that there was a case for the appellants to answer. There is no dispute that the procedure for committal as expressly laid down in Part IV, sections 181 to 190 of the Criminal

Procedure Code, 1960,1 for committal for trial for an indictable offence, was prima facie followed in this case, namely:

(1) the appellants were brought before the district court on indictment;

[p.649] of [1965] GLR 647

(2) the prosecution furnished the district court and each of the appellants with:

(a) a bill of indictment which complied with the provisions of sections 201 and 202 of the

Criminal Procedure Code, 1960, and which stated in writing the charges against the appellants;

(b) a summary of evidence which comprised a list of the witnesses whom the prosecution proposed to call at the trial and summary of evidence to be given by each witness and a list of the documents and things it proposed to put in evidence at the trial;

(3) the bill of indictment and summary of evidence were signed by the Attorney-General or some person authorised by him in that behalf; and

(4) the district court formed the opinion that there was a case for the appellants to answer and consequently committed them for trial.

The objection to the committal proceedings is that the district court failed to do what it has not been expressly prohibited by the statute from doing, namely, it failed to hear evidence of the prosecution witnesses on oath.

In support of these grounds, learned counsel for the second appellant directed attention to sections 181 and 184 (4) and (5) which are as follows:

“181. Where a person is before a District Court charged with an offence which is not being tried summarily there shall be a preliminary hearing of the case by the Court, at which the procedure laid down in this

Part shall be followed.” “184. (4) If the Court is of opinion that there is a case for the accused to answer, it shall commit him for trial to a Court (in this Part called ‘the trial Court’) of competent jurisdiction.

(5) If the Court is of opinion that there is not a case for the accused to answer, it shall discharge him but this shall not be a bar to a subsequent charge in respect of the same facts.”

Counsel emphasized the words “there shall be a preliminary hearing, of the case by the Court” appearing in section 181 and the words “if the Court is of opinion that there is . . .” appearing in section 184 (4) and

(5). He submitted that since the Criminal Procedure Code, 1960, altered the procedure for committal as it existed prior to 1 February 1961 the effective date of the Act., and since sections 181 – 190 of the Act do not expressly state that no evidence shall be

[p.650] of [1965] GLR 647 taken by the committing district court, and since, prior to 1961, it was imperative for a district court to take evidence on oath before it could validly commit an accused person for trial in the High Court, the principle of law that in interpreting a statute which alters existing law, a provision in the former law which is not expressly excluded by the amending act must be deemed to be unaffected by the new provision, must be applied in interpreting section 181 and 184 of the said Act 30. Therefore, since the present provisions for committal proceedings, hearing of evidence must be interpreted to have been intended as a condition precedent to committal. In support of this of Statutes (11th ed), pp. 78-79, where the learned authors, dealing with construction of a passage in an amending Act, which is susceptible of more than one meaning and presumption as to intention of the legislature with respect to these general passages, said:

“One of these presumptions is that the legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares either in express terms or by clear implication, or, in other words, beyond the immediate scope and object of the statute. In all general matters outside those limits the’ remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness, and to give any such effect to general words, simply because they have a meaning that would lead thereto when used in either their widest, their usual or their natural sense, would be to give them a meaning other than that which was actually intended. General words and phrases, therefore, however wide and comprehensive they may be in their literal sense, must usually, be construed as being limited to the actual objects of the Act. It would be ‘perfectly monstrous’ to construe the general words of the Act so as to alter the previous policy of the law. In construing the words of an Act of Parliament we are justified in assuming the legislature did not intend to go against the ordinary rules of law, unless the language they have used obliges the court to come to the conclusion that they did so intend.”

In our view, this principle of interpretation applies, as the quotation says, to general words capable of more than one interpretation and, also, to a statute passed to amend non-statute law, e.g. the common law or the customary law, or to amend an existing enactment as distinct from repealing it. The law as to repeal of statute law is

[p.651] of [1965] GLR 647 that where a statute is repealed and another statute is substituted therefor, every provision of the repealed statute ceases to have effect except such as are expressly saved by the substituting statute, or are expressly re-enacted by the new statute. By substituting new and different provisions for the old one, the legislature must be deemed to have intended that the provisions of the new enactment should supersede those in the repealed enactment.

The provisions for committal for trial before the High Court which existed prior to 1 February 1961, were under Part V of the old Criminal Procedure Code.2 The whole of the Code was repealed by the Criminal

Procedure Code, 1960, without any saving provision as regards taking evidence at committal. Therefore, the submission that that provision must be deemed to be still in operation and that it forms part of the expressed provisions in Part IV of Act 30 is misconceived.

Again, learned counsel for the second appellant as well as learned counsel for the first appellant submitted that when a statute states that a court should hear a case and make a decision on it, i.e. form an opinion, that provision to hear and decide imposes a duty upon the court to take evidence, and confers upon a party against whom the court may form the opinion or make the decision, a legal right to listen to whatever testimony may be made against him and to cross-examine thereon. Both counsel therefore submitted that to interpret the provisions of Part IV of Act 30 as excluding taking of evidence of witnesses for the prosecution and to say that a decision can in law be made by a judge without hearing evidence, is a violation of the inherent legal right of a citizen, and that a decision so made is null, void and of no effect.

Neither of the two experienced learned counsel who made these submissions has referred us to any authority on the point.

On the face of it, these submissions appear attractive but a little attempt to plumb them exposes them to be of shallow depth. There is no doubt that where a statute provides that a court should hear a cause or matter, it means that the court should hear and finally determine the particular cause or matter; this is so in both a civil and criminal cause or matter. For example, the defence in a civil case may, as provided by

Order 25, r. 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954,3 raise the point that a writ of summons, the endorsement thereon and the statement of claim in support thereof disclose no cause of action, and thereupon the court will be

[p.652] of [1965] GLR 647 in duty bound to hear and determine that issue and dismiss the action or make such other order therein as may be just: see Order 25, rr. 2 – 4. For the hearing and determination of that issue, the court need not take evidence, all the materials it must use for such hearing and determination are: the writ of summons, the pleadings in the case and submissions of counsel. The proceedings so conducted are in no way void.

Again, in a criminal cause or matter, a defendant may, as demurrer in bar to a charge or indictment, plead that the charge or indictment discloses no triable offence known to the law. The trial court upon such a plea, is bound to hear and determine the issue. For the trial of that issue, the court need not hear evidence; all that it must consider in forming its opinion are the charge or indictment, the section or sections of the

Code under which the offence is laid, and the submissions of counsel for the defence and the prosecution.

And these proceedings and the decision thereon are perfectly valid.

It follows that the submission that where an enactment confers jurisdiction on a court to hear and determine a cause or matter, i.e. to adjudicate upon a cause or matter it in all cases ipso facto imposes a duty upon the court to take evidence on oath and also implies a right in the parties to the cause or matter that the determination should not be made except upon evidence on oath is not the law of the land. On the contrary, the principle of law is that where an enactment confers jurisdiction on a court, the court in hearing and determining that cause or matter, must follow the procedure laid down by the enactment conferring that cause or matter, unless it is otherwise expressly provided. Lord Blackburn, in Re Green,4 stated the principle as follows:

“Unless there is something which by natural intendment, or otherwise, would cut down the meaning, I apprehend there can be no doubt that the legislature, when they direct a particular case to be heard in a particular Court, mean that it should be heard and finally disposed of there. And further, when they say that it is to be heard — (meaning, heard and finally disposed of) — in a particular Court, they mean, unless there is something in the context which either by natural interpretation or by necessary implication would cut it down, that in all matters ordinary which are not provided for that the Court is to follow its ordinary procedure.”

[p.653] of [1965] GLR 647

The district court, either under the Courts Ordinance5 now repealed, or under the Courts Act, 1960,6 is a statutory court having no inherent powers except those given it by the enactment. And, since proceedings for committal are special proceedings vested in the district court and not part of its general jurisdiction, the hearing and determination of those proceedings must be in accordance with the special procedure laid down in Part IV of the Courts Act, 1960, for the same. That procedure having been followed for the committal of the appellants for trial in the High Court, the committal was valid, and the High Court thereby became fully seised of the case; consequently the proceedings in the High Court culminating in the conviction of the appellants are valid.

For the first appellant, it was contended that:

(1) the matter which the trial judge accepted as implicating the first appellant in the conspiracy are equivocal and consistent with innocence of the appellant;

(2) the bank manager, the seventh prosecution witness, should have been treated as an accomplice in the crime, and there was no corroboration of the evidence he gave implicating the appellant in the crime; and

(3) the first appellant gave an explanation which is reasonably probable as to how he came by the large sums of money, over £G20,000, which he deposited in the bank and invested in property within a few days of the alleged offence and the trial judge erred in not accepting that explanation.

These, it was submitted, are defects in the judgment and have occasioned miscarriage of justice.

Here, we will set out the relevant facts. The complainant in the case is a labourer and a Nigerian of the

Yoruba tribe; though he has lived in a Twi area of Ghana for about ten years, he speaks no Twi, and does not understand any English either. In March 1964, he won an amount of £G83,000 on a football pool. The first appellant was a district commissioner in charge of the Akim Oda area where the complainant lives, and the second appellant a countryman of the complainant, is a well-known diamond magnate in the area.

It was through the appellants that the Football Pools Authority traced the complainant. The two appellants travelled to Accra with the complainant to meet the representative of the Football Pools

Authority from London to receive payment of the win. A crossed-cheque which the representative from

London brought to the complainant in payment of the win, was opened because the second appellant represented

[p.654] of [1965] GLR 647 to the Football Pools Authority’s representative that the winner had so requested. After the open-cheque had been delivered to the complainant, the first appellant took it from him and gave it to the second appellant, and the party returned to Akim Oda the same night.

The first appellant, by telephone, summoned the manager of the Ghana Commercial Bank, the seventh prosecution witness, to his house early in the morning of the following day, there delivered the cheque to him, and instructed him to get the whole amount ready for collection that morning. Later that morning, the appellants together with the complainant went to the office of the bank manager, the seventh prosecution witness, the money was then produced; the first appellant there represented to the seventh prosecution witness that £G52,000 out of the £G83,000 belonged to two Nigerians who had jointly staked with the winner, and requested the seventh prosecution witness to keep that amount for him in the bank, and made the seventh prosecution witness give him two temporary receipts — one for £G32,000 the other for £G20,000 to cover it. At about 11 a.m. the first appellant telephoned to the seventh prosecution witness to say that the second appellant was coming to collect the money; the second appellant turned up shortly afterwards in his car. The money, £G52,000, was put in the boot of the car, the seventh prosecution witness and his messenger joined the car and the money was delivered to the first appellant at a store near his office. Later in the day, the second appellant paid: £G20,000 to his account in the same bank, and that amount or a portion of it was identified by the bank cashier by the label and his initials on it, as part of the £G52,000 which the seventh prosecution witness had delivered that same day to the appellants.

As to the representation made to the Football Pools Authority’s representative which led to the opening of the cross-cheque, it was contended that the trial judge erred in regarding that as evidence against the first appellant in proof of the conspiracy, because, although he, the first appellant, was present, there was no proof that he understood the Nigerian language which the second appellant spoke to the complainant and which he, the second appellant, interpreted into English as a request by the complainant that the cheque be opened.

If that evidence had stood in isolation, there would be some force in the submission, but when taken together with other evidence, e.g. the evidence (i) that it was the first appellant who said that the winner wanted to draw the whole £G83,000; (ii) that the first appellant alleged that the complainant had said that

£G52,000 belonged to two other Nigerians who had staked jointly with him and that he, the first appellant, was charged with the responsibility for paying the

[p.655] of [1965] GLR 647 same to those two Nigerians; (iii) that the first appellant took two temporary receipts from the seventh prosecution witness in respect of the £G52,000; (iv) that the first appellant telephoned to the seventh prosecution witness to deliver the £G52,000 to the second appellant to be brought to him, and (v) that the

£G52,000 was accordingly delivered to the first appellant, the submission collapses completely.

Next is the submission that the conduct of the bank manager when he alleged that he and his messenger accompanied the second appellant to deliver the £G52,000 to the first appellant is so strange and unrealistic that the trial judge should either have rejected it in favour of the first appellant’s denial, or should have treated the seventh prosecution witness as an accomplice. We find nothing strange in the conduct of the seventh prosecution witness in accompanying the money for delivery to the first appellant.

The learned trial judge said that the seventh prosecution witness may be a fool, but he was satisfied he was not naive. We will go further and say that he was very wise and displayed a sense of responsibility.

After all, the first appellant who was holding his, the seventh prosecution witness’s receipt was the district commissioner, the local representative of the President of the Republic of Ghana; and when the second appellant came to collect the £G52,000, he did not bring with him those two receipts which the seventh prosecution witness had given to the first appellant; is it conceivable that the seventh prosecution witness would dare refuse to deliver the money to the second appellant when he had been ordered by the dynamic district commissioner to do so? Would it not be discreet in the seventh prosecution in those circumstances to go with another person and make sure that the money got safely into the hands of the first appellant? In our view, the learned trial judge was right in not regarding the seventh prosecution witness as an accomplice. He was further right in holding that the evidence of the sixth prosecution witness, the messenger, who is not alleged to be an accomplice or a tainted witness, is identical with that of the seventh prosecution witness and to some extent the same as the evidence given by the nineteenth prosecution witness so that apart from the evidence of the seventh prosecution witness there was abundant evidence which conclusively established the receipt of the money by the two appellants. As to the submission that the first appellant gave an explanation which is reasonably probable as to how he came by the large sums of money, some of which he deposited in the bank, others he invested in the purchase of buildings within a few days of the theft, and that the trial judge erred in not accepting that explanation as reasonably probable, we would point out that the learned judge gave careful consideration to those explanations but, for good reasons, found

[p.656] of [1965] GLR 647 himself unable to accept them. We do not see how these explanations can be said to be reasonably probable when they are so clearly contradicted by facts which are not in dispute.

For both appellants, it was submitted that the verdict is unreasonable having regard to the evidence. We do not agree with this. The evidence is so clear and overwhelming against the appellants that no reasonable jury can possibly come to any other conclusion than that the guilt of each of the appellants was established without a shadow of doubt in respect of each charge. As to the appeal of the second appellant against his sentence, we feel that in the special circumstances of the case, the sentence passed upon him is in no way excessive.

In the result, the appeal of each of the appellants must be dismissed and each is accordingly dismissed.

DECISION

Appeals dismissed.

A. K. F.