Division: IN THE SUPREME COURT
Date: 20 NOVEMBER 1964
Before: OLLENNU, ACOLATSE AND SIRIBOE JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. The appellant gave evidence for the prosecution on 21 November 1963, in a case entitled State v. Fynn and Another,1 (hereinafter referred to as the substantive case). In that case two persons were indicted, one for abortion, and the other for abetting an abortion. It would appear that the evidence he gave closely followed the summary of evidence which the prosecution filed with the bill of indictment. The relevant portions of his evidence-in-chief are as follows:
“I know the second accused. He is my first cousin. I also know the first accused. She is a girl friend to the second accused. I remember June this year the first accused came to the second accused and told him in my presence that she felt sleepy and wanted him to give her medicine to stop this. Second accused therefore gave her medicine for this purpose. It is a super vitamin. He gave her four tablets. The second accused said the first accused should take two of the tablets in the morning and the remaining two the next morning. I was in my studio on the 21 June this year. The first accused called on me there. She came with her friend by name Twumasi. The latter came to collect photograph from me. The first accused again complained to me that she was still feeling weak. But before this, the second accused told me that if the first accused complained in his absence of further weakness I should give her more of the super vitamin tablets. The second accused was then going to Ekutuasi village to work. The tablets are cylinderical in shape [witness drew it] and are dark. It is not a tablet like exhibit E. Exhibit E is a little darker. I in fact asked the first accused how she felt. She said she still felt weak. I therefore gave the first accused six tablets of the super vitamin. I put it in a bottle and gave to her. The bottle is not like exhibit E. The super vitamin tablet was brought by the second accused.”
Under cross-examination he identified the super vitamin tablets; the said tablets were thereupon admitted in evidence without objection from the prosecution.
The case for the prosecution in the substantive case was that certain tablets known as Mensicol capsules, which contained abortifacient properties, must have been taken by the first defendant, a school girl, with the intent to cause her an abortion. Their case was based upon a presumption from the following facts: (1) the girl had a miscarriage; (2) eighteen Mensicol capsules were discovered by the police, scattered under a bed in a room which was occupied by the first defendant and her mother; and (3) the said eighteen Mensicol capsules were put into a bottle, and when the bottle was shown to the first defendant, who had then been admitted into hospital and operated upon, she said that those were the tablets she took. The trial judge, Apaloo J. (as he then was) in the course of his judgment, stated the issue on this point as follows:
“The prosecution contended that the pills which the first accused took are Mensicol capsules which contain abortifacient properties and that the first accused took in these pills for the purpose of procuring her own abortion and was successful in the result. The accused for their part say that the pills which the first accused took in are what was described as super vitamin tablets. They deny that they were intended to or were capable of causing abortion. They say they were intended to make good the deficiencies which caused general debility and sleepiness from which the first accused suffered and to give her strength and vitality. The accused say that there was no intention to cause abortion and that the baby was in fact welcome. On the issue thus joined, the questions which call for determination are firstly, which of the two pills did the first accused actually take and what was the object for taking it.”
On this issue, in the substantive case, as to which of the two drugs the first defendant must have taken, the prosecution themselves produced scientific evidence. It was the result of a chemical examination of a portion of the blood which was discharged by the first defendant in the course of her miscarriage, plus expert evidence given by a gynaecologist which proved positively that the drug taken by the first defendant was a super vitamin tablet and not a Mensicol capsule. However, the learned trial judge rejected this most vital piece of evidence, on the grounds, inter alia, (i) that it was inconclusive because it was not clear upon the evidence what date it was when the blood was examined in the laboratory, and (ii) that “I do not doubt that Osei Kwame [the appellant] committed perjury when he told me that the pills which he gave to the first accused were super vitamin tablets.” It was solely upon these grounds that, after the conclusion of the substantive case the learned trial judge called upon the appellant to show cause why he should not deal with him for committing perjury. The learned trial judge said:
“I am satisfied this witness has committed wilful and corrupt perjury in the witness-box. It seems to me this is eminently a case in which punishment should be meted out to him expeditiously. I therefore exercise the powers conferred upon me by subsection (1) of section 152 of the Criminal Procedure Code and sentence him to prison with hard labour for six months.”
It is quite clear from the judgment in the substantive case and the proceedings in the present case, that all that the learned trial judge meant when he said he was satisfied that the appellant had committed wilful and corrupt perjury is that (i) he did not believe the evidence of the appellant and of the defendants in the substantive case, that the drug taken was the super vitamin tablets, and (ii) that he preferred the presumption offered by the prosecution which had nothing to back it, to the direct evidence to the contrary corroborated in material particulars by the scientific evidence. Now the definition of perjury is given in section 211 of the Criminal Code, 1960.2 That section reads as follows:
“A person is guilty of perjury, if in any written or verbal statement made or verified by him upon oath before any Court, or public officer, or before the National Assembly or any Committee thereof he states anything which he knows to be false in a material particular, or which he has not 3[sic] reason to believe to be true.”
Three of the essential ingredients of the offence are: (i) taking an oath, (ii) the statement made or verified upon the oath is false, and (iii) the person who so made or verified the statement knows that it is false in a material particular, or has no reason to believe it to be true. If any of the essential ingredients is not proved, or is not shown to exist, the charge must fail.
The fact that a court does not believe a witness on any particular issue and rejects the evidence of that witness is no proof that what the witness said on the issue is false, and that it is within the knowledge of the witness that what he deposed to is false. If that were so, it would mean that every party who loses a civil or criminal case on facts, and his witness, would be guilty of perjury.
Again the powers given to a court under section 152 (1) (b) of the Criminal Procedure Code, 1960,4 to summarily commit a person to prison for perjury without formal trial are only intended to be employed in exceptional cases, that is, where a statement is glaringly false and where it is proved quite clearly by other evidence on the record that the witness swearing to it knows that his testimony is false, or that the witness swore to it recklessly without any reason to believe in its truth. The section does not dispense with the necessity for proof of the essential elements of the offence of perjury. Those powers are not intended to be used simply because a court disbelieves a witness, or prefers the testimony of one or more witnesses to the evidence given by another or other witnesses. If it were not so the section would become a most
dangerous and oppressive weapon in the hands of a court, to subject poor innocent persons (as has happened in this case) to serve the maximum sentence of six months, before it can be found on appeal that the powers have been wrongly exercised.
We will now apply the principles stated above to this case. We find that the statement allegedly made falsely on oath by the appellant was: “that pills he gave to the first accused are super vitamin tablets.” There is no evidence on the record which when considered in relation to it would show that the said statement is false, and that the appellant when making it knew the same to be false, or had no reason to believe it to be true. On the contrary, the scientific evidence which the prosecution themselves put before the court proved that the said statement must be true. The reasons given by the trial judge for rejecting the scientific evidence have been shown in the judgment of this court in the substantive case to be untenable and the learned judge erred in rejecting that evidence. But even if the learned judge was right in disbelieving the appellant he certainly erred in using the special powers given him in section 152 (1) (b)
of Act 30, when there was nothing apart from the opinion which he formed, probably upon seeing and hearing the witness and watching his demeanour, to show that the appellant did not speak the truth.
Learned senior state attorney submitted that the commitment of the appellant was right because the learned judge properly followed R. v. Otubu.5 We must point out that the case cited merely lays down the proper procedure to be followed by a court when dealing with a person summarily in pursuance of section 152 (1) (b) of Act 30; it does not deal with the law as to what must be proved or shown before a court can properly use the special powers given it by the section. Thus while the procedure followed may be in accordance with the law, the exercise of the powers may be contrary to the law, and that it is what has happened in this case. The commitment of the appellant as shown above is wrong.
It is for the reasons stated above that the commitment of the appellant, and the sentence passed upon him were quashed, and the appellant was acquitted and discharged.
DECISION
Appeal allowed.
Sentence quashed and appellant discharged.
T. G. K.
