MENSAH GYIMAH v. THE REPUBLIC [1971] 2 GLR 147

DIVISION: IN THE COURT OF APPEAL

DATE: 28 MAY 1971

BEFORE: APALOO, ANIN JJ.S.C. AND ARCHER J.A.

CASES REFERRED TO

(1) State v. Boahene, Supreme Court, 15 April 1965, unreported; digested in (1965) C.C. 125.

(2) Knupffer v. London Express Newspapers Ltd. [1944] A.C. 116; [1944] 1 All E.R .495; 113 L.J.K.B. 251; 170 L.T. 362, H.L.

(3) Eastwood v. Holmes (1858) 1 F. & F. 347; 175 E.R. 758.

(4) Ako Adjei v. R. (1951) 13 W.A.C.A. 253.

(5) Wallace-Johnson v. R. (1936) 5 W.A.C.A. 56, P.C.

(6) R. v. Adade [1959] G.L.R. 365, C.A.

(7) R. v. Sarpong [1959] G.L.R. 383, C.A.

(8) Kotey v. The State [1963] 1 G.L.R. 41, S.C.

(9) Asare (F.Y.) v. The State, Court of Appeal, 11 October 1968, unreported; digested in (1968) C.C. 63.

(10) State v. Adjei, Court of Appeal, 11 December 1967, unreported.

(11) The Service Press Ltd. v. Attorney-General (1952) 14 W.A.C.A. 176.

(12) R. v. Cohen and Bateman (1909) 2 Cr.App.R. 197, C.C.A.

(13) R. v. Ologen (1935) 2 W.A.C.A. 333.

(14) Hudston v. Viney [1921] 1 Ch. 98; 90 L.J.Ch. 149; 124 L.T. 305.

NATURE OF PROCEEDINGS

APPEAL against the conviction and sentence for sedition and negligent libel of the Border Guards arising from an article in the Pioneer written by the appellant. The facts are fully set out in the judgment of Anin J.S.C.

COUNSEL

Dr. I. L. Ohene Djan for the appellant.

F. P. Sarkodee, Senior State Attorney, for the respondent.

JUDGMENT OF ANIN J.S.C

Anin J.S.C. delivered the judgment of himself and Apaloo J.S.C. At the Ashanti Criminal Session held at the Kumasi High Court on 2 August 1969 before Annan J. (as he then was) sitting with the aid of assessors, the appellant was found guilty of both offences of negligent libel, contrary to section 112 (1), and of sedition contrary to section 183 (3) of the

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Criminal Code, 1960 (Act 29). He was convicted and sentenced to a fine of N¢50.00 or three months’ imprisonment with hard labour on count one, and to a fine of ¢100.00 or six months’ imprisonment with hard labour on count two, both sentences to run concurrently. From this conviction, the appellant has appealed to this court on no fewer than eight grounds of appeal.

The particulars of the said offences as appearing on the bill of indictment are as follows: “Kwaku Attakora Mensah Gyimah on 29 February 1968 at Kumasi in the Ashanti Region unlawfully and negligently published in a newspaper known as the Ashanti Pioneer defamatory matter concerning Border Guards in Kumasi, in the form of an article entitled Topics of the Moment: Border Guards Scandal, containing the following:

‘Our Border Guards who have been parading through the Kumasi streets see the Zambrama men carrying watches, perfumeries of all kinds from the French-speaking neighbouring countries. Also they see Rothmans and Players cigarettes which have found their way illegally into this country without question. But they have been making scapegoats of men like Boham who started life as small shirts tailor in the same shop he started trading some sixteen years ago.

Policemen, both plain and uniformed, drink free from Boham. Around the area are other traders whose commodities do not differ from Boham’s. But our Border Guards pass with their heads down and eyes closed [meaning that Border Guards in Kumasi agree to permit their conduct as public officers to be influenced by the gift of free drinks from Boham]…’

Kwaku Attakora Mensah Gyimah on 29 February 1968 at Kumasi in the Ashanti Region published in a newspaper known as the Ashanti Pioneer a seditious writing about Ghana Border Guards in the form of an article entitled Topics of the Moment: Border Guards Scandal, containing the following false accusation of misconduct in the official duties of Ghana Border Guards made recklessly: ‘The information just received supported by the influx of ‘French manufactured’ prints in Kumasi and other places, is that the Border Guards know the movements of trucks carrying prints. They weigh between 6-7 tons and carry between 18 and 20 bales containing prints. The bargain, therefore, between the Border Guards and the traffickers is N¢2 on each print; therefore for each bale that passes the smuggler on border pays 340 New Cedis; so that a truck carrying 20 bales readily pays N¢6,800.00 to the Border Guards. Drinkables like whisky (Scotch brands) old Tom and Dry Gins over there are cheap, so instead of taxes going to the Government, Border Guards enrich their pockets’.”

The charges in this case arose out of a publication by the appellant in the Pioneer newspaper of 29 February 1968 entitled Topics of the

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Moment: Border Guards Scandal. The publication was put in evidence as exhibit A. The appellant admitted authorship of the article in question, and its publication in the Pioneer, as alleged (vide exhibit D: the appellant’s cautioned statement of 7 March 1968). The prosecution called a total of 31 witnesses (all but three of whom were members of the Border Guards) to establish the falsity of the allegations contained in the said article (exhibit A). Drawn from Border Guards stations and posts scattered throughout Ghana, these witnesses in turn, testified about their shock and dismay on reading exhibit A which they each considered to be grossly false and defamatory. They denied in particular the distinct allegation that they collect N¢2 bribe from smugglers for each print allegedly permitted to be smuggled through the borders. Those stationed in Kumasi denied either making Boham a scapegoat, or drinking free from his bar, as alleged in exhibit A. Each witness denied having committed any misconduct in the discharge of his official duties as a Border Guard.

In his testimony, Boham alias Yaw Nuamah stated categorically that no customer, police or civilian, drinks free at his store. His customers in fact pay for their drinks, usually on cash basis but occasionally on credit. He had never complained to anybody that Border Guards drink free from his store. He also disclosed that nobody had ever investigated from him whether or not Border Guards drink free from his store.

Having admitted authorship of the article (exhibit A), the appellant sought in his evidence to justify and defend it. He described a journey he once undertook in a passenger lorry from Kumasi to Dormaa

Ahenkro, in the course of which he claimed to have seen his driver tipping policemen at each of the nine police barriers en route to ensure a smooth, trouble-free passage. He further alleged that on reaching Dormaa Ahenkro, the driver took an inventory of cotton prints intended for export through the border by the passengers and collected N¢2 on each print from them as bribe for the Border Guards. The total came to N¢600, and it was surreptitiously handed over by the driver to the Border Guards. In consideration of the alleged bribe, they were promptly let through the barrier without a search. He claimed that the same ritual was gone through on their return journey to Kumasi. Even though the alleged journey was undertaken by the appellant long before he wrote exhibits A and D, for the ostensible purpose of exposing the police and Border Guards, yet surprisingly for a journalist of 28 years’ standing, no reference was made to it in either his article or his cautioned statement. Little wonder that the trial judge disbelieved the story, as he was perfectly entitled to do.

The appellant next gave details of the alleged activities of named individuals in Kumasi and the collusive bargains allegedly struck with them by the Border Guards. His counsel invited him to explain the specific allegations quoted in the particulars to the court. By his assertion that “Policemen drink free from Boham,” the appellant claimed he only meant that “these uniformed policemen drink with impunity or without a care in Boham’s store, and not that they drink free of charge.” In explanation of the particulars contained in count one the appellant stated that it is [p.152] of [1971] 2 GLR 147 common knowledge that the Zambrama men sell smuggled watches, perfumeries and Rothman’s cigarettes in full view of the general public, the police and the Border Guards.

On being asked in cross-examination whether he inquired from Boham if policemen drink free from him, he answered as follows: “I had seen the policemen drink free in Boham’s store and so I did not check from Boham. I cannot distinguish between policemen and Border Guards when in uniform.” (Emphasis supplied.)

After a full and fair summing-up, each of the three assessors stated that in his opinion, the accused was not guilty of either count charged. The learned judge then proceeded to give his reasoned judgment and convicted the accused on each count and sentenced him accordingly. With respect to the first count of negligent libel, the learned judge held that the words complained of were clearly defamatory in law and in fact of the Border Guards. Ex facie, they imputed to the Kumasi Border Guards wilful default in the performance of their official duties, they mean that these guards deliberately shut their eyes to flagrant cases of trafficking in smuggled goods and choose rather to pick on poor Boham, a small fry, from whom in fact they “drink free.” He interpreted the phrase “drink free” in this context to mean that policemen drink without paying for their drinks at Boham’s store. He rejected the accused’s plea of justification by holding that there was no evidence in support of it. He likewise rejected the defence of privilege, because in his judgment no case of duty and interest had been made out and the publication was made to the whole world and not limited to persons having authority over the Border Guards. He therefore held that the first count was proved.

With respect to the second count of sedition, the learned judge held that the allegations made were more serious and extended to the Border Guards generally. They imputed a corrupt and collusive agreement between Border Guards and smugglers for the purpose of defrauding the revenue. After making a competent analysis of the ingredients of the particular type of sedition charged under section 183 (3) and

(11) (g) of Act 29, he found as a fact that the main ingredient of falsity of the allegations had been conclusively established. On the issue of the accused’s mens rea, he found proved “strong evidence of recklessness, if not of knowledge.” He also disbelieved that the accused witnessed the transaction during his journey that he had described to the court. Consequently, he held the sedition charge had been conclusively proved.

The first ground of appeal argued by learned counsel for and on behalf of the appellant was that “the learned trial judge erred in law in refusing counsel’s application to allow the case to be tried by a jury instead of assessors.” Dr. Ohene Djan referred us to sections 242 (2) and 243 of the Criminal Procedure Code, 1960 (Act 30), and submitted that the learned judge wrongly exercised his discretion in refusing the accused’s application for a jury trial, and contended that in view of the facts in issue, the innuendo alleged, and the public interest aroused by the case, the learned judge ought to have allowed the application made. He further submitted

[p.153] of [1971] 2 GLR 147 that it was wrong for the judge to ignore the facts of the case and rather dwell on the intricacies of the law of libel. In the light of the fact that the assessors returned a unanimous opinion of not guilty whereas the judge found the accused guilty, he surmised that the judge ought to have granted the application for a jury trial.

We confess we are unimpressed with this ground of appeal which is without any merit or foundation in law. At the date of trial (i.e. on 13 June 1969) the position of our law with respect to the mode of trial on indictment was as follows:

(i) All trials on indictment must be either by jury or with the aid of assessors in accordance with the provisions of section 204 of Act 30.

(ii) All offences punishable by death shall be tried with a jury of seven persons: vide sections 244 and 245 of Act 30.

(iii) All offences punishable by imprisonment for life are triable by jury throughout Ghana — by virtue of L.I. 499 of 11 January 1966, made under section 242 (1) of Act 30.

(iv) All other offences are triable with assessors, as provided by section 243 (1) of Act 30.

(v) The trial court may, under section 243 (2) of Act 30, and for reasons to be recorded, order a case normally triable with assessors (under section 243 (1) to be tried with a jury.

(vi) Under section 242 (2) either the accused or the Attorney-General may apply, and the court may, “if it thinks that the ends of justice would be served by doing so,” direct that a case which is normally triable by jury should be tried instead with assessors.

(vii) In The State v. Yao Boahene, S. C., 15 April 1965 (unreported); digested in (1965) C.C. 125 the former Supreme Court held that, upon proper construction, subsection (2) of 242 should be treated as qualifying subsection (1), and is a proviso thereto.

It is clear from the above summary of the law that at the date of trial of the instant case, the rule of practice with respect to the trial of the specific offences charged was mandatory in terms, and it prescribed trial by assessors unless the court in its discretion ordered trial by jury for stated reasons (vide section 243 (1) and (2) and the fourth and fifth propositions in the summary of the law contained in the preceding paragraph).

The learned judge gave cogent written reasons for his refusal to accede to the accused’s request for the proviso to the mandatory rule contained in section 243 (2) to be invoked in his favour. He applied, in our opinion, the correct yardstick, namely, whether it would be in the interests of justice for the order sought to be made. He also considered the relevant question whether a jury rather than a judge would be more

[p.154] of [1971] 2 GLR 147 likely to arrive at a just decision in the case before him, especially considering the intricate issues of law involved in the offences of criminal libel and sedition. He was satisfied upon a consideration of these factors that no case had been made by the applicant for the exercise of the discretion in his favour. This appellate court acts on the principle that an appeal will not be entertained from an order which it was within the discretion of a judge to make, unless it be shown that he exercised his discretion under a mistake of law; or in disregard of principle; or under a misapprehension as to the facts, or that he took into account irrelevant matters or that his order would result in injustice. As a general rule, this court assumes that the judge properly exercised his discretion unless the contrary is shown. In the instant case, the reasons stated by the learned judge were eminently sound and reasonable. In any event, since learned counsel for the appellant was, in our opinion, unable to displace the presumption of correctness in favour of the judge’s ruling, we have no alternative but to reject his ground of appeal which we hold to be wholly unmeritorious.

The next ground of appeal argued with fervour by Dr. Ohene Djan was “that the evidence does not disclose any offences committed by the appellant under section 112 (1) and section 183 (3) of act 29 when these sections are properly interpreted.” Under this ground, Dr. Ohene Djan first submitted that the term “Border Guards” mentioned in the particulars connotes a public office created by statute; and that notwithstanding the fact that they comprise natural persons, they do not form a sufficiently indentifiable group or class that is capable of being defamed.

The evidence on record – which was accepted by the trial judge – was to the contrary. During cross–examination, Superintendent Jabez Ansah (the twenty-ninth prosecution witness), who conducted the investigation into the case, was asked the question: “Who constitute the Border Guards? He answered thus:

“The Border Guard is a unit of the Ghana Police Service. The head is a deputy commissioner of police with an assistant commissioner of police as his second in command. There are chief superintendents of police – two of them at the time, three superintendents of police, a number of deputy superintendents, assistant superintendents, inspectors, sergeants, corporals and a good number of constables. The constables are more than two thousand in number. The constables are in the forefront of the fight against smugglers.” Under re-examination, this witness added that: “The records in the office would show the number of the Border Guards. Border Guards are a definite class in the Police Service.”

Admittedly in the law of tort, a libel on a class of persons is not actionable unless the words used are such as to lead persons acquainted with the plaintiff to believe that they refer to him as an individual: see Knupffer v. London Express Newspapers Ltd. [1944] 1 All E.R. 495, H. L.

[p.155] of [1971] 2 GLR 147 where the House of Lords held on the facts that the defamatory words complained of referred generally to the group of Russian political refugees called Mlado Russ or Young Russian, and not to the plaintiff as an individual. As Willes J. said in Eastwood v. Holmes (1858) 1 F. & F. 347 at p. 349: “If a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual.” However, words which appear to apply to a class may be actionable in tort if there is something in the words or the circumstances under which they were published, which indicates a particular plaintiff or plaintiffs. Again, if the reference is to a limited or ascertainable class or group, e.g. trustees, members of a firm, tenants of a particular building, so that the words can be said to refer to each member, all will be able to sue: see per Viscount Simon L.C. in Knuppfer’s case [1944] 1 All E.R. 495 at p. 496, H.L.

The crime of libel is, however, wider than the tort, and there may be an indictment at the instance of a defamed ascertainable or indentifiable class or group where the libel complained of can be construed to refer to each member. Thus, in the West African Court of Appeal case of Ako Adjei v. R. (1951) 13 W.A.C.A. 253, it was stated at the headnote that “The Syrian community [of the then Gold Coast] was a well-defined class capable of being libelled.” The court had, “no hesitation in holding that the newspaper article complained of is seditious. The Syrians are an order or division of the population of this country and as such a well-defined class. The article is clearly directed at that class, as the trial Judge found, and it is calculated to promote feelings of hostility against them by Africans by reason particularly of the alleged commercial methods of the Syrians.”

See per Coussey Ag.C.J. at p. 253.

In this case, the above-quoted evidence of the twenty-ninth prosecution witness (Superintendent Jabez Ansah) clearly shows that the Border Guards are a definite class in the Police Service. As such they can be defamed. Dr. Ohene Djan sought to distinguish the Border Guards from the Syrians in Ako Adjei’s case (supra) on the ground that Syrians form an ethnic group, whereas the Border Guards hold an office. This is surely a distinction without a difference. The test is: Whether the class is ascertainable, and whether the libel reflects on each member of the class. Obviously, at any given moment, it can be ascertained from the official records who the members of the Border Guards are. Moreover, exhibit A was indisputably general in terms; but it covered each member of the Border Guards. This ground of appeal therefore fails.

Turning to the second count of sedition, Dr. Ohene Djan contended that the appellant was wrongly charged under section 183 (3) because he did not commit any act specified therein. This ground is clearly untenable for the simple reason that that subsection creates the actus reus of the second count in this case, namely, “publication of a seditious writing, which is made a second degree felony. In this connection, it would be

[p.156] of [1971] 2 GLR 147 apposite to recall the oft-quoted dictum of the Privy Council in Wallace- Johnson v. R. (1936) 5 W.A.C.A. 56 at p. 60, P.C.:

“The fact remains, however, that it is in the Criminal Code of the Gold Coast Colony and not in English or Scottish cases that the law of sedition for the Colony is to be found. The Code was no doubt designed to suit the circumstances of the people of the Colony. The elaborate structure of section 330 suggests that it was intended to contain as far as possible a full and complete statement of the law of sedition in the Colony. It must therefore be construed in its application to the facts of this case free from any glosses or interpolations derived from any expositions however authoritative of the law of England or of Scotland.” Making due allowance for the constitutional changes that have occurred in this country since those wise words were spoken in 1939, we respectfully adopt and apply this dictum to this case. We would also like to cite two other relevant dicta from the same opinion of their Lordships delivered by Viscount Caldecote L.C. in the above case at pp. 60-61, since Dr. Ohene Djan criticised – in our opinion unjustifiably – the seditious intention laid in the particulars: first that:

“Nowhere in the section is there anything to support the view that incitement to violence is a necessary ingredient of the crime of sedition. Violence may well be, and no doubt often is, the result of wild and ill-considered words, but the Code does not require proof from the words themselves of any intention to produce such a result. . . .

[Secondly], the submission that there must be some extrinsic evidence of intention, outside the words themselves, before seditious intention can exist must also fail and for the same reason. If the words are seditious by reason of their expression of a seditious intention as defined in the section the seditious intention appears without any extrinsic evidence. The Legislature of the Colony might have defined ‘seditious words’ by reference to an intention proved by evidence of other words or overt acts. It is sufficient to say they have not done so.”

In this case, the prosecution relied on and pleaded a particular seditious intention, that is, false accusation of public officers of misconduct in the exercise of their official duties. This was in conformity with the alternative seditious intention contained in section 183 (11) (g). There is therefore no substance in Dr. Ohene Djan’s criticism of the mens rea laid in the second count.

Another untenable ground of appeal canvassed by Dr. Ohene Djan was that “the learned judge failed to assign reasons for disagreeing with the verdict [sic] of the assessors.” This ground proceeded on a faulty major premise; because it is trite law that in a trial with the aid of assessors, the assessors do not give a verdict; each assessor merely states his opinion: vide section 287 (1) of Act 30. By contrast, in a trial by jury the jury deliver their verdict through their foreman: vide sections 280 and 281 of Act 30. [p.157] of [1971] 2 GLR 147

In other words, in a trial with the aid of assessors, the judge is both the judge of the law and of the facts, and in giving his judgment: “he shall not be bound to conform with the opinions of the assessors, but he shall record his judgment in writing and in every case the judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision,” vide section 287 (2) of Act 30. It is a misconception of the law in a trial with the aid of assessors either to require the judge “to assign reasons for disagreeing with the assessors or to expect a ‘verdict’ (that is, judgment) from the assessors.” No such duty is imposed on the trial judge or on the assessors. As provided by section 287 (2) of Act 30, the sine qua non in a trial with assessors is a reasoned written judgment from the judge, consisting (as in the case of all true judgments) the points for determination or facts or law in issue, the decision thereon and the reasons for the decision. A mere ipse dixit from the judge will just not do: see on this point R. v. Adade [1959] G.L.R. 365 and R. v. Sarpong [1959] G.L.R. 383, both Court of Appeal decisions. But provided there is a reasoned judgment, the judge “shall not be bound to conform with the opinions of the assessors.” There is no positive stipulation that he shall state his reasons for dissenting from the opinions of the assessors. Obviously, in the normal case, the reasons given in support of the judge’s judgment will explain why the judge has reached a decision different from the opinions of the assessors, even if their opinion is unanimous. But the unanimous opinion of the assessors can neither be equated with, nor elevated to the status of, a verdict or judgment. Obiter dicta tending to establish the contrary proposition in such cases as Kotey v. The State [1963] 1 G.L.R. 41-42, S.C.; Asare (F. Y.) v. The State, Court of Appeal, 11 October 1968, unreported; and State v. Adjei, Court of Appeal, 11 December 1967, unreported, were, in our very respectful opinion, made per incuriam, having regard to the clear, unambiguous mandatory terms of section 287 (2) of Act 30. The crux of the matter is whether the learned trial judge has stated sound reasons in support of his judgment which will satisfy the appellate court notwithstanding the unanimous opinions of the assessors to the contrary. There is therefore no substance in the ground of appeal based on the alleged failure of the learned trial judge to assign reasons for his disagreement with the assessors’ “verdict” [sic]. If indeed there were any such rule of law, it would be enough to retort that the whole of the judgment in this case provides more than adequate reasons for the learned judge’s disagreement with the unanimous opinions of the assessors.

Nothing daunted, Dr. Ohene Djan embarked on his next ground of appeal and criticised the prosecution for calling only interested parties (that is, members of the Border Guards) in support of the charges, and drew attention to the omission to call such important witnesses as Alhaji Kotokoli, Meri and others. We shall return to the second half of this ground shortly, but for the moment it is enough to state that it was necessary for the 28 Border Guards men in key posts and stations along our borders to be given an opportunity either to admit or refute the serious allegations of misconduct made against each and every one of them.

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Needless to say, had the prosecution failed to call them, we would have been addressed fittingly on the prosecution’s failure to call such material witnesses. Be that as it may, the learned trial judge was at liberty either to believe or reject the evidence of any witness. As an appellate court, our main concern in this respect is whether the evidence adduced was so unreasonable as ought not to have been believed. We must therefore now consider Dr. Ohene Djan’s general ground of appeal that the judgment is unreasonable and cannot be supported having regard to the evidence on record. The gravamen of his argument here was that the learned judge ought not to have believed 30 out of 31 prosecution witnesses because they were all interested persons; and that Boham, the only remaining independent witness, stood condemned on his own admission of having previously been involved in a smuggling case. We are satisfied that there was ample evidence on record of total denial of the allegations contained in both counts by all prosecution witnesses, including the independent Boham, and that the learned trial judge gave cogent reasons for disbelieving the defence put up. Furthermore, since in a trial with the aid of assessors, the judge is a judge both of law and facts, it was well within the learned trial judge’s competence to decide the true meaning of the phrase “drink free from Boham” in count one. In construing the true meaning, he properly took the context in which the words stood into consideration. It cannot seriously be contended that the ordinary meaning he attached to the words, namely, that policemen drink free of charge at Boham’s store, was unreasonable, especially having regard to the underlying corruption theme running through the whole article. While acknowledging counsel’s ingenuity for suggesting the alternative innocent meaning of “drinking freely while in uniform” at Boham, we are of the firm view that the learned judge’s decision on the issue was sound.

In another ground of appeal, Dr. Ohene Djan argued that the learned judge misdirected himself on the law of privilege, conditional privilege, and fair comment in the law of criminal libel. From his list of authorities filed and the line of argument, it was obvious that learned counsel had in mind the English law on the subject; but, after we had drawn his attention to our own comprehensive Code on the ingredients of negligent libel and sedition (vide sections 112 to 119 inclusive and sections 183 (1) to 183 (14) inclusive of Act 29) and the above-quoted authority of Wallace-Johnson v. R. (supra), learned counsel did not press the point. We ourselves are satisfied that the learned judge made a competent and accurate analysis of the ingredients of both offences, and that there is no blemish in his statement of the law applicable to the case.

With respect to the offence of sedition charged, the learned judge correctly held as follows: “To prove the charge under section 183 (3) in terms of a seditious intention under section 183 (11) (g) the prosecution assume the burden of proving beyond reasonable doubt:

Publication by the accused;

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Of matter that contains a false accusation against a public officer alleging misconduct by him in the exercise of his official duties;

Knowledge on the part of the accused at the date of publication that the accusation was untrue or proof that he was reckless whether it be true or false; and That the matter was published intentionally.” He rightly found on the evidence that the first and fourth of the above-stated ingredients were clearly established and not in dispute. He also found correctly that the article (exhibit A) contained serious allegations of misconduct against the members of the Border Guards, all public officers, and in the exercise of their official duties. He gave a full and fair consideration to the outstanding issue of falsity of the publication and the interrelated issue of knowledge of the falsity on the part of the accused. He correctly drew a distinction between other categories of seditious intention where the truth of the publication has no bearing on the character of the publication (vide section 183 (11) (a) to (f) and see on this point the instructive Nigerian case of The Service Press Ltd. v. Attorney-General (1952) 14 W.A.C.A. 176) and the exceptional category of seditious intention – which is peculiar to Ghana and is contained in section 183 (11) (g): to wit, ,,an intention shall be taken to be seditious if it is an intention falsely to accuse any public officer of misconduct in the exercise of his official duties, knowing the accusation to be false or reckless whether it be true or false.” In this exceptional category of sedition under section 183 (11) (g) the falsity of the allegation and the knowledge of recklessness of the accused about the falsity or truth of the published allegation are crucial issues to be conclusively proved. In this case, the learned judge made adverse findings of facts on both issues against the accused. He found the accused’s recklessness established, inter alia, by his failure to check on his facts before going to print. We were satisfied that the learned judge was amply supported in his judgment with respect to the sedition charge; and we did not deem it necessary to call on learned counsel for the respondent to reply on that count. In the result, we find no merit whatsoever in the grounds of appeal urged before us with regard to the second count of sedition, and the appeal, with respect to that count, is accordingly dismissed. We, however, noticed from our perusal of the record that the learned judge in his otherwise fair and comprehensive judgment stated that,

“When considering the accused’s plea of justification in relation to count one dealing with negligent libel, that there is no evidence direct or circumstantial of wilful neglect of duty by Border Guards in Kumasi … Again there is no evidence that policemen drink free of charge at Boham’s. The plea of justification must therefore fail.”

It is apparent therefore that the plea of justification quoad negligent libel was rejected on the ground that there was no evidence in support thereof; and not because the evidence adduced was unbelievable. The learned

[p.160] of [1971] 2 GLR 147 judge unfortunately misdirected himself in this respect; especially since there was such evidence on the record adduced by the accused coupled with exhibit D (accused’s cautioned statement), both of which do contain some material evidence, for example, about the activities of alleged smugglers like Alhaji Kotokoli, “known to all Border Guards and some senior police officers … some of these senior police officers feast in this man’s house.” We are further informed “that women traders allegedly flock to his house to buy smuggled goods.” Another alleged smuggler, one Jacob Fordjuor from whom some women buy imported smuggled goods, was mentioned by name in exhibit D dated 7 March 1968. The trial took place at least three months later; but yet no attempt was made to rebut these pieces of evidence. It is noteworthy that the first prosecution witness (Assistant Commissioner of Police Archampong) admitted under cross-examination that “accused mentioned one Alhaji Issifu to him”; and that “he is a real person.” It is surprising that no further investigation was made by the twenty-ninth prosecution witness (Superintendent Ansah) into the activities of Alhaji Issifu Kotokoli.

The eighth prosecution witness (Inspector Botchway) likewise admitted knowledge of a smuggler at Dichemso called Meri who was arrested on two occasions for possessing contraband goods. The accused, who lives in Dichemso, claimed in support of his plea of justification to the libel to be the neighbour of three women smugglers one of whom Meri was robbed by burglars, and that a particular police jeep (registration number supplied) used to frequent Meri’s house. Yet there was no rebuttal of the evidence about the alleged Dichemso smugglers, Kotokoli and Fordjuor.

This was not a case where a judge had, after due consideration of these vital pieces of evidence tending to establish the plea of justification, come to the conclusion that they were incredible or unreasonable or at least not probably true. Had the learned judge considered these pieces of evidence in relation to the defence of justification and rejected them as either untrue or not reasonably probable, there could have been no legitimate criticism of the above-quoted portion of his judgment. He unfortunately fell into error when he stated “there was no evidence” on this important issue. Learned counsel for the respondent conceded, quite honourably, that the learned judge unfortunately misdirected himself when he held there was no evidence of justification, since there was some evidence on record worthy of consideration. The rule is that misdirection as to the evidence to be of any avail to an appellant must be of such a nature and the circumstances of the case must be such that it is reasonably probable that the jury (i.e. the court of fact) would not have returned their verdict had there been no misdirection. The rule was stated thus in R. v. Cohen and Bateman (1909) 2 Cr.App.R. 197 at p. 207, C.C.A.:

“A mistake of the judge as to fact, or an omission to refer to some point in favour of the prisoner, is not, however, a wrong decision of a point of law, but merely comes within the very wide words ‘any [p.161] of [1971] 2 GLR 147 other ground,’ so that the appeal should be allowed according as there is or is not a ‘miscarriage of justice.’ There is such a miscarriage of justice not only where the Court comes to the conclusion that the verdict of guilty was wrong, but also when it is of opinion that the mistake of fact or omission on the part of the judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted . . .”

Under section 117 (1) (h) of Act 29 the publication of defamatory matter is absolutely privileged “if the matter is true, and if it is found that it was for the public benefit that the matter should be published.” Undoubtedly, it is for the public benefit that the known activities of smugglers and their accomplices should be exposed for the law to take its course. The misdirection under consideration goes to the root of the defence raised to the charge of negligent libel; and since it is reasonably probable that the learned judge’s judgment on this specific defence raised might have been different had he considered the above-mentioned evidence, we have no option but to allow the appeal from conviction on the first count and quash the sentence on that count and we do so accordingly.

In the result, the appeal against conviction and sentence on count one is allowed; but the appeal against conviction and sentence on count two is dismissed.

JUDGMENT OF ARCHER J.A.

I agree that the learned trial judge misdirected himself when he said that there was no evidence of justification as a defence to the first count of negligent libel. Accordingly I also agree that the appeal against the conviction on that count should be allowed. However, I must confess that the decision to dismiss the appeal against the conviction on the second count of seditious libel has aroused certain misgivings in my mind.

Section 183 (11) (g) defines seditious intention to include an intention “falsely to accuse any public officer of misconduct in the exercise of his official duties, knowing the accusation to be false or reckless whether it be true or false.” The indictment itself used the expression “false accusation . . . made recklessly.” In his judgment the learned trial judge stated that the prosecution must prove “knowledge on the part of the accused at the date of publication that the accusation was untrue or proof that he was reckless whether it be true.” But the prosecution was not relying on knowledge on the part of the accused that the accusation was false. Looking carefully at the definition, one is tempted to say that what the prosecution has to prove in every case is either:

Knowledge on the part of the accused that the publication was false, or Knowledge on the part of the accused that the publication was reckless whether it be true or false. [p.162] of [1971] 2 GLR 147

In other words, knowledge on the part of the accused is a very essential element to be proved by the prosecution, that is, knowledge that the publication was false or knowledge that the publication was reckless. When one deletes the expression “knowing the accusation to be false” from the section, one is left with the following unintelligible expression “an intention falsely to accuse any public officer of misconduct in the exercise of his official duties . . . reckless whether it be true or false.” What word or clause governs the word “reckless”? It is anybody’s guess. It is my view that the word reckless can only be governed by the clause “knowing the accusation to be.” In such a case the prosecution has to prove not merely that the publication was reckless but that the accused knew that the publication was reckless which is something quite different from saying in the indictment that the publication was made recklessly. These subtle points were not argued before us but I have made these observations as they have given me some anxious moments.

The next point I wish to deal with is whether the prosecution proved recklessness on the part of the appellant beyond reasonable doubt. The learned trial judge rejected the appellant’s narrative in connection with a trip he undertook from Kumasi to the Ivory Coast border because the court felt it was an afterthought. In any case, there is nothing in the evidence which established that the appellant himself saw that any moneys passed to the Border Guards. He only narrated the driver’s movements which he said he saw and what the driver told him which was clearly hearsay and no reliance could be placed on that hearsay evidence. But assuming that that journey was bogus and never took place, did the prosecution prove conclusively that the publication was reckless whether it be true or false? The appellant relied on his own observations at Kumasi and mentioned specifically the registration numbers of vehicles which used to call at the homes of three alleged notorious smugglers, Alhaji Kotokoli, Meri and Jacob Fordjuor. The investigation officer, Superintendent Ansah, said he did not bother to investigate these aspects of the publication because he was only interested in collecting statements from Border Guards. The question is whether the appellant wrote this article out of his head, his imagination or from his dream? Were there circumstances discernible from the evidence on record which tended to negative recklessness on the part of the appellant? Although the appellant mentioned names of smugglers and the registration numbers of vehicles which assisted in the smuggling (allegations which the police never investigated) yet the judgment dismissed the appellant’s evidence “as vague and as one that can easily be fabricated.” Nevertheless, after this publication, there is evidence that Border Guards were sacked here and there for allowing vehicles with contraband goods to enter Ghana unchecked. The question is whether at the time of the publication, it was reasonably probable that the appellant was not reckless but he had reasonable grounds for believing that what he was publishing was happening in Ghana.

[p.163] of [1971] 2 GLR 147

It is settled that it is not open to an appellate court to disturb the finding of a lower court even though the appellate court may entertain some doubt as to the soundness or the correctness of the finding of the court below. My hands are therefore tied: see R. v. Ologen (1935) 2 W.A.C.A. 333. But there is one thing I can say without inhibition and that is, if the whole publication had been considered and all the revelations made by the appellant had been investigated by the police, perhaps, a different picture might have been presented to the court. I am not certain whether in this appeal, the prosecution succeeded in proving the essential element of recklessness beyond reasonable doubt. Recklessness has been explained by Eve J. in Hudston v. Viney [1921] 1 Ch. 98 at p. 104 to mean “an attitude of mental indifference to obvious risks.” Other judicial pronouncements have aptly described recklessness as an “I don’t care” attitude. Considering the whole article, can it be said that the appellant did not care two hoots whether what he was publishing was reckless or whether from his own observations and information received he could honestly come to the conclusion that these goods managed to find their easy way into Ghana through the misconduct of public officers whose duties were to prevent these contraband goods from entering Ghana unchecked. The question is capable of divergent answers and the court below has adopted one answer. My brothers say that the answer of the court below should stand. As I have already stated, any doubts I may entertain about the correctness of the finding of the court below has to be sunk deep. But before I submerge my doubts, I wish to emit a short sharp yell of protest. My brother Anin has rightly remarked that section 183 (11) (g) of the Criminal Code is peculiar to Ghana. Indeed, there is no such provision in the Nigerian Criminal Code although the definition of seditious libel in that Code is similar to ours except subsection (g). Suppose a writer falsely accuses a post office sorter of having tampered with a registered parcel. The writer, as the law stands, can be prosecuted under section 183 (11) (g) because the sorter is a public officer and the false allegation alleges misconduct on the part of the sorter. When one is compelled to ask what is the element of sedition in the false publication, no one can tell except that the court will be told that the Code says it is seditious. I think it is the duty of the courts to point out such absurdities, in the definition of statutory offences which tend to prostitute the English language.

Since the learned trial judge himself declared that the offences were too technical for the comprehension of a jury and therefore refused to try the case with a jury, I venture to suggest that the time is now ripe for the whole law of criminal libel, that is intentional libel, negligent libel and seditious libel, to be thoroughly reviewed and reformed for the benefit of both lawyer and layman, for what is the use of the law if its language cannot be understood.

[p.164] of [1971] 2 GLR 147

In conclusion, I shall not dissent from the decision that the appeal against the conviction on the second count of seditious libel should be dismissed. But I wish to make it clear that I have signified my concurrence with much reluctance.

Decision of Anin J.S.C. and Archer J.A.

DECISION

Appeal allowed in part.

S. A. B.