HIGH COURT, CAPE COAST
DATE: 7 DECEMBER 1967
BEFORE: ARCHER J.
NATURE OF PROCEEDINGS
APPEAL against conviction by a district court of the offence of pretending to be a public officer contrary to the Criminal Code, 1960 (Act 29), s. 237. The facts are fully set out in the judgment.COUNSEL
Appellant in person.
Amui, State Attorney, for the Republic.
[p.696] of [1967] GLR 695
JUDGMENT OF ARCHER J.
The appellant pleaded guilty to a charge of pretending to be a public officer contrary to section 237 of the Criminal Code, 1960 (Act 29), and he was convicted on his plea and sentenced to two years’ imprisonment with hard labour. He has appealed against the sentence.
When the hearing commenced, I invited the state attorney to consider whether a scout commissioner was a public officer but the learned state attorney, after consideration, observed that a scout commissioner could not be classified as a public officer and he therefore informed the court that he could not support the conviction although he suggested that the appellant could have been charged under section 5 of the Boy Scouts’ Association Ordinance, Cap. 265 (1951 Rev.), for falsely claiming to be connected with the Boy Scouts’ Association.
The charge sheet stated that the appellant did falsely pretend to be a public officer, that is a scout commissioner sent by the Ghana Government to check school textbooks and money paid by certain school children at Efutu Akwaa village. The learned trial magistrate after having heard the facts ruled as follows:
“This court is satisfied that the Boy Scout Movement is governed by Cap. 265 (1951 Rev.), so that any post in the Boy Scout Movement is governed by an enactment under section 3 of the Criminal Code, 1960 (Act 29), to make a scout commissioner a public officer within the meaning of Act 29 of 1960. I find that the charge is properly laid and on his plea of guilty he is convicted on the charge of pretending to be a public officer.”
It is obvious that the trial magistrate’s reasoning is contained in the above ruling. He took the view that any post which is governed by an enactment makes the holder a public officer. As the offence is created by the Criminal Code, I shall attempt to define a public officer. Section 32 (1) of the Interpretation Act, 1960 (C.A. 4), provides: “‘public officer’ means a member of any of the Public services, namely, the Civil Service, the Judicial Service, the Police Service, the Local Government Service, and such other services as may, pursuant to Article 51 of the Constitution, be constituted by Act of Parliament as Public Services of Ghana, and any other person declared by any enactment to be a public officer.”
The Criminal Code is an enactment and section 3 (1) of the Code also provides that, “‘Public officer’ includes any person holding an office by election or appointment under any enactment or under [p.697] of [1967] GLR 695 powers conferred by any enactment.” The above is the definition of public officer in the Criminal Code and not what the trial magistrate thought in his ruling. A public officer for the purposes of the Criminal Code is a person who holds an office by election or appointment under any enactment or under powers conferred by any enactment. The Boy Scouts’ Association is not an organisation created by an Act of Parliament and if one reads the Boy Scouts’ Association Ordinance, Cap. 265 (1951 Rev.), one becomes convinced by the long title that it is an Ordinance passed to further and protect the activities and interestsof the Boy Scouts’ Association in Ghana. The Ordinance does not confer any powers for the election or appointment of the officers of the association; the Ordinance does not create any posts and does not confer powers for the holding of posts. The association is defined in section 2 of the Ordinance to mean “the Boy Scouts’ Association incorporated under the Royal Charter granted on the 4th day of January, 1912,” and a boy scout is defined to mean “a Boy Scout recognized as such under the constitution, bye-laws, or rules of the Association, and includes also all officers of the Association.” All the officers of the association (including a scout commissioner) hold their posts by virtue of the constitution, bye-laws or rules of the association, and not under the Boy Scouts’ Association Ordinance. The constitution, bye-laws or rules derive their binding authority from the Royal Charter granted on 4 January 1912. The next question I have to answer is whether the Royal Charter is an enactment. In this connection too, I wish to refer to the Interpretation Act, 1960 (C.A. 4). Section 32 (1) defines enactment as “an Act or statutory instrument or any provision of an Act or statutory instrument.” The same section defines “Act” or “Act of Parliament” to mean: “the Constitution, an Act of the Constituent Assembly or of Parliament, or any legislative measure of an authority formerly exercising power to make laws for the territory or any part of the territory comprised in the Republic but does not include a statute of general application, continuing to apply by virtue of section 154 of the Courts Act, 1960 (C.A. 9).” The Royal Charter of 1912 cannot be classified as an enactment or an Act and since the office of a scout commissioner is held under the association’s constitution under the Royal Charter, it cannot be said that the office of a scout commissioner is one held by election or appointment under any enactment or under powers conferred by any enactment.
[p.698] of [1967] GLR 695
The Boy Scouts’ Association Ordinance is a short piece of legislation. It imposes restrictions and penalties on unauthorised persons who wear, carry or bear the uniforms, badges or emblems of the association. It makes it unlawful for boy scouts, not lawfully authorised, to pose as police officers or agents of the government. It also makes it unlawful for any person who is not a boy scout to claim falsely that he is connected with the association. The penalty for contravening any of these provisions on a summary conviction is imprisonment with or without hard labour for a period not exceeding one month, or to a fine not exceeding ten pounds or to both. Nowhere in the Ordinance is any post created or any powers conferred for the holding of posts in the association. All officers hold their posts by virtue and under the constitution, bye-laws or rules of the association and not under any enactment.
The next chapter immediately after the Boy Scouts’ Association is the Rifle Clubs Ordinance, Cap. 266 (1951 Rev.). That Ordinance is in clear contrast as it not only establishes the Ghana Rifle Association but creates a council and declares the composition and membership of the council. Any member of the council therefore holds an office under the Ordinance by election or appointment or under powers conferred under the Ordinance. A member of that council is therefore a public officer. I have cited Cap. 266 to illustrate why a scout commissioner cannot be said to be a public officer. If the Boy Scouts’ Association Ordinance is repealed today the movement will continue to hold office. The only difference is that the protection given to the association will vanish. I therefore hold that although the appellant pleaded guilty, the particulars of offence did not support the charge because the appellant pretended to be something other than a public officer. The conviction was therefore wrong in law. The learned state attorney has suggested that the appellant could be charged under section 5 of the ‘Boy Scouts’ Association Ordinance. I do not wish to express any view on this suggestion as it is a matter purely within the purview of the prosecution. The appeal is therefore allowed and the conviction is quashed. The sentence is set aside and the appellantis acquitted and discharged.
DECISION
Appeal allowed.
D.R.K.S
