REPUBLIC v. ASAFU-ADJAYE (NO. 2) [1968] GLR 567

DIVISION: COURT OF APPEAL

DATE: I JULY 1968

BEFORE: AKUFO-ADDO C.J., APALOO AND LASSEY JJ.A.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the High Court, Accra, acquitting and discharging the respondent of the offences of conspiracy to commit extortion and corruption contrary to sections 23 (1) and 293 (1) of the Criminal Code, 1960 (Act 29), based on findings made

[p.571] of [1968] GLR 567 under the Corrupt Practices (Prevention) Act, 1964 (Act 230). The facts are stated in the judgment of the court.

COUNSEL

S. M. Boison, Chief State Attorney (E.V.A. Adjetey, Senior State Attorney, with him), for the appellant.

E. N. Moore (K. F. Asafu-Adjaye with him) for the respondent.

JUDGMENT OF AKUFFO-ADDO C.J.

Akufo-Addo C.J. delivered the judgment of the court. The respondent, Albert Asafu-Adjaye, was brought before the High Court, Accra, presided over by Edusei J. under the provisions of the Corrupt Practices (Prevention) Act, 1964 (Act 230), on the following charges:

“First Count

STATEMENT OF OFFENCE

Conspiracy to commit extortion, contrary to sections 23 (1) and 239 (1) of the Criminal Code, 1960 (Act 29).

PARTICULARS OF OFFENCE

Albert Asafu-Adjaye on or about 19 February 1966 at Accra in the Eastern Region agreed with one Kwesi Armah then Minister of Trade, a public officer, to commit a crime, namely, that the said Kwesi Armah should under colour of his office obtain from one Azmi Sbaiti valuable consideration to wit an amount representing five per cent of the value of the import licence to be issued to Messrs. City Auto Parts, which said amount the said Kwesi Armah knew that he was not lawfully authorised to obtain. Second Count

STATEMENT OF OFFENCE

Conspiracy to commit extortion, contrary to sections 23 (1) and 239 (1) of the Criminal Code, 1960 (Act 29).

‘PARTICULARS OF OFFENCE

Albert Asafu-Adjaye, on or about 21 February 1966 at Accra in the Eastern Region agreed with one, Kwesi Armah then Minister of Trade, a public officer, to commit a crime, namely, that the said Kwesi Armah should under colour of his office obtain from one Azmi Sbaiti valuable consideration to wit cash an amount of £G4,400 (N¢8,800.00) being part of a commission on £G100,000 worth of import licence issued to Messrs. City Auto Parts, which amount of money the said Kwesi Armah knew that he was not lawfully authorised to obtain. [p.572] of [1968] GLR 567

Third Count

STATEMENT OF OFFENCE

Conspiracy to commit extortion, contrary to sections 23 (1) and 239 (1) of the Criminal Code, 1960 (Act 29).

PARTICULARS OF OFFENCE

Albert Asafu-Adjaye, on or about 21 February 1966 at Accra in the Eastern Region agreed with one Kwesi Armah then Minister of Trade, a public officer, to commit a crime, namely, that the said Kwesi Armah should under colour of his office obtain from one Azmi Sbaiti valuable consideration to wit cheque No. BG/2095649 for ¢1,200.00 (N¢1,000.00) being part of a commission on £G100,000 worth of import licence issued to Messrs. City Auto Parts, which amount of money the said Kwasi Armah knew that he was not lawfully authorised to obtain. Fourth Count

STATEMENT OF OFFENCE

Conspiracy to commit corruption, contrary to sections 23 (1) and 239 (1) of the Criminal Code, 1960 (Act 29).

PARTICULARS OF OFFENCE

Albert Asafu-Adjaye, between 19 February 1966 and 21 February 1966 at Accra in the Eastern Region agreed with one, Kwesi Armah then Minister of Trade, a public officer, to commit a crime, namely, that the said Kwesi Armah should agree to permit his conduct as such public officer in the issue of import licence for £G100,000 to Messrs. City Auto Parts to be influenced by the prospect of a valuable consideration to wit £G5,000 being commission on the said £G100,000 worth of import licence, i.e. five per cent on the value of the said licence, to be received by the said Kwesi Armah from one Azmi Sbaiti.” These charges arose out of the findings of a commission of inquiry, hereinafter called the Ollennu Commission (Mr. Justice Ollennu of

[p.573] of [1968] GLR 567 the Appeal Court being the commissioner), appointed by the National Liberation Council under the Corrupt Practices (Prevention) Act, 1964 (Act 230), (hereinafter called Act 230) to investigate and report on alleged irregularities and malpractices in connection with the grant of import licences during the period commencing in October 1963 and ending with the overthrow of the Nkrumah regime on 24 February 1966. Act 230 is described by its long title as “An Act to make better provisions for the investigation of allegations and the punishment of corrupt practices and for other matters connected therewith.” The Act is obviously an extension of the Criminal Code, 1960 (Act 29), and is intended to make, in the view of the legislature, a better provision, that is, a more effective and expeditious method, for dealing with certain forms of corrupt practices not adequately catered for by the Criminal Code, 1960 (Act 29). In the words at p. 1 of the Government White Paper issued on the Report of the Ollennu Commission such corrupt practices: “would fall outside the ambit of the [Criminal] Code, either because the corrupt practices were not perpetrated by public officers as defined in the Criminal Code, or, even if by public officers, such corrupt practices could not be proved to have been done in respect of their office as public officers. The enactment could also cover corrupt practices which did not take the form of the giving or receiving of bribes but rather took the form of wilful oppression, extortion or are constituted by acts contrary to public order, or acts prejudicial to the economic or financial interests of the Republic.” The period covered by the investigation of the Ollennu Commission was one characterised by a depressing shortage of foreign exchange which made the free and unrestricted importation of foreign goods into the country economically and financially impossible. It became necessary therefore for the government to impose certain restrictions on the importation of foreign goods by the institution of the principle of granting “specific licences” to importers in conformity with rules and regulations promulgated by the government. These specific licences generally known as import licences were administered by the Ministry of Trade, and there were allegations that the administration of the import licences had been characterised by corrupt practices, and this is made clear in the words of the preamble to the Corrupt Practices (Prevention) (Appointment of Commission) Instrument, 1966 (E.I. 93), by which the Ollennu Commission was set up: “Whereas reports have been received by the National Liberation Council alleging corruption in connection with the grant of certain [p.574] of [1968] GLR 567 import licences.” The Ollennu Commission was therefore appointed with the following terms of reference:

“It shall be the duty of the Commission to investigate and report to the National Liberation Council on—

(a) alleged irregularities and malpractices in connection with the grant of Import Licences during the relevant period perpetrated by persons paid out of public funds in the performance of their official duties;

(b) the persons involved in !he alleged irregularities and malpractices;

(c) any other matter or thing pertaining to the grant of Import Licences during the relevant period, in connection with which any allegation of corruption is made by any person.”

By section 2 of Act 230 “The functions and procedure of the Commission shall be the same as those of a Commission of Enquiry appointed under the Commissions of Enquiry Ordinance (Cap. 249).” The Commissions of Enquiry Ordinance has now been replaced by the Commissions of Enquiry Act, 1964, (Act 250), and section 5 (1) thereof provides as follows: “Subject to its terms of reference, the Commission may fix the time and place of meetings of the Commission and prescribe its rules of procedure.” (The emphasis is ours.) A peculiar characteristic of Act 230 is that when the commissioner makes an adverse finding against any person the Attorney-General may charge that person before the High Court or the circuit court with an offence conformable to the terms of the commissioner’s finding, and section 5 (2) provides as follows:

“5. (2) Notwithstanding the provisions of section 1 of the Criminal Procedure Code 1960 (Act 30), the findings of the Commission shall be prima facie evidence of the facts found, and the accused shall be called upon to show cause why he should not be sentenced according to law for the commission of the offence charged.”

In paragraph 23 of his report the learned commissioner expressed the following, view of the scope of Act 230: “A finding which the Commission makes against any person is equivalent to a verdict of ‘guilty’ returned by a jury, or of a Court of summary trial or at trial with assessors.” We think that the better view is, in the words of section 5 (2), no more than that an adverse finding constitutes a prima facie case against the person concerned, and the finding assumes that character only when the Attorney-General in [p.575] of [1968] GLR 567 his discretion decides to prefer a charge against the person about whom an adverse finding has been made. Without any such charge being referred by the Attorney-General the finding remains a bare finding of fact. It is undoubtedly a consideration of this ultimate consequence of an adverse finding, that is one on which a criminal conviction may be grounded, that impelled the learned commissioner at p. 2 of his report, to postulate a notional bifurcation of his functions into, in his.own words, “two distinct processes, (i) an enquiry into general allegations, to determine whether or not they are well founded, and (ii) trial of specific accusations of corruption made against individual persons. So that a Commission appointed under the Act, is first and foremost a fact-finding Commission, and secondly it is a criminal trial—specially designed to meet extraordinary situations effectively and speedily to stamp out notorious large scale fraud and corruption.”

With respect to the learned commissioner, we do not think that there was any need for him to tie himself down to such a rigorous partition of his labours. In our view, the inquiry is from first to last a fact-finding inquiry. The fact that a finding of his may ground a criminal conviction is only a peculiar characteristic of the Act which in his own words “was intended to meet extraordinary situations” and it is no ground for treating the inquiry at any stage as a criminal trial properly so called; indeed the very nature of the inquiry does not admit of such a treatment, for no one is ever prosecuted at such an inquiry, that is there is no prosecutor or a defendant; all who appear at the commission do so as witnesses who are themselves free to call any other witnesses whom they may examine and cross-examine in a manner not ordinarily permissible at a criminal trial. That fact however imposes on the commissioner the duty to ensure that any adverse finding made by him is of sufficient certainty to form the basis of a criminal conviction, and, to ensure that certainty, it is incumbent upon him to observe all the accepted principles of justice without tying himself down to the strict observance of any formal rules of evidence. In this respect we are of the view that when the learned commissioner laid down for his own guidance at p. 2, para. 8 of the report, no doubt in the exercise of his right to determine his own rules of procedure under section 5 (1) of Act 250, that “no finding of guilt can be made except upon evidence adduced in conformity with the rigid rules of evidence” be went just a little too far in the constraint which he imposed upon himself. [p.576] of [1968] GLR 567

The respondent was one of the persons who appeared at the commission and gave evidence. An allegation of extortion and corruption in connection with the grant of an import licence in 1966 was made at the commission against the respondent by a Lebanese gentleman by the name of Sbaiti who was engaged in the business of motor spare parts retail trading. The inquiry that proceeded on the basis of this allegation was of course to discover the truth thereof.

The story that Sbaiti told the commission in his evidence was briefly that some time in February 1966, after having made unsuccessful attempts to secure an import licence for the importation of motor spare parts he approached the respondent whom he had known for some time and whose office was situate near his business premises with a request to help him to obtain a licence. This was on 15 February 1966, and the respondent agreed to do so. The respondent saw Sbaiti on 19 February 1966, and told him he had been to see Kwesi Armah the then Minister of Trade, among other things, for the issue of import licences, and said further that his application for the licence could not be traced in the Ministry and would he provide him (the respondent) with copies of the application to enable him to pursue the matter. Sbaiti said the respondent then told him that he, Sbaiti, would have to pay a consideration assessed on the basis of five per cent of the face-value of the import licence. Sbaiti’s application was for a licence to import goods to the value of £G74,000 and he agreed to pay the consideration, whereupon the respondent promised to obtain the licence for him. On 21 February 1966, the respondent called on him and delivered to him an import licence of the face-value of £G100,000 and promptly demanded the payment of £G5,000 which represented five per cent of £G100,000. Sbaiti said he had £G4,400 cash in his safe and paid that sum out to the respondent and entreated the respondent to forego the balance of £G600, but the respondent would only forego £G100 and demanded the balance of £G500. As he had no more cash on hand the respondent offered to accept a cheque for £G500. Sbaiti made out a cheque for that sum but was post-dated for payment in April 1966. The respondent accepted it. The respondent in his evidence before the commission did not deny that Sbaiti requested him to help him obtain a licence, or that he saw Kwesi Armah about it, but he said he agreed to do so as a solicitor for Sbaiti (he had never before acted as a solicitor for Sbaiti) and not as a “contact man” as the allegations of Sbaiti would appears to suggest. Sbaiti had said that he requested the respondent’s help not as a solicitor but as one who could bring some influence to bear on the authorities. Although he was acting [p.577] of [1968] GLR 567 in this respect as a solicitor for Sbaiti he did not, when he agreed to help Sbaiti, name any fees for his professional services. The £G500 which Sbaiti later gave him by a post-dated cheque was Sbaiti’s unsolicited gesture of appreciation for the success of his endeavours. He saw Kwesi Armah the then Minister about Sbaiti’s licence and eventually a licence for the importation of goods valued at £G100,000 was granted to Sbaiti which he himself delivered personally to Sbaiti. He did not know why Sbaiti was granted a licence for £G100,000 when he had only applied for a licence for £G74,000. The respondent denied that he demanded a consideration on the basis of five per cent of the face-value of the import licence, although he said later in his evidence that it was Sbaiti who offered to pay him five per cent of the face-value of the licence as his remuneration. The respondent denied being paid £G4,400 by Sbaiti on 21 February 1966, when he delivered the licence to him and said the only remuneration he received from Sbaiti was the £G500 above-mentioned. The learned commissioner made his findings as follows at p. 244 of the report: “912. I find it proved beyond any shadow of doubt that—

(i) After Asafu-Adjaye [meaning the respondent] first visited Kwesi Armah and he took the duplicate copies of Sbaiti’s application to Kwesi Armah, i.e. on February 19, 1966, he Asafu-Adjaye demanded a commission of five per cent on the value of any licence which might be issued.

(ii) On February 21, 1966, when Asafu-Adjaye delivered the licence to Sbaiti, he demanded from Sbaiti £5,000 as Commission on the £100,000, i.e. five per cent on the value of the licence.

(iii) On that day February 21, 1966, Sbaiti paid an amount of £4,400 to Asafu-Adjaye on account of the commission and pleaded with Asafu-Adjaye to forego the balance of £600.

(iv) Asafu-Adjaye agreed to forego only £100, and insisted on payment of £500.

(v) On the same February 21, 1966, Sbaiti gave to Asafu-Adjaye a post-dated cheque for the balance of £500.

(vi) The reason why he Sbaiti post-dated the cheque is because of the amendments he wanted made to the licence and which might take some time.”

The learned commissioner went on at paragraphs 920 and 921 at P. 245 of his report to make the following further findings:

[p.578] of [1968] GLR 567

“920. I therefore find that: in the demand of 5 per cent and the receipt of the £4,900, Asafu-Adjaye acted upon agreement with Kwesi Armah with a common purpose. I have no doubt that Asafu-Adjaye shared the bribe he collected with Kwesi Armah.

921. I find that:

(i) on February 19, 1966, Asafu-Adjaye demanded commission of 5 per cent from Sbaiti, and did so in conspiracy with Kwesi Armah;

(ii) on February 21, 1966, Asafu-Adjaye in conspiracy with Kwesi Armah received £4,400 in cash and £500 in cheque as bribe on £100,000 licence;

(iii) the issue of the £100,000 licence by Kwesi Armah is corrupt.”

Upon these findings the Attorney-General preferred against the respondent the charges quoted above, and in accordance with the provisions of section 5 (2) of Act 230 the respondent was brought before the High Court, Accra, to show cause why he should not be sentenced according to law for the commission of the offences charged.

In showing cause why he should not be sentenced the respondent pleaded that the findings of the learned commissioner were not supported by the evidence before the commission. The respondent was entitled to raise such a plea under the provisions of section 6 (1) (b) of Act 230, and this was the only issue which he raised in the court below. The respondent could also under section 6 (2) have applied for leave to call any witnesses he might wish to call. He did not do so, and, confined his case to his counsel’s argument based on the record of the evidence adduced before the commission. After hearing the submissions of counsel for the respondent, and refusing to hear counsel for the State, the learned judge proceeded to deliver judgment in which he analysed in some detail the evidence before the commission and came to the conclusion that the findings of the commissioner were not supported by the evidence and, in particular, that the evidence of Sbatti which the learned commissioner accepted as true in preference to that of the respondent was not credible, that is the evidence of Sbaiti should not have been believed by the learned commissioner, and stated finally as follows: “In conclusion I am firmly of the view that the burden of proof on the prosecution fell far below the degree of certainty required for conviction in criminal cases. The burden of proof as a matter of law was not discharged.” [p.579] of [1968] GLR 567

The State appeals to this court under the provisions of the Criminal Procedure Code, 1960 (Act 30), on the following ground, among others: “That the learned High Court judge erred in law by holding that the findings of the sole commissioner were not supported by the evidence.”

Mr. Boison, Chief State Attorney, and counsel for the State, in arguing the appeal for the State submitted that the jurisdiction of a High Court judge (or a circuit court judge for that matter) before whom a person is brought under Act 230 to show cause why he should not be sentenced is analogous to that of an appellate tribunal called upon in an appeal against conviction to review the facts upon which the conviction is based. This submission we accept as representing the correct position and associate ourselves with it. This is so because, like a convict-appellant, a person brought before the court under Act 230 is immediately faced with concluded proof of facts against him, and to succeed in his defence he must satisfy the court that those findings of fact cannot, either as a matter of law or of fact, be sustained. And the fact that the accused person under Act 230 or the Attorney-General may call witnesses or that the accused person may even have recalled for cross-examination witnesses at the commission does not in our view derogate from the position regarding the jurisdiction of the High Court as submitted by Mr. Boison. It is not unknown for appellate tribunals in certain circumstances to allow fresh evidence to be called. Having stated what in our view is the nature and extent of the jurisdiction of the High Court under Act 230, we conceive our task on this appeal to be one of determining whether that jurisdiction was properly exercised by the High Court. The principle of law which governs the review by an appellate tribunal of the facts found and upon which a decision or a conviction is based by a tribunal of first instance are very well-established, and it is not here being suggested that an appellate tribunal cannot in deserving circumstances upset the findings of fact by a tribunal of first instance. The central principle in this regard is that where there is evidence before the tribunal of first instance and where in particular the conclusions depend on the credibility of oral witnesses, and the conclusions of fact are reasonable and fair inference to be drawn from the evidence, an appellate tribunal is not entitled to put itself in the place of the original tribunal and substitute its own findings deduced, as it were, from the printed record of the evidence for those of the original tribunal. The fact that an appellate tribunal may feel that if it is hearing the case at first instance it will come to a different conclusion from that of the tribunal of first instance is wholly irrelevant. There must be a clear case of misdirection on the part [p.580] of [1968] GLR 567 of the tribunal of first instance or something fundamentally wrong with its assessment of the value of the evidence to warrant an appellate tribunal taking a different view of the facts found.

We would like to refer to the British case of Watt (or Thomas) v. Thomas [1947] 1 All E.R. 582, H.L. This was a case in which a husband petitioned a Scottish court of first instance (presided over by a Lord Ordinary), on the ground of cruelty. That court on the evidence rejected the allegation of cruelty and dismissed the husband’s petition. On appeal to the Court of Session the findings of fact on the issue of cruelty were reversed and the wife appealed further to the House of Lords. It fell to the House of Lords, as indeed it has fallen to us, to decide whether the Court of Session as an appellate tribunal was right in reversing the findings of fact by the Lord Ordinary sitting at first instance. In allowing the appeal and reinstating the findings of the Lord Ordinary, Lord Thankerton, in his opinion, said at pp. 587-588: “I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus:—

I. Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusion.

II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court….

It may be well to quote the passage from the opinion of LORD SHAW in Clarke v. Edinburgh & District Tramways Co.(1919 S.C. (H.L.), 37), which was quoted with approval by LORD SANKEY, L.C., in Powell v. Streatham Manor Nursing Home ([1935] A.C. 250). LORD SHAW said: ‘In my opinion, the duty of an appellate court in those circumstances is for each judge to put it to himself, as I now do in this case, the [p.581] of [1968] GLR 567 question, Am I—who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.’ LORD SHAW had already pointed out that these privileges involved more than questions of credibility. He said (ibid., 36): ‘ . . . witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turn of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced on the printed page.’ I may add that, after it became usual to have the printed transcript of the evidence in place of the judge’s notes, it was argued in at least one case that, having the verbatim transcript of the evidence, the matter was more at large for the appellate court, but it is undoubted that the principle has not been relaxed—if, indeed, it has not been tightened—by the later decisions. I am aware that this contention was put forward in Kilpatrick v. Dunlop. In reference to this contention LORD HALSBURY says (1916 S.C. 632 n): ‘I am unable to determine one thing or the other, namely, whether the appellant or respondent was worthy of credit. It is a question of credit, where each gives a perfectly coherent account of what he has done and said, and contradicts the other. Under these circumstances it is impossible that the Court of Appeal should take upon itself to say, by simply reading printed and written evidence, which is right, when it has not had that decisive test of hearing the verbal evidence and seeing the witnesses, which the judge had who had to determine the question of fact, and to determine which story to believe.’ In other words, whereas you might formerly find in the judge’s notes some indication of the impression made on his mind by the witnesses, no trace of any such impression is to be found in the cold, mechanical, record of the evidence.” Lord Macmillan, in agreeing with Lord Thankerton’s opinion, said at p. 590:

“My Lords, a court of law provides at the best but an imperfect instrument for the determination of the rights and wrongs of the most personal and intimate of all human relationships, that of husband and wife. No outsider, however impartial,

[p.582] of [1968] GLR 567 can enter fully into its subtle intricacies of feeling and conduct, but when a case involving such questions arises the court must do its best to judge dispassionately between the parties, though it may sometimes be left with a doubt whether, with the imperfect means at its disposal, it has achieved perfect justice, especially where the evidence is widely conflicting. The case now before the House provides a typical example of the difficulties I have indicated, but it is also a typical case for the application of the well-established rule defining the proper approach of an appellate court to the consideration of a decision on fact by the court of first instance … The appellate court had before it only the printed record of the evidence. Were that the whole evidence it might be said that the appellate judges were entitled and qualified to reach their own conclusion upon the case, but it is only part of the evidence. What is lacking is evidence of the demeanour of the witnesses, their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial. This assistance the trial judge possesses in reaching his conclusion but it is not available to the appellate court. So far as the case stands on paper, it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed advantages not available to the appellate court, becomes of paramount importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistences and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved, or otherwise to have gone completely wrong.” We also refer to the case of Atiemo v. Commissioner of Police [1963] 1 G.L.R. 117, S.C. where Adumua-Bossman J.S.C. said at pp. 128-129:

“The instant case however is one tried by the learned circuit judge alone as ‘the tribunal of fact’ and having regard to the principle so often repeated by the former West African Court of Appeal and the Ghana Court of Appeal that if there be evidence before the court constituted by a magistrate or judge sitting alone which he has accepted to found a conviction, it is not the place of the appeal court to interfere with that conviction,… Of the many cases in which that principle has [p.583] of [1968] GLR 567 been expressed, we would mention only Attoh Kojo Okine v. Commissioner of Police, (C.A., Cyclostyled Judgments, July-December, 1959, unreported) in which van Lare J.A. said: ‘We desire to state at the outset that it is not for this court to re-try a criminal case in which a conviction has been based upon evidence which the trial court was entitled to accept. The first ground of appeal can only succeed if it is clear on the record that there is no substantial evidence in support of the conviction. If there was evidence before the trial court to support the conviction, such ground fails.’ That being the principle applicable, we are satisfied there was evidence which the trial judge was entitled to accept and we would therefore not interfere with his conviction but dismiss the appeal.”

Having thus stated what the principle is which, in our view, should govern the exercise of the jurisdiction of the High Court, we proceed to examine to what extent the learned judge of the High Court conformed to, or deviated from, this principle, and to what extent therefore is his reversal of the findings of fact by the learned commissioner justified or not.

The question before the learned commissioner as we have already mentioned concerned an allegation made by Sbaiti that the respondent had demanded a five per cent commission as a consideration for helping him to obtain an import licence and had actually received from him, Sbaiti, the payment of the sum of £G4,400 in cash and £G500 by cheque the respondent having foregone £G100 upon his, Sbaiti’s, entreaties. The respondent denied these allegations, and the question for which the learned commissioner had to find an answer was, which of the two stories, the one told by Sbaiti or the one told by the respondent, was the true story. The learned commissioner after due consideration of all the issues which were raised bv the evidence decided that the Sbaiti story was the true story and he accepted it as such and made his findings accordingly. The issues raised were—

(a) What was the nature of the relationship between Sbaiti and the respondent when the latter responded to Sbaiti-request for assistance in obtaining a licence? Was it a solicitor’s client relationship as the respondent averred it was or was the respondent acting merely as a “contact man” as Sbaiti seemed to suggest?

(b) Did the respondent demand remuneration on the basis of five per cent of the face-value of the licence, and did he do so in agreement with Kwesi Armah, then Minister of Trade,

[p.584] of [1968] GLR 567 or was the only remuneration paid to the respondent the unsolicited sum of £G500 which was paid by a post-dated cheque?

(c) Did Sbaiti on the 21 February 1966, when the respondent delivered to him the licence for £G100,000 demand payment of £G5,000, and did Sbaiti pay him the sum of £G4,400 and a cheque for £G500?

On the issue of the solicitor-client relationship there was before the commissioner, in addition to Sbaiti’s own sworn assertion, the fact that letters written to the Ministry on the subject of Sbaiti’s application for the licence were written not by the respondent as solicitor but by Sbaiti on his firm’s letter-heads and at the dictation of the respondent. There was the allegation that at least one letter was written by the respondent on his professional letterhead, but no attempt was made to produce this letter or even an office copy of it, and the evidence of this solitary letter remained that of the hazy memory of an official of the Ministry. There was also the evidence of the respondent that he did not name any fees for his professional services either before he undertook the service or after he had completed it. There was also evidence of the fact that although the respondent was a partner in the firm of lawyers, he treated this transaction with Sbaiti as his private affair and paid the amount which he admitted was paid to him into his private account. This was the evidence before the learned commissioner from which he concluded that the relationship between the respondent and Sbaiti was not a solicitor-client relationship. On the issue of the demand for five per cent commission there was, of course, the sworn averment of Sbaiti. There was also the evidence of the respondent himself that Sbaiti offered to pay him remuneration of five per cent of the value of the licence. There was no evidence by the respondent that he accepted Sbaiti’s offer, but the two stories meant that there was some talk by both Sbaiti and the respondent of remuneration on the basis of five per cent, and it was left to the commissioner to say which of the two stories he believed. In accepting the story of Sbaiti the commissioner had other circumstances to take into consideration beyond the mere assertion of Sbaiti. There was in the first place the general finding of a system during the tenure of office of Kwesi Armah as Minister of Trade whereby applicants for import licences were obliged to pay as “commission” ten per cent, sometimes five per cent of the face-value of the licences. In the commissioner’s own words at p. 22, para. 151 of the report: “According to the evidence the fixed commission is 10 per cent the value of the licence, but was reduced in special cases to 5 per cent.” There was also the evidence that [p.585] of [1968] GLR 567 when Sbaiti approached the respondent on 15 February 1966, for assistance the respondent did not say anything about this remuneration for the assistance that he had agreed to offer. It was on 19 February 1966, after the respondent had seen Kwesi Armah and had gone back to see Sbaiti for copies of his application for a licence that he, the respondent, intimated to Sbaiti that the licence would cost him five per cent of its face-value. That Kwesi Armah was, according to the commissioner’s findings, interested in the proceeds of the commissions paid rested not only on the evidence referred to above but also on the fact that he granted a licence (in his own handwriting) for £G100,000 when Sbaiti had applied for only £G74,000. There was also evidence of similar grants of licences for amounts greater than applied for. There was the case of Accad dealt with by the commissioner at p. 99, paras. 478-492 inclusive of the report. Accad had applied for a licence for £G200,000, but was offered a licence for £G300,000 on a commission of ten per cent of that value. There was also the case of Khubchandani who applied for £G100,000 worth of licence but was offered a licence for the increased value of £G250,000 which was subsequently increased further to £G300,000 on a commission basis of five per cent of that value. This is dealt with in the commissioner’s report at p. 144, paras. 647-651 inclusive. All these fitted snugly into the system of “commission” which the commissioner described at paragraph 151 of the report. On the issue of the payment of the sum of £G4,400 by Sbaiti to the respondent on 21 February 1966, the commissioner had, of course, the sworn averment of Sbaiti. Effort was made at the inquiry to suggest that Sbaiti could not have been in a position to pay such a large sum of money on the day in question, because on his own showing he was in a bad way with his business for lack of import licences. The commissioner rejected the suggestion and in believing the story of Sbaiti on all the material issues the commissioner took into consideration a number of proved collateral facts and circumstances some of which we have already adverted to. If Sbaiti was romancing, why did he not say, for instance, that the cash which he gave to the respondent was £G4,500 which together with the cheque for £G500 would make up the sum of £G5,000? Why the story about his entreaty to the respondent to forego £G100? There was the consistency with which Sbaiti told his story to the police and made his complaint to the respondent’s brother. There was evidence of the respondent’s reaction when he complained to Accad and threatened to bring an action against Sbaiti for divulging a professional secret. The reference was to Sbaiti’s statement to the police. Why professional secret? If the respondent had acted [p.586] of [1968] GLR 567 for Sbaiti in a professional capacity and had been paid £G500 for his services, what was there in this that should not see the light of day?

These were the facts proved by direct evidence and the collateral facts and circumstances from which the commissioner drew the inference which grounded his findings. Was the inference a reasonable and fair one to be drawn from the entire evidence? The learned High Court judge’s answer was “No.” The learned judge sought by his judgment to prove from the written record of the evidence, and in one respect at least from matters not in issue at the inquiry, to establish that Sbaiti was an untruthful witness and the learned commissioner should not have believed his story. He therefore upheld the respondent’s plea that the commissioner’s findings were not supported by the evidence. We have studied the learned judge’s judgment with great care and we are of the opinion, with all due respect, that the learned judge proceeded in this matter with a basic misconception of what his duty was.

A plea that a finding of fact by a tribunal of first instance is not supported by the evidence requires for its determination an inquiry whether or not there was evidence which if believed would justify the findings of the said tribunal. It does not require that the reviewing or appellate tribunal shall place itself in the position of the tribunal of first instance which had the advantage of seeing and hearing the witnesses, an advantage which is denied to the reviewing tribunal, and come to its own conclusions of fact when there is no case made out for misdirection on the part of the first tribunal or for a wrong assessment of the value of the evidence. We have not been able to discover from the learned judge’s judgment that there was any such misdirection or wrong evaluation of the evidence by the commissioner. The learned judge in his criticism of the commissioner’s findings said that the bare assertion of Sbaiti cannot be deemed to be proof of a demand of five per cent commission. The fact is that the finding on the issue of the demand for five per cent commission did not rest entirely on the bare assertion of Sbaiti is we have already demonstrated. And even if it did, is there any law which says that a tribunal of fact cannot decide an issue on the evidence of one person? See Commissioner of Police v. Kwashie (1953) 14 W.A.C.A. 319. One is reminded of the old maxim Testes ponderantur; non numerantur. Again the learned judge found Sbaiti to be a liar when he said he paid £G4,400 to the respondent. This conclusion he arrived at mainly from a consideration of the accounting requirements of

[p.587] of [1968] GLR 567 the income tax law and the Companies Code, 1960 (Act 179). The argument is not that there was evidence that Sbaiti kept books of account and lied that he kept no books, but that since the law required that books of account must be kept by he lied when he said he did not keep such books. Sbaiti lied about the books because if he had produced them the commissioner would have been convinced beyond a peradventure that he could not have had as much as £G4,400 on the day in question. Having been found to be such an accomplished liar his credibility in everything else vanished, and the pity is that the commissioner did not discern so clear a situation. Apart altogether from the irrelevance of this consideration and also from the fact that this matter was never raised at the commission, the reasoning assumes far too much, to say the least. It assumes that everybody in Ghana conducts his life and business in strict conformity with the requirements of the law. What a little utopia Ghana would be if this were so. There certainly would be no need for Act 230. In his evaluation of the evidence of Sbaiti the learned judge claimed the authority of two dicta in two judgments of Ollennu J.S.C. (the commissioner in this case). One is a passage from the judgment the unreported case of Khoury v. Richter, High Court, 8 December 1958, quoted in Majolagbe v. Larbi [1959] G.L.R. 190 at p. 192 which says:

“Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true’.” The other passage is from the judgment in Lutterodt v. Commissioner of Police [1963] 2 G.L.R. 429 at pp. 436-437 which says:

“Where, as in this case, the decision turns upon the oath of one prosecution witness against that of a witness for the defence, it is incumbent upon the trial court to examine the evidence of each of those two witnesses carefully along with other evidence in the case, oral, documentary and circumstantial as well, before preferring one of the conflicting evidence to the other; and where his preference is for the prosecution he must make it appear from his judgment that his said preference [p.588] of [1968] GLR 567 is reasonable for the principle of law is, that if the court could not find reasonable grounds for preferring the evidence of the prosecution witnesses to contradictory evidence given by a defence witness, the prosecution has failed, because there would, at least, be reasonable doubt as to which of the two conflicting versions of the story is true, and the benefits of that doubt must be given to the defence.”

Neither of these dicta is an authority for the preposition that a judicial tribunal cannot decide an issue on the evidence of one witness or on the oath of one person against that of another. In the Majolagbe case (supra) the plaintiff claimed ownership to land and alleged that he had been in possession of the land. In a case like this it is certainly not enough for the claimant to mount the witness stand and merely say on oath, “I am the owner of the land and I am in possession.” An averment of this kind can only be proved by reference to other facts like a document of title, acts establishing possession and so on. When the statement therefore refers to “an averment capable of proof in some positive way, e.g. by producing documents,” it can only mean such an averment as by its very nature requires to be proved by other than a mere assetion on oath. What evidence is required to prove an averment can only depend on the nature of the averment. When a man is alleged to have corruptly demanded or to have extorted money or to have conspired with another person to do these things you can hardly expect these allegations to be proved in the same manner as an allegation of ownership to, and possession if, land is proved. The dictum in the judgment of Lutterodt v. Commissioner of Police (supra) can mean no more than that when the oral evidence before the court consists of the oath of one witness against that of another it is essential to take into consideration other circumstances or matters that may have been brought to the knowledge of the court. To interpret it to mean that the oath of one witness must of necessity be supplemented in some way or other is to reduce that statement to an absurdity, because the law does not preclude a judicial decision based on the evidence of a single witness if the evidence is found to be true. On the subject of conspiracy between the respondent and Kwesi Armah the learned judge stated that there was no evidence of agreement between them. It is not easy to understand what this means, because the learned judge in his judgment did acknowledge the position that direct evidence of conspiracy is rare and that conspiracy is generally inferred from circumstances. These circumstances have already been narrated, and it is difficult to see what other inference than one of conspiracy can be drawn from them. The [p.589] of [1968] GLR 567 learned judge further stated that the grant of £G100,000 licence when one for £G74,000 was applied for was irregular, but that it was capable of innocent interpretation. What is the innocent interpretation? Nowhere in his judgment does the learned judge state what this is, and there is nothing in the evidence from which an innocent interpretation may be inferred. When learned counsel for the respondent was asked what the innocent interpretation was, his answer was that the grant of the licence for £G100,000 was a mistake. It was established at the commission that the issue of the licence was a deliberate act of Kwesi Armah. The respondent had said at the inquiry that he did not know why the Minister granted a licence of that value. It is said that the finding that Kwesi Armah and the respondent shared the money paid to the respondent was wrong, because it was clear on the evidence that Kwesi Armah was not in Ghana on 21 February 1966, and has not been seen in Ghana since. The learned chief state attorney for the State conceded this point readily enough. But how does it affect the inference of conspiracy which consists essentially in agreeing to commit a crime. The evidence established the agreement beyond doubt, and it does not matter that opportunity did not present itself favourable for the sharing of the spoils. Much was made about the reasons assigned by Sbaiti for giving the respondent a post-dated cheque for £G500. The “real reason,” according to the learned judge, why Sbaiti gave a post-dated cheque was that he had not enough money in the bank to meet the cheque at the time it was given. Be that as it may, how can one conclude from that that Sbaiti could not have had £G4,400 in his safe on 21 February 1966?

It is said that it was impossible for Sbaiti to have produced as much as £G4,400 from his safe because he did not know that the respondent would deliver the licence to him on 21 February 1966. What would really have been more sinister is if Sbaiti had said that he had exactly £G5,000 in his safe on the day in question.

The learned judge concluded his judgment by saying, “In conclusion I am firmly of the view that the burden of proof on the prosecution fell far below the degree of certainty required for a conviction in a criminal case. The burden of proof as a matter of law was not discharged. In the circumstances of this case what can the burden of proof mean? Is there any burden of proof cast on the prosecution when a person is brought before the court under Act 230? The matter comes before the court on concluded proof of certain facts which form the basis of the charge against the accused’ person, and all that the prosecution is called upon to do is to satisfy the court that adverse findings have been made against the accused [p.590] of [1968] GLR 567 person and that the charge conforms to the terms of the said findings. In a situation like this no question of burden of proof as a determining factor arises. So far as there is any burden of proof it rests on the accused person to satisfy the court that the findings are not supported by the evidence if, is in the instant case, he raises that plea. The findings of the commissioner being concluded proof of facts have to be presumed to be right until the contrary is proved by whomever asserts the contrary. There is therefore no burden of proof cast on the prosecution to prove the guilt of the accused (except probably when the Attorney-General elects to adduce fresh evidence) for that, except in so far as the accused person is able to disprove it, is already established by the commissioner’s findings. Mr. Moore, learned counsel for the respondent, in his submissions dwelt at length on the contention that Sbaiti was an accomplice and that the commissioner gave no consideration to the question whether or not he was. The question is in the first place whether the principle of law relating to the evidence of an accomplice is applicable to an inquiry under Act 230. Our attention has been called to a decision of Azu Crabbe J.A. in the Republic v. Akainyah [1968] G.L.R. 330 in which the learned judge, differing from the views expressed by the commissioner on the subject, has held that the principle cannot be made applicable to such an inquiry for the very cogent reason that the inquiry is not a criminal trial, in that there is no prosecution and there are no prosecution witnesses to whom the principle is ordinarily applicable. The argument is indeed convincing, but principles of law apart, the experience of mankind shows that the testimony of a person testifying against his partner-in-crime is, even in the most unsophisticated human communities, regarded with grave suspicion, and human instinct appears to recoil from the unqualified acceptance of such a testimony. Although as Azu Crabbe J.A. properly held, the inquiry is not a criminal trial, allegations made against persons appearing thereat are mostly of crimes, and findings on such allegations eventually go before the courts as prima facie evidence of guilt. In these circumstances we think that the learned commissioner’s attitude expressed at p. 24, paras. 158 and 159 of his report is the safer for natural justice. For further discussion on this point see the judgment of this court in Akainyah v. The Republic [1968] G.L.R. 548 delivered earlier today. It is obvious from the learned commissioner’s findings that he regarded Sbaiti as a victim of a crime i.e. the fraudulent system of requiring an applicant for a licence to pay a commission or go without it. That was a finding of fact and it is difficult to say that the learned commissioner was wrong. Even if we were to accept [p.591] of [1968] GLR 567 the respondent’s counsel’s submission that Sbaiti was an accomplice we have all the circumstances to which we have already made reference to supply the required corroboration.

Another complaint raised by Mr. Moore in his submissions was that the learned commissioner conducted most of the examination of the respondent himself and subjected the respondent to a long series of questionings, which were characterised by obvious hostility to the respondent. Mr. Moore described this conduct on the part of the commissioner as amounting to “descending into the arena of conflict.” His submission was that this fell within the mischief decried in the case of Jones v. National Coal Board [1957] 2 All E.R. 155, C.A. and in those circumstances the learned commissioner’s conclusions must be rejected as not having been fairly and dispassionately arrived at. We do not think that the conduct of the commissioner complained of is essentially comparable to that of the judge whose conduct was the subject of the decision in the case of Jones v. National Coal Board (supra). In that case the judge involved heard a case in court where the normal duty of a judge is to hearken to the evidence produced by the contesting parties and only occasionally to intervene to ask questions to clear up any obscure points and finally to give his judgment on the basis of the evidence. He is more or less an umpire with the difference that he is not there only to answer the question “How’s that?” He holds the balance between the contending parties. It was the judge’s persistent interruptions, which made it almost impossible for counsel to conduct their case that was condemned by the judgment of the English Court of Appeal in the case cited. In this case the inquiry was not a court in the sense of there being any contending parties. The commissioner’s duty is not that of merely hearing and determining issues raised by contending parties. His duty is to conduct an investigation on behalf of the public and he is therefore entitled to put as many questions to persons appearing before him as he thinks will conduce to an effective investigation of the subject of the inquiry. He may even decide to do away with any counsel for the commission and conduct the investigation himself from beginning to end. There can therefore be no valid objection to the long series of questionings to which the respondent was subjected. The complaint that he did so with a show of hostility or unfriendliness is however a slightly different matter. While we uphold the commissioner’s right to conduct the inquiry by himself we do not think however that there is any cause for him to appear hostile to a party giving evidence no matter what the provocation. We are constrained to accept the submission of counsel that some of the questioning even as it appears in cold print was done in a mood [p.592] of [1968] GLR 567 of annoyance. No doubt this mood must have stemmed from the persistent prevarications of the respondent in the course of his evidence. However that may be, we do not think that a commissioner engaged on such an important inquiry ought so easily to yield to his passions, and we are reluctantly constrained to deplore the attitude. We think that a commissioner engaged on an inquiry, no less than a judge in court, must endeavour to preserve an attitude of restraint and impassioned approach to all matters before him. It is the only way to prevent justice from not seeming to be done. While we express our disapproval of the commissioner’s attitude complained of by counsel we do not think that that attitude resulted in any miscarriage of justice. It did not operate to establish any facts for which there is no evidence nor was it the respondent’s case that it prevented him from putting his case adequately.

Another point raised by the appeal concerns the Attorney-General’s right of reply under section 132 of Act 30. After the respondent’s counsel had completed his argument on behalf of his client he added that the Attorney-General had no right of reply and the learned judge in upholding this submission refused the chief state attorney’s application to be heard contra the argument of the respondent’s counsel.

The grounds of the learned judge’s refusal are embodied in a ruling which he gave (reported at p.245 ante) after the question of the Attorney-General’s right of reply in proceedings under Act 230 had been argued by the respondent’s counsel and the chief state attorney.

Procedure in proceedings under Act 230 is controlled by the Corrupt Practices (Prevention) Procedure Regulations, 1967 (L.I. 571) (hereafter referred to as the regulations). Regulation 11 thereof provides as follows:

“11. The Criminal Procedure Code, 1960 (Act 30) shall, subject to these Regulations, apply to the institution and conduct of proceedings under section 4 of the Act to the extent specified in Part II of the Schedule to these Regulations.”

Part II of the Schedule aforesaid bears the following heading: “Provisions of Criminal Procedure Code, 1960 (Act 30) which are not to apply to proceedings under section 4 of Act 230.” Regulation 1 1 may therefore conveniently be paraphrased to read as follows:

“The Criminal Procedure Code, 1960 (Act 30) minus the provisions listed in Part II of the Schedule to these regulations shall, subject to these regulations, apply to proceedings under section 4 of Act 230.”

[p.593] of [1968] GLR 567

Among the provisions so excluded is section 175 of Act 30 which makes provision in respect of addresses on evidence. Among the provisions not excluded is section 132 of Act 30 which gives the Attorney-General the right of reply.

The learned judge held that the only provision in the regulations under which the Attorney-General could address the court was contained in regulation 8, and then the Attorney-General could address the court only by leave of the court. He held that regulation 8 came into operation only when additional witnesses had been called, and since the respondent or the Attorney-General did not call any witnesses the Attorney-General could not be heard.

It was argued for the Attorney-General that since section 132 of Act 30 had not been excluded the Attorney-General’s right of reply remained intact. The learned judge’s view was that if that submission was right then “the practical importance of regulation 8 is defeated.”

It does seem clear that the situation which arose in these proceedings in the court below has not been catered for in the regulations. The respondent’s counsel argued his client’s case in the manner in which an appellant’s counsel would argue his case in an appeal court, and one would have thought that on the analogy of the procedure on appeal the Attorney-General would have been called upon to argue contra, and if necessary the respondent would have been allowed to be heard in reply. However the learned judge was, in our view, right in holding that the situation created by the manner in which the respondent conducted his case was not covered by regulation 8, but we think he was wrong in holding that the retention of the Attorney-Generals right of reply would defeat the importance of regulation 8. There is in our view no conflict between regulation 8 and section 132 of Act 30 as these two provisions relate to two different matters. Regulation 8 relates to addresses on evidence and to that extent it replaces section 175 of Act 30 which is specifically excluded in Part II of the Schedule to the regulations. Section 132 of Act 30 confers on the Attorney-General the right of reply which goes beyond the mere right to address the court on evidence or to address the court in answer to an opponent’s argument, and we have no doubt that there was some confusion in the mind of the learned judge about the exact scope of these two provisions. When a party is said to have the right of reply it means that that party has the last word in the proceedings by way of address or submissions to the court, and it does not mean simply the right to address the court in answer to the opponent’s argument. [p.594] of [1968] GLR 567

In our view regulation 11 of L.I. 571 means that all the provisions in Act 30 which have not been excluded apply, subject to the regulations. Section 132 of Act 30 has not been excluded, and it therefore applies subject to the regulations. We have therefore to look to the regulations to find to what provisions therein section 132 of Act 30 can be made subject. It cannot be subject to regulation 8 as the learned judge appeared to hold, because regulation 8 does not deal with the Attorney-General’s right of reply. As we have already pointed out regulation 8 deals with the position created by section 175 of Act 30 (that is, addresses on evidence), and it replaces that section. There is nothing in the regulations which deals with the Attorney-General’s right of reply; there is therefore no provision in the regulations to which the Attorney-General’s right of reply conferred by section 132 of Act 30 can be made subjects. We therefore hold that the Attorney-General’s right of reply is unaffected and, may be exercised by him in proceedings under Act 230 whatever course the proceedings take. We therefore hold that the learned judge was wrong in refusing to allow the chief state attorney to exercise that right.

We have said enough to demonstrate that the learned judge of the High Court misconceived and disregarded the duty of a tribunal called upon to review a decision of a first-instance tribunal on questions of fact which has been firmly laid down in the authorities to which we have made reference. It follows that in our view his decision that the findings of the commissioner were not supported by the evidence was wrong, and that there was ample evidence to sustain the findings of the commissioner. We accordingly allow the appeal, set aside the order of acquittal and discharge and convict the respondent on all the counts in the charge against him and sentence him to four years’ imprisonment with hard labour on each count to run concurrently.

DECISION

Appeal Allowed.

S. K. T