REPUBLIC vs. INKUMSAH [1968] GLR 385

CASES REFERRED TO

(1) Mulcahy v. R. (1868) L.R. 3 H.L. 306.

(2) R. v. Brisac and Scott (1803) 4 East 164; 102 E.R. 792.

(3) R. v. Taylor, Weaver and Donovan (1928) 21 Cr.App.R. 20, C.C.A.

(4) Teper v. R. [1952] A.C. 480; [1952] 2 All E.R. 447; [1952] 2 T.L.R. 162; 116 J.P. 502; 96 S.J. 493, P.C.

(5) Republic v. Akainyah [1968] G.L.R. 330.

(6) R. v. Plummer [1902] 2 K.B. 339; 71 L.J.K.B. 805; 86 L.T. 836; 66 J.P. 647; 51 W.R. 137; 18 T.L.R. 659; 46 S.J. 587; 20 Cox C.C. 269, C.C.R.

NATURE OF PROCEEDINGS

PROSECUTION of accused for conspiracy to commit offences of extortion and corruption following adverse findings made against him by a commission of inquiry appointed under the Corrupt Practices (Prevention) Act, 1964 (Act 230). The facts are fully stated in the judgment of Azu Crabbe J.A. sitting as an additional judge of the High Court.

COUNSEL

Darkoh for the Republic.

Dade for Koi Larbi for the accused.

JUDGMENT OF AZU CRABBE J.A.

The accused, who was the former Deputy Speaker of the dissolved National Assembly, is charged on three counts with conspiring with Kwasi Armah, then Minister of Trade, to commit the

[p.387] of [1968] GLR 385 offence of extortion contrary to sections 23 (1) and 239 (1) of the Criminal Code, 1960 (Act 29), and on one other count with conspiring with Kwesi Armah, then Minister of Trade, to commit the offence of corruption, contrary to sections 23 (1) and 239 (1) of Act 29. He is also charged on two other counts with committing the offence of offering to give a bribe to Kwesi Armah, a public officer, contrary to section 252 (2) of Act 29.

The various charges of conspiracy to commit extortion and the sole charge of conspiracy to commit corruption laid in counts (1), (2), (3) and (4) respectively are based upon the findings contained in paragraphs 666 and 671 of the Report of the Commission of Enquiry into Irregularities and Malpractices in the Grant of Import Licences (the Ollennu Commission) exhibit A. In paragraph 666 the learned commissioner states:

“I find that:

(i) Inkumsah demanded from Khubchandani 10 per cent commission and reported to him that he was acting on behalf of Kwesi Armah in so doing.

(ii) Khubchandani by his application Exhibit 40, dated February 9, 1966, applied for £100,000.

(iii) Glamour who were in Grade ‘D’ were notified by letter Exhibit ‘42’ dated February 23, 1966 that they had been upgraded to ‘B’, but that in official records of the Ministry their grade remained unchanged, i.e. grade ‘D’.

(iv) Instead of licence for £100,000 they applied for, Glamour were promised licence for £150,000 and was in fact granted £300,000.

(v) Inkumsah reported to Khubchandani that Kwesi Armah had reduced the 10 per cent commission and demanded ¢42,000 or £17,500 as commission for licence for £250,000.

(vi) Inkumsah received the said commission of £17,500 or ¢42,000 reporting that he did so on behalf of Kwesi Armah.”

And in paragraph 672 he states:

“I therefore find that:

(i) Kwesi Armah in conspiracy with Inkumsah corruptly issued licence for £300,000 to Glamour;

(ii) Kwesi Armah in conspiracy with Inkumsah demanded 10 per cent commission;

(iii) Inkumsah and Kwesi Armah received ¢42,000 or £17,500 from Glamour as commission on £250,000 of licence; and

[p.388] of [1968] GLR 385

(iv) Kwesi Armah and Inkumsah demanded further bribe or commission on the additional £50,000 worth of licence.”

In order to determine whether the learned commissioner was justified in making the adverse findings, I think it is necessary to consider briefly the law of conspiracy so as to make my own conclusions more intelligible. Conspiracy is defined in section 23 (1) of our Criminal Code, 1960, as follows:

“If two or more persons agree or act together with a common purpose for or in committing or abetting a crime whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be.”

Where persons charged were not openly acting together with the common purpose for or in committing or abetting the crime, it is seldom that a conspiracy charge is proved by direct evidence. The offence is proved by inference drawn from proved facts. In Mulcahy v. R. (1868) L.R. 3 H.L. 306 at p. 317, Willes S. cites Grose J. as saying in R. v. Brisac (1803) 4 East 164 that conspiracy is generally a “matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.”

I am satisfied that there was ample evidence before the learned commissioner to justify all his findings contained in paragraph 666 of the report. In my judgment, the evidence clearly establishes the complicity of the accused in the crimes charged in counts (1), (2), (3) and (4).

The evidence against Kwesi Armah, as the learned commissioner himself observed, depends on circumstantial evidence. In R. v. Taylor, Weaver and Donovan (1928) 21 Cr.App.R. 20 at p. 21, C.C.A. Lord Hewart C.J. said:

“It has been said that the evidence against the applicants is circumstantial: so it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”

In Teper v. R. [1952] A.C. 480 where the Privy Council considered the nature of circumstantial evidence, Lord Normand who delivered the judgment of their Lordships said at p. 489:

Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another . . . It

[p.389] of [1968] GLR 385 is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

The principle of law that has been extracted from the cases is that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than the crime charged can the facts be accounted for.

In considering the evidence that connects Kwesi Armah with the crimes charged the learned commissioner proceeded, in the first place, by accepting as true the evidence that the accused told Khubchandani that Kwesi Armah was demanding ten per cent commission, and that no importer (i.e. non-state importer) could obtain a licence without payment of ten per cent of the value of the licence and that the ex-President had so directed. The learned commissioner took care to point out that that was hearsay evidence, and at best it was evidence only against Inkumsah himself, unless, as the commissioner says, that “statement made by Inkumsah is proved to be identical with the only reasonable inference or irresistible inference which can be drawn from circumstantial evidence affecting Kwesi Armah.” The circumstantial evidence upon which the learned commissioner relied as set out at paragraph 667 of the report is:

“(i) Kwesi Armah met Khubchandani at the Castle, Osu, he Kwesi Armah told Khubchandani who was seeking an interview with him, that since he knows Inkumsah, there was no need that he should seek an interview with him Kwesi Armah.

(ii) Kwesi Armah granted Glamour licence for £300,000 while all that they had applied for was £100,000 implying that the value of the licence is of, some significance to Kwesi Armah.

(iii) Khubchandani did receive by registered post, licence for £300,000; i.e. he received the licence in the same manner, and of the same value that Inkumsah had said that Kwesi Armah had prescribed.”

From these items of circumstantial evidence the learned commissioner drew the following inferences:

“668. From the statement Kwesi Armah made to Khubchandani who was seeking an interview with him, namely that if he knew Inkumsah it was not necessary for him Khubchandani to seek the interview, the only reasonable conclusion to be drawn is that Kwesi Armah asserted that Inkumsah had his authority to discuss matters with Khubchandani. The granting of £300,000 licence to Glamour when all that the applicant had asked for was

[p.390] of [1968] GLR 385 only £100,000 shows that the grant of that value of the licence, has some interest in the value being large.

669. The fact of the receipt of licence for £300,000 when Khubchandani was expecting licence for £100,000 is identical with what Inkumsah had reported that Kwesi Armah had told him. Since what had been applied for is £100,000 Kwesi Armah showed that he had interest in the quantum of the licence he granted to the applicant.

670. And the fact that when the licence arrived by registered post as Inkumsah had said it would be for £300,000 and since the licence was issued by Kwesi Armah and not by Inkumsah the only presumption is that Kwesi Armah or some one in the Ministry of Trade must have told Inkumsah that a licence for £300,000 would be issued or had been issued and would come by registered post. And since Kwesi Armah was the one who issued the licence, and did act in the usual course, i.e. through the agency of Inkumsah, the only reasonable conclusion is that he must have told Inkumsah as indeed Inkumsah told Khubchandani that he would issue or had issued licence for £300,000 instead of 250,000 promised, and the £100,000 applied for.”

Proceedings in this court under the Corrupt Practices (Prevention) Act, 1964 (Act 230), are partly in the nature of an appeal from the findings of the learned commissioner, and partly in the form of a criminal trial. It is in the nature of an appeal in so far as the findings of the learned commissioner are concerned. And as an appellate tribunal, this court will be reluctant to reject the commissioner’s finding of specific facts which may be founded upon the credibility of witnesses. This court will uphold a finding by the commissioner, if there is evidence in support of it, and the evidence is such that any reasonable tribunal could convict upon it: see Republic v. Akainyah [1968] G.L.R. 330. But the court is at liberty to draw its own inferences from the facts proved or admitted, not disregarding the findings of the commissioner when these depend upon the credibility of witnesses who appeared before him.

What then are the facts from which arose the charges in counts (1), (2), (3) and (4) ? The following statement of the relevant facts is taken from the report, exhibit A:

“641. Khubchandani is Manager of the Glamour Stores and the Director of Glamour Garment Factory. The Stores were establishment in 1946, and the Factory was established in 1963. The two establishments have a large Ghanaian staff.

642. In 1963 when specific import licence was introduced, the Glamour Stores and Factory were placed in Category ‘B’ and

[p.391] of [1968] GLR 385 were granted licence valued £285,000. They applied for licence for 1964, still in Grade ‘B’, but were granted only £48,795. In 1965 they were granted £50,000 and degraded to ‘D’. They petitioned the Minister to reconsider their entitlement, but received no reply.

643. When notice went out towards the end of 1965 calling for applications for 1966, the Glamour Garment Factory put in applications totalling £1 million approximately; but they received no acknowledgment of their applications.

644. Khubchandani said that by January 1966, he had become very worried about their licence situation as the Factory particularly had almost come to a standstill.

645. He said that just about that time, Mr. Inkumsah then Deputy Speaker of the National Assembly, whom he knew quite well rang up and requested him to see him in his office in Parliament Buildings.

646. Khubchandani alleged that he went to see Inkumsah as he was requested, and there, Inkumsah told him he was aware of the difficulties his, Khubchandani’s firms were experiencing in the matter of import licences and promised to help them.

647. Some days later Khubchandani said he went to see Inkumsah again upon Inkumsah’s invitation, and that on that occasion, Inkumsah told him he had seen the Minister, Mr. Kwesi Armah and that Mr.

Kwesi Armah had said that he would issue licence to the Glamour firms if they would pay a commission of 10 per cent on the value of the licence to be issued. Khubchandani said upon this he told Inkumsah that as he had applied for £1 million licence he could not possibly pay 10 per cent, i.e.

£100,000 on it.

648. At that Khubchandani said he decided to seek interview with Mr. Kwesi Armah to verify the allegation, but none of his applications for interview was ever granted. Luckily he said, he met Kwesi Armah at a party at the Castle, Osu, and there took the opportunity to tell him of the unsuccessful efforts he bad been making to have an interview with him. Kwesi Armah, who told him he should keep on trying until he could succeed or else put what he wanted to discuss with him in writing.

Khubchandani said that at that stage he told Kwesi Armah that he knew Inkumsah, and Kwesi Armah then replied that as he knew Inkumsah, there was no need that he should come to see him, Kwesi Armah.

649. The allegation continued that Khubchandani saw Inkumsah again at the latter’s request and Inkumsah convinced him that no one could get licence for 1966 except upon payment of 10 per

[p.392] of [1968] GLR 385 cent commission, and that the commission had been fixed by the ex-President himself, but that in his case Kwesi Armah had agreed to reduce the percentage.

650. Khubchandani said that eventually he agreed to pay a commission but in view of the high percentage, he asked for £100,000 worth of licence; he then prepared the relevant applications and handed them to Inkumsah. Subsequently, he said, Inkumsah told him that Kwesi Armah had said that he would rather give him licence for £250,000 instead of the £100,000 he required, and would take a commission of £17,500 or ¢42,000.

651. He further alleged that Inkumsah saw him again on a subsequent date and told him that Kwesi Armah had decided to give him licence for £300,000 and not £250,000 as he had earlier promised, that the licence would be dispatched by registered post, and further that he Kwesi Armah was accompanying the ex-President to Hanoi, and on his return would require Khubchandani to pay something more for the extra £50,000 worth of licence.

652. Khubchandani added that in compliance with directions given to him by Inkumsah, he paid the £17,500 or ¢42,000 on February 17, 1966 to Inkumsah in Inkumsah’s house, and that when he arrived at the house, an Escort Police constable orderly to Inkumsah was on guard at the gate and let him in.”

I think that the following question which counsel for the accused asked Khubchandani, and the latter’s answer thereto, at p. 150 of the report are very pertinent:

“Counsel: Now, Mr. Khubchandani, I am suggesting to you that this story that you paid 42,000 cedis to Mr.

Inkumsah in his house on the 17th of February, 1966 is not true.

Witness: It is a fact which I will never forget.”

It is important to note that about four or five days after the alleged payment of 42,000 cedis or £17,500, that is, about 21 or 22 February 1966, Khubchandani received two separate licences each for 360,000 cedis totalling £G300,000. On 11 March 1966 Mr. Khubchandani received a letter from the Ministry of Trade dated 23 February 1966, whereby he was advised that his company had been upgraded to group B, and that they were to pay the sum of ¢720. When Mr. Khubchandani made inquiry about this upgrading from the Principal Secretary he was informed that officially he was still in the D group.

The method of grading and deciding the value of licences was described by Mr. Arkaah, Principal Secretary, Ministry of Trade, in his evidence before the commission. He said that after applications

[p.393] of [1968] GLR 385 had been sorted he would instruct his senior officers to put all those in a file, and where there was no file for a particular applicant a new file would be opened. He continued his evidence as follows:

“Then I would ask them to indicate for me the past performance for three or four years of the applicant. Then I would indicate for the Minister’s own guidance, the total number of applications we had been able to sort out for this particular applicant, and the total value, and then the Minister would look at these figures and he would indicate on the file in what category we should place the applicant, that is whether in Category A, B, C or D as the case may be; what value of licence should be given to the applicant. In some cases these instructions were in writing. It is in very few cases this was done by word of mouth.

Commissioner: So he himself would grade them in the category in which a particular applicant whose paper is called for should be placed and he would indicate what value should be given?

Witness: Yes Sir.”

In my view these facts must be considered against the general background of how Kwesi Armah performed his functions in connection with the issue of import licences. In paragraph 123 of the report the learned commissioner states:

“The only inference to be drawn from the evidence given by Mr. Arkaah that Mr. Kwesi Armah called for applications of particular applicants and had licences issued to those usually when he arrived in the office in the morning, or when the particular applicant or his representative called on Kwesi Armah in his office is that applicants or their friends or other persons acting on their behalf made contacts with Mr. Kwesi Armah, during and after business hours, and that the issue of licences was based upon and influenced by those contacts, and are not based upon or in pursuance of the regular procedure or upon any reasonable businesslike system.”

The learned commissioner further states:

“134. It emerges positively from these facts that Mr. Kwesi Armah departed from the regular procedure for the administration of import licence and did so with intent that he should be enabled to practise the policy he calls ‘selectivity’, for the benefit of a group of importers to the detriment of others particularly to the detriment of the economic and financial intent of the Republic.

[p.394] of [1968] GLR 385

135. I therefore find that there were irregularities during Mr. Kwesi Armah’s period and I find further that those irregularities are fraudulent.”

The evidence adduced at the commission satisfied the learned commissioner that during the “relevant period” the grant of import licence was sometimes made as a result of contact with a Minister, or upon payment of bribes. That a fixed commission of ten per cent on the value of the licence, was paid, but that this was reduced in special cases to five per cent. As the learned commissioner states in paragraph 152 of the report: “The rate of the commissions seemed to be a matter of notoriety known to all traders, and many of the witnesses spoke of it as a matter of common knowledge.” Concluding his observations on the evidence on general allegations of fraud and malpractices, the learned commissioner stated at paragraph 157 of the report:

“Upon this overwhelming evidence I find it proved conclusively that there was open corruption and malpractices in the manner of grant of import licences during the relevant period, and that the allegations in this regard are well founded.”

The crucial question is whether the accused and Kwesi Armah were acting in concert. As Bruce J. says, quoting from Sir William Erle (Erle on Trades Unions, p. 31) in R. v. Plummer [1902] 2 K.B. 339 at p. 348, C.C.R. “the external act of the crime is concert, by which mutual consent to a common purpose is exchanged.” The overt acts and the surrounding circumstances in this case, if I may recapitulate them briefly, are that towards the end of 1965 Mr. Khubchandani’s company applied for one million pounds worth of licence, but received no acknowledgement of their application. In January 1966 the accused, unsolicited, offered to assist the company to get a licence. Some few days later the accused invited Khubchandani and told him that Kwesi Armah would issue licence to his companies on payment of the well-known ten per cent on the value of licence to be issued. Later Khubchandani met Kwesi Armah at a party and told him of his unsuccessful efforts to see him. Kwesi Armah is alleged to have told Khubchandani that there was no need to seek an interview with him since Khubchandani knew the accused. The inference here is that the accused was already briefed on the subject about which Kwesi Armah must have suspected Khubchandani wanted to see him. In view of the huge commission which was demanded on the one million pounds import licence Khubchandani’s company decided to abandon their original application, and they prepared fresh applications for £G100,000 worth of licence. These applications were handed to the accused, whose normal duty was unconnected with the issue

[p.395] of [1968] GLR 385 of import licences. It is clear that he was expected to take these applications to Kwesi Armah; but this was a departure from the normal procedure which Kwesi Armah outlined at his press conference in September 1965 when he directed that all applications should be addressed to the Minister personally, under registered cover. The next development in this chain of events is that the accused told Khubchandani that Kwesi Armah would grant him a licence for £G250,000 instead of the £G100,000 which he had applied for, and that the commission would be £G17,500 or ¢42,000. The inference here is that the accused had at this stage met Kwesi Armah and discussed with him Khubchandani’s a application for £G100,000 worth of import licence. According to Khubchandani the accused saw him again and informed him of Kwesi Armah’s decision to grant him licence for £G300,000 instead of £G250,000. The significance of the increase in the value of the import licence was that the commission would increase proportionately. The accused informed Khubchandani that the licence would be dispatched to him by registered post, though he handed it in personally. The accused must have got this formation from Kwesi Armah. On 17 February 1966 Khubchandani paid £G17, 500 or ¢42,000 to the accused, and about 21 February or 22 February Khubchandani received by registered post, a licence for £G300,000 in exactly the same manner and of the same value as the accused said Kwesi Armah was going to do it. This licence was issued by Kwesi Armah himself. As I have said earlier in this judgment the accused had nothing to do with the issue of import licence. It would appear that the upgrading of Glamour Garment Factory from grade D to grade B was made by Kwesi Armah ex post facto, and the licence was issued by him before the fee for grading was paid. This was a most unusual and irregular procedure. But the inference from the evidence is inescapable that it was done with a deliberate purpose.

I think that from these facts the inference is irresistible that the accused was acting in concert with Kwesi Armah and that their common purpose was the issue of the £G300,000 worth of import licence to Glamour Garment Factory upon the payment of the sum of £G17,500 or ¢42,000 bribe, which was euphemistically called commission. I can hardly imagine any reason for granting Khubchandani’s company three times the value of the licence they applied for, other than the payment of the commission to Kwesi Armah through the accused. On the whole evidence I am satisfied that the findings of the learned commissioner in paragraph 672 of the report are amply justified.

The charges counts (5) and (6) are based upon the learned commissioner’s findings in paragraph 690 of the report, exhibit A.

[p.396] of [1968] GLR 385

This paragraph reads:

“I find that Inkumsah:— (i) demanded and received the amount of £50 from Nketia which he alleged was fees for registration of his business, and for registration of Nketia as an importer;

(ii) demanded £5,000 from Nketia as commission on £15,000 licence to be granted to Nketia;

(iii) received £1, 200 on account of a bribe of £5,000 he demanded. In short I find that Inkumsah extorted these moneys from Nketia.”

The evidence from which these findings were made came from two witness, Barnes and Nketia. The learned commissioner found both Barnes and Nketia as truthful witnesses, and he accepted their evidence, which was uncontradicted. In my judgment, there is ample evidence to support the findings of the learned commissioner, and consequently the charges in counts (5) and (6).

On being called upon to show cause the accused ascended the witness-box and gave evidence on his behalf. He gave evidence of several ministerial posts he held during the old regime, but said that he was never the Minister of Trade. He said that he knew Khubchandani only casually, and denied that on 17 February 1966 Khubchandani paid the sum of £17,500 or ¢42,000 to him in his house. He said that on that day he was in Parliament, and as his functions were the same as those of the Speaker he could not leave Parliament when it was in session. It was not true that he was in his house on the morning of 17 February 1966. The accused could have completely disproved the evidence of Khubchandani by producing a copy of the Hansard for 17 February 1966, but he did nothing of the sort. I have myself looked into the Hansard of that date and I am satisfied that there is no record that he was there. Indeed, the Hansard of 17 February 1966 shows that the accused was not present when he was called upon to perform his usual function. He admits under cross-examination that he knows Khubchandani and his father very well, but denies that he knew Glamour Garment Factory were having difficulty over import licence. He said in effect that his orderly, Alidu Kotokoli, who gave evidence that he saw Khubchandani carry a bag to his house was coached to give evidence against him. I have concluded that it is palpably untrue that the accused was in Parliament at the material time, and in my view his evidence about Alidu Kotokoli is utterly ridiculous, and I do not think that it is in the least reasonably true.

I hold that there is evidence to support the charges against the accused in counts (1), (2), (3) and (4). I am therefore satisfied beyond reasonable doubt that the guilt of the accused on counts (1), (2), (3)

[p.397] of [1968] GLR 385 and (4) has been clearly established, and I convict him on these counts accordingly.

The accused said that he did not know Nketia before he gave evidence at the inquiry. He denied that Barnes introduced Nketia to him. He however admitted that he knew Barnes as the party chairman of his constituency, but he said that at the time of the inquiry his relationship with Barnes was strained. He denied that Nketia paid £G1,200 to him. I do not believe the evidence of the accused, and do not think that it is even probable. I am satisfied beyond doubt that the guilt of the accused on counts (5) and (6) is clearly proved, and I convict the accused accordingly on each of these two counts.

In this case I have borne in mind that the onus of proof on the accused is discharged on balance of probabilities, as I have discussed in my judgment in the case of the Republic v. Akainyah [1968] G.L.R. 330. I have convicted the accused on all the counts because in my opinion he has failed to show cause. Sentence:

1st count: 3 years’ imprisonment.

2nd " " "

3rd " " "

4th " " "

5th " " "

6th " " "

Sentences concurrent.

The accused is informed of his right of appeal.

DECISION Accused convicted and sentenced.

S. K. T.