REPUBLIC vs. JANTUAH AND OTHERS [1968] GLR 689

CASES REFERRED TO

(1) R. v. Grunshie (Abisa) (1955) 1 W.A.L.R. 36, W.A.C.A.

(2) R. v. Ansere (1958) 3 W.A.L.R. 385, C.A.

(3) Commissioner of Police v. Bandaily (1958) 3 W.A.L.R. 351.

(4) Republic v. Asafu-Adjaye (No. 2) [1968] G.L.R. 567, C.A.

(5) Credland v. Knowler (1951) 35 Cr.App.R. 48, D.C.

(6) Jones v. Thomas [1934] 1 K.B. 323; 103 L.J.K.B. 113; 150 LT. 216; 98 J.P. 41; 13 L.G.R. 424; 30 Cox C.C. 47, D.C.

(7) R. v. Kassardjian (1955) 14 W.A.C.A. 686.

[p.691] of [1968] GLR 689

NATURE OF PROCEEDINGS

APPEAL against the acquittal of the respondents on charges of conspiracy to accept bribe to influence a public officer contrary to sections 23 (1) and 252 (1) of Act 29, accepting bribe to influence a public officer contrary to section 252 (1) and conspiracy to fabricate evidence contrary to sections 23 (1) and 213 of Act 29 based on the findings of a commission appointed under the Corrupt Practices (Prevention) Act, 1964 (Act 230). The facts are fully stated in the judgment.

COUNSEL

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

Harold Darkoh for the first respondent.

Koi Larbi for the second and third respondents.

J. K. Agyemang (with him K. Narayan) for the fourth respondent.

Fifth respondent in person.

JUDGMENT OF AMISSAH J.A.

Amissah J.A. delivered the judgment of the court. The Republic appeals from the decision of Edusei J. acquitting the five respondents who were tried by him according to the procedure laid down by the Corrupt Practices (Prevention) Act, 1964 (Act 230). After adverse findings had been made by the commission appointed under the Act (hereinafter referred to as the Ollennu Commission) against the five persons, the Republic preferred charges against them. The first count in respect of the first three respondents, namely, Jantuah, Brobbey and his wife, who is also called Adwoa Pinaman, was conspiracy to accept bribe to influence a public officer contrary to sections 23 (1) and 252 (1) of the Criminal Code, 1960 (Act 29). The particulars of the offence were as follows:

“Francis Adubuobi Jantuah, Joseph Wireko Brobbey and Mrs. Brobbey alias Adwoa Pinaman, in or about January 1966 at Accra in the Eastern Region acted together with a common purpose to commit a crime, to wit that the said Francis Adubuobi Jantuah should accept valuable consideration, namely, the sum of £G15,000 (N¢30,000) from one Waseef Saidallah Dakmak under colour of having unduly influenced one Kwesi Armah then Minister of Trade, a public officer, in respect of his functions as such public officer in issuing of import licences valued at £G210,000 (N¢420,000) to the said Waseef Saidallah Dakmak in respect of Dakmak Trading Company, Zagloul Paints Company and Tarek Trading Company.”

Jantuah alone was charged with the substantive offence of accepting bribe to influence a public officer, an offence which was particularised thus:

[p.692] of [1968] GLR 689 “Francis Adubuobi Jantuah, on a day in January 1966 at Accra in the Eastern Region accepted valuable consideration to wit £G15,000 from one Waseef Saidallah Dakmak under colour of having unduly influenced one Kwesi Armah then Minister of Trade, a public officer, in respect of his functions as such public officer in his issuing of import licences to the value of £G210,000 (N¢420,000) to the said Waseef Saidallah Dakmak in respect of Dakmak Trading Company, Zagloul Paints Company and Tarek Trading Company.”

Finally, Brobbey, together with the fourth and fifth respondents Darko and Koranteng, were charged with conspiracy to fabricate evidence contrary to sections 23 (1) and 213 of the Criminal Code, 1960 (Act 29), in that:

“Joseph Wireko Brobbey, Joseph Anthony Darko and E. M. Owusu Koranteng in or about April 1966 at Accra in the Eastern Region, acted together with a common purpose and with intent to defeat the course of justice in making a document containing a false statement to the effect that an amount of £G5,000 (N¢10,000) paid by the said J. W. Brobbey to one Waseef Saidallah Dakmak was the refund on 16 January 1966 by the said E. M. Owusu Koranteng of the full amount given ex gratia to the said E. M. Owusu Koranteng for import licence negotitions with intent to mislead Commissioner Nii Amaa Ollennu, a public officer, acting in a judicial proceeding namely: the Import Licence Commission of Enquiry whereas in truth the said £G5,000 constituted part only of a bribe of £G15,000 (N¢30,000) paid by the said W. S. Dakmak through the said J. W. Brobbey to one Francis Adubuobi Jantuah, as ten per cent commission on £G210,000 (N¢420,000) worth of import licences.”

Briefly the case of the prosecution was that Jantuah, who was at the material time a Minister of State, had demanded ten per cent of the face value of import licences of £G210,000 granted to one Lebanese merchant by the name of Dakmak. The demand was conveyed through the Brobbeys, man and wife, eventually to Dakmak. After some bargaining the £G21,000 which is what the ten per cent comes to, was reduced to £G15,000. And this was paid by Dakmak to Brobbey who in turn handed it to Jantuah. This was broadly the story that the learned commissioner accepted and was the substance of the adverse findings made against the first three respondents. The

[p.693] of [1968] GLR 689 particular transaction which involved a great deal of evidence, required tremendous care in the sifting of it and the conclusions to be drawn from what was accepted and it seems to us that the commissioner performed this difficult task admirably. But the count of conspiracy to accept bribe to influence a public officer laid against Jantuah and the Brobbeys was dismissed by the learned trial judge. His ground for doing so being that the necessary pre-condition for the institution of proceedings in court provided by Act 230 had not been satisfied in that no adverse finding was made by the Ollennu Commission against the Brobbeys. The commissioner had accepted the explanation given by the Brobbeys, who were two of the three alleged conspirators, as to their involvement in the transaction, as reasonably probable. As in law an accused person was entitled to an acquittal whenever his story was found not only true but merely reasonably probable, the Brobbeys were entitled to an absolution from criminal involvement in this affair and therefore to their acquittal on the conspiracy charge. Jantuah on this basis, of course, had to benefit from the release of the Brobbeys on the simple but adequate ground that a man cannot conspire with himself. If the alleged co-conspirators are held not guilty, so must he also be.

What the learned commissioner said which led the learned trial judge to the conclusion may be found in paragraphs 1302, 1303 and 1305 of his report, which are as follows:

“1302 … I have considered the explanation they [that is the Brobbeys] gave that they were compelled by circumstances to act as unwilling agents in the demand and collection of the bribe. In this connection there is one fact which we must not lose sight of, it is that but for the instructions of Jantuah, Mrs.

Brobbey might not have obtained a licence. Therefore the Brobbeys were under obligation to Jantuah and Kwesi Armah.

1303. One most important fact which demonstrates the reasonableness of their explanation is the admission by Koranteng and Dakmak that there was no mention of commission and at that stage they might find themselves in awkward situation if they should attempt to back out …

1305. While I think that the explanation given by the Brobbeys as to their complicity in the unlawful demand and payment of bribe is reasonably probable, I feel that they took more than the usual interest an involuntary participant should take. But I should deal with this in connection with another issue.”

The Republic complains that by focusing his attention only on the findings here quoted, the learned judge completely missed the substance of the Ollennu Commission’s findings on the Brobbeys. The

[p.694] of [1968] GLR 689 crucial issue arising for determination revolved round the nature of the explanation given by the Brobbeys which the learned commissioner found to be reasonably probable. In criminal cases explanations of widely differing character may be offered by an accused. Some may provide a complete defence to the charge; some though not meeting the charge may ask for a sympathetic construction to be put on conduct which on any view is criminal. The first type of explanation exonerates the accused. The second merely mitigates his offence. There is yet a third type of explanation which may do neither. All these explanations may be true, or a court may find them reasonably probable. Is a court which finds an explanation which mitigates an offence reasonably probable justified in acquitting the accused? That is the question which we think, with all due deference, the learned trial judge failed to direct his mind to. The Ollennu Commission found the explanation of the Brobbeys reasonably probable, it is true, but does that necessarily mean that the Brobbeys were not guilty of a conspiracy to accept a bribe to influence a public officer? To be able to answer this question the commissioner’s findings call for interpretation.

The explanation of Brobbey himself was extracted and made paragraphs 1241 to 1243 of the report. Mrs. Brobbey’s explanation appears at paragraphs 1235 to 1237. They are lengthy stories of how they got involved in this particular licence transaction, which we need not reproduce here. It is enough to say that the pith of both explanations is that they conveyed the request of Jantuah, the Minister, for a ten per cent commission on the licence to Koranteng, the fifth respondent, and to Dakmak. Clearly they agreed to collect the percentage for the Minister. They therefore, without doubt, brought themselves within the mischief which sections 23 and 252 of the Criminal Code, 1960 (Act 29), sought to prevent. Unless the circumstances show that they had acted as innocent agents, their explanation had provided no valid answer to the charge. But they cannot be held to be innocent agents if they knew that what the Minister sought was a bribe and they nevertheless agreed to collect it for him. The evidence admits of no doubt that they knew it was a bribe. Mrs. Brobbey herself had asked for a licence for her own business, Oyoko Fisheries. Her licence was given to her by Jantuah together with those for Dakmak. When Jantuah told her that ten per cent commission was being charged on the licences, she said in her evidence before the commission, “I then asked him whether he was charging ten per cent commission on my licence also and he said no, as far as mine is concerned he was not charging ten per cent but he was charging ten per cent on the licence

[p.695] of [1968] GLR 689 for the Lebanese.” Thus Mrs. Brobbey, who is a maternal cousin of Jantuah, did not have to pay this levy. But Dakmak had to. We do not think she can successfully say that she did not know that the demand was for a bribe. And neither can her husband, Brobbey, who held the high office of Senior Assistant Secretary in the Ministry of Agriculture at the time.

Now, if the explanation of the Brobbeys did not exonerate them from criminal liability, and as we have indicated, we do not think that it did, then the learned trial judge was surely wrong in finding them not guilty merely because the commissioner had found their explanation reasonably probable. We are inclined to think that the learned judge fell into this error because of the status that the expression “reasonably probable” has acquired in our criminal jurisprudence over the past decade. Since the case of R. v. Abisa Grunshie (1955) 1 W.A.L.R. 36, W.A.C.A. and R. v. Ansere (1958) 3 W.A.L.R. 385, C.A., which the learned judge himself cited in his judgment, the view has gradually developed until now that it has almost attained the position of dogma that no judgment in a criminal case can be sound if it does not include the incantation which must be uttered by the judge in some such form as “I do not believe the defence or think it reasonably probable.” Of course those cases laid down no such principle. All they did was to examine the problem of the onus of proof from the standpoint of the case for the defence. Where a court convicts only because it takes the view that the accused person’s defence is not to be believed this is wrong because it is equivalent to shifting the burden of proof on the defence. For it does amount in effect to saying that the accused is entitled to an acquittal only if be proves his defence to the satisfaction of the court. The court would then, by implication, be relieving the prosecution of its duty to prove its case beyond reasonable doubt. A court cannot therefore stop short at considering and saying that it is convicting the accused because it does not believe his story. It must go further and show whether his story does not create a reasonable doubt either. For a judge who says that he has convicted an accused because he did not believe the defence openly confesses that he has not properly applied the known criteria for the determination of the ordinary criminal case. But if the court properly considers the question of the burden of proof, no particular form of words is necessary to justify the conviction of an accused. This, we think, and no more, was what the cases of Abisa Grunshie and Ansere (supra) sought to say. Be that as it may, they have created a fetish of the words “reasonably probable” in our criminal law. And just as no conviction is said to be

[p.696] of [1968] GLR 689 valid without those words appearing in some part of the judgment or direction to a jury as the case may be, so the corollary has apparently been taken, and in this case seems to have been assumed by the learned judge, that where those words appear in a description of an accused person’s story, then that accused cannot be found guilty of the offence charged. We think this grossly erroneous. Much as we agree with the learned judge that proceedings under Act 230 may not be instituted by the Attorney-General without a prior adverse finding made against the prospective accused by the commission appointed under the Act, we disagree with him that there was no adverse finding against the Brobbeys in this case. For the commissioner did specifically find that Jantuah’s demand for ten per cent commission which was later reduced to £G15,000 was conveyed by the Brobbeys to Dakmak and the agreed £G15,000 commission was delivered by Dakmak to Brobbey before it was handed over to Jantuah.

In so far as the learned judge thought that the charge must be dismissed because no adverse finding was made against two of the three alleged conspirators, he was wrong, and the charge based on the Ollennu Commission’s findings has not been met. But learned counsel for the respondents affected by this charge have submitted that on the authority of Commissioner of Police v. Bandaily (1958) 3 W.A.L. R. 351, the charge cannot be sustained because even if the respondents conspired to accept ten per cent on the licence, it was clear from the representation eventually made to Dakmak who paid the money, that it was not for any of the respondents but for Kwesi Armah and even for the now deposed President. And indeed the case of Bandaily (supra) which was decided by Ollennu J. (as he then was) sitting in his appellate capacity in the High Court, does lend support to this contention. The appellant, Bandaily, was convicted by a magistrate under a section of the Criminal Code then in force and which is now our section 252 of Act 29 of accepting a valuable consideration of £G60 under the pretence of being able to influence a public officer. The evidence showed that the demand by the appellant for the money had been coupled with the representation that the money was intended for the public officer concerned, a representation which turned out to be false. Ollennu J. in allowing the appeal held that the section was not intended to extend to cases where the acceptance of the valuable consideration was for or on behalf of someone other than the acceptor.

With all due deference, the decision in Bandaily’s case does not commend itself to us. The only possible argument that could be advanced in its justification is that it was made at a time when criminal statutes were required to be strictly construed which was taken to

[p.697] of [1968] GLR 689 mean that they should always be interpreted favourably to an accused. It is a matter of some surprise to us that it has stood unchallenged for so long. Then, as now, the section which fell for construction was framed in the following terms:

“Whoever accepts, or agrees or offers to accept any valuable consideration, under pretence or colour of having unduly influenced, or of agreeing or being able to influence, any person in respect of his duties as a public officer or juror, is guilty of a misdemeanour.”

There is this one inconsequential difference in that the word “functions” has been substituted in the present Criminal Code for the word “duties. “ Ollennu J. we think correctly stated at p. 355 that the offence contained two elements:

“1. Acceptance, agreement or offer to accept a valuable consideration for; 2. Pretence [and here we may add even a true representation because the section speaks of ‘pretence or colour’] of service already rendered or to be rendered in the future; the service being influencing a public officer or juror.”

We also agree with him that “in this section the acceptance, offer or agreeing to accept valuable consideration is not in any way qualified. “ If that is so it seems to us an unjustified qualification to limit the operation of the acceptance to cases where the acceptor indicates that he is accepting for himself. The construction that Ollennu J. put on the section imported the words “for himself “ as qualifying “accepts” and “to accept” in a provision which he himself recognised contained no qualification whatsoever. Moreover, it introduced unnecessary complications into a subject in which none was otherwise called for. Admitting for the moment that it is the person who accepts for himself who is caught by the section, the decision goes further and relieves him from liability as long as he takes care to add the representation that he is going to give the money to the public officer. Whether the representation is true or false, having satisfied the giver of the consideration on this score he may happily proceed to pocket the consideration he has accepted himself without fear of liability under the section. This result is enough to stultify the object and effect of the section. It is no answer to say that the person who obtains by a false pretence is liable for fraud by false pretences under the Criminal Code and therefore he who adds the false representation as to the eventual destination of the valuable consideration is catered for.

The offence of fraud by false pretences has its own peculiar features and problems; one which we may here recall is that the representation, if it is to fall within the offence, must be of fact not of

[p.698] of [1968] GLR 689 intention. Thus not all false representations are covered by that offence. We do not think we should set a premium on the clever rogue. Is it impossible to imagine, or is it contrary to the clear provisions of the section, that the consideration accepted should be utilised as a means of influencing the public officer or juror? Of course not. Then why should it be outside the scope of the section if the understanding of the giver is that the consideration is to be passed on to the public officer already influenced or about to be so influenced ? In spite of the fact that Bandaily’s case has remained an authority for ten years, in our opinion, its life has been totally undeserved and ought now to be determined. We hold that Bandaily’s case was wrongly decided. It is as much an offence under section 252 of Act 29 to accept the valuable consideration for another as it is to accept for oneself. Therefore even if it is believed that the respondents represented that the money was for Kwesi Armah and not for Jantuah, it ought not to make the slightest difference to the result.

The learned trial judge dismissed the count of accepting money to influence a public officer brought against Jantuah primarily because he thought he was in a position to substitute his view of the credibility of the witnesses for that of the commissioner. But as was said in the Republic v. Asafu-Adjaye (No. 2) [1968] G.L.R. 567, C.A., the jurisdiction of the High Court judge in proceedings under Act 230 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. And it is a well-known principle that such an appellate tribunal will not disturb the findings of fact if there was evidence before the trial court to support them. The trial court has the advantage of observing the witnesses give their evidence. Against this all what the appellate tribunal is capable of is an evaluation of the evidence from cold colourless print. Appellate tribunals, realising the limitations imposed on them by their position have often said, and very rightly, that the trial court’s assessment of the facts is to be preferred to theirs. The learned commissioner who had seen and heard the witnesses thought that where there was a conflict between the evidence of Koranteng and Dakmak, he would accept Koranteng’s evidence. Edusei J. who had not heard either of those witnesses had the “strong view” that Dakmak’s evidence rather should be preferred. But for the purpose of judging the credibility of the witnesses Edusei J. was not anywhere near as well placed as the learned commissioner. The question which the learned trial judge should have asked himself was whether there was evidence which if believed would justify the conclusion arrived at by the commissioner. To this, there can be but one answer and

[p.699] of [1968] GLR 689 there was. Both the Brobbeys spoke of giving the £G15,000 commission to Jantuah. Both said he had demanded the commission for Kwesi Armah as consideration for issuing the licences to the tune of £G210,000.

In the circumstances the only point worth the attention of the court is whether the evidence of the Brobbeys being evidence emanating from a tainted source required any particular care in the manner it was treated. And if so whether it was treated with that care. In other words was the evidence of the Brobbeys treated with the caution it deserved? Learned counsel for Jantuah has said that the witnesses mentioned by the learned commissioner as providing corroboration of the Brobbeys’ story were themselves accomplices whose evidence, far from being corroborative, itself required corroboration. And in the absence of corroboration the commissioner failed to warn himself of the danger of relying on the evidence of accomplices. The need for a judge to treat the evidence of an accomplice with caution has often been stated in the form of a rule that he should warn himself. The desire for simple recognisable solutions has led to the view that any judgment concerning accomplices which contains the words “I warn myself” must be acceptable and conversely that judgment which sees no corroboration yet omits these ceremonial words should be rejected as unsound. The commissioner did not record the charmed words in his report. What he did say was, “I have treated Mr. and Mrs. Brobbey as accomplices.” This had been attacked as inadequate. But when a lawyer and a judge of the experience of the commissioner in the examination of evidence says that he treats some of the witnesses as accomplices, what can he possibly mean? Surely it must be that he is conscious of the fact that those witnesses are party to the criminal act under consideration and therefore he regards their evidence within the context of the legal rules on accomplices. And in our opinion that is all that is necessary. No ceremony need attend the discovery of an accomplice or the utilisation of his evidence. The law does not require that any particular form of words be spoken before his evidence unaccompanied by corroboration is believed.

That is how the matter should be viewed where the fact-finding tribunal is a judge sitting alone or a legally trained person in an analogous position. Of course, it would be otherwise if that tribunal is a jury. For jurors being untutored in the law have to rely, and are made to rely, entirely on the judge for guidance on questions whether of law, strictu sensu, or of legal practice. In a trial by jury, therefore, the presiding judge is under an express duty to instruct the jury on who in law is an accomplice and how his evidence ought to be regarded by them. A complaint, then, that the judge has failed to

[p.700] of [1968] GLR 689 direct the jury on the necessity to treat the evidence of an accomplice with caution would be a complaint of substance. For if established it would mean that the judge had deprived the jury of the opportunity of arriving at their decision through the application of true legal principles. And that would, normally be sufficient to vitiate the jury’s verdict.

The learned commissioner was satisfied that the £15,000 was paid to Jantuah in the manner alleged by the Brobbeys. He saw the witnesses and was in the best position to judge their veracity. He was not unconscious of the fact that they were accomplices. Nevertheless he was impressed with their evidence and thought it safe to rely on it. In the circumstances it is difficult for us to understand what the learned judge meant by saying that he was in doubt about the veracity of witnesses of whom the commissioner felt no doubt. As we have said already he had not seen the witnesses and therefore was in no position to assess their credibility. If what they had said was improbable, that may have made some difference, but there was nothing intrinsically improbable about the Brobbeys’ evidence.

The learned commissioner went even further and said that he found “sufficient corroboration of their evidence in the evidence of Dakmak, Koranteng, of Jantuah himself, and in a host of circumstantial evidence”: see paragraph 1304 of the report. The commissioner did not pin-point the items of corroboration. Mr. Harold Darkoh, counsel for Jantuah, has said that Dakmak and Koranteng are themselves accomplices. Two pieces of circumstantial evidence, however, appear to us ample corroboration of the Brobbeys’ evidence. Although Jantuah had collected the licences for Dakmak and had signed for them, in a statement to the police made on 6 June 1966, he completely denied his signature and knowledge of this import licence transaction. He had no reason for denying his signature unless the admission of it would involve him in the transaction and lead to the discovery of his part in the criminal aspect of it. He told this lie we think, to show total want of connection with the licences and the consequent payment of bribe. There was no point in telling this deliberate falsehood unless Jantuah had some guilty association with the import licences. A lie told by an accused to the police or before the commencement of proceedings does not necessarily amount to corroboration. But in certain circumstances it may do so. Such a lie will amount to corroboration if it is of such a nature and made in such circumstances as to lead to an inference in support of the evidence which requires corroboration: see Credland v. Knowler (1951)

[p.701] of [1968] GLR 689

34 Cr.App.R. 48, D.C. approving dicta in Jones v. Thomas [1934] 1 K.B. 323 at p. 327 and 330, D.C. And see also R. v. Kassardjian (1955) 14 W.A.C.A. 686. We are satisfied in this case that Jantuah’s lie amounts to corroboration. His guilty association with the Dakmak licences can only have been the demand and receipt of a bribe. And that was what he was trying to cover up.

The other item of corroboration that we see is one which was admittedly not referred to by the learned commissioner. It is the discovery in Jantuah’s house of £G7,000 in cash and for which no satisfactory explanation was offered by him. He signed for the licences on 20 January 1966 and delivered them to the Brobbeys the following day, that is, on 21 January. According to the evidence, the demand was then made. Other evidence suggests that the £G15,000 in cash was paid about a week later, namely, at the end of January. Less than a month after this, on 24 February, there was the revolutionary change in government and £G7,000 odd was found in Jantuah’s room in cash. This evidence was indirectly supported by Adjoa Butah who said that there was a suitcase containing a large amount of cash. Jantuah’s answer to this was again a flat denial which was found to be false. Clearly he had no honest explanation to give and he could not truthfully explain the source of this large amount of cash.

Taking all this into account, we are of the opinion that the learned commissioner was right in thinking that there was corroboration of the Brobbeys’ evidence and that the learned judge was wrong in holding the contrary.

Finally, the State also appeals against the acquittal of the second, the fourth and the fifth respondents on the charge of conspiracy to fabricate evidence. There was clear evidence that evidence was fabricated by the respondents with the object of deceiving the commission. The learned judge took the view that as the evidence was fabricated in April 1966, this was outside the relevant period for the purposes of the inquiry before the commissioner. Consequently it was not a subject on which an adverse finding should lead to a prosecution under Act 230. Mr. Boison, counsel for the State, has put his case thus: The terms of reference of the commission were set out in the Corrupt Practices, (Prevention) (Appointment of Commission) Instrument, 1966 (E.I. 93), para. 2 as follows:

“2. 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:

[p.702] of [1968] GLR 689

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

(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.”

The relevant period being from October 1963 to February 1966. As far as matters “pertaining to the grant of Import Licences during the relevant period” in paragraph (c) above are concerned, all that is necessary is to find out whether there was a grant of a licence during the period; then any matter whether within or outside that period, which relates to the grant is a proper subject for the investigation of the commissioner. And if adverse findings are made against anybody in connection with those matters then that person is liable to prosecution under the Act irrespective of the fact that the matter in question falls outside the relevant period. In other words “during the relevant period” qualifies only “the grant of import licences” and no more.

In this particular case, although the fabrication of the evidence by the respondents named had taken place outside the relevant period, this was irrelevant as the fabrication was in connection with the grant of a licence during the relevant period. The argument has its attractions and indeed there is a lot of common sense in it. It conforms with the spirit of section 244 of the Criminal Code, 1960 (Act 29), which provides that:

“If, after a person has done any act as a public officer, juror, or voter, he secretly accepts, or agrees or offers secretly to accept for himself or for any other person, any valuable consideration on account of such act, he shall be presumed, until the contrary is shown, to have been guilty of corruption, within the meaning of this Chapter, in respect of that act before the doing thereof.”

If the grant of the licence was during the relevant period, it would seem to be unduly restrictive of the operation of the Act if corruption connected with it, but committed before or after the relevant period, were to be shut out of the commissioner’s purview or excluded from prosecution under the Act. But the difficulty which we have encountered on this question is where to draw the line. Whatever be the delimitation from the point of view of time, we cannot overlook the fact that the Corrupt Practices (Prevention) Act, 1964 (Act 230), was passed to make better provision for the investigation of allegations

[p.703] of [1968] GLR 689 and the punishment of corrupt practices and related matters. Although the evidence which was fabricated was clearly meant to obstruct the course of justice, it does not amount to corruption even within the extended meaning given to it in section 9 of the Act. Is this therefore a charge which can fairly and properly be brought under Act 230? If the offence is not a corrupt one within the statute, then prima facie, it must fall outside its ambit. The argument by which it is sought to bring the offence within the clutches of Act 230, is that the fabrication of evidence was a matter pertaining to the grant of a licence during the relevant period. But if that contention is accepted, it would open the door for any conceivable offence found to have been committed in the course of an inquiry under Act 230 to be brought, charged and prosecuted under it. Such a construction of the Act would strengthen rather than allay fears that the Act is oppressive. Accordingly, we think that the learned judge was right in holding that the offence of conspiracy to fabricate evidence was not a proper charge to be preferred under the Act. But he was wrong in saying that by preferring the present charge under Act 230, the State was forever barred from proceeding against the same accused on the same facts. If the judge had no jurisdiction to try the charge according to the procedure under which it was brought, the trial was a nullity and the consequences should be the same as if there has been no trial at all.

For the reasons stated we allow the appeal of the State in respect of counts (1) and (2) and for the order of the learned trial judge substitute one of a conviction of the first, second and third respondents on count (1) and a conviction of the first respondent on count (2). Subject to what we have said in the immediately preceding paragraph, we dismiss the appeal in respect of count (3)

DECISION

Appeal allowed in part.

First, second and third respondents convicted.

L. F. A.