REPUBLIC vs. JIAGGE COMMISSION; EX PARTE INKUMSAH [1968] GLR 373

CASES REFERRED TO

(1) New Par Consols, Ltd. (No. 2), In re [1898] 1 Q.B. 669; 67 L.J.Q.B. 598; 78 L.T. 312; 46 W.R.

369; 14 T.L.R. 287; 5 Mans. 277, C.A.

[p.375] of [1968] GLR 373 (2) Skinner v. Northallerton County Court Judge [1899] A.C. 439; [1895-9] All E.R.Rep. 1288; 68 L.J.Q.B. 896; 63 J.P. 756; 80 L.T. 814; 15 T.L.R. 433; 6 Mans. 274, H.L. affirming The Queen on the Prosecution of F. H. Skinner v. The County Court Judge of Northallerton [1898] 2 Q.B. 680, C.A.

(3) R. v. Central Criminal Court justices,. Ex parte London County Council [1925] 2 K.B. 43; 94 L.J.K.B. 479; 132 L.T. 666; 89 J.P. 65; 41 T.L.R. 269; 69 S.J. 381; 27 Cox C.C. 734. (4) O’Brien v. R.(1890) 26 L.R.Ir. 451.

(5) Inkumsah v. The Republic [1967] G.L.R. 776, C.A.

(6) R. v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 K.B. 338; [1952] 1 All E.R. 122; [1952] 1 T.L.R. 161; 11 6 J.P. 54; 96 S.J. 29; 2 P. & C.R. 361; 50 L.G.R. 193, C.A. (7) R. v. Akiwumi and Bannerman; Ex parte Dako (1958) 3 W.A.L.R. 372.

(8) Commissioner of Police v. Wood (1956) 1 W.A.L.R. 71, W.A.C.A.

(9) R. v. Mensah and Abutakyi (1956) 2 W.A.L.R. 129, W.A.C.

(10) R. v. Otubu (1943) 9 W.A.C.A. 20.

(11) Gesellschaft v. Attorney-General (1911) 1 N.L.R. 122.

(12) Aidoo v. Commissioner of Police (No. 3) [1964] G.L.R. 354, S.C.

NATURE OF PROCEEDINGS

APPLICATION to the High Court for an order of certiorari to quash an order committing the applicant for perjury made by a commission appointed under the National Liberation Council (Investigation and Forfeiture of Assets) (Amendment) Decree, 1967 (N.L.C.D. 129). The facts are sufficiently stated in the judgment of Ollennu J.A. sitting as an additional judge of the High Court.

COUNSEL

J. Arthur for the applicant.

Mrs. J. Amankwah, State Attorney, for the Republic.

JUDGMENT OF OLLENNU J.A.

On 21 March 1968, a preliminary objection in limine was taken by Mrs. Amankwah, state attorney, to the jurisdiction of the court to entertain the application for certiorari to quash the summary committal of the applicant for perjury made by a commission of inquiry appointed under the Commissions of Enquiry Act, 1964 (Act 250), exercising jurisdiction conferred upon it by the National Liberation Council (Investigation and Forfeiture of Assets)

[p.376] of [1968] GLR 373 Decree, 1966 (N.L.C.D. 72), as amended by the National Liberation Council (Investigation and Forfeiture of Assets) (Amendment) Decree, 1967 (N.L.C.D. 129). 1 overruled the objection, but reserved my reasons for so doing.

Again, on 22 March 1968, I granted the application for certiorari sought by the applicant and ordered the committal order made by the commission to be brought into this court for it to be quashed and accordingly quashed the same, but as in the case of the preliminary objection, I reserved my reasons for the same. I now proceed to give reasons for the two orders.

This matter came before the court upon an application for an order for certiorari to quash the committal of the application to prison for perjury. The committal was made by a commission of inquiry appointed under paragraph 2 (1) of the National Liberation Council (Investigation and Forfeiture of Assets) Decree, 1966 (N.L.C.D. 72), popularly known as the Jiagge Commission.

The said Decree was amended on 24 January 1967 by N.L.C.D. 129 as follows:

“(i) by the insertion immediately before paragraph 2 (10) thereof of the following new sub-paragraph:— ‘(9) (a) Any Commission appointed by virtue of this paragraph shall have all the powers of the High Court under any enactment or otherwise in relation to perjury committed by any witness coming before the Commission or to the failure of any witness to appear before the Commission or to any contempt committed by any person in respect of the Commission as if the Commission were the High Court and, without prejudice to the generality of the foregoing, the following enactments shall, with the necessary modifications, apply in relation to any such Commission as if the Commission were the High Court:— Section 152 of the Criminal Procedure Code, 1960 (Act 30).

Paragraphs 67, 70, and 71 of the Courts Decree, 1966 (N.L.C.D. 84); and Rules 21-27 of Order 59 of the Supreme Court (Civil Procedure) Rules, 1954 (L.N. 140A)’; and (ii) by the repeal of paragraph 4 thereof.”

It was by virtue of this paragraph that the committal of the applicant was made and in exercise of the powers conferred by section 152 (1) of the criminal Procedure Code, 1960 (Act 30), which reads:

“152. (1) The Court, if it appears to it that a person has been guilty of perjury in any proceeding before it, may—

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(a) commit him for trial upon indictment for perjury and bind any person by recognizance to give evidence at the trial; or (b) commit him to prison for any term not exceeding six months with or without hard labour, or fine him any sum not exceeding fifty pounds, or impose both such penalties upon him, in each such case as for a contempt of Court.”

Mrs. Amankwah, learned state attorney, for the respondent to the application took, as objection in limine, the point that the supervisory powers of the High Court is limited to inferior courts, therefore certiorari cannot issue to the High Court or a tribunal exercising jurisdiction as a High Court either generally or in respect of a particular subject. She submitted that the only construction of which N.L.C.D. 72 is capable is, that it made a commission of inquiry appointed under N.L.C.D. 72 a High Court for purposes of perjury proceedings. Learned counsel emphasised the words:

“Any Commission appointed by virtue of this paragraph shall have all the powers of the High Court under any enactment or otherwise in relation to perjury committed by any witness coming before the Commission . wrong, but could have been put right, therefore it could have been put right, not in the Court in which it was issued, but in the High Court. The absurdity of that is that the statute itself has made the county court the High Court for this purpose.”

In the fourth case, R. v. Justices of the Central Criminal Court; Ex parte London County Council (supra) the three cases cited above were considered along with other cases, and followed by the King’s Bench Division; and it was held inter alia, that the court may be a superior court for some purposes and an inferior court for other purposes: per Palles C.B. in O’Brien v. R. (1890) 26 L.R.I r. 451 at p. 521.

Learned state attorney submitted upon these authorities that although the Jiagge Commission may be an inferior tribunal when exercising certain functions, it is certainly a High Court when exercising the powers to commit for perjury under section 152 of the Criminal Procedure Code, 1960 (Act 30), and by virtue of N.L.C.D. 129.

Learned state attorney next referred the court to paragraph 7 (1) of the Courts Decree, 1966 (N.L.C.D. 84), which gives the Court of Appeal its jurisdiction and creates a right of appeal from a judgment or order of the High Court to the Court of Appeal. The paragraph reads as follows:

“7. (1) Subject to the provisions of sub-paragraph (2), the jurisdiction of the Court of Appeal whether comprising a full bench or an ordinary bench shall consist of—

(a) the hearing of appeals from any judgment of the High or a Circuit Court in any civil cause;

(b) the hearing of appeals from any decision of the High Court, or a Circuit Court in a criminal matter other than upon a summary trial, exercised in accordance with the provisions of this Decree or any other enactment;

(c) any other jurisdiction conferred by this Decree or any other enactment.”

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She submitted that having regard to the fact that there is a comma after the words “High Court,” and none after the words “Circuit Court” in sub-paragraph (1) (b) the proper construction of the sub-paragraph is that there is absolute right of appeal from any judgment or order of the High Court given in a criminal cause or matter, and that the words “other than upon a summary trial” qualify only the circuit court, and not the High Court.

Learned state attorney therefore submitted that if there is an error of law on the order in question, the only remedy open to the applicant to vacate it, is by appeal to the Court of Appeal under paragraph 7 (1) of N.L.C.D. 84.

In answer to the submissions made by the learned state attorney, Mr. Arthur, learned counsel for the applicant, referred the court to a ruling of the Court of Appeal in Inkumsah v. The Republic [1967] G.L.R. 776 delivered on 18 December 1967, on appeal against the identical committal which is now sought to be quashed. Counsel submitted that that ruling is binding upon me by virtue of paragraph 2 (3) of the Courts Decree, 1966 (N.L.C.D. 84). In that ruling the Court of Appeal held at p. 783: “We do not think that because the commission exercises certain specified powers of the High Court its decisions are equivalent to a decision of the High Court.” They therefore upheld an objection in limine that the order in question is not appealable.

On the merits of the preliminary objection, I must confess that the submissions of learned state attorney are sound, and the authorities cited, quite relevant and to the point. Therefore in normal circumstances, I would have had no difficulty in upholding the objection taken by the learned state attorney. But I am, by virtue of paragraph 2 (3) of the Courts Decree, 1966 (N.L.C.D. 84), bound by the aforesaid ruling of the Court of Appeal. Moreover, to uphold the objection would create this anomalous situation which will result in grave injustice to the applicant, that is to say, the High Court would uphold the contention of the Law Office of the State that the order is an order of the High Court and is appealable to the Court of Appeal against the decision of the Court of Appeal also upholding the contention of the very same Law Office of the State that the self same order is not an order of the High Court and not appealable. This would mean a complete denial of remedy to the applicant to have a wrong redressed. It is for these reasons that I reluctantly overruled the objection to the jurisdiction.

I now turn to the merit of the application.

The order which the court is invited to quash was made on 8 February 1967, and is as follows:

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“Now, Sir, these are only a few examples of the perjury you have committed. This commission finds you guilty of the offence of perjury, and convicts you accordingly. You will be removed from protective custody to serve a sentence of twelve months’ imprisonment with hard labour. If at the end of serving your sentence the order for your detention in protective custody has not been revoked, you will be taken back to protective custody. We hope this will stop further lies because if we have more lies, there will be new perjury offences to answer and we shall deal with them accordingly. May we go on. I may add that the order for imprisonment has been signed by each and every member of the commission.”

Relying upon the authority of R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 All E.R. 122, C.A. and R. v. Akiwumi and Bannerman; Ex parte Dako (1958) 3 W.A.L.R. 372, learned counsel for the applicant submitted that an error of law on the face of the record is a ground for the grant of certiorari. Learned counsel then contended that by virtue of the definition of perjury in section 211 of the Criminal Code, 1960 (Act 29), falsehood stated or verified on oath can only be a crime if it is in respect of material particular; he submitted that there is nothing on the face of the order in question to show that the alleged perjury is in respect of any particulars material to the issue which the commission was charged to inquire into.

Next, learned counsel for the applicant cited Commissioner of Police v. Wood (1956) 1 W.A.L.R. 71, W.A.C.A., R. v. Mensah and Abutakyi (1956) 2 W.A.L.R. 129, W.A.C.A. and R. v. Otubu (1943) 9 W.A.C.A. 20; he contended, upon the authority of those cases, that for committal for perjury to be lawful, the gist or pith of the accusation must be given with sufficient clarity, and the accused should be given opportunity of being heard. He contended that it is apparent on the face of the present order (i) that the gist or pith of the accusation was not stated to the applicant and (ii) that the applicant was not given opportunity of a hearing. Therefore, counsel submitted, there is an error of law on the face of the order and certiorari should therefore issue.

Learned state attorney did not dispute the soundness of the principles of law enunciated in the authorities relied upon to support upon the application. She, however, contended, relying upon a passage in the judgment of Denning L.J. (as he then was) in R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw (supra) that (1) in the examination of the order, the court should confine itself solely to the order and must not look at any facts set out in the affidavit

[p.382] of [1968] GLR 373 in support of the application or of any matters which might have occurred in the course of the proceedings for committal, and (2) the order in question is not a speaking order, therefore the court cannot inquire into the reasons for the order or whether the order is a proper exercise of the commission’s discretion. The passage from the judgment of Denning L.J. at pp. 130-131 as summarised in the headnote at p. 122 is as follows:

“The record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication, but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision . . .

Affidavit evidence is admissible on an application for certiorari to show that the record is incomplete. When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary. When it is granted on the ground of error of law on the face of the record, affidavit evidence is not, as a rule, admissible, for the simple reason that the error must appear on the record itself . . . An error admitted openly in the face of the court can be corrected by certiorari as well as an error that appears on the face of the record.”

It will be seen from that passage that the submission of learned state attorney that the court cannot look at anything except the order itself is not accurate.

Learned state attorney further submitted that since by section 152 (1) of the Criminal Procedure Code, 1960 (Act 30), the High Court may commit for perjury “if it appears to it that a person has been guilty of perjury in any proceedings before it,” the statement by the commission in the order that “these are only a few examples of the perjury you have committed” could only be interpreted to mean that the commission was satisfied as required by the said section 152 (1) of the Criminal Procedure Code, 1960 (Act 30); therefore since this is not an appeal from that order, the court is not entitled to inquire whether or not there is good ground for that satisfaction. This submission of learned state attorney is a misconception of the issues raised in this application.

In order that injustice and hardship should not result to an accused person from summary committal for perjury, the law prescribes the procedure to be followed in order that by the exercise of that summary jurisdiction justice should not only be done, but must manifestly appear to have been done by such summary committal. This procedure is set out in Gesellschaft v. Attorney-General (1911)

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1 N.L.R. 122 at p. 124 and followed in R. v. Otubu (supra), Commissioner of Police v. Wood (supra) and R .v Mensah and Abutakyi (supra) and is as follows:

“The proper procedure in such cases is for the Court to call up the witness and address him to the following effect: ‘It appears to this Court that you have been guilty of perjury in that you have falsely sworn so and so (giving the substance of the allegations of perjury). What have you got to say why you should not be fined or committed to prison as for a contempt of court?’ If he does not answer or succeed in showing cause why he should not be dealt with summarily, the Court can then proceed to pass sentence under section 50 of the Criminal Procedure Ordinance.

The fact that the witness has been so addressed, and his answer, if any, should be recorded in the notes of the presiding Judge.”

Again, the general principle of our law is that a person should not be condemned in any civil or criminal cause without being given opportunity for a hearing. Thus in Aidoo v. Commissioner of Police (No. 3) [1964] G.L.R. 354 at p. 359, the Supreme Court stated:

“It is a well settled rule of procedure of the common law as well as of our customary law, that no person shall be condemned without being given the opportunity to answer any complaints made against him. The customary law principle in this regard is embodied in the Akan adage, Tieni mienu, meaning hear both side; and the Ga affirmation Ke anuu mo gbeianshishi le agbee le; meaning never condemn any one to death whose explanation you have not heard; and the Ewe adage, Ela manotsia awede menuneo; meaning literally, an animal is never killed without being offered water to drink. The principle laid down in each of those sayings in short is, that it is unjust to decide a matter against a person without first hearing what that person has to say in explanation to allegations made against him.”

Now, section 152 (1) of the Criminal Procedure Code, 1960 (Act 30), says that the court may commit “when it appears to it that a person has been guilty of perjury.” The words “it is appears to it” must be interpreted to mean, “when it is proved to the satisfaction of the court.” A court can never be said to be lawfully satisfied if that satisfaction is derived only from one party to a cause, without consideration of the case of the other party to the cause. For example, if a court convicts a person at the close of the case for the prosecution [p.384] of [1968] GLR 373 without calling upon the accused for his defence, there will be an error of law appearing on the face of the record. Again, if it is shown on the face of a judgment that although the defence gave evidence, the trial court refused to consider, or ignored the defence put up for what it is worth and convicted solely upon the evidence led for the prosecution, that too would be denial of justice and would amount to an error of law on the face of the judgment.

And that is precisely what appears, on the face of the committal order, to have happened in this case. The chairman of the commission apparently drew the applicant’s attention to some pieces of evidence he had given which in the opinion of the commission amounted to perjury, and without giving the applicant opportunity to show why he should not be committed to prison for contempt of court, proceeded to address him:

“Now, Sir, these are only a few examples of the perjury you have committed. This commission finds you guilty of the offence of perjury, and convicts you accordingly. You will be removed from protective custody to serve a sentence of twelve months’ imprisonment with hard labour. If at the end of serving your sentence the order for your detention in protective custody has not been revoked, you will be taken back to protective custody. We hope this will stop further lies because if we have more lies, there will be new perjury offences to answer and we shall deal with them accordingly. May we go on. I may add that the order for imprisonment has been signed by each and every member of the commission.”

There is nothing on the face of the order to show that the alleged perjury is a falsehood in respect of any particular material to any issue before the commission so as to make it perjury.

Furthermore, on the face of it, the order violates all principles of justice, and contravenes the procedure laid down in the authorities as condition precedent for the exercise of the summary committal for perjury. Thus, an error of law is apparent on the face of the order, therefore the order should be vacated.

It is for these reasons that I quashed the order.

DECISION

Preliminary objection overruled.

Application for certiorari granted.

S. K. T.