REPUBLIC vs. QUANSAH [1968] GLR 1092

NATURE OF PROCEEDINGS

PROSECUTION for perjury. The facts are sufficiently set out in the judgment.

COUNSEL

Mrs. J. Amankwa for the Republic.

Ato Ennison for the accused.

JUDGMENT OF ARCHER J.

The accused is charged with two counts of perjury, contrary to section 210 (1) of the Criminal Code, 1960 (Act 29). The first count is that on 14 July 1967, the accused, in an oral statement on oath before a commission of inquiry, stated that he, the accused, did pay an amount of ¢1,084.00 to someone who called himself Amo Darko on 5 November 1965 in the office of the director of the Animal Research Institute and in the director’s presence, which statement the accused knew to be false in a material particular or which he had no reason to believe to be true.

[p.1093] of [1968] GLR 1092

The second count is that before the said inquiry, the accused on 18 July 1967, in another oral statement on oath stated that he paid the said amount of ¢1,084.00 to a representative of Amo Darko under the instructions of the director of the institute, in the accused’s own office on 5 November 1965 and he, the accused, gave the said representative a prepared petty cash payment voucher to be taken to Amo Darko for his signature which statement the accused knew to be false in a material particular or which he had no reason to believe to be true.

It may be helpful to state briefly the antecedents of this case. By the Commission of Enquiry (Ghana Academy of Sciences) Instrument, 1967 (E.I. 22 of 1967), made on 8 March 1967 by the National Liberation Council, a commission of inquiry was appointed to investigate, among other things, allegations of financial irregularities and misuse of government properties in the Ghana Academy of Sciences. See paragraph 3 (d) of the terms of reference. The accused who was an employee of the said academy gave evidence before the commission on various dates in his capacity as cashier at the Institute of Animal Research, a branch establishment of the said academy. The prosecution tendered in evidence certified true copies of the proceedings of the commission to show that the accused did make the statements, the subject-matter of counts one and two. Exhibit D is the copy of the proceedings of the commission on 14 July 1967, and at p. 19 we have the following dialogue:

“Mr. Chairman: Shall we ask Mr. Quansah to assist now? According to his signature there, it seems the man came to Dr. Wutoh’s office.

Mr. Ackom-Mensah: You paid this amount and according to the document, Amo Darko signed the document and collected the amount in cash?

Mr. Quansah: Yes, sir.

Mr. Ackom-Mensah: You counted this money and gave it to somebody who signed his name as Amo Darko.

Did you see this person to whom you paid this amount?

Mr. Quansah: I remember somebody came to this office and it was in the presence of the director that the amount was paid.

Mr. Ackom-Mensah: Did you count this money and pay to the man who introduced himself as Amo Darko ?

Mr. Quansah: Yes, sir.

Mr. Ackom-Mensah: Where did you do it?

Mr. Quansah: In the director’s office. Actually I have forgotten the incident but as it appears, I can remember that the man came to the director’s office and he asked me to pay. Before

[p.1094] of [1968] GLR 1092 then the cheque had been prepared, signed by the accountant and the director…”

There is record from exhibit D that the above answers given by the accused were not on oath. Accordingly at p. 21 of exhibit D, the accused was reminded of his oath and he repeated the above answers substantially although not in identical words from pp. 21-23.

Exhibit E is a certified true copy of the proceedings on 18 July 1967. It appears that after one Mr. Sackey had given evidence to prove what happened on 5 November 1965 at the cashier’s office and about the conversation which took place between the accused and Mr. Sackey, the accused, on reflection, came to the commission on 18 July 1967 and asked permission of the commission to correct his earlier statement, the subject-matter of count one. From p. 1 onwards, the accused told the commission that certain aspects of his evidence on 14 July were untrue. He then attempted at p. 3 of exhibit E to narrate what happened. After his narrative, this dialogue ensued:

“Mr. Chairman: Mr. Quansah, what you are saying, if I understand it correctly is, first, you never, in fact saw a man calling himself Amo Darko on that day?

Mr. Quansah: No, sir.

Mr. Chairman: Therefore, that you did not pay the money to a man called Amo Darko?

Mr. Quansah: No, Sir.

Mr. Chairman: Thirdly, that you paid it in fact to somebody said to be his representative?

Mr. Quansah: Yes, sir.

Mr. Chairman: Fourthly, that this happened not in Dr. Wutoh’s office?

Mr. Quansah: No, sir.

Mr. Chairman: As you have said before?

Mr. Quansah: No, sir.

Mr. Chairman: But in . . . ?

Mr. Quansah: I rarely sent cash direct to Dr. Wutoh’s office. That is not true at all, unless some times that the director himself wants some money, that is he himself wants it, then he would ask me to give it to him.

Mr. Chairman: So to come back to my fourth point, you paid this money directly to this representative?

Mr. Quansah: Yes, sir.

Mr. Chairman: And not in Dr. Wutoh’s office.

Mr. Quansah: Not in Dr. Wutoh’s office.

[p.1095] of [1968] GLR 1092 Mr. Chairman: But where?

Mr. Quansah: In my office.

Mr. Chairman: In your own office?

Mr. Quansah: Yes.

Mr. Chairman: The story now is that the money never left your office and was not taken to Dr. Wutoh’s office?

Mr. Quansah: No, sir. It was not like that.”

Exhibit F is a certified true copy of the proceedings on 28 July 1967. On that day, the accused was confronted with a list prepared by the external auditors showing amounts paid to various persons who had previously issued temporary petty cash payment vouchers to cover the said amounts. At p. 23 of exhibit F, the accused was asked to read the list (which was tendered during this trial as exhibit C). After he had read the list, this third dialogue followed at p. 24 of exhibit F:

“Mr. Tettey: Were these payments made to these recipients which you have now read up. Is that right?

Mr. Quansah: It is correct. It is right. This thing, I do not know how it came about.

Mr. Chairman: This is the list of vouchers which are said to be temporary money paid on the strength of these vouchers to staff for certain purchases for the institute, and the people who received the cash are expected to render account as soon as possible, supporting purchases with the necessary receipts, etc. It has been noted however that these vouchers instead of being temporary are tending to be permanent. Cash obtained since September 1965 has still not been accounted for.

Mr. Tettey: Mr. Quansah, you have now refreshed your memory. These entries are all correct, not so?

Mr. Quansah: Once they are there, I will say so.

Mr. Tettey: These are the names of the recipients to whom you paid the money.

Mr. Quansah: Once they are there, it means so. But I do not know whether I gave the money to all of them. I have forgotten how it should appear.

Mr. Tettey: So that if you paid the money to the young man, the name of the young man should appear?

Mr. Quansah: It is a matter of forgetfulness.

Mr. Ackom-Mensah: Mr. Quansah, you remember the other day, when you were re-called temporarily, Mr.

Cantey asked you certain questions. He asked you to say whether or not you were telling the commission the truth. You came back to tell us that you were retracting your statement and replacing your

[p.1096] of [1968] GLR 1092 statement with another. He asked you to let us know whether the new statement you had made was true and you were adamant. Was it true?

Mr. Quansah: I gave the money actually to the young man.

Mr. Ackom-Mensah: But you had told us step by step that the auditors got the figures ¢2,049.20 and they have listed what you had produced to them; and actually the names of the recipient payees would be down on the vouchers, and that if you had any temporary receipts, any documents, I.O.Us or anything you have produced these, in order to safeguard your good name?

Mr. Quansah: Yes, I have forgotten how it came on like this because . . .

Mr. Tettey: Is this ¢1, 084, the same as the money paid to this Appeah?

Mr. Quansah: More exactly, I think . . .

Mr. Tettey: Is it the same?

Mr. Ackom-Mensah: Is that date 5 November 1965?

Mr. Quansah: The same date.

Mr. Tettey: It will be the same?

Mr. Ackom-Mensah: Did you pay two ¢1,084.00 or only one ¢1,084.00?

Mr. Quansah: I don’t think—The thing is two years old but I actually remember that I gave the money to this young man where—as I have forgotten now . . .”

At this stage the commission adjourned for a few minutes and on reassembling, counsel for the commission applied for leave to refer the inconsistent statements made by the accused to the police for investigation and prosecution for perjury. Ultimately the accused was charged.

The prosecution in the present trial called Mr. Sackey, first prosecution witness who repeated what he had previously told the commission of inquiry. According to this witness, the accused called him on 5 November 1965, and told him that the director wanted him, the accused, to pay an amount of ¢1,084 to one Amo Darko who was waiting in the director’s office. The accused showed him a petty cash voucher which he said covered the amount and then went out. On his return, the accused told the witness that although Amo Darko was not in the office, the director had collected the money and had promised to pay the money to Amo Darko. Later, auditors came to check the accounts of the institute. The accused then asked the witness what he should do to satisfy the auditors about the payment. The witness advised him to see the accountant, but the accused did not. Instead, he hurriedly prepared a temporary petty cash payment voucher to cover the amount. When the auditors

[p.1097] of [1968] GLR 1092 confronted the accused, he said the amount was in the director’s office and the auditors took away the temporary petty cash payment voucher. When Mr. Sackey gave this same evidence at the commission of inquiry, the accused cross-examined the witness and challenged the statement. The accused indeed described the evidence as untrue. In this trial, the accused in cross-examination did not challenge the evidence of Mr. Sackey.

Two of the auditors, the second and third prosecution witnesses, also gave evidence as to how they came across the temporary petty cash payment vouchers and how they prepared exhibit C and the report which was submitted to the institute—exhibit B. The Police inspector (Cofie), the fourth prosecution witness, who investigated the matter took a cautioned statement from the accused, exhibit J. The explanation of the accused in this statement, which I need not quote verbatim, was that he was very confused when he made the statement because he had made several payments as a cashier and it was impossible for him to remember correctly what happened on each payment. In his evidence during this trial, the accused explained that the question put to him on 14 July 1967 was so sudden that he did not answer until he saw that the cash payment voucher had been signed by Amo Darko and he therefore concluded that Amo Darko must have come to the office to collect the money. He said further that on 14 July 1967 he gave evidence about something which happened about two years previously.

On 18 July 1967, the accused said that if Amo Darko signed the voucher then a certain young man called Appeah, the spelling of whose name varies, who usually called for payments due to Amo Darko, must have collected the money on behalf of Amo Darko. But when he was shown exhibit C on 28 July 1967, he realised that Dr. Wutoh was the recipient and he therefore apologised to the commission.

Did the accused commit perjury on 14 July 1967, and again on 18 July 1967? Section 211 of the Criminal Code, 1960 (Act 29), defines perjury as follows:

“A person is guilty of perjury, if in any written or verbal statement made or verified by him upon oath before any Court, or public officer, or before the National Assembly or any Committee thereof he states anything which he knows to be false in a material particular, or which he has not reason to believe to be true.”

It seems to me that the prosecution should prove (a) the materiality of the statement, (b) the falsity of the statement, and (c) knowledge on the part of the accused of the falsity of the statement. I have

[p.1098] of [1968] GLR 1092 already referred to the terms of reference of the commission of inquiry. To enable the commission to ascertain the financial irregularities in the institute, it was absolutely necessary to investigate not only to whom payments were made but also whether the payments were in accordance with the financial regulations of the institute. In this respect, exhibit A—the financial regulations of the institute—is relevant. There is evidence from exhibit A that petty cash payments should not exceed £G10 in any transaction, yet we have an amount of ¢1,084.00 being paid through the petty cash system. There is no doubt that the materiality of the statements made by the accused must not be underestimated. I am therefore unwilling to uphold the submission made by learned counsel for the accused that the prosecution failed to prove the materiality of the statements.

Were the two statements false? The first count deals with the statement made on 14 July 1967. There is evidence that the accused did not only retract this statement but substituted a fresh one on 18 July 1967. The evidence of the first prosecution witness, Sackey, which stood unchallenged, tends also to prove that the statement made on 14 July was false. On the second count, the accused made another statement on 18 July 1967 when he said he paid the sum of ¢1,084.00 to a representative of Amo Darko in the accused’s own office. In this respect too, the accused agreed that this statement could not be true when he saw exhibit C. The evidence of the first prosecution witness Sackey, also tends to prove that this statement could not be true.

As I have dealt with the materiality and the falsity of the statements, I shall now deal with the most important constituent element in the crime of perjury. Did the accused know the two statements to be false or had he no reason to believe that they were true? The prosecution have submitted that the accused was reckless and he did not care whether what he said was false. Moreover as he subjected Mr. Sackey to a thorough cross-examination at the commission of inquiry, he deliberately wanted to mislead the commission. It was also submitted that as the accused feared Dr. Wutoh, the Director of the Institute, he perpetrated these serious falsehoods to protect Dr. Wutoh, whom the prosecution declined to call to give evidence. I have considered these submissions very carefully but it seems to me that knowledge in section 211 of Act 29 must be equated with an intention to tell a lie deliberately. Learned counsel for the accused chose to associate knowledge with wilfulness—a word which is very conspicuous in the English Perjury Act, 1911 (1 & 2 Geo. 5, c. 6). For my purposes I shall restrict myself to the words of the Ghana Criminal Code, 1960 (Act 29). Did the accused, when making these

[p.1099] of [1968] GLR 1092 statements, know them to be false? Did he intentionally make these false statements? Did he have no reason to believe that they were true? These are the questions which should be answered.

One would have thought that as soon as Mr. Sackey gave his evidence before the commission, the accused would have recollected and agreed with Mr. Sackey. But he did not. He rather chose to challenge Mr. Sackey. It is an aspect of the conduct of the accused which should be deprecated. Nevertheless there is evidence that this payment was made about two years previously; there is also evidence that the accused as cashier made several payments; even Mr. Sackey said that he was the one who introduced the temporary petty cash payment voucher to assist the accused to recollect to whom he had advanced moneys because the accused had complained that he was losing money and he could not remember to whom he had paid the moneys. Moreover when one looks at exhibit C more than one payment was made to Dr. Wutoh.

Throughout his evidence at the commission, the accused always qualified his statements by saying that it was a long time and he could not remember. At p. 19 of exhibit D, that is on 14 July 1967, we have the following answer: “In the director’s office. Actually I have forgotten the incidents.” On 18 July 1967, exhibit E at p. 1, the accused again stated as follows:

“When this paper was put before me, I could hardly remember how I paid that amount. But I was forced to say something because counsel was pressing me very hard and because of that I have spent three sleepless nights trying to recollect how I paid that amount.”

It is obvious that when the accused retracted the first statement he tried to recollect something to agree with the contents of the paper shown to him. How could he have doubted the contents of exhibit H when Amo Darko’s name was on the document? He also recollected that one Appeah used to collect moneys for Amo Darko. On 28 July 1967, exhibit F, at p. 24, after the accused had been shown and he had read exhibit C, he agreed that if exhibit C stated that the money was paid to Dr. Wutoh, then that must be the truth. His own words were: “Once they are there, I will say so.” Then at p. 25 of exhibit F he says once again: “The thing is two years old but I actually remember that I gave the money to the young man where—as I have forgotten now . . .”

Any tribunal which experiences the performance of the accused will dismiss him as a useless and unreliable witness because he is relying on his faulty memory. The accused admits that he never expected or dreamt that a commission of inquiry would one day be [p.1100] of [1968] GLR 1092 set up and it was difficult for him to remember the circumstances surrounding each payment he made two years previously. Did the accused know that the statements were false? I must confess that I have grave doubts and I cannot answer that question in the affirmative, after seeing and hearing the accused in the witness-box. He claims to have been born in 1913 but he struck me as a person without an alert intelligence. Although he appears older than his age it seems to me that his memory now stands at the threshold of decrepitude. If he had displayed some commonsense and intelligence at the inquiry he would have realised that all the commission wanted was to get at the true facts and if he could not remember the facts his simple duty was to have told the commission that he could not remember correctly. However, in his misguided enthusiasm and zeal to assist the commission by all means, he indulged in speculative mental exercises. He gave answers which he later on qualified by saying that he could not remember exactly what happened. So far as knowledge of the falsity of the statements in the two counts is concerned, I have reasonable doubt in my mind whether the accused deliberately made those false statements with the intention of deceiving the commission or of protecting Dr. Wutoh.

I have considered whether the accused was reckless as suggested by the learned counsel for the prosecution because intention or recklessness will suffice to sustain a charge of perjury. Considering the evidence adduced by the prosecution in exhibits D, E, F and G, I cannot find any recklessness on the part of the accused. What is patent is that the accused was confused after persistent cross-examination and he was compelled to rely on a faulty memory. There is no doubt that the accused’s memory led him into many mistakes. But no one has ever been convicted of perjury for making a statement by mistake.

The accused’s explanation seems to negative any proof of knowledge of the falsity of his statement. I am aware that an inference of knowledge may be drawn from the accused’s own conduct in cross-examining Mr. Sackey vehemently and his persistence that he paid the money to the young man. But is that the only reasonable inference to draw? I think not. There is reasonable doubt as to the accused’s guilt and I am under a legal duty to resolve that doubt in favour of the accused. In coming to this conclusion, I have borne in mind the following passage from 1 Hawkins’ Pleas of the Crown c. 27 at p. 429 as cited in Smith and Hogan on Criminal Law (1st ed.) at p. 563:

“It seemeth that no one ought to be found guilty thereof without clear proof, that the false oath alleged against him was taken with some degree of deliberation; for if, upon the whole circumstances

[p.1101] of [1968] GLR 1092 of the case, it shall appear probable, that it was owing rather to the weakness than perverseness of the party, as where it was occasioned by surprise, or inadvertency, or a mistake of the true state of the question, it cannot but be hard to make it amount to voluntary and corrupt perjury . . . “

Accordingly, I find the accused not guilty on each of the two counts. He is therefore acquitted and discharged.

DECISION

Accused acquitted and discharged on both counts.

L. F. A.