ABABIO v. THE STATE [1966] GLR 422

Division: SUPREME COURT

Date: 2 JUNE 1966

Before: MILLS-ODOI, AKAINYAH AND LASSEY JJ.S.C.

CASES REFERRED TO

(1) Donkor v. The State [1964] G.L.R. 598, S.C.

(2) Boahene v. State [1965] G.L.R. 279, S.C. (full bench).

NATURE OF PROCEEDINGS

APPEAL from a judgment of the High Court, Kumasi, dismissing an appeal by the accused from her conviction by a district magistrate’s court on a charge of wilful obstruction. The facts are fully set out in the judgment of the court.

COUNSEL

Victor Owusu for the appellant.

K. A. Sekyi, State Attorney, for the respondent.

JUDGMENT OF LASSEY J.S.C.

Lassey J.S.C. delivered the judgment of the court. The appellant, a queenmother in Ashanti, was convicted at the District Magistrate’s Court, Kumasi, on a count wherein the statement of offence was “obstructing an officer from taking possession of stool property: contrary to section 56 (4) of Act 81 and Executive Instrument No. 46 of 1963 made under section 56 of Act 81 of 1961.” Section 56 (4) of the Chieftaincy Act, 1961,1 makes it an offence for “A person who wilfully obstructs any authority or officer who has been ordered to take possession of Stool property under this section.” Executive Instrument No. 46 of 1963 was made by the Minister of Justice on 10 April 1963, in exercise of the powers conferred on him by subsection (1) (c) of section 56 of Act 81 whereby he ordered one Kwame Opoku Agyeman, District Commissioner, Agona, to take possession of the Ntonso stool property and thereafter to hand it over to one Nana Yiadom Boakye-Ansah, Ntonsohene. The said executive instrument was tendered in evidence at the trial and marked as exhibit A2. Under section 56 (1) of Act 81 “officer” therein stated was defined as a “public officer.”

On arraignment before the district magistrate in Kumasi the particulars of the offence which were read and explained to the appellant read as follows:

“Nana Akosua Ababio Akyea, alias Afra, queenmother, for that you on 24 July 1965, at Suame, in Ashanti Magisterial District and within the jurisdiction of this court wilfully obstructed one Kwame Opoku Agyemang, District Commissioner, Agona, who had been ordered to take possession of five black stools, property of the Ntonso stool.”

The appellant, who pleaded not guilty, admitted at the trial that she had the custody or possession of the stool properties in question, but

[p.424] of [1966] GLR 422 tried to justify her right to keep them in view of a dispute affecting the rightful occupant of the Ntonso stool at the time. She appealed against her conviction and sentence by the District Court, Kumasi, to the High Court, Kumasi, but her said appeal was dismissed. She has again appealed to this court against the decision of the High Court, Kumasi, dismissing her appeal on six grounds of appeal. At the hearing, the appeal was argued principally on two grounds which read as follows: “(1) The judge erred in law by holding as he did, that because an executive instrument is an enactment within the meaning of article 40 (b) of the Constitution of Ghana, 1960, then an executive instrument is an act of general application of which judicial notice can be taken without regard to the established rules by which such instruments are proved.

(2) The judge erred in law by holding as he did that the method of proof of documents in civil cases is different from the method of proof of documents in criminal cases and therefore Order 6, r. 12 of Schedule I to Cap. 4 applied for civil matters. Such a violation of the rules of evidence led to a complete miscarriage of justice.”

The record of proceedings at the trial shows that at the close of the case for the prosecution counsel for the appellant made a submission on behalf of the accused that the charge was bad and that the appellant had been arraigned on a non-existent offence, and also that no evidence was adduced to prove that the person ordered to take possession of the stool properties from the appellant’s custody was either a “local authority” or a “public officer” as required by section 56 (1) of Act 81. These submissions were rejected by the learned trial magistrate who proceeded to call upon the appellant to answer the charge; the appellant then gave evidence herself and called one witness who also gave evidence on her behalf. Now in this court precisely the same submissions which were raised on behalf of the appellant before both the district court and the High Court in Kumasi, were again repeated before us with considerable force, clearness and ability very characteristic of the appellant’s counsel; counsel has raised on behalf of the appellant three main points, which he submitted are grave objections to the conviction. First of all, counsel has stated that the charge in respect of which the appellant was convicted disclosed no triable offence, that the defects in the particulars of the offence were not cured by the evidence, and further that the learned High Court judge erred in holding that the court can take judicial notice of statutory instruments.

[p.425] of [1966] GLR 422

He explained that as the appellant was charged under section 56 (4) of Act 81, and although the statement of offence referred to a public officer as required by section 56 (1) of the same Act, the particulars of the offence did not also specify or mention that the district commissioner mentioned therein was a public officer. Mr. Victor Owusu further pointed out that even if the evidence of the appellant given under cross-examination was that the district commissioner was a public officer, as that evidence was only supplied after a submission of no case had been wrongly overruled, the defect in the charge was not thereby cured at the close of the case of the prosecution.

The first question here is whether the charge was defective either in form or substance and whether the trial which proceeded on it caused any embarrassment to the appellant or led to any substantial miscarriage of justice. It is said this was a badly drafted charge or count which omitted to allege or aver in its particulars the words “public officer” or “local authority” and that as those particulars of the offence did not disclose that the district commissioner was a public officer no triable or existing offence had been committed. Learned state attorney’s reply was that though the words “public officer” should have been included in the particulars of the offence, their omission did not make the charge bad but only defective or imperfect, and that the fact that the district commissioner was also a public officer which was an essential ingredient of the offence, was fully established and contained in the statement of the offence, and therefore no embarrassment or prejudice had been caused to the appellant by the omission of the words “public officer” from the count alleging the offence. In advancing his argument on this point much reliance is placed by counsel for the appellant upon the principle of the authority in the judgment of this court in the case of Donkor v. The State2 in which case the court upset the conviction of the appellant on the grounds that the particulars of the offence omitted to state: (1) that the appellant, a road officer, held office as a public officer; (2) that the appellant demanded or received the money in regard of which he had been charged; and (3) that the said demand or receipt of money was made under colour of a public office. The court held on the facts of that particular case that the omission related to matters which went to the root and formed the essence or gravamen of the offence, and therefore was fatal, and since the charges as they stood disclosed no triable offence, the conviction was invalid.

Counsel contended, therefore, that this decision is an authority for the proposition that where the prosecution fail to allege and

[p.426] of [1966] GLR 422 prove that a particular person is a public officer as required by the law under which the charge is preferred then the charge cannot stand in that form. It is to be observed that the decision in this case was given after the coming into force of section 233 of the Criminal Procedure Code, 1960,3 which provides inter alia that: “No indictment for any offence shall be held insufficient for want of the averment of any matter unnecessary to be proved.” The legal principle deducible therefrom is that where on the facts of a particular case the averment of any matter which it is unnecessary to prove is omitted the omission does not render a charge bad. The corollary to that, therefore, is that where it is necessary to prove the averment of a matter, then its omission may be fatal. This is what, in our view, the Donkor case (supra) decided. See also Boahene v. The State4 decided by this court on 15 April 1965 where this point was fully dealt with. Unfortunately, section 233 of Act 30 does not appear to have been brought to the notice of the court in the Donkor case, as there is no reference to it in the judgment. Although in the more recent case of Boahene (supra) a different decision would appear to have been reached on the point whether failure to allege some particulars of the offence in the indictment is defective and fatal from the decision in the Donkor case, it must be said that the latter case is distinguishable on the grounds that several particulars which went to the root and formed the essence or gravamen of the offence were entirely omitted and no effort was made to cure those defects by way of an amendment before the case for the prosecution was closed. That case was decided on its particular facts and we are candidly of the view that it is good law and must be followed if the facts are similar. On the other hand, in the present case, the office of the person who had been ordered under the instrument to collect the stool properties and who the evidence showed the appellant obstructed was sufficiently described in the charge and proved by the evidence. Omitting in the charge any reference to the fact that the district commissioner was also acting in his capacity as a public officer was not a matter of importance once the particulars accurately described him as a district commissioner, and the statement of offence correctly disclosed that he was a public officer. In our opinion, the point taken is purely technical as we are satisfied that the omission to insert the words “public officer” in the charge caused no embarrassment or prejudice to the appellant by the apparent defect in the count.

The second point taken by Mr. Victor Owusu on behalf of the appellant is that quite apart from the fact that the prosecution failed

[p.427] of [1966] GLR 422 to aver in the particulars of the offence that the district commissioner was a public officer no evidence was offered to establish the capacity of the district commissioner as a public officer. He, therefore, argued that as the defect in the charge was not cured either by an amendment or by evidence the charge was bad and the conviction also cannot stand. It is quite true that at the close of the prosecution’s case no direct formal evidence was led to show the position of the district commissioner also as a public officer, except a piece of evidence which was elicited from the mouth of the appellant herself in cross-examination after the submission of no case had been overruled and the appellant gave evidence on oath. Counsel for the appellant suggested that it was most undesirable that the trial district magistrate herself should be put in a position of having to look for the law to satisfy herself whether the district commissioner was also a public officer or not. He pointed out that the proper course to take in such a case was for the prosecution to have called formal evidence or produced an official document or Gazette notice showing that the district commissioner mentioned in the particulars of the offence and also described in the evidence was also a public officer; counsel argued that as this was not done before the prosecution closed its case, his submission of no case made on behalf of the appellant at the trial court was wrongly overruled and that the subsequent trial resulting in the conviction of the appellant was wrong.

At the close of the case for the prosecution there was evidence led to show that: (1) the appellant had the custody or possession of the stool properties which were demanded; (2) she refused to hand them over on demand by the person ordered to recover them; and (3) the person ordered to recover them under the instrument mentioned in the charge was a district commissioner. On these facts the magistrate was of the opinion that there was a case to answer as in law the district commissioner was also a public officer under section 56 (1) of Act 81. She therefore overruled counsel’s submission that no case had been made, and proceeded to complete the hearing to judgment.

In our view the course the trial magistrate took was the right one, as there was sufficient evidence to justify her findings and the procedure adopted in referring to the law essential to the facts before reaching her decision on the submission of no case. On this point we are in full agreement with the view taken by the learned state attorney that after the prosecution had established by evidence that the person ordered to recover the stool properties from the appellant was a district commissioner all that remained to be done was to refer to the relevant law to show that the district commissioner was a public officer, and no more. The question whether a district commissioner

[p.428] of [1966] GLR 422 is also a public officer is one of law to be looked at by reference to the relevant instrument appointing him as such, and which instrument need not formally be tendered in evidence, for in law there is no duty on the prosecution to prove what is the law by producing evidence thereof.

In the course of his argument the third question was raised slightly, but not fully explored, whether the charge as it stood could be said to have disclosed reasonable information of the substance of the offence to the appellant. The view taken by counsel for the appellant was that as the omission of the words “public officer” from the particulars of offence complained of was never cured by production of the relevant evidence or by amendment, the charge failed to give any reasonable information to the appellant and that the trial was prejudicial to his client. In reply to this contention learned state attorney referred us to section 112 (1) of Act 30 which stated that all that the prosecution was required to do was to give reasonable information to the person charged as to the nature of the offence without stating in full all the necessary ingredients; he further pointed out that the words “public officer” did appear in the statement of offence which was also read to the appellant at the trial.

In this case, when the record, including the whole of the evidence in it, is looked at, it is quite plain that the appellant was at no stage of the proceedings in doubt about the nature and substance of the complaint against her, and that she had a very intelligent knowledge of the substance of the charge and what it meant when it was read and explained to her before she pleaded to it. Firstly, the record of appeal shows that when the appellant was first arraigned before the district magistrate in Kumasi, the particulars of the charge as originally drafted before it was withdrawn and the present one substituted, read as follows: “Nana Akosua Ababio Akyea alias Afra, queenmother, during the year 1961 at Ntonso village, in the Ashanti Magisterial District and within the jurisdiction of this court, did wilfully obstruct a public officer to wit Kwame Opoku Agyemang, District Commissioner of Agona in the execution of his duty from taking possession of five black stools and strings of ‘bodom’ beads the property of Ntonso stool in accordance with Executive Instrument No. 46 of 1963, by the Minister of Justice.”

(The emphasis is mine.) It is clear from the record that before she registered her plea of not guilty to the charge as originally drafted, the said particulars including the words “public officer” were read over and explained to her. When later this charge was, with the leave of the trial court, withdrawn and the present charge substituted in

[p.429] of [1966] GLR 422 its place the wording of the particulars in the former abortive charge were identical with the wording in the present charge, save as to the years and places of the alleged offences which are “ 1961 at Ntonso village” in the abortive charge, and “24 July 1965, at Suame” in the present charge. Therefore before she pleaded not guilty respectively at different times to the original charge and also to the present one she could not be stated to have been under any misapprehension that the district commissioner, who is the same officer or person mentioned in the new charge, was acting in his capacity as a public officer when he demanded from her recovery of the stool properties. From this we are satisfied by the circumstances surrounding the case implicating the appellant that when she was arraigned before the district magistrate and properly charged with obstructing an officer in the execution of his duties, she had sufficient and intelligent knowledge of the nature and substance of the charge preferred against her, and she knew that the officer who had been instructed to take possession of the stool properties was in fact the district commissioner for her district in Ashanti. In our view the requirements of section 112 (1) of Act 30 had been fully satisfied, and it is clear that the charge disclosed sufficient and reasonable information of the substance of the charge to the appellant.

The final question had still to be decided whether the learned trial magistrate adopted the proper procedure in applying the relevant law to the facts, and whether the learned High Court judge came to the right conclusion on the view of the procedure adopted at the trial by the learned district magistrate. The point was taken before the learned district magistrate that the prosecution in order to sustain a conviction on the charge ought to have led evidence to prove that the district commissioner described in the charge was a public officer. Learned counsel for the appellant contended that proof should be either by leading oral evidence to establish the point that the district commissioner is also a public officer or by tendering into evidence the particular legislative instrument by virtue of which the President under section 5 of the Public Officers Act, 1962,5 declared that any person holding the office of district commissioner should be a public officer. It was stated in the argument of counsel for the appellant that there was no authority for the learned trial district magistrate instead of calling for proof of the particular instrument by way of oral evidence or its actual production, to have taken judicial notice of the instrument in question and thereafter deciding the case resulting in finding the appellant guilty of the offence charged.

[p.430] of [1966] GLR 422

When the appeal was argued before the High Court judge in Kumasi it was again contended that the learned district magistrate was wrong in taking judicial notice of the Public Officers (District Commissioners) Instrument, 19626. It was urged before the High Court, Kumasi, that Order 6, r. 12 of Courts Ordinance7 which applies to civil matters also related to criminal matters, but the learned High Court judge ruled to the contrary, holding that the provision of Order 6, r. 12 of Cap. 4, Sched. I did not apply to criminal matters. In this court precisely the same objections which were taken in the courts below were canvassed with more force. Mr. Victor Owusu for the appellant said that the trial district court was bound to require proof of L.I. 205, and it is said before us that the court could not be satisfied as to the requirements or provisions contained in the said instrument by merely looking at it on its own motion after reference had been made to it in the submission of counsel. He developed his argument on this point by submitting that learned judge of the High Court, Kumasi, was wrong in holding that Order 6, r. 12 of Cap. 4, Sched. I applies to civil cases only. He contended that the marginal notes to Order 6, r. 12 of Cap. 4, Sched. I relate to “proof of proclamation” and concluded therefore that proof could only be effected by the actual production of the proclamation in question before the court.

Learned senior state attorney for the respondent, in reply, submitted that Article 40 (b) of the Constitution, 1960, includes statutory instruments which are made under the Statutory Instruments Act, 1959,8 s. 15, and argued that since these statutory instruments are laws they can only be cited in court and no more. Learned state attorney pointed out that there are two types of statutory instruments, namely, (1) those which state facts, and (2) those which amend existing laws; maintaining that in the case of the latter no formal proof by calling oral evidence is necessary to establish their existence or their provisions. He contended that it is enough for the court to take judicial notice of them, and since in this case the question whether the district commissioner is a public officer is one of law, the instrument describing him as such need not have been tendered formally in evidence to prove or establish that question of law. He concluded that all that the prosecuting officer in this case was in duty bound to do was to bring L.I. 205 to the notice of the district court either by making a reference to it in the charge or by citing from it in open court and thereby calling the court’s attention to it, and that if either of these two methods was not employed, as [p.431] of [1966] GLR 422 happened at the trial, the district magistrate could rectify this by taking judicial notice of the law by looking for it and making the necessary reference to it to acquaint herself of the relevant provision to be applied and its effect.

The question which is posed here is this: How far can judges examine the law for themselves in order to satisfy themselves as to whether the particular law is applicable to the facts before them or how is the law to be brought to their notice during the trial of a case? Mr. Victor Owusu submitted that at a trial before a district magistrate, both in civil and criminal matters, the procedure prescribed under Order 6, r. 12 of Cap. 4, Sched. I is the one which the trial magistrate ought to follow in order to acquaint himself with the particular legal instrument. Perhaps we might conveniently reproduce the relevant part of Order 6, r. 12 which is as follows:

“All Proclamations, Acts of State, whether legislative or executive, nominations, appointments, and other official communications of the Government, appearing in any such Gazette, may be proved by the production of such Gazette, and shall be prima facie proof of any fact of a public nature which they were intended to notify.”

It seems clear to us that the words in the latter part of the rule, namely, “shall be prima facie proof of any fact of a public nature which they intended to notify” makes formal proof by producing the particular instrument in evidence to establish the facts stated therein necessary. Proof which is required by these rules is in our view limited to those instruments which state facts, as opposed to those which amend or state existing laws, as in the present appeal. In the present case what was required concerned the legal question whether under L.I. 205 the district commissioner was also a public officer. No statement of fact contained in the said instrument was involved which required proof by the production of the said instrument into evidence.

We do not think that Order 6, r. 12 of Cap. 4, Sched. I was applicable to this case, although we are not prepared to express any opinion on the point whether in an appropriate case the rule is applicable in both civil and criminal matters. The statement from the High Court judge that in his view the rule is applicable to civil cases seems to us to be mere obiter. What we think he meant to say was that the rule which is effectually a rule for the administration of justice in civil cases is not applicable to the facts of this case. We think that the learned judge of the High Court seemed to think that as procedure in criminal matters is governed by Act 30 the application of the rules in Cap. 4, Sched. I is exclusively intended for civil matters

[p.432] of [1966] GLR 422 only. The important question for our consideration is whether the manner of proof prescribed under Order 6, r. 12 of Cap. 4, Sched. I prevents the court from looking elsewhere to acquaint itself with the law contained in any of the instruments or enactments mentioned under the rule in question; in other words, whether the only and sole mode of bringing the relevant law to the notice of the court is the one prescribed under the rule. We hold that the evident scope of the rule is merely to regulate the procedure laid down in bringing to the notice of the court facts contained in the necessary enactment, and subject to certain exceptional cases, the rule does not prevent the trial court from looking up the relevant law itself by referring to the legal instrument containing the particular law. Disputes as to dates of commencement of an Act, or the period of its operation can be established by evidence.

Without attempting to lay down any absolute rule on this matter, we think that by a prudent exercise of common sense, judges should be willing to waive proof by oral evidence of fundamental matters where such is manifestly unnecessary, as for instance, on points of law on which easy reference could be made in the relevant law books. Where the judge feels he is entitled or qualified to look through the enactments or Ordinances or statutes or law reports as they are not in evidence before him, and would not know which of the Ordinances or statutes were still in force at the time of trial, he should be allowed to do so. The complaint here is directed against the manner in which the court’s attention was drawn to a relevant legal instrument, and it cannot be contended with any show of reason, that merely because the trial magistrate did not receive knowledge of the relevant law through evidence, she was wrong in looking it up herself. There is in our view no sound basis for the point of view taken by counsel for the appellant. The inherent right of a judge or magistrate to refer to the law book to look up the law is not restricted either by any legislative instrument. The view of learned counsel for the appellant that by not following the procedure laid down by Order 6, r. 12 of Cap, 4, Sched. I there had resulted a substantial miscarriage of justice for the appellant ought not to prevail in this case. The regulation, L.I. 205, was of such a character and nature that we think its formal proof by the method laid down under Order 6, r. 12 of Cap. 4, Sched. I was just unnecessary. It was not necessary in this case to have the question of law, namely, whether the district commissioner is a public officer, formally established by means of oral evidence. After the necessary piece of oral evidence had been led to establish the fact that the person ordered under the instrument to take possession of the properties was a district commissioner, the trial magistrate, [p.433] of [1966] GLR 422 who is supposed to know the law, had to check up on the law to make sure that she applied the proper law to the particular facts established by the evidence. Rule 12 does not abolish or radically change or alter the court’s inherent power or practice of looking up the relevant law by reference; it only formally regulates the procedure where in some cases it is necessary to prove also certain facts contained in certain enactments or instruments. The question appears to us to be more of procedure than of law. We are of the opinion that the method adopted by the district magistrate in acquainting herself with the particular legislative instrument is proper, and that the learned High Court judge was right in dismissing the appeal. The justice of the case supports the verdict and conviction, and we therefore dismiss this appeal. DECISION Appeal dismissed.

T. G. K.