OSEI AND ANOTHER v. THE REPUBLIC [1968] GLR 704

DIVISION: COURT OF APPEAL

DATE: 29 JULY 1968

BEFORE: AKUFO-ADDO C.J., APALOO J.A. AND SOWAH J.

NATURE OF PROCEEDINGS

APPEAL against conviction by the High Court, Accra, of the offence of conspiracy to commit wilful oppression based on findings made under the Corrupt Practices (Prevention) Act, 1964 (Act 230). The facts are sufficiently set out in the judgment of the court.

COUNSEL

N. Y. B. Adade (with him Ofosu Asante) for the first appellant.

J. Arthur for the second appellant.

V. A. Kisseih, Senior State Attorney, for the respondent.

JUDGMENT OF APALOO J.A.

Apaloo J.A. delivered the judgment of the court. On 6 May 1968, the appellants were convicted before the High Court, Accra, of the offence of conspiracy to commit wilful oppression, the particulars of which allege that both appellants:

“between the months of January and February 1966 agreed with Kwesi Armah then Minister of Trade, a public officer to commit an offence, namely, that the said Kwesi Armah should wilfully commit an abuse of his authority as such public officer to the injury of the public by contravening the principles governing the grant of import licence in issuing an import licence to the value of £G80,000 to the African and Lebanese Engineering Co.”

The facts on which the charges were based were determined by a commission appointed under an Act whose validity has recently been agitated before this court, namely, the Corrupt Practices

[p.706] of [1968] GLR 704

(Prevention) Act, 1964 (Act 230). Armed with the findings of the commission, the Attorney-General availed himself of the power conferred on him by section 4 (1) of the Act and preferred the above charge against the appellants. In due course, both appellants were summoned before the High Court to show cause why they should not be convicted of that charge on the basis of the findings of the commission.

The first appellant attempted to show cause by oral evidence as well as legal argument. The second appellant contented herself with legal submissions alone: In the result neither was successful and the learned judge proceeded to convict them of the offence charged. It is against these convictions that this appeal has been brought.

In order to appreciate the somewhat elaborate arguments addressed to us on this appeal, it is necessary to relate the facts on which the charge is based. On 25 October 1965, the first appellant who was until his conviction, a legal practitioner, entered into partnership with the second appellant and two Lebanese gentlemen who were described in the partnership deed as Rahif Hamoui and Waheb Hozaifeh respectively. The business of the partnership was stated to be that of “general merchants and manufacturers.” It would seem that the partners were minded of combining general import trade with the manufacture of motor vehicle spare parts. It seems plain that neither business could be carried on unless the partners were able to import both consumer and capital goods into the country from abroad. At the date of the partnership in 1965 and indeed since 1961, the Ministry of Trade had imposed control on importation of goods and by reason of this, no goods could be imported into the country unless a licence to import them was granted by that Ministry. It appears that the first appellant was appointed to be, so to speak, the scribe of the partnership and he was entrusted with overseeing the correspondence of the firm. It thus fell to his lot to apply for import licence to import goods to carry on the two-fold activities of the company. Two days after the formation of the partnership, the Ministry of Trade by notice published in the Commercial and Industrial Bulletin, No. 46 of 27 October 1965 invited applications for import licences for the year 1966. The first appellant by a registered letter of that date applied for an import licence. In so far as his word can be relied on, the application was to import consumer goods for the import trade side of the firm’s activities. It would seem that the firm was aware that no manufacturing business could be carried on in this country without the prior approval of the Ministry of Industries. The first appellant said, the firm

[p.707] of [1968] GLR 704 applied to the Minister of Industries for permission to establish a factory in November 1965. This letter was replied to by a letter addressed to the firm by the Ministry of Industries and dated 15 January 1966. The permission sought was granted. Paragraph 2 of that letter, however, contained information which was to prove to be the cornerstone of the case against the first appellant. That paragraph informed the firm that the application for import licence should be sent to the Ministry of Industries in the first instance, and this letter was copied to the Ministry of Trade. The first appellant received that letter, according to his evidence, on the date it bore. He said he addressed an application for licence for industrial goods to the Ministry of Industries in response to the request in that letter. Both the commissioner and the learned trial judge to whom this evidence was given, thought the first appellant was mendacious on this point and both declined to give that evidence any credence. The position therefore was that the firm sent no application for capital goods to the Ministry of Industries. The evidence shows that on 14 February 1966, Kwesi Armah the then Minister of Trade gave instructions for the issue of import licence for capital goods to the firm in the sum of £G80,000. This instruction was carried out on 15 February, and shortly after this, the second appellant called at the Ministry at the telephonic request of the principal secretary and took delivery of this licence. She in turn delivered it to the first appellant.

The circumstances in which Kwesi Armah came to issue this licence without liaising with the Ministry of Industries are these: The second appellant called at the Ministry in the second week of January, apparently to institute inquiries about import licence for a business described as Florie Models of which she seemed to be the sole proprietor. She saw the principal secretary who was no help and who suggested that she might see the Minister. The second appellant fell in with this suggestion and an interview took place between her and the Minister. The evidence as to what took place at that meeting is singularly scanty but it emerges plainly enough that the second appellant took advantage of this meeting to inquire about the import licence for the African and Lebanese Engineering Co. among others. As a result of her inquiries, the principal secretary received instructions to look for and locate the import licence applications for a number of firms including the application for the firm in question. The principal secretary said he was able to locate one or two applications of that firm. There is no evidence what sort of goods these applications sought licence to import, but for a reason which

[p.708] of [1968] GLR 704 is not altogether clear, the Minister gave instructions that the second appellant be reached on the phone and requested to send copies of the firm’s application. This request was conveyed to the second appellant who in turn got in touch with the first appellant. The latter handed her an application dated 18 January 1966, which she sent to the Ministry. It seems plain that the licence was granted on the faith of this application.

At that date, not only Kwesi Armah but the first appellant was au fait with the proper procedure for obtaining a licence to import capital goods. The commissioner found that “In the case of industry, the application for import licence is submitted through the Ministry of Industries which makes specific allocation etc.” Such allocation was not made in this case and cannot have been made for the very sufficient reason, that the firm by-passed the Ministry of Industries and sought the licence direct from the Minister of Trade. It was successful and the commissioner after examining the evidence in some detail felt obliged to conclude that: “With full knowledge of the proper procedure as set out for him in the letter exhibit 117A (i.e. The Ministry of Industries’ letter of the 15th January 1966) Mr. Osei forced the applications of the Company for licence straight to the Ministry of Trade without passing them through the Ministry of Industries and had licence granted to him. In this regard he acted in conspiracy with Mrs. Inkumsah and Kwesi Armah to obtain the licence irregularly.”

The commissioner also made a number of other subsidiary findings to which we are soon to refer. It is on these findings that the case of the State against the appellants was launched.

As we said, the first appellant sought and was granted leave to displace these findings by viva voce evidence in the court below. He was no more successful in this than the second appellant who relied on legal submissions alone. It is their conviction which resulted from their failure to show cause that they now contest by this appeal. The one great advantage of this case, is that almost all the legal contentions with which we were pressed, were raised before the court below and we have the benefit of the learned trial judge’s pronouncements on them. Messrs. Adade and Arthur who appeared for the first and second appellants respectively united in making a number of submissions but it is necessary to consider how each appellant by his or her counsel attacked not only the conclusions of the learned commissioner, but also that of the learned trial judge. [p.709] of [1968] GLR 704

Mr. Adade for the first appellant drew our attention to that part of the commissioner’s finding in which he held that the second appellant exerted influence on Kwesi Armah and got him to issue the licence irregularly. It was submitted that as the first appellant was no party to the exertion of such influence, he cannot be said to be linked with the irregularity. It is said by Mr. Adade that in any event, the interview with the Minister at which the alleged influence was exerted, was fortuitous and it cannot be said that the appellants agreed beforehand that the second appellant was to exert influence to achieve their common objective. In our opinion, this contention is based on a faulty appreciation of the evidence. The basis on which the first appellant was linked with the irregular issue of the licence, is not that he was a party to the exertion of the influence, but that being fully cognisant of the proper procedure for obtaining licence for industrial goods, he nevertheless sent the application of 18 January through the hand of the second appellant to the Minister of Trade. The first appellant himself cannot have been under any misapprehension about this because he sought to meet this by evidence both at the commission and in the court below, that he in fact sent the application for capital goods to the Ministry of Industries. On that, both the commissioner and the learned trial judge solidly found against him. We can see nothing in the complaint. Mr. Adade next argues that the learned judge misdirected himself on the proper interpretation of wilful oppression. He says, abuse of authority and improper motive lay at the bottom of this offence and submits that no facts were found on which the charge of abuse of authority can properly be grounded or from which the inference of improper motive can be drawn. As “abuse” of authority was not statutorily defined, Mr. Adade had to make recourse to the Oxford Dictionary to ascertain the “true” meaning of “abuse” and he took us with him. With him, we were able to ascertain that “to abuse” means to “misuse.” We should have thought that the submissions embodied in this complaint were answered not only by the policy which informed the import control, but by the actual findings in the Ollennu report. The control on import had to be imposed because it was deemed to be in the interest of the national economy to place a ceiling on the amount of foreign exchange that can be expended on imports. With the imposition of restrictions upon the quantities of goods to be imported into the country, questions will arise as to the possible inequitable distribution among importers. It would be obvious that inequities would arise if one importer were enabled to import a large proportion of the limited quantities and thus leave others with little [p.710] of [1968] GLR 704 or no share of the imports. Accordingly, if the import control was to be administered in a manner that would ensure justice to all importers, the Ministry of Trade must act on certain principles determined a priori.

The Ministry so acted and some of these principles were notified to importers in the Commercial and Industrial Bulletin, 27 October 1965. These were also separately found in the Ollennu report (see p. 6 of exhibit A). At the bottom of all these, is the principle of past performance. Where the licence sought is to import goods intended for the industrial sector of the economy, the Ministry of Trade is expected to liaise with the Ministry of Industries and it is the latter that in fact makes an allocation. The finding here is that these principles were breached by the grant of the licence in question. That these principles were contravened, is hardly in dispute. The real question to be determined on this part of the case, is Kwesi Armah’s motivation for so doing. Kwesi Armah himself answered that he practised “selectivity” which in the context, means preferment with the best of intentions and in an attempt “to put the trade of Ghana on an even keel.” That, clearly, is an assertion of bona fides. This claim was rejected by the commissioner who found that he departed from the laid-down principles “for the benefit of a group of importers and to the detriment of others.” It seems plain to us that the reason why Kwesi Armah granted the licence in disregard of the principles, is to confer an undeserved benefit on the firm in question clearly because of the personal contact and apparently also because of the influence exerted on him by the second appellant. That, in our vocabulary, is a misuse of discretionary powers, or to use the words of the statute, an abuse of authority. There was also some argument that no injury to the public was established. But as the commissioner found that many deserving importers got no import licences, and had what the commissioner described as “raw deals” while the licence in question was issued “to the disadvantage of other industries and to the prejudice of the financial interest of the Republic of Ghana,” there can be little doubt that Kwesi Armah abused his authority to the injury of the public and brought himself within the mischief which section 239 (1) of Act 29 sought to prevent. That disposes of this complaint. It is next complained by Mr. Adade that the principles which the Minister is alleged to have contravened, were procedural rules made for his convenience. He says, they have no statutory force and that a contravention of them might lay the Minister open to a charge of ineptitude but that it cannot amount to the crime of wilful oppression inasmuch as the Minister honestly believed that he was entitled to [p.711] of [1968] GLR 704 deviate from them. Nobody suggests that deviation from the principles per se, amounts to crime. It becomes one only if it is made with an improper motive with a resultant injury to the public. As we have held that Kwesi Armah breached these principles with a motive which is anything but proper, and that injury to the public resulted thereby, we think there is no force in this ground of complaint.

The last submission which was made on behalf of the first appellant is supposed to be a plea to the jurisdiction of the court below as constituted. It is said that as the case originally came before the court constituted by Edusei J. he was lawfully “seised” of it and he could therefore not be divested of jurisdiction without a formal order of transfer made by the Chief Justice in accordance with paragraph 38 of the Courts Decree, 1966 (N.L.C.D. 84). As no such order was made Amissah J.A., who eventually heard the case, had no jurisdiction.

This argument, whatever its attraction, is not new. It was made in almost identical language in Akainyah v. The Republic [1968] G.L.R. 548, C.A., a case in which Mr. Adade was junior counsel, and was rejected in a judgment delivered by this court on 1 July 1968. Learned counsel for the first appellant did not profess ignorance of this decision. His point is, that the Akainyah decision claimed its authority from a ruling of the full bench in Asare v. The Republic [1968] G.L.R. 37. Mr Adade says, the Asare ruling did not decide the point and the decision in the Akainyah case on this point was therefore given per incuriam. Accordingly, Mr. Adade submits in effect, that the point at issue is res integra and invited us to decide it afresh. We think, on reflection, that the point in question was not wholly decided in the Asare ruling and some observations made by the court on N.L.C.D. 84, para. 38, may well be obiter in view of the ratio of the ruling. But this court expressed its independent view in the Akainyah case and used the Asare ruling as merely fortifying it. It may be the Asare ruling is not as solid a fortress as the court thought, but that seems a different thing from saying that the decision given in the Akainyah case was per incuriam.

In any event, what Mr. Adade invited us to accept, was that as the case appeared on the list of Edusei J. he was either “seised” of it or it was pending before him and that unless recourse is had by the Chief Justice to his power under paragraph 38 of the Courts Decree, 1966, the case cannot lawfully be “pending” before any other judge of that court. And in the submission of Mr. Adade, the judge will be lawfully “seised” of a case or it will be pending before him, if it ever appeared on his list for whatever purpose. It is perhaps a tribute to legal ingenuity that a provision of an enactment which confers absolute discretion on the Chief Justice to transfer a case from one judge [p.712] of [1968] GLR 704 to another, is sought to be interpreted to derogate from the authority of judges whom paragraph 29 of the Courts Decree, 1966, invests with “equal power and jurisdiction.”

But in so far as the contention of Mr. Adade is a temptation to us to lay down when and in what circumstances the power of transfer conferred on the Chief Justice by paragraph 38 of the Courts Decree may be properly exercised, we resist that temptation. It would be unwise to hamstring the exercise of a blanket administrative power by a needless judicial interpretation. All we need do, is to state what “seised” of or “pending” of a case before a judge can mean in the context of the practice of our courts. In our opinion, a case can only be said to be properly “pending” before a judge or “seised” of by him if he actually commenced the hearing thereof. We decline to define the word “pending” or “seised” in vacuo. It can be of no assistance to anyone if we did. In this case, in so far as the record of proceedings can be said to be any guide, this case appeared on the list of Edusei J. on six occasions. He did no more than adjourn it on each such occasion. It then came on the list of Azu Crabbe J.A. on two occasions. It suffered the same fate. In our view, this case was at no time “pending” before either of these judges nor was it ever lawfully “seised” of by them. What seems incontrovertible, is that this case was pending in the High Court. There was therefore no need for the Chief Justice to go to the trouble of making a formal order of transfer in exercise of his power under paragraph 38 of the Courts Decree, 1966. We hold therefore that Mr. Adade’s contention fails and this disposes of the appeal of the first appellant. That brings us to a consideration of the appeal of the second appellant. Mr. Arthur’s complaints against the judgment were a variant of Mr. Adade’s with a slight shift of emphasis. We think the answers which we gave to Mr. Adade’s contentions, apply mutatis mutandis to Mr. Arthur’s and we do not propose to repeat them. Learned counsel for the second appellant however raised a number of contentions of his own; except one which we propose to deal with at some length, the others do not appear to us serious and can be disposed of in a few words.

Mr. Arthur contends, so we understood him, that the oppression, if there be one, cannot ground liability in this case, unless it is wilful which he says, this was not. Like Mr. Adade, he also had to make recourse to the Oxford Dictionary which defines “wilful act” negatively, as an act for which compulsion, ignorance or accident cannot be pleaded. We feel some difficulty in following this argument. The actus reus of this case, in so far as Kwesi Armah is concerned, is the granting of import licence. There is nothing in the evidence which [p.713] of [1968] GLR 704 lends the slightest colour to any suggestion that the licence was granted other than fully consciously. We see no merit in this contention.

Mr. Arthur also argues that the conspiracy alleged in the charge was not established and as the evidence from which this argument is sought to be inferred is circumstantial, it must be susceptible of no other rational inference. Learned counsel has not felt able to submit to us what other rational inference is warranted by the evidence. Both the appellants were acting in concert to achieve a common objective—namely, the irregular procurement of import licence. In our opinion, the inference of conspiracy is irresistible and was rightly drawn both by the commissioner and the learned judge. We therefore find against this contention. That brings us face to face with the only really serious contention raised on behalf of the second appellant. Mr. Arthur submits that there is no evidence that the contents of the Ministry of Industries’ letter of 15 January 1966 (exhibit 117A), were brought to the knowledge of the second appellant. He submits that, as it is that letter that affects the first appellant with mens rea, the second appellant cannot be similarly affected without evidence of her knowledge of the contents of that letter. In so far as Mr. Arthur contends that there is no direct evidence of the fact that the second appellant knew of the contents of exhibit 117A that is plainly right. But knowledge being a state of mind, is normally inferred from proved facts. We do not however think that it would be fatal to the State’s case, if it is not possible to arrive at a definite conclusion that the second appellant was au fait with the contents of the exhibit in question. The first appellant, beyond sending the application in question, was not shown to have been in touch with Kwesi Armah and he could not justly be held guilty of conspiracy with him to abuse his authority by contravening the principles governing the grant of import licence unless it is proved that he knew any of such principles. So exhibit 117A was vital in his case. The second appellant however acted as the intermediary between the firm and the Minister and was found to have exerted influence on the Minister to achieve her end. We think that if a consideration of all the facts leads us to a conclusion that she must have been aware that the licence in question was issued irregularly, the requirement of mens rea in her case would be satisfied. The question which falls for decision in the case of the second appellant is: Did she know that the licence issued to the African and Lebanese Engineering Co. on 15 February 1966, was irregularly issued? We have asked ourselves that question and have given it a prolonged and anxious consideration. It seems plain enough that one of the unfailing principles on which the Ministry acted in granting licence to importers, is past performance. We have already referred [p.714] of [1968] GLR 704 to the commissioner’s finding on that. The evidence suggests that the application for licence for Florie Models which the second appellant submitted to the Ministry of Trade, was made pursuant to the notice in the Commercial and Industrial Bulletin of 27 October 1965. That being so, she cannot claim ignorance of the basis on which an application for an import licence for new business may be granted. Paragraph 15 of that Bulletin states inter alia:

“Applications will be accepted for new importers who:

(a) are in business on their own account; and

(b) have been actively engaged in that business for at least 3 years.”

The second requirement is a requirement of past performance. Quite plainly, that is the one condition that the African and Lebanese Engineering Co. cannot satisfy. The partnership deed seems to have been signed on 25 October 1965, and the business of the firm is said, in clause one of the deed, to have commenced on that day. The application for import licence was submitted two days afterwards and it must have been obvious to the partners that if the Ministry of Trade acted on the principles which it advertised to importers in the Bulletin of 27 October 1965, the firm of which the second appellant is a partner, cannot have the slightest chance of obtaining import licence for the “trade year period—January to December 1966.” If therefore the second appellant made a contact with the Minister and as the commissioner found, exerted influence on him with the result that he granted the firm import licence in breach of those principles, the second appellant cannot but be aware that the licence was granted irregularly. True, paragraph 15 (d) provides that special consideration will be given to importers who wish to set up new important business. But no member of the partnership ever claimed that the firm asked for special consideration because it was a new important business nor is there any evidence to suggest that any such consideration influenced Kwesi Armah in granting the licence in question. Since the inquiry in this aspect of the case is to determine the second appellant’s state of knowledge in relation to the prerequisites of obtaining a valid import licence, it is permissible in law to look at similar acts done by her in relation to import licence: see Phipson on Evidence (8th ed.), p. 159 et seq. On the same date that she took delivery of the licence in question, she received from the Ministry, two other licences. These are licences which her personal contact with the Minister yielded, namely, the licence for Florie Models, and licence for a Lebanese firm by name Issam Mrouweh. The commissioner found that both these licences were issued irregularly. [p.715] of [1968] GLR 704

In particular, Florie Models which is a business belonging to herself, was issued with a licence six times as much as the grading of the business entitled it. Florie Models was in 1965, graded as F and was as such, entitled to import licence for a sum not exceeding £G10,000: see the Commercial and Industrial Bulletin of 27 October 1965. She obtained a licence for £G60,000.

With regard to Mrouweh’s licence, the commissioner found, rejecting the second appellant’s denial, that it was she who arranged it with the Minister at the request of her sister Mrs. Odoku. Mrouweh had sought assistance from her. There is also the licence to Monaco Ltd. That company was established in 1964. It applied for import licence for the years 1964 and 1965 but was unsuccessful. Some time in October 1965, the second appellant was appointed director of that company. She invested no money in that business and the evidence is that she was appointed director “in order to obtain her co-operation.” In January 1966, the firm was issued with import licence worth £G100,000. There is of course no evidence that she contacted the Minister on behalf of the company or used influence in any way to obtain this licence. But we find it difficult to regard as a mere coincidence the circumstance that this company should have been granted a licence of a large amount only after the second appellant became a director. The evidence, as a whole, is susceptible to the conclusion that the second appellant had been in association with Kwesi Armah and had collaborated with him in the irregular grant of import licences. She herself has been a beneficiary of some of these irregular grants. Accordingly, we answer the question which we asked ourselves in the affirmative.

In our opinion, the conviction of the second appellant, like that of the first appellant, is well merited and the appeal of each appellant must therefore be dismissed.

DECISION

Appeal dismissed.

S. K. T.