REPUBLIC v. BOSSMAN AND OTHERS [1968] GLR 595

DIVISION: HIGH COURT, ACCRA

DATE: 2 JULY 1968

BEFORE: AMISSAH J.A.

NATURE OF PROCEEDINGS

ACCUSED were charged with various counts of conspiracy to extort and conspiracy to commit willful oppression contrary to sections 23 (1) and 239 (1) of Act 29 as a result of adverse findings made against them by the Ollennu Commission of Inquiry into irregularities [p.597] of [1968] GLR 595 and malpractice in the issue of import licences. The facts are fully set out in the judgment of Amissah J.A. sitting as an additional judge of the High Court.

COUNSEL

T. Ahlijah, Assistant State Attorney, for the Republic.

Koi Larbi for the first accused.

Kofi Acquaah for the second accused.

G. Ofosu-Amaah for the third accused.

JUDGMENT OF AMISSAH J.A.

The first and second accused, Joseph Emmanuel Bossman and Andrew Stokes, are charged in three counts with conspiracy to extort, contrary to sections 23 (1) and 239 (1) of the Criminal Code, 1960 (Act 29). The particulars of those offences are as follows:

COUNT ONE

In or about 1966, at Accra in the Eastern Region [they] did agree with one Kwesi Armah then Minister of Trade, a public officer, that the said Kwesi Armah should demand under colour of his office as such public officer from one Maurice Pierce Salmon an amount representing ten per cent of the value of import licence to be issued to the said Maurice Pierce Salmon for the year 1966, which said amount the said Kwesi Armah knew he was not lawfully authorised to demand.

COUNT TWO

In or about 5 February 1966, at Accra in the Eastern Region [they] agreed with one Kwesi Armah then Minister of Trade, a public officer that the said Kwesi Armah should under colour of his office as such public officer obtain from one Maurice Pierce Salmon an amount of £G1,500 (N¢3,000) which said amount the said Kwesi Armah knew he was not lawfully authorised to obtain.

COUNT THREE

In or about 19 February 1966 at Accra in the Eastern Region [they] agreed with one Kwesi Armah, then Minister of Trade, a public officer, that the said Kwesi Armah should under colour of his office as such public officer obtain from one Maurice Pierce Salmon an amount of £G2,400 (N¢4,800) which said amount the said Kwesi Armah knew he was not lawfully authorised to obtain.” [p.598] of [1968] GLR 595

The first and the third accused, Emil Binder, are charged with conspiracy to commit wilful oppression contrary to sections 23 (1) and 239 (1) of the Criminal Code, 1960 (Act 29), in that:

“In or about January or February 1966 at Accra in the Eastern Region [they] agreed with one Kwesi Mould and one Kwesi Armah then Minister of Trade, a public officer, to commit crime, namely, that the said Kwesi Armah should wilfully commit an abuse of his authority in the grant of import licence of £G50,000 (N¢100,000) to Emil Binder in respect of Pioneer Engineering Company in excess of what the said company applied for the injury of the public [sic.]” Considering first the charges of conspiracy to extort against the first and second accused, they were based on the following finding of the commission of inquiry into irregularities and malpractice in the grant of import licences (popularly known as the Ollennu Commission) at paragraph 848:

“Upon the evidence I find that:

(i) Stokes did demand ten per cent commission on the licence;

(ii) Salmon paid two sums of money totalling £G5,000 to Stokes as commission and Stokes received them;

(iii) the licence was arranged for by Dr. Bossman;

(iv) In making the demand and receiving the money, Stokes acted as an agent and in conspiracy with Dr. Bossman and Kwesi Armah;

(v) the issue of the licence is corrupt, and the corrupt issue was induced by Dr. Bossman and Kwesi Mould.”

In accordance with the procedure laid down by the Corrupt Practices (Prevention) Act, 1963 (Act 230), the accused showed cause why they should not be convicted on the adverse findings. On behalf of both the first and second accused, it was submitted that the findings were not supported by the evidence and that there was no evidence of conspiracy. The substantial evidence against the accused was given by one Salmon, a friend of the second accused. In its barest form, Salmon discussed his licence difficulties with the second accused and one Kwesi Mould, sometimes separately, at other times together. The second accused promised to help. After a while the second accused told Salmon that if he was prepared to pay ten per cent commission on the face value of the licence, he would have it. Salmon agreed to pay the commission, which he [p.599] of [1968] GLR 595 said he did by two instalments that is the £G 1,500 (N¢3,000) and the £G2,400 (N¢4,800) in the charges, on different dates. He subsequently received a licence for £G29,000 (N¢58,000). The payments were made to the second accused. The licence was collected by the first accused from the Ministry of Trade, handed first to Kwesi Mould then to the second accused who handed it to Salmon. The direct evidence provided by Salmon was against the second accused. It was the second accused who told him that if he was prepared to give ten per cent as commission he would obtain the licence. It was to the second accused that he paid the sum of N¢7,800. It was the second accused who brought Salmon his licence after it had been collected from the Ministry. Against the first accused Salmon could only say what the second accused had told him. It occurred in the following exchange: “State Attorney: Mr. Salmon, you have told the Commission that when you paid the money you asked to whom it should be paid and you were told it was going to Kwesi Armah. Did you ask how the money would go to Kwesi Armah?

Witness: I was told.

State Attorney: That it was going where?

Witness: That it was going to Dr. Bossman, Mr. Stokes did not tell me exactly that the money would be paid to Dr. Bossman before it reached its destination but when I asked where the money was going to, I was told that it was going to the Ministry of Trade but when I asked whether he was in contact with the Ministry of Trade he told me, no, but he was in contact with Dr. Bossman. State Attorney: Do you know the doctor yourself?

Witness: I do not know the doctor myself.”

It must have been this evidence together with the fact that the first accused agreed that he interviewed Kwesi Armah and got him to issue the licences, which connected the first accused with the transaction. It is true that acts and declaration of one conspirator in furtherance of the common design may be given in evidence against any other conspirator: see R. v. Blake (1844) 6 Q.B. 126. And therefore should the second accused be proved to be in a conspiracy with the first accused, the declarations of the second accused would bind the first accused. But the declaration which binds must be in furtherance of their common design. And before it is received in evidence against the other accused, the existence of the conspiracy, and the fact that the parties were members of that same conspiracy, must be proved. [p.600] of [1968] GLR 595

The charges against the two accused are of conspiracies to extort. Apart from the passage which I have quoted above showing that the money demanded by the second accused was to be channeled through the first accused to the Minister of Trade, what evidence was there that the first, the second accused and Kwesi Armah had combined to extort money from Salmon? Unless the evidence of the first accused that he interviewed Kwesi Armah on behalf of the second accused’s company and secured the licence for it were taken as that evidence, there was nothing. Counsel have submitted that the evidence of the interview by the first defendant is open to more than the one interpretation consistent with a conspiracy to extort. They submitted that the first accused was a personal friend of Kwesi Armah and had been designated to succeed Kwesi Armah as Ghana’s High Commissioner in London. There was therefore the occasion for the two to meet quite often. The first accused also happened to have been friends from childhood with Kwesi Mould who was a friend of the second accused. And it was only because Kwesi Mould spoke to the first accused of the difficulties of the second accused’s friend, Salmon, that the first accused undertook and in fact did intercede with Kwesi Armah on Salmon’s behalf. That the learned commissioner took the view that Kwesi Mould was connected with this chain of intercessions which resulted in the issue of the licence, is brought out by his final finding on this transaction, namely that, “the issue of the licence is corrupt, and that the corrupt issue was induced by Dr. Bossman and Kwesi Mould.” The curious thing is that just before the finding which ended in paragraph 848 with the passage immediately quoted above, the learned commissioner had examined the evidence of Salmon to find out Kwesi Mould’s connection with the transaction and had in paragraph 847 of the report come to this conclusion: “Therefore there is nothing which directly connects Kwesi Mould with the demand and payment of commission.’’ The learned commissioner did not find that there was anything which indirectly connected Kwesi Mould with the demand and the payment. For after absolving him of direct complicity, he said not one word more about Kwesi Mould before the finding that he corruptly induced the issue of the licence. Neither has the prosecution urged before me in these proceedings that Kwesi Mould, though not directly, was somehow involved in this conspiracy nor pointed out the evidence supporting this connection. There is thus a conflict in the findings as to the part that Kwesi Mould played in this conspiracy to extort from Salmon. If it should be resolved in a manner favourable to him, this would cast a doubt on the whole thesis of a conspiracy to extort. For here is one person who has been found to have corruptly [p.601] of [1968] GLR 595 induced Kwesi Armah, like the first accused, to issue the licence to Salmon. Yet for some inexplicable reason he is exonerated from direct complicity in the demand or payment of the money. Why should this reason not apply to the first accused as well? Possibly because he was mentioned directly as a person with whom the second accused was in contact. But as I said before, this statement can only be admitted against the first accused if it is proved aliunde that he was in a conspiracy with the others to extort. And the evidence from the other sources is no better against the first accused than it is against Kwesi Mould. A conclusion fairly open to the commissioner on the evidence was that the first accused played the part that he did because he was a friend of both Kwesi Armah and Mould. Why that conclusion was rejected in favour of the conspiracy theory was never made clear in the report. Accepting for this purpose that the evidence of Salmon was true, the money he paid could very well have stopped with the second accused. My attention has been drawn to other transactions in which persons who knew Kwesi Armah did intercede on behalf of applicants for licences and although Kwesi Armah granted the licences, the commissioner took the view that no corruption was involved. One such finding was on Mr. Amoako Atta, the Minister of Finance in the previous government. At p.71 (para. 328) of the report appears this observation on him: “I am satisfied that Mr. Amoako Atta used his influence to obtain the licences in question and also to obtain licences for other people which is irregular. But I entertain grave doubts as to whether the mere use of influence alone in this case is corrupt”.

Another such instance may be found in paragraphs 998 to 1,004 which dealt with Dr. Daniels’ intervention on behalf of one Bouery. These instances show that at least in some cases, though licences were issued after the intervention of Kwesi Armah’s friends and colleagues, such issues were merely irregular. No question of monetary corruption was necessarily involved. Why that reasoning did not apply to the case of the first accused was not satisfactorily explained. There were cases where the issue of a licence for an amount higher than that applied for was taken to connect Kwesi Armah with an interest in the percentage payable on the licence. But that was not the case here.

No suggestion was made that Kwesi Armah granted a licence in an amount higher than what was asked for. If anything the amount was less. In this connection I must confess

[p.602] of [1968] GLR 595 to being puzzled by the figures given in this case. The amount which Salmon, the principal witness, said he paid, i.e. ¢3,600 and ¢5,760 on separate occasions, making a total of ¢9,360 (N¢7,800 or £G3,900) does not correspond to ten per cent of the value of the import licence which he got. That licence was for £G29,000 and of course £G3,900 is far higher than ten per cent of that amount. Salmon’s evidence was that he was to pay ten per cent of the face value of his licence. In the circumstances of this case where figures, especially percentages, were of some importance, this discrepancy ought to have been explained. But it was not. It could be said, though it was not, that the amount Salmon paid was ten per cent of the licence he should have got. But where findings are made, no doubt justifiably, that Kwesi Armah issued licences corruptly whenever he gave more than was asked for, some explanation consistent with Kwesi Armah’s guilt in this instance ought to have been given for his grant of the licence in the smaller amount. This is particularly so when Salmon is said to have paid the final amount of the commission on the day he actually received the licence and therefore at a time when the amount remaining to be paid on the ten per cent of its face-value would be acutely apparent to him. I do not find such an explanation in the report. The prosecution has not chosen to supplement this deficiency either. As I have said, the amounts that Salmon admitted to paying totalled N¢7,800 or £G3,900. No doubt it was through inadvertence that the learned commissioner found that it was £G5,000. Because there was no evidence justifying the finding that Salmon ever paid £G5,000 to anybody. Taking all the circumstances discussed into account I find it unsafe to record a conviction against the first accused on the counts of conspiracy brought against him. That leaves the second accused. Against him there is a finding based on positive evidence given by his friend Salmon that the moneys mentioned in the charges were demanded by, and paid to him. Of Salmon the learned commissioner said this in paragraph 843 of the report:

“Salmon impressed me as a truthful witness; he did not hesitate to admit any fact which is either against him or in favour of Stokes. He is full of gratitude to Stokes for assisting him to procure his present employment, for financial assistance given to him now and again, and for his friendship.”

Obviously Salmon was more impressive in his live performance in the witness-box than he appears in cold print. Anybody now reading parts of his evidence will find himself in difficulty in accepting this conclusion on Salmon’s character; at the very least as [p.603] of [1968] GLR 595 regards the finding that he did not hesitate to admit any fact which was either against him or in favour of the second accused. Bearing in mind the explanation of the second accused that the only moneys he ever received from Salmon were repayments for loans given to Salmon, the following exchange illustrates the point I am making. Here Salmon was being cross-examined by the second accused (the quotation is from para. 830 of the report): “Mr. Stokes: Where did we meet to discuss this import licence?

Witness: I cannot tell you exactly where we met because we met quite often. It may be my office or his office.

Mr. Stokes: Was it not at a party in Mr. Mould’s house in Abeka?

Witness: It was not in Mr. Mould’s house and not at Abeka and not at a party.

Mr. Stokes: Where did you pay the money which you alleged you had paid?

Witness: I said I paid the money in your store on 5 February 1966.

Mr. Stokes: This is untrue. He borrowed £G1,500 from me.

Witness: Yes I borrowed £G1,500 from him but that money was borrowed after the transaction.

Commissioner: You borrowed £G1,500 from him but that money was borrowed after the transaction.

Witness: Yes.

Commissioner: Did you give him a receipt?

Witness: Yes.

Commissioner: And the receipt bears the date?

Witness: Yes.

[Receipts shown to witness which he identified.]

Mr. Stokes: Is this the first time I have given you money?

Mr. Salmon: It could have been [emphasis supplied.]

Mr. Stokes: Not it could have been; I am asking you.

Mr. Salmon: It could have been; he has been giving money to me in the past.”

(Emphasis supplied.)

I have said earlier that Salmon must have given a better impression of forthrightness while giving his evidence than the printed passage now suggests. But other features also detract from his evidence. One such feature is the unexplained discrepancy in the percentage rate he said he paid. I have already alluded to this.

[p.604] of [1968] GLR 595

Another is the fact that at one time he said that the £G1,500 corruption money paid to the second accused on 5 February was paid in the house of the accused. But at another time he said that some money was paid in the second accused’s store (see passage quoted above). It was not shown that the second accused’s house also contained his store. Nevertheless, I would have deferred, even though with some reluctance, to the learned commissioner’s finding, based on Salmon’s evidence, against the second accused. But the second accused is charged with conspiring with the first accused and Kwesi Armah to commit the offences. I have found that the evidence against both co-conspirators was insufficient to lead to this conclusion. Therefore even if I accept the finding against the second accused he cannot be convicted of conspiracy with the other two. It is an elementary proposition of law that on a charge of conspiracy if all the accused are acquitted except one that one must be acquitted also, unless it is charged and proved that he conspired with some other person not named in the charge: see R. v. Thompson (1851) 16 Q.B. 832; R. v. Manning (1883) 12 Q.B.D. 241 and R. v. Plummer [1902] 2 K.B. 339, C.C.R. If the first accused is acquitted and Kwesi Armah is found not to have committed extortion in concert with the others in this matter, and on this evidence he ought to be, the second accused must also be acquitted of the offence. I have held that on the evidence it is unsafe to convict the first accused or to attribute liability for extortion to Kwesi Armah in this transaction. The second accused by law is entitled to an acquittal too. In the event I acquit the first and the second accused of the charges brought against them in counts (1), (2) and (3).

The third accused, Binder, is charged together with the first accused with conspiracy to commit wilful oppression in that they agreed with Kwesi Armah that he should abuse his office. The finding made by the learned commissioner in this connection is in paragraph 860 of the report where it states: “I find therefore that the licences to Binder were corruptly granted and that Dr. Bossman and Kwesi Mould acted in collusion with Kwesi Armah in that corruption.” Counsel for the third accused has objected that this does not amount to an adverse finding against the third accused. His name is mentioned in the finding but only in description of the licences referred to, not as the person guilty of any offence. And indeed it is not too clear whether this finding is meant to be an adverse finding against the third accused. It has been said on his behalf that if the commissioner did not make an adverse finding against a person, then it was not for the Attorney-General to spell out a finding against him from other statements that the commissioner may have made. There is substance in that submission. [p.605] of [1968] GLR 595

Sections 3 and 4 of Act 230 demand that an adverse finding be made by the commission appointed, before the Attorney-General may commence proceedings under the Act. If no adverse finding are made against a person and nevertheless the Attorney-General is of the opinion that in view of what the commissioner has said criminal charges should be instituted against him, the ordinary procedures of the criminal courts are open to the Attorney-General to pursue. The other point made on the third accused’s behalf is that even the finding which has been made, which it is claimed is not adverse to the third accused, but is adverse to Kwesi Mould, was made by the learned commissioner without affording Mould an opportunity to say a word in explanation. The commissioner had the power to summon witnesses and indeed all persons who had appeared before him as witnesses were summoned by him. But Kwesi Mould was not summoned. It has been said by Mr. Koi Larbi in his submissions on behalf of the first accused that Kwesi Mould had applied to give evidence but was not called. The importance of Kwesi Mould lies in the fact that the allegation is that he was the one first approached by the third accused for help and he in turn approached the first accused who also approached Kwesi Armah. There is therefore a chain of communications and where a link in that chain is broken especially in a case where the break could have been avoided, this materially derogates from any conclusion arrived at in respect of the nature of the communication between the first person and the ultimate recipient of the communication. The first accused was the friend of Kwesi Armah; he was also a friend of Kwesi Mould. The first accused interceded with Kwesi Armah on behalf of the third accused because he, the first accused, was asked by his friend Mould to do so. From this the learned commissioner, without hearing and forming an opinion on Mould, concluded that the first accused performed the service asked for a corrupt consideration. I do not think that this necessarily follows. I think that in a commission of this nature, a finding, which is to constitute prima facie evidence against the person adversely affected in a subsequent trial, should have regard to the rule on the calling of material witnesses at a criminal trial. At the ordinary criminal trial, of course it is the prosecution which is under the duty to call all the material witnesses. If it does not, any doubt in the matter will be resolved in favour of the accused. At the commission, where the duty to investigate and therefore to call the witnesses is the commission’s, all material witnesses should similarly be called by the commissioner before he makes a finding which should [p.606] of [1968] GLR 595 be used as prima facie evidence against an accused. It may be said that the prosecution at a criminal trial need not call a witness whom it reasonably believes will not speak the truth: see Yeboah v. R. (1954) 14 W.A.C.A. 484 and that Kwesi Mould would have proved a liar if he had been called. But surely where this liberty conflicts with its duty to prove a case beyond reasonable doubt, the prosecution declines to call such a witness if he is material at its own peril: Bruce-Konuah v. The Republic [1967] G.L.R. 611. After all the prosecution’s duty to prove the case beyond reasonable doubt is the foundation of our criminal justice and is based on a substantive rule of evidence, whereas whether a particular witness is called or not is a question as to the mechanics by which the prosecution discharges its duty. Without accepting defence counsel’s claim that Kwesi Mould did in fact offer to give evidence but was not called, it does appear that the necessary evidence to establish the conspiracy was not available to the commission. In my view, Kwesi Mould should have been called to assist in the determination of the chain of communication between the third accused and the first accused which eventually ended with Kwesi Armah. And the omission to call him strikes at the validity of the finding against himself and any other person who is supposed to have acted corruptly as a result of his conduct. The case against the first accused in this conspiracy suffers from the same defects as the case based on the Salmon transaction brought against him. The only evidence taken into consideration to determine the nature of this specific transaction was the evidence of the third accused himself, but his evidence amounted to no confession. The third accused was condemned because he got a larger licence than he apparently asked for and because he was supposed to have blushed at one question. A blush cannot by itself be a safe criterion of guilt. Without hearing all the relevant evidence, including Kwesi Mould’s evidence, it is unsafe to accept that the only conclusion to be drawn from these facts is that the two accused conspired to act criminally, and that that crime was wilful oppression. For the reasons given, I acquit the first and third accused on the fourth count.

DECISION

All accused acquitted and discharged on all counts.

L. F. A.