ABASS AND OTHERS vs. THE REPUBLIC [1997-98] 1 GLR 708

CASES REFERRED TO

(1) Cottle v Cottle [1939] 2 All ER 535, DC.

(2) R v Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers Association [1960] 2 QB 167.

(3) Practice Note (Bart-Plange v Gbodi) [1961] GLR 627.

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(4) Zuta V The Republic [1976] 1 GLR 136.

(5) Uke v Ugie (1955) 15 WACA 15.

NATURE OF PROCEEDINGS

APPEAL by the appellants to the Court of Appeal from the decision of the High Court, Sekondi dismissing their appeal against their conviction and sentences by the trial circuit court judge on charges of conduct conducive to the breach of the peace. The facts are sufficiently stated in the judgments of Benin and Baddoo JJA.

COUNSEL

E B Gaisie for the appellants.

G K Owoo, Chief State Attorney, for the Republic.

JUDGMENT OF BADDOO JA.

Baddoo JA. delivered the first judgment at the invitation of Wood JA. The Circuit Court, Tarkwa on 23 February 1996 convicted the appellants on two counts of conduct conducive to a breach of the peace and threat of death. They were sentenced to eighteen months’ and three years’ imprisonment, respectively with hard labour. The High Court, Sekondi presided over by Manteaw J confirmed the convictions and sentences. Against these convictions the appellants have appealed to this court.

The brief facts are that there had been a chieftaincy dispute between the people of Kokoase and the inhabitants of Heman. The appellants support the people and chief of Kokoase while the complainant supports the people of Heman. The appellants support the people and chief of Kokoase while the complainant supports the people of Heman. It is alleged that on 4 July 1995 the Supreme Court gave a ruling which favoured the people of Kokoase. Following this ruling, the appellants were alleged to have gone to the complainant’s store to harass him. When they did not find him at the store, they insulted and threatened his wife and nephew. On 7 July 1995 the complainant came back and was informed of the incident. On the same day the second appellant came to the house with a shot gun and threatened to shoot the complainant, who took refuge in a toilet until the police were called in. The complainant consulted his counsel who wrote to the police about the matter and the appellants were arrested and charged with the offences before the court.

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When the appellants were brought before the court, the circuit court judge made the following order after the appellants were called upon to plead to the charges:

“Bench warrant to arrest fifth accused. The first, second, third and fourth accused are admitted to bail in the sum of ¢100,000 with one surety each. All of them are also bonded in their own recognizance to keep the peace until the case at both the High Court and this court are disposed of or in default ¢500,000 each or six months’ imprisonment with hard labour”

The court then proceeded to hear the case against the appellants. The prosecution called six witnesses and closed their case. The appellants did not give evidence, nor did they call any witnesses. Instead counsel for the appellants addressed the court and the prosecution replied. The circuit court found that the charges had been proved and sentenced the first appellant to eighteen months’ imprisonment and the second appellant to three years’ imprisonment with hard labour.

The main ground of appeal was that since the circuit court bound the appellants over to keep the peace without giving them a hearing, they have been denied their fundamental human rights and therefore their conviction must be set aside. It was also argued that since the appellants were convicted without being heard, the subsequent trial by the circuit court was biased and the resultant conviction must be quashed.

For the Republic, Mr Owoo, Chief State Attorney, submitted that the failure to give the appellants a hearing, though a procedural error, did not occasion any substantial miscarriage of justice as to invalidate the conviction and sentence. He further submitted that there was sufficient evidence to sustain the charges of conduct conducive to a breach of the peace and threat of death. He urged the court to uphold the conviction and sentence against the appellants.

The most important question which this court is called upon to answer is whether the failure to give the appellant a hearing is a mere procedural error which did not occasion any miscarriage of justice. Section 22 of the Criminal Procedure Code, 1960 (Act 30)

[p.713] of [1997-98] 1 GLR 708 under which the circuit court judge purported to act provides that where a magistrate is informed on oath that a person within his jurisdiction is likely to commit a breach of the peace, the magistrate may require that person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period as the magistrate thinks fit. If that person is not present in court the magistrate shall issue a summons requiring him to appear before the court. Where the magistrate has information that there is reason to fear a breach of the peace and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of the person, the magistrate may issue a warrant for his arrest.

Under section 29(1) of Act 30, however, it is provided that: “. . . the Magistrate shall proceed to enquire into the truth of the information upon which the action has been taken, and to take such further evidence as may appear necessary.” Section 29(2) of Act 30 also provides that: “The enquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trials before District Courts except that no charge need be framed.” Section 29(3) Act 30, however, provides that:

“(3) Pending the completion of the enquiry under subsection (1), the magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public peace or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under section 24 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the enquiry, and may detain him in custody until the bond is executed, or in default of execution, until the enquiry is concluded.”

It is my considered opinion that the powers given to the magistrate under the above provisions will only be applicable if the appellants were being dealt with under section 22 of Act 30 which deals with security for keeping the peace and for good behaviour. It is not a general provision which can be invoked when an accused person charged under another section of the

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Criminal Code, 1960 (Act 29) is being tried. Be that as it may, before any person can be bound over to keep the peace or be of good behaviour the law requires that the magistrate shall inquire into the truth of the allegation against those persons. The procedure shall be like a trial as far as practicable. That is to say, the prosecution or the person who makes the allegation must go into the witness box and testify about the information he has given to the magistrate, that the person or persons before the court is or were planning to cause a breach of the peace, or disturb public peace. This testimony will then be subjected to cross-examination by the person or persons against whom the allegations have been made. After this the person or persons against whom the allegations have been made will also be given the opportunity to tell the court their version of the matter. It is only when the magistrate has heard both sides of the case, the person who made the allegation and the person or persons against whom the allegations were made, that he can decide whether the person or persons should execute a bond to keep the peace or to be of good behaviour.

The requirement of Act 30 is mandatory that the magistrate should inquire into the truth of the allegation before making any order to bind any person over. Failure to inquire into the truth of the matter amounted to denying the person or persons their fundamental human rights. It also violated the time honoured principle of audi alteram partem that no man should be condemned unheard. It was not a mere procedural error, but a violation of the mandatory provisions of Act 30, s 29(2). The order binding the appellants to keep the peace in their own recognizance or in default ¢500,000 each or six months’ imprisonment with hard labour is accordingly void.

As to whether the order amounted to a conviction or not, one has only to look at the wording of the order to conclude that the order indeed amounted to a conviction. It states:

“All of them are also bonded in their own recognizance to keep the peace until the case at both the High Court and this court are disposed of or in default ¢500,000 each or six months’ imprisonment with hard labour.”

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Not only was a fine imposed if they refused to execute the bond, but they could be sentenced to a term of imprisonment for six months as well. A fine could be imposed by a court only when the court has convicted a person. Therefore it seems clear to me that requesting a person to execute a bond to keep the peace or to be of good behaviour, on pain of being sent to prison, amounts to a finding by the court that, that person was likely to cause a breach of the peace or disturb the public peace. Since there is a fine or imprisonment if the person refuses to execute the bond, the order by the court would amount to a conviction. That, the order is a conviction, is a reason why the statute requires the magistrate to inquire into the truth of the allegation, before making the order. The inquiry will afford the person the opportunity to be heard, before any order is made against him.

The question of jurisdiction was not raised by any of the appellants. But I think it is appropriate to determine whether the circuit judge had jurisdiction to make that order. Act 30, s 22, under which the judge acted, specifically gives power only to the magistrate to inquire into such matters which deal with breaches of the peace and disturbance of the peace. Since this was a circuit court, it had no jurisdiction to act under section 22 of Act 30. This provision is similar to the provision under section 181 of Act 30 which deals with committal for indictment. Under the section, it is only the district court, now the community tribunal, which has jurisdiction to carry out committal proceedings. Any proceedings before the circuit court in respect of committal proceedings will therefore be void unless the Chief Justice directs the circuit court to sit as a community tribunal. The order by the circuit court therefore was without jurisdiction.

I come now to the other argument that in the trial which followed after the appellants had been bound over, the learned judge was biased against the appellants. If the circuit judge, without giving the appellant a hearing, concluded that they were likely to cause a breach of the peace, it will be difficult to resist the argument that the learned judge had made up his mind to convict the appellants of the charges of conduct conducive to a breach of the peace and threat of death. Bias means a predisposition to decide a cause or an issue in a particular way, which does not leave the mind perfectly open to persuasion. It is the

[p.716] of [1997-98] 1 GLR 708 condition of the mind which sways a person’s judgment and renders a judge or any judicial person, unable to exercise his functions impartially in a particular case. Having held that the appellants were likely to cause a breach of the peace, it was most likely that the judge would convict them of the charges of conduct conducive to a breach of the peace and threat of death.

The requirement of the law on questions of bias has been, not to show that the court was biased, but that there was real likelihood of bias: See Cottle v Cottle (1939) 2 All ER 535, DC and R v Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallars Association [1960] 2 QB 167 at 107 CA where Delvin LJ said:

“Is there in those circumstances, a real likelihood of bias? Not quite sure what test Salmon J. applied. If he applied the test based on the principle that justice must not only be done but manifestly be seen to be done, I think he came to the right conclusion on that test. I cannot imagine anything more unsatisfactory from the public point of view than applications of this sort being dealt with by a bench which was so composed, and, indeed, it is conceded that steps will have to be taken to rectify the position. But, in my judgment, it is not the test. We have to inquire what impression might be left on the minds of the present applicants or on the minds of the public generally. We have to satisfy ourselves that there was a real likelihood of bias—not merely satisfy ourselves that that was the sort of impression that might reasonably get abroad.”

Now, what sort of impression would have been left in the minds of the appellants after the learned judge had bound them over to keep the peace without giving them a hearing? I think the impression on their minds would be that they would be convicted of the charges of conduct conducive to a breach of the peace and threat of death. There was, indeed, a real likelihood of bias.

For the above reasons, I set aside the conviction and sentence of each appellant and accordingly, discharge each appellant forthwith.

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JUDGMENT OF BENIN JA

The accused were first arraigned before the Circuit Court, Tarkwa on one charge, namely: conduct conducive to the breach of the peace contrary to section 207 of the Criminal Code, 1960 (Act 29); the fifth accused only was given a second charge of threat of death contrary to section 75 of Act 29. With the exception of the fifth accused, all the other accused person were present in court when their pleas were taken and they all pleaded not guilty. The accused filed a notice of alibi and as a result the prosecutor asked for two weeks adjournment to enable the police to investigate it, a request which the court granted. At the next adjourned date the court called upon the prosecution to open its case and this it did. The first prosecution witness gave evidence and was cross-examined. At the next sitting the fifth accused appeared before the court and his plea was taken, he also pleaded not guilty to both counts. The prosecution’s case continued with the calling of the second witness who was also cross-examined and discharged. That very day the fifth accused was remanded in prison custody and the case was adjourned. It is the proceedings for the adjourned date as well as what took place on the day the pleas of the first four accused were taken which have partly culminated in the present appeal. It is thus necessary to reproduce the relevant portions of the proceedings for that day 18 October 1995.

After the prosecutor and counsel for the accused had announced their presence, the prosecutor made this statement to the court:

“The complainant has informed me that the fifth accused . who has been granted bail by the High Court has threatened him the complainant again that he will see. I therefore apply for the fifth accused to be bonded to keep the peace until the end of this case”

Counsel for the accused responded that the request was outrageous. Then the presiding judge said: “In my view the tension between the complainant and the accused is so serious that it had resulted in the death of one person and injury to a policeman sometime ago. It is on that

[p.718] of [1997-98] 1 GLR 708 ground that I find it necessary to maintain peace in order to hear the case and give a final judgment. I will therefore grant the application and like the other accused persons, I order that the fifth accused should be bonded over in the sum of ¢1 million with two sureties to keep the peace and be of good behaviour until the end of this case.”

Soon after the case of the prosecution continued. But as I said earlier there is also a complaint against what took place on the day, that is 17 July 1995, that the first four accused persons’ pleas were taken. They were each admitted to bail in the sum of ¢100,000 with one surety each. Then this order immediately followed the grant of bail: All of them are also bonded in their recognizance to keep the peace until the case at both the High Court and this court are disposed of or default ¢500,000 each or six months’ imprisonment with hard labour. At the close of the case for the prosecution, the accused offered not to give any evidence. But their counsel addressed the court on the sole ground that by the court’s orders of 17 July 1995 and 18 October 1995 it had effectively convicted the accused and also sentenced them under section 299 of Act 30.

In its judgment, the trial court found the alibi failed. He also found the two charges proved in law against all the accused persons. On the orders of 17 July 1995 and 18 October 1995 this is what the learned trial judge said:

“ . . . that order did not derive from section 299 of Act 30 and did not amount to conviction and sentence. The court had inherent duty to maintain peace and order within this judicial circuit. It is notoriously known in this circuit that in an earlier similar incident involving the same parties, a man was shot dead and a policeman lost an eye. In achieving this peace, the court may exercise certain amount of discretion. I think this view I hold has a statutory support from section 22 of Act 30 and if properly applied many of the armed clashes and arsons resulting in loss of lives and property and huge public expenditure to maintain peace and security can be forestalled. I will therefore overrule that submission that the court sub silentio convicted and sentenced the accused

[p.719] of [1997-98] 1 GLR 708 persons. It was a mere interim measure taken to preserve peace during the trial. See also Zuta II v The Republic [1976] 1 GLR 176 which states that the application of section 22 of Act 30 was not a conviction and sentence.”

At the end the court sentenced them as follows: the first accused—eighteen months’ imprisonment with hard labour; the second, third and fourth accused—a fine of ¢150,000 each or six months’ imprisonment with hard labour; the fifth accused—three years’ imprisonment with hard labour. From the record before us there was an appeal to the High Court, Sekondi, which court dismissed the appeal on the merits. This is thus the second appeal in this case. The High court imposed additional sentences on the accused persons. There was an additional ground of appeal challenging the validity of the enhanced punishment imposed by the High Court, but this ground was abandoned at the hearing leaving the original grounds of appeal intact. And these were:

“(1) That on the submission against convictions and sentence the appeal should have been allowed.

(2) The ruling by the High Court judge that:

“the wrongness of the procedure does not take the issue out of section 22 of Act 30 and to section 299 since the judge made it clear that this was an interim measure pending the determination of the case before it and before the High Court” is, with respect, patently wrong as section 22 is not meant to be used as an adjunct to criminal charges preferred against an individual.

(3) The ruling of the High Court is perverse.

(4) The ruling that “a case of acts tending to disturb the peace and threat of death had been made out sufficiently against all the appellants” is equally wrong as there was no legal proof that the appellants committed the offence.”

Ground (3) was also abandoned. Counsel for the appellants argued grounds (1) and (2) together and then ground (4) separately.

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Grounds (1) and (2) stemmed out of the orders of 17 July 1995 and 18 October 1995 which the trial circuit court confirmed in its judgment were proper. The High Court, whilst conceding that the procedure required under section 22 of Act 30 was not followed, nevertheless affirmed the circuit court’s decision for the reason that those orders did not occasion any substantial miscarriage of justice, a point re-echoed in this court by counsel for the Republic. The High Court agreed with the circuit court that this was a mere interim measure, and not a final order. It cited Practice Note (Bart-Plange v Gbodi [1961] GLR (Pt II) 627 by Ollennu J (as he then was) and continued: “He [referring to Ollennu J] sees section 22 as a useful procedure in getting litigants even in land disputes to keep the peace pending the determination of their dispute.”

With all due respect to the learned High Court judge, I think she misconstrued entirely the requirement that the Practice Note (Bart-Plange v Gbodi) (supra) set out and how to achieve it. The learned judge was very mindful of the fact that section 22 of Act 30 imposed a procedure which must be followed, he did not disregard the procedure simply because there was some urgency about it as the trial circuit court did in this case. He actually directed the registrar to refer the affidavit of the plaintiff, wherein he alleged that there was a likelihood of a breach of the peace occurring, to the police for the latter to act as they might consider fit. An affidavit is a form of oath so a district magistrate could act on it as an originating process under section 22 of Act 30. For section 22(1) of Act 30 requires information to be given to the district court only on oath before the court can act, and that oath need not be in any specific form, it must be sufficient to satisfy the court that an oath is indeed in place; and it need not come from the police, anybody with the necessary information can provide it to the district magistrate on oath. Section 22(1) of Act 30 further requires that the magistrate, before he acts, must invite the party against whom the allegation is made, let’s call him the respondent, to answer same. In other words, the respondent is entitled by the law to be heard. Indeed, this is only in keeping with the time honoured principle expressed in the Latin maxim audi alteram partem which has existed ever since Adam and Eve ate the forbidden fruit and God asked them to explain their action before punishing them. And where this hallowed rule of natural justice

[p.721] of [1997-98] 1 GLR 708 which has also found statutory expression is abused, a party affected is entitled to say the order emanating therefrom has occasioned a grave miscarriage of justice within the meaning of section 406 of Act 30 and section 31(2) of the Courts Act, 1993 (Act 459).

Besides, placing a person under a bond or recognisance under section 22(1) of Act 30 amounts to a conviction. The trial circuit judge erred in deciding otherwise. I think the case of Zuta v The Republic [1976] 1 GLR 136 which he relied upon decided clearly that an order for the execution of a bond under section 22 of Act 30 was a conviction within the meaning of section 19(1) and (2) of the then Courts, Act, 1971 (Act 372). These provisions have been substantially re-enacted in section 45(3) and (4) of Act 459. Indeed, similar provision existed under section 324(4) of Act 30 until it was repealed by Act 372, Sched 3. Section 22(1) of Act 30 should be strictly followed to the letter for the court’s jurisdiction is invoked only when it receives information on oath that a breach of the peace is likely to occur. Moreover, a person cannot be condemned without a hearing.

In my view therefore the circuit court’s orders of 17 July 1995 and 18 October 1995 were given without jurisdiction and also a grave miscarriage of justice was occasioned since the respondents were given no right of hearing at all before being convicted. Accordingly, the circuit court’s orders of 17 July 1995 and 18 October 1995 are declared void and are accordingly vacated. Also the High Court’s order confirming those circuit court orders was made in error and is accordingly vacated. Grounds (1) and (2) of the appeal are accordingly allowed.

The fourth ground deals with the merits of the case. The facts were as follows: There was a chieftaincy dispute between the towns of Kokoase and Heman. The accused are on the side of Kokoase whereas the complainant is said to be on the side of Heman. On 4 July 1995 the Supreme Court gave a ruling in favour of the Kokoase faction. As expected the Kokoase supporters returned in a jubilant mood. But the story continues that they also returned with vengeance against, at least, the complainant in particular. They went to his store and house that night but met him absent for he had then travelled to Kumasi. And according to the prosecution witnesses who were present, the accused were

[p.722] of [1997-98] 1 GLR 708 alleged to have threatened to sack the complainant from the town or kill him. These threats were conveyed to the complainant on his return from Kumasi and he made a complaint to the police. These events spoken of constitute the first charge of conduct conducive to the breach of the peace which was levelled against all the five accused persons.

Section 207 of Act 29 under which this charge was brought reads:

“207. Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke breach of the peace or whereby a breach of the peace is likely to be occasioned, shall be guilty of a misdemeanour.”

This definition is clear that an actual breach of the peace need not result from the words or action complained of; it is enough if it is shown that a breach of the peace was likely to result thereby. It is a question of fact. It was rightly said by Foster Sutton P in Uke v Ugie (1955) 15 WACA 15 that the test is not the actual result, but whether the conduct, and I may add, the utterance, complained of was likely to cause a breach of the peace. In my view, the conduct or utterance complained of must be established first to be insulting, abusive or threatening; and secondly, that it must have taken place at a public meeting or public place; and thirdly, that it occasioned a breach of the peace or was likely to occasion a breach of the peace. The breach of the peace can only be committed by persons present at the public meeting or place who were the subject of the attack or likely to be affected thereby. For that reason, if from the circumstances of the case any person present, though not directly attacked by the utterance or conduct of the accused, felt sufficiently provoked and is able to prove that the utterance or conduct was intended to achieve that purpose, that person could also be a complainant. Thus, for instance, if A goes to a man’s house and uses abusive words with intent to provoke him, his wife and children for example who happen to be around can also complain under this section.

In this particular case, even though the accused were said to have acted the way complained of in the presence of the complain-

[p.723] of [1997-98] 1 GLR 708 ant’s wife (the first prosecution witness) and nephew (the third prosecution witness) none of them considered the conduct of the accused provocative of the peace so they made no report to police. The complainant (the first plaintiff witness) who made the report some time later was not at the scene on 4 July 1995 and so could not have been provoked by the conduct complained of. The first prosecution witness acted purely on hearsay evidence. Section 207 does not envisage that the court should act on hearsay evidence; hence the requirement that the statement or conduct should be in a public place or meeting and should be likely to provoke a breach of the peace to persons present at that public meeting or place. Like in every case where provocation is raised, sufficient cooling off period negates the provocation. Hence the accused’s conduct or utterance or both was not intended to provoke a breach of the peace since the person (the first prosecution witness) who was the subject of their attack was far away from the scene, to be precise in Kumasi. Thus on the facts, the charge was not made out and ought to have been dismissed. The conviction of the five accused persons on count (1) was erroneous, and so I vacate the judgment of both the circuit court and that of the High Court, quash the conviction and set aside the sentences. The fines, if paid, should be paid back by the court to the affected accused.

There was a second count, namely threat of death against only the fifth accused. Counsel for the appellant stressed the fact that the trial circuit judge was hostile and biased towards the accused and this attitude operated throughout the trial. First, he referred to the fact that the trial judge convicted the accused and placed them on bond even before hearing them. Next, the trial judge in his final judgment said the accused relied on their statements given to the police when in fact they did not say so. Thirdly, the trial judge referred to the fact that such acts have been going on in the area and that the accused were involved in one of them; for these reasons the trial judge was set against them and no justice could be expected from him for the accused.

I have already dealt with the first point raised and held it was a conviction. The second point which the trial judge dwelt at length on his judgment was, with respect, false. This is because according to his own recording for 30 January 1996, counsel for the accused merely told the court they were not going to “give any evidence.”

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On the third point, this is what the trial judge said: “It is notoriously known in this circuit that in an earlier similar incident involving the same parties a man was shot dead and a policeman lost an eye.” He went on and on and in the end convicted the accused persons.

It is clear that though there was some evidence that the fifth accused threatened the first plaintiff witness, yet the trial court allowed extraneous matters to influence his decision and, indeed, the matters listed above contributed immensely to his decision. Indeed, it is dangerous for a judge to form such opinion about an accused that he is a criminal and has participated in a similar crime before, go onto bind him over without hearing him and yet feel competent to preside over the case and then go on to use these facts, not proven on the record, to form part of the reasons to convict an accused. It is clear the trial judge’s mind was already made up even before he had heard the accused and in such a frame of mind a real likelihood of bias was bound to exist. In that situation, the only solution would be to order a retrial before another judge after setting aside the conviction and sentence. But the record shows that the first and fifth accused have already been in prison for over a year now so it would be plainly unjust to let the fifth accused face another trial. Thus, as I said earlier, there was evidence on which the trial court could convict the fifth accused for threat of death, but for reason of likelihood of bias, I consider the trial unsafe and so set aside the conviction and sentence. No new trial will be ordered for the reasons already explained. The first and the fifth accused are accordingly to be released from prison forthwith.

JUDGMENT OF WOOD JA.

I agree that the appeal be allowed.

DECISION

Appeal allowed.

LSNA.