ISA vs. THE REPUBLIC [2001-2002] 2 GLR 298

CASES REFERRED TO:

(1) Akowuah v Commissioner of Police [1964] GLR 475, SC.

(2) Apaloo v The Republic [1975] 1 GLR 156, CA.

(3) British Airways v Attorney-General [1997-98] 1 GLR 55, [1996-97] SCGLR 547. (4) Republic v Maikankan [1971] 2 GLR 473, SC.

(5) Donkor v The State [1964] GLR 598, SC.

(6) Republic v High Court, Accra; Ex parte Adjei [1984-86] 2 GLR 511, SC.

(7) Sallah v Attorney-General, Supreme Court, 20 April 1970, unreported; digested in (1970) CC 55. (8) Kuenyehia v Archer [1993-94] 2 GLR 525, SC.

(9) State v Kassena (Ali) [1962] 1 GLR 144, SC.

(10) Moshie v The Republic [1977] 1 GLR 287, CA.

(11) Gyamaah v The Republic, Court of Appeal, Accra, 20 April 2000, unreported.

(12) Nyame v The Republic [1971] 2 GLR 140, CA.

(13) Teper v R [1952] AC 480; [1952] 2 All ER 447; [1952] 2 TLR 162, PC.

(14) R v Taylor (1928) 21 Cr App R 20, CCA.

[p.302] of [2001-2002] 2 GLR 298 (15) Republic v Accra Special Circuit Court; Ex parte Akosah [1977] 2 GLR 283.

APPEAL by the appellant to the Court of Appeal from the ruling of the trial High Court, Accra dismissing his (a) preliminary objection that the charge of causing financial loss to the State for which he had been arraigned was contrary to article 19(2)(d) and (11) of the Constitution, 1992 and therefore unconstitutional; and (b) submission of no case. The facts are sufficiently stated in the judgments of Brobbey and Amonoo-Monney JJA.

Ambrose Dery for the appellant.

Osafo Sampong, Director of Public Prosecutions, for the Republic.

Brobbey JA. The judgment in this case has been composed by three separate opinions of the members of the panel who heard the case. In substance each of us deals with separate aspects of the case in detail. We have adopted this method in order to avoid repetitions and duplications. Any of us may comment on the other issues as well. Those comments and the detailed considerations should be read together before the full import of the ratio decidendi on each issue will be appreciated.

The various aspects of the case are dealt with as follows: I will discuss in detail the facts giving rise to the charges and the proceedings before us including the issue of Gazette notification for the appeals, as well as the constitutional points raised in respect of the second charge. My brother Baddoo JA will discuss the aspects of the case dealing with the charges in so far that they relate to the submission that at the end of the case for the prosecution, no case was made to support the charges preferred against the appellant for which he should be called upon to answer those charges; and my brother Amonoo-Monney JA will discuss some aspects of the constitutional issues as well as the submission of no case and the application for stay of proceedings when the appeal record is ready for the appeal to be heard. Having dealt with these in detail, there will be general comments on the issue whether [p.303] of [2001-2002] 2 GLR 298 one or both of the grounds for the submission of no case should be satisfied before the submission will succeed.

Although the case was first sent to this court as an application for stay of proceedings, the accused will for reason to appear shortly in this judgment be referred to as the appellant. The facts as appearing in the record of appeal and the various affidavits filed in the case are as follows: FIFA World Cup Football qualifying matches were organised in Sudan on 25 February 2001. It was decided that the senior Ghana soccer team, the Black Stars, should participate in the matches. At that time, the appellant was the Minister for Youth and Sports. He was to travel to Sudan for those matches. He was given some moneys in three separate batches for that trip. One of the moneys amounting to US$46,000 was to be used for paying winning bonuses and imprest for players and officials. According to the appellant, he put the $46,000 and some items, including an audit report, in his green suitcase which he used for the trip and kept the rest of the money in his pilot brief case which he carried with him. All these took place in Accra before he emplaned to Sudan on 23 February 2001. When he arrived in Sudan at 2.00 am on 25 February, he was informed that his green suitcase did not arrive with that flight. The appellant and the group had travelled from Frankfurt to Sudan on Lufthansa Airline. They therefore arranged with that airline to retrieve the suitcase. It was alleged that it was discovered in Frankfurt and redirected via London to Khartoum. The suitcase finally arrived in Sudan on 28 February 2001 when the appellant and the group were about to depart from Sudan to Ghana. According to the appellant, he opened the green suitcase and discovered that it did not contain the US$46,000 and some other items such as the audit report. According to the prosecution, the appellant was unable to reasonably account for the missing money. After investigations, he was charged with stealing and fraudulently causing financial loss to the State.

The precise charges preferred against the appellant read as follows:

[p.304] of [2001-2002] 2 GLR 298

“Count One Statement of Offence Stealing, contrary to section 124(1) of the Criminal Code, 1960 (Act 29).

Particulars of the Offence Mallam Ali Yusuf Issa, ex-Minister for Youth and Sports, between 23 and 28 February 2001 in Accra in the Greater Accra Region and within the jurisdiction of this court dishonestly appropriated a total amount of US$46,000 (forty six thousand US dollars) being winning bonus and imprest for players and officials of the Ghana Black Stars.

Count Two Statement of offence Fraudulently causing financial loss to the state, contrary to section 179A(3)(a) of the Criminal Code, 1960 Act 29.

Particulars of offence Mallam Ali Yusuf Issa, ex-Minister for Youth and Sports, between 23 and 28 of February 2001 in Accra in the Greater Accra Region and within the jurisdiction of this court fraudulently caused the loss of the sum of US$46,000 (forty six thousand US dollars) to the Ghana Football Association (GFA); a public body.”

The appellant pleaded not guilty to the charges. Before the start of the trial, counsel for the appellant raised objection to the second count or charge. The objection was overruled on 15 May 2001. The appellant appealed against the ruling. The trial then commenced with evidence being led by the prosecution. At the end of the case for the prosecution, a submission of no case was made on behalf of the appellant. That submission too was overruled on 24 May 2001. The appellant appealed against that ruling too.

In the meantime, the appellant applied for a stay of proceedings pending the hearing and determination of the two appeals. By the time the motion came up for hearing in this court, the two appeals were also ripe for hearing and in fact counsel for the appellant had filed his written submissions on behalf of the appellant in respect of the two appeals. This panel decided that in the circumstances, the two appeals

[p.305] of [2001-2002] 2 GLR 298 would be heard instead of hearing the motion for stay of proceedings. It may be added that both counsel in the case were present when the decision was taken to hear the two appeals instead of the motion for stay of proceedings and none of them objected to that decision. This is the explanation for describing the accused as the appellant instead of the applicant. The two appeals were then argued together.

This panel is not unmindful of the fact that the appeals before us have not been publicised in a Gazette notification. However, in view of the facts that the entire record of appeal and indeed the arguments in respect of the two appeals are before us and the two counsel in the case raised no objection to the decision to hear the appeals instead of the motion, we are of the opinion that the appeals could be heard without the Gazette notification. Additionally, the essence of the Gazette notification is to ensure that the parties and those concerned with the appeals are duly notified of the court proceedings. The very that the appellant and his counsel, as well as counsel for the Republic were all in court were themselves sufficient evidence that the parties and all concerned with the appeals were duly notified. If the Gazette notification is to notify the parties and the parties have already been notified, no purpose would be served by adjourning the case for the notice, that has already been proved to have been given, to be served on the very people who already have that notice. That would smack of absurd interpretation to be given to the rules on the necessity to Gazette appeals. The very reason for the Gazette notice having been satisfied, we were of the opinion that the appeal could proceed to be heard without the Gazette notification. This judgment is therefore for the two appeals.

In line with the procedure outlined already, the constitutional objection relating to the second charge will first be considered. That objection was that the second charge was unconstitutional in that it contravened the Constitution, 1992. The grounds of the objections were that first, the charge was based on the provisions of section 179A(3)(a) of the Criminal Code, 1960 (Act 29) which is unconstitutional because it was contrary to article 19(11) of the Constitution, 1992; and secondly, if even section 179A(3)(a) of Act 29 were constitutional, the charge did not contain sufficient details to meet the requirements of article 19(2)(d) of the same Constitution, 1992 and was for that reason unconstitutional.

In essence, section 179A of Act 29 under which the appellant was charged reads as follows:

[p.306] of [2001-2002] 2 GLR 298

“(3) Any person through whose wilful, malicious or fraudulent action or omission (a) the State incurs loss . . . commits an offence.”

On the other hand, article 19(11) of the Constitution, 1992 provides that: “(11) No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.”

In arguing the first ground of the objection on behalf of the appellant, counsel for the appellant contended that section 179A (3)(a) . . . contained no definition of the act or omission that led to the loss of the US$46,000. That omission, according to him, meant that the charge levelled against the appellant contravened article 19(11) of the Constitution, 1992.

The essence of that argument centers on the meaning of the word “define” in article 19(11) of the Constitution, 1992. In the Shorter Oxford English Dictionary (3rd ed), Vol A–M, p 470 “define” is explained, inter alia, as follows: “to determine the boundary or limits of, to make definite in outline or form; to limit, confine; to lay down definitely; to state precisely; to set forth the essential nature of; to set forth what (a word etc) means.” In the latest volume of Black’s Law Dictionary (7th ed), p 433, the same word “define” is explained as inter alia: “1. To state or explain explicitly. 2. To fix or establish (boundaries or limits). 3. To set forth the meaning of (a word or phrase).” What these two explanations provide is that there is more than one meaning to the word “define.” It may mean to give precise meaning or explanation to a word like the definition section of a statute. One such definition will for instance be found in the meaning of “crime” as contained in section 114(2) of Act 29 which states: “In this section, ‘crime’ means a felony or misdemeanor . . . [etc].” It may also mean to set forth the boundaries or limits of a word or give an indication or the nature of the word. Either meaning is correct. Strangely, when counsel for the appellant was asked at the beginning of his argument before this court what he understood by the word “define”, he stated that he understood it to mean giving an indication or nature of the action or omission or the limitations of an action or omission. His definition was indeed consistent with the meanings given in the two dictionary senses above.

Section 179A(3)(a) of Act 29 under which the charge was

[p.307] of [2001-2002] 2 GLR 298 preferred against the appellant states that “any person through whose wilful, malicious or fraudulent act or omission . . .” In case someone were not sure or were not to know the act or omission intended or contemplated, the obvious question to be asked will be “what act or omission?” The section will then have to be looked at and it will be found stated therein expressly that it is “the act or omission that causes the State to incur a financial loss.”

In effect, the limitation, boundary or connotation of the act or omission have been stated and confined to only those by which the State incurs a financial loss. Any objective reading of the charge should lead to the natural and obvious conclusion that the nature of the act or omission contemplated by the section can only be one that causes the State to incur a financial loss. The section does not lend itself to any other interpretation, apart from one that causes the State to incur a financial loss. Therefore, the section does give an indication or the nature of the act or omission and that indication or the nature is one that causes financial loss to the State. To the extent that the act or omission is stated to be confined to the specific one that will cause the State to incur a financial loss, the act or omission has been defined. Since it has been defined, the charge does not contravene article 19(11) of the Constitution, 1992. The charge preferred against the appellant cannot correctly be described as unconstitutional for want of definition. The first ground of the objection fails and I would dismiss it.

What is deducible from this case is that the definition of an act or omission in a statute is not limited to only the giving of the precise meaning of the act or omission. It may also mean giving an indication or the nature of the act or omission or the limitation or boundary connoted by that act or omission. The view of the trial judge that the act or omission has not been defined was right if the trial judge was referring to the specific meaning or explanation as stated in the first part of the meaning of “define” explained above. That view could not be correct if it meant setting the limitation or boundary to or giving an indication or the nature of the act or omission as contained in the second leg of the meaning explained here.

There was however a second ground of the objection and that was founded on the complaint that the second charge contravened the provisions of article 19(2)(d) of the Constitution, 1992. The relevant part of that article provides that:

“(2) A person charged with a criminal offence shall

[p.308] of [2001-2002] 2 GLR 298

(d) be informed immediately in a language that understands, and in detail, of the nature of the offence charged.”

The essence of the second ground of the objection was that even if the charge was defined, it did not contain sufficient details to satisfy the requirements of article 19(2)(d) of the Constitution, 1992. In arguing that ground, counsel for the appellant contended that the charge should have contained details of what act or omission would constitute the offence because in the absence of the details, the appellant would not know which actions or omissions of his would be contemplated by the section to enable him to prepare his defence adequately.

The argument of this ground seemed to suggest that what amounted to evidence should have been included in the charge. That could not be correct because in preparing criminal charges, there is no obligation to state detailed evidence. Detailed evidence will come up during the trial itself and not in the charge. That ground raised the perennial issue as to what particulars should be included in a criminal charge. The well-settled rule is that the charge should contain sufficient particulars that will enable the accused person to know the nature of the charge he faces. This principle was well settled by the Criminal Procedure Code (Amendment) Act, 1965 (Act 261), which amended the original provision in section 112 of Act 30. The relevant provisions of section 1 of Act 261 read as follows:

“(1) Subject to the special rules as to indictments hereinafter mentioned, every charge, complaint, summons, warrant or other document laid, issued or made for the purpose of or in connection with any proceedings before any Court for an offence shall be sufficient if it contains a statement of the offence with which the accused person is charged together with such particulars as may be necessary for giving reasonable information as to the nature of the charge and notwithstanding any rule of law to the contrary it shall not be necessary for it to contain any further particulars than the said particulars.”

(The emphasis is mine.) The emphasis in this section is the fact that the particulars should be such as are necessary to give reasonable information to the accused as to the nature of the charge he faces. Reasonable information does not mean that detailed evidence should be included in the charge. Indeed, the inclusion of such detailed

[p.309] of [2001-2002] 2 GLR 298 particulars seems to be forbidden by the last clause of Act 261 quoted above which states that “it shall not be necessary for it to contain any further particulars than the said particulars (as may be necessary for giving reasonable information of the nature of the offence charged).”

Needless to say, the essence of reasonable information is to enable the accused to know the nature of the charge he faces so as to enable him to adequately prepare his defence to the charge. Therefore, what one should ask is whether or not from the particulars, the appellant or any objective reader of the charge will know what kind of allegations have been levelled against the appellant for which the charges have been preferred against him, and which he will be required to answer by way of his defence. If the particulars were not detailed to the appellant, the questions that may be asked are these three: was the appellant given US$46,000 belonging to a public body; secondly, has he produced it to its owner; and thirdly, is it lost? These questions in no way imply that the appellant has stolen the money or has misappropriated the moneys. However, the appellant knows that he was given US$46,000 and he also knows that the money was lost at a time when the rightful owner had not received it from him. If he is charged with an act or omission that has resulted in the loss of the US$46,000 what other detail does he need in order to prepare his defence to the charges?

The particulars surely inform the appellant that he was given US$46,000 which were lost and it was for that loss that he was charged and so he was required to prepare and make his defence to that allegation of the loss of the US$46,000. That is all. In other words, the information contained in the particulars of the second charge are reasonable enough for the appellant to know why he had been charged in court. No more detailed particulars are required to inform the appellant of the facts constituting the second charge.

The constitutional provision in article 19(2)(d) that “the accused should be informed in a language he understands and in detail of the nature of the offence charged” must necessarily be interpreted to imply that the information is to enable the accused to adequately prepare for his defence to the charge. This is because the article begins with “a person charged with a criminal offence.” When a person has been charged with an offence, the only logical sequel is to appear in court to defend himself. There can therefore be no other reason why he should be given the information as to the nature of the offence he faces than to enable him to adequately prepare his defence to the charge. In any case, the constitutional provision cannot imply that evidence or what

[p.310] of [2001-2002] 2 GLR 298 amounts to evidence should be included in the charge because as has already been stated, that is not a requirement in the drawing up of criminal charges. If it was a requirement, it would have been expressly stated.

For these reasons, I am of the view that the second ground for the objection is unmeritorious and I would dismiss it.

In considering the submissions in this appeal, it has become necessary to find the meanings of at least the word “define” which appears in the Constitution, 1992. There is no doubt that the jurisdiction to interpret the Constitution, 1992 is vested in the Supreme Court. What this panel has done in this appeal is however to find what meanings exist for the word “define” and apply them. It is a declaratory exercise which we have conducted, if it may be so described, ie to find meanings as exist from the existing dictionaries for the word “define” and declare those meanings. After the declaration we have proceeded to apply the existing meanings. This is not a situation in which we attempted to give meaning to that word when none existed. We therefore believe that we have not interpreted the Constitution, 1992.

For the reasons stated herein and all the reasons stated by my brothers on this panel which I fully indorse, the two appeals against the rulings of 15 May 2001 and 24 May 2001 fail and I would dismiss both of them.

Baddoo JA. The appellant was charged with two counts of stealing and fraudulently causing financial loss to the State, contrary to sections 124(1) and 179A(3)(a) of the Criminal Code, 1960 (Act 29) before the High Count presided over by Ansah JA as an additional High Court judge.

The charges are as set down below:

“Count one Statement of Offence: Stealing contrary to section 124(1) of Act 29, 1960.

Particulars of Offence Mallam Ali Yusuf Isa, ex-Minister for Youth and Sports, between 23 and 28 February 2001 in Accra in the Greater Accra Region and within the jurisdiction of this court, did dishonestly appropriate a total amount of USD$46,000, being winning bonus and imprest for players and officials of the Ghana Black Stars.

[p.311] of [2001-2002] 2 GLR 298

Count Two Statement of Offence: Fraudulently causing financial loss to the State contrary to section 179A(3)(a) of Act 29.

Particulars of Offence Mallam Ali Yusuf Isa, ex-Minister for Youth and Sports, between 23 and 28 February 2001 in Accra in the Greater Accra Region and within the jurisdiction of this court fraudulently caused the loss of the sum of USD$46,000 to the Ghana Football Association a public body.”

At the beginning of the trial, the appellant raised a preliminary objection against count two on the grounds that the charge based on section 179A(3)(a) of Act 29, is unconstitutional because it contravened article 19 in general and article 19(11) of the Constitution, 1992 in particular. The appellant also objected to the said count two on the grounds that assuming without conceding that the said section 179(A)(3)(a) of Act 29 is constitutional, the detail contained in the charge does not meet the requirement of article 19(2) of the Constitution, 1992 and therefore it is unconstitutional.

On 15 May 2001 the learned trial judge ruled that the charge contained in count two was proper and did not offend against article 19(11) of the Constitution, 1992. Having overruled the objection the trial then proceeded and at the close of the case for the prosecution, the learned judge found that a prima facie case has been made against the appellant and therefore called upon him to open his defence on 24 May 2001.

The appellant has appealed to this court, first against the ruling of the trial judge on 15 May 2001 that the charge in count two did not offend against the Constitution, 1992 and was therefore not defective. He has also appealed against the ruling of the court dated 24 May 2001 that a prima facie case has been made against him and therefore he should open his defence. Apart from filing these two appeals, the appellant has also filed an application for a stay of proceedings pending the hearing and determination of the two appeals.

At the hearing of the application for stay of proceedings we realised that for once in the history of our courts, the proceedings at the court below, numbering 349 pages were ready within a period of one week.

If this could be duplicated in other courts, there would be few

[p.312] of [2001-2002] 2 GLR 298 delays in the administration of justice. Since the records were ready, we decided to hear the substantive appeal filed by the appellant instead of dealing with the stay of proceedings. But we also intended to make a pronouncement nevertheless, on whether or not there should be a stay of proceedings during a submission of no case.

I shall deal briefly with the first ground of appeal that the trial judge erred in law when he ruled that section 179A (3)(a) of Act 29 is constitutional and does not offend against article 19(11) of the Constitution, 1992 even though it does not define what action or omission constitutes the offence under the said section.

First let us look at article 19(11) of the Constitution, 1992. It reads: “No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.” The rules of interpretation require that we interpret the statute or law by giving them first of all their ordinary meaning. So what is the ordinary meaning of the word “define?” According to the Advanced Oxford English Dictionary “define” means: “state or show clearly, make distinct, state precisely.” If we apply that meaning to article 19(11) of the Constitution, 1992 what the article means is that no person shall be convicted of a criminal offence unless the offence is clearly stated or precisely stated and the penalty prescribed in a written law.

Having looked at the constitutional provision as set out in article 19(11) of the Constitution, 1992 let us now examine section 179(A)(3)(a) of Act 29. It reads:

“Any person through whose wilful malicious or – fraudulent action or omission, the state incurs a financial loss commits an offence.”

The question is does the above section state clearly, distinctly and precisely what act or omission constitutes an offence? The answer is Yes, it does. In simple, ordinary English, it means any person who intentionally, deliberately, or fraudulently does any act, which results in a financial loss to the State commits an offence. Thus the act or omission which constitutes the offence is that act or omission which causes, or results in a financial loss to the State of Ghana. It is not necessary to categorise the particular acts or omissions, which could cause or result in a financial loss to the State because they are myriad. Let us take the example in section 47 of Act 29, which defines murder as follows: “Whoever intentionally causes the death of another person by any unlawful harm is guilty of murder …” Though unlawful has

[p.313] of [2001-2002] 2 GLR 298 been defined as harm which is not justified by law, Act 29 never defined the sort of harm which can cause death under section 47 of Act 29. Thus, harm can be caused by a gun, a spear, a club, by pushing someone over a cliff, by setting fire to a person, by poisoning a person. The list is endless. That is why the statute provides that any act which causes death, which cannot be justified, is a crime. Under section 179(A)(3)(a) of Act 29, the act or omission which the law reckons and considers as a crime or an offence, is the act or omission which causes financial loss to the State.

Fraud has also been defined by Act 29, s 16 as:

“. . . an intent to defraud means an intent to cause, by means of such forgery, falsification, or other unlawful act, any gain capable of being measured in money, or the possibility of any such gain, to any person at the expense or to the loss of any other person.”

Thus in section 179(A)(3)(a) of Act 29, the mens rea as well as the actus reus can be found together. The mens rea is the mental element contained in the wilful, malicious, or fraudulent intention; the actus reus is the subsequent action or omission which causes financial loss to the State.

From the foregoing, it is quite clear that the provisions of article 19(11) of the Constitution, 1992 have been complied with and there has been no breach. The charge is perfectly constitutional and the appellant’s fundamental rights have not been violated.

The appellant also complained that the details contained in the particulars of offence in count two were not sufficient to give the appellant enough information about the offence he is alleged to have committed. In support of his submission counsel cited the case of Akowuah v Commissioner of Police [1964] GLR 475, SC. But since the Akowuah case (supra) the Criminal Procedure Code (Act 30), s 112 which deals with particulars of offence has been amended by the Criminal Procedure Code (Amendment) Act, 1965 (Act 261), s 1. It now reads:

“(1) Subject to the special rules as to indictments hereinafter mentioned, every charge, complaint, summons, warrant or other document laid, issued or made for the purpose of or in

[p.314] of [2001-2002] 2 GLR 298 connection with any proceedings before any Court for an offence shall be sufficient if it contains a statement of the offence with which the person is charged together with such particulars as may be necessary for giving reasonable information as to the nature of the charge and notwithstanding any rule of law to the contrary it shall not be necessary for it to contain any further particulars than the said particulars.”

Now the question is, does the particulars in count two comply with the provisions of section 112 of Act 30? Do the particulars give the appellant reasonable information as to the offence he has committed? Yes, the particulars do give reasonable information to the appellant of the charge brought against him. The particulars state that though his fraudulent action, the Ghana Football Association incurred a loss of $46,000.

I have said enough to show that the appeal against the ruling of 15 May 2001 is without merit and should be dismissed and it is hereby dismissed.

The next ground of appeal was against the ruling that a prima facie case has been made against the appellant and he must be called upon to open his defence.

The principle upon which a submission of no case might be upheld, has been set down in many cases. In Apaloo v The Republic [1975] 1 GLR 156, CA Azu Crabbe CJ, Sowah and Archer JJA (as they then were) held that there are three elements to be satisfied:

(a) Where there had been no evidence to prove an essential element in the crime charged.

(b) Where the evidence adduced by the prosecution had been so discredited as a result of cross-examination.

(c) Or the evidence was so manifestly unreliable that no reasonable tribunal could safely convict upon it.

Let me now examine the evidence on the record to see whether an essential ingredient in the crime charged is absent or whether the evidence has been discredited through cross-examination that no reasonable tribunal would convict upon it. On whether the evidence is so unreliable that it would not be safe to convict upon it, it is essential at this stage to produce the evidence of the first plaintiff witness who gave his name as Alexander Asante Sekyi, the protocol officer who

[p.315] of [2001-2002] 2 GLR 298 actually took the suitcase of the appellant to the airport and checked in. The crucial evidence appears in the record of proceedings thus:

“Q In the office what did you do?

A When we entered the office, the hon minister said Mr Agra, this is the bag to be checked in at the airport. So I moved towards the back with the intention of picking it for the check in at the airport. When I got closer, he told Mr Agra that he has put the money for the team in this green suit case. ‘Is it safe to check in at the airport?’ And Mr Agra replied ‘No, it is not safe, so remove it and put it in your brief case.’ So he called a gentleman whom we met in the room, whom I later got to know as Alhassan to come and open the suit case with the combination lock and after he had opened it . . .

Who asked who?

A The minister asked the gentleman who opened the suit case, Alhassan.

The witness confirmed as follows:

A So the ex-minister asked Alhassan to take out the money from the suit case and Alhassan brought a black polythene bag and placed it on the ex-minister’s table. The ex-minister then told Alhassan that there are two files in the suit case which he wanted to read through on the flight, so he should remove them and put them also on his table, which Alhassan complied.

After that the ex-minister asked Alhassan to take the suit case which Alhassan did and then asked us to take the suit case away. So I picked it and I left the room with Mr Agra, whiles the money was on the table.”

After the witness had testified he was subjected to vigorous cross-examinations as follows:

“Q I am putting it to you that the money was never removed from the green suit case.

A My lord, I was there when I saw the money being removed from the green suit case.

Q It is true, is it not, that you did not see any money that

[p.316] of [2001-2002] 2 GLR 298 evening?

A I did not set my eyes on any physical money, but what I am saying is that the ex-minister asked the gentleman Alhassan to open the suit case and take out the money for him.

Q So it is because the ex-minister said it that you claimed that it was money that was removed, not so?

A Yes, my lord.

Q I am putting it to you that Alhassan did not remove any money from the green suit case on that day.

A My lord, I was present and I saw it. My lord I saw a black polythene bag being removed from the suit case Q You see, it is not true that Mr Agra, your boss advised the ex-minister to remove the money from the green suit case.

A My lord, I was there and I heard Mr Agra telling him, it is not safe.

Q I am putting it to you that Mr Agra rather encouraged the minister to put the money in the green suit case, because it was safe and he was travelling in a good class?

A My lord, I did not hear that in the room . . .

Q I put it to you that it is not true, as you told this court, that the money was removed from the green bag and put on the table?

A It is true, I was present and I saw it.”

The evidence of this witness who checked in the appellant’s suit case at the airport showed that the appellant removed the money which must be the US$46,000 from the suit case, before the suit case was taken to the airport. He was never shaken or discredited during the cross examination. Any reasonable tribunal would believe the witness. If the appellant removed the money from the suit case before it was checked in at the airport, then he must explain to the trial court what happened to the money. Clearly, on the evidence of the first plaintiff witness, he has a case to answer.

The next prosecution evidence whose evidence is so material is the second plaintiff witness, Mr Kojo Agra, the general secretary of the GFA. This is what he said in his evidence:

[p.317] of [2001-2002] 2 GLR 298 “Q What question did he ask you?

A He asked me whether it was safe to keep money in his green suit case and I responded in the negative.

As a result of what you told him, did he do anything?

A Well, when I said it was not right, I looked on his left and I saw two briefcases, flat and one like a pilot bag and I told him it will be safe to carry the money in the pilot bag.

Q After you had given him the advice about the money not being safe in the suit case, did he do anything?

A Yes, after the advice, the ex-minister beckoned one gentleman who was in the room as Mr Alhassan. He came and opened the green suit case.

Q Did he merely open it?

A After he opened it, I saw them bringing files and a black polythene bag on to the minister’s table.

Q How many did you see?

A At that time I saw two files and a black polythene bag and when the process was going on, I went back to sit in the arm chair because I did not want to be looking at the ex-minister’s luggage . . .

Q I put it to you that it is not true that Alhassan removed money from the green suit case as you said that he removed money?

A My lord, I saw him removing a plastic polythene bag and placed it on a table and I presumed that it contained money . . .

Q I am putting it to you that when Alex was leaving with the bag the US$46,000 was in the green bag.

A I can’t tell.”

It has been submitted that this answer from the witness has discredited his examination in-chief. I do not see how such an answer could discredit the witness. He has already explained that he left the area where the green suit case was being opened by Alhassan. In his presence, the black polythene bag was taken out, after he had advised the appellant that it was not safe to put so much money into the green suitcase. He then left to sit in a chair away from the luggage, because

[p.318] of [2001-2002] 2 GLR 298 he did not want to look into the luggage of the appellant. He was therefore speaking the truth when he answered that he could not tell whether the US$46,000 was in the green suit case, when it was being taken to the airport for the check in.

The evidence of these two witnesses, demonstrate that the appellant removed the US$46,000 from the green suit case, before it was checked in at the airport. The money was left in his possession on his table in his office. Therefore, if the money is lost, he must be in a position to tell the court how the money got missing. The evidence has not been discredited through the cross-examination, and all the essential ingredients required by law to sustain the charges have been placed before the court.

I do not propose to go through the whole evidence called by the prosecution to establish the point that a prima facie case has been made against the appellant, because this is not a substantive appeal of the whole trial, and care should be taken not to prejudice the trial or any subsequent appeal. But I have said enough to show that the trial judge was right when he held that a prima facie case has been made to warrant the appellant being called upon to open his defence.

The appeal therefore against the rulings of the High Court dated 15 May 2001 and 24 May 2001 is dismissed. The appellant is called upon to open his defence at the court below.

Amonoo-Monney JA. This opinion deals with two interlocutory appeals which were consolidated and argued together as a matter of convenience since they both arise out of the same case, and also since a determination of the second appeal logically and essentially involves a decision on the issues raised in the first appeal. Both appeals, however, seem to have been given the same number.

Hearing of the appeals commenced on 11 June 2001, but before then the appellant had filed in this court a motion for stay of proceedings of his criminal trial before the High Court pending the determination of his interlocutory appeals. This motion was also fixed for hearing on 11 June 2001; but on that day the motion was not argued because the record of proceedings of the lower court was already before this court and so hearing of the two appeals began. This court was then informed that the case before the lower court had been adjourned to 13 June 2001. On 13 June 2001 the case was again adjourned by the lower

[p.319] of [2001-2002] 2 GLR 298 court to 20 June 2001. Hearing of arguments and submissions in the two appeals ended on 14 June 2001 and the cases were adjourned to today, 25 June 2001 for judgment. Meanwhile the case before the lower court has been adjourned to 27 June 2001. This means that the trial High Court has effectively and in fact stayed its own proceedings without any order to do so from any “higher court.” I am of the view that there is no need now to give any ruling in the matter. In fact, it will even be improper to do so as the motion has not been moved and no arguments have been heard in the matter. As Bamford-Addo JSC said in British Airways v Attorney-General [1996-97] SCGLR 547 at 552: “The court cannot decide on a non-existent controversy nor engage itself in a futile academic exercise of no consequence.” The motion for stay of proceedings lapses and should be so treated.

The first appeal is against a ruling of the court below, that is the trial High Court, given on 15 May 2001 to the effect that “there is nothing unconstitutional about the charge in count two and the particulars are not in anyway defective.” Mr Ambrose Dery, learned counsel for the appellant, had raised a preliminary objection to count two of the charges preferred against the appellant on two grounds, namely that: “The charge is based on the provision of law, ie section 179A(3)(a) of the Criminal Code, 1960 (Act 29), which is unconstitutional because it contravenes article 19 in general and article 19(11) in particular; and secondly that:

“assuming without conceding that the provision, namely section 179A(3)(a) of Act 29 is constitutional, that the detail contained in the charge does not meet the requirement of article 19(2)(d) and therefore, on that score as well, it is unconstitutional.”

Against the ruling of 15 May 2001, the appellant has appealed to this court on these two grounds:

“(1) That the trial judge erred in law when he ruled that section 179A(3)(a) of the Criminal Code, 1960 (Act 29) is constitutional and does not offend article 19(11) of the Constitution, 1992 of the Republic of Ghana even though it does not define what action or omission constitutes the offence under the said section.

[p.320] of [2001-2002] 2 GLR 298

(2) That the trial judge erred when he ruled that ‘fraudulent’ per se, ie the mens rea, is adequate to ground a criminal offence without the definition of the actus reus.”

On 7 May 2001 the appellant was arraigned before the High Court, Accra charged with one count of stealing, contrary to section 124(1) of the Criminal Code, 1960 Act 29, and a second count of fraudulently causing financial loss to the state, contrary to section 179A(3)(a) of Act 29 as amended by the Criminal Code (Amendment) Act, 1993 (Act 458). The particulars of the offence in count two state that: “Mallam Ali Yusuf Isa, ex-Minister of Youth and Sports, between 23 and 28 February 2001 in Accra in the Greater Accra Region and within the jurisdiction of this court fraudulently caused the loss of the sum of US$46,000 to the Ghana Football Association (GFA); a public body.”

The appellant pleaded “not guilty” to both counts.

Section 179A(3)(a) of Act 29 to which objection of unconstitutionality was raised provides that “(3)(a)Any person through whose wilful, malicious or fraudulent action or omission the State incurs a financial loss, commits an offence.” The other two modes of committing the offence, namely, through wilful or malicious action or omission are not relevant to this case.

In arguing his preliminary objection at the court below, counsel for the appellant explained that he was not asking for a stay of proceedings and a reference to the Supreme Court under article 130(2) of the Constitution, 1992 but submitted that the trial High Court was competent to deal with the objection, on the authority of Republic v Maikankan [1971] 2 GLR 473 at 478, SC where the Supreme Court per Bannerman CJ held that:

“. . . a lower court is not bound to refer to the Supreme Court every submission alleging as an issue the determination of a question of interpretation of the Constitution or of any other matter contained in article 106(1)(a) or (b). If in the opinion of the lower court the answer to a submission is clear and unambiguous on the face of the provisions of the Constitution or

[p.321] of [2001-2002] 2 GLR 298 laws of Ghana, no reference need be made since no question of interpretation arises and a person who disagrees with or is aggrieved by the ruling of the lower court has his remedy by the normal way of appeal, if he so chooses. To interpret the provisions of article 106(2) of the Constitution in any other way may entail and encourage references to the Supreme Court of frivolous submissions, some of which may be intended to stultify proceedings or the due process of law and may lead to delays such as may in fact amount to denial of justice.”

Article 106(2) of the Constitution, 1969 corresponds with article 130(2) of the Constitution, 1992.

In arguing the appeal, counsel for the appellant stated that article 19(11) of the Constitution, 1992 requires that a criminal offence be defined both in its actus reus and mens rea and that article 19(12) of the Constitution, 1992 which deals with contempt of a superior court is the only exception. He submitted that the learned trial judge admitted that “action or omission” in section 179A(3)(a) of Act 29 has not been defined but counsel agreed that the word “fraudulent” in the section relates to mens rea, conceding that “fraud” or “fraudulent has been defined in Act 29. The relevant portion of the ruling of the trial court which counsel referred to or criticised is:

“Admittedly, what amounts to fraudulent action or omission is not defined in the section but then the key word ‘fraudulent’ has nothing enchanting or esoteric about it. Fraud is nothing new to our Criminal Code, 1960 (Act 29). Sections 131–143 of Act 29 deal copiously with fraud. Chapter two of Act 29 itself deals with ‘General Explanations’ and section 16 itself is a provision relating to fraud.”

Learned counsel further submitted that count two of the charge sheet does not meet the requirements of section 112 of the Criminal Procedure Code, 1960 (Act 30) and does not specify a particular act or omission on the part of the appellant which allegedly fraudulently caused the financial loss, which “financial loss” is not defined, and that, result alone without action or actus reus cannot constitute an

[p.322] of [2001-2002] 2 GLR 298 offence. He cited the cases of Akowuah v Commissioner of Police [1964] GLR 475, SC and Donkor v The State [1964] GLR 598, SC.

In his response to the appeal against the ruling of the trial High court given on 15 May 2001 on the legality, constitutionality and propriety of section 179A(3)(a) of Act 29, as amended by Act 458, the learned Director of Public Prosecutions, Mr Osafo Sampong, submitted that section 179A(3)(a) of Act 29 satisfied the conditions in article 19(11) of the constitution, 1992 with section 179D of Act 29 providing the penalty for the offences prescribed in the chapter; and that the learned trial judge correctly interpreted the relevant provisions cited. He argued that if the trial judge had held otherwise it would have led to an absurdity rendering, by implication, about half of the offences in Act 29 unconstitutional because there are many words and expressions in Act 29 which have not been defined, and, I will add, in the sense argued by counsel for the appellant. The Director of Public Prosecutions referred to the offence of murder and submitted that even in the definition provision itself, ie section 47 of Act 29, the word “death” is not defined, nor is the expression “offensive weapon” in section 70 of Act 29 defined. He also referred to other provisions like sections 100, 109,154 and 155 of Act 29 and stated that according to article 19(11) of the Constitution, 1992 it is the offence that should be defined and submitted that section 179A(3)(a) of Act 29 has clearly defined the offence and that: “A statute must be interpreted to give effect to all its parts unless such an interpretation will lead to an absurdity” as stated by Adade JSC in Republic v High Court, Accra; Ex parte Adjei [1984-86] 2 GLR 511 at 522, SC on the maxim ut res magis valeat quam pereat, that is “It is better for a thing to have effect than to be made void.” The learned Director of Public Prosecutions also submitted that the cases of Akowuah v Commissioner of Police (supra) and Donkor v The State (supra) are no longer good law in the context in which, and for the reasons for which, they were cited by learned counsel for the appellant because of the amendment to section 112 of Act 30 effected by Act 261. He further submitted that there was nothing defective about the charge preferred against the appellant in count two and that enough particulars or details were given to the appellant in compliance with section 112 of Act 30, as amended, and

[p.323] of [2001-2002] 2 GLR 298 article 19(2)(d) of the Constitution, 1992.

Article 19(11) of the Constitution, 1992 which featured prominently in the proceedings of the court below and has also been cited several times in this court states that: “(11) No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law.” (The emphasis is mine.) The clause does not say “No person shall be tried . . .” etc. Does it therefore mean that the objection that was taken by the appellant at the court below was premature, especially since the appellant was not charged solely under section 179A(3)(a) of Act 29 but also under section 124(1) of Act 29 with the offence of stealing to which his counsel raised no preliminary objection? Assuming at the end of his trial the appellant is acquitted on count two; of what relevance and consequence will article 19(11) of the Constitution, 1992 be to him? I am aware that a criminal prosecution can have one of three results: an acquittal, a conviction, or where the Attorney-General enters a nolle prosequi in the course of the trial, a discharge, and it may be legitimately argued that since a criminal prosecution could end in a conviction there is no point in embarking on it if the offence charged does not meet the requirements of article 19(11) of the Constitution, 1992. I am also aware that one does not have to wait for a contravention of his fundamental human right or freedom before resorting to the High Court for remedy or redress under article 33(1) of the Constitution,1992 and since one cannot, as it were, “counterclaim” in a criminal prosecution, one can raise a legal point by way of defence such as in article 19(7) of the Constitution, 1992, with a possible invocation of article 130(2) also of the Constitution, 1992. One may, however, derive guidance from the Supreme Court decision in the case of British Airways v Attorney-General [1996-97] SCGLR 547.

The word “defined” used in article 19(11) of the Constitution, 1992 is not itself defined in the Constitution, 1992 nor is it defined in the Interpretation Act, 1960 (CA 4) either; but I am of the view that the word cannot and does not connote or require a comprehensive semantic signification of every single word in an offence-creating provision. Some offences contain in the provisions creating them the very definitions or descriptions of those offences or indications of what

[p.324] of [2001-2002] 2 GLR 298 ingredients or elements constitute the offences without the necessity for additional or special “interpretation” or explanatory provisions. The words constituting the offences have effect and are applied in accordance with their everyday acceptation. Some examples are sections 176 and 294 of Act th 29, as amended by Act 554, and sections 220 and 223 also of Act 29. Black’s Law Dictionary (6 ed 1990) defines the word “Define” as:

“To explain or state the exact meaning of words and phrases; to state explicitly; to limit; to determine essential qualities of; to determine the precise signification of; to settle; to establish or prescribe authoritatively; to make clear.”

The definition then concludes thus, citing a US case, “to declare that a certain act shall constitute an offence is defining that offence.” (The emphasis is mine.) I am of the opinion that section 179A(3)(a) of Act 29 determines the essential qualities of the offence created by that statutory provision and also defines it by declaring that a certain act (or omission) constitutes an offence.

Section 179A(3)(a) of Act 29, as amended by Act 458, as far as it is relevant to this case provides that: “Any person through whose fraudulent action or omission the State incurs a financial loss commits an offence.” This is the “written law” that creates the offence with which the appellant is charged in count two and which, by the statement of offence, is described as “fraudulently causing financial loss to the State.” The “written law” that prescribes the penalty for this offence is found in section 179D of Act 29, as amended by Act 458 thus: “A person convicted of an offence under any of the offences specified in this Chapter is liable on conviction to a fine of not less than ¢5 million or imprisonment not exceeding ten years or both.” I must say that the words “or omission” in section 179A(3)(a) of Act 29 quoted above were obviously added for the avoidance of doubt and ex abundanti cautela because by section 32(1) of CA 4: “In an enactment ‘act’ includes an omission and references to the doing of an act shall be construed accordingly.” Furthermore, according to section 28 of CA 4, “Where a word is defined in an enactment other parts of speech and grammatical variations of that word have corresponding meanings.”

[p.325] of [2001-2002] 2 GLR 298

This provision becomes relevant when correlative words like fraud, intention to defraud and fraudulent are considered.

When dealing with article 19(11) of the Constitution, 1992 learned counsel for the appellant submitted that the court should apply the ordinary meaning of the word “defined” in construing that clause and he cited in support of that submission the cases of Sallah v Attorney-General (1970) CC 55 and Kuenyehia v Archer [1993-94] 2 GLR 525, SC. In the Sallah case (supra) he referred to the portion of the opinion of Archer JA (as he then was) where the learned . . . judge said:

“The Constitution of Ghana is a conglomeration of English words. The lives of citizens depend on these words. Rights and obligations, qualifications and disqualifications, privileges and disabilities depend on these words. Unless these words are specially defined in the Constitution, then the ordinary meaning of these words as popularly and generally understood by literate persons should prevail.”

In the case of Kuenyehia v Archer (supra) counsel referred to the portion of the judgment at 606 where it was held per Bamford-Addo JSC that:

“Broadly the general method of interpreting statutes or constitutions is to give words their ordinary meaning and if the ordinary meaning makes sense of the passage then the intention as deduced therefrom, must be given effect.”

I hold that the principles enunciated in these two cases as quoted above must be applied in interpreting section 179A(3)(a) of Act 29, except where some words are specially defined or explained in other parts of Act 29. For example, counsel for the appellant admits that the word “fraudulent” in the section is defined and explained in section 16 of Act 29 which is in chapter 2 of Part I under the rubric “General Explanations.” Part I deals with “General provisions.”

I am of the view that the words “any person” and “the State” in section 179A(3)(a) of Act 29 pose no difficulties of definition or interpretation. The word “offence” is defined in section 1 of Act 29. Counsel for the appellant submitted that the expression “financial loss”

[p.326] of [2001-2002] 2 GLR 298 in the section has not been defined. Surely, the expression “financial loss” is not a term of art and one does not need any profound erudition or a course in macroeconomics to understand it. I venture to say that “financial loss” just means “financial loss.” A recourse to any English dictionary will remove any lingering difficulty of comprehension or understanding. The words “the State incurs a financial loss” postulate a result, the end-product of an anterior or antecedent activity (or inactivity); and from the wording of the section a causative human factor or activity brings about, or produces, or is responsible for, or is the reason for, the result or the event. The Chambers Dictionary (1999) at p 815 gives as one of the meanings of the word “incur”, as “to suffer”, and also states at p1653 as one of the meanings of “suffer”, “to be the object of an action.” (The emphasis is mine.) It is instructive that the particulars of the offence in count two include the word “caused” and counsel for the appellant in his submissions said: “Count two does not specify a particular act or omission on the part of the accused which allegedly fraudulently caused the financial loss.” Causing an event is explained in Act 29 in the same Part and chapter as section 16 and it is section 13. Section 179A(3)(a) of Act 29 therefore must be read as one not only with section 16 of Act 29, but also with section 13 of Act 29 as well. This means that the “actus reus” of the offence created by section 179A(3)(a) of Act 29 which counsel for the appellant complained of has also been defined. Section 13 of Act 29 mentions “intentionally” but obviously any person who procures an event “fraudulently” cannot be heard to say he did not “act intentionally.”

The charge in count two was also attacked on the ground that it breached article 19(2)(d) of the Constitution, 1992 which states that: “A person charged with a criminal offence shall—. . . be informed immediately in a language that he understands, and in detail, of the nature of the offence charged.” (The emphasis is mine.) The clause does not say the information must be in writing and from the purport of the clause the information cannot but be oral. See also article 14(2) of the Constitution, 1992. The act or formality of “charging” a suspect or a person under criminal investigation with an offence does not take place in the courtroom upon the arraignment of the accused person.

[p.327] of [2001-2002] 2 GLR 298

The act of charging suspects takes place outside the courtroom, in a police station or the office of a competent investigative body for criminal offences. An exception is where a person is served with a criminal summons to attend court for trial, usually for what may be termed minor offences like some road traffic offences and sanitation offences.

In this case the evidence tends to show that the appellant must have been charged with the offences for which he is being tried, at the Criminal Investigations Department Headquarters of the Ghana Police Service. Before he was charged and arraigned before the High Court for his trial, the appellant had been contacted by the police and was assisting in the investigations that led to his trial. The eleventh plaintiff witness, Hope Kwaku Nyamadi of the commercial crime unit of the Criminal Investigations Department, Headquarters, said in evidence that on 19 March 2001 he was co-opted as an investigator by a committee investigating the:

“mystery surrounding the loss of the $46,000, which was entrusted to the accused person to be used or to be paid as the winning bonus for the Black Stars during their encounter with the Sudanese football team.”

The house of the appellant was searched on warrant, obviously in his presence; the appellant was taken to the Bank of Ghana where the US$46,000 had been paid on 23 February 2001 to an official of the Ministry of Youth and Sports; the appellant appeared before the investigating committee and took his green suit case that he used for the journey to Khartoum to the committee. The eleventh plaintiff witness further said on 1 May 2001 he obtained a statement on caution, exhibit N, from the appellant who wrote the statement himself after the witness had informed the appellant that he was “investigating cases of stealing and causing financial loss to the State” in which the appellant was involved. Then the appellant wrote a five-page statement and he must have known the nature of the offences he was reacting to and the facts constituting and forming the bases of the offence. I notice that the appellant had earlier on 23 April 2001 been charged by the police with the offences of stealing and causing financial loss to the State and he

[p.328] of [2001-2002] 2 GLR 298 had stated in his own hand on caution in exhibit O that he relied on a statement he had given to the police on 27 March 2001. This statement, it appears, has not been tendered in evidence.

When the appellant appeared before the trial High Court on 7 May 2001 the statement of offence and the particulars of offence of each of the two counts were read to him and he pleaded “not guilty” to each count. At the request of the trial judge, Mr Gyambiby, Principal State Attorney, gave the facts of the case which can be found in the record of proceedings. The learned trial judge, after the facts had been given, had occasion to say this to counsel who was then appearing for the appellant:

“It is well known that an accused person must plead to the offence in clear and unmistakable terms. That was why the charge was read and explained to him. If he did not understand the charge he should just state it and the ingredients of the offence would be explained to his level of understanding. He has not done anything of the sort.”

(The emphasis is mine.)

Counsel for the appellant does not seem to find anything wrong with the particulars of offence of count one, ie the stealing charge, but legally, formally, conceptually and technically I do not see any difference between the particulars of offence of count one and count two. Counsel was expecting that as regards count two the particulars should have itemised, listed or detailed the acts or omissions of the appellant that caused the State to incur the loss of the sum of US$46,000. This aspect of the case has been dealt with in this opinion by reference to section 13 of Act 29. The facts or details and circumstances giving rise to an offence are provided by evidence except where the accused person pleads “guilty” to the charge. If there are say twenty stealing cases the nature of the offence in the twenty cases is the same, the ingredients constituting the offence in all the cases are the same; but the facts of each of the twenty cases and the modus operandi of each case will be different. In a case of murder, the law does not require that the particulars of the offence in the indictment should indicate the means by which the death was caused, whether by

[p.329] of [2001-2002] 2 GLR 298 strangulation, shooting, use of a spear, stoning, administering lethal injection, or hanging a millstone about a person’s neck and casting him into the sea: see section 201 of Act 30 although, in practice, no one is charged with both murder and manslaughter in respect of the same homicide.

I hold that the particulars of offence in count two did not breach article 19(2)(d) of the Constitution, 1992 or section 112 of Act 30, as amended by Act 261. The cases of Akowuah v Commissioner of Police (supra) and Donkor v The State (supra) must now be considered in the light of the changes introduced into the law of Ghana by Act 261 and the Courts (Amendment) Act, 1965 (Act 262) which find expression in our law by the enactment of section 31(3)(b) and (c) of the Courts Act, 1993 (Act 459) in these terms:

“(b) where a person is charged with an offence such as defrauding by false pretences or forgery and the particulars of the offence in the charge or indictment omit to allege an intent to defraud or any other intent forming part of the offence but evidence is led of such intent, an appeal based only on the omission in the charge or indictment shall be dismissed;

(c) where a person is charged with corruption or extortion as a public officer and the charge or indictment omits to allege in the particulars of offence that the accused is a public officer but evidence is led that the accused is such an officer, an appeal based only on the omission shall be dismissed.”

The second ground of appeal of the appellant against the ruling of the High Court given on 15 May 2001, is that: “the trial judge erred when he ruled that fraudulent per se, ie the mens rea is adequate to ground a criminal offence without the definition of the actus reus.” I say right away that the learned trial judge did not make any such ruling if one looks at the entire portion of the ruling that is relevant to this issue. The alleged offending part of the trial judge’s ruling giving rise to this ground of appeal quoted by learned counsel for the appellant is this:

[p.330] of [2001-2002] 2 GLR 298

“Admittedly, what amounts to fraudulent action or omission is not defined in the section but then the key word ‘fraudulent’ has nothing enchanting or esoteric about it. Fraud is nothing new to our Criminal Code, 1960 (Act 29). Sections 131–143 of Act 29 deal copiously with fraud. Chapter two of Act 29 itself deals with ‘General Explanations’ and section 16 itself is a provision relating to fraud.”

(The emphasis is mine.) The learned trial judge, however, did not stop there. He went further in his ruling to say:

“I must add that it is not necessary to specify an act or omission in the particulars. Even if I am wrong in so saying, and the section did not define ‘fraudulent’ and should have covered actions and omissions, that will not and does not make the charge in count two bad in law. It is recognised that even where a word or phrase is not defined in an enactment or section creating the offence, reference can be made to a decided case to show how the word, or phrase is to be understood in any particular sense in criminal law. Where that is lacking, it is permissible and perfectly legitimate to give the word its ordinary grammatical meaning. Thus a dictionary meaning can also be used. In the Nigerian case of Commissioner of Police v Motayo (1950) 13 WACA 114 the appellant faced a charge that he corruptly and under colour of his employment demanded and took away money from the complainant contrary to section 404 1A of the Nigerian Criminal Code. The words ‘under colour of’ fell to be construed by the court. Blackall J said at 117 that no decided cases were referred to him to show how the expression was to be understood. He held that the words should be given their ordinary grammatical meaning. The learned judge then resorted to the Oxford Dictionary Vol 2 where the phrase ‘under the colour of’ was defined as ‘On the pretext or pretence of, under the mark, or alleged authority of.’”

(The emphasis is mine.)

What the trial judge clearly meant was that the word “action” or [p.331] of [2001-2002] 2 GLR 298

“omission” has not been defined in section 179A of Act 29 in the manner in which certain definitions and explanations have been given in sections 49A(2), 179A(4), 179B(2) and 195 of Act 29, as amended or inserted by Act 458.

I have said enough to indicate that the appeal against the ruling of the trial High Court dated 15 May 2001 fails and it is accordingly dismissed.

On the appeal against the overruling of the submission of no case to answer I also agree that the appeal be dismissed but I will add some comments of my own. The leading authorities that lay down the principles on this subject deal with cases that are tried on indictment where the relevant provision is section 271 of Act 30 which provides that:

“271. The Judge may consider at the conclusions of the case for the prosecution whether there is any case for submission to the jury, and if the Judge is of opinion that there is no evidence that the accused has committed any offence of which he could be lawfully convicted on the indictment upon which he is being tried, the Judge shall forthwith direct the jury to enter a verdict of not guilty and shall acquit the accused.”

The corresponding provision for summary trials such as in this case, is section 173 of Act 30 which states that:

“173. If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him.”

In the case of State v Ali Kassena [1962] 1 GLR 144 at 148, SC the Supreme Court quoted with approval the practice direction given in an English case by Lord Parker CJ in these terms:

“A submission that there is no case to answer may properly be made and upheld (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that

[p.332] of [2001-2002] 2 GLR 298 no reasonable tribunal could safely convict upon it.”

Learned counsel for the appellant quoted the practice direction up to this point but the practice direction further stated that:

“Apart from these two situations, a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.”

(The emphasis is mine). The determination that has to be made at the end of the case for the prosecution in a summary trial by the judge as to whether or not a case is made out against the accused sufficiently to require him to make a defence is a question of law just as was decided in a case of a trial on indictment by the Court of Appeal in Moshie v The Republic [1977] 1 GLR 287, CA.

Counsel for the appellant submitted that the prosecution is seeking to rely on circumstantial evidence and that it also failed to call some “vital” witnesses to give evidence. As this court said in Gyamaah v The Republic, Court of Appeal, Accra, 20 April 2000, unreported:

“It is clear from the authorities that the concept of a ‘material’ or ‘vital witness’ as well as the legal consequence that flows from the prosecution’s failure to call such species of witness to give evidence subject, however, to the qualifications and exceptions stated in such cases as Tetteh v The State [1965] GLR 670, Poku v The State [1966] GLR 262 and Amlalo v The Republic [1979] GLR 162, is simply another way of stating, defining and applying the basic legal principle of ‘burden of proof’ or ‘burden of persuasion’ within the meaning now of sections 11(2), 13(1) and 15(1) of the Evidence Decree, 1975 (NRCD 323).”

[p.333] of [2001-2002] 2 GLR 298

On circumstantial evidence, Azu Crabbe JSC (as he then was) delivering the judgment of the court in Nyame v The Republic [1971] 2 GLR 140 at 144, CA said:

“But circumstantial evidence ought to be closely examined, and it must be acted upon only when the circumstances are such that the guilt of the accused must necessarily be inferred, and that the facts lead to no other conclusion.”

And he quoted from the case of Teper v R [1952] AC 480 at 489, PC where Lord Normand said: “. . . it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another . . . It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

However, Lord Hewart CJ also had this to say in R v Taylor (1928) 21 Cr App R 20 at 21, CCA: “It has been said that the evidence against the applicants is circumstantial: so it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”

These issues of circumstantial evidence and “vital witnesses” necessarily involve issues of fact and as Taylor J (as he then was) said in the case of Republic v Accra Special Circuit Court; Ex parte Akosah [1977] 2 GLR 283 at 292:

“At the close of the case for the prosecution a trial court in my view ought not to attempt to make any finding of fact at all. Findings of fact can only be made after the close of the case for the defence and the reason for this is because at the close of the case for the prosecution, all the facts in issue are legally rebuttable facts and therefore displaceable by evidence from the

[p.334] of [2001-2002] 2 GLR 298 accused. A finding of fact at that stage can put the accused at such a disadvantage as to prejudice his case and make the trial most irregular.”

In this case matters of fact and findings of fact are within the province and competence of the trial court, and the trial judge is also the trier of facts and section 13(5) of Act 29 provides that:

“(5) Subject to the provisions of this section, and to the special provisions of any particular section of this Code, It is a question of fact whether an event is fairly and reasonable to be ascribed to a person’s act as having been caused thereby.”

With these brief comments I am also unable to find any cause to disturb the ruling of the trial judge made on 24 May 2001 that: “I have come to the firm conclusion that there is evidence in support of both counts sufficient enough to require the accused to make a defence to both charges.”

Appeal dismissed.

D R K S