Appeal Court, 2nd Dec., 1941.
Appeal from conviction by
Supreme Court.
Conviction for Perjury contra.
section 359 of the Criminal Code
Appellant made false .sworn
statement before public officer
Statutory Declarations Act
1835
prohibits a
voluntary
oath" -Appellant's statement was
not taken as, the result of any
judicial enquiry or for the
prosecution of any offence vide
section 11 of the Act it
was a voluntary oath".
HeId: Administration of the oath
b) the public officer and the
swearing of the oath by the
appellant were unlawful acts and
hence the so-called oath was no
oath at all. Appeal allowed;
conviction and sentence quashed
and a judgment and verdict of
acquittal entered.
W
H. Irwin
for Crown.
K. A .. Bossman
(with him
E. A Bannerman)
for Appellant. The following
joint judgment was delivered : ~
KINGDON, C. J., NIGERIA,
PETRIDES, C. J ", GOLD COAST,
AND STROTHER-STEWART, J.
In this case the Appellant was
convicted by Bannerman, J.
sitting without a jury or
assessors at the Accra Assizes
of the offence of perjury
contra. section 359 of the
Criminal Code and sentenced to 9
months Imprisonment with hard
labo'ur.
The particulars given of the
alleged offence were as
follows:-
"Emmanuel Kwami Borson on the
16th day of .July, 1931, at "Akuse
in the Volta River District in
the Eastern Province in a .,
written statement made by him
upon oath before Austin Cathie
It .• public officer stated that
he acquired the piece of land
upon which
.t
the building is situated by.
ancestral and customary
allocation and " that the
building thereon was erected by
him without the aid of any "
member of his family which
statement he knew to be false or
which •• he had not reason to
believe to be true."
In view of the wide wording of
the definition of Perjury given
in section 386 of the Criminal
Code as follows :-
" A person if; guilty of perjury
if, in any written or verbal "
statement made or verified by
him upon oath before any "
Court, 01' public officer, he
states anything which he knows "
to be false. or which he has not
reason to believe to be true"
pg 159
the act of the appellant appears
to come within the definition.
But on appeal to this Court, the
Court drew attention to a point
which had not been raised in the
Court below, namely that the
oath in this case was what is
known as a "voluntary oath", the
administration of which is
expressly prohibited by section
13 01 the Imperial Act entitled
"the Statutory Declaration Act,
1835", which applies to the Gold
Coast and is in the following
terms:-
"XIII. ; And whereas a practice
has prevailed of "
'administering and receiving
Oaths and Affidavits " ,
voluntarily taken and made in
matters not the subject of " ,
any judicial inquiry, nor in
anywise pending or at issue " ,
before the Justice of the Peace
or other person by whom " , such
oaths or affidavits have been
administered or received : "
'and whereas doubts have arisen
whether or not such " ,
proceeding is illegal;' for the
more effectual suppression "of
such practice and removing such
doubts: be it "enacted, that
from and after the commencement
of "this Act it shall not be
lawful for any Justice "of the
Peace or other person to
administer, or cause "or allow
to be administered, or to
receive, or cause or " allow to
be received, any oath,
affidavit, or solemn affirmation
" touching any matter or thing
whereof such Justice or other "
person hath not jurisdiction or
cognizance by some Statute " in
force at the time being:
provided always, that nothing "
herein contained shall be
construed to extend to any oath,
"affidavit, or solemn
affirmation before any Justice
in any " matter or thing
touching the preservation of the
peace, or the " prosecution,
trial, or punishment of
offences, or touching any "
proceedings before either of the
Houses of Parliament or " any
committee thereof respectively,
nor to any oath, affidavit, "or
affirmation which may be
required by the laws of any ".
foreign country to give validity
to instruments in writing "
designed to be used in such
foreign countries respectively."
In other words the
administration of the oath by
the District Commissioner and
the swearing of the oath by the
appellant were unlawful acts and
in the result the so-called oath
is no oath at all.
The learned Acting
Solicitor-General, upon
consideration. agrees with this
view of the law and has not
sought to support the conviction
in this Court.
The appeal is accordingly
allowed, the conviction and
sentence are quashed and it is
ordered that a judgment and
verdict of acquittal be entered.
The appellant is discharged.
