HOME   UNREPORTED CASES OF THE SUPREME

COURT OF GHANA 2004

IN THE SUPREME COURT OF JUDICATURE

THE SUPREME COURTGHANA

ACCRA AD 2008

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CORAM:        MRS. WOOD, C.J. (PRESIDING)

KPEGAH, J.S.C.    

ATUGUBA, J.S.C.

MISS AKUFFO, J.S.C.

DR. DATE-BAH, J.S.C.

CRIMINAL APPEAL

NO. 2/2000

11^TH JULY 2008

                                               THE REPUBLIC

                                                                VRS

                                              NANA OSEI KWADJO II

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JUDGMENT

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KPEGAH, J.S.C:     

My Lords, I am not certain whether to describe this judgment as a valedictory judgment or not.  However, since there may be a good possibility of it turning out to be so because I have to start listening to my body and the advice of my doctors after my spinal surgery.  I have been advised that long hours of sitting is not advisable for a person who has the type of surgery that I had, and since this job is mainly sedentary, I have to start considering bowing out and find myself a more convenient way of life in the future. I will therefore be candid and frank in my views on a series of legal issues which I consider not only relevant to the appeal before us but also very critical to the development of our jurisprudence in the area of the protection of the fundamental rights of the individual as enshrined in chapter Five of our Constitution, 1992.  Some of the legal issues I have in mind greatly informed my position in this case. And, since this might be the last time I may be sitting with my colleagues and speak from this court; that is to say, “EX-CHATHEDRA’, I cannot possibly suffer the judgment to be without my D.N.A. I will therefore be examining some of the decisions of the court which I have reservations about; especially those in which we have declined jurisdiction on grounds which appear to me to be too technical, or to be a clear case of misapprehension of the relevant law.  The first of such cases is the case of:  IN RE PARLIAMENTARY ELECTIONS FOR WULENSI CONSTITUENCY; ZAKARIA v NYIMAKAN [2003-2004] SCGLR 1.

The issue in this case before the Supreme Court was whether or not there is a right of appeal to the Supreme Court in respect of an election petition in the High Court as to whether a person has been validly elected as a member of Parliament.  A person aggrieved by the decision of the High Court has a right of appeal to the Court of Appeal but the article which gives the right of appeal from the High Court to the Court of Appeal is silent on whether there is a further right of appeal from the decision of the Court of Appeal to the Supreme Court.  In a 4:1 decision the Supreme Court held that no such right of appeal exists.  This, in my humble view, is most regretable.

            My reason for so saying will become apparent when I come to discuss the case vis-à-vis our jurisdiction as the final Court of the land. For the moment, however, I can say that I am in full agreement with the  dissenting views expressed by my learned and respected Sister Sophia Akuffo JSC, and regret that it is not the majority decision.I will now therefore focus on the case before us.

I have read the judgment about to be delivered by my learned and respected brother Date – Bah, JSC.  When I last discussed the case with him, he indicated that he was still firm in his views that the appeal was without merit and should be dismissed. I, on the other hand, reiterated my views, which I had expressed at all our judgment conferences, in favour of allowing the appeal. This is as it should be since it not only inures to the benefit of the law; that is to say the development of our criminal jurisprudence.  I have read the record of proceedings several times and regret to say, with much respect to my learned and respected brother that certain vital and relevant pieces of evidence on record had escaped his usually keen and critical analysis. I must, however, emphasise that his statement of the facts are basically correct and borne out by the record. 

But whenever the need arises for me to review the evidence as a way of elucidating my thought-process, I will do so.  I must say immediately, without fear of contradiction, that both on the available evidence and the applicable law, the conviction of the Appellant is seriously and woefully flawed and cannot be sustained.

I am firmly of the view that the appellant ought not to have been called upon to enter his defence since he has no obligation to prove his innocence because the burden of proof is on the prosecution throughout a criminal trial.  This time-honoured principle or rule of evidence has now been restated in section 15(1) of the Evidence Decree (1970) NRCD 323 as follows:-

“Unless and until it is shifted the party claiming that a person is guilty of a crime or wrong doing has the burden of persuasion on that issue”.

            The implication of this provision is that if an accused is either wrongly called upon by the court or decided himself to enter a defence, the subsequent evidence cannot be used against him when, in law no prima facie case has actually been made against him. This should be so because unless and until a prima facie case has first been made out against an accused the burden of persuasion on his guilt could not be said to have shifted. I therefore consider it as a sheer dissipation of valuable time to discuss cases like THE STATE VRS. ALI KASSENA on a submission of no case to answer because of my view on the full import of section 15(1) of NRCD (1970) 323.

My lords, for reasons which will be apparent in due course, I cannot accept my learned brother’s views on the defence of “claim of right in good faith” as espoused by him.  This claim, in my humble view, is a complete defence to a charge of stealing.  This is so because any appropriation in such circumstances cannot amount to a misappropriation; or a fraudulent, and, or a dishonest appropriation to constitute stealing as defined under section 120 of our Criminal Code (ACT 29/60).

In rejecting the Appellant’s contention that the prosecution failed to prove a dishonest appropriation on his part, my learned and respected brother Date-Bah JSC, properly considered the import of Section 120(1) of the Criminal code, 1960 (Act 29) which defines what act or conduct amounts to stealing; but unfortunately delivered himself thus:

“If one recalls that the subject-matter of the appropriation is the revenue from Fahiakobo lands, it is quite clear that, if the Appellant’s claim of right defence fails, then there was dishonest appropriation of the revenues without the consent of the Administrator of Stool lands or the beneficiaries on whose behalf the Administrator of Stool lands is authorized by Statute to collect the revenues.  It is important to emphasise that the Appellant’s Stool was not the owner of the revenues, though the owner of the lands.”  (emphasis suplied)

This dictum could be said to be the RATIO DECIDENDI which informed my learned and respected brother’s dismissal of the appeal.  In considering Section 15 of the Criminal Code, 1960 (Act 29) which is the provision that provides for “a claim of right in good faith” as a complete defence to a charge of stealing; and in determining what amounts to a dishonest appropriation under Section 120 of the Criminal Code  (Act 29/60), my learned brother said:

“That brings me to the matter of the Appellant’s claim of  right. Section  15 of the Criminal Code 1960 provides that: ‘a claim of right in good faith ‘, this is no codification meaning can only be given to the provision only by resorting to the common law.The following passage from Stephen’s HISTORY OF CRIMINAL LAW OF ENGLAND, which was quoted with approval in R. v. BERHHARD (1938) Cr. APP. R. P. 137; [1938] 2 K. B. 264 provides an insight into thecommon law concept of claim of right.” (Emphasis supplied)

The common law position which was quoted with approval in R. v. BERHHARD (Supra) is as follows:  

“Fraud is inconsistent with a claim of right made in good faith to do the act complained of.  A man who takes possession of property which he really believes to be his own, does not take it fraudulently, however unfounded his claim may be.  This, if only, is nearly the only case in which ignorance of the law affects the legal character of acts.”  (Emphasis supplied)

Rv BERHHARD (Supra) was clearly dealing with a situation of mistake of law in contradistinction to one of fact. My lords, assuming, without admitting that the dictum  in RV BERHHARD (Supra) is applicable to this case, the letter of Mr F.K. Poku, Ag. Higher Lands Revenue Inspector in the Bekwai District which was dated 4^th December, 1986 in response to that of the Regional Lands officer Mr. J.K. Edukwaw copied to the appellant and tendered by him as “exhibit 2” should, in my humble view, rather put the appellants case within the principle enunciated in the BERHHARD case.  The letter of the Regional Lands Officer which had earlier been tendered by the prosecution as Exhibit H1.  Is as follows:

“EXHIBIT H1”

[ C O P Y ]

18-8-88

My Ref.No.A/CT.5/231

Lands Commission Secretariat

P.O. Box 43

Kumasi.

10^th September, 1986.

Dear Nana,

ILLEGAL COLLECTION OF STOOL

LANDS REVENUE

            I am reliably informed that you have been collecting Stool Lands revenue from the tenant Farmers at Fahiakobo area without issuing them with receipts.  This is illegal collection you are making.  I want to make it clear to you that the authorized person to receive Stool Lands revenue and issue receipt is a Lands Commission Secretariat Official.

            It is an offence for any Traditional Ruler to collect Stool Lands revenue.  Your unpatriotic action is depriving the Government, District and Traditional Councils from getting their share of the Stool Lands revenue in your area.

            I am therefore advising you to desist from such an unlawful collection, otherwise you will have cause to regret.

            I am by copy of this letter, informing Nana Bekwaihene about your activities. After this letter, if you continue to do the collection you will be reported to the appropriate quarters.

Please, be warned.

Yours faithfully,

                                                (Sgd) for: REGIONAL LANDS SECRETARY

                                                                        ( J.  K. EDUKWAW )

THE ODIKRO OF FAHIAKOBO,

FAHIAKOBO.

cc:       Nana Bekwaihene

                                                                                    Bekwai-Ashanti.

                                                                                    Ag. Higher Rev. Inspector

                                                                                    Lands Commission Secretariat

                                                                                    Bekwai-Ashanti.

            My Lords, indulge me to quote in detail “EXHIBIT 2” the reply from Mr. F.K. Poku of the Lands Commission Secretariat in Bekwai District. This letter can be found at page 140 of the record of proceedings.

“EXHIBIT 2”

[ C O P Y ]

18-8-88

My Ref.No.S.74/88

LANDS COMMISSION SECRETARIAT

BEKWAI DISTRICT

POST OFFICE BOX 153

BEKWAI-ASHANTI.

4^TH DECEMBER, 1986.

Dear Sir,

ILLEGAL COLLECTION OF STOOL LANDS REVENUE

            I humbly beg to refer to your letter No. AC/T.5/231 dated 10^th September, 1986, addressed to the Odikro of Fahiakoho and copied to this office and Nana Bekwaihene and wish to make the following comments.

            That investigations conducted by this office in connection with the above-quoted subject reveals that, the Fahiakobo land in question is under Bekwai Traditional Council but the said land in question has never been on the Strangers Cocoa Farmers Tribute registrar in this office.

            That, the Omanhene of Bekwai Traditional Council has since that time taken direct control and has been using the Odikro of Fahiakobo as the Caretaker of the said land in question to collect cocoa tribute and any land revenue on the said land in question and directly to him. (Nana Bekwaihene), ever since or before the enactment of the Administration of Stool Lands Act of 1962.

            I am therefore by this letter explaining the peculiar history covering the said land in question at Fahiakobo to enable you review your stand on this matter, please

                                                                        Yours faithfully,

                                    (Sgd) AG. HIGHER LANDS REVENUE INSPECTOR                                                                          ( F. K. POKU )

THE REGIONAL LANDS SECRETARY

LANDS COMMISSION SECRETARIAT

POST OFFICE BOX 43

K U M A S I.

cc:       Nana Bekwaihene

                                                                                    Bekwai-Ashanti.

                                                                                    The Odikro

                                                                                    Fiahiako/Ashanti.

I believe that the Ag Higher Lands Revenue Inspector, Mr. F. K. Poku is the officer who collects lands revenue on behalf of the Regional Lands Commission Secretariat in the Bekwai Traditional Area. I greatly commend this officer for his integrity and boldness to point out the wrong views held by his senior officer on the matter.

My Lords, my view is that both the trial court and especially the Court of Appeal misapprehended the appellant’s defence of claim of right as one relating to ignorance of law instead of fact.  But luckily this Court seised with the whole appeal is clothed with full powers and jurisdiction to enable us correct any errors of law and of fact; or both mixed law and fact which the Court of Appeal might have committed

My Lords, I am convinced my brother’s views have been greatly influenced and informed by an article written by Professor (Mrs) Mensa – Bonsu entitled DEFENCE OF MISTAKE OF FACT AND CLAIM OF RIGHT ARISING FROM REPUBLIC  V. KWADWO II published in the University of Ghana Law Journal (1966 – 99) 20 U.G. L. J. at p. 125. With much respect to the learned author, her treatment of the subject is a typical academic approach to a decided case which interests the academician because of its implications for the development of the law.  Without the benefit of the record of proceedings, the academician assumes, justifiably though, that the facts as found in the case are correct or supported by the evidence before the court.

However, this Court with the benefit of the record of proceedings, is called upon to determine if the Court of Appeal judgment is supported by the evidence on record, and therefore, right.  I think therefore that being an appellate court, we are obliged to review the evidence as a whole and make our own findings of fact; if so justified: an appeal being a re-hearing.

I intend to do just this whenever I find it desirable for a thorough understanding of my views.

What then is the evidence?  Nana Osei Kwadwo II (hereinafter referred to as the Appellant) was enstooled as the Omanhene of the BEKWAI TRADITIONAL AREA, in 1969.  The appellant was administering the affairs of the Traditional Area smoothly for over eighteen years when suddenly some of the Kingmakers of his Stool, interestingly the complaints in this case, decided to initiate criminal proceedings against him for embezzling the revenue from Fahiakobo Stool lands which  fall under his customary jurisdiction.  This was done with the shameless connivance of some officials in the Regional Administrator of Stool lands Secretariat.

I say “with the shameless connivance” of some officials in the office of the Regional Administrator of Stool lands for reasons to be made clear soon.  Needless to say that the evidence establishes that FAHIAKOBO LANDS may not even have been officially designated as Stool lands in the records of the Regional Lands Commission Secretariat for the collection of revenue. (SEE “EXBIT 2”)

All the complainants, led by PW1 and PW2 had earlier on the 23^rd day of December, 1986 at 11.55 a.m. filed a petition in the Ashanti Regional House of Chiefs seeking to destool the Appellant on various grounds and because he has failed to account for certain stool properties including the revenues from the FAHIAKOBO Stool lands.  (See the petition against the appellant tendered by the prosecution as “EXHIBIT A”).

The petitioners, I am sure, realizing that they could not succeed because of the customary law principle that neither the occupant of a stool nor head of family could be sued to account for stool or family property while in office, decided to short-circuit the process by preferring stealing charges against him and, if convicted, invoke Article 275 of the Constitution for his removal.  Although PNDCL 114 as amended by the Head of Family (Accountability Act), 1985 now makes the head of family accountable, the customary law position in relation to an occupant of a stool has not been affected by any legislation to my knowledge.  This decision of the lawgiver to leave the customary position intact is not without rhyme nor reason.  Any change will certainly lead to a deluge of chieftaincy disputes and destabilise this cherished institution of our people. If I am therefore pressurised to make a finding of fact as to the true reason for the prosecution of the appellant I will not hesitate to make a finding that it is to have him destooled as a chief.  This was indeed the motive for the allegation of embezzlement of revenue from the Fahiakobo lands against the appellant . I am therefore firmly of the view that the criminal prosecution of the appellant was done mala fide and supported by perjured evidence to pervert the course of justice and procure the conviction of the appellant.  My reasons will become apparent as the review of the evidence on record unfolds in my judgment.

The first is that in paragraph 20 of the Petition for the destoolment of appellant earlier filed in the Ashanti Regional House of Chiefs, the allegation of misappropriation of revenue from Fahiakobo stool land was first made.  However, in respect of this case, the initial complaint to the Police was cleverly made only against the younger brother of the appellant, Nana Kwabena Oppong who is the caretaker of FAHIAKOBO LANDS on behalf of the appellant.  The police in their effort to build a case against the appellant massaged the process by making it appear as if they were investigating a  case of “doing an act with intent to sabotage the economy of the state” against PW7 ( see his suspect caution statement again tendered by the prosecution as ‘EXHIBIT C"). The Police might have all along intended to use Nana Kwabena Oppong as a witness to only establish the fact that he had indeed been collecting revenue from farmers on behalf of the appellant who is the real target.  PW1 almost let the cat out of the bag under cross-examination as follows:

Q.   Your complaint was against Nana Kwabena Oppong simpliciter?

A.    That is so.

Q.    You and the Akwamuhene, Nana Ntiamoah Amankuo preferred destoolment charges against the accused  person at the Judicial Committee of the Ashanti Regional House of chiefs?

A.    It is correct.

Q.     In your paragraph 20 of your complaints you said the accused person had illegally collected revenue from farmers from Fahiakobo?

A.    That is so.

Q.    Why do you tell the Court that you are surprised to see him in Court?

A.         Because the accused denied any knowledge about the allegation.”

I will immediately reject the last answer as not being true but false.  Of course, he is surprised to find appellant in the dock because no complaint was made to the police against him.   They only made a false complaint of forgery against Nana Kwabena Oppong the appellant’s brother.

The other reasons will begin to emerge very soon. I must emphasise that from this point certain dates become significant.   As pointed out earlier, the Petition for the destoolment of the appellant was filed on 23^rd December, 1986 at 11:55 a.m.

And as I had surmised earlier, it was after the petitioners (complainants in this case) realised the likelihood of their losing at the Regional House of Chiefs that they re-strategise to gather evidence for the criminal prosecution of the appellant for stealing revenue from Fahiakobo stool lands.   PW1 and his group of malcontents, like the conspirators in SHAKESPEARE’S JULIUS CAESAR, were very adept and chose their co-conspirators very carefully.

The first to be robed in was Mr. J. K. Edukwaw an official of the Regional Administrator of Stool Lands Commission. This officer, wrote and served on the appellant a copy of the letter cautioning the Odikro of Fahiakobo (PW7), against the “illegal collection of Stool Lands Revenue”.  Two such letters are on the record but with different dates; one dated 10^th September 1936 and the other 10^th September 1986 respectively.   I will discount the former since the appellant was only enstooled in 1969, as Bekwaihene.  I believe it was after the issuance of this letter by Mr. J. K. Edukwaw that PW1 and his collaborators went round the farmers and advised them to demand receipts from PW7 for any tribute paid by them to him.   This analysis is borne out by the evidence of PW3, PW4, PW5 and PW6 some of whom claimed to have been on the land for over ten years but were only recently advised to demand receipts from PW7 for any tribute paid for record purposes.

In support of its case, the Prosecution tendered two sets of receipts; one set was stamp: “BEKWAI STOOL LAND”.  The other set was from the Regional Secretariat of Administrator of stool lands.  Significantly, the latter started issuing receipts only on 28^th March, 1985 and this covered ¢1,000.  The second one was issued on 13^th November, 1986 for ¢6,200.  Out of those issued, on the official receipt of the Bekwai Traditional Council. One was dated 3^rd December, 1986 for ¢450 and the other 8^th December, 1986 for ¢1,200.   It is therefore apparent that gathering of evidence for the stealing charge against the appellant started only during the period of agitation against him. That is, between 1986 and 87 when the destoolment of the appellant might have been the clarion call in the Traditional area,as a result of the destoolment petition then pending in the Ashanti Regional House Chiefs, I would have gone on to point out the contradictions in the testimony of the various prosecution witnesses to buttress my point as to the conspiracy and the mode of evidence gathering against the appellant. I do not want to be accused of employing hyperbole in my review of the evidence.  However, I cannot resist the temptation to do so and a risk such an accusation if only to put the issue beyond doubt.  For example, Nana Kwabena Oppong, a prosecution witness (PW7) completely debunked the prosecution’s case when he admitted in cross-examination that he had been collecting tribute on behalf of the appellant since 1978 to the knowledge of both PW1 and PW2, the principal agitators against the appellant who had earlier filed destoolment charges against him at the Regional House of Chiefs.

My lords, this is how the cross-examination of PW7 went:

Q:        How many years since you started collecting tribute at Fahiakobo?

A:        Nine years.

Q:        PW1 and PW2 are aware that you had been collecting revenue since 1978 from the farmers?

A:        Yes they are.

Q:        Have you ever worked at Bekwai Traditional Council?

A:        Yes I was the executive officer at the Council.

Q:        Were you entrusted with a specific assignment?

A:        Yes I was doing office work at the same time represented the Council in assessing tribute payable.”

My Lords, more revealing is the suspect caution statement of PW7 which was tendered in evidence by the prosecution as “EXHIBIT E”. I will quote it in full not only because of its revealing nature but also because it raises a lot of unanswered questions and gives a clearer picture.

This is what is contained in the statement:

“I am always sent to FAHIAKOBO every year to collect cocoa tribute from the farmers every cocoa season by Nana Osei Kwadwo II Omanhene of Bekwai Traditional Area.  I started making this collection since 1978 and it was just last year that the farmers requested receipt for reference purpose.   Nana Bekwai hene gave me a receipt and I issued to them during collection.  Whenever I go there, the Odikro beat gong-gong to inform the farmers to pay their tribute.  After collection I handover the amount to Nana Osei Kwadwo II and it is therefore not true that I have forged receipt book and going round to make illegal collections”.

More importantly, the suspect caution statement of Nana Kwabena Oppong (PW7) was obtained on 2^nd April, 1987.  That will put the period the tenant farmers were advised by PW1 and PW2 to start demanding receipts from PW7 in respect of tributes paid to him “for record purposes”,  to 1987 …  The fact of the letter from Mr. J. K. Edu Kwao pre-dating the caution statement of and the complaint actually made against him to the police cannot escape mention either.  This indeed not only confirms and consolidates my view that the period between 1986 and 1987 was a period of agitation by some of sub-chiefs, not excluding PW1 and PW2, for the appellants destoolment.

It is significant to point out that all the Odikros who assisted PW7 to collect the revenue are sub-chiefs like PW1 and PW2 who occupy sub- stools under the appellant and administered the FAKHIAKOBO lands within their respective jurisdictions on his behalf.  This statement also reveals that the actual complaint made to the Police against Nana Kwabena Oppong was that of forgery of receipt books of the Bekwai Traditional Council to enable him collect tribute from tenant farmers hence the caution of doing an act with intent to sabotage the economy of the State. The statement also strongly  suggests that the “Odikro of  Fahia Kobo” to whom Mr J. K. Edukwaw wrote “EXHIBIT H1” cautioning  him against “illegal collections of Stool lands revenue” was the  brother of the appellant  Nana Kwabena Oppong (PW7); and this was likely to be at the  prompting of Pw1, Pw2 and some of their  collaborators;  not for getting the  evidence of  some of the  tenant  farmers that they were recently  advised to ask for receipt for “record purposes”.

My lords, let us juxtapose the above analysis of the evidence and the statement of PW7 with the evidence given by PW1 in his evidence-in-chief.

This is what PW1 said:

“with respect to the allocation of land at Fahiakobo for cultivation, the practice was that an interested person first consulted the Bekwai hene who  demarcates the land to the interested party. Any money paid in consideration for the land “asikano” is given to the Omanhene by the Odikro.  The asikano

is meant for the personal enjoyment of the Omanhene. In respect of all other lands under the control of the respective sub-stools, the Asikano is divided into three, the Odikro of the area takes two – thirds part and pays one third part to the Omanhene”.

But in the same breath PW1 inexplicably changed his story thus:

“ After the Asikano has been paid and the applicant cultivates the piece of land, all proceeds of the farm are for  his personal enjoyment, and does not owe any obligation to pay anything to the Bekwaihene, or the Twafohene. The only obligation the farmer owes for cultivating the land is to the Lands Department to whom the farmer pays revenues considering the size of the farm. After Nana Yaw Boakye had been destooled, he was succeeded by the accused person. Four years after  the enstoolment of the accused, the local Council withdrew from collecting of land revenue, and the lands Department assumed full responsibility for the collection of the land revenues…”

It does not take much probing to realize that the evidence of PW1 is largely a perjured piece of evidence when he said “ four years after the enstoolment of the accused”  the local council withdrew from collecting land revenue and the Lands Department took over. This is patently false!

The appellant was enstooled in 1969 this will place the alleged withdrawal of the local council, which I take to be the Bekwai Traditional Council, to 1973. but in 1978, PW7 was helping assess revenue on behalf of the Bekwai Traditional Council to the knowledge of PW1, PW2 and all the other sub-chiefs under the appellant.

I hope I have so far tried to point out that the whole allegation against the appellant was indeed motivated by bad faith, in the form of a conspiracy to destool the appellant and supported with perjured evidence to get the appellant convicted and destooled. While bad faith may not necessarily be a defence, it should at least go to the credibility of the witness. Although  it is often said that there is no dichotomy of credibility;  probably meaning a witness cannot selectively be believed on essential issues, I am of the view that where the witness involved can justifiably be said to have been actuated by some bad motive to give his testimony rather than the desire to respect his solemn oath “to tell the truth, the whole truth, nothing but the truth”, he can selectively be believed on essential issues.

For example the evidence of PW1 relating to the history of Fahiakobo Stool Land, the mode of acquisition of farm lands in Bekwai Traditional area, and the disbursement of the Asikano are all very true. But his evidence as to the withdrawal of the Bekwai Traditional Council from collecting of revenue from tenant farmers and the alleged takeover of the functions by the Stool Lands Administrator can easily be debunked as false. I feel confident, therefore, to accept part while rejecting part of PW1’s evidence on the ground that his evidence is tainted and actuated by bad faith rather than the desire to respect his solemn oath. A tribunal for good reasons may conveniently reject the “no dichotomy of credibility” rule in such obvious circumstances.

I find the evidence of PW1 that, in 1973 the Bekwai Traditional Council withdrew from collecting revenue from stranger farmers and that its role was taken over by the Lands Department as a very perjured piece of evidence intended to pervert the course of justice. If this evidence were true why should the Bekwai Traditional Council still be issuing receipts for revenue on 3^rd December, 1986 for 4,600.00 and on 8^th December, 1986 for 1,200?

And why should the Lands Department wait until 3^rd December, 1986 before issuing the first receipt for 4,600 and the second one on 8^th December, 1986 respectively?

The question then is:

What situations in law can then be said to be mala fide? I must say that the categories of such situations, like negligence and causes of action, are never closed. The cases found in the books are only instances. But some of the factors which, in my view, can constitute or point to mala fide and discredit the evidence of a witness are: (i) intense hatred or dislike of a party by a witness, (ii) a committed or perverted interest in the outcome of the case and the desire to get a favourable decision either for himself or the party calling him as a witness. A person who gives evidence on behalf of himself can also be evaluated as such.

For example, in his narration of the history of Fahiakobo lands, PW1 narrated the facts correctly but in the process masked the truth. I have earlier quoted that portion of his testimony and discounted what I felt was not the truth.

Now let us deal with the issue of lack of consent of the Regional Administrator of Stool Lands Commission as touted by my Learned and respected brother, Date Baah J.SC, as one of his reasons for dismissing the appeal having come to the conclusion that the appellant did not secure the consent of the Administrator of Stool Lands and the so-called beneficiaries before collecting the revenue from Fahiakobo lands. How could such a conclusion be arrived at in the face of the Certificate endorsed on the MEMORANDUM OF AGREEMENT (i.e. EXHIBITS H, H1,H2 and H3”) and signed by the Administrator of Stool Lands and the Bekwai Traditional Council?

The obligations of tenant farmers as contained in paragraph (4) and (5) of the Memorandum of Agreement are that:

(i) I       n paragraph (4) the farmer or farmers “undertake to pay annually an amount” which I suppose will be agreed upon at the time of signing the agreement.

(ii)          Paragraph (5) essentially repeats the obligations in paragraph (4) but added that in the case of group farming “each shall be liable to pay the whole amount due so far as it is not paid by one of the farmers involved”.

This also reveals PW1 as an untruful witness when he claimed that after payment of the “Asikano” the farmers are not expected to pay Land Tribute annually to the Bekwai Traditional Council.

For the avoidance of doubt, I will quote the certificate INEXTENSO:

“ This alienation was consented to by the Bekwai Traditional Council in accordance with section 24 of the Traditional Council Ordinance of 1952. This disposal was concurred in by the Administrator of Stool Lands on ….19……..   In accordance with section 17 of the administration of Lands Act, 1962 ( Act 123)”.

The above  Certificate or endorsement alone should negate  any fraudulent or dishonest  intent  or MENS REA on the part of the appellant to enable his “ conduct” constitute the crime of stealing. It is a  proposition  familiar to all lawyers that to  constitute  a crime there must be  both an ACTUS REUS and MENS REA. I need not dialate on this principle as it is basic in criminal jurisprudence and the first principle a student is introduced to in a criminal law class.

It must however, be remembered that EXHIBITS H, H1, H2 and H3” are Standard Forms which are filled only when the need arises. How could a finding of lack of consent both by the Administrator of Stool Lands and the so-called beneficiaries ( i.e. BRKWAI TRADITIONAL COUNCIL, be made? Somehow these minute but critical points escaped the evaluation of both the trial court, the Court ofAppeal, and unfortunately that of my learned and respected brother Date – Baah J.SC as well. In any case, can the Regional Administrator of Stool Lands and the Bekwai Traditional Council unilaterally and on the spur of the moment withdraw  their consent without giving sufficient notice to the appellant and his elders in view of S.25 of the Evidence Decree?

“Section 25(1) of the Evidence Decree, 1975, NRCD 323 provides:

“25(1) Except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively  presumed to be true between the parties to the instrument and their successors in interest”.

Of course, I dare say, being a rule of evidence only, it could be waived by its beneficiary. In such a situation I think the waiver must be unequivocal.  There is no evidence of such unequivocal waiver by the appellant and his elders or the administrators of Stool Lands. And the appellant could have relied upon it as his defence to his so-called “illegal collection of stool land revenue”

 I do recall a statement by my lecturer in a criminal law class when he said stealing under our Criminal code 1960(Act 29/60) is wider than stealing in England; that the definition in our code, (Act 29/60) is so wide that even conversion of a person’s chattel could amount to stealing in certain circumstances. Might be the trial judge and those of the Court of Appeal also share this view.

            I have earlier in this judgment expressed disquiet about the handling of the defence of claim of right put up by the appellant at the  trial court, and my learned  brother’s interpretation of Section 15 of the Code which provides a claim of right in good faith as a defence to a charge of stealing.

That “a  claim of right in good faith”  is a complete defence to a charge of stealing,  under our criminal jurisprudence should be and is indeed beyond dispute. There are certain words and phrases in legal lexicon which do not lend themselves easily to any definition, let alone an empirical one. The phrase “ a claim of right in good faith” is one such phrase. That is why, in my view, the Code itself makes no such attempt at definition.This should be so because being a defence to a charge of stealing, it is, like any defence, a question of fact to be established by the evidence and evaluated along the lines known to our criminal jurisprudence. That is to say, if the defence of the accused is believed he should be acquitted; the Court must then evaluate the defence in descending order, namely, is the defence reasonably probable? If the answer is in the affirmative he is also entitled to be acquitted. And, lastly does the defence on the totality of the evidence raise any reasonable or nagging doubt about his guilt? If the answer is yes, he is equally entitled to be acquitted.

Both the trial circuit court and the Court of Appeal failed in this basic and all important duty. The consequences of such a default obviously must have a debilitating effect on their judgments.

More importantly I am not comfortable with the resort to the common law to interpret the phrase “  claim of right in good faith” as advocated by my brother Date-Bah JSC, in view of section 8 of the criminal code 1960 (Act 29).which provides for the exclusion of the common law in these words: “No person shall be liable to punishment by the common law for any act”. The necessary implication of this provision, in my view, is that an accused person can hardly put up a common law defence to a charge under our Criminal Code 1960 (ACT 29) and succeed.

The evidence of PW1 establishes certain important facts in the case:

(I )        Any person who wants land for farming purposes at FAHIAKOBO consults the Appellant in respect of    lands under his direct customary administration and pays “asikano” which is for the personal use of the appellant.

( ii)       In respect of the lands under the customary administration of the sub-chiefs. The “Asikano” is paid to the sub-chiefs or the Odikros and divided into three equal parts. The subchiefs or Odikros take 2/3 while 1/3 is paid to the appellant as Omanhene of the area.

            This is basically the truth however, for inexplicable reasons PW1 decided to take a sharp detour into the realm of untruths by contradicting himself in the same breath that after paying the “Asikano” the farmers have no obligation to pay revenue or tribute to anybody except to the Lands Departments for payment into the Stool Lands Accounts for distribution according to the relevant law. This should conclude my review of the evidence on record.

It is in the case of ENNIN V. THE STATE (1976) 1GLR that Apaloo C.J enunciated the principle that a constitutional conflict should be avoided if the case can be decided on some other ground, However, he gave an important caveat ---- if the constitutional issue is judicially unavoidable. The issue of the defective particulars was raised SUO MOTU by this Court and I think it is very germain to our decision.

In case the commentators characterize these important legal issues as not being necessary for the decision because the case could be decided on the facts and therefore OBITER, I hold the view first that where an appeal can be allowed on more than one ground, it does not exonerate the appellate court from considering the other grounds, especially when these are legal.  The Court must express its views on the law.  There can be several reasons for a decision in an appeal.  That, in my view, means, there being RATIONES DECIDENDI.

The first legal issue I want to consider in this respect is the one relating to the issue of a defective charge sheet. It was during our first judgment conference that some of us felt the charge was defective in that the particulars of offence were inadequate to sustain the charge of stealing against the Appellant.  The Court therefore suo motu invited argument from both counsel. Counsel for the Republic did not file any submission on the issue; I therefore take it he has nothing to assist the court with. However, I will approach the issue broadly.

The appellant faced thirteen charges for stealing.  Needless to say that under our Criminal Procedure Code, 1960 (Act 30/60) a charge sheet, to be adequate, must contain a statement of offence alleged to have been committed by the accused together with the particulars of that offence as defined in the enactment prohibiting the act or conduct complained of.

The first of the thirteen Counts will suffice for our purposes.

It reads:

1^ST COUNT

STATEMENT OF OFFENCE

“Stealing; Section 124 (1) of Act 29/60

PARTICULARS OF OFFENCE

NANA OSEI KWADWO II:  Bekwaihene, on or about the 13^th day of December, 1986 at Fahiakobo in the Ashanti Circuit and within the jurisdiction of this Court did illegally collect ¢300.00 from one Abena Adomma as Land tribute without the consent and knowledge of the Lands Commission Secretariat.”

The first count quoted above is illustrative of the remaining twelve counts.  As indicated earlier, our criminal jurisprudence requires that a charge sheet to be considered adequate must have two components: a statement of offence which describes the offence in ordinary language with reference to the offence creating section of the relevant enactment which forbids the act or conduct complained of, and the particulars of that offence. Under the particulars of offence, the requirement is to state, without use of technical language, those particulars or ingredients of the offence mentioned in the statement of offence as may give reasonable information of the nature of the charge.  The particulars essential elements or ingredients which give reasonable information to the accused of the offence are often found not in the offence creating section of the enactment, but in the section which defines the offence. This, in my humble opinion, means there should be a written law definition of every crime.

In the case of STATE VRS. LAWMANN (1961) G.L.R (PART. II) 698, however, the then Supreme Court classified the particulars of a charge into two categories:

(i)            those which are necessary to give reasonable information to the accused;

(ii)          those constituting the gravamen, or which are of the essence of the charge.  The court also held the view that the omission of particulars of the first type could be cured by evidence.  But the omission of the second type, if curable at all must be by amendment during the trial; otherwise it is impossible to cure by evidence.

 My Lords, may I ask a rhetorical question: is there the need for this highly technical distinction? This distinction based on the proviso in section 330(1) and section 406(1) of the Criminal Procedure Code (Act 30/60)could have informed some jurists to hold the view that an appellate court should dismiss an appeal if it considers that a substantial miscarriage of justice has not actually occurred or that the point raised in the appeal consists of a technicality or procedural error or defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted on that charge or indictment.

Is it these proviso’s and the decision in the LAWMANN CASE which informed my learned and respected colleague, Date-Bah, J.S.C. in his reasoning on the issue of the defective charge?  If it is, I beg to again differ on this crucial legal point.  The first reason is that the proviso being an existing law must be construed by us in a way which will bring it into conformity with the provisions of the Constitution. (see article 11 (6).

This is my pith when I submitted elsewhere in this judgment that the prosecution or whatever authority is responsible for drafting a charge sheet must strictly comply with both Article 19(1)(d) and sub-clause 11 of the same article. That, embedded in article 19(1)(d) and  19(11) are sections 202(1) and 202(2) of the Criminal Procedure Code, 1960, (Act 30/60). These provisions, in my humble view, reflect the Anglo - Saxon jurisprudence which I believe is the foundation of our criminal jurisprudence also. For the avoidance of doubt I will quote these provisions in extenso:

“202(1) Until provision is otherwise made by Rules of Court,this section shall apply to all indictments and an indictment shall not be open to objection in respect of its form or contents if it is framedin accordance with the provisions of this Code”.

“202(2) Every indictment shall contain, and shall be sufficient if it contains, a statement of a specific offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to nature of the charge”.

I do not, speaking for myself, see the need for the distinction by the Court in the STATE VRS. LAWMANN (supra).  This is because the particulars necessary in a charge to give a reasonable information to an accused as required by law are those particulars we variously describe as being the “gravemen of the charge” or “an essential element or ingredient of the charge” etc.

            I will therefore state my thinking on the subject is to be that where the particulars of offence as laid omitted to state an essential particular, i.e. essential constituent or ingredient of the offence, as in the instant case before us then the charge was one unknown to the law, was bad, and a conviction based on it must be quashed. There is no offence known to our laws as illegal collection of Stool land revenue either under the Administration of Lands Act, 1962(Act 123) the relevant law or any other statute. More importantly, while the statement of offence charges stealing and refers to section 124(1) of Act 29/60.  The information contained in the Particulars of offence did not give the particulars of stealing but rather the particulars of an offence said to be illegal collection of stool revenue.  “The particulars of offence therefore did not only contain any information about the offence charged, but also contains a technical word; “did illegally collect....”

My Lords, later in the judgment, I will point out and urge you to accept that there is now a constitutional demand in article 19(1)(d) that as soon as a person is charged with an offence, he is entitled to be immediately informed in a language he understands of the nature of the offence he is charged with.  The Constitution is not concerned with what a police man might have told the accused at a police station or any other authority might have said to him at one time or other.

In this connection, may I respectfully refer to the case of OSEI v. THE REPUBLIC (No.2) (1971) GLR 449, where the accused was charged before the District Court James Town under section 4(1) of the Control of the Prices Act, 1962, with selling sugar and sardines at a price which exceeded the maximum price set out in an executive instrument that had been issued out under the authority of the Act. The particulars of offence stated inter alia:

“ Osei Jonas … For that you … did sell per your agent, one Catherine Tetteh, one carton of [sugar] at N¢ 6.20 instead of N¢ 6.00 and one carton of [sardines] at N¢ 11.80 instead of N¢ 11.20 to one Joseph Mensah, thus making an illegal profit of 80 n.p. in all.”

Following the appellant’s conviction it was submitted on appeal that the appellant was not given sufficient information on the charge sheet as to the nature of the offence.

Held, allowing the appeal: (1) article 20(2) ( c) of the constitution, 1969,refers to the charges as they appear on the charge sheet and it confers a right on a suspect to be informed in detail of the charge that is brought against him. A failure to set the charges out in detail is fatal and cannot be cured by the evidence.  

            I strongly recommend such a liberal interpretation of article 19(1)(d) and other matters related to individual rights as enshrined in chapter Five of the Constitution.  If such an approach is accepted this court should find it convenient to overruled the case of the STATE VRS. LAWMANN (supra).  This is because a distinction as to the contents of a charge which will give a reasonable information to an accused is no longer necessary in view of the provisions of article 19(1)(d) and 19(11) which, in my view should be read together. In this respect, we can take advantage of article 129(3) which permits us, for good reason, to depart from a previous decision of the Supreme Court.

Because if the constitutional provisions in article 19(1)(d) and sub clause 11 are not complied with, it will not only result in a gross miscarriage of justice, being a violation of the right of the accused, and, ipso facto, a violation of the Constitution we have sworn to up hold.  In any case, the proviso which could have formed the basis of such a distinction has now been repealed by the CRIMINAL and other OFFENCES (procedure) Act, 1960, Act 261.

Because of the view I hold on the issue of defective charge sheet, where the particulars are defective, I need not examine cases like ANDOH AND ANOR VRS. THE REPUBLIC (1970) 2 G.L.R. 250; the STATE VRS. AKOWUAH AND BOAHNE (1964) G.L.R 475 line of cases on defective charge sheet.

I say so because I fully endorse the progressive views of Hayfron-Benjamin J expressed in the case of OSEI VRS. THE REPUBLIC (No. 2)(supra) 449 where the learned judge held that as Article 20 Clause 2 of the Constitution; 1969 requires that every person charged with a criminal offence be informed immediately in a language he understands, and in detail, of the nature of the offence charged, an omission of an ingredient in the particulars of offence sinned against the Constitution, and a conviction based on such a charge cannot be upheld under any circumstances.

My Lords, I am of the firm view that we must begin to expand the frontiers of the fundamental human rights and freedoms enshrined in Chapter Five of our Constitution as a means of strengthening the faith of our people in the democratic dispensation we are practicing.  Man is born with certain inalienable or God-given rights.  We lawyers variously describe these rights as “natural”, “basic”, or “fundamental” precisely because no human being is a human being without these rights.  They are not rights endowed by PRINCES but rather, they are rights endowed by God Himself.  The Constitution of a country only recognizes, protects, and makes enforceable these rights of the individual.  Therefore, nothing, absolutely nothing should be allowed to be done, or omitted to be done, in the words of Article 2, by any authority to derogate from the rights of the individual enshrined in Chapter Five of the 1992 Constitutio, 1992.  THE FRAMERS of our Constitution demand from every citizen, in their various actions to ensure “the establishment of a JUST and FREE SOCIETY”.  We in this court who have sworn to protect, preserve and to defend the constitution and laws of Ghana have no less an onerous duty to ensure a “free and just society” for our fellow citizens.  SEE ARTICLE 34 (1).

My Lords, in this regard we can not forget our National motto – which is “freedom and justice”. When we ask ourselves the obvious and ultimate question - “ can we have a free and just society without the scrupulous respect for the rights of the individual? We can not, as custodians of the constitution help but arrive at only one collective and inevitable answer! Personally, my humble view is that the right of a nation are those of the individual in capital letters; and the freedom enjoyed by a nation is that enjoyed by an individual which finds expression at the national level. My Lords, we must not forget that globally the respect for human rights has become an integral part of good governance.

May I therefore recommend for the approval by this Court the views of His Lordship Hayfron-Benhamin J as espoused in the OSEI CASE (SUPRA).

Article 20(2) which featured in the Osei Case is re-enacted IN PARI MATERIA in Article 19 (1) (d) of the present Constitution. 

It states:

“19(1) A person charged with a criminal offence shall …

 x                     x                     x                      x                      x                      x

(d) be informed immediately in a language that he understands, AND IN DETAIL of the nature of the offence charged”

The comma before the “and” makes the “and” disjunctive and clearly indicates that the person charged must not only be immediately informed of the nature of the offence in a language he understands, but also IN DETAIL.

This is what His Lordship Hayfron-Benjamin J said in the Osei case:

“The Constitution now categorically confers a right on a suspect to be informed in detail of the charge that is brought against him.  A correlative duty is imposed on all law enforcement officers and particularly those engaged in framing charges to set out the details of the offence.  I am of the view that failure to do so is fatal and cannot be cured by the evidence.  To hold otherwise and say that an appeal court can dismiss an appeal against conviction, where this right was infringed, on the ground that no substantial miscarriage of justice had been occasioned, would be to make nonsense of this Constitutional provision. 

His lordship then continues thus: “I would even venture to say that where the accused pleads guilty to the charge, and the record discloses that the charge does not set out in detail the nature of the offence, the appellate court cannot apply the proviso.  Speaking for myself, I would say that I am not prepared to treat the fundamental rights as set out in Chapter 4 of the Constitution as a coronation oath to be applied only by the grace of the courts and to be enjoyed as a bounty from some authority.  They are rights inherent in the people of Ghana as human beings, and cannot be derogated from by any law”.

I respectfully adopt these words as my own.

For me, therefore, the concerns raised by Justice A.N.E Amissah in his book CRIMINAL PROCEDURE IN GHANA at page 82 after quoting the views of Hayfron -Benjamin J. in the OSEI CASE are not relevant because the Constitution is the Supreme law of the land and the implications of any of its provisions, as expressed in the OSEI CASE, to which I agree must, in my view end the matter.

This Court must speak with one voice on this issue and put the matter to rest while giving full effect to a constitutional provision on the rights of the individual.

In any case, those cases the learned author relied upon in expressing his doubts could be said to have been decided PER INCURIM since the courts never adverted their minds to the Constitution.

I am left with only one aspect on the issue of the defective charge sheet to deal with.

            My brother Date-Bah, J.S.C. contended that the appellant was given adequate notice through the letter of the Regional Land Officer, Mr. J.K. Edukwaw that his conduct in collecting revenue from stranger farmers was an illegal act so he must be deemed to have had sufficient information irrespective of the deficiency in the information as contained in the particulars of offence as required by law.

            With much respect to my learned and respected colleague, his argument is wholly untenable for a number of reasons.

The first reason is that his position offends or sins against  the rule  prohibiting  the use of technical words in the particulars of offence. The word “illegal” is a highly technical   word in legal lexicon. While  a fraudulent or dishonest conduct will necessarily be illegal, an  illegal  conduct may not  necessarily be fraudulent or dishonest, so that  instead of informing the appellant in detail, the charge sheet, as drafted  rather misinformed him hence his defence of claim of  right when he could  simply have pointed  to the endorsement on the MEMORANDUM OF AGREEMENT that he had done nothing  illegal  having  obtained the prior consent of the  Administrator of  Stool Lands and the Bekwai Traditional Council.

Unless we uphold the sanctity of article 19 (1) (d) of the Constitution, the equally important provisions of sub clause (II) couched in an equally robust and peremptory language, “that 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”, will become not only otiose and superfluous but also irrelevant as well.

Needless to emphasize that no provision of the constitution can either directly or by necessary implication be declared as otiose by this Court without breaching our oath of office to, at all times uphold, preserve, protect, and defend the constitution and laws of the Republic of Ghana.

My Lords, for these reasons and concerns of mine, may I again, humbly  recommend the decision of Hayfron-Benjamin J in Osei vrs. The Republic (No. 2) (supra) for your consideration and unanimous approval to authoritatively settled this issue once and for all.

My views on Article 19 (1) (d) and sub-clause (11) of the said article should naturally bring into sharp focus two high-profile and important decisions of this Court – which involved the consideration of the constitutionality of section 179A (3) (a) of the Criminal Code, 1960 (Act 29/60) as amended by the Criminal Code (Amendment Act) 1993 (Act 458 which created the offence of “Wilfully causing financial loss to the State”.  The first of these cases is the case of MALAM ISSA V. THE REPUBLIC (Unreported) CRIMINAL APPEAL NO. 28/2001 dated 2^nd April, 2003 and the case of TSATSU TSIKATA V. THE REPUBLIC, CRIMINAL APPEAL NO. J3/4/2004 (Unreported) dated 8^th November, 2004. Of the two cases it is the later case (TSATSU TSIKATA V. THE REPUBLIC.) which directly challenged the Constitutionality of the law up to this Court.

The facts of this case, in so far as they are relevant for my purposes are very simple.  Mr. Tsatsu Tsikata was the former C.E.O. of the Ghana National Petroleum Corporation (G.N.P.C.). On the 11^th day of March, 1991, the GNPC signed a Guarantee Agreement with CAISSE FRANCAISSE; which guaranteed a loan to VALLEY FARMS Co. Ltd.  The guarantee agreement stipulated that in case of a default by the borrower (VALLEY FARMS) G.N.P.C will make good on the loan payments.  There was a default and G.N.P.C. was called upon to pay the said loan which it did in 1996.  It was upon these facts that Mr. Tsikata was arraigned before the Fast Track High Court on three counts of “Wilfully causing financial loss to the State; contrary to section 179A (3) (a) of the Criminal Code, 1960 (Act 29/60) as amended; and on a fourth count of intentionally misapplying public property, contrary to Section 1 (2) of the Public Property Protection Decree, 1977 (S.M.C.D. 140).

A submission of no case to answer was made on Mr Tsikata’s behalf; this was overruled and he filed an appeal to the Court of Appeal which dismissed the appeal on 27^th November, 2003.  Undaunted, he mounted a further appeal to the Supreme Court.  Eighteen grounds of appeal were filed but of relevance here is ground 15. 

                        It states:

“15 the learned trial judge erred in Law in failing to enforce article 19 (11) of the 1992 Constitution requiring that only offences defined in a written law can be the basis of lawful charge against the accused”.

This Court in a unanimous decision sadly dismissed the appeal on grounds that “article 19(11) was meant to outlaw the so-called common law and customary law crimes that have not been preserved in statutory law”. This interpretation presents a chicken and an egg situation and is self - defeating because if the legislature decides to preserve the so called “common law and customary law crimes in a statue it has to conform to the requirements of a penal code as required in the Anglo Saxon criminal jurisprudence. In any case my view is that there is no need for the interpretation of Article 19(11) of the Constitution because this provision like all the provisions in Chapter Five, admits of no ambiguity to warrant an interpretation by this Court.  This is why the High Court, though it has no interpretative jurisdiction as a court of first instance, is granted exclusive jurisdiction to enforce the fundamental rights as a court of first instance.  It is the attempt to defy this basic fact or legal reality that has created the chicken and an egg situation for this Court. Prof. E.V.O. Dankwa, learned counsel for Mr. Tsatsu Tsikata never faulted the learned trial High Court Judge of misapprehension of article 19(11) to compel this court to have recourse to its interpretative jurisdiction.

The appellant’s case was simply that the learned High Court judge “failed to enforce his constitutional rights in not ensuring that the law under which he was charged complied with article 19(11) of our Constitution..  To attempt a definition, with much respect was totally unnecessary and only evaded the issue.  All the provisions on fundamental rights of the individual in chapter Five of the Constitution are couched in plain, unambiguous and clear language so as not to admit the need for interpretation.  This is why the High Court which has no interpretative jurisdiction enjoys the exclusive original jurisdiction of the enforcement of these rights.

The decision to dismiss Mr. Tsatsu Tsikata’s appeal was arrived at despite the fact that the Court was of the strong view that the void –for vagueness or over breadth doctrine represents “a legitimate standard under the Constitution, 1992 for judicial review of legislation”, but that section 197A(3)(a) of the criminal code (Act 29/60) as amended is not vague and therefore constitutional and that the law can not be expected to define every term used in a statute.

With all respect to my colleagues who sat on the case, in Anglo-Saxon jurisprudence which we have practiced for over a century now, an immutable and basic requirement of this system is that every Penal Code or law has two sections; that is to say a section which creates the offence and that which defines it.  The section which creates the offence indicates in simple language the type of act or conduct which the state intends to command or prohibit:- ie the ACTUSREUS. The section which defines the offence specifies what the essential elements or ingredients of the crime are: what we at times refer to as “the gravamen of the offence” this also indicates the specific mental state which should accompany the prohibited act to constitute the offence. (that is to say the requisite or specific MENSREA) required to constitute the crime.

Justice A.N.E Amissah In his book “CRIMINAL PROCEDURE IN GHANA, treats the subject of what the contents of a properly laid charge should be; namely, (i) a statement of offence and

(ii) particulars of offence.

In respect of the statement of offence this is what the learned author in his book said at page 76:

“The statement must describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence is one created by enactment must  contain a reference to the enactment.  In meeting this latter requirement care must be taken to distinguish between two types of statutory provision which usually deal with an offence: the one which creates the offence and the other which defines it.  As between these two it is the provision creating the offence which has to be referred to, not the provision defining it.  Thus in the case of murder, section 46 of the Criminal Code provides that: ‘whoever commits murder shall be liable to suffer death.  Then section 47 of the Code defines murder”. The learned author then continues:

“It is the section which creates the offence which must be referred to in the statement of offence not the section which defines it.  A charge of murder, therefore, must refer in its statement of offence to section 46 of the Criminal Code and not to section 47”. That is, the section which defines murder.

And in respect of the particulars of offence the learned author wrote at page 77 as follows:

“It is necessary to state under this head such particulars of the offence as may be necessary for giving reasonable information as to the nature of the charge.  The necessary particulars must be set out after the statement of offence in ordinary language.  The use of technical terms is not required….  Drafting of the particulars of offence charged often involves following with some precision the wording of the section defining the crime and alleging that the accused did an act having the ingredients of the offence. Supplying the defective particulars have often led, and may still lead……. To the quashing of a conviction based on a charge”.

In the West African Court of Appeal case of C.O.P. vrs WOENYONU 3 W.L.R. 149, a strong court CORAM: Korsah C.J., Van Lare and Granville Sharp J.J.A., the appellant, a police sergeant had been charged with two offences: the first charge which was dismissed, alleged aiding and abetting theft; the second on which the appellant was convicted, alleged neglect of duty.

This charge simply read: “No 7526 G/ Sgt. Joseph Woenyenu, Police Sergeant on the date and place aforesaid, was guilty of neglect of duty.” The court held that the charge as written failed to give reasonable information as to the nature of the charge.

His Lordship Granville Sharp J.A. delivering the judgment of the court said:

“There is nothing whatever in the particulars of the offence to indicate to the accused person which of his multifarious duties he had neglected or in what respect he has fallen short of his duty. Furthermore we cannot feel ourselves able to exercise our discretion to find that no miscarriage of justice had occurred.”

In the fairly recent English case of REPUBLIC. VR. WOODS (1968) W.L.R 1192 at 1195, C.A. Phillimore L.J. reading the judgment of the English Court of Appeal said;

“It is of the first importance that a man charged with an offence should know with certainty what it is he may be convicted of.  No Court should be encouraged to cast around to whether somehow or other the words of the indictment can be found to contain by some arguable implication the seed of some other offence”

                                    (Emphasis supplied)

In the local case of DADZIE V. C.O.P. (1963) I.G.L.R. 244 at 263, the then Supreme Court speaking per Adumoa-Bossman J.S.C. observed

:

“the essential elements of the offence.... should be communicated to the accused in order that he might know of what he is accused”.

All the local cases cited above certainly took inspirations from section 202(2) of the Criminal Procedure Code (Act 30/60).

Which states:

 “Every indictment shall contain, and shall be sufficient if it contains, a statement of a specific offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to nature of the charge”.

The old English case of R. V. AYLETT (1785) I.T.R 63 at 69, Lord Mansfield CJ: firmly stated the law as follows:

“it is necessary in every crime that the indictment charge it with certainty and precision  to be understood by every body: alleging all the requisites which constitute the offence.”

I have earlier pointed out in this judgment that it is the section which “defines” the crime that provides or indicates the requisites of that offence. Therefore, the need to define every crime is a requirement of Anglo-Saxon Criminal jurisprudence which is embedded in Article 19(11) of our 1992 Constitution.

In American jurisprudence when a penal code or law lacks certainty and precision it is said to be vague and always held to be constitutionally void–for-vagueness.  The case of PAPA CHRISTOU ET.AL. V. The CITY OF JACKCONVILLE 405 U.S. 156 provides a classic example.  In this case an anti-vagrancy law was so notoriously wide that the defendants charged under the law challenged its constitutionality.  The Court held the law to be void-for-vagueness and therefore unconstitutional. Justice Douglass said of the law: “it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute – and because “it encouraged arbitrary and erratic arrests and convictions”.

See also the case of UNITED STATES V COHEN GROCERY CO. 255 US 81.

This was a case where the defendant company was indicted under a 1917 law, which imposed a fine or imprisonment upon any person who wilfully charged an excessive price for “any necessary”. The indictment was quashed on the grounds that the law was unconstitutionally vague as it provided no ascertainable standard of guilt and was therefore repugnant to the fifth and sixth amendments of the American Constitution which ensures for the citizen due process of law; and, that due process required that anybody accused of an offence must be adequately informed not only of the nature of the offence but also the cause of the charge against him. On appeal the US government lost at the Supreme Court. As rightly pointed out by the Court in the Tsatsu Tsikata case (supra) our equivalent of the fifth and sixth Amendments are articles 14 and 19 of our 1992 Constitution.

In the 1982 case of KOLENDER, CHIEF of police of SAN DIEGO vs. LAWSON 461 US 382, the California penal Code was put to the test. A section of the code required persons loitering or wandering on the street to provide, “ a credible and reliable identification”, and to also account for their presence on the streets when requested by a peace officer. The appellant was arraigned and convicted under the law. He brought an action in the Federal court challenging the constitutionality of the law. The case traveled to the US Supreme Court which held that the statue was vague and therefore unconstitutional because it failed to explain what it meant by a suspect providing a credible and reliable evidence of his identity. Justice O’Connor delivered the opinion of the court and gave a very clear rationale behind the doctrine in classic language as follows:

“Although the doctrine focuses both on actual notice to the citizen and arbitrary enforcement we have recognized recently that the more important aspect of the vagueness doctrine is not actual notice but the principal element of the doctrine – the requirement that a legislature establish minimal guidelines to govern law enforcement.

Where the legislature fails to provide such minimal guidelines, a criminal statue may permit a standard less sweep that allows policemen, prosecutors, and jurors to pursue their personal predilections”.    

Lastly in  the case of the UNITED STATES V. REESE, 92 U.S. 214 at 221, the Court in equally classic language gave the rationale behind the doctrine of void-for-vagueness as follows:

   “it would certainly be dangerous if the legislature could set a net large enough to catch all possible offences, and leave it to the courts to get inside and say who could be rightfully detained, and who should be set at large.”

Although this Court in the Tsatsu Tsikata case was unequivocal in its view that the void-for-vagueness doctrine is a legitimate standard for judicial review of legislation in this country under our constitution, 1992 it sadly turned round and speaking per Prof. Justice Modibo Ocran J.S.C. said;

   “But that is not to say that the particular statute in question, section 197 A (3) (a) of the Criminal Code 1960 (Act 29/60), is constitutionally void for vagueness.  In a second decision of our Supreme Court, Mallam Issa V. The Republic (Unreported CRA 28/2001, 2^nd April 2003), delivered by our learned Sister Justice Akuffo J.S.C. the constitutionality of this very statute was raised.  The Court determine that: ‘the charge based on ... Section 179A (3) (a) is constitutional and has been legitimately laid under the Criminal Code.  The charge and the provisions under which it was brought in no way violated the provisions of article 19(11) of our Constitution’.  We affirm this position and hold, for the avoidance of doubt, that section 197A (3) (a) of the Criminal Code 1960 (as amended) is not void for vagueness”,

Thereby rejecting the submission and request of learned counsel for the appellant, Prof. E.V.O Dankwa, for the exercise of our undoubted discretion under article 123 (2) of the constitution to depart from our decision in the Mallam Issa case (Supra).  Underpinning this constitutional discretion are two basic assumptions:  courage and humility on our part that we could after all have had it wrong in the first instance. This discretion is different from and certainly not the review jurisdiction which we hardly exercise and the exercise of which is regulated by established principles embodied in our Rules of procedure.

The exercise of this discretion should not be tied to how the issue as to whether to depart from a previous decision or not comes before us. It could be through the argument of learned counsel before this court.  The only condition is that any such decision must be for good reason.  Our reason for so departing cannot in jurisprudence accurately be described as OBITER.  It is the exercise of a discretion which must not be clogged. The discretion granted the Supreme Court in article 123(2) of the Constitution, 1992 to, for good reason, depart from its previous decision is the epitome of the Ghanaian saying that if one forgets something there is nothing wrong with going back to pick it. The Akans have a cryptic way of saying it: SANKOFA.

I think I can safely describe the judgment in the Tsikata case (which affirmed Mallam Issah supra) as an arid academic discourse unrelated to, and, wholly uninformed by our criminal jurisprudence on penal codes. It is the requirements of the Anglo - Saxon criminal jurisprudence which are captured and embedded in article 19(1)(a)(d) and sub-clause 11 of the said article. In my view, therefore the law on “wilfully causing financial loss to the state” that is, Section 179A(3)(a) of the Criminal Code, (Act 29/60) as amended by the Criminal Code (Amendment) Act, 1993(Act 458) is void for vagueness as it directly infringes article 19(11) of our constitution, 1992 since the offence is not defined by the law creating it.

In my view therefore, the fundamental rights of both accused persons in the  Mallam Issah and Tsatsu Tsikata cases have been breached.

If however, my views are not acceptable to my colleagues, then all that I have said in relation to the issue of defective charge in relation to this case and my comments on Tsatsu Tsikata and Mallam Issah cases can be taken as my dissenting views in this appeal and registration of my opposition to the decision of this Court in the Mallam Issah case as affirmed in the Tsatsu Tsikata case. I can only describe both decisions as having been given ad hominem and not ad litem.

My lords, I want to be generous and believe that the decision in the MALLAM ISSAH case as affirmed in the case of TSATSU TSIKATA VRS. THE REPUBLIC (Supra) was given PER INCURIAM. This a lone is a very legitimate, reason, in my humble opinion, why we should be persuaded to depart from our previous decisions in the two cases. I say the decision in these two cases might have been given PER INCURIAM because nowhere in these judgments did this Court advert its mind to the most important and relevant provision of the Criminal Procedure Code, 1960,(ACT 30/60); that is to say Section 202(2) of the Criminal Procedure Code, 1960(Act 30/60)which regulate indictments in this jurisdiction. For emphasis, I will quote it again:

“Every indictment shall contain, and shall be sufficient if it contains, a statement of a specific offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to nature of the charge”.

Even when exercising our review jurisdiction, which we seldom do, we are required to accede to an applicant’s request if it is shown that the judgment sought to be reviewed was given PER INCURIAM. The fundamental rights of the individual is above all rights, and, subject to our Rules of Procedure, at its mention, all legal technicalities must bow.

If we adopt a purposive interpretation to article 19(1)(d) and 19(11) we will realize that Section 202(2) of Act 30/60 can not be complied with unless there is what learned Counsel, Prof. E.V.O. Dankwa, described in the TSATSU TSIKATA case as “a written law definition of an offence”. This submission was unfortunately rejected by the court on grounds difficult to comprehend. Clearly, embedded in those two provisions is section 202(2) of the Criminal Procedure Code (Act 30/60)

Even if, arguendo, article 19(11) does not command a Penal Code or legislation to define the offence created and therefore section 197A(3)(a) of the Criminal Code (Act 29/60)as amended by the Criminal Code Amendment Act, 1991, Act 458 is “constitutional”, I would like to examine the wording of the law creating the offence of “ Willfully Causing Financial Loss to the State”. This exercise will be done simply by applying known and indisputable principles of criminal jurisprudence.

Section 179 A(3)(a) provides:

“(3) Any person through whose willful, malicious or fraudulent action or omission …

(a)  the state incurs a financial loss… commits an offence”

The words ‘willful’, ‘malicious’ and ‘fraudulent’ in law connote a specific state of mind required which should accompany an act or conduct prohibited or ordered by the state to constitute a particular crime. So that the use of the word “willfully” in the description of a statutory offence implies also “knowingly” in that the accused must have the intention to commit the specific crime for which he is charged. Is the legislature then intending to punish a person for having a particular intention only since there is no indication as to what act or conduct which if done willfully can earn a criminal sanction. This to me will be legal heresy in criminal jurisprudence because of lack of definition.

My Lords, while reiterating a point, may I develop myself further: the words “willful”, “malicious” and “fraudulent” connote specific state of mind or intention which accompany the doing of the prohibited act before attracting criminal sanction, or civil liability.

For example in the case of SMITH v. BARNHAM I.E.D. 419 where the words “ shall willfully throw away soil into” some specified rivers, was made an offence, Lord BRAMWELL B. said:

“Willfully” appears to me to mean “wantonly” or causelessly”.

In civil matters like matrimonial causes Act, “ willful refusal to consummate, a marriage ‘willful’ means conscious’ in the same context it can also mean or connote a settled or definite decision come to without just excuse.

Another interesting example is the offence of to “willfully” break a street lamp under Section 206 of METROPLIS MANAGEMENT ACT 1855 (18&19 Vict. C120) it was held to mean carelessly.

Lastly in Rv. PINCHE ( (1967) 10 CrI. L.Q 107) it was held that “willfully” in the description of the statutory offence implies also “knowingly” in that the accused must have the intention to commit the specific offence or crime charged.

That is to say in a crime situation, “wilfully” always connotes “knowingly” which inturn, in my view, connotes, “intentionally”. The accused must therefore be proved to have that specific intention to commit that offence. The ultimate question is which of these various meanings can be attributed or ascribed to the word “wilfully” in the offence of “ Willfully Causing Financial Loss to the State”.

 It is submitted that the starting point of any investigation into the intention of an accused must be his intention as it manifests itself to the outside world.  That is to say we are not looking for a subjective assessment but for a manifest intention.  The intention of the accused as found by the proverbial “reasonable man” in law. Can it then reasonably be said that Mallam Issa or Tsatsu Tsikata intentionally did what they were said to have done with the sole intention of causing Financial Loss to the State?

In my opinion the law as framed offers little guidance with respect to what acts or conducts which if “wilfully” done by an accused and with what intention can constitute the crime of “wilfully Causing Financial Loss to the State” because there is no indication as to what act or conduct which if done wilfully by a citizen can earn him criminal sanction.

In some situations, a person’s intentions, may as the saying goes, be “as clear as day light”.  This clarity could however fall short of knowing the intention for certain.  This is because an impression which is as “clear as day light” may only be in the eye of the beholder.  That is to say, the Attorney-General and his prosecuting officers: The policeman whose perception of and inference from the evidence may be based on subjective rather than objective grounds will not be helpful either.  Although it is true to say that the available evidence relating to the intention of an accused cannot depend upon some full proof or airtight evidence into the psyche or mind of a person, because one cannot tell the mind of a man from the construction of his face.  It is therefore a truism to say that the starting point of any investigation into the intention of an accused must be his intention as it manifests itself to the outside world. That is to say we are not looking for subjective intention but for manifest or objective intention. In view of the fact that in law the search for manifest intention could be problematic that is why the objective standard is often adopted whether the occasion is civil or criminal: The view of the proverbial reasonable man.

In my humble opinion, the least to be said about the law as it stands is that it is only targeting the intention of the citizen since there is no indication of what conduct it prohibits, and which if wilfully done by a citizen will render his conduct an ACTUS REUS.  No matter how evil the individual’s intentions are, without more, he attracts no criminal or civil sanction.  As the maxim says “Even the devil does not know the intentions of a man”

The words “maliciously” and “fraudulently” are also at large and used in law mean different things depending on the context.  For example “maliciously” may mean a wrongful act done intentionally without just cause or excuse.  So that the words “maliciously”, “willfully”, and “fraudulently” when employed in law have a certain well known meaning but they also have a popular and less precise signification. 

In my humble opinion the law should have gone further to define which acts if willfully or maliciously or fraudulently done by an individual will constitute the offence of either “willfully or maliciously or fraudulently causing  financial loss to the state.  There is no offence created under the criminal code (Act 29/60) which is not defined or explained.

Whichever way one looks at the law of “wilfully causing financial loss to the state” in my view, it does not conform to what Anglo Saxon criminal jurisprudence requires of a penal code. I will therefore hold that it infringes article 19(1)(d) and 19(11) of our Constitution, 1992 and therefore void.

We cannot be oblivious to the fact that there is admittedly strong public sentiments and agitation against this law with even some members of parliament calling for its outright repeal by the legislature. This situation has come about, in my humble view, precisely because of the realisation of what Justice O’Connor said: that where the legislature fails to provide minimal guidelines on enforcement, such failure provides “a standardless sweep that allows policemen, prosecutors, and jurors to pursue their personal predilections”. “The fear of the Lord,” says the good book, “is the beginning of wisdom”.

If we refuse to use the opportunity offered us in this case – where there is no law defining the offence of “illegal collection of Stool revenue” and have recourse to our undoubted power of judicial review of legislation; but rather shift the responsibility to the legislature, the constitutional consequences of such a default are to me unimaginable and I can not be a party to it. If the then Supreme Court had decided the RE AKOTO CASE differently, this country would have been very conversant with the concept of due process of law by now and we would have had a beaten path to thread on. As judges we are all aware of the following maxims; (i) “It is better to free nine guilty persons than to imprison one innocent man”.

                (ii) “ Justice must be done even if the heavens fall”.

 We may therefore need to remind and rededicate ourselves to these two maxims.

The most authoritative book on the subject of criminal procedure in this country is authored by Justice A.N.E. Amissah, an eminent Ghanaian Jurist who was a former Director of Public Prosecutions, a Justice of Appeal, and a Professor and Dean of Faculty of Law, University of Ghana, and Attorney General and Commissioner of Justice.

He taught Criminal Procedure for fifteen years at the University of Ghana.

This is what he said in the PREFACE of his book:

“Each year I have given the students a course based on our criminal procedure code, the basic and authoritative law on the subject in this country…..

each generation of students has been started off with a recital of a series of Acts and Decrees bearing upon criminal procedure. These together with the cases given have constituted the text for study by the students.”

I happen to belong to that generation of students privileged to have actually drunk from the well. I am therefore not prepared to desecrate and scandalised the memory of this eminent jurist.

One does not need to be clairvoyant or have for that matter much judicial experience to realize that the sentence imposed on the appellant was to discourage him from appealing against his conviction. But unfortunately for his detractors, they misjudged his belief in his innocence and his determination to fight for same. He is the type of traditional leader we need in this country.

Now, my lords, what happens to those whom the evidence clearly established to have deliberately perjured themselves in order to secure the conviction and possible imprisonment of an innocent person?

I have in mind witnesses like PW1and PW2 and Mr. J.K Edukwaw who sadly enough happens to be a public officer from whom a lot of integrity is expected. He allowed himself to be manipulated by both PW1 and PW2.

The least this court can do is to cite them to come and show cause why they should not be committed for perjury, which course of action I do recommend. This is to indicate the disapproval of this Court to witnesses who are in the habit of perjuring themselves in court, hoping to escape detection and punishment, that if the record of proceedings reveal on appeal that they have committed perjury in the trial court, they could still be brought up for perjury. I hope this precedent will bring sanity in the administration of justice in this country. My Lords I hope my position will be supported by you all. We can not be oblivious to the social problems confronting this country now. It is in one word, “ indiscipline” and in a few words “disrespect for the law” – from the top of the pyramid to its base. I think the courts must step in now to save this country from the fate of the biblical Sodom and Gomorra and send a clear message to the citizenry that the law may be an ass but certainly a respecter of none. We can talk of the Rule of Law only if we insist on equality before the law and not to encourage the culture of impunity developing in this country through the disrespect of court decisions.

In the preface to my opinion in this case I had indicated a consideration of the case of ZAKARIA VRS. NYIMANKAN (2003-4) SCGLR 1, where the Supreme Court ruled that it has no appellate jurisdiction from a decision of the Court of Appeal in an election petition field in the High Court as to whether a person has been validly elected as a member of Parliament or the seat of a member has become vacant.  The article which gives the right of appeal to the Court of Appeal is silent on whether a further right of appeal to the Supreme Court exists.  The court by 4:1 majority decided that there was no such further right of appeal because despite the general appellate jurisdiction granted the Supreme Court in article 137(1) of the Constitution, article 99(2) had expressly provided that a person aggrieved by the decision of the High Court might appeal to the Court of Appeal, only.  This conclusion is premised on the principle that when a right is given and a forum is provided for its ventilation it was to that forum that recourse must be made.  Since article 99 provided for only two courts for resolving election petitions- that is the High Court and the Court of Appeal it ended there.  Thus applying the well-known maxim of interpretation (GENERALIA SPECIALISBUS NON DEROGANT).  So that the special provision set out in article 99(2) which grants the right of appeal to the Court of Appeal should supercede the general appellate jurisdiction of the Supreme Court and since there is no inherent right of appeal in a party unless granted by statute then A FORTIORI the Constitution being silent on a further right of appeal to the Supreme Court no such right exists.  With much respect to my learned and respected colleagues I think this was a situation of what Shakespeare described in one of his plays as the devil citing the scriptures to suit his purpose.

I say so because there are well established and more valid principles of interpretation in favour of the Supreme Court having appellate jurisdiction in such matters.  For example, presumption of jurisdiction in favour of a Superior Court unless expressly denied; especially when the court is designated as the final appellate court of the land.  The argument about a party not having an inherent right of appeal unless granted by statute cannot hold either.  This is because it is expressly stated in article 131(a) that “an appeal shall lie from a judgment of the Court of Appeal to the Supreme Court” as of right in “a civil or criminal cause or matter”.

This is because even the majority speaking per Twum, J.S.C. held the ambivalent position that “admittedly, in a wider sense, it may be said that article 137(1)(a) should give a further right of appeal to the appellant”.  This reasoning to me means that although there is no express provision denying the Supreme Court appellate jurisdiction, this court decided, for unexplained reasons, to deny itself appellate jurisdiction in such matters.

            However my learned and respected sister Sophia Akuffo, J.S.C. in a sensible and practical approach hit the nail right on the head when she held “article 99(2) makes no mention of a further appeal to the Supreme Court … given the language of article 131(1) and (2) and the structure of the constitution, 1992 there was no need to do so; and the mere fact that no such mention is specifically made in article 99, cannot justify a conclusion that an appeal cannot lie from a decision of the Court of  Appeal in such matters”.

May I ask a hypothetical question: Can the Supreme Court then ever exercise the powers granted it under article 131(2) to grant special leave to appeal in matters involving election petitions or not, when there is no provision identifying the cases in which it can grant the special leave to appeal.  Or the framers have inserted this provision intending it not to be used in such cases even if the applicant can meet the standard set for the exercise of this special power reserved for the highest Court to prevent the failure of justice!

My Lords, I have read both the majority and minority judgments several times with both a legal and a literary mind and appreciated them on those lines.  While the opinion of my learned and respected sister Sophia Akuffo, J.S.C. flowed fluently and logically and ending with a natural conclusion, that of the majority was winding in an obvious discomfiture to justify their position.

My Lords, in the preamble to the constitution it is stated that we the sovereign people of Ghana in our quest to establish a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity; do affirm our commitment to the Principle that all powers of government spring from the sovereign will of the people; and also our belief in the principle of universal adult salvage.

Immediately after this declaration and affirmation, article (1) clause (1) of the Constitution, 1992 provides;

“1(1)    The sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution”.

The Judiciary is one of the three arms of government charged specifically with the custody and defence of the Constitution not only as a way of ensuring constitutionalism but also constitutional behaviour

Reading the preamble and article 1 clause (1) of our Constitution, 1992 together, I am firmly of the view that the most important right accorded the people is to vote at a general election to elect the president and members of Parliament.  It is the exercise of this right which is likely to result in one of the most important constitutional disputes which will end in the courts.  Although the constitution does not expressly deny the Supreme Court jurisdiction in an election petition as to whether a person has been validly elected as a member of Parliament or a seat has become vacant.  This court has regrettable decided that it has no appellate jurisdiction in such matters; thereby, in my humble view sending a sickening message to Ghanaians that we are not up to the task of being the custodians of constitutional governance.

My Lords, all this is in preparation of asking you to let us adopt the minority view as the correct position.  I think the correct approach to interpreting a document like a Constitution is not to read a particular article in isolation but read the document as a whole.  In this case one would have expected the majority to read article 99 not in isolation but at least together with the provisions of article 129 and 136 which come later and respectively provide for both the general and appellate jurisdictions of the Supreme Court.

This country is going into an election which can be described as cliff hangar elections.   We need to have the final say in such matters as the final appellate court of the land.  It was the ballot-box which shattered the peace and stability in Kenya.  With the greatest respect; my learned and respected sister Sophia Akuffo, J.S.C. was clearly a head ahead of the others.

            I am aware that in the case of THE NEW PATRIOTIC PARTY VRS. ATTORNEY-GENERAL (1993-94) 2 G.L.R. 35 @ page 49 Archer C.J. in discussing the jurisdiction of the Supreme Court said:

“The Constitution, 1992 gives the judiciary power to interpret and enforce the Constitution, 1992 and I do not think that this independence enables the Supreme Court to do what it likes by undertaking incursions into territory reserved for Parliament and the executive.  This court should not behave like an octopus stretching its eight tentacles here and there to grasp jurisdiction not constitutionally meant for it.  I hold that this court has no constitutional power to prevent the executive from proclaiming 31 December as a public holiday because the executive then would be applying existing law in PNDCL: 220 which can only be amended by Parliament”.

Archer, C.J. was applying the political question doctrine which is inherent in the doctrine of separation of powers underpinning our Constitution and I have no reason to fault him.  However, I hold the view that under the current dispensation and considering the constitutional structure, unless expressly or by necessary implication so stated, the Supreme Court is not only an octopus but a hydra as well.  My view is that a careful reading of the whole of article 136 the Supreme Court can hardly be said not to have appellate jurisdiction in any justiciable cause or matter, be it civil or criminal

I have come to this conclusion because of the dramatic change in language when it came to specifying the residuary appellate jurisdiction of the Supreme Court, in articule 129(4) which vests “the Supreme Court with all the powers, authority and jurisdiction vested in any court established by this constitution or any other law”.

In respect of the High Court and the Court of Appeal however their residuary appellate jurisdiction is limited to the court from which the appeal emanated.  See article 140(5) and 137(3) respectively.

K. P. KPEGAH

JUSTICE OF THE SUPREME COURT

ATUGUBA, J.S.C.

The facts of this case have been amply stated by my two learned brethren, Kpegah and Dr Date-Bah JJ.SC whose judgments I have been privileged to read beforehand.

In my view the question whether the appellant had a claim of right in this case is the critical issue. I agree with the views of my able brother Dr Justice Date-Bah J.S.C and Professor Henrietta Mensa-Bonsu in her article “The Defence of Mistake of Fact and Claim of Right: Matters Arising from Republic v. Kwadwo II” (1996-99) 20 U.G.L.J.,125 that the defence of claim of right is a complete defence to the relevant criminal charge and not a partial defence as was held by the Court of Appeal. In my view where an act is exempted from any punishment whatever it means that indulgence in it is not an offence. This is because the definition of criminal offence in the revised Laws of Ghana Vol. 3 section 1 of the Criminal Offences Act, Act 29 is as follows: ‘“criminal offence” has the meaning assigned to it by article 19 of the Constitution.’ The relevant part of article 19 is clause 11 which provides: “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”. (Emphasis supplied) Thus the crime must be defined and then a penalty is prescribed for it in a written law, except of course for contempt of court. The three things go together if a crime is to exist with respect to a given situation. This is made clearer by the definition of “offence” and “crime” respectively in the original text of the Criminal Code, 1960 section 1 as follows:

‘“crime” means any act punishable by death or imprisonment or fine;

“offence” has the same meaning as crime;’ Emphasis supplied.

It is clear that the concept of crime under the Code depends on the offence creating section which must contain a sanction so as to constitute a crime. The complete exemption from any sanction whatsoever disables the application of the notion of a crime to the conduct in question.

This type of exemption, in my view, is not an immunity provision but a complete removal of liability, ab initio, for the consequences of the act committed. An immunity is a shield, as it were, from prosecution. But the exemption from punishment means there is no punishment from which the beneficiary ought to be shielded. This is borne out by the fact that the highest courts of Ghana have consistently held that the exemption from punishment for ignorance or mistake of fact in good faith is a complete defence, where relevant to a crime charged. See Amartey v. The State (1964) GLR 256 SC, Nyameneba v. The State (1965) GLR 723, SC, Bonsu (alias Benjillo) v. The Republic (2000) SCGLR 112.

Obviously, the same legal situation ought to ensure in respect of claim of right. In my view claim of right is an exemption on grounds of ignorance of the law from punishment just as ignorance or mistake of fact in good faith is an exemption from punishment. This is covered by section 29(2) of Act 29 which provides:

“A person shall not, except as in this Code otherwise expressly provided, be exempt from liability to punishment for any act on the ground of ignorance that the act is prohibited by law.”

I do not claim to be exhaustively stating all the situations in which claim of right as an exception to the provision that ignorance of law is no defence, can be asserted, under the Criminal Offences Act, 1960  (Act 29). However, one instance is in the offence of stealing. Section 124 creates that offence and defines it in section 125. Section 120(1) in explaining what amounts to a dishonest  appropriation provides thus:

“An appropriation of a thing is dishonest if it is made with an intent to defraud or if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of some person for whom he is trustee or who is the owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent”

Another instance is provided in section 174(5) with regard to causing unlawful damage, thus:

“Notwithstanding anything contained in Part 1 as to mistake of law, a person shall not be liable to punishment in respect of his doing anything which, in good faith, he believes that he is entitled to do.” (Emphasis supplied)

Section 15 is a mere general definition of a claim of right.

In this case it is conceded by my brother Dr. Justice Date-Bah and Professor Henrietta Mensa-Bonsu that the appellant  wrongly held the view that he was entitled, on account of the peculiar history of the Fahiakobo land, to appropriate the revenue thereof. It is however said that he lost any claim of right in the circumstances because he was informed by the Lands Department that he has no such right. However the evidence clearly shows that there was disagreement over the issue between the Senior Accounts Officer of the Lands Department and its Revenue Officer in charge of Bekwai District. The former held the view that the appellant was not entitled thereto whilst the latter wrote a rejoinder on the issue to the former calling on him to review his stance in the following words: “I am therefore by this letter explaining the peculiar history covering the said land in question at Fahiakobo to enable you review your stand on this matter, please.” Emphasis supplied. The appellant received a copy of this letter. In such circumstances it cannot be said that the information from the Lands Department was of the kind which ought to dispel the appellant’s belief in his claim of right to the revenue of the Fahiakobo land.

The appellant’s claim is strengthened by the fact that upon receipt of the letter of the Senior Accounts Officer he went over to him and the Lands Officer and in his own words: “I came to the Lands Officer and explained everything to him. I heard nothing more.” (Emphasis supplied).

Nor was there any reply to the Revenue Officer’s demand for a review, aforementioned.

In these circumstances the appellant’s continued belief in his claim of right was not denuded of good faith but rather strengthened or at the worst restored to its status quo ante.

With the greatest respect to my able brother Dr. Date-Bah JSC and Professor Mensa-Bonsu, the case of Arthur v. The State (1961) GLR 316 S.C. relied on by them is entirely distinguishable from the facts of this case. Both the facts and the law in that case are sufficiently stated in the head note thereof:

“The appellant was originally the absolute owner of a certain property, but he lost all his right, title and interest therein when the property was sold by his mortgagee in exercise of his power of sale under the mortgage deed. The appellant further had given evidence in proceedings in the High Court as a result of which his mortgagee was ordered to convey the title to the property in question to one Ama Serwaa who had purchased it at a public auction.

Sometime after these events, the appellant purported to sell the property in question and obtained £G5,258 5s from the complainant by falsely representing that he was still the rightful owner. On appeal against conviction for fraud by false pretences it was argued on the appellant’s behalf that when he purported to transfer title in the said property to the claimant he acted under claim of right made in good faith.

Held: on a consideration of all the surrounding circumstances, the appellant could not have acted in good faith when he represented to the complainant that he was the absolute owner of the house. If a statement or representation is made, which to the knowledge of the person making it is false, and by this means money is obtained and the person who gives the money does so in reliance on the false statement or representation that is sufficient to support a charge of obtaining money by false pretences.”

It must be borne in mind that Van Lare J.S.C. who delivered the judgment of the then Supreme Court in that case also subsequently delivered the judgment of that Court in Commissioner of Police v. Anane (1962) 2GLR 107. As stated in the head note:

“A ordered 3,000 bags of cement from G.R.I. Ltd. at ten shillings a bag. A. arranged to sell part of this cement to the complainant who gave A. a cheque for £G 1,000 in part payment. A. paid the money to his suppliers and subsequently went to collect the cement, accompanied by a representative of the complainant. G.R.I Ltd could not meet the order in toto and delivered to A. only 1,004 bags. Of this amount, 690 bags were carted away by the complainant’s representative and A. sold the remaining 314 bags to other customers. The complainant felt he should have received all the cement that had so far been delivered and asked for the return of his money over and above the value of 690 bags. This not forthcoming, the complainant reported the matter to the police.

A was charged in the circuit court with the offence of stealing 314 bags of cement, described as the property of complainant. He was convicted. On appeal,

Held: A. acted throughout as an independent contractor. Ownership in the 314 bags of cement never passed to the complainant but remained in A. until he sold to other customers. There was no evidence of dishonest appropriation or fraud, and although A.’s conduct might have been detrimental to the complainant, in law it only amounted to a claim of right.”

At p 108 van Lare J.S.C. clearly states as follows:

“Although the legal ownership in a thing may be in dispute between two persons and if one of them nevertheless exercises acts of ownership in respect of the thing detrimental to the other, the law does not regard that transaction as amounting to a dishonest appropriation of that thing but rather as an exercise of a claim of right. Thus, as an illustration with regard to the explanation of dishonest appropriation, section 120 of our Criminal Code, 1960, gives the following: ‘(c) A., during a lawsuit with B. as to the right to certain goods, uses or sells some of the goods. Here A is not guilty of stealing, because, although A. believes that B would object, yet A. acts under a claim of right.” I think that this reasoning answers the question of claim of right in this case in the appellant’s favour.

For these reasons I, for my part, would allow this appeal and acquit and discharge the appellant.

W.A. ATUGUBA

JUSTICE OF THE SUPREME COURT

AKUFFO (MS), J.S.C.:

I have been privileged to read, previously, the opinion read by my esteemed brother Justice Atuguba, JSC., and, for the reasons he has succinctly stated therein, I am in full agreement with him that the appeal must succeed. I only wish to contribute briefly to the discussion on the defence of claim of right, as raised in this case.

Where a Defendant successfully raises a defence of claim of right, it operates as a complete defence to a criminal charge (unless the crime involved is one of strict liability) since it completely negates the requisite mens rea. As has been aptly noted by Prof. H.J.A.N. Mensa-Bonsu, in her article, “The Defence of Mistake of Fact and Claim of Right: Matters Arising from the Republic v. Kwadwo II” (Vol. 10 University of Ghana Law Journal, 1996-1999, page 125), it is a defence on its own and not dependent upon a mistake of fact or any other form of defence. However, since Section 15 of the Criminal Code, (now the Criminal Offences Act) 1960 (Act 29) states  that “A claim of right means a claim of right made in good faith”, absence of good faith would undermine and even negate such a defence. In my respectful view, the core issue in this appeal is, therefore, whether or not there is any reason why the defence of claim of right should not avail the Appellant herein.

I cannot agree with the view of my esteemed brother Dr. Date-Bah, JSC., that the Appellant’s good faith in asserting his claim of right is undermined by the fact that he knew, at least through his copy of the letter from the Senior Accounts Officer of the Lands Department, Exhibit D (addressed to the Fahiakobo Odikro and also copied to the Revenue Inspector at Bekwai), that the State was asserting an exclusive right to collect revenue from the lands in question, pursuant to section 17 of the Administration of  Lands Act, 1962 (Act 123). Since what constitutes good faith must be determined from the circumstances of each case, one cannot gloss over the contents of the Revenue Inspector’s letter to the said Accounts Officer, in reaction to his copy of the aforesaid letter to the Odikro. In that letter, which is also copied to the Appellant, the Revenue Inspector called upon the Accounts Officer to review his stand in the matter in view of the peculiar status of the land, and also the fact that the land had never been on the register of the District Lands Office for the purposes of Act 123. Is it any wonder then that the Appellant appears to have formed the impression that that there was a doubt, even within the Lands Department, about the correctness of the Accounts Officer’s position? Added to this are the facts that the practice whereby the Bekwaihene collected tribute from the Fahiakobo lands predated the Appellant’s ascension to the stool and the enactment of Act 123; it continued after the Act came into force and was done openly up until the Accounts Officer questioned it (which questioning was, effectively, disputed by the Revenue Inspector). In the circumstances, coupled with the fact that there was no response from the Accounts Officer to the Revenue Inspector’s request for a review, the Appellant was, in my view, justified in holding on to his belief that he had the right to continue to make the collections.

The defence of claim of right does not depend on the lawfulness of the belief, it just needs to be a demonstrably honest belief, and in my view, from the record, there was not sufficient evidence to indicate, let alone establish, that the Appellant’s claim of right was not made in good faith.  That being so, it is my humble view that there is no need to make any forays into any other areas of the law in order to arrive at a conclusion that this appeal succeeds.

S.O.B. AKUFFO (MS)

JUSTICE OF THE SUPREME COURT

DR. DATE-BAH, J.S.C:      The main facts of this case are undisputed and the main issues it raises are of law.  The accused, now Appellant, is the Omanhene of Bekwai.  The Appellant collected revenue from lands in Fahiakobo, which the Respondent says it was unlawful for him to collect because they were from stool lands and the Administrator of Stool Lands (or his agents) had the exclusive right to collect such revenue. Section 17(1) of the Administration of Lands Act, 1962 (Act 123) provides that:

“All revenue from lands subject to this Act shall be collected by the Minister and for that purpose all rights to receive and all remedies to recover that revenue shall vest in him and, subject to the exercise of any power of delegation conferred by this Act, no other person shall have power to give a good discharge for any liability in respect of the revenue or to exercise any such right or remedy.”

In addition, section 48(1) of the Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential Provisions) Law, 1982 (PNDCL 42) provides as follows:

“There shall be in the Secretariat of the Lands Commission an Administrator of Stool Lands who shall be responsible for –

(a)          the management and disbursement of all existing funds held on account of stools by the Government;

(b)          the establishment of a stool land account for each stool into which shall be paid all rents, dues, royalties, revenues or other payments whether in the nature of income or capital from stool lands;

(c)          the collection of all such rents, dues, royalties, revenues or other payments whether in the nature of income or capital and to account for them to the beneficiaries specified under subsection (2) of this section.”

The Appellant contended that because of the history of the Fahiakobo lands he was entitled to collect revenues from those lands.  This history was in short as follows: historically, in Bekwai the sub-stools are ordinarily in charge of stool land.  However, in the case of Fahiakobo, as a result of the settlement of a boundary dispute between two sub-stools of Bekwai over certain lands, it was decided that the Bekwai Stool should take direct charge of the Fahiakobo lands, since these lands constituted a small “no man’s land” between the sub-stools after the demarcation of the boundaries between the two contending sub-stools.  The Omanhene therefore administers the lands through an Odikro.  The trial Circuit Judge found that the Appellant had conceded that the Fahiakobo lands had not lost their identity as stool lands. Indeed, the Appellant expressly conceded this in his cross-examination.

The trial judge held that though the allodial title in the Fahiakobo lands was vested in the Bekwai Stool, the Administration of Stool Lands Act 1962 (Act 123) vested powers of administration of the lands in the Administrator of Stool Lands.  He found as facts, and there was evidence on record to support his findings, that the Fahiakobo lands are not personal or stool family property of the Appellant, but that they are stool lands attached to the Omanhene and not to any of the sub-chiefs.  The Appellant was enstooled as Bekwaihene in 1969 and had since then, through his agents, collected revenue from the stranger farmers on the Fahiakobo lands.  In spite of the coming into force of the Administration of Lands Act 1962, the Administrator of Stool Lands did not collect the revenues from the Fahiakobo lands, since the Appellant, and his predecessors, never declared the lands to the Administrator as stool lands.

On 24^th August 1987, the Appellant was arrainged before His Honour Judge Quaye, in the Circuit Court, Kumasi on 13 counts of stealing contrary to section 124(1) of the Criminal Code, 1960.  The Appellant pleaded not guilty to all the counts, was granted bail, and his trial commenced in September 1987.  The Appellant admitted collecting tributes from the stranger farmers.  His defence was that he was by custom entitled to collect these tributes and that his predecessors in office had collected these tributes with impunity. The Appellant was nevertheless convicted by the Circuit Court on 30^th September 1988 and sentenced to a 50,000 cedis fine or, in default, two years IHL.  From this conviction he appealed to the High Court.  The High Court allowed the appeal on 15^th January 1990 and set aside the Appellant’s conviction and sentence.  The Republic in turn appealed against that verdict to the Court of Appeal which allowed the appeal of the Republic.  The judgment of the Court of Appeal is reported in [1991] 1 GLR 1.  It is against the judgment of the Court of Appeal that the Appellant has appealed to this Court.

The grounds of appeal filed by the Appellant are as follows:

“GROUND 1.

The Court of Appeal erred when it held that the Secretary of Lands Commission through the Administration of Stool Lands had the monopoly for the collection of revenue specified under section 46(1) of PNDC Law 42 and that Fahiakobo Lands are under the Management of the Stool Lands Commission Secretariat.

GROUND 2.

The  Court of Appeal misdirected itself when it held that the collection of Moneys by the Appellant was unlawful.

GROUND 3.

The Complainants Nana Kwaabena Gu III and Nana Ntiamoah Amankuo Ababio the Twafohene and Akwamuhene respectively lacked capacity to lodge the criminal complaint against the Appellant, the Paramount Chief of Bekwai.

GROUND 4.

The Court of Appeal misdirected itself when it held inter alia that the issue whether or not the Appellant was entitled to keep for himself the revenue from Fahiakobo Lands to the exclusion of the Stool Lands Commission was question of Law.

GROUND 5.

The Court of Appeal erred in law when it held that claim of right can only be resorted to when one had pleaded guilty.”

The Appellant filed a Written Submission on 5^th April 2000 and the Respondent filed a Statement of Case on 12^th June 2003.  They both relied on these written submissions in their oral argument before the Supreme Court on 18^th November 2003. After this first oral argument before the Court and after judgment had been reserved, the Court decided to invite further submissions from counsel on whether the particulars of the offence of stealing set out in the charge sheet were sufficient in law to sustain the convictions on a charge of stealing.  Counsel for the Respondent, accordingly, filed further submissions on this issue on 11^th March 2004.  Counsel for the Appellant, however, chose not to file any further submissions, in response to the Court’s invitation.

The grounds of appeal filed by the Appellant will be dealt with first, before considering the additional issue addressed by the Respondent in response to the request by the Court.

Under ground one, the passage from the judgment of the Court of Appeal, of which the Appellant complained, was the following one, delivered by Ofori-Boateng JA, as he then was, now of recent blessed memory:

“To my mind, it is indisputable that the management of stool lands and the collection of moneys itemised under section 48(1)( c ) of PNDCL 42 is the monopoly of the Secretariat of the Lands Commission through the Administrator of Stool Lands.

      It is not in dispute that Fahiakobo lands are stool lands; therefore despite the history behind how Fahiakobo became part of the stool lands of the respondent, those lands are under the management of the Stool Lands Commission Secretariat, and it is only the Administrator of Stool Lands or his duly appointed agent who can lawfully collect revenue from stranger farmers on those stool lands, in accordance with section 48(1)( c ) of PNDCL 42.”

To my mind, this is an unexceptionable statement of the law and the Appellant’s efforts to impugn it fail.  The Appellant argues that stool lands are no longer vested in the President in trust for the people and that the allodial ownership is vested in the stool.  The learned trial Circuit judge acknowledged as much and there is nothing in the passage quoted above which suggests otherwise.  The Appellant then proceeds to contend that the Fahiakobo Lands belonged to the Appellant as the Bekwaihene personally and that therefore the Appellant was not accountable to the Stool Lands Commission within the intendment of section 17 of Act 123.  This argument flies in the face of the facts found by the learned trial judge and confirmed by the High Court and the Court of Appeal and is not supported by the evidence.  It is accordingly dismissed.

The Appellant argues, under ground 2, that the Court of Appeal misdirected itself when it held that the collection of moneys by the Appellant was unlawful.  He contends that he did not collect the moneys with the knowledge that they belonged to the Lands Commission Secretariat.  He submits that the appropriation in this case was not dishonest and that the Appellant believed in all sincerity that he was entitled to the moneys as of right.  So certain was the Appellant in his belief, in the light of the history of Fahiakobo, that he was entitled to the revenue that he even boldly issued receipts for the money he collected. The Appellant argues in his Written Submission that when he ignored the letter written by the Stool Lands Commission warning him to desist from further collection of the revenue from the lands, the matter should have been referred to the Minister for Lands who should have consulted the Traditional Council for the determination of the issue in accordance with section 3 of Act 123.  Alternatively, the administrator should have invoked section 4 of Act 123, which deals with the determination of interest in lands in a particular traditional area.  The Appellant contended that the prosecution did not offer any evidence in proof of ownership being in the Stool Lands Commission.  Accordingly, he concludes that the prosecution failed to prove intent to steal beyond reasonable doubt moneys that did not belong to the Appellant.

This argument, it seems to me, confuses ownership of the land with ownership of the revenues from the land.  Fahiakobo lands were undoubtedly owned by the Bekwai Stool.  Yet, because of statutory intervention, the owner of the lands could not enjoy the revenue from the lands without interference.  Act 123 had imposed a regime of management of the revenue which made it unlawful for the owner of the land to collect the revenue from the land.  The revenue had to be paid into the coffers of the Administrator of Stool Lands for distribution in accordance with the statutory prescription.  The Bekwai Stool would not be the sole beneficiary of such distribution.  Accordingly, any interception by the Omanhene of revenues intended for such distribution amounted to unlawful collection of such revenues.

Under this ground also, the Appellant contended that the prosecution had failed to prove any dishonest appropriation.  Section 120 of the Criminal Code, 1960 (Act 29) explains dishonest appropriation in the following terms:

“120 (1)    An appropriation of a thing is dishonest if it is made with an intent to defraud or if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of some person for whom he is trustee or who is owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent.”

This provision appears to establish three disjunctive criteria for determining dishonest appropriation.  The first criterion is that of an appropriation made with an intent to defraud.  The second is an appropriation made without a claim of right and with a knowledge or belief that it is without the consent of the owner of the thing or of the beneficiary for whom the appropriator is a trustee.  The third criterion is where the appropriation, if known to the owner or the beneficiary of the trust, would be without his consent.  If one recalls that the subject-matter of the appropriation in this case is the revenue from the Fahiakobo Lands, it is quite clear that, if the Appellant’s claim of right defence fails, then there was a dishonest appropriation of the revenues since the Appellant collected the revenues without the consent of the Administrator of Stool Lands or the beneficiaries on whose behalf the Administrator of Stool Lands is authorised by statute to collect the revenues.  It is important to emphasise that the Appellant’s Stool was not the owner of the revenues, though the owner of the lands.

That brings me to the matter of the Appellant’s claim of right.  Section 15 of the Criminal Code 1960 provides that:  “A claim of right means a claim of right in good faith.”  Clearly, this is no codification and meaning can be given to the provision only by resorting to the common law.  The following passage from Stephen’s History of the Criminal Law of England, which was quoted with approval in R v Berhhard (1938) 26 Cr. App. R. 137; [1938] 2 KB 264, provides an insight into the common law concept of claim of right:

“Fraud is inconsistent with a claim of right made in good faith to do the act complained of.  A man who takes possession of property which he really believes to be his own does not take it fraudulently, however unfounded his claim may be.  This, if not the only, is nearly the only case in which ignorance of the law affects the legal character of acts done under its influence.” (Vol. III, p. 124).

From this formulation of a claim of right, it is patent that good faith is of the essence of the defence.   The accused has a valid defence to a criminal charge where he honestly but mistakenly believes that he is entitled to do an act which is an actus reus.  Doubt can, however, be cast on the honesty of the belief, or such honesty may be rebutted, by evidence of information known to the accused which should have persuaded him to correct his allegedly mistaken view.  (See Mensa-Bonsu, “The Defence of Mistake of Fact and Claim of Right.  Matters Arising from Republic v Kwadwo II” (1996-99) 20 UGLJ 125 at p. 135.) The Appellant here clearly believed that he was entitled to collect revenues from the Fahiakobo Lands. However, because of the evidence on record that he received a warning issued on behalf of the Stool Lands Secretariat, he cannot prove his good faith, in the light of that corrective information.

PW8, John Kwadwo Edukwaw, a Senior Accounts Officer of the Lands Department, gave evidence that he wrote a letter to the Fahiakobo Odikro, with copies to Nana Bekwaihene and the Revenue Officer at Bekwai, urging him to desist from unlawful collection of stool land revenue.  The letter which was admitted into evidence as Exhibit D, was dated 10^th September 1986 and was in the following terms:

“Dear Nana

ILLEGAL COLLECTION OF STOOL

LANDS REVENUE

      I am reliably informed that you have been collecting Stool Lands revenue from the Tenant Farmers at Fahiakobo area without issuing them with receipts.  This is illegal collection you are making.  I want to make it clear to you that the authorised person to receive Stool Lands revenue and issue receipt is a Lands Commission Secretariat official.

      It is an offence for any Traditional ruler to collect Stool Lands revenue.  Your unpatriotic action is depriving the Government, District and Traditional Councils from getting their share of the Stool Lands revenue in your area.

      I am therefore advising you to desist from such an unlawful collection, otherwise you will have cause to regret.

      I am by copy of this letter, informing Nana Bekwaihene about your activities.  After this letter, if you continue to do the collection you will be reported to the appropriate quarters.

      Please be warned.”

In his evidence in chief and also under cross-examination, the Appellant acknowledged receipt of his copy of this letter.  In his evidence in chief he said:

“In my evidence on 4^th March, I admitted receiving a copy of a letter from the Regional Lands Commission.  Apart from that I have not received another.  I received a copy of the reply to that letter by the Revenue Officer in charge of Bekwai.”

 The following are extracts from his cross-examination:

“Q.       When you received the letter from the Regional Lands Commission warning you to desist from collecting revenue, what did you do

A.   I took my car and came to see one Mr. Tachie Mensah and Mr. Adu Kwao the Regional Lands Officer and Regional Accountant respectively.  I explained to them that it was a custom that I had come to meet and that of all the Traditional area where they pay tribute, that area is excluded. …”

Later in the cross-examination, there is this further exchange:

“Q.       When the Lands Department came to inspect the Bekwai Stool Lands because of your concealment, you concealed the evidence of Fahiakobo Lands so that it would for ever be your haven.

A.        That is not correct.  The Act was enacted in 1962 when I had not even been enstooled,  I was enstooled in 1969 when the Register had already been prepared.

Q.        When you received the letter did you petition the Minister of Lands that Fahiakobo Lands is a Stool Land out of Stool Lands and therefore Government should not collect revenue from there.

A.        No I did not.  The Lands Department wrote to the Fahiakobo Odikro and I was served with a copy so also was the District Lands Officer.  On receipt of my copy I came to the Lands Officer and explained everything to him.  I heard nothing more.

Q.        I put it to you that you are not speaking the truth.

A.        I do not agree with you.

Q.        When you received the letter, you called the Revenue Collector at Bekwai and fed him your family history and instructed him to write that to his boss in Kumasi.

A.        That is not correct.

Q.        You deliberately failed to do anything about the warning letter apart from putting in circulation these spurious receipts.

A.        That is not correct.”

The letter of the Revenue Collector at Bekwai referred to in the above passage was admitted into evidence as an Exhibit.  It was dated 4^th December 1986 and addressed to the Regional Lands Secretary. It was in the following terms:

“Dear Sir,

ILLEGAL COLLECTION OF STOOL LANDS REVENUE

      I humbly beg to refer to your letter No. AC/T.5/231 dated 10^th September, 1986, addressed to the Odikro of Fahiakobo and copied to this office and Nana Bekwaihene and wish to make the following comments: -

      That investigations conducted by this office in connection with the above-quoted subject reveals that, the Fahiakobo land in question is under Bekwai Traditional Council but the said land in question has never been on the Stranger Cocoa Farmers Tribute register in this Office.

      That, investigations further reveals that, the Omanhene of Bekwai took over that portion of land in question at Fahiakobo personally as a result of land disputes which erupted between two of his sub-chiefs namely Twafohene and Jacobuhene who were sharing common boundary on the said land in question due to misunderstanding.

      That, the Omanhene of Bekwai Traditional Council has since that time taken direct control and has been using the Odikro of Fahiakobo as the Caretaker of the said land in question to collect cocoa tribute and any land revenue on the said land in question and directly to him (Nana Bekwaihene), ever since or before the enactment of the Administration of Stool Lands Act of 1962.

      I am therefore by this letter explaining the peculiar history covering the said land in question at Fahiakobo to enable you review your stand on this matter, please.”

In the light of the contents of the two letters reproduced above, the Appellant could not claim ignorance of the Republic’s assertion of rights over the Fahiokobo lands and any claim he had to good faith is undermined. Where it is clear upon a consideration of all the surrounding circumstances that an accused could not have acted in good faith, the defence of claim of right will be rejected. (Per Van Lare JSC in Arthur v The State [1961] GLR 316 at p. 317). In my view, therefore the Appellant’s defence of claim of right fails.

In the Court of Appeal, Ofori-Boateng JA, as he then was, similarly dismissed the Appellant’s claim of right as a defence.  In doing so, however, he applied an analysis which has been demonstrated by Prof. Mensa-Bonsu of Legon to pose problems for some of the fundamental principles of the common law of crime codified in this jurisdiction.  (See Mensa-Bonsu supra).  The root of the problem raised by the judgment of the learned judge was his location of the defence of claim of right in section 29 of the Criminal Code.  This is what he said:

“Claim of right in good faith appears to be a sound defence if the act was done mistakenly but the mistake was an honest one.  I think that defence is deceptive and should be used extremely carefully.  The defence is in section 29 of Act 29.

“29     (1)      A person shall not be punished for any act which, by reason of ignorance or mistake of fact in good faith, he believes to be lawful.

(2)        A person shall not, except as in this Code otherwise expressly provided, be exempt from liability to punishment for any act on the ground of ignorance that the act is prohibited by law.”

Section 29 of Act 29, as I have always understood it, draws a rigid line between a conviction and punishment.  It is not a shield against conviction.  It only provides an occasion when a person who has been found guilty will nevertheless be exempted from punishment, by being given absolute discharge, such as “cautioned and discharged” or “bound over to be of good behaviour,” as none of these pronouncements count as punishment under section 294 of Act 30, the provision that defines what constitutes punishment under our laws.  If section 29 is to become a defence it means the respondent has to agree to be guilty of stealing but is pleading to be exempted from punishment because in good faith he thought, as all his predecessors had violated the stool lands revenue laws without any complaints from the State, as of right, he also could collect the revenues from Fahiokobo for himself and refuse to pay them to the Administrator of Stool Lands.”

With respect, section 29 does not state or contain the rule on claim of right.  That rule, as already indicated, is to be elicited from the common law principles underlying our Criminal Code.  Rather, section 29 restates two fundamental principles of our criminal law, namely the effect of mistake of fact and mistake of law on criminal liability.  While these two principles shed some light on the concept of claim of right, they are not an embodiment of it.  It was in the course of applying the principle of mistake of fact that Ofori-Boateng JA formulated a version of it that is at odds with the position in other common law jurisdictions.

At common law, mistake of fact, where applicable, is a complete defence since it is regarded as negativing mens rea.  Thus in the English case of DPP v Morgan [1975] 2 All ER 347, the House of Lords held that a mistake of fact which precludes mens rea negatives liability, even though the mistake is an unreasonable one. It is this broad principle which is, in my view, intended to be embodied in section 29(1) of the Criminal Code, although the language of the provision lends itself to the literal interpretation which was put on it by Ofori-Boateng JA, focussing unduly on the word “punished”.  However, given our knowledge of the common law principle, a purposive interpretation of the provision is called for in order not to undermine one of the fundamental principles of our criminal law.  Accordingly, I agree with the critique of Prof. Mensa-Bonsu ( supra at p. 132) that:

“The view of the Court of Appeal in Republic v Kwadwo II that the defence of mistake of fact is a partial defence is patently incorrect because, as has been established above, mistake/ignorance of fact is a complete defence.  Since it negatives mens rea, it cannot be only a partial defence; otherwise, it would be tantamount to convicting a person for an act without proof of the prohibited mental state.”

On this issue, Nyameneba v The State [1965] GLR 723 is to be preferred to the view of Ofori-Boateng JA (as he then was).  In that case, Ollennu JSC, delivering the judgment of the Supreme Court of the First Republic, roundly reaffirmed, of section 29 of Act 29, that:  “These subsections of the section put into a statutory form the general principle of law that while ignorance of the law is no defence, ignorance of fact is a complete defence.”

I will deal next with the third ground of appeal.  The Appellant contended under this ground that the complainants, his sub-chiefs, lacked capacity to lodge a criminal complaint against him.  He contended that it is settled law that an occupant of a Stool cannot be called upon by his subjects to account during his reign as a Chief.  This contention is patently untenable.  No question of capacity arises when one is reporting a crime to the police.  As the Respondent points out in its Statement of Case, the two sub-chiefs were not initiating a civil action against the Bekwaihene for an account.  Being citizens of Ghana they have the right to report a felony to the law enforcement agencies.  This ground of appeal can thus be summarily dismissed.

Under ground four, the Appellant argues that the Court of Appeal erred in holding that the issue of whether or not the Appellant was entitled to keep for himself the revenue from Fahiakobo Lands to the exclusion of the Stool Lands Commission was a question of law.  For my part, I do not see that much turns on whether this issue is characterised as one of law or of fact. Indeed, I consider it to be an issue of both fact and law. In any case, the statement complained of was made by Ofori-Boateng JA in the course of formulating his doctrine of partial defence under section 29 of Act 29, on which I have already expressed my doubts.  This does not mean that this ground enables the Appellant to succeed in  his appeal since it will be recalled that I have already come to the conclusion that the Appellant could not validly plead claim of right, because of his lack of good faith.  I would thus dismiss this ground of appeal as being without merit.

Next, under ground five, the Appellant contends that the Court of Appeal erred in law when it held that a claim of right can only be resorted to when one pleaded guilty.  I agree with the Appellant that the Court of Appeal erred on this matter.  A claim of right, if it succeeds, results in a full defence against conviction.  Accordingly, it is incorrect to assert that a claim of right can only be resorted to by one who has pleaded guilty.  As the Court of Criminal Appeal said in R v Berhhard [1938] 2 KB 264 at p. 270:  “… a person has a claim of right …if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact.” In spite of this error of law, however, the Court of Appeal was still right to reject the Appellant’s claim of right since, as already explained above, the Appellant failed to satisfy the element of good faith.

Finally, let me address the issue of whether the charge sheet disclosed sufficient particulars to sustain the convictions.  Section 112(1) of the Criminal Procedure Code, 1960 (Act 30) governs this issue and it provides as follows:

“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.”

As already stated earlier, the Appellant was charged with 13 counts of stealing with the counts typically reading as follows:

“1^st Count

Statement of Offence

Stealing:  Section 124(1) of Act 29/60

Particulars of Offence

NANA OSEI KWADWO II:        Bekwaihene:            On or about the 13^th day of December, 1986 at Fahiakobo in the Ashanti Circuit and within the jurisdiction of this Court did illegally collect c300.00 from one Abena Adomaa as land tribute without the consent and knowledge of the Lands Commission Secretariat.

2^nd Count

Statement of Offence

Stealing:  Section 124(1) of Act 29/60

Particulars of Offence

NANA OSEI KWADWO II;        Bekwaihene:            On or about the 13^th day of December 1986 at Fahiakobo in the Ashanti Circuit and within the jurisdiction of this Court did illegally collect c2,400.00 from one J.C. Frimpong as land tribute without the consent and knowledge of the Lands Commission Secretariat.”

These first two counts are illustrative of the other eleven counts.  The issue that this Court suo motu wanted to examine was whether these particulars were sufficient to sustain a charge of stealing.

In a Further Submission by the Respondent filed in response to this Court’s invitation, the Respondent sought to address the above issue as follows:

“The essential element which must be indicated by the particulars is whether the appropriation is dishonest.  The operative words therefore in the particulars are

(a)          Illegal collection of monies

(b)          Without the consent and knowledge of the Lands Commission Secretariat owner ad interim.

(a)  Illegal collection, in relating it to the facts and the law means the appellant has no claim of right to collect the money and he did it without the consent of the owner.

(b)  He collected the monies without the knowledge of the owner if he did the collection of the monies without the owner’s consent but gave the monies to the owner he would have done so with the knowledge of the Owner, but where even the owner did not know such collections took place it means he pocketed the monies and up to the time he was informed about the objection of the owner he had not accounted for the monies.

Even though the inclusion of pocketing of the monies after illegally collecting them contained in the facts given would have made a world of difference, this can be readily ascertain from the imports of the words illegal collection of monies, without the consent and knowledge of the owner Ad interim ie the Lands Commission Secretariat implying stealing of the monies collected.  This viewed against the background facts of which the appellant had been well apprised endorsed by exhibit 1 on page 139 of the record of proceedings, the appellant definitely knew that he was facing stealing charge.

            The appellant has therefore been given sufficient information by the facts in the particulars to enable him know the nature of the charge he was facing.

            The words dishonest appropriation is highly technical to an ordinary person, section 112(4) required that the necessary particulars of the offence shall be set out in ordinary language in which technical terms shall not be required.

            The omission of dishonest appropriate (sic) which is said to be technical from the particulars should not therefore render fundamentally defective the charge sheet.”

Though, the Appellant filed no submissions on this issue, in the appeal before the High Court, the learned judge gave consideration to the adequacy of the particulars of the charge, to which it is useful for this Court to refer.  He said (at p. 115 of the Record):  “But illegal collection of the revenues does not, in my view, amount to stealing.  The particulars of the offences show that the appellant merely illegally collected the revenues, and not that he stole them.”  This was one of the reasons the learned High Court judge relied on in quashing the conviction of the accused.

I disagree with the learned High Court judge on this and I consider that the particulars given on the charge sheet are sufficient to sustain the conviction of stealing.  According to section 125 of the Criminal Code:  “A person steals if he dishonestly appropriates a thing of which he is not the owner.”  In Ampah v The Republic [1977] 2 GLR 175, Azu Crabbe C.J., delivering the judgment of the Court of Appeal, held that to establish to establish the offence of stealing, the prosecution were required to prove only the three elements of:

“(1) dishonesty; (ii) appropriation; and (iii) property belonging to another person:  see Republic v Halm and Ayeh-Kumi, Court of Appeal (full bench), 7 August 1969, unreported; digested in (1969) C.C. 155 and also Ampah v The Republic [1976] 1 GLR 403.

      In the opinion of this court it is the statute creating and defining the offence that determines the ingredients of the offence which are to be proved.  This court agrees with the observations of Abban J. in Ampah v The Republic (supra) at p. 412 that:  “If these three essential elements are proved to the satisfaction of the court, the court will be bound to convict unless the accused is able to put forward some defence or explanation which ‘can cast a reasonable doubt on the case for the prosecution.”

The definition of dishonest appropriation has already been set out in this judgment and is to be found in section 120 of the Code.  Because of the three disjunctive elements in that definition (identified supra), there is no need to give particulars of an intent to defraud, if particulars are given of an appropriation with knowledge that it is without the consent of the owner of the thing appropriated.  Support for this proposition is provided by the judgment of Abban J. (as he then was) in Ampah v The Republic (1976) (supra), although in the view of the learned judge the disjunctive elements in section 120 are two and not three.  This is what he said, in response to the issue raised by the accused in that case as to whether it was necessary to prove both lack of consent of the owner and intent to defraud:

“I should observe that there are four “ors” in the section. The submission of learned counsel for the appellants that the prosecution must prove both “intent to defraud” and “lack of consent of the owner” in order to satisfy the requirement of dishonest appropriation can be tenable only if the word “or” especially the first one, in section 120(1) can be construed to mean “and”.  But such a construction, in my view, will defeat the whole purpose of the section and will also do violence to the plain language and spirit of the section.  The “or” which occurs in the section was used not conjunctively but disjunctively; and reading the section as a whole, it seems to me that the legislature intended the “or” in this particular section to have its ordinary meaning as a conjunction introducing the second of the two alternatives, and should not be construed to mean “and”; it means either the one or the other and not both.  That is, the section postulates two different situations any one of which, if proved, can constitute dishonest appropriation within the meaning of section 120(1) of the Criminal Code, 1960 (Act 29), and any attempt to convert the “or” into “and” will be, to say the least, going to the extreme limit of interpretation.

It can therefore be said that section 120(1) of the Criminal Code, 1960 (Act 29), contemplates two kinds or types of dishonest appropriation.  The first type is where the appropriation is made with intent to defraud; and the second type is where the appropriation is made without a claim of right and without the consent of the owner.  That is, an appropriation with intent to defraud can amount to dishonest appropriation; and that an appropriation without a claim of right and without the consent of the owner is just an alternative definition which the section gives to the term “dishonest appropriation.””

To my mind, an imputation of illegal collection of a specified sum of money without the consent of the Lands Commission Secretariat is equivalent to an imputation of dishonest appropriation.  Even if it were to be contended that only actual use of the money would suffice and that illegal collection does not necessarily imply illegal use, the evidence actually adduced at the trial would cure this deficiency, since the Appellant admitted using the tributes collected.  In any case, in my view, appropriation means acting, in relation to the thing appropriated, inconsistently with the rights of the owner.  This understanding of appropriation is given statutory support by section 122(2) of the Criminal Code, 1960, which provides as follows:

“An appropriation of a thing in any other case means any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that some person may be deprived of the benefit of his ownership, or of the benefit of his right or interest in the thing, or in its value or proceeds, or any part thereof.”

(The expression  “any other case” is meant to refer back to section 122(1) which deals with appropriation by a trustee, which we need not dwell on in the context of this case.)

Illegal collection, on the facts of this case, would fall squarely within this concept of appropriation.  I do not think that it is necessary for the particulars to recite, ritualistically, that the property has been dishonestly appropriated, if words to similar effect are used.  I accordingly accept the contention of the Respondent that the Appellant was sufficiently informed of the nature of the charge against him by the particulars in the charge sheet and that, even if there were any defect, it was not fundamental and would have been cured by the evidence given at the trial.  No miscarriage of justice has occurred.

For all these reasons, I do not think this appeal has any merit and I would accordingly dismiss it.

DR. S. K.  DATE-BAH

JUSTICE OF THE SUPREME COURT

G. T. WOOD (MRS)

                                                                           CHIEF JUSTICE

COUNSEL:

Sam Woode for the Appellant.

Eric Francis Amison Agbolosu Chief State Attorney.

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