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THE STATE v. AHMAD


  • New
  • 1961-02-13
  • HIGH COURT
  • GLR 96-99
  • Print

APALOO, J.


Summary

Criminal law?-Intentional libel?-Negligent libel?-Criminal Code, 1960 (Act 29), s. 112.

Headnotes

Accused was the complainant in a criminal case in which six people were charged with assaulting him on the 23rd April, 1960, at the instigation of the chief of Keniago, a village near Bekwai, in Ashanti. After several adjournments the district magistrate, Okyere-Darko, began the hearing of the assault case at Bekwai, on the 4th June, 1960. After the evidence of the complainant, accused herein, the district magistrate dismissed the charge and discharged the accused on the excuse that the complainant?'s evidence did not disclose any prima facie case against the six accused persons. The complainant, feeling rather humiliated by the summary manner in which his assailants had been let off addressed a petition to the Attorney-General, Accra, wherein he alleged that the district magistrate had, prior to the hearing of the assault case been corrupted by the Keniago chief, the person who, he alleged, instigated the assault on him.The petition read as follows:?-?"To the Attorney-General, Law Office, Accra.Greetings.The humble Petition of Yakubu Ahmad praying the Attorney-General to take up the Criminal Issue against Keniagohene Nana Kwame Yamoah Ababio and his stool subjects involved as below under a charge of assault the Chief himself for aiding and abetting which occurred on 23rd day of April, 1960, at Keniago as the case was not legally dealt with by both the Police Inspector and the District Magistrate at Bekwai, Ashanti, due to unlawful influence of corruption by the Chief.Showeth:?-1. That your humble Petitioner arrived on that material day namely the 23rd day of April, 1960, when the polling for election of our President as well as the acceptance for republican constitution for the country and as a staunch member of the Government Party (C.P.P.) it was incumbent on me to come to Keniago from a village to cast my vote and as usual custom I went to Ahenfie to greet the Chief of Keniago where on delivering my mission the Chief said to me that I had obtained bribe of G50 from Nkawiehene through Mr. Kufuor a timber contractor by way of surrendering all timber agreements belonging to Keniago Stool for evidence in a land case between Mr. Kufuor and Mr. Peprah both timber contractors. Upon this declaration I was about to challenge the accusation when all of a sudden he ordered his Stool subjects around him to assault me and they fell on me with severe blows. Being on the floor, I particularly saw Kojo Fodwuor, alias Amoah Kojo Duodo, Kwame Bogyagu, Yaw Berkwain, Kwabena Afriyea, Kojo Boateng, Kofi Mako and Kwame Dapaah (motor driver). These were the particular people I observed assaulting me while on the floor. In fact, I was perplexed under agony as to who must have raised me from the floor or in other words the assault was stopped; the chief ordered his people to march me out of the Ahenfie to my lodging in order to bring all his papers because I had hitherto been [p.97] the Stool Clerk of Keniago, and while leaving the place I asked Mr. George Owusu of Kwabenaso who was also at the assembly to accompany me for fear of further assault on the way to my lodging; he took all papers from me without giving me a receipt thereof. After my voting I proceeded to Kumasi to lodge my complaint with.2. After my voting I proceeded to Kumasi to lodge my complaint with the Police and then to the Hospital for medical attendance as I was feeling serious pains in the body and after examination, I was offered a medical certificate and the Police also gave me a letter to the Bekwai Police but here my affidavit sworn at Kumasi to support my certificate was not taken by the Police to Court for before my return to Bekwai the Chief had interviewed the Bekwai Police Inspector and necessary arrangement made by way of corrupting him and the C.I.D. Inspector who wrote my statement. Later, the Chief said in Keniago that the Police will not call my witnesses and behold when the case was called I was not permitted to call any witness but before the Chief had been to the Magistrate at Kumasi and corrupted him, for having relatives with his servants, I was given a hint thereof. Thus the whole affair was corrupt, hence the Police failed to call for C.I.D. to give evidence as the party who took my statement, and the Magistrate too failed to stress the art of the prosecution other than that there is no case therefore he discharged the subjects whose names were mentioned by me, to the amazement of all present. Therefore I humbly pray you, Sir, to reopen the case by means of a Law Officer from Accra to proceed to deal with necessary investigation, and as in duty bound your humble petition will ever pray.Dated at Kumasi this 9th day of June, 1960.(Sgd.) Y. Ahmad.?"This petition was referred to the police for investigation as to whether the allegations of bribery and corruption were true. As a result of the investigation the author, accused herein, was arrested and charged with the criminal offence of intentional libel, contrary to section 112 of the Criminal Code, 1960, (Act. 29).The trial was with the aid of three assessors. They all found the accused not guilty of the offence charged, nor of negligent libel. The judge disagreed with them and found the accused guilty of negligent libel.

Judgement

The accused is charged with the offence of intentional libel. In the main, the facts of this case are not in dispute. On the 23rd April, 1960, the accused went from his cottage to his village at Keniago to vote. He called on the Keniagohene to do courtesy. He claims that on the orders of the Keniagohene, he was assaulted. He reported this to the central police at Kumasi on the 28th April. The police recorded this complaint in the station diary and sent the accused to the hospital. He was there [p.98] examined by a doctor and was given a medical certificate. When he took this to the central police, Kumasi, he was given an extract of the report and was asked to take this together with the medical certificate to the Bekwai police. The reason for this is that the alleged offence was committed within the jurisdiction of the Bekwai police.

The accused says he took these papers to the Bekwai police on the 4th May, 1960, and handed them to Inspector Nicol. He in turn handed them to Detective Inspector Duncan to whom the accused says he was referred. Accused says the police were friendly and helpful. The Bekwai police handled this matter with admirable promptitude. On the very next day, both Inspectors Nicol and Duncan went with the accused to Keniago village. The accused there pointed out two persons whom he claimed were some of the people who assaulted him. Arrangements were made for them to report to the Bekwai police on the 6th May, 1960. They both did. On that day, the accused himself called again at the Bekwai police station and he there identified to the police four other persons who had called at the police station on different matters. The police charged all these six for assaulting the accused. On the very next day all six appeared before P.W.2, Mr. Okyere Darko, district magistrate, at Kumasi. It would seem that they all pleaded not guilty and were remanded on bail to appear at the district court, Bekwai, on the 12th May, 1960. As is usual in these cases, there was a series of adjournments, but the case was finally disposed of at the district court, Bekwai, on the 4th June, 1960. All the then accused were acquitted.

The accused was the only witness called for the prosecution. His witness, who on the evidence, was waiting outside, was not called, nor was the medical certificate shown to the district magistrate. The reason for this has given rise to a conflict of evidence between P.W.2 the district magistrate, and P.W.4 the prosecuting officer. According to the magistrate when the accused concluded his evidence he asked for the 2nd witness. The prosecutor said there was no other witness and closed the case for the prosecution. Inspector Nicol on the other hand said that after the accused gave evidence the magistrate asked him certain questions. The accused was not able to satisfy the magistrate that the persons who assaulted him were the persons then before the court. The magistrate then decided that there was no case against the then accused and all six were discharged. I think that Inspector Nicol?'s recollection is more likely to be correct. The learned magistrate may have been a little impatient with the accused, but there is, in my opinion, no foundation whatsoever for the allegation that either the magistrate or the police inspectors were corrupted by the Keniagohene.

The accused says that as a result of the acquittals, the accused in the case before the magistrate jeered and scoffed at him. He therefore returned to his village and on the 9th June, 1960, he addressed a petition to the Attorney-General. This petition gave rise to the present prosecution. In that petition which was tendered as exhibit B and which the accused admitted writing, the accused said among other things that the chief of Keniago called on the district magistrate at Kumasi and corrupted him, [p.99] and similarly corrupted the two Inspectors Nicol and Duncan. The accused implied therefore that but for this corruption, his case would not have come to the end it did. He therefore prayed the Attorney-General ?"to reopen the case by means of a law officer from Accra to proceed to deal with necessary investigation?". In this court, the accused made no attempt to justify any of the allegations which he made against the officers concerned. I have no doubt whatsoever in my mind that the allegations of corruption are false and defamatory of the district magistrate and the two inspectors. I am satisfied that the accused unlawfully published this to the Attorney-General through P.W.1, Mr Tettey.

The only real question I have to decide is whether in publishing this undoubted libel the accused acted negligently or deliberately, in the sense that he intended to defame the officers named therein.

The accused is a man in his middle sixties and lives in a somewhat outlandish part of the country. There can be no doubt that he was assaulted on the 23rd April, 1960, and in the events which happened the accused thought, not without reason, that justice was denied him. He strikes me as simple and honest, and he felt that the injustice which he fancied he suffered by the summary acquittal of his assailants ought to be redressed by a review of the case. That seems to me the motivating factor behind the absolutely misguided petition which he sent to the Attorney-General. I do not find that in sending the libellous exhibit B to the Attorney-General his intention was to defame the officers he named in it.

But I cannot acquit him of negligence. He found Inspectors Nicol and Duncan friendly and helpful and had no previous reason to distrust them. He did not mention to them or try to find out from anyone else the truth of what he said the Keniagohene said in his hearing. He took no steps to find out whether the Keniagohene had in fact been to Kumasi to see the district magistrate. He himself was falsely accused on the 23rd April, 1960 of receiving a bribe from the Nkawiehene, and he ought to have realised that allegations such as these are sometimes made in extreme levity and without regard to their truth. I find therefore that the accused published the defamatory petition negligently.

By this finding, I have arrived at a conclusion which is at variance with the one unanimously reached by the assessors but in the view that I take of this case, I regret that I cannot come to any other conclusion. I find the accused not guilty of intentional libel as charged, but under section 154(2) of the Criminal Procedure Code, 1960 (Act 30), I find the accused guilty of negligent libel and convict him.

Decision

<P>Accused convicted.</P>

Plaintiff / Appellant

A. K. Gikunoo

Defendant / Respondent

Accused in person.

Referals

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