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OHENE DJAN AND ANOTHER
V.
THE QUEEN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
11TH DAY OF JUNE, 1954
2PLR/1952/47 (WACA)
OTHER CITATION(S)
2PLR/1952/47 (WACA)
(1954) XIV WACA PP. 558-564
LEX (1954) – XIV WACA 558-564
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
SMITH, C.J., SIERRA LEONE
COUSSEY, J.A.
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BETWEEEN:
1. OHENE DJAN
2. ATTA MENSAH — Appellants
AND
THE QUEEN — Respondent
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ORIGINATING COURT(S)
Appeals by accused persons: No. 16/54.
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REPRESENTATION
Dingle Foot, Q.C. with Mr. A. G. Heward-Mills and Mr. Dhabanor — for the Appellants
Lonsdale — for the Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Accomplices — Witnesses treated by Court as accomplices — Corroboration — Conviction on evidence of accomplices
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CASE SUMMARY
The appellants were convicted of corruption as public officers; both were Ministerial Secretaries and the first was also Chairman of the Central Tender Board. They demanded and received a cheque from A., a member of a firm of contractors, and a promise of a percentage on contracts awarded to the firm, in return for which they offered to be influenced as members of the Board.
A. and K.A., both of Kumasi, gave evidence that they came to Accra and following an arrangement between K.A. and the second appellant, visited the house of the first appellant on a Saturday for K.A. to introduce A. as a good contractor, and the two appellants asked A. for a “drink” of £150 in the shape of a cheque for “cash”, which the second appellant came for later on that Saturday, after which A. and K.A. left for Kumasi. And one B., a provision merchant, testified that on the following Monday someone brought the cheque to him with a note from the first appellant asking for provisions and the balance to be given to the bearer in cash.
The appellants gave evidence to the effect that K.A. on the Saturday was anxious to get money on a Kumasi cheque for £150, that the second appellant took K.A. to the first appellant, who suggested B., the merchant, but remembering he had boxing money in hand gave the £150 on the second appellant’s guarantee for repayment on Monday, on which day K.A. came with £150 and took the cheque. The appellants also testified that A. and K.A. came on Sunday, when K.A. asked that A. be helped to get Government contracts, but was told that no help could be given; and they denied asking for £150 or percentages.
The trial Judge disbelieved the appellants and believed the witnesses A. and K.A. He regarded them as accomplices, but having accepted the evidence of B., into whose hands the cheque came on the Monday and was paid into his bank account that day, regarded it as corroboration not only against the first appellant, but also against the second as the accomplices’ evidence was that it was the second who came to them for the cheque.
There was, besides, the evidence of a police officer that he asked the first appellant whether he had passed the cheque of £150 through the merchant B. and that the first appellant said, “I would not be surprised if I did” The trial Judge believed that officer.
No contract was given to A. though his firm put in tenders. His friend K.A. wrote to the second appellant to complain and mentioned the £150. The second appellant did nothing to repudiate it.
The trial Judge, after warning the assessors in his summing-up as to the danger of convicting on the uncorroborated evidence of an accomplice, said in his judgment that he believed both A. and KA.
The argument on appeal was confined to the question whether the evidence of B. was adequate corroboration against either appellant.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeals) that:
“Corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only that the crime has been committed, but also that the prisoner committed it”: per Lord Reading, C.J., in Rex v. Baskerville, 1916, 2 K.B., at p. 667.
(1) B’s evidence, which was believed, that the cheque came to him with a note in the handwriting of the first appellant was corroboration of the accomplices, whose version was fortified by the untruthfulness of the first appellant in regard to the cheque, and B.’s evidence was fortified by what the first appellant said to the police officer.
(2) The second appellant was closely connected with the transaction and as the appellants’ version was untrue about the cheque, the cashing of it by the first appellant also weighed against the second, whose failure to repudiate the accusatory letter from K.A. afforded further corroboration.
Obiter: The conviction would have been proper if based on the evidence of the accomplices only as they were believed after due warning as to the danger of convicting on their evidence alone.
(Editor’s Note: According to the London Times an application for special leave to appeal was refused by the Privy Council on 15th November, 1954.)
MAIN JUDGMENT
The following Judgment was delivered:
FOSLER-SUTTON, P.
The appellants were convicted on two counts which charged them with corruption as public officers contrary to section 394 of the Criminal Code.
The first appellant, Ohene Djan, was at the time of the alleged offence Ministerial Secretary to the Ministry of Finance and in that capacity Chairman ex-officio of the Central Tender Board, a body set up to advise the Government on the subject of the acceptance or rejection of tenders for Government contracts. The second appellant, Atta Mensah, was the Ministerial Secretary to the Ministry of Communications and Works and was ex-officio member of the Tender Board. The facts of the case are fully discussed in the judgment of the learned Chief Justice of the Gold Coast who tried the case. Shortly put, the case for the prosecution was that the appellants acting jointly demanded and received from one L. E. Arghyrakis, a member of a firm of building and general contractors in Kumasi, a gift of £150, and offered and agreed to perm.it their conduct as members of the Central Tender Board to be influenced by that gift, and that they also offered to perm.it their conduct as members of the Central Tender Board to be influenced by a promise of the payment to them of a percentage of the value of any contracts which they might arrange to have awarded to Arghyrakis. Arghyrakis and one Kwasi Agyarko gave evidence that they left Kumasi on Friday, 2nd January, 1953, for Accra, because the latter, a friend of Arghyrakis, had arranged to introduce him to the appellants with the object of satisfying them that he was a capable, experienced and well-equipped contractor who could safely be awarded contracts by the Government.
They put up at the Avenida Hotel, Accra, and Agyarko testified that as a result of a telephone conversation he had with the second appellant, a friend of his, they proceeded at about 9 a.m. on the following morning, Saturday the 3rd January, to the house of the first appellant in Ring Road, Accra, where they met the appellants and a conversation took place which resulted in Arghyrakis being asked for, and his promising to give the appellants a “drink” of £150 for the purpose already mentioned. According to these two witnesses, Arghyrakis said he had no money or cheque book on him, and the second appellant said he would call at the Avenida Hotel to collect it and that the cheque should be made out as a “cash” one. They went on to say that, pursuant to this arrangement, the second appellant called at the Hotel on the Saturday afternoon, 3rd January, when he was handed the cheque for £150, exhibit “5”, and then left taking the cheque with him, and that they both left Accra and returned to Kumasi on Sunday, 4th January. In this connection it is relevant to observe that the learned Chief Justice made an express finding that Agyarko did return to Kumasi on the Sunday, and spent the whole of Monday, 5th January, there, and we are satisfied that there was evidence upon which he could properly come to that conclusion.
The prosecution also called one Gabriel Michael Bikhazi, provision merchant, Accra, who testified that the cheque for £150, exhibit “5”, was received by him on Monday, 5th January, and that he received it through the first appellant, to use the witness’s own words:-
“It came to me through Ohene Djan. I do not remember who actually brought the cheque. It came by somebody and was accompanied by a note from Ohene Djan saying that it was to be used for the purchase of some provisions and that the balance was to be sent to him by the messenger whoever he was … He is in the habit of communicating with me by notes in this way and I can recognise his writing. I did not preserve his note: I threw it away after I had read it.”
This witness went on to say that he provided some goods Ohene Djan had ordered and gave the balance due on the cheque to whoever brought it.
The appellants gave evidence on oath admitting that a meeting took place in the first appellant’s house between themselves, Arghyrakis and Agyarko, but alleged that it took place on Sunday the 4th January, not on Saturday the 3rd January, and that the question of assisting Arghyrakis in obtaining contracts from the Government was raised by Agyarko, but he and Arghyrakis were told by the first appellant that he could do nothing in his capacity as Chairman of the Central Tender Board to assist. They affirmed that there was no demand made by either of them at that meeting for a “drink” or present of £150, and that there was no mention of any percentages being paid on contracts.
The second appellant gave the following evidence regarding the cheque for £150, exhibit “5”:-
“I remember I have seen this cheque casually on the 3rd January, 1953 (Saturday) in my house. It was shown to me by Mr. Agyarko about 7.15 a.m. He approached me, saying that he had bought some goods and that he wanted money to clear the goods. He had on him a Kumasi cheque for £150, but it would take two or three days before the cheque would be cashed over the counter and he was asking me if I could give him £150 in cash against the cheque. I told him I had not money on me. He asked me to find someone outside who could help in this respect, as he would lose a considerable profit if he failed to clear the goods. I told him I was going to my office and I asked him to get into my car to see if I could get help for him from Ohene Djan (accused 1).
“When we entered the courtyard of Ohene Djan’s house I shouted for him. He met me at the entrance to his corridor (verandah) and I asked him if he could help Mr. Agyarko. At first he said ‘No’-that he had no money on him and asked me why I should not try Gabriel Bikhazi. I turned round to go away and he said:
‘Oh! wait; I have got the boxing money in the house.’
He then asked me for a personal guarantee and told me that he would like to get the money back by Monday. I agreed to give him the guarantee and he then called for Bismarck and asked him to bring £150 from his boxing money. I took the cheque from Agyarko and handed it to Ohene Djan, who in turn gave me £150 in £1 currency notes and I handed that sum over to Agyarko and we went away. On our way I told Agyarko that I was going on trek with the Minister on Monday and asked him to fulfil the promise to repay the money to Ohene Djan on Monday. I dropped him on my way on the Selwyn Market and then proceeded to my office. I reached there about 8 a.m.”;
and the first appellant’s evidence regarding the incident is to the same effect; it reads as follows:-
“Before this prosecution started I had met Mr. Arghyrakis (P.W. 2) and Mr. Agyarko (P.W. 3). I first met Agyarko on 3rd January, 1953-a Saturday, when he came to my house following the accused 2 Atta Mensah, who brought him in and introduced him to me. This was at about 7:30 a.m. Atta Mensah inquired of me whether I could give cash for a Kumasi cheque for his friend Agyarko, of Kumasi. He made me to understand that Agyarko wanted the money in order to clear some goods lines. He had already explained that Agyarko was a merchant so I understood he was referring to trade goods. Atta Mensah had said it was a Kumasi cheque for £150. I told Atta Mensah to try our friend Gabriel Bikhazi, but suddenly I remembered that I had some cash in the house with my cousin, Bismarck– the boxing money I have already mentioned. I agreed to advance money on the cheque. As this was my first time to meet Agyarko I said I would advance it on the personal guarantee of Atta Mensah, but the cheque should be redeemed by Monday-two days later. I did not specify by whom it was to be redeemed. I was all the time talking to Atta Mensah.”
The first appellant went on to say:-
“I never saw Arghyrakis again until this case. But on the next day (Monday) I saw Agyarko; he came to my house round about 7 a.m.; he was wearing a green Kente cloth. I was having breakfast with Mr. Kwamina. There was with him a man I did not know and they stood just outside my entrance door. He gave me £150 in three parcels of currency notes, each worth £50. I took the money and called Bismarck to bring the cheque for £150 and he brought it and gave it to me and I passed him the money and I gave the cheque back to Agyarko. They went away and until these proceedings began I never saw Agyarko again.”
Their case, therefore, was that the cheque which was dated 3rd January, 1953, came into the hands of the first appellant between the hours of 7 a.m. and 8 a.m. on the Saturday morning in the manner described by them, that it was redeemed by Agyarko at about 7 a.m. on Monday morning, 5th January, and that the meeting at which the question of contracts was discussed took place on Sunday morning, 4th January, not on the Saturday as alleged by the two witnesses for the prosecution.
The learned Chief Justice having held that the two prosecution witnesses, Arghyrakis and Agyarko, “fall into the category of accomplices” and must be treated as such said:-
“I accept the necessity and desirability of looking for and finding corroboration of their evidence of the kind mentioned in my summing-up,”
and at page 174 of the record his judgment goes on to say:-·
“At the trial Mr. Bikhazi produced an entirely new piece of evidence which he had never mentioned before. It is in my opinion quite probable that this story of the covering note sent by Ohene Djan with the cheque is true. It would be an entirely audacious piece of invention at this stage of the proceedings of which I do not regard this witness as capable. But in any event he has persistently reiterated his original assertion that it was Ohene Djan who sent him the cheque and whatever else he was willing to hedge about or water down under cross-examination (for politeness’ sake it almost seemed!) he would not budge an inch from that position. I am satisfied that, making every allowance for his imperfect memory, he is truthfully stating that central fact, which he had every reason at the time to note and remember. I find therefore that the evidence of Arghyrakis and Agyarko and the version of the affair which their evidence sets up is duly and sufficiently corroborated by this piece of evidence given by Gabriel Bikhazi which I believe to be true and reliable evidence on a material point affecting the first accused and incriminating him. For, once it is accepted that Ohene Djan (accused 1) passed to Bikhazi this £150 cheque drawn by Arghyrakis (for Arghyrakis Brothers) on his account with Barclays Bank, Kumasi, the transaction of corruptly accepting a bribe is pinned on to accused 1 and not only to him but also to accused 2; for it was to him, according to the evidence of the prosecution witnesses P.W. 2 and P.W. 3, that the cheque was actually given at the Avenida Hotel on 3rd January,1953, in pursuance of the promise made by Arghyrakis to the two accused persons at the morning meeting at the first accused’s house.”
Mr. Dingle Foot, who argued the appeal on behalf of both the appellants, strongly urged that the learned Chief Justice was wrong in holding that the evidence of Bikhazi was sufficient corroboration of the evidence of the two accomplices, Agyarko and Arghyrakis, to justify the conviction of the appellants, and that he misdirected himself on the issue as to whether the evidence of that witness amounted to corroboration of the accomplices’ evidence in that he-
….. erred in finding that the mere assertion by the witness that it was Ohene Djan who sent him the cheque was (in the absence of any finding of fact that the cheque was accompanied by a note in Ohene Djan’s handwriting or brought by Ohene Djan in person) corroboration of the accomplices’ evidence against Ohene Djan.
“… erred in finding that if it were once accepted that Ohene Djan passed the cheque to the witness Bikhazi, the transaction of corruptly accepting a bribe was ‘pinned’ not only on to Ohene Djan but also on to Atta Mensah.”
The arguments on this appeal were confined to these points, we having declined leave to appeal in respect of three other grounds of appeal filed which alleged misdirection on other matters arising from the evidence.
As was said by Lord Reading, C.J., in Rex v. Baskerville (1916), 2 KB. at page 667:-
“Corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only that the crime has been committed, but also that the prisoner committed it.”
Mr. Foot submitted that in view of the inconsistent statements made by Bikhazi, and in the absence of an express finding that the cheque was accompanied by a note written by the first appellant, the highest the evidence of the witness could be put was “that he was under the impression that he received the cheque for £150 from Ohene Djan”.
The Chief Justice clearly gave most anxious and careful consideration to the evidence of Bikhazi, and having done so he came to the conclusion that the witness was speaking the truth when he said that he received the cheque from Ohene Djan, and that his statement to that effect could be safely accepted as proof that it was so received.
This was a question of fact, and in our view there was evidence upon which the trial Judge could properly make the finding he did.
It was not disputed that the cheque did find its way to Bikhazi and that he paid it into his banking account on Monday, 5th January, and nowhere was it suggested that either of the accomplices cashed it with Bikhazi themselves. Moreover, Assistant Commissioner of Police Widdup gave the following evidence regarding a conversation he had with the first appellant when he was investigating this case:-
“I then asked him how he eventually disposed of that cheque and he said he could not remember. I then asked him if he had ever taken any cheques to Gabriel Bikhazi. He replied ‘Yes’. I then asked him did he pass this particular cheque of £150 through Gabriel Bikhazi and he replied, ‘I would not be surprised if I did’.”
The learned Chief Justice states in his judgment that he implicitly believed this evidence and described it as “relevant and most significant”, rightly we think, because it does tend to make the evidence of Bikhazi more probable, and casts considerable doubt on the veracity of the first appellant’s evidence that he handed the cheque back to Agyarko early on Monday morning-an unusual transaction which if it were true could hardly have been forgotten.
If the cheque was received by Bikhazi from Ohene Djan the story told by the latter regarding its return by him to Agyarko clearly could not be true, and, having accepted Bikhazi’s evidence as to his negotiating the cheque for Ohene Djan, we are satisfied that the learned Chief Justice was right in treating this evidence as corroboration of the evidence of the accomplices.
Furthermore, while we accept the proposition that a lie told by an accused person is not necessarily corroboration, it may be. We think that a distinction may be drawn between a lie relating to some collateral matter and one which goes to the root of the case for the prosecution, as the lie in the present case did. We are of the opinion that the untrue statement made by the first appellant regarding his return of the cheque for £150 is of such a nature, having regard to the circumstances in this case, as to lead to an inference in support of the version given by the two accomplices, and gives to the whole transaction a different complexion from what it would have borne if the false statement had not been made, and is further corroboration.
Mr. Foot argued that in any event the evidence in question could not be taken as corroboration against the second appellant, but we are unable to agree with that proposition. The story about the return of the cheque is based on the account given by both appellants as to how the cheque came into the possession of the first appellant. As Mr. Lonsdale, who appeared for the prosecution on this appeal, put it, the second appellant is inextricably connected with the transaction, and if the appellants’ version of the matter is proved to be untrue any inference drawn from the retention and cashing of the cheque by the first appellant must, in the circumstances of this case, also weigh against the second appellant.
In any event, we are satisfied that as regards the second appellant there is another circumstance which tends to render more probable the truth of the evidence given by the two accomplices and leads to an inference in support of their evidence.
No contract was in fact awarded to Arghyrakis although his firm submitted tenders, and on the 7th September, 1953, Agyarko, who was getting worried on his friend’s account, wrote a letter to the second appellant, exhibit “8”, which he sent by registered post, and which the second appellant admitted receiving. That letter contains a clear accusation that the £150 was paid for the purpose alleged by the prosecution, and the second appellant did nothing to repudiate it. It is true that he alleged that after receiving the letter he met Agyarko on the 21st September, 1953, outside the Market Stores in Kumasi and taxed him with it, but the learned trial Judge did not believe his evidence regarding this, and found as a fact that the alleged meeting never took place.
The letter itself is, of course, no proof of the facts it alleges, but his failure to take any steps to deny the accusation it undoubtedly contains is, in our view, some corroboration of the evidence of the accomplices.
After referring to the warning he gave in his summing-up to the assessors as to the danger of convicting on the uncorroborated evidence of an accomplice, the learned Chief Justice goes on in his judgment to say:-
“I have independently come to the conclusion that the two witnesses P.W. 2 and P.W. 3 (Arghyrakis and Agyarko, respectively) are entirely worthy of credence and have in fact told the truth in this matter.”
There is no doubt that the uncorroborated evidence of an accomplice is admissible in law, and that, providing the proper warning and advice are given, it is clearly within the province of the Court to convict upon the unconfirmed evidence of an accomplice.
In this case, having come to the conclusion that the two accomplices were witnesses of truth, it appears to us that the learned Chief Justice would have been bound to come to the same conclusion regarding the guilt of the appellants even if he had been unable to find any corroboration of the accomplices’ evidence. We are in no doubt that in similar circumstances we should, but as we have already indicated, there was material before the trial Court which afforded corroboration. These appeals are, therefore, dismissed.
Appeals dismissed.
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