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REX
V.
AUGUSTUS WILLIAM KOJO THOMPSON (1)
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT GOLD COAST
5TH DAY OF JUNE, 1944
2PLR/1944/58 (WACA)
OTHER CITATION(S)
2PLR/1944/58 (WACA)
(1944) X WACA PP. 201 – 212
LEX (1944) – X WACA PP. 201 – 212
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
M’CARTHY, J.
SMITH, J.
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BETWEEN:
REX — Respondent
AND
AUGUSTUS WILLIAM KOJO THOMPSON — Appellant
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ORIGINATING COURT(S)
Case stated by Doorly, Ag. C.J., sitting in the Accra Assizes
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Corruption and extortion as a public officer – Criminal Code, ss. 3, 5, 6(3), 394 – Gold Coast Colony (Legislative Council) Order in Council, 1925, The British Settlements Act, 1887 (50 & 51 Vict., c. 54) – How properly treated
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CASE SUMMARY
Defendant was charged before the Assize Court, Accra, with corruption and extortion as a public officer, being the elected Municipal Member for Accra in the Legislative Council of the Gold Coast, and the trial Judge found that he, as such member, offered to permit his conduct to be influenced by a gift and unlawfully demanded money; but the Judge was in doubt whether defendant was or was not a public officer within the definition of “public officer” in s. 5 of the Criminal Code, having regard to the fact that the election of such a member was regulated by the Gold Coast Colony (Legislative Council) Order in Council, 1925, and the Electoral Regulations thereunder, neither of which was an Act of Parliament or Ordinance or formally expressed to be made under such an Act or Ordinance, and he stated a case for the opinion of the West African Court of Appeal. “Public Officer” is defined in s. 5 of the Criminal Code as a person holding any one of the offices therein named, inter alia ”any office to which a person is nominated or appointed by statute or by public election”; and “public election” means any election the qualification for voting at which, or the mode of voting at which, is determined or regulated by statute”.
The crux was whether the election was under a “statute”, which is defined in s. 3 of the Code as “any Act of Parliament or Ordinance, and any orders or rules or regulations made under the authority of any Act of Parliament or Ordinance”; and the main question (dealt with at length in the opinion) was whether the 1925 Order in Council was made under the authority of the British Settlements Act, 1887.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
(1) the position of elected Municipal Member of Legislative Councils is an ”office” within the meaning of s. 5(2) of the Criminal Code;
(2) the Gold Coast Colony (Legislative Council) Order in Council, 1925, is an ”order” within the meaning of that term as used in s. 3 of the Criminal Code;
(3) the election of the defendant as Municipal Member for Accra was an election the qualification for voting at which is determined by the 1925 order in Council.
(4) though the 1925 Order in Council is not formally issued under the authority of the British Settlements Act, 1887, it is in fact so made, and is therefore a “statute” within the meaning of that term as defined in s. 3 of the Criminal Code.
(5) that the election was therefore a “public election” within the meaning of s. 5 of the Criminal Code, and the defendant consequently a public officer within the definition in that section.
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MAIN JUDGMENT
The opinion of the Court was delivered by the President:
The following is the case stated as amended:-
“Case stated by the undersigned Alfred Noel Doorly, Acting Chief Justice of the Supreme Court of the Gold Coast sitting in the Assizes of the Divisional Court of the Eastern Province of the Gold Coast at Accra under the Courts Ordinance (Cap. 4 of the Revised Laws of the Gold Coast.)
”1. At a Court of Assize sitting at Accra aforesaid, an information was preferred by the Attorney-General on behalf of our Lord the King under the Criminal Procedure Code (Cap. 10 of the Revised Laws) against Augustus William Kojo Thompson (hereinafter called the defendant) for that –
(1) Augustus William Kojo Thompson on or about the 21st day of March, 1944, at Accra in the Eastern Province being a Public Officer to wit: the elected Municipal Member for Accra in the Legislative Council of the Gold Coast offered to permit his conduct as such officer to be influenced by the gift of £25,000 to be received by him from the Association of West African Merchants; (Contrary to section 894 of Cap. 9);
(2) Augustus William Kojo Thompson on or about the 21st day of March at Accra in the Eastern Province being a Public Officer to with the elected Municipal Member for Accra in the Legislative Council of the Gold Coast under colour of his office demanded from the Association of West African Merchants the sum of £25,000 which he knew he was not lawfully authorised to demand: (Contrary to section 394 of Cap. 9)’;
“which information was heard by me on the 2nd day of May, 1944, and thereafter de die in diem until the 13th day of May (both dates inclusive) when I the said Acting Chief Justice of the Gold Coast, under the provisions of sections 327 and 328 of the Criminal Procedure Code (Cap. 10), postponed judgment in the said trial and reserved for the consideration of the West African Court of Appeal a question of law arising therein;
”2. Now therefore I the said Acting Chief Justice of the Gold Coast, by virtue of the authority given to me by section 327 of the Criminal Procedure Code (Cap. 10) do hereby state and sign the following case:
”CASE
“3. Upon the hearing of the said information the following facts were proved or admitted before me:
“(1) That the defendant on the 21st March, 1944, was the elected Municipal Member for the town of Accra in the Legislative Council of the Gold Coast,
”(2) That the defendant on the 2lst March, 1944, at Accra in the Eastern Province being the elected Municipal Member for Accra in the Legislative Council of the Gold Coast offered to permit his conduct as such elected Municipal Member for Accra in the Legislative Council of the Gold Coast to be influenced by the gift of £25,000 to be received by him from the Association of West African Merchants;
“(3) That the defendant on the 21st March, 1944, at Accra in the Eastern Province being the elected-Municipal Member for Accra in the Legislative Council of the Gold Coast under colour of his position as such elected Municipal Member for Accra in the Legislative Counsel of the Gold Coast demanded from the Association of West African Merchants the sum of £25,000 which he knew he was not lawfully authorised to demand.
“4. On the part of the Crown it was contended that the defendant was a Public Officer within the meaning of the definition of ‘Public Officer’ contained in section b of the Criminal Code (Cap. 9).
”5. On the part of the defendant it was contended to the contrary.
”6. My attention was drawn to the following decisions:
”Rex v. Whittaker 1914 3 K.B. 1283.
“Rex v. White 15 English and Empire Digest
”Rex v. Bunting 662. Footnotes.
“Rex v. Mayor of Tiverton 88 E.R., 136”.
“7. I being in doubt whether the defendant’s election being one the qualification for voting at which or the mode of voting at which are determined or regulated by the Gold Coast Colony (Legislative Council) Order in Council, 1925.(Vol. IV pp. 27 et seq.) and by the Legislative Council Electoral Regulations (Vol. IV pp. 59 et seq.) made under Clause 48 of the above mentioned Order in Council, neither of which pieces of legislation is an Act of Parliament or Ordinance or is formally expressed to be an Order, Rule or Regulation made under the authority of an Act of Parliament or Ordinance, reserved for the decision of the West African Court of Appeal the question whether the defendant is or is not a Public Officer within the terms of the definition of ‘Public Officer’ in section b of the Criminal Code (Cap. 9).
“QUESTION
”8. The question upon which the opinion of the Court is desired is whether, upon the above statement of facts, the defendant is a Public Officer within the definition of ‘Public Officer’ in section 5 of the Criminal Code (Cap. 9).”.
“Dated the 15th day of May, 1944.
(Sgd) A. N. DOORLY,
Acting Chief Justice”
In our view the answer to the question submitted to us turns mainly upon a question of considerable constitutional importance and of some difficulty, namely was the Gold Coast Colony (Legislative Council) Order in Council, 1925, Laws of the Gold Coast Vol. IV, p. 27 (hereinafter referred to, with the amending Order-of 1927 (id. p. 50), as “the 1925 Order in Council”) made under the authority of the British Settlements Act, 1887 (50 & 51 Vict. c. b4), though not formally so made.
Section 5 of the Criminal Code, which contains the definition of “Public Officer”, within the meaning of which it is contended on behalf of the Crown that the defendant falls is in the following terms:
“Public Officer” means any person holding any of the following offices, or performing the duties thereof, whether as a deputy or otherwise, namely:-
“(1) Any civil office, including the office of Governor, the power of appointing a person to which or of removing a person from which is vested in His Majesty, or in the Governor, or the Governor in Council, or in any public commission or board; or
“(2) Any office to which a person is nominated or appointed by statute or by public election; or
(3) Any civil office, the power of appointing to which or of removing from which is vested in any person or persons holding public office of any kind included in either of the two last preceding paragraphs of this section; or
“(4) Any office of arbitrator or umpire in any proceeding or matter submitted to arbitration by order or with the sanction of any Court; or
“(5) Any Justice of the Peace,
‘A person acting as a minister of religion or ecclesiastical officer, of whatsoever denomination, is a public officer in so far as he performs functions in respect of the notification of intended marriage, or in respect of the solemnization of marriage, or in respect of the making or keeping of any register or certificate of marriage, birth, baptism, death, or burial, but not in any other respect.
“Civil office” means any public office other than an office in the naval, military, or air service of His Majesty.
“Public office” means the office of any public officer.
”Judicial officer” means any person executing judicial functions as a public officer.
”It is immaterial, for the purposes of this section, whether a person be or be not entitled to any salary or other remuneration in respect of the duties of his office.
“Public election’ means any election the qualification for voting at which, or the mode of voting at which, is determined or regulated by statute.”
The submission on behalf of the Crown is that the defendant as the elected Municipal Member of the Legislative Council for the town of Accra holds an office to which he has been appointed by public election.
The first question which arises upon that submission is- Is the position of elected Municipal Member of Legislative Council an “office” within the meaning of paragraph (2) of section 5? We have no doubt that it is. The 1925 Order in Council itself, referring in Clause 11(2) to an unofficial member, speaks of “his term of office”, and in Clause 22(2) speaks of “the office of Mining Member of the Council”. In this respect there can be no difference between the Mining Member and a Municipal Member. Moreover it is clear from the words of Wills, J. in Rex. v. Lancaster and Worrall (16 Cox, 737) “The nature of the office is immaterial as long as it is for the public good”, that the widest interpretation should be given to the term in cases of this kind.
The Crown then contends that the election by which the defendant became appointed Municipal Member for Accra was a “public election” within the meaning of the definition of that term given in section 5 of the Criminal Code. It is contended (a) that Clause 20(2) of the 1925 Order in Council determines the qualification for voting at the election of a Municipal Member by prescribing that the electorate for the purpose shall coincide with the electorate for the time being for the purpose of the election of a member of the Town Council; and (b) that the 1925 Order in Council is a “Statute” within the meaning of that term as used in the definition of ”Public election”, the definition of ‘Statute’ for that purpose being given in section 3 of the Criminal Code. And it is further contended (c) that the mode of voting at the election of a Municipal Member is regulated by the Legislative Council Electoral Regulations made under the 1925 Order in Council and (d) that those Regulations are also a “Statute” within the meaning of that term as used in the definition of “Public election”; and further (e) that since the expression “or” where it occurs in the definition of “Public election” must be construed disjunctively (Criminal Code section 6(3)) it is sufficient to establish the correctness of either contentions (a) and (b) together or of contentions (c) and (d) together. We agree with contention (e). We also have no difficulty in agreeing with contention (a). That seems clear on the face of it.
The real crux of this case is contained in contention (b).
The definition of “Statute” given in section 3 of the Criminal Code is in the following terms:
”Statute” means any Act of Parliament or ordinance, and any orders or rules or regulations made under the authority of any Act of Parliament or ordinance”.
The 1925 Order in Council is clearly an “Order” within the meaning of that term as used in the definition ; the learned Attorney-General on behalf of the Crown contends further that it must be made under the authority of the British Settlements Act, 1887, (50 & 51 Vict. c. 54), and so is a “Statute” within the meaning of the definition; learned Counsel for the defendant on the other hand contends that the Order is not made under the authority of the 1887 Act but by virtue of the Royal Prerogative and consequently is not a ”Statute” within the meaning of the definition. That is the important constitutional question which has to be decided upon this case. In considering it one is met at the outset by the fact that the Order is not formally issued under the authority of the 1887 Act. This is pointed out in Halsbury’s Laws of England (2nd Ed.) Vol. 11 Note (d) at page 141, moreover that note does not go on to indicate that though not formally issued under the Statute the Order was in fact so issued, although in the case of Sierra Leone such an indication is given on the same page at Note (i) and in the case of the Gambia at the previous page at Note (b). Neither in the Sierra Leone Order in Council of 1924 nor in the Gambia Letters Patent of 1915 (to both of which we have referred) is there any reference to the Act of 1887, yet in the case of Sierra Leone the note states ” The Colony is regarded as settled and falls under the British Settlements Act, 1887, though not formally cited” and in the case of the Gambia – “Gambia is legislated for under the British” Settlements Act, 1887. We are unaware why there is a distinction in the notes between the Gold Coast on the one hand and Sierra Leone and the Gambia on the other. But at any rate these notes do show that, although in some cases when an Order is issued under the authority of the 1887 Act it is so recited (e.g. The West African Court of Appeal Orders in Council 1928-35 Consolidated, Gold Coast Laws Vol. IV page 190), that course is not invariably followed, and the fact that an Order in Council is not formally made under the Act is not conclusive that it is not in fact so made. But there is one eminent authority on Gold Coast Law who had no doubt upon the question. At page 26 of his booklet entitled A Note on the History of the British Courts in the Gold Coast Colony, with a brief account of the changes in the Constitution of the Colony the late Sir William Brandford Griffith states in terms, “This Order, made under section 2 of the British Settlements Act, 1887”.
Furthermore at page 268 of his Constitution, Administration and Laws of the Empire, Professor Berriedale Keith states:
“In other cases the power to create constitutions rests simply on the prerogative to assign the form of government of a conquered or ceded colony, as in the cases of Ceylon, Mauritius, Seychelles, Hong Kong, Fiji, Gibraltar, Malta, Ashanti, Basutoland, St. Lucia, Trinidad, and British Guiana. In other cases it rests on express statutory authority, as in the case of the Straits Settlements when they were transferred from the care of India to the Colonial Office in 1887, and in that of the Falkland Islands. These islands were, it is true, settled territories, but the manifest absurdity of creating a representative legislature for a tiny population presented itself, and a similar question arose regarding the control of British settlers in West Africa; the existing legislation is represented by the British Settlements Act, 1887, which gives power to the Crown to legislate by Order in Council for any British settlement, and to establish in it a legislature of not less than three persons. It is by virtue of this legislation that legislatures were set up in the Gambia, Gold Coast, and Sierra Leone.”
We might perhaps have been content to accept these dicta as correct statements of the law without further inquiry, but we have thought it right to make a full investigation into Constitutional Law and to decide the question for ourselves. It has been contended on behalf of the defendant that the question is not one of law, hut of fact since it turns upon the question of how the Colony of the Gold Coast was acquired, whether by settlement on the one hand or by conquest or cession on the other, and that this question is one which can only be decided upon evidence, which ought to have been given in the Court below and upon which that Court should have made a finding of fact. We do not agree with this contention since we think that the question can be determined as a question of pure Constitutional Law to be found in public documents, decided cases and recognised text-book authorities. For this purpose it is unnecessary to look beyond the latter part of the eighteenth century by which time it was well established that the power of the Crown to legislate by virtue of the Royal Prerogative was limited so far as a settled Colony was concerned, to the grant of a representative Constitution. (11 Halsbury (2nd Ed.) page 6 Note (m); Keith’s Introduction to British Constitutional Law pages 83 and 190, 191), although in the case of a conquered or ceded Colony the Crown has always had full power to legislate by virtue of the Royal Prerogative, unless and until it was lost by the Crown itself conferring a representative Constitution, without reserving the right to legislate (Campbell v. Hall (1774) 20 State Trials, 239). At page 5 of his British Rule and Jurisdiction beyond the Seas the late Sir Henry Jenkyns states:-
“As regards a settled colony, the principle is well established that an Englishman carries with him English law and liberties into any unoccupied country where he settles, so far as they are applicable to the situation having regard to all circumstances.
“Consequently, apart from statute law, no legislature can be established in a settled colony by the Crown, except one which comprises a representative body having powers of taxation. Nor can the Crown legislate for it by Order in Council or otherwise”
The distinction between “Settlements” and possessions acquired by cession or conquest is maintained and exemplified in section 6 of the British Settlements Act, 1887.
The text-book writers seem in some doubt as to the category in which the Gold Coast should be placed. Professor Berriedale Keith, the contributor of the relevant title in the 2nd Edition of Halsbury’s Laws of England says at Vol. 11 page 10, paragraph 1:
“Settlement may take various forms. Occupation of territory may be authorised by the Crown, possession taken in the King’s name, and settlers introduced. Such is the case with the Australian colonies, British North America excluding Ontario, Quebec, Newfoundland, and in the West Indies, the Leeward Islands, Bahamas, Barbados, and Bermuda. The Falkland Islands and the Gold Coast, Sierra Leone, and even the Gambia may fall into this category.”
The italics are ours.
On the other hand in the same title in the 1st Edition (of which Sir Charles Tarring was one of the joint authors) the Gold Coast is mentioned under the heading of conquered and ceded colonies (10 Halsbury, 1st Ed., p. 566/7 paragraph 986). But in his own book on the Law relating to the Colonies Sir Charles Tarring deals with the Gold Coast under the heading of occupied, i.e. settled Colonies (4th Ed., p. 5).
Upon this point there can be no doubt that the Gold Coast Colony had its origin in the settlement of British subjects on the West Coast of Africa, and these original settlements form the nucleus round which what is now the Gold Coast Colony has grown.
Towards the latter part of the first half of the last century it was recognised that there was required some wider power to legislate for such settlements than the limited rights under the Royal Prerogative; consequently in 1843 the Statute 6 and 7 Vict. c. 13 was enacted. It is intituled “An Act to enable Her Majesty to provide for the Government of Her Settlements on the Coast of Africa and in the Falkland Islands’ and enacts inter alia-
“Whereas divers of Her Majesty’s subjects have resorted to and taken up their abode and may hereafter resort to and take up their abode at divers Places on or adjacent to the Coast of the Continent of Africa and on the Falkland Islands: And whereas it is necessary that Her Majesty should be enabled to make further and better Provision for the Civil Government of the said Settlements: Be it therefore enacted . . . That it shall be lawful for Her Majesty, by any Order or Orders to be by Her made, with the Advice of Her Privy Council, to establish all such Laws, Institutions, and Ordinances, and to constitute such Courts and Officers, and to make such Provisions and Regulations for the Proceedings in such Courts, and for the Administration of Justice, as may be necessary for the Peace, Order and good Government of Her Majesty’s subjects and others within the said present or future Settlements respectively, or any of them; any Law, Statute, or Usage to the contrary in anywise notwithstanding.”
By the Act 23 & 24 Vict. c. 121 enacted in 1860 the provisions of the 1843 Act were extended to all possessions:
1. The Provisions of the said Act shall extend to all Possessions of Her Majesty not having been acquired by Cession or Conquest, nor (except in virtue of this Act) being within the Jurisdiction of the legislative Authority of any of Her Majesty’s Possessions abroad.”
Both the 1843 and the 1860 Acts were repealed in 1887 by the British Settlements Act, 1887 (50 & 51 Vict. c. 54). The preamble to that Act states:-
“Whereas divers of Her Majesty’s subjects have resorted to and settled in, and may hereafter resort to and settle in, divers places where there is no civilised government, and such settlements have become or may hereafter become possessions of Her Majesty, and it is expedient to extend the power of Her Majesty to provide for the government of such settlements, and for that purpose to repeal and re-enact with amendments the existing Acts enabling Her Majesty to provide for such government:”
The important sections for the purpose of the present argument are:
Section 2.
”It shall be lawful for Her Majesty the Queen in Council from time to time to establish all such laws and institutions, and constitute such Courts and officers, and make such provisions and regulations for the proceedings in the said Courts and for the administration of justice, as may appear to Her Majesty in Council to be necessary for the peace, order, and good government of Her Majesty’s subjects and others within any British Settlement.”
Section 5.
“It shall be lawful for Her Majesty the Queen in Council from time to time to make, and when made to alter and revoke, Orders for the purposes of this Act.”
Section 8.
”For the purpose of this Act, the expression ‘British possession’ means any part of Her Majesty’s possessions out of the United Kingdom, and the expression ‘British settlement’ means any British possession which has not been acquired by cession or conquest, and is not for the time being within the jurisdiction of the Legislature, constituted otherwise than by virtue of this Act or of any Act repealed by this Act, of any British possession.”
Soon after the enactment of the 1843 Act the Crown made use of its provisions. On the 3rd September, 1844, it passed an Order in Council appointing Cape Coast Castle a place of trial of offenders. That Order was, in terms, made partly under the Act of 1843.
On the 4th April 1856 an Order in Council was made, also, in terms, partly under the 1843 Act, which recites
”And whereas Her Majesty hath acquired power and jurisdiction within divers countries on the said coast of Africa, hereinafter called “the protected territories on the Gold Coast, near or adjacent to Her Majesty’s Forts and Settlements on the said Gold Coast, and it is expedient to determine the mode of exercising such power and jurisdiction:”
On the 19th February 1866 a Commission was passed under the Great Seal, which at Clause VII recites the 1843 Act and goes on to provide, inter alia for the establishment of a Legislative Council for forts of West Africa including the Forts and Settlements on the Gold Coast.
On the 26th February, 1867 an Order in Council was passed reciting the 1843 Act as its authority, and creating The West Africa Court of Appeal not the present Court of Appeal but it predecessor of nearly the same name.
On the 13th January 1886 Letters Patent were passed under the Great Seal separating the Government of Her Majesty’s Settlement at Lagos from the Government of Her Majesty’s Settlements on the Gold Coast (which had been joined in the previous Letters Patent of the 22nd January 1883). It provides—
“II. Our Gold Coast Colony (hereinafter called the Colony) shall, until we shall otherwise provide, comprise all places, settlements, and territories belonging to us on the Gold Coast in Western Africa between the fifth degree of west longitude and the second degree of east longitude.”
and also provides for the government of the said Colony and proceeds by Article IX of those Letters Patent made in pursuance of the 1843 Act to lay down the powers of the Legislative Council.
The second part of Article X reserves to the Crown powers of legislation in the following terms:-
”We do also reserve to ourselves, our heirs and successors, our and their undoubted right, with the advice of our or their Privy Council, from time to time to make all such laws or Ordinances as may appear to us or them necessary for the peace, order, and good government of the Colony.”
These Letters Patent of 1886 after having been amended in 1905, 1906 and 1912, were finally revoked and fresh Letters Patent were issued dated 20th September, 1916.
These do not purport to be made under the British Settlements Acts, 1887, which had replaced the 1843 Act, but they contained an Article, No. X, similar to the second part of Article X of the 1886 Letters.
These Letters Patent of 1916 were still in force when the 1925 Order in Council was made, namely on the 8th April 1925 but were revoked a few weeks later on the 23rd May, 1925, when fresh Letters Patent were issued. Neither the 1925 Order in Council nor the Letters Patent of 1925 recites the 1887 Act.
So much for the history of legislation by the Crown affecting the Legislative Council, but there was a very important Order in Council made by the King in 1901, namely “The Gold Coast Order in Council, 1901”.
This recites—
“WHEREAS by Letters Patent passed under the Great Seal of the United Kingdom of Great Britain and Ireland bearing date the 18th day of January, 1886, provision was made for the government of Her late Majesty Queen Victoria’s settlements on the Gold Coast, and it was provided that the Gold Coast Colony of Her said late Majesty should, until Her Majesty should otherwise provide, comprise all places, settlements, and territories belonging to Her Majesty on the Gold Coast in Western Africa between the fifth degree of west longitude and the second degree of east longitude, and the Legislative Council of the said Colony was empowered, subject to any conditions, provisos, and limitations prescribed by any instructions under Her Majesty’s sign manual and signet, to establish such Ordinances not being repugnant to the Law of England and to constitute such Courts and offices, and to make such provisions and regulations for the proceedings in such Courts, and for the administration of justice as might be necessary for the peace, order, and good government of the Colony :
“And Whereas it is expedient that the boundaries of the Gold Coast Colony should be further defined, and that all such portions of the territories on the West Coast of Africa, with the limits hereinafter defined, which have not already been included within His Majesty’s dominions should be annexed to, and should henceforth form part of, the said Gold Coast Colony:”
and Article 3 declares-
”All such parts of the territories within the limits aforesaid as have not heretofore been included in His Majesty’s dominions shall be, and the same are hereby, annexed to His Majesty’s dominions, and the whole of the said territories are declared to be part and parcel of His Majesty’s Gold Coast Colony in like manner, and to all intents and purposes as if all such territories had formed part of the said Colony at the date of the said Letters Patent of the 13th day of January, 1886.”
Indisputably the Forts which apparently constituted the limits of the early settlements on the Gold Coast come within the definition of a settlement in section 6 of the 1887 Act.
In 1850 the Danish settlements were ceded to the British Crown. Examination of the relevant public documents makes it clear that these ceded settlements were at no time treated. as separate administrative units by the Crown. Of course they might have been, in which case the law relating to ceded territory would have applied to them. Actually there can be no doubt that the Crown waived its prerogative in this respect and absorbed them for all purposes into the original British settlements. It is clear for instance in the Commission of 1886 that all British territories on the Gold Coast were treated as a single administrative unit.
It was the same with the Dutch territories ceded to the British Crown in 1871. They have never been treated since the cession as a separate administrative unit.
In the Letters Patent of 1886 the Gold Coast Colony is declared to comprise all places, settlements and territories belonging to the Crown on the Gold Coast within the limits mentioned; and the Letters Patent provide for the government of the Colony as a single unit expressly, in so far as the Legislative Council is concerned, under the 1843 Act. It is clear that the original settlement never lost the character of a settled possession.
In our view any territories acquired otherwise than by settlement by the Crown before the Letters Patent of 1886 were absorbed in and acquired the character of the settlement. This was confirmed by the Letters Patent. We hold that at the time of the annexation of the protected territories by the Order in Council dated 1901, the Colony as a whole partook of the nature of a settlement within the meaning of section 6 of the Act of 1887. The Order in Council provides that the protected territories should become part of the Colony as from 1886 for all intents and purposes; these territories were not acquired either by concession or by conquest; they were simply annexed after having been brought under British protection; and in our opinion the effect of the Order was to constitute the enlarged Colony a settlement within the meaning of section 6 of the Act of 1887.
It is indisputable that the 1925 Order in Council must have been made as regards certain parts of the Colony under the authority of the Act of 1887. That in our opinion is sufficient to make the Order a “statute” within the meaning of section 3 of the Criminal Code. But we go further than that for, in our view, whatever the rights of the Crown in respect of other parts of the Colony may be, it is clear from the foregoing that the Order was in fact made in respect of the whole Colony as a single administrative unit under a single authority, namely the Act of 1887.
We, therefore, find ourselves in agreement with the late Sir William Brandford Griffith when, in effect, he so states in his booklet from which we have already quoted, and with Professor Berriedale Keith.
This being so the answer to the question submitted to us follows automatically. The election of the Defendant as Municipal Member for Accra is an election the qualification for voting at which is determined by the 1925 Order in Council. That Order in Council is an Order made under the authority of an Act of Parliament, namely the British Settlements Act, 1887. It is therefore a “statute” within the meaning of that term as defined in section 3 of the Criminal Code.
The election is therefore a “Public election” within the meaning of section 5 of the Criminal Code. The Defendant has therefore been appointed Municipal Member for Accra by public election, and we have already held that the position of Municipal Member is an “office” within the meaning of section 5(2) of the Criminal Code.
It follows that in our opinion the Defendant is a Public Officer within the ·definition of “Public Officer” in section 5 of the Criminal Code, and we so answer the question submitted to us. Having so decided, it is superfluous to deal with contentions (c) and (d) put forward on behalf of the Crown, but we think it right to say that whilst (c) is obviously correct we do not agree with (d) for the reason that the Legislative Council Electoral Regulations are made under the 1925 Order in Council which although, as we have held, a “statute” is not either an Act of Parliament or an Ordinance and therefore the Regulations are not a” statute” within the four corners of the definition in section 3 of the Criminal Code.
Nor do we agree with the further contention of the Attorney-General that, even if the 1925 Order in Council is not a “statute” the qualifications for voting were, at the time of the election, regulated under the Town Councils Ordinance (Cap. 51), which is a “statute”, so that the election was a “Public election” within the meaning of section 5 of the Criminal Code. We think that the correct view upon this point is that the qualification for voting is regulated by Article 20(2) of the 1925 Order in Council by reference to the Town Councils Ordinance. Before leaving the case we wish to express both to the Attorney-General and Crown Counsel on the one hand and to Counsel for the Defendant on the other our appreciation of the great assistance they have rendered the Court in its endeavours to come to a correct decision upon the question of law submitted.
We have already indicated our answer to that question.
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