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REX
V.
EMMANUEL KWAMI BORSON
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
2ND DAY OF DECEMBER, 1941
2PLR/1941/8 (WACA)
OTHER CITATION(S)
2PLR/1941/8 (WACA)
(1941) VII WACA PP. 158 – 159
LEX (1941) – VII WACA PP. 158 – 159
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BEFORE THEIR LORDSHIP(S):
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
STROTHER-STEWART, J.
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BETWEEN:
REX — Respondent
AND
EMMANUEL KWAMI BORSON — Appellant
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REPRESENTATION
W. H. Irwin — for Crown
K. A. Bossman with E. A. Bannerman — for Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Conviction for Perjury contrary to section 359 of the Criminal Code — Appellant made false sworn statement before public officer — Statutory Declarations Act 1835 prohibits a “voluntary oath” — Fact that Appellant’s statement was not taken as the result of any judicial enquiry or for the prosecution of any offence vide section 13 of the Act but was a “voluntary oath” – Legal effect
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
Administration of the oath by the public officer and the swearing of the oath by the appellant were unlawful acts and hence the so-called oath was no oath at all.
Conviction and sentence quashed and a judgment and verdict of acquittal entered.
Appeal allowed
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND STROTHER-STEWART, J.
In this case the Appellant was convicted by Bannerman, J. sitting without a jury or assessors at the Accra Assizes of the offence of perjury contra. section 359 of the Criminal Code and sentenced to 9 months Imprisonment with hard labour.
The particulars given of the alleged offence were as follows:-
“Emmanuel Kwami Borson on the 16th day of July, 1931, at Akuse in the Volta River District in the Eastern Province in a written statement made by him upon oath before Austin Cathie a public officer stated that he acquired the piece of land upon which the building is situated by ancestral and customary allocation and that the building thereon was erected by him without the aid of any member of his family which statement he knew to be false or which he had not reason to believe to be true.”
In view of the wide wording of the definition of Perjury given in section 386 of the Criminal Code as follows: –
“A person is guilty of perjury if, in any written or verbal statement made or verified by him upon oath before any Court, or public officer, he states anything which he knows to be false, or which he has not reason to believe to be true”
the act of the appellant appears to come within the definition. But on appeal to this Court, the Court drew attention to a point which had not been raised in the Court below, namely that the oath in this case was what is known as a “voluntary oath”, the administration of which is expressly prohibited by section 13 of the Imperial Act entitled “the Statutory Declaration Act, 1835″, which applies to the Gold Coast and is in the following terms:-
“XIII. And whereas a practice has prevailed of administering and receiving Oaths and Affidavits voluntarily taken and made in matters not the subject of any judicial inquiry, nor in anywise pending or at issue before the Justice of the Peace or other person by whom such oaths or affidavits have been administered or received: and whereas doubts have arisen whether or not such proceeding is illegal; for the more effectual suppression of such practice and removing such doubts:
be it enacted, that from and after the commencement of this Act it shall not be lawful for any Justice of the Peace or other person to administer, or cause or allow to be administered, or to receive, or cause or allow to be received, any oath, affidavit, or solemn affirmation touching any matter or thing whereof such Justice or other person hath not jurisdiction or cognizance by some Statute in force at the time being:
provided always, that nothing herein contained shall be construed to extend to any oath, affidavit, or solemn affirmation before any Justice in any matter or thing touching the preservation of the peace, or the prosecution, trial, or punishment of offences, or touching any proceedings before either of the Houses of Parliament or any committee thereof respectively, nor to any oath, affidavit, or affirmation which may be required by the laws of any foreign country to give validity to instruments in writing designed to be used in such foreign countries respectively.”
In other words the administration of the oath by the District Commissioner and the swearing of the oath by the appellant were unlawful acts and in the result the so-called oath is no oath at all.
The learned Acting Solicitor-General, upon consideration agrees with this view of the law and has not sought to support the conviction in this Court.
The appeal is accordingly allowed, the conviction and sentence are quashed and it is ordered that a judgment and verdict of acquittal be entered. The appellant is discharged.
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