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REX
V.
ERNEST PREMPEH AND OTHERS
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
5TH DAY OF FEBRUARY, 1945
2PLR/1945/19 (WACA)
OTHER CITATION(S)
2PLR/1945/19 (WACA)
(1945) XI WACA PP. 16 – 19
LEX (1945) – XI WACA PP. 16 – 19
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BEFORE THEIR LORDSHIPS
HARRAGIN, C.J., GOLD COAST
DOORLY, J.
M’CARTHY J.
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BETWEEN
REX – Respondent
V.
1. ERNEST PREMPEH,
2. KENYON VINCENT DALEY,
3. YAW BOATENG ALIAS ERIC OFORI ATTA,
4. MARIA SMITH – Appellants
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ORIGINATING COURT(S)
APPEAL FROM SUPREME COURT, GOLD COAST
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REPRESENTATION
E. C. Quist with E. O. Asafu-Adjaye and H. A. Hayfron-Benjamin — for Appellants
Arthur Ridehalgh — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE – CONSPIRACY – PERJURY:- Conspiracy to abet Perjury contrary to Sections 49 (1), 46(1) and 359 of the Criminal Code and (2) Abetment of Perjury contrary to Sections 46(1) and 359 of the Criminal Code — Amendment of Information after close of case for defence and addresses of Counsel for Crown and Defence — Objection to any formal defect on the face of information shall be taken immediately after information has been read over to the accused and not afterwards — Present case distinguishable from those of Rex v. Hughes, 20 Cr. App. 4 and Rex v. Bravo Jones, 5 W.A.C.A. 75.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. That the count as it stood gave reasonable information as to the nature of the charge and that the addition of the word “knowingly” was, in the circumstances, of a formal nature and could in no way embarrass the Appellants. Incitement to make a false statement on oath is in effect incitement to make a false statement knowingly. Therefore, that the amendment made by inserting the word “knowingly” was in the circumstances of a formal nature and could in no way embarrass the Appellants.
2. That any objection to an information for any formal defect on the face thereof shall be taken immediately after the information has been read over to the accused and not afterwards and that if the objection to the information had been raised at the proper time, as laid down by law and the amendment had been made at the beginning of the case instead of at the end, there could not have been even the suggestion of embarrassment to the Appellants.
3. That sufficient particulars of the alleged offences and as to the nature of the charge were set out. Conspiracy to abet perjury might be proved even though the Crown was not aware of the names of the persons whose perjury was to be instigated. It might well be that the accused persons were arrested before they had an opportunity to carry out all the terms of their conspiracy, and it can hardly be argued that they were entitled to be acquitted because the names of the persons they would have instigated were not given.
4. That no evidence before the Court to support conviction on the 2nd count.
Appeals against convictions on the first count dismissed. Those on the second count allowed and all the Appellants acquitted thereon.
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MAIN JUDGMENT
The following judgment of the Court was delivered by HARRAGIN, C.J., GOLD COAST:-
In this case the four Appellants were convicted on two counts which originally read as follows:-
“First Count: Conspiracy to abet Perjury,
Contrary to Sections 49(1), 46(1) and 359 of the Criminal Code.
Particulars of Offence:
Ernest Prempeh, Kenyon Vincent Daley, Yaw Boakye alias Eric Ofori Atta and Maria Smith, on diverse days in the month of July, 1944, in Ashanti, agreed together with a common purpose for abetting perjury, by instigating such persons as they might thereafter induce to give evidence to make false verbal statements upon oath before a Court to the effect that the said persons had seen Akyea Mensah alive at Kete Krachi:
Second Count:
Abetment of Perjury, Contrary to Section 46(1) and 359 of the Criminal Code.
Particulars of Offence:
Ernest Prempeh, Kenyon Vincent Daley, Yaw Boakye alias Erie Ofori Atta and Maria Smith on the 21st day of July, 1944, in Ashanti, instigated Emmanuel Kwadjo Ohemeng to commit perjury by making knowingly a false verbal statement upon oath before a Court to the effect that he the said Emmanuel Kwadjo Ohemeng had seen his father Akyea Mensah alive at Kete Krachi”.
It should be noted that both counts were amended after the close of the case for the defence and the addresses of both Counsel. The first count was amended in the particulars of offence by the insertion of the word “knowingly” between the words “make” and “false” which occur in the fifth and sixth lines thereof, while the second was amended in the particulars of offence by deleting the words “on the 21st day of” and substituting therefor the words “on a day in”.
Eight grounds of appeal were filed, but the fifth and eighth grounds were struck out on the ground that they were too vague, and Counsel for the Appellants agreed that both these grounds were covered by ground 6.
To deal with the second count first, it should be noted that the Appellants were charged with instigating one Ohemeng to commit perjury by making knowingly a false verbal statement upon oath before a Court. The evidence in support of this charge is to be found in the evidence of Ohemeng who states as follows:
“First accused said he would like me to give a statement that my father is not dead and that he is alive at Krachi so that he would give me £300 and after he would find me work and would pay me £5 a month”.
Nowhere in his evidence does he suggest that the Appellants instigated him to make a false verbal statement on oath before a Court. The Crown asks the Court to look at the surrounding circumstances from which (it is contended) it is reasonable to deduce that when the Appellants or one of them asked Obemeng to make a statement he meant by that a false statement on oath before a Court. If this had been the correct interpretation to be put on the word “statement” then in our view it was clearly the duty of the Crown to lead some evidence on the point, but in fact Ohemeng was not even asked what he understood the statement to mean. In our opinion there was not evidence before the Court upon which it was reasonable to convict on this charge.
With regard to count 1, various points of law have been taken by Counsel for the Appellants. The first point taken is to be found in ground 1 of the grounds of appeal, which states that the learned trial Judge erred in law in amending the information at the stage of the trial indicated above.
The law relating to amendments in informations is to be found in Section 231 of the Criminal Procedure Code, which sets out quite clearly that an amendment may be made at any stage of the trial unless such an amendment cannot be made without an injustice.
Now the amendment which was made in this case consisted of inserting the word “knowingly”, and we may say at once that as this count was one for conspiracy, such an amendment was not, in our view, necessary, for in the 31st edition of Archbold’s “Criminal Pleading Evidence & Practice” at page. 1414, on the authority of B. v. Rispal, 97 E.B. page 852, the following words occur:-
“In stating the object of the conspiracy the same certainty is not required as in an indictment for the offence”.
In the words of Abbott, C.J., in R. v. Gill, 106 E.R. page 341, at page 342,
“the gist of the offence is the conspiracy: and although the nature of every offence must be laid with reasonable certainty, so as to apprise the defendant of the charge, yet I think that it is sufficiently done by the present indictment”,
and we are of the opinion that this authority, which has been quoted with approval since the Indictments Act, 1915, may be taken as sufficient authority for our finding in this case. In any event the amendment was only made to the particulars of the offence, the meaning of which was already abundantly clear, and as Section 202(1) of the Criminal Procedure Code reads as follows:
”Every information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge”,
we are of the opinion that the count as it stood gave reasonable information as to the nature of the charge and that the addition of the word “knowingly” was, in the circumstances, of a formal nature and could in no way embarrass the Appellants. Incitement to make a false statement on oath is in effect incitement to make a false statement knowingly. We therefore hold that the present case is distinguishable from those of Rex v. Hughes, 20 Cr. App., 4, and Rex v. Bravo Jones, 5 W.A.C A, 75, 76.
Before leaving this subject, we feel it our duty to point out that it is clearly laid down that any objection to an information for any formal defect on the face thereof shall be taken immediately after the information has been read over to the accused and not afterwards and that if the objection to the information had been raised at the proper time, as laid down by law and the amendment had been made at the beginning of the case instead of at the end, there could not have been even the suggestion of embarrassment to the Appellants. From this it emerges that even if there had been any embarrassment caused by the lateness of the amendment, it was due entirely to Appellants’ Counsel.
It was further argued under ground 4 that sufficient particulars of the alleged offences were not set out in that the names of the persons alleged to have been instigated were not given. Clearly there is no substance in this ground; as it might well be that the conspiracy to abet perjury might be proved even though the Crown was not aware of the names of the persons whose perjury was to be instigated. It might well be that the accused persons were arrested before they had an opportunity to carry out all the terms of their conspiracy, and it can hardly be argued that they were entitled to be acquitted because the names of the persons they would have instigated were not given. In this connection vide R. v. Peck, 112 E.R.at page 1372, where it was held that in a case of conspiracy to defraud “it is no objection that the Court does not name the parties to be defrauded”.
With regard to the general ground of appeal that the verdict cannot be supported having regard to the evidence before the Court we are of the opinion that there was ample evidence before the Court on which to convict the Appellants of conspiracy if the trial Court considered such evidence to be the evidence of truth. We see no reason to disagree with the trial Court on its finding on this matter.
The appeals against the convictions on the first count are dismissed, those on the second count are allowed and all the Appellants are acquitted thereon.
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