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REX
V.
SAMUEL RIBEIRO OKYERE BADU
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
1ST DAY OF JUNE, 1944
2PLR/1944/41 (WACA)
OTHER CITATION(S)
2PLR/1944/41 (WACA)
(1944) X WACA PP. 193 – 196
LEX (1944) – X WACA PP. 193 – 196
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
DOORLY, J.
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BETWEEN:
REX – Respondent
AND
SAMUEL RIBEIRO OKYERE BADU – Appellant
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ORIGINATING COURT(S)
Appeal by defendant from the decision of the Supreme Court, Kumasi
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REPRESENTATION
H. A. Hayfron-Benjamin — for Appellant
J.S. Manyo Plange, Crown Counsel — for the Crown
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ISSUE(S) FROM THE C AUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Charge of Libel under s. 246(2) of Criminal Code – Denial of publication for the first time by defendant in his evidence – Permission to prosecution to call rebutting evidence after close of defence-Criminal Procedure Code, s. 275
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CASE SUMMARY
Defendant was charged with intentional libel, and to prove publication the prosecution put in the newspaper containing the article complained of, an open letter to the Commissioner of Police, purporting to be signed by defendant, and a letter in identical terms to the Commissioner proved to be signed by defendant. The cross-examination was directed to justification and there was no suggestion that defendant was denying publication. When defendant came to give evidence, to the surprise of everyone he denied publication and this defence was adopted by his Counsel. Thereupon Counsel for the Crown intimated that he would call rebutting evidence on the point, and was permitted so to do by the trial Judge after the close of the defence. The defendant appealed, inter alia, on the ground that the trial Judge should not have so permitted.
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
1. the discretion to allow the prosecution to call rebutting evidence should be exercised only in exceptional cases, but that as the evidence of publication by defendant adduced by the Crown in the first instance was sufficient in the ordinary way and there had been no suggestion of denial of publication;
2. the making of such a denial by the defendant for the first time in his evidence and his giving evidence that it was not he but another person who sent the letter for publication, constituted “new facts” under s. 275 of the Criminal Procedure Code justifying the trial Judge in allowing the prosecution to call rebutting evidence.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:
The Appellant was charged, along with a man named Baiden at the Kumasi Assizes with-
“Intentional libel contrary to section 246(2) of the Criminal Code.”
and the particulars given of the offence were:-
“Jacob Eduam Baiden and Samu Ribeiro Okyere Badu on the 27th day of September, 1943, at Kumasi in Ashanti with intent to defame Thomas, William Sackey, Sergeant in Charge of Police, at Ashanti-Mampong unlawfully published in the issue dated the 27th September, 1943, of a newspaper entitled the Ashanti Pioneer in the form of an open letter addressed to the Commissioner of Police, Accra, which contained the following defamatory matter concerning the said Thomas William Sackey:-
1. The Sergeant then swerving from the law and correct Police Procedure, sat as Judge who found complainant guilty because he refused to respond to the Oath sworn to by the Krontihene and as a result, took pacification of £1 3s. from the complainant to the Krontihene, which amount the Sergeant positively took a share whilst it is never known to be legal that police officers shall sit as Judges to hear and determine Oath cases (meaning thereby that Thomas William Sackey was guilty of misconduct in his office as Officer in Charge of the Police at Ashanti-Mampong).
2. After this, Sergeant Sackey then directed and encouraged both the complainant and the Krontihene to give statement suitable for him to endanger and disgrace me; and having obtained his wish, he Sergeant Sackey ordered my arrest which was done in the afternoon of September 2, 1943, and I was charged with stealing £4; after he had collected false evidence in support of prosecution against me (meaning thereby that Thomas Williams Sackey was guilty of fabricating evidence with intent to pervert the course of justice).”
Baiden was acquitted but the Appellant was convicted and sentenced to six months’ imprisonment with Hard Labour. On appeal to this Court his Counsel has argued a number of grounds of appeal, but the only one with any substance is “Error in Law (c)” which reads:-
(c) Because the Prosecution were not taken by surprise to warrant the trial Judge giving them leave to adduce rebuttal evidence as in any case the burden is on the Prosecution to prove that it was the Appellant who published the alleged libellous matter or caused it to be published.”
The trial of the case took rather an unusual course, the Crown, by way of proving publication, put in evidence the newspaper in which the article containing the alleged defamatory matter was published under a heading: “Open letter to the Commissioner of Police, Accra” and over what purported to be the Appellant’s signature, and also an original letter in identical terms to the Commissioner of Police, Accra which was proved to be signed by the Appellant. This was in our view sufficient, in the ordinary way, to prove publication. Throughout the prosecution case, there was no suggestion by Appellant’s Counsel, either by cross-examination or otherwise, that the Appellant was denying publication but cross-examination was directed to justification. This is not surprising seeing that at that time Appellant’s Counsel himself was under the impression that the Appellant was not disputing publication.
After the Prosecution had been closed the following appears upon the record:-
“2nd Defendant – called upon – informed of his rights – elects to give evidence on oath – 4 witnesses – defence: statements are true and expression of opinion in good faith, etc.”
Presumably the words: “defence: statements are true and expression of opinion in good faith, etc.” are the opening of Appellant’s Counsel in pursuance of the provisions of section 272(4) of the Criminal Procedure Code. There is still not a word about disputing publication.
The Appellant then went into the witness box and gave evidence, inter alia—
“I did not write anything in the paper. I know nothing about the publication in the paper.”
Appellant’s Counsel himself was so taken by surprise by this evidence that, after the short evidence of another witness had been taken, he asked for an adjournment to consider his position; the record reads :-
“I ask for adjournment till tomorrow to consider my position as my client has changed his defence without my knowledge, i.e. that he did not publish the libel.”
The adjournment was granted.
On resumption next day Appellant’s Counsel intimated that he was adopting the denial of publication as part of the defence, whereupon Counsel for the Crown immediately intimated that he would “call rebutting evidence to prove this and to confirm what we have already proved.” This could, of course, only be done with the leave of the Court under section 275 of the Criminal Procedure Code, which reads as follows:-
“Notwithstanding anything contained in section 273, at the close of the evidence for the defence, or, where it is sought to rebut evidence of good character, after such evidence of good character has been given, the Court may, in its discretion, on the application of the advocate for the prosecution, grant him leave to call evidence to disprove any new facts set up by the defence. Where such evidence in rebuttal is given, the advocate for the defence shall be entitled to comment on the evidence so given.”
Then in the course of the defence a witness, Krobo Edusei, a reporter to the newspaper, was called to testify that the letter in question was sent to him for publication by one Akosa. Akosa was not called by the defence to corroborate this. After the close of the defence, the Prosecution. with the leave of the Court of course, called rebutting evidence, namely the man Akosa himself who testified that he did send the letter to Edusei for publication and that he did so at the request of the Appellant; a second witness, in rebuttal, was called to corroborate Akosa’s evidence. It is against the decision of the learned trial Judge granting leave to adduce evidence in rebuttal that the ground of appeal which we are considering is directed. We desire to say at once that, however we may decide this case, the practice of allowing the Prosecution to call evidence in rebuttal is not one which has our blessing. The discretion should be exercised very sparingly and only in quite exceptional cases. We think however that the present case is within that category and we are unable to say that the learned trial Judge exercised his discretion otherwise than judicially in granting leave to call evidence in rebuttal. It is clear that the Prosecution was, like Counsel for the Appellant, taken completely by surprise by the sudden and complete change in the nature of the defence, and that such a change was about to take place could not possibly have been foreseen. The evidence for the defence that it was Akosa and not the Appellant who sent the letter to Edusei for publication certainly constitute “new facts” within the meaning of that expression in section 275 of the Criminal Procedure Code already quoted. There is all the difference between this case and the case of R. v. Day (27 Criminal Appeal Reports, 3) to which Appellant’s Counsel pinned his faith in arguing the appeal. In that case Hilbery, J., in giving the judgment of the Court referred to the evidence which the Court held to have been wrongly admitted as evidence “the necessity for which was obvious”. That is far from being the position in the case now before us.
This ground of appeal therefore fails and, as we have already said, there is no substance in any of the other grounds.
The appeal is accordingly dismissed.
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