STATE vs. ANDOH AND OTHERS [1967]DLHC1542

Date	1967-05-18
Suit No.
Citation No.	[1967]DLHC1542

EDUSEI J.

JONATHAN ARTHUR FOR THE FIRST AND THE SECOND ACCUSED.

K. NARAYAN FOR THE THIRD ACCUSED.

U. V. CAMPBELL CHIEF STATE ATTORNEY FOR THE STATE.

[1967]DLHC1542
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													<main id="main" class="content" style="min-height: 60rem" >STATE <o:p></o:p>vs. <o:p></o:p>ANDOH AND OTHERS <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1967] GLR 355<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
18 MAY 1967<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

JONATHAN ARTHUR FOR THE FIRST AND THE SECOND
ACCUSED.<o:p></o:p>

K. NARAYAN FOR THE THIRD ACCUSED.<o:p></o:p>

U. V. CAMPBELL, CHIEF STATE ATTORNEY, FOR THE
STATE.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

EDUSEI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDUSEI J.<o:p></o:p>[His
lordship stated the facts and found that the first two accused persons had a
case to answer. With regard to P., third accused], I now turn my attention to
the case against the third accused who is charged with four counts of omitting
to make full and true entries of the bank balances in the balance sheets of
Nadeco Ltd.<o:p></o:p><o:p>&nbsp;</o:p>There is
evidence of knowledge of the third accused about exhibits G and M because the
second prosecution witness has deposed that at any time the third accused came
to audit the accounts of Nadeco Ltd. these books were given to him. He cannot
run away from the fact that he did not know that his audited accounts for
Nadeco Ltd. would be used in assessing the company’s income tax. The third
accused is a professional accountant who is employed by Nadeco Ltd. to audit
its accounts. There is no evidence that he was told that his audited accounts
would be used by the Commissioner of Income Tax but he must have known that his
audited accounts would be relied upon by several persons including the
Commissioner of Income Tax. I do not suppose the third accused can say that he
prepares different final accounts for different purposes for Nadeco. There is
evidence that bank balances prima facie are not taxable but there is evidence
that these bank balances were actually items of income because they were
created out of “general agency commissions” which were carried forward from
year to year without any tax having been paid. The omission of the bank
balances in counts (4), (6), (8) from exhibits AA1, AA2 and AA3 caused the
Commissioner of Income Tax to be defrauded because taxes were not paid on these
balances.<o:p></o:p>There is
evidence, however, that exhibit BB1 was not sent to the Commissioner of Income
Tax but the final accounts had been audited with the necessary certificate of
the auditor, which was stated on exhibit BB1. Here too the third accused
omitted from the balance sheet the bank balance which like the others is an
item of income as evidenced by exhibits G and M. In fact they are balances
carried forward from year to year. From folio 10 of exhibit G there was a
payment on 4 May 1964 of agency commission of the sum of £G59,550. Exhibit G
was fed by general agency commissions from exhibit M and the balances were
items of income but they never appeared in any of exhibits AA1, AA2, AA3, and
BB1. There is one important point made by Mr. Narayan which must be considered
by this court. Counsel has argued that all the four counts refer to the third
accused as an “auditor of Nadeco,” and by section 2 (3) of Criminal Code, 1960
(Act 29), “officer” is defined to include an auditor. Section 140 of Act 29
under which the third accused is charged speaks of an “officer.” He, however,
contends that section 136 of the Companies Code, 1963 (Act 179), which is later
legislation states that an auditor shall not be regarded as an agent or officer
of a company and concludes his arguments by saying that this section 136 of the
Companies Code, 1963 (Act 179), has impliedly repealed section 2 (3) of the
Criminal Code in so far as the definition of “officer” includes an “auditor.”<o:p></o:p><o:p>&nbsp;</o:p>Now it is
clear that provisions of an earlier Act may be revoked or abrogated in
particular cases by a subsequent Act either from the express language used
being addressed to that particular point or by implication or inference from
the language used. There is no express repeal of section 2 (3) of Act 29 by
section 136 of the Companies Code but I am asked to imply a repeal of it. But
before this can be done the provisions of a later enactment must be so
inconsistent with, or repugnant to, the provisions of an earlier one that the
two cannot stand together. Unless the two Acts are so plainly repugnant to each
other that effect cannot be given to both at the same time, a repeal will not
be implied.<o:p></o:p><o:p>&nbsp;</o:p>Section
136 of the Companies Code, 1963 (Act 179), in my opinion, does not desire to
fetter the way and manner the auditor does his auditing; the section gives him
absolute freedom and he is in the category of an independent contractor, so to
speak; he is in a fiduciary relationship to the directors and the shareholders
of the company, and he must not be subservient to any member of the company
whose accounts he is auditing so that he can discharge his duties with honesty
and efficiency. I do not see how this section 136 of the Companies Code (Act
179), can be considered as being inconsistent with section 2 (3) of the
Criminal C</main>