MENSAH GYIMAH vs. THE REPUBLIC [1971]DLCA2131

Date	1971-05-28
Suit No.
Citation No.	[1971]DLCA2131

APALOO JSC

ANIN J.S.C.

ARCHER J.A.

DR. I. L. OHENE DJAN FOR THE APPELLANT.

F. P. SARKODEE SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1971]DLCA2131
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													<main id="main" class="content" style="min-height: 60rem" >MENSAH GYIMAH <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 2 GLR 147<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:
28 MAY 1971.<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">

DR. I. L.
OHENE DJAN FOR THE APPELLANT.<o:p></o:p>

F. P.
SARKODEE, SENIOR STATE ATTORNEY, FOR THE RESPONDENT.<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">

APALOO, ANIN JJ.S.C. AND ARCHER J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANIN J.S.C<o:p></o:p>Anin
J.S.C. delivered the judgment of himself and Apaloo J.S.C. At the Ashanti
Criminal Session held at the Kumasi High Court on 2 August 1969 before Annan J.
(as he then was) sitting with the aid of assessors, the appellant was found
guilty of both offences of negligent libel, contrary to section 112 (1), and of
sedition contrary to section 183 (3) of the Criminal Code, 1960 (Act 29). He
was convicted and sentenced to a fine of N¢50.00 or three months’ imprisonment
with hard labour on count one, and to a fine of ¢100.00 or six months’
imprisonment with hard labour on count two, both sentences to run concurrently.
From this conviction, the appellant has appealed to this court on no fewer than
eight grounds of appeal.<o:p></o:p><o:p>&nbsp;</o:p>The
particulars of the said offences as appearing on the bill of indictment are as
follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Kwaku
Attakora Mensah Gyimah on 29 February 1968 at Kumasi in the Ashanti Region
unlawfully and negligently published in a newspaper known as the Ashanti
Pioneer defamatory matter concerning Border Guards in Kumasi, in the form of an
article entitled Topics of the Moment: Border Guards Scandal, containing the
following: ‘Our Border Guards who have been parading through the Kumasi streets
see the Zambrama men carrying watches, perfumeries of all kinds from the
French-speaking neighbouring countries. Also they see Rothmans and Players
cigarettes which have found their way illegally into this country without question.
But they have been making scapegoats of men like Boham who started life as
small shirts tailor in the same shop he started trading some sixteen years ago.
Policemen, both plain and uniformed, drink free from Boham. Around the area are
other traders whose commodities do not differ from Boham’s. But our Border
Guards pass with their heads down and eyes closed [meaning that Border Guards
in Kumasi agree to permit their conduct as public officers to be influenced by
the gift of free drinks from Boham]...’ Kwaku Attakora Mensah Gyimah on 29
February 1968 at Kumasi in the Ashanti Region published in a newspaper known as
the Ashanti Pioneer a seditious writing about Ghana Border Guards in the form
of an article entitled Topics of the Moment: Border Guards Scandal, containing
the following false accusation of misconduct in the official duties of Ghana
Border Guards made recklessly: ‘The information just received supported by the
influx of ‘French manufactured’ prints in Kumasi and other places, is that the
Border Guards know the movements of trucks carrying prints. They weigh between
6-7 tons and carry between 18 and 20 bales containing prints. The bargain,
therefore, between the Border Guards and the traffickers is N¢2 on each print;
therefore for each bale that passes the smuggler on border pays 340 New Cedis;
so that a truck carrying 20 bales readily pays N¢6,800.00 to the Border Guards.
Drinkables like whisky (Scotch brands) old Tom and Dry Gins over there are
cheap, so instead of taxes going to the Government, Border Guards enrich their
pockets’.”<o:p></o:p><o:p>&nbsp;</o:p>The
charges in this case arose out of a publication by the appellant in the Pioneer
newspaper of 29 February 1968 entitled Topics of the Moment: Border Guards
Scandal. The publication was put in evidence as exhibit A. The appellant
admitted authorship of the article in question, and its publication in the
Pioneer, as alleged (vide exhibit D: the appellant’s cautioned statement of 7
March 1968). The prosecution called a total of 31 witnesses (all but three of
whom were members of the Border Guards) to establish the falsity of the
allegations contained in the said article (exhibit A). Drawn from Border Guards
stations and posts scattered throughout Ghana, these witnesses in turn,
testified about their shock and dismay on reading exhibit A which they each
considered to be grossly false and defamatory. They denied in particular the
distinct allegation that they collect N¢2 bribe from smugglers for each print
allegedly permitted to be smuggled through the borders. Those stationed in
Kumasi denied either making Boham a scapegoat, or drinking free from his bar,
as alleged in exhibit A. Each witness denied having committed any misconduct in
the discharge of his official duties as a Border Guard.<o:p></o:p>