GLAH AND ANOTHER vs. THE REPUBLIC [1989]DLHC2021

Date	1989-06-23
Suit No.
Citation No.	[1989]DLHC2021

AMUAH J.

HOMENYA FOR THE APPELLANTS.

DZANKU ASSISTANT STATE ATTORNEY FOR THE REPUBLIC.

[1989]DLHC2021
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">GLAH AND ANOTHER<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">THE REPUBLIC<o:p></o:p>[HIGH COURT, HO]<o:p></o:p>[1992] 2 GLR 15<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">

</div>COUNSEL:<o:p></o:p>HOMENYA FOR THE APPELLANTS.<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">

DZANKU, ASSISTANT STATE ATTORNEY, FOR THE REPUBLIC. <o:p></o:p>

</div>JUDGMENT OF AMUAH J.<o:p></o:p>This is an appeal from the judgment of the District Magistrate
Grade II, Kpando delivered on 21 January 1989. The appellants who were charged
with the offence of conduct conducive to breach of the peace contrary to
section 207 of the Criminal Code, 1960 (Act 29) were found guilty and sentenced.
The first appellant was sentenced to twelve months’ imprisonment with hard
labour while the second appellant was sentenced to a fine of ¢15,000 or in
default to be committed to prison for twelve months.<o:p></o:p>The facts were given by Mr. Homenya, learned counsel for the
appellants. According to the prosecution the first appellant had an affair with
a woman who happened to be his mother-in-law. On the second count the first
appellant is also charged for having an affair with a woman who happened to be
his wife’s sister.<o:p></o:p>The second appellant was charged for having an affair with the
first appellant. According to Mr. Homenya the magistrate should not have
accepted a plea of guilty because having an affair with a mother-in-law or
sister-in-law is not an offence under the law. He pointed out that they were
convicted for an offence which does not exist. He also complained of the
sentences which according to him were excessive.<o:p></o:p>Mr. Dzanku, Assistant State Attorney, however supported the said
judgment of the magistrate and submitted that the conduct of the appellants was
insulting as a breach of the peace is likely to be occasioned. He submitted
that the appellants were put before the chief and elders of Dafor as well as
the Provisional National Defence Council (P.N.D.C.) District Secretary, Kpando,
and were warned to desist from such immoral acts and association but have not
paid heed. He further submitted that if other members of the family of the
three women had not exercised restraint serious breach of the peace would have
been occasioned. He prayed that the appeal is dismissed.<o:p></o:p>Now section 207 of Act 29 reads 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">“207. Any person who in any public place or at any public meeting
uses threatening, abusive or insulting words or behaviour with intent to
provoke a breach of the peace or whereby a breach of the peace is likely to be
occasioned, shall be guilty of a misdemeanour.”<o:p></o:p>The emphasis is on a public meeting or public place. These immoral
acts were committed away from the eye of the public. There is also the fact
that the first appellant is having two children each with his wife,
mother-in-law and sister-in-law and such association started as far back as
1976.<o:p></o:p>There is no doubt that customary law frowns upon such a conduct
but it is not caught by any section of Act 29 and the family cannot take an
easy line of things by pursuing their criminal action. The first appellant has
lived with and cohabited with these spouses peacefully for over seventeen years
and has two children with each of them. If the opposition from the family is
now feared then it is the family who should be restrained. In Beatty v.
Gillbanks (1882) 9 Q.B.D. 308 which arose out of opposition to the Salvation
Army in its early days, the local Salvationists had been convicted of unlawful
assembly and ordered to find sureties to keep the peace by a court of petty
sessions. On appeal to the Divisional Court it was held that since the
association was for religious exercises an assembly and procession in the
streets was not in itself unlawful. The disturbance of the peace was caused by
the opponents of the Salvationists (known as the Skeleton Army) who had on
several occasions violently interfered with their activities. It was clear that
had the Salvationists not met in public and marched in procession, there would
have been no disturbance of the peace. Moreover previous meetings had caused
disorder so that the Salvationists knew that similar consequences were likely
to ensue. But since the disturbances were caused by people antagonistic to the
Salvationists and they themselves had committed no acts of violence, they could
not be convicted of unlawful assembly and be bound over to keep the peace.<o:p></o:p>The prosecution would not take the easy course of preventing an
association which is not caught by section 207 of Act 29 simply because they
the prosecution feared opposition from the family.<o:p></o:p>The appeal is allowed. Convict</main>