THE REPUBLIC vs HENRY NUERTY KORBOE [2014]DLHC4200

Date	2014-02-10
Suit No.	CASE NO. FTRM/52/11
Citation No.	[2014]DLHC4200

HIS LORDSHIP JUSTICE P. BRIGHT MENSAH

JUSTIN PAWVRA FOR THE APPLICANT

STANLEY AMARTEFIO FOR THE RESPONDENT

[2014]DLHC4200
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs<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; HENRY NUERTY
KORBOE&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; <o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CASE NO. FTRM/52/11&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; DATE:
10TH FEBRUARY, 2014<o:p></o:p>

</div>COUNSEL:<o:p></o:p>JUSTIN
PAWVRA FOR THE APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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STANLEY
AMARTEFIO FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE P. BRIGHT MENSAH<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>This
case evokes very interesting and important legal issues for discussion.<o:p></o:p>Before
the court for consideration is a Motion on Notice for Committal for perjury
filed on 06/11/13by the Applicant herein (Henry Nuerty Korboe) against the
Respondent herein(Caradoc Mills Lamptey).&nbsp;
The application, according to learned Counsel for the Applicant, is
premised under S.152(1)(b) of Act 30 as amended by S.16 of Act 633.&nbsp; That provision of law stipulates:<o:p></o:p>“152&nbsp;
(1) Where it appears to it that a person is guilty of perjury in a proceeding
before it, the court may<o:p></o:p>(a)&nbsp;&nbsp;
x&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; x&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; x&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; x<o:p></o:p>(b)&nbsp;
commit that person to prison for a term not exceeding six months with or
without hard labour, or impose a fine not exceeding one hundred and fifty
penalty units or impose both penalties in each case as for a contempt of
court.”<o:p></o:p>Before
the motion could see the light of day, learned Counsel for the Respondent has
raised a preliminary legal objection to the capacity of the Applicant to
institute the action.&nbsp; That has
precipitated this Ruling.<o:p></o:p>As
I set out to consider the propriety of the arguments of Counsel, I deem it
useful to chronicle the facts of the substantive criminal trial, out of which
the instant application has been brought.<o:p></o:p>Briefly
stated, Henry Nuerty Korboe stands charged in that case with one Count of
Stealing contrary to S.124(1) of the Criminal Offences Act, 1960 (Act 29) as
amended.&nbsp; He is alleged to have
dishonestly appropriated agro chemicals and implements in the value of
Gh¢900,000.00 belonging to his employers, Reiss &amp; Co. (Gh) Ltd.&nbsp; The Accused was the head of the Agriculture
Department of the company.&nbsp; Among other
duties, he was in charge of importation and distribution of agrochemicals and
other implements belonging to the company.<o:p></o:p>It
is alleged that between September, 2005 and October, 2006 Reiss &amp; Co.
imported into Ghana goods worth Gh¢1,562,295.79 and the Accused saw to the
clearing of the goods from the Tema Port.&nbsp;
He then supplied the goods to the customers of the company in Accra,
Kumasi, Techiman etc.&nbsp; After waiting for
several months and the monies were not forthcoming, the company sought the
assistance of a debt collection company to collect those monies.&nbsp; The Accused person was tasked to assist by
identifying the debtors to whom he sold the goods but it is alleged that he
rather went into hiding in July, 2007 until he resurfaced in November, 2007
when he reported himself to the Police in the company of his lawyer.&nbsp; After investigations, he was charged with the
offence.<o:p></o:p>Now,
it is the case of the Respondent that the Applicant cannot initiate the present
proceedings against him.&nbsp; It has been
argued on his behalf that the power to initiate any criminal proceedings is
vested only in the Attorney General.&nbsp;
Making reference to Article 88 of the 1992 Constitution and particularly
clauses 3 &amp; 4, learned Counsel for the Respondent has charged that insofar
as the Applicant is not the Attorney General he cannot and ought not be allowed
to charge the Respondent.&nbsp; He did draw
the court’s attention to the title of the motion (as shown supra) and submitted
most forcefully that the matter is being prosecuted in the name of the
Republic, thus making it a criminal action.<o:p></o:p>Counsel
did emphasize that by reason of Article 88, it is only the Attorney General who
has been clothed with the power to initiate criminal proceedings or someone
authorized by him.&nbsp; He maintained that
there is nothing in the accompanying affidavit that the Applicant (who is himself
standing trial in the substantive criminal case) has been so authorized by the
Attorney General.&nbsp; That being so, he
concluded, the application ought to be dismissed in limine for want of
capacity.<o:p></o:p>In
reply, learned Counsel for the Applicant has also ably submitted that the
contention of his learned friend is misconceived.&nbsp; Arguing further, he did canvass the point
that the application has been brought against the Respondent as a result of a
perjury committed.&nbsp; Whilst conceding that
by Article 88 it is only the Attorney General or anybody so authorized by him
who can initiate criminal proceedings, learned Counsel relied on Article 126(2)
of the Constitution and argued with much candour that by that provision a
private citizen is clothed with the power to initiate such action.&nbsp; He added that the instant application for an
order for the committal of perjury is hinged on Article 126.<o:p></o:p>Explaining
further, he contended that the Respondent in giving evidence on oath against
the Applicant both in the substantive criminal trial pending in this court and
a civil case pending in the Fast Track High Court, has told conscious
lies.&nbsp; According to Counsel, the
Respondent had testified on oath that he picked some documents from the registry
of that court whichthe p</main>