ASARE AND OTHERS v. THE REPUBLIC (NO. 2)

JUDGMENT OF OLLENNU J.A.

Ollennu J.A. delivered the ruling of the court. Learned counsel for the second appellant, Henry Kwadwoe Djaba, objected to Apaloo J.A. [p.51] joining to constitute the bench for the hearing of the appeal. He grounded his objection upon two short passages which appear in paragraph 144 at p. 24 of the report of the commission of inquiry appointed to inquire into the Kwame Nkrumah Properties, popularly known as the Apaloo Commission after its chairman, Apaloo J.A. The passages referred to read: (i) "Djaba was himself, as is well known, recently convicted of a gigantic fraud" and (ii) "It is not difficult to discern from the attitude which he put up that he expected the ex-President to intervene to stop the prosecution which resulted in his conviction."

Counsel said he took the objection with great trepidation but in the interest of justice, for, he submitted, the words "recently convicted of a gigantic fraud" is likely to convey to the ordinary man, the impression that the learned judge has already formed the opinion that the conviction of the second appellant is right, therefore by his participation in adjudicating upon the appeal, justice would not be seen manifestly to have been done. Counsel added, however, that he has no doubt of the integrity of the learned judge, that he had known him always to be open to persuasion, and would readily review a decision of his if he is convinced that it is in the interest of justice so to do.

For the respondent, learned Director of Public Prosecutions submitted that the objection is frivolous, and that when the Apaloo Report said that Djaba "was recently convicted of a gigantic fraud" it is merely stating a fact, and not recording an opinion on the correctness of the conviction.

We have no hesitation in saying that we do not see how an ordinary man can read into the words cited, the meaning which learned counsel for the second appellant places upon them. We have to credit the ordinary man with a certain amount of intelligence and appreciation; and we fail to see how a man with average intelligence could possibly think that a statement that Djaba was convicted of a gigantic fraud is tantamount to expression of opinion that Djaba has been rightly, properly or justly convicted of a gigantic fraud. Furthermore, the ordinary man would have to read the whole passage, and not pick out a few clauses out of their context if he should form an opinion which should be respected.

Now, paragraph 144 at