ASARE AND OTHERS v. THE REPUBLIC (NO. 3)
October 11, 1968
COURT OF APPEAL
CORAM
- OLLENNU AZU CRABBE APALOO LASSEY JJ.A. EDUSEI J
Areas of Law
- Criminal Law and Procedure
- Evidence Law
- Commercial Law
- Administrative Law
October 11, 1968
COURT OF APPEAL
CORAM
AI Generated Summary
This appeal arose from Ghana’s procurement of Solo Kleinmotoren GmbH mistblowing machines for a national capsid control scheme through local entities Farm Machinery Supplies (F.M.S.) and Ghana Agricultural Machinery Company Ltd. (GAMCO). The High Court convicted former Minister of Food and Agriculture Francis Yao Asare, Henry Kwadwoe Djaba, and James Quartey (alias Kwesi Kota) of conspiracy to commit corruption, fraud by false pretences (with convictions entered as stealing), and related counts after a 112‑day trial. On de novo hearing before a five‑judge Court of Appeal, the majority (opinion by Ollennu J.A., with Azu Crabbe J.A. and Edusei J.) held the trial judge misdirected himself by convicting for stealing on fraud counts and that substitution to fraud by false pretences was barred under N.L.C.D. 84 paragraph 14(2). The majority found that the government intended to pass ownership with payments, the £G50/£G48 prices reflected packages including services authorized by Solo, and the prosecution failed to prove false pretences or conspiracy to commit corruption. Multiple serious misdirections and wrongful admission of statements further vitiated the verdicts. Apaloo J.A. dissented, advocating substitution to fraud convictions and upholding corruption conspiracy; Lassey J.A. dissented in part on count (1). The Court allowed the appeals and entered acquittals.
JUDGMENT OF OLLENNU J.A.
Ollennu J.A. delivered the judgment of himself and of Azu Crabbe J.A. and Edusei J. The appellants were tried by Akainyah J.S.C. in the High Court, Accra, with the aid of assessors. The indictment contained ten counts; it charged all the appellants with one count of conspiracy to commit the crime of corruption by a public officer; two counts of defrauding by false pretences; and one count of conspiracy to defraud. It charged the second and third appellants with two counts of falsification of accounts. It charged the first and second appellants with one count of conspiracy to defraud and one count of defrauding. It also charged the second appellant alone with one count of falsification of accounts and one count of corruption of a public officer.
The trial began on 23 September 1964, and continued from day to day except for one or two short breaks for a few days, and was concluded on 10 May 1965, in all 112 days. The summing-up to the assessors lasted three full days, the notes thereof covered 28 pages and the judgment of the learned judge occupied 82 closely typed pages. The learned judge convicted all the appellants on count (1) which charged them with conspiracy to commit the offence of corruption of a public officer, and the third count which charged them [p.813] with conspiracy to defraud by false pretences. He convicted the first and the second appellants only on count (7) which charged them with conspiracy to defraud by false pretences, he convicted all the appellants of stealing on counts (2) and (4) instead of the offences of fraud by false pretences charged in those counts and the first and second appellants of stealing on count (8) which charged them with fraud by false pretences, and acquitted the second and third appellants on counts (5), (6) and (9), which charged them with falsification of accounts, and also acquitted the second appellant on count (10). Upon their convictions, the learned judge sentenced the appellants to terms of 15 years', 21 years' and 24 years’ imprisonment with hard labour on the various counts, the sentences to run concurrently.
The appellants appealed to this court from their convictions. The ordinary bench before which the appeal was argued reserved judgment after a hearing lasting about three months, i.e. from 14 November 1966 to 16 January 1967, occupying 29 days. On 2 June 1967, the case was put on the list and the court made the following announcement:
"While we were considering our j