THE REPUBLIC vs HENRY NUERTY KORBOE
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT
    ACCRA - A.D 2014
THE REPUBLIC
HENRY NUERTY KORBOE

DATE:  10TH FEBRUARY, 2014
CASE NO:  FTRM/52/11
JUDGES:  HIS LORDSHIP JUSTICE P. BRIGHT MENSAH
LAWYERS:  JUSTIN PAWVRA FOR THE APPLICANT
STANLEY AMARTEFIO FOR THE RESPONDENT
RULING

This case evokes very interesting and important legal issues for discussion.

 

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). 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. That provision of law stipulates:

 

“152 (1) Where it appears to it that a person is guilty of perjury in a proceeding before it, the court may

(a)        x          x          x          x

(b) 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.”

 

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. That has precipitated this Ruling.

 

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.

 

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. He is alleged to have dishonestly appropriated agro chemicals and implements in the value of Gh¢900,000.00 belonging to his employers, Reiss & Co. (Gh) Ltd. The Accused was the head of the Agriculture Department of the company. Among other duties, he was in charge of importation and distribution of agrochemicals and other implements belonging to the company.

 

It is alleged that between September, 2005 and October, 2006 Reiss & 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. He then supplied the goods to the customers of the company in Accra, Kumasi, Techiman etc. 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. 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. After investigations, he was charged with the offence.

 

Now, it is the case of the Respondent that the Applicant cannot initiate the present proceedings against him. It has been argued on his behalf that the power to initiate any criminal proceedings is vested only in the Attorney General. Making reference to Article 88 of the 1992 Constitution and particularly clauses 3 & 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. 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.

 

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. 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. That being so, he concluded, the application ought to be dismissed in limine for want of capacity.

 

In reply, learned Counsel for the Applicant has also ably submitted that the contention of his learned friend is misconceived. Arguing further, he did canvass the point that the application has been brought against the Respondent as a result of a perjury committed. 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. He added that the instant application for an order for the committal of perjury is hinged on Article 126.

 

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. According to Counsel, the Respondent had testified on oath that he picked some documents from the registry of that court whichthe parties had filed in compliance with an order made by the court. However, a Search Report conducted in the registry had revealed that the parties never filed such documents but that evidence had rather shown that the Respondent went to the offices of Reiss & Co to pick them and relied on them extensively in his report. It was Counsel’s most profligate argument, therefore, that by the conscious and obvious lies told to the court by the Respondent, he has committed contempt of court in the form of perjury. In support of that proposition he referred the court to ACKAH v ADJEI-ACHEAMPONG & ANR (2005-2006) SCGLR 1 @ pp13-15.

 

Counsel next referred to S.210 of the Criminal Offences Act, 1960 (Act 29) which creates the offence of Perjury, and S.296 of the Criminal and other offences Act, 1960 (Act 30) that guides the court in sentencing. He did also refer to S.152(1)(b) of Act 30 and argued quite strongly that it is only when the case comes in the mainline prosecution that Article 88 comes into play. However, where, as it is in the instant case, the action is by any other person than the Attorney General then Article 126 is set in motion, he stressed. In the main, he concluded therefore, that the Applicant has a solid constitutional basis to initiate the instant application and urged on the court to dismiss the contention of learned

 

Counsel for the Respondent. It will be absurd if the Attorney General was to prosecute his own witness (the Respondent herein), he added.

 

The ultimate question:

 

The answer to the question raised in the preliminary legal objection turns on whether a private citizen can initiate perjury committal proceedings against a witness.

 

But what is perjury?

 

The Osborn’s Concise Law Dictionary 8th Ed defines it as false swearing; the making on oath by a witness in judicial proceedings of a statement material in the proceedings, which he knows to be false or which he does not believe to be true. Under our statutes, what constitutes perjury has been defined in the Criminal and other Offences Act, 1960 (Act 29), S.211 as:

 

“211. A person commits perjury if in a written or verbal statement made or verified by that person on oath before a court, or a public officer or before President or before a commission or committee states anything knowing that the statement is false in a material particular, or which that person does not have a reason to believe is true.”

 

As a matter of public policy, witnesses must be able to give their evidence without fear of any consequences. Short of that,most qualified and compellable witnesses will be unwilling to come to court to assist it with their testimonies. The result will be that the courts would not receive the co-operation of witnesses. In recent times the courts have lent their support to this principle. In one case, Lord Denning posited:

 

“Witnesses must be able to give their evidence without fear of consequences. They might be deterred from doing so if they were at risk ofbeing sued for what they said.”[1](emphasis supplied)

 

It is worthy of note that long before Lord Denning characteristically laid down the rule in that case,the

House of Lords has affirmed the following statement of Kelly C.B. in an earlier case:

 

“The principle we apprehend, is that public policy requires that witnesses should give their testimony free from any fear of being harassed by an action or an allegation, whether true or false, that they acted with malice.”[2](emphasis mine)

 

But whereas as a matter of public policy witnesses should be given the latitude to offer their testimony, perjured testimony given maliciously and with intent to pervert justice is by law, also deprecated. Perjury committed by a prosecution witness in a criminal case may result in the sentencing of an innocent man to a term of imprisonment or the victim suffering loss of reputation. Equally, perjury by a defence witness may induce an unjust acquittal and or leave criminals at large in the community. It is on this basis that the law makes it a criminal offence under our domestic laws. S.210 of Act 29 creating the offence enacts in sub-section 1that a person who commits perjury commits a second degree felony. And a person who commits perjury with intent to cause the conviction of any other person for a criminal offence punishable with death, commits a first degree felony[3]. Thus, although a witness may enjoy some form of immunity, it is not absolute.

 

That leads me to addressing the critical question as to the want of capacity of Henry Korboe to institute perjury proceedings against Caradoc Mills Lamptey.

 

Needless to emphasize, I have carefully scrutinized and given active consideration to all the relevant submissions canvassed by both learned Counsel. I have equally read and internalized the decision of the Supreme Courtas well as the statutes quoted to me by Counsel.

 

Now, having regard to the arguments by Counsel and the relevant case law, I am persuaded by the statements of law to uphold the submissions of learned Counsel for the Respondent that the Applicant lacks the capacity to institute the instant perjury proceedings. In my respectful opinion, the instant application ought to fail on the grounds stated here below.

 

To being with, the case relied on by learned Counsel for the Applicant is not on all fours with the instant case and therefore distinguishable. The Supreme Court in the ACKAH v ADJEI-ACHEAMPONGcase did not lay down any general rule that a private person can initiate perjury proceedings against a witness who has testified in a case whether criminal or civil, as the case may be. As rightly pointed out by Atuguba JSC, the principal issue in the case turned on whether proceedings for contempt of court were constitutional. The gravamen of the matterwas whether contempt of court was a criminal offence and therefore the prerogative of only the Attorney General in terms of Article 88 of the 1992 Constitution to prosecute it.

 

Having considered the arguments on both sides in earnest,the most distinguished jurist, Date-Bah JSC in his usual brilliant exposure of the law concluded in that case as follows:

 

“Accordingly, I hold that in the Ghanaian jurisdiction contempt of court proceedings initiated by a private party, as distinct from the Attorney-General, pursuant to the High Court Rules, are not unconstitutional and void. In this regard, the defendant is right in contending that not only is the substantive common law offence of contempt saved by the saving provision in the Constitution, namely, Article 126(2), but also the procedure governing common law contempt applications in existence immediately prior to the coming into force of the 1992 Constitution is also saved until such time that an authoritative change is duly made”[4].(emphasis highlighted)

 

Concurring in the dictum, Atuguba JSC also postulated as follows:-

 

“…………………..contempt of court proceedings are mainly pursued by private individuals under the regime of the common law power of superior courts to commit for contempt of court. Therefore individual proceedings for contempt in the superior courts would be contemplated by and permissible under Article 126(2) which refers to a pre-existing common law power and not a new power of contempt[5].”(emphasis highlighted)

 

As stated elsewhere in this Ruling, I have critically internalized the decision of the Supreme Court and do say without any fear of contradiction that the case did not decide on perjury. I have strained myself but without success in a bid to see how it could be interpreted that apart from contempt of court the case also decided on perjury. The closest to which the judgment came to mentioning “perjury”, was the distinction drawn by Atuguba JSC between Articles 126(2) and 88(3) of the 1992 Constitutionin terms of the substantive law and procedure. His Lordship stated:

“………………………Ihold that even with regard to criminal contempts of court, Article 126(2) governs them both substantively and procedurally, whilst Article 88(3) governs the situation where a contempt has to be punished on indictment and where under the Criminal Code, 1960 (Act 29), specific criminal contempts, such as perjury, are declared to be misdemean- ours and the Criminal Procedure Code, 1960 (Act 30), provides for their being dealt with, otherwise, than in a summary manner under the common law.”

 

It is therefore very simplistic to argue that the instant application before this court has a constitutional basis in terms of Article 126(2).

 

The next reason I proffer in dismissing the application is that unlike contempt of court, “perjury” does not come in contemplation of common law power of the superior courts to commit contempt to themselves.Article 126(2) of the 1992 Constitution that clothes the superior courts with the jurisdiction to commit for contempt provides:

 

“126(2) The Superior Courts shall be superior courts of record and shall have the power to commit for contempt to themselves and all such powers as were vested in a court of record immediately before the coming into force of this Constitution.”

 

Nowhere in Article 126(2) is it stated that the superior courts are clothed with jurisdiction to commit perjury to themselves. It is my judgment that if the framers of the Constitution wanted “perjury” to form part of the common law power of the superior courts they would have said so specifically: verba generalia specialibus non derogant.

 

It bears stressing that any conduct that tends to bring the authority and administration of justice into disrespect, disrepute or disregard and or to interfere with or prejudice parties, litigants or their witnesses amounts to contempt of court. It is to preserve the sanctity of the court and its proceedings. It is principally for this reason that is why the law has clothed the superior courts with that power to commit contempt to themselves.

 

One significant difference between “contempt” and “perjury” is that the court itself may cite a person for contempt of court when the conduct complained of was committed infacie curae. But in the case of committal for perjury, the offender has to be investigated and charged before the court either by the Attorney General or at his instance.The court suo motu cannot commit for perjury unlike contempt. Admittedly, the effect of enforcing both contempt and perjury may be the same ie either sentencing the offender to a term’s imprisonment or by imposition of a fine. Nevertheless, given the differences in procedure and substance, both cannot be the same. Thus, perjury cannot be transposed on contempt by any mathematical extrapolation.

 

In my considered opinion, it is only when the offender has been properly charged with perjury and tried under S.210 of Act 29 that the trial court takes into account S.152(1)(b) of Act 30. As a matter of emphasis, perjury is a criminal offence tried under S.210 of Act 29. Being a criminal offence, it comes within the purview of Article 88(3) of the Constitution to be prosecuted only by the Attorney General or at his instance.Indeed, in the overwhelming majority of cases, perjury has been held to be a criminal offence. In KWAME v THE STATE (1964) GLR 612the Supreme Court laid down 3 essential requirements for a conviction for perjury. These were:

i) that the Accused took an oath (or affirmation);

ii) that he made or verified a statement upon oath (or affirmation); and

iii) that he made or verified the statement knowing it to be false in material particular or had no reason to believe it to be true.

 

Now, having regard to the common ground that “perjury” is an offence under the criminal law, the initiation and prosecution of perjury proceedings raises fundamental human right issues as enshrined in Article 19 of the 1992 Constitution. Article 19(1),insofar as it is relevant, provides:

 

“19(1) A person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court.”

 

It is also the requirement of law that the person charged, shall be given adequate time and facilities for the preparation of his defence. He shall be presumed to be innocent until he is proved or has pleaded guilty.[6]

 

By these Constitutional fiats, it is my judgment that the procedure adopted by the Applicant in the case before my consideration is palpably wrong. The Respondent has not been investigated and properly charged with the offence of perjury. How does he respond to the allegation of perjury granted that he hasindeed committed one? Certainly, perjury trial cannot be by affidavit evidence. It has been held that the proper procedure is for the Accused to be charged and when a case has been made against him will be calledupon and addressed appropriately.[7]

 

On the authorities, any court has an inherent power to see to it that its procedures are either not abused or misapplied[8].With these observations, I strike down the instant suit as fundamentally flawed and most improper as it is an abuse of the legal process.

 

Before concluding this Ruling, I need to stress that the issue as to whether a private person can initiate perjury proceedings has engaged legal minds in the past. The Attorney General for South Australia at the time namely, Honourable C.J. Summer is on record to have raised the following questions, among others, for the consideration of the Law Reform Committee of South Australia, relating to civil actions for perjury:[9]

(1) Whether a civil action should lie against a person who commits perjury in a criminal action at the suit of the person who has suffered damage as a result of that perjury;

(2) Malicious prosecution relating particularly to the recovery of damages but canvassing also the institution and discontinuance of private proceedings.

 

In its 83rd Report issued in 1984 to the Attorney-General, the Committee made, inter alia, the following recommendations:

1) “due to problems of causation no civil action should be created giving a right to sue a person who commits perjury in the course of a criminal prosecution;

2) [however] it should be made easier for an action of malicious prosecution to be maintained;

3) to achieve this, 2 reforms should be made:------

(a) if the Plaintiff proves absence of reasonable and probable cause, the onus should shift to the defendant to disprove malice;

(b) the Plaintiff should be empowered to administer interrogatories and employ any other available pretrial procedures to compel the defendant to disclose his beliefs and motives;

4) Because of the reforms in (3) above, a Plaintiff in a malicious prosecution action should be entitled to recover general and special damages…………..”

 

The judicial policy that denies a tort for injurious statements made in the course of a judicial proceeding can be traced as far back as 1596, to the case of DAMPORT v SYMPSON (1596) Cro. Eliz 520; 78 E.R. 769.

 

In that case the Plaintiff sought to recover damages against a witness who testified in an earlier suit for conversion. The Plaintiff alleged that the defendant committed perjury by testifying that the value of the converted property was no more than one hundred and eighty pounds, whereas the actual value was five hundred pounds. As a result, the jury gave only two hundred pounds damages and the Plaintiff sued the witness for the defence. But it was held that an action did not lie. The reasons given by the court for the conclusion reached included that: i) such perjury can be punished by statute and if a civil action was allowed it would be a double punishment which would not be reasonable; 2) perjury was not punishable at common law.

 

I hereby acknowledge the immense assistance I had from the Report of the Law Reform Committee of South Australia (herein referred to) with the heading: “Relating to civil actions for perjury committed in criminal proceedings and to the Tort Malicious Prosecution”.

 

The way forward

 

I think if the Applicant strongly feels that the evidence given under oath by the Respondent was compromised, he can take solace in an action to recover damages for malicious prosecution if per adventure he was acquitted and discharged in the criminal trial.

 

Overall, I am satisfied, and at the risk of sounding repetitive, hold that the Applicant lacks capacity to institute the instant perjury proceedings. In the light of this, I roundly endorse and uphold the submissions of learned Counsel for the Respondent and hereby dismiss the application.

 

Gh¢1000.00 costs in favour of the Respondent.