JELR 81155 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1942 8 WACA 85-87
Core Terms Beta
8th november
sergeant quarm
7th november
gold coast
kobina smith
public opinion
second statement
acting crown counsel
appellant’s shop
conversation of quarm
end of the day
express purpose
first day’s hearing
first statement
following state
james ackah yenzu
john kobina winful
learned counsel
learned judge
learned trial judge
magistrate’s court
mere unimportant terminological inexactitude
month of november
next morning counsel
obvious incentive
police court
police officer
preliminary investigation
present england
request of this court
sekondi assizes
unsatisfactory feature
very outset of his evidence
years imprisonment

KINGDON, C.J., NIGERIA, PETRIDES CJ. GOLD COAST AND BANNERMAN. J. The appellant was charge in this case before M’Carthy, J. at the Sekondi Assizes with Propaganda contrary to Regulation 21 (1) (a) of the Defence Regulations. 1939, during the month of November, 1941.

In the particulars to the charge it is stated that the appellant “endeavoured to influence public opinion in a manner likely to “cause despondency by making publicly the following state- “ments :-

“1. That almost every person in London had escaped to Canada “to seek refuge from German bombs. “2. That at present England was nowhere and that the Germans “were determined to conquer the English. “3. That Germans would conquer the English and take over “ the Gold Coast before Christmas 1941.” He was convicted and sentenced to two years imprisonment with hard labour.

The learned Judge furnished a report on the case at the request of this Court. We have numbered the paragraphs in that report for convenience of reference.

Paragraph 2 of the report reads: - “I found that the accused made the statements of which “the first four witnesses for the Crown gave evidence, or “statements to the same effect, and that they covered the “statements ascribed to him in the information; also that “much of what he said was false to his knowledge” .

It is, however, admitted in this Court by the learned counsel for the Crown that there is no evidence that the second statement complained of was made. To this extent , therefore, the Judge misdirected himself. But this, of itself, would not be sufficient ground for quashing the conviction.

The case for the Crown was that the first statement, or words to that elect, was made by the appellant to Sergeant Quarm and Kobina Smith on the 7th November, 1941, in the appellant’s shop in Sekondi and that the third statement was made to James Ackah Yenzu and John Kobina Winful on the 8th November, 1941, in the same shop. The evidence of those four men was led to prove this. In the Magistrate’s Court the evidence was given in such a way as to suggest that the two visits were made by Quarm and Smith on the 7th November and by Yenzu and Winful on the 8th November as genuine customers, and the same effect was attempted at the first day’s hearing in the Assize Court when Smith, Winful and Yenzu were called as witnesses in that order. But by the end of the day the learned trial Judge had sensed that something was being held back, and told the learned Acting Crown Counsel (him- self a Police Officer) that he considered the case required personal inquiry by him. Next morning counsel, who up to that point had himself been deceived, put the truth frankly before the Court. And the truth is not pleasant. It amounts to this-that Sergeant Quarm and his cousin, Yenzu, conspired with the assistance of Smith and Winful to trap the appellant into making criminally rash and foolish statements and then to secure his conviction by deceiving the Courts with false evidence. It is plain now that Quarm and Yenzu were Agents provocateur; that both visits were planned by Quarm for the express purpose of inducing the appellant to make in the presence of witnesses the kind of statements which he is alleged to have made; that the stories of wanting to buy a hair brush and a shirt were only the excuses for the visits and that the conversation of Quarm and Yenzu was designedly calculated to set the appellant talking. Nevertheless all four men deliberately deceived the Magistrate at the Preliminary Investigation by withholding the true nature of the visits and continued the deceit in the Assize Court until the personal investigation of counsel disclosed the truth. All four men can be shown to have given false evidence in pursuance of their common design. Quarm himself set the ball rolling at the very outset of his evidence in the Police Court “ I came to Sekondi and went to shop of accused to “buy something and I had conversation with accused. I wanted “to buy a hair brush.” He did not go to the shop of accused to buy anything and he did not want to buy a hair brush. He went to induce the accused to talk by pretending that he wanted to buy a hair brush. And this, in our view, is not a mere unimportant terminological inexactitude, it is a falsehood and deliberately designed to conceal from the Court the truth as to the real object of the visit.

Kobina Smith in the Assize Court repeated the same falsehood that Quarm wanted to buy a brush. He also pretended that what the accused said made him despondent and that he was afraid. It must be obvious that all four men expected to hear the kind of talk which they said they did, and so far from being despondent, they must have been elated at achieving their object. Yenzu and Winful tell a similar falsehood as to going to buy a shirt and both embroider it with a story of going to other stores in search of a shirt to buy. That evidence reads like a story designed to add verisimilitude to an otherwise bald and unconvincing narrative. There is also a flagrant discrepancy in the evidence as to what happened when Yenzu and Winful left the appellant’s store on the 8th November. Yenzu says that they met Quarm and that he mentioned the conversation to Quarm and that Quarm questioned Winful about the matter. But Winful says “When we left the “store Yenzu and I parted;” whilst Quarm gives the lie to both. He says “ On the afternoon of the 8th November, between 2.30 “and 3 I saw Yenzu, and Winful (the witness) at Yensuah “Park. Yenzu made a report to me,” and in cross-examination “ I did not speak to Winful on the 8th November. I only spoke “ to Yenzu.” Only one of the three can be speaking the truth. These are only some instances of the false evidence given by the witnesses for the purpose of deceiving the Courts. They could be multiplied, but it is not necessary.

There is another very unsatisfactory feature of the case: it is that the statements of the witnesses Yenzu, Smith and Winful were all taken by Sergeant Quarm himself, who had an obvious incentive to make sure that their evidence should not conflict with his own, instead of by another disinterested Police Officer. Moreover the statement of Yenzu was not taken until December although it was of importance that he should give it whi1st the facts were fresh in his memory.

It is quite impossible to uphold a conviction obtained by such means and upon such evidence. The appeal is accordingly allowed, the conviction and sentence are quashed, and it is directed that a judgment and verdict. of acquittal be entered. The appellant. is discharged.