Mensah and Others v. The Republic [1979] GLR 523-551

Material Facts:

The appellants were charged and convicted of sedition contrary to Section 183 (3) of the Criminal Offences Act, 1960 (Act 29) at the Circuit Court.

The particulars of the offence were that the first appellant, J.H. Mensah, made a publication by which he said there is inflation and shortages in Ghana since Acheampong came into power. That, contrary to what the government will have Ghanaians believe that the challenges in the country were due to world inflation, that other countries have solved inflation, and the difficulties were simply due to the government of Acheampong being a failed government.

In his defence, he stated that he did not intend to disaffect the minds of the people against the government but to mobilise public opinion on a massive scale so as to forge a change of government policies.

Procedural History:

At the trial, one Akuamoah Boateng gave evidence to the effect that J.H. Mensah had, prior to Acheampong coming into power, applied for a loan from the office of Business Promotions, and the loan was approved by Acheampong. The appellant objected to the admissibility of the evidence on grounds that it was not relevant to the charge of sedition. This evidence was still admitted by the trial judge.

In addition, the trial judge, in the course of his judgement, said that it is well known that there is world inflation and that countries, including Ghana, have been affected by same.

Issues:

1. Whether or not the evidence of Akuamoah Boateng was admissible.

2. Whether or not the trial judge could take judicial notice of the effect of world inflation on Ghana.

Arguments of the Appellant:

1. That the admission of the evidence of Akuamoah Boateng prejudiced the court against him because the evidence was intended to show that the appellant, by the publication of the allegedly seditious material, was bent on telling lies about his benefactor (Acheampong ) for the sole purpose of discrediting him.

2. That in the course of the judgement, the trial judge, among others, said, “Is it not a fact that the oil crisis has worked adversely on the economies of many countries? (c) Can we always lay the blame for the short supply of certain commodities, on the government?...” That there was no evidence upon which the trial judge could make such bold pronouncements.

Arguments of the Respondent:

That the evidence of Akuamoah Boateng was relevant to prove that parts of the statement were false.

Holdings:

1. The evidence of Akuamoah Boateng was admissible.

2. The trial judge cannot take judicial notice of the effect of world inflation on Ghana.

Ratio Decidendi:

On the first issue, to determine if the evidence of Akuamoah Boateng was admissible, the issues in the case must be spelt out. In light of the defence put up by J.H. Mensah, the issues were whether the publication was seditious and whether the publication was made with the requisite intent of inciting people to rebel against the government.

For Akuamoah’s evidence to be relevant, it must be “relevant in deciding whether the document was seditious or it was published with intent to excite disaffection against the government?” The court noted that:

The general rule governing admissibility of evidence is that all evidence which is sufficiently relevant to an issue before the court is admissible and all that which is irrelevant or insufficiently relevant, should be excluded: see Hollington v. Hewthorn & Co., Ltd. [1943] 1 K.B. 587, C.A. As it is stated in Archbold, Criminal Pleading, Evidence & Practice (35th ed.), pp. 416-417 at para. 1015, "nothing may be given in evidence which does not directly tend to the proof or disproof of the matter in issue."

The definition of "relevance" given by Stephen J. in his book Digest of the Law of Evidence (12 ed.), art. 1: (see Cross on Evidence (3rd ed.) at p. 13) is that: "any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other."

For example, where A is charged with stealing, evidence that the goods were found in A's possession shortly after they were missing and he gave no adequate explanation as to how he came by them, would be relevant in determining that A must have stolen the goods. The evidence of recent possession without adequate explanation is logically probative, and has direct relevance to the fact it purports to establish. Therefore evidence which has no probative value to the matter at issue must be regarded as irrelevant and must be rejected.

In the present case, the evidence of Akuamoah was not probative in resolving any of the issues. It did not show that the publication was seditious; neither did it show the requisite intent. Although the prosecution said the evidence was relevant to prove that parts of the statements in the publication were false, the position is that in a trial for sedition, “it is no defence for the appellant to prove the truth of the seditious matter.” In light of this, evidence to prove the truth (or falsehood) of the seditious matter, like that of Akuamoah, is irrelevant and inadmissible.

On the second issue, the court noted that the comments of the trial judge on world inflation and its impacts on countries were not backed by evidence. In making those comments, the trial judge prefixed his comments with, “ It is common knowledge that inflation is world these days, and economies of most countries have been thrown out of gear by the oil crisis.” By this, the trial judge was simply taking judicial notice of world inflation being caused by the oil crisis and its impacts on countries. In the case of Commonwealth Shipping Representative v. Peninsular and Oriental Branch Service [1923] A.C. 191 , Lord Sumner said the following about judicial notice:

Judicial notice refers to facts, which a judge can be called upon to receive and to act upon, either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer.

The court added that:

To take judicial notice of a fact, however, the judge has to be convinced that the matter is so notorious as not to be the subject of dispute among reasonable men, or that the matter is capable of immediate accurate demonstration by resort to readily accessible sources of indisputable accuracy: see Cross on Evidence (3rd ed.), p. 129.

The facts which the trial judge took judicial notice of in this case cannot be classified under this definition.

In the present case, whereas world inflation is a matter of public notoriety, the extent to which each country is affected by such inflation is not a matter of public notoriety and consequently not a matter of which judicial notice can be taken. The court also stated that “one cannot also make a sweeping statement about world inflation being due to the oil crisis and the extent to which this country has been affected without basing such observation on any evidence.”

Principles in Case:

1. Irrelevant evidence is inadmissible. In the present case, evidence of the appellant having his loan approved by Acheampong was irrelevant as it was of no probative value to proving the two issues.

2. Judicial notice cannot be taken of facts that are not matters of public notoriety.