ABABIO v.

THE REPUBLIC
[1972] 1 GLR 347

Division: IN THE HIGH COURT, KUMASI

Date: 22 DECEMBER 1971
Before: MENSA BOISON J.

Criminal law and procedure—Double jeopardy—Civil and criminal sanctions—Appellant destooled for
breach of customary obligation and prosecuted for criminal offence arising out of same act—Whether in
double jeopardy—Criminal Code, 1960 (Act 29), s. 9. statutes—Construction—Conflicting
rules—Limitations on literal construction. Ascertaining intention of legislature—Need to read statute or
series of statutes on same subject-matter as one whole, consistent enactment—Chiefs wrongly elevated in
status reduced or reverted by Decree—Affected chiefs specified in Schedule to Decree—Decree
subsequently amended to provide penalties for contravention of its provisions by “any person”—Whether
“any person” limited to persons enumerated in the Schedule—Grammatical construction of “if he fails to
attend meetings” implying present habitual tense—Chieftaincy (Amendment) Decree, 1966 (N.L.C.D.
112), paras. 3 (2) and 5A—Chieftaincy (Amendment) (No. 3) Decree, 1967 (N.L.C.D. 203), para. 1.

Chieftaincy—Traditional council—Failure to attend meetings—Offence for “any person” to fail to attend

such meetings created by Decree—Main object of Decree was to revert chiefs to their former status and
allegiance—Affected chiefs specified in Schedule—Whether “any person” means people generally or
restricted to chiefs specified—Whether “any person” normally attends meetings of traditional
council—Whether customary sanction of destoolment irrelevant to criminal offence arising out of same
act—Act 29, s. 9—N.L.C.D.112, paras. 3 (2) and 5A—N.L.C.D. 203, para.1
statutes—Construction—Penal statutes—Necessity for clear provisions—Whether provision in Criminal
Code for ample and beneficial construction limited to the Code itself—Act 29, s. 4 (a).

HEADNOTES
By the Chieftaincy (Amendment) Decree, 1966 (N.L.C.D. 112), certain chiefs elevated to paramountcy
by the Nkrumah government were reduced in status and reverted to their former allegiance. The stools
affected were set out in the First Schedule to the Decree. In 1967 N.L.C.D. 203 inserted a new paragraph
5A into N.L.C.D. 112 and this provided inter alia that “any person” who “without reasonable excuse . . .
fails to attend meetings of the Traditional Council” shall be guilty of an offence.
The appellant was the chief of Kaase and a member of the Kumasi Traditional Council. He was convicted
before the Circuit Court, Kumasi, of the offence of failing to attend meetings of the Kumasi Traditional
Council contrary to N.L.C.D. 112, para. 5A. He appealed on the grounds that he was not a person affected
by N.L.C.D. 112, para. 5A as his stool was not among those enumerated in Schedule I and that since he
had already suffered the customary sanction of destoolment for his failure to attend the meeting, the
prosecution under N.L.C.D. 112 put him in double jeopardy.

[p.348] of [1972] 1 GLR 347

Held:
(1) by Act 29, s. 9 a person cannot be “punished twice for the same offence.” It is not the law that a
person cannot be punished twice for the same act. Destoolment in breach of a customary obligation
is a sanction irrelevant to a criminal offence. R. v. Thomas [1950] 1 K.B. 26, C.C.A. cited.
(2) Where words are plain, their literal and simple meaning is to be adopted, but the more literal
construction ought not to prevail if it is opposed to the intentions of the legislature as apparent by
the statute. Further a statute must be read as a whole, every section should be construed with
reference to the context and as far as possible a consistent enactment should be made out of the
whole statute or series of statutes relating to the subject-matter. Dicta of Lord Selborne in
Caledonian Rly. Co. v. North British Rly. Co. (1881) 6 App.Cas. 114 at p. 122, H.L. and of Lord
Davey in Canada Sugar Refining Co. v. R. [1898] A.C. 735 at p. 741, P.C. applied.
(3) Applying these principles, in order to determine the meaning of “any person” in N.L.C.D. 112,
para. 5A, an examination of Act 81, N.L.C.D. 112 and N.L.C.D. 203 is necessary. Act 81 regulated
the relationship between chiefs and their functions as traditional councils. After the elevation of
certain chiefs a mischief was created: the displacement of customary allegiance. N.L.C.D. 112
sought to cure this, and the amending Decree, N.L.C.D. 203 sought to compel obedience to the new
order. In N.L.C.D. 112, with the exception of paragraph 3 (2), whenever the word “person” is used,
it is qualified in its context and clearly means the persons reduced or reverted as specified in the
First Schedule and not persons generally. Further, grammatically the phrase “if he fails to attend
meetings” implies the present habitual tense and should refer to a person who is a member of a
traditional council and normally takes part in its deliberations.
(4) The traditional common law view is that the citizen should not be liable to penal statutes unless
their provisions are plain. The provision in section 4 (a) of Act 29 for ample and beneficial
construction is limited to the Criminal Code itself.

CASES REFERRED TO
(1) Rowlands v. Hamilton [1971] 1 W.L.R. 647; [1971] 1 All E.R. 1088, H.L.
(2) Sweet v. Parsley [1970] A.C. 132; [1969] 2 W.L.R. 470; 133 J.P. 188; 113 S.J. 86; [1969] 1 All
E.R. 347; 53 Cr.App.R. 221, H.L.
(3) R. v. Kendrick and Smith (1931) 144 L.T. 748; 23 Cr.App.R. 1; 29 Cox C.C. 285, C.C.A.
(4) R. v. Thomas [1950] 1 K.B. 26; 65 T.L.R. 586; 93 S.J. 695; [1949] 2 All E.R. 662; 33 Cr.App.R.
200, C.C.A.
(5) Caledonian Rly. Co. v. North British Rly. Co. (1881) 6 App.Cas. 114; 29 W.R. 685, H.L.
(6) Canada Sugar Refining Co. v. R. [1898] A.C. 735; 67 L.J.P.C.126; 79, L.T. 146, P.C.

NATURE OF PROCEEDINGS
APPEAL from a conviction for failure to attend a meeting of the Kumasi Traditional Council. The facts
are sufficiently stated in the judgment.

COUNSEL
Attakora Amo for Acheampong for the appellant. G. E. K. Aikins for the respondent.

[p.349] of [1972] 1 GLR 347

JUDGMENT OF MENSA BOISON J.
The appellant was before the events which led to his prosecution the chief of Kaase, within the Kumasi
Traditional Council and a member of the said council. On 28 July 1969 he was convicted before the
Circuit Court, Kumasi, of the offence of failing to attend meetings of the traditional council, contrary to
paragraphs 5A (1) and 5A (2) (b) of the Chieftaincy (Amendment) Decree, 1966 (N.L.C.D. 112), as
amended by the Chieftaincy (Amendment) (No. 3) Decree, 1967 (N.L.C.D. 203). The particulars charged
as follows: “Nana Owusu Yaw Ababio as Kaasehene on the 22nd day of August, 1968 at Kumasi in the
Ashanti Circuit and within the jurisdiction of this court, without reasonable excuse failed to attend a
meeting of the Kumasi Traditional Council to which he had been summoned.” On his conviction thereof
he was sentenced to a fine of N¢50.00 or in default three months’ imprisonment. It is against this
conviction that he has appealed and upon the grounds:
“(1) That the learned circuit judge was wrong in law in overruling defence counsel’s submission of ‘No
case’ and holding that your petitioner was a person affected by paragraphs 5A (1) and 5A (2) of
N.L.C.D. 112 as amended by N.L.C.D. 203.
(2) That the learned circuit judge was therefore wrong in law calling upon your petitioner to enter into his
defence and subsequently convicting him.”

The offence is created by the amending N.L.C.D. 203 to N.L.C.D.112 which is referred to as the
“principal enactment.” It amends N.L.C.D. 112 by the addition immediately after paragraph 5 thereof of
the following new paragraph:
“5A (1). Any person who contravenes any provision of this Decree shall be guilty of an offence.
(2) Without prejudice to the generality of the foregoing sub-paragraph and notwithstanding the
provisions of section 18 of the Chieftaincy Act, 1961 (Act 81) a person shall be deemed to
have contravened the provisions of this Decree if -
(a) he refuses or fails to recognise the relationship referred to in paragraph 2 of this Decree
or refuses or fails to pay such allegiance as flows from the existence of such
relationship;
(b) without reasonable excuse (the proof of which shall be on him) he fails to attend
meetings of the Traditional Council;
(c) he refuses or fails without reasonable excuse (the proof of which shall be on him) to
answer to the call of his customary overlord to come and perform customary functions.”

[p.350] of [1972] 1 GLR 347

I think it is also necessary for the better appreciation of the rival interpretations to set out in full, at the
risk of boredom, paragraph 1 (1) of the principal enactment N.L.C.D. 112. It provides:
“1. (1) Chiefs at any time occupying the stools specified in the First Schedule to this Decree being
stools the chiefs of which were contrary to customary law at various times before the
commencement of this Decree elevated or treated as elevated to the status of Paramount Chiefs
by the Government of Kwame Nkrumah, shall, notwithstanding anything to the contrary, be
deemed to have reverted to the status enjoyed respectively by chiefs of those stools
immediately before the said elevation or as the case may be, immediately before they began to
be treated as so elevated and accordingly, any Traditional Council existing in the Traditional
area of any such chief immediately before the commencement of this Decree is hereby
dissolved and also the Chiefs List in existence immediately before the commencement of this
Decree shall be deemed to be amended accordingly.”

Paragraph 5 of N.L.C.D. 112 then goes on to provide in sub-paragraph (1) power to administrative
officers to take possession of stool property of persons from whom recognition had been withdrawn.
Paragraph 6 states that N.L.C.D. 112 shall be construed as one with the Chieftaincy Act, 1961 (Act 81).
The burden of counsel’s submissions on the two grounds of appeal which were argued together was that
by reason of the purview of N.L.C.D. 112 the offences created by N.L.C.D. 203 were intended to apply to
persons mentioned in the First Schedule to N.L.C.D. 112 as amended by the Chieftaincy (Amendment)
(No. 2) Decree, 1967 (N.L.C.D. 136), and N.L.C.D. 203. Consequently “person” as used in paragraph 5A
(2) (b) should be interpreted to mean not persons simpliciter but persons elevated to certain ranks as
chiefs contrary to custom. And as the appellant’s stool was not so mentioned in the First Schedule, he fell
outside the offending enactment. In counsel’s submission as persons simpliciter were covered by
sanctions under section 18 of the Chieftaincy Act, 1961, it was unnecessary to interpret persons in
paragraph 5A (1) and 5A (2) (b) to cover persons other than those mentioned in the First Schedule to
N.L.C.D. 112. He relied on Rowlands v. Hamilton [1971] 1 All E.R. 1088, H.L. and Sweet v. Parsley
[1970] A.C. 132, H.L. to contend that, as paragraphs 5A (1) and 5A (2) (b) were capable of an innocent
interpretation not affecting the appellant, that interpretation should be preferred in favour of the appellant
to adopting a literal interpretation of “person.”
Lastly Mr. Acheampong canvassed the point that by Local Government Bulletin No. 19/70 notice was
given of the destoolment of the appellant on 22 August 1968-the result of a customary sanction for failing
to attend the said meeting of the traditional council. Thus it was putting the appellant in jeopardy twice by
this prosecution. I have no difficulty in agreeing with the learned state attorney for the Republic that the
fact of the appellant having suffered destoolment in breach of his obligation

[p.351] of [1972] 1 GLR 347

under custom is a sanction irrelevant to the criminal offence. An illustration may be found in cases where
a person under military service or in holy orders commits an offence for which he is punished in a civil
court and, thereafter or before, court martialed or removed from holy orders for the same offence. The
common law rule that a man should not be put in peril twice as laid down in 2 Hawk. Pleas of the Crown,
s. 36 can only be sustained where a plea of autrefois convict or autrefois acquit will avail. And it can be
so sustained if the defendant has previously been in peril on a charge for the same or practically the same
offence. It is not enough to show that the evidence which will be offered on the second charge is the same
as that offered to prove the first. (See R. v. Kendrick and Smith (1931) 144 L.T. 748, C.C.A.). The
principle is given statutory recognition in our Criminal Code, 1960 (Act 29), s. 9 which provides:
“9. (1) Where an act constitutes an offence under two or more enactments the offender shall be liable
to be prosecuted and punished under either or any of those enactments but shall not be liable to
be punished twice for the same offence.
(2) This section shall not affect a right conferred by an enactment on any person to take
disciplinary measures against the offender in respect of the act constituting the offence.”

The same act therefore can legitimately be a basis for two offences, and as it was pointed out in R. v.
Thomas [1950] 1 K.B. 26 at p. 3 1, C.C.A. “It is not the law that a person shall not be liable to be
punished twice for the same act.” So in the case of the appellant even if the right to destool him were
conferred by an enactment it cannot be a ground for the contention that as he could be punished
customarily by destoolment as a chief, paragraphs 5A (1) and 5A (2)(b) were not intended for him as a
person generally. Learned state attorney further contended contrariwise that there was nothing to restrict
the ordinary meaning of “any person” to chiefs mentioned in the Schedule, and to restrict its meaning to
persons in the Schedule, he submitted, makes nonsense of the provision, as it will not then impose the
liability on even a chief who is a member of a traditional council so long as he was not mentioned in the
First Schedule.
On the submissions of both counsel it seems to me that two competing principles of construction must be
resolved, though each is but the other side of the same coin. The first is the cardinal rule that where the
words are plain their literal and simple meaning is to be adopted. But the rule is subject to the
qualification that “The more literal construction ought not to prevail, if ... it is opposed to the intentions of
the Legislature, as apparent by the statute; and if the words are sufficiently flexible to admit of some other
construction by which that intention will be better effectuated.” Per Lord Selborne L.C. in Caledonian
Rly. Co. v. North British Rly. Co. (1881) 6 App.Cas. 114 at p. 122, H.L.

[p.352] of [1972] 1 GLR 347

The second which is equally a leading rule is that a statute must be read as a whole to give effect to the
intention of the framers of the law. So it was that in construing some clauses under the English
Employers’ Liability Act, 1880 (43 & 44 Vict., c. 42), in the case of Canada Sugar Refining Co. v. R.
[1898] A. C. 735 at p. 741, P. C. Lord Davey said, “Every clause of a statute should be construed with
reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent
enactment of the whole statute or series of statutes relating to the subject-matter.”
Now there is no difficulty as to the plain meaning of “any person” in paragraph 5A (2) (b) but in the
context of the whole statute an examination of the relevant enactments is necessary. First Act 81 (that
being in force at time of prosecution) generally, among other things, regulated the relationship between
chiefs vis-a-vis their overlords and their functions as traditional councils. With that set-up there was no
cause for any quarrel. But after the creation of or elevation of certain chiefs to paramountcy by the
government of Kwame Nkrumah a mischief was created-that of displacing ancient customary allegiance.
N.L.C.D. 112 undertook to cure this. Although notes and references placed at the sides of enactments do
not form a part of it, they are a convenient indication of the scope of any such part of the enactment. As
foreshadowed in paragraph 1 (1) of the Decree, the notes and references at the side deal only with matters
connected with reversion of such chiefs. Thus we have for example, “Chiefs wrongly elevated to revert to
former status” (para. 1) or “Reduced Chiefs to revert to their former allegiance” (para. 2) or “Withdrawal
of Government’s recognition from certain chiefs” (para. 3) or “Restoration of previous chiefs” (para. 4).
A reading of the paragraphs of N.L.C.D. 112, save paragraph 3 (2), shows that the word “person” when
used is qualified in its context and clearly means the person reduced or reverted as specified in Schedule I
and not persons meaning people generally. In the case of paragraph 3 (2), the context shows the instance
where “person” is used to mean “people,” i.e. persons generally. Paragraph 3 (2) provides:
“Any person specified in the said Column 1 of the said Schedule shall be deemed prohibited by executive
instrument made under section 4 of the Chieftaincy Act, 1961 (Act 81) from purporting to exercise the
functions of a chief and all other persons shall be deemed to be required by such an instrument not to treat
him as a chief and accordingly, any person who contravenes any such prohibition or requirement shall be
guilty of an offence under the said section 4.”

The context of all other persons and any person as emphasized above leaves no doubt that in paragraph 3
(2) of N.L.C.D. 112. “person” here is used in its ordinary plain meaning. By N.L.C.D. 203 it seems to me

[p.353] of [1972] 1 GLR 347

the framers recognised that an incident of N.L.C.D. 112, in reverting persons wrongly elevated as
paramount chiefs, was to revert them to the former traditional councils by reason of their reversion to
previous allegiance. But such persons might well refuse to attend meetings of their proper traditional
councils. The sanction in paragraph 3 (2) of N.L.C.D. 112 did not cater for this. It was necessary in my
view to compel obedience to the new order of where every chief properly should belong. This was to be
by the amendment to N.L.C.D. 112 by inserting paragraphs 5A (1) and 5A (2) (a), (b) and (c) (supra). As
it may be seen from the clauses of the sub-paragraphs of paragraph 5A, the sanctions relate to matters like
recognition of the relationship under the overlord and obedience to the reverted allegiance. The question
then is would the mischief be met by restricting the sanctions only to chiefs in the Schedule and not
applying them to persons generally.
It appears to me that to extend paragraph 5A particularly as to paragraph 5A (2) (b) to persons in general
would be beyond what was necessary to foster the policy of N.L.C.D. 112. And although that
interpretation is not so patent in 5A (2) (c), there is nothing incongruous for “person” in 5A (2) (b) to
have a different meaning from that in paragraph 5A (2) (c).
I was pressed by the learned state attorney to apply the rule of interpretation in sections 4 (a) of the
Criminal Code, 1960 (Act 29), as a safe guide to the interpretation of these paragraphs. The paragraph
provides:
“(a) This Code shall not be construed strictly, either as against the State or as against a person accused of
any offence, but shall be construed amply and beneficially for giving effect to the purposes thereof.”

As section 4 of Act 29 limited this provision to the Criminal Code, it means the provision does not
displace the traditional common law view that the citizen should not be liable to penal statutes unless their
provisions are plain in enactments outside that Code.
Again I think the grammatical sense of paragraph 5A (2) (b), namely, “if he fails to attend meetings of the
Traditional Council” implies the present habitual tense and should in my view refer to a person who is a
member of the traditional council and normally takes part in its deliberations.
I am of the opinion that the construction I have adopted does not impair the policy of the framers of the
Decree, as it was to ensure that stools reverted to their former allegiance shall participate in the
deliberations of their proper traditional councils. I think, as in paragraph 5A (2) (c), if persons generally
were intended some such clause like “a person who refuses to answer to the call,” of his traditional
council would have been used and not to “attend the meetings” of the council. In the result I hold that
“persons” in a charge under paragraph 5A (2) (b) properly construed means persons referred to in the
First Schedule, as the stools affected by N.L.C.D. 112.

[p.354] of [1972] 1 GLR 347

It follows that the submission of no case to answer was wrongly overruled. The appeal is allowed, the
conviction and sentence are quashed and an order of acquittal is entered.

DECISION
Appeal allowed.
Appellant acquitted.
J.D.