Rep. v. Saffour II [1980] GLR 193, Holdings 1, 2 & 3, @ 196, 198, 204, H.C.

REPUBLIC v. SAFFOUR II [1980] GLR 193, HOLDINGS 2 & 3 AT PP. 200 & 202. HIGH COURT, CAPE COAST OKUNOR J.
Ref.: Administration of Lands Act, S.17(2)

Ref.: Administration of Lands Act, S.17(2)

The ascertainment of the scope of the expression “other payments” in section 17 (2) is a matter of law and needed a little more effort than the evidence of simple rural folks can provide. – see p.200

The definition of “revenue” in section 17 is a piece of legislation which readily lends itself to the application of the ejusdem generis rule. The specific words used in that definition refer to periodic payments for the use of another’s property, particularly, landed property. The mode of making the payments is absolutely irrelevant. What is vital is the nature of the payment. – see p.202

JUDGMENT OF OKUNOR J.
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This is an appeal from the decision of His Honour, Judge Twumasi sitting in the Circuit Court, Cape Coast, on 29 August 1977. The respondent, then accused, was, in that judgment, acquitted and discharged on four counts of “unlawful receipt of stool land revenue” contrary to sections 17 (1) and 27 of the Administration of Lands Act, 1962 (Act 123).

The prosecution had alleged that on diverse dates in 1975, the respondent who was, and I believe, still is, the chief of Assin Bereku, had collected various sums of money from persons to whom he granted portions of Assin Bereku stool lands for farming and that such moneys were “revenue” as contemplated by the Act, and collectable only by the minister; receiving the moneys therefore without the authority of the minister amounted to an offence for which the court was requested to convict the appellant. This request the learned trial judge refused to accede to; after examining the evidence and the law on the matter he came to the conclusion that “there was no offence committed by the accused for which he could be lawfully convicted.”

It is against this decision that the Republic has appealed to this court. Two original grounds of appeal were filed on 30 August, i.e. one day after the aforesaid judgment was delivered. They read:
“(1) That the learned circuit judge was wrong in holding that the moneys collected by the accused were ‘customary drink’ moneys and not ‘revenue’ as defined in section 17 (2) of the Administration of Lands Act, 1962 (Act 123).
(2) That having regard to the provisions of section 17 (2) of Act 123, the learned circuit judge was wrong in holding that the prosecution has a duty to prove that the moneys collected by the accused were not ‘customary drink’ moneys.”

On 15 February 1978, the prosecution filed eight additional grounds, formulated as follows:
“(1) The trial judge confused the main issue which fell for determination by undue consideration of the case of Poku v. Akyereko [1963] 2 G.L.R. 285 which had no relevance to the case before him.
(2) The trial judge gave undue consideration to the meaning of the phrase ‘valuable consideration’ when the sections under which the respondent was tried do not use the phrase. He thus failed to consider the main question which he had to determine viz., whether or not what the respondent collected or received was ‘revenue’ as defined under Act 123.

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(3) The trial judge confused the issue to be decided by considering the effect of sections 72 and 75 of the Local Government Ordinance, Cap. 64 (1951 Rev.), when those provisions had nothing to do with the case before him.
(4) The trial judge failed to distinguish the civil and criminal aspects of the case before him, and thus judged the criminal case before him on the basis of those provisions of Act 123 which deal with the effect in civil law of the transactions which were the subject-matter of the criminal trial.
(5) The trial judge attributed to the respondent a statement alleged to have been made by him to the police—a statement which the respondent never made.
(6) The trial judge placed on the prosecution a burden of proof which is neither warranted by the facts of the case nor supported in law.
(7) The trial judge failed to appreciate the evidential value of the receipts which the respondent issued for the grants made.
(8) The trial judge had no jurisdiction to consider the criminal charge against the respondent under section 8 of Act 123.”

Of course, our law allows the State to appeal, in criminal matters, on questions of law or fact. Section 19 (1) of the Courts Act, 1971 (Act 372), reads:

“19. (1) The prosecution or (as the case may be) a person convicted of any offence may, in a criminal case tried by a Circuit Court in the exercise of its summary jurisdiction or tried by a District or Juvenile Court, appeal to the High Court on a question of law or fact against the acquittal, conviction or sentence (other than a sentence fixed by law) or any order made thereon.”

At the hearing of the appeal, Mr. J. E. K. Appiah, Senior State Attorney, having obtained leave so to do, went through all the eight additional grounds of appeal which in effect, embraced the original two, with such delightful love for detail that I would wish to take them separately and rule on each of them but in view of the view I have taken of the matter, that becomes unnecessary.

I think that the crux of the matter, as indeed the learned trial judge stated in his judgment, is whether or not the moneys collected by the appellant amounted to “revenue” from stool lands, having regard to the definition of “revenue” stated in section 17 (2) of the Act. That definition reads:

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“(2) Revenue for the purposes of this Act includes all rents, dues, fees, royalties, revenues, levies, tributes and other payments, whether in the nature of income or capital, from or in connection with lands subject to this Act.”

It is the contention of the prosecution that that definition is wide enough to include the moneys collected by the accused whilst it was argued on behalf of the accused that the moneys were mere “drinks” and not the type of revenue collectable by the minister.

A close study of section 17 shows that a transaction which contravenes that section would be a transaction to which the minister is not a party and which has the effect of denying the minister the right to receive moneys he is entitled to, or which purports to give a good discharge for any liability in respect of such moneys, or one in which any person exercises either of those specific rights concurrently with the minister. The converse of this must be true, i.e. any transaction which leaves the minister free to exercise his specific rights under the section unchallenged and unimpeded cannot amount to an offence under the section, no matter what other pecuniary benefits it brings to third parties, i.e. there must be either complete usurpation or at least, concurrent exercise, of the specific rights reserved to the minister.

In developing his argument that the moneys collected by the appellant amounted to “revenue,” the learned senior state attorney addressed the trial court thus:

“Perhaps it will be appropriate at this stage to consider whether the moneys which the accused collected were ‘drinks.’ Your honour may wish to take judicial notice of the practice among chiefs to ask for ‘drinks.’ If a chief wants a ‘drink,’ he says so in clear, unmistakable terms. Yet all the persons to whom the accused carved out portions of Assin Bereku stool lands said that what they gave to the accused was not ‘drinks,’ but payments in connection with the lands given to them. These witnesses are simple folks who should know the difference between ‘drinks’ and other payments, and yet they were positive that what they paid was not ‘drinks.’ I also wish to invite your honour to consider the fact that the accused issued receipts for the payments made by them. Your honour may wish to take judicial notice of the fact that chiefs do not as a rule, issue receipts for ‘drinks’ which they ask for in connection with land. ‘Drinks’ are normally small amounts taken before the land is inspected; receipts are not issued for drinks as in respect of other payments for which formal receipts are issued. If the accused intended to collect ‘drinks,’ he would have made it

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known to the first, second and third prosecution witnesses that what he was asking them was ‘drink’ money. The evidence indicates that he asked for initial payment for the lands which he gave out—the rest of the payments to be made on the maturity of the abusa tenancy. In my view, the whole purport of the Act would be frustrated if persons who have no authority to collect stool land revenue are allowed to escape the law by merely describing valuable sums received by them as ‘drinks.’ This is the reason why, the definition of ‘revenue’ under section 17 is made to cover even such payments as ‘drinks’ provided that they are in connection with land. . .”

It is not clear to me whether the great pains taken by the learned senior state attorney to distinguish between “drinks” and “other payments in connection with land” and to establish that what was paid was not “drinks” (which is evident in the early portions of the extract) is meant to mean that “drinks” are allowed under section 17, but “other payments” are not or whether, as the last sentence clearly indicates, all payments including drinks received “in connection with land” are illegal unless made to the minister. If the latter is the case for the prosecution, then section 17 would have the most absurd effects: it would mean that even the traditional bottle of schnapps plus three guineas offered to the chief in connection with the acquisition of land could land the chief in the criminal courts; it could also mean that the little fee paid to the chief’s little nephews who, with cutlasses in the right hand and little stalves in the left, hack a boundary in the thick forest for the prospective grantee would make the recipients liable to the risk of being arraigned before the criminal courts for receiving illegal payments.

If the former is the prosecution’s case, it is my view that the criteria by which “drinks” are sought to be distinguished from “other payments” are so narrow as to make them unsafe and inconclusive. If it is accepted that “drinks” are only the customary mode of saying “Thank you” to a benefactor, or of acknowledging an offer, then it should not be too difficult to appreciate a proposition that the size of drinks will bear some relationship with the size or value or quantum of the object for which thanks are being offered or the offer of which, is being acknowledged. Consequently, a general proposition that “drinks” are as a rule “small” could be misleading. The object in connection with which the accused received the moneys in each case in the present case is land for cocoa farming. Such land is, if I may use a metaphor, a gold mine.

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As to whether or not payments cannot be “drinks” only because they are covered by receipts, I agree entirely with the opinion expressed by the learned trial judge on the matter. He said:

“The learned senior state attorney submitted that the fact that the accused issued receipts shows that the moneys could not be customary drink. I respectfully disagree with that submission. . . I see nothing wrong (I could say I see nothing strange) with a receipt being issued to evidence the cash payment of customary drink.”

At the hearing of this appeal before me, however, the learned senior state attorney stressed another aspect of the evidential value of the receipts. He made the point that it was not so much the fact that receipts were issued which made the payments illegal as the inscription on the receipts. The receipts speak for themselves, he submitted. All the receipts bore the following inscription “Received with thanks from (name of payer) the sum of (amount) being released a land for abusa basic.” I do agree with the learned senior state attorney that the receipts speak for themselves. I shall return to this point later in this judgment.

It was also part of the case for the prosecution that the grantees who paid the moneys were simple rural folks who should know the difference between “drinks” and “other payments” and they all said what they paid was not “drinks.”

This submission seems to suggest that whether or not the moneys paid were “drinks” or “other payments” was a matter for evidence. This is misleading. Lindley L.J. said in the case of Chatenay v. Brazilian Submarine Telegraph Co. [1891] 1 Q.B. 79 at p. 85, C.A.:

“The expression ‘construction,’ as applied to a document, at all events as used by English lawyers, includes two things: first, the meaning of the words; and, secondly, their legal effect, or the effect which is to be given to them. The meaning of the words I take to be a question of fact in all cases, whether we are dealing with a poem or a legal document. The effect of the words is a question of law.” (The emphasis is mine.)

The ascertainment of the scope of the expression “other payments” in section 17 (2) need a little more effort than the evidence of simple rural folks can provide.

Now to a close look at the definition of “revenue,” as contained in section 17 (2): It is the case for the prosecution that the words “and other payments, whether in the nature of income or capital, from or in connection with lands subject to this Act” which appear in the definition are so wide and so general as to accommodate and

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include the moneys collected by the accused. I must say, straightaway, that this submission is only half the battle won. When such general and rather sweeping expressions as have been used in the definition under discussion stand by themselves they carry their full complement of meaning and effect; but when, as in the present case, they follow a series of specific and particular words, such general words shed a good measure of their popular meaning, and only bear that portion of it which would make them consistent with the specific words to which they are appended. This is the rule of construction popularly referred to as the ejusdem generis rule. Maxwell on Interpretation of Statutes (12th ed.) explains the operation of this rule of construction at pp. 297-298:

“In the abstract, general words, like all others, receive their full and natural meaning, and the courts will not impose on them limitations not called for by the sense or objects of the enactment ...
But the general word which follows particular and specific words of the same nature as itself takes its meaning from them and is presumed to be restricted to the same genus as those words ... In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended ... as where there is a provision specifically excepting certain classes clearly not within the suggested genus.”

Thus there is this limiting rule of construction applicable when there is a particular description of objects, sufficient to identify what was intended, followed by some general or omnibus description. The latter description will be confined to objects of the same class or kind as the former.

Lord Campbell in the case of R. v. Edmundson (1859) 2 El. & El. 77 at p. 83 formulated the rule more succinctly “where particular words are followed by general words, the latter must be construed as ejusdem generis with the former.”

I have said earlier that the rule is only a rule of construction; that being so, it will only be resorted to when there is some difficulty with the interpretation of a piece of legislation. Rules of construction have been laid down only because of the obligation imposed on the courts of attaching an intelligible meaning to unclear or misleading, or ambiguous or unintelligible sentences or expressions. Reading the two main grounds of appeal filed by the prosecution there is no doubt that the whole of this appeal is substantially, if not wholly, a

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frontal attack on the interpretation put on, or omitted to be put on, the definition of revenue as appears in section 17 (2) of the Act by the learned trial judge; consequently, that is an instance which, in, my view, calls for the application of the appropriate rule or rules of construction.

The definition of “revenue” in section 17 is a piece of legislation which readily lends itself to the application of the ejusdem generis rule. It has generated controversy, and it consists of a series of specific words followed by a general expression.

All the specific words employed belong to the same genus. The question to answer then is: What is the genus to which they belong and to which all other words sought to be included under the definition must, necessarily also belong? I do not think there is much difficulty in coming to the conclusion, on a close study of the specific words used in that definition, that they all refer to periodic payments for the use of another’s property, particularly, landed property. The mode of making the payments is absolutely irrelevant. What is vital is the nature of the payment. If my view of the matter is correct then the next point to consider is whether the moneys admittedly received by the accused are of the same kind or nature and consequently, belong to the same category as those specified in the definition as to make it permissible to be included in the prescribed list.

On the evidence, the moneys received by the accused and for which act of receiving he stood his trial were moneys paid and received in connection with the initial arrangements for the release of land by the accused and not for its user by the grantees. Payments in connection with user of land are not of the same nature as payments in connection with its grant or release. I did say earlier in this judgment that I would return to the value of the receipts later. Those receipts state in clear, unmistakable terms that the payments received by the accused were only in connection with the release of land. At that point the accused washed his hands off the transaction; all further transactions including, of course, arrangements for the use of the land and payments connected therewith were to be handled by the omanhene whose duty it would then be to draw up a suitable conveyance embodying the proposed user for submission to the Lands Department for concurrence, and it is moneys which become payable on the conveyance that fall in line with the specific words used in the definition, namely: rents, dues, fees, royalties, revenues, levies and tributes and consequently, moneys collectable only by the minister. Anyone who then receives any such moneys either alone or concurrently with the minister, commits an offence. I think the

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Chief Lands Officer made this quite clear when he said:

“As far as I know, anyone who wants land must consult the accused and if there is land available and it is agreed that it should be granted, the terms of the agreement are embodied in a deed and submitted to our office for the purpose of obtaining the concurrence of the lands commissioner who, collects all revenue which accrues from the conveyance of the land.”

I am mindful of the submission by the learned senior state attorney that the accused could collect before the conveyance what should rightly be collected after the conveyance but it should be noted that such payments in advance do not, by the fact of their mode of payment, change the nature of the payment. In other words, whether they were received by the accused before or after the conveyance; whether they were received in bulk or in instalments did not make them moneys received for user to qualify them for admission into the definition.

Penal statutes should, as a rule, be strictly construed, and the same goes for legislation subject to the ejusdem generis rule unless it appears from a wider inspection of the legislation that such an interpretation would defeat the declared or implied intent of the provisions of the legislation. Perhaps the following examples will serve well to demonstrate what treatment a piece of legislation to which the rule applies receives:

The Sunday Observance Act, 1677 (29 Car. 2, c. 7), s. 1 enacted that “no tradesman, artificer, workman, labourer or other persons whatsoever, shall do or exercise any worldly labour, business, or work of their ordinary callings upon the Lord’s Day.” In spite of the very large general expression “or other persons whatsoever,” it was held in Palmer v. Snow [1900] 1 Q.B. 725 that the prohibition did not apply to a barber; the word “person” should be confined to callings of the nature of those specified.

The Distress for Rent Act, 1737 which by section 8 authorizes the distress for rent of “all sorts of corn and grass, hops, roots, fruits, pulse, or other products whatsoever” growing in the demised lands was held in Clark v. Gaskarth (1818) 8 Taunt. 431 to include only products similar to grass and corn and not trees and shrubs in a nursery, which, though unquestionably products of the land, are of a different character from the products specified by the earlier words.

Section 75 of the Larceny Act, 1861 (24 & 25 Vict., c. 96) (now Larceny Act, 1916, ss. 19-22) which made it a misdemeanour for any “banker, merchant, broker, attorney, or other agents” to convert to his own use any valuable security entrusted to him for any special purpose, was held under the words “or other agents”

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not to include any ordinary agent who might from time to time be entrusted with valuable securities but only persons whose occupation was similar to those specifically enumerated: see R. v. Kane [1901] 1 K.B. 472.

In Casher v. Holmes (1831) 2 B. & Ad. 592 it was held that the general words “all other metals” following the particular words “copper, brass, pewter and tin” did not include gold and silver; since the latter metals were of a superior kind to the particular metals mentioned in the Act.

I have indicated earlier that the ejusdem generis rule will not apply if upon a wider inspection of the entire document there is reason to believe that general words must bear a general meaning. The aim of Act 123 under which the appellant was charged is sufficiently stated in section 1 of the Act. It reads, “The management of Stool Lands shall be exercised by the Minister.” That Act therefore divests stools of the control, and to a large extent, the beneficial enjoyment of stool lands; but there is no deprivation of ownership and the trappings that go with ownership; and it is imperative that the Act be not interpreted in such a way as to give an effect which it admittedly did not intend.

I am further fortified in my view that the definition in section 17 (2) was not meant to cover all payments made in connection with land by looking at other sections of the Act. Section 7 (2) which, like section 17 (2) provides that moneys shall be paid into a specified account lays bare its scope in clear, unambiguous terms. It provides: “Any moneys accruing as a result of any deed executed or act done by the President under subsection (1) shall be paid into the appropriate account for the purposes of this Act.” (The emphasis is mine.) Similarly section 18 also provides, “All sums collected by or transferred to the Minister under this Act shall, subject to the provisions of this Act, be paid into a Stool Lands Account.” (The emphasis is mine.)

If Parliament intended, as the learned senior state attorney contended that the definition of “revenue” in section 17 (2) should cover all payments—even such payments as “drinks” provided that they are in connection with land, I, on my part, see absolutely no reason why Parliament should not have used similar words in section 17 (2) merely by omitting the specific words so the definition would begin with the words “all payments” and end with the words “to this Act.” It should be remembered that the sole aim of preceding general expressions with particular and specific words is to enable the court to identify the particular genus to which the piece of legislation applies which itself presupposes that other related genii are excluded. What is more as Lord Westbury made quite clear in the case of

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Ricket v. Directors & c. of Metropolitan Railway Co. (1867) L.R. 2 H.L. 175 at p. 207, “... the general rule is, that a deliberate change of expression must be taken prima facie to import a change of intention.” See also Evans v. Evans [1948] 1 K.B. 175 and Ex parte Haines [1945] K.B. 183. Lord Tenterden C.J. put it this way in the case of R. v. Inhabitants of Great Bolton (1828) 8 B. & C. 71 at p. 74, “Where the Legislature in the same sentence uses different words, we must presume that they were used in order to express different ideas.”

So it is that it was held in the case of In re Stock and Share Auction and Building Co. [1894] 1 Ch. 736 where section after section of an Act relative to the winding up of companies was limited to winding up by the court, the absence of any such limitation in another section which contained provisions as to procedure “if the winding up of a company is not concluded within one year of its commencement” indicated an intention on the part of the legislature that the latter action should apply also to cases of voluntary winding up.

When therefore both before and after section 17, the legislature used such expressions as “all moneys” and “all sums” but in section 17 (2) it changed the provision to “revenue” and then went on laboriously and meticulously to define what it meant by that expression, and it did that by employing the ejusdem generis form of legislation, it is my firm belief, that there must be a very good reason to support a contention that the expression has the same meaning, effect and scope as its predecessor and its successor. No such reason was given me, and I am unable to find any. Back to the receipts, it is worthy of note that each one indicated an abusa. Under the abusa system of tenure the landowner does not part with ownership of the land. There is no sale—the landowner merely lends to another, the use of his (landowner’s) land, and gets paid for user. This means that any moneys paid him cannot be the purchase price. If, as I have indicated, it also cannot be moneys received by the accused for user, then what else can it be but customary acknowledgement of the grant or the “Thank you” for it, albeit enormous, and formally acknowledged by receipts.

There is a dearth of decided cases on the scope and effect of section 17 of Act 123. Such as there are, only few in number, only deal mostly with the right to sue for moneys under the Act, and the more I read that Act, the more I am attracted to the view held by the learned trial judge that section 8 would probably be the appropriate section to apply to the transaction disclosed by the evidence for the prosecution.

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For reasons given above, I am of the view that this appeal should fail and it is hereby dismissed. I would affirm the acquittal.

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