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In re: Acheampong v Attorney General (Criminal Appeal No. 25 of 1991) [1991] BWCA 8 (4 July 1991)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Criminal Appeal No. 25 of 1991
IN THE MATTER OF REFERENCE BY THE ATTORNEY-GENERAL UNDER THE CRIMINAL PROCEDURE AND EVIDENCE ACT, CAP. 08:02 SECTION 336(1) AND IN RE:
PETER MENSAH ACHEAMPONG  Appellant
versus
THE ATTORNEY GENERAL     Respondent
Coram: AGUDA, J.A. DOYLE, J.A. BIZOS, J.A.
Mr. S. T. Pilane for the Appellant Miss P. Solomon for the Respondent
JUDGMENT
AGUDA, J.A.:
On June 7, 1990, Peter Mensah Acheampong, a legal practitioner, was charged before a Senior Magistrate, sitting in Gaborone with the offence of soliciting or inciting others to commit an offence contrary to Section 391 of the Penal Code. The offence which he was alleged to have solicited or incited others to commit was the offence of destroying evidence contrary to Section 119 of the same Code. The allegation made against the accused was that on or about September 30, 1989, he solicited or attempted to procure one Mooketsi Molatole to destroy certain pages of the motor vehicle export clearance register then in possession of the said Mooketsi Molatelo. He pleaded not guilty to the offence. Thereafter the prosecution called six witnesses and closed its case. In defence the accused person gave evidence in his own behalf and called no

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other witness, and closed his case. In a reserved judgment
delivered on November 30, 1990, the learned trial magistrate
convicted the accused person, but instead of imposing any
sentence on him whatsoever, the learned trial magistrate made
an order of "discharge with caution" in his favour. On
December 10, 1990, the accused filed a Notice of Appeal to the
High Court. The single ground of appeal which appeared on the
Notice of Appeal was that "the conviction does not support the
evidence." My understanding of this ground is that the
conviction cannot be supported having regard to the evidence
led in the case. However in another Notice of Appeal
subsequently filed by the appellant on December 14, 1990,
further grounds of appeal were noted.
That appeal was heard by Sapire, Ag. J., who delivered
judgment on May 22, 1991. The learned Judge allowed the appea
and set aside the conviction of the appellant. In arriving at
his decision the learned Judge advanced two different reasons
why the conviction of the appellant could not be allowed to
stand. The first he states as follows:
"If one examines the charge, one sees that there are certain elements which had to be proved before the appellant could have been found guilty. One of them was that there were judicial proceedings contemplated or pending in which certain documents were required. If there is no evidence of this nature it cannot be said that the person in whose possession the documents were, knew that the said pages would be required by the police in any judicial proceedings. He may have suspected, he may have thought, but he could not have known this as a fact because we have no evidence that in fact any judicial proceedings were pending or contemplated."

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At this juncture I would like to point out that an examination
of the charge does not show that one of the elements alleged on
it was that there were judicial proceedings contemplated or
pending in which certain documents were required as stated by
the Judge a quo. Therefore the prosecution need not and had
not set out to prove that element. Reserving my other
observations as regards this reason still later in this
judgment, I now wish to say that the other reason advanced by
the learned Judge for setting aside the conviction of the
appellant and which bore direct relationship to the original
ground of appeal filed was stated by him thus:
"I may say that the evidence led by the prosecution was of a contradictory nature in any event and I would have found it difficult to find that the documents in the envelope which was destroyed were indeed those specified in the charge sheet and as was pointed by out the witnesses for the prosecution were far from unanimous on what the appellant is said to have advised Molatole"
It would appear that the learned Attorney-General does not
object to this second ground upon which the acquittal of the
appellant was founded. I say this because he has not sought
the leave of the High Court or of this Court to appeal against
the decision of the High Court as he has a right to do under
Section 11(d) of the Court of Appeal Act, Cap. 04:01. I have
carefully read the record of proceedings in the trial Court,
and I have no doubt in my mind whatsoever that the learned
Judge on appeal was quite right when he said that he could not
permit the conviction of the appellant to stand because of the
contradictory nature of the prosecution evidence. Therefore on
the evidence, the acquittal of the appellant was proper. It is

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the first ground as stated by the learned judge why he could not
permit the conviction of the appellant to stand that has led to
the proceedings before this Court. That ground was not raised
by the appellant in his Notice of Appeal nor indeed in his
Heads of Argument before the High Court. However it was made
the first reason for allowing the appeal. As it has turned out
in this case, the Attorney-" General has indicated that he has
serious doubt as to the correctness of the statement of law as
made by the learned Judge quoted earlier and for that reason has
exercised the power given to him under Section 336(1) of the
Criminal Procedure and Evidence Act, Cap. 08:02, to submit that
opinion or statement to this Court in order that this Court may
determine the correctness of it for the future guidance of all
the courts. On behalf of the Attorney-General Miss Solomon in
her application dated June 5, 1991 has stated that she wants
this Court to determine the correctness of the interpretation
put on Section 119 of the Penal Code, Cap. 08:01, by the learned
Judge:
Now Section 119 of the Penal Code says that:
"Any person who, knowing that any book, document, or thing of any kind whatsoever, is or may be required in evidence in a judicial proceeding, wilfully removes or destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, is guilty of an offence."
The views of the learned Judge as espoused in the passage
quoted earlier and in respect of which this Reference has been
made resolve themselves into two general propositions of law.
These are:

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1.       That a conviction for an offence under Section
119 of the Penal Code cannot be returned unless
there is evidence that at the time that an
accused person wilfully removes or destroys
any book, document or other thing with intent
to prevent it from being used in evidence,
judicial proceedings were contemplated or
pending in which the book, document, or
other thing were required in evidence.
2.       If there is no such evidence then a court
cannot hold that the accused knew that the
book, document or other thing would be
required in any judicial proceedings, and
can therefore not be found guilty of an
offence under the Section.
With all due respect to the learned Judge, both of these
two propositions of law have no justification under Section 119.
In my view they do not represent the correct interpretation of
the provisions of that section of the Penal Code. A conviction
for an offence under the Section would be proper even in the
absence of any evidence that judicial proceedings were in
contemplation or pending. In order to secure a conviction for an
offence under the Section the following elements of the offence
must be proved:
1.       That the accused wilfully removes or destroys etc. the book, document, etc.
2.       That he knows that the book, document, etc., is or may be required in evidence in a judicial
p roceed i ng.
3.       That his intention for so doing is to prevent
the book, document etc. from being used in
evidence in any judicial proceeding.
In my view, it does not matter whether any judicial proceeding
is pending, or is in contemplation. What is of vital importance
is that it must be proved that the accused knew that the book,
document, or thing is or may be required in evidence in a
judicial proceeding. If there is in existence a judicial

proceeding, an accused is guilty of the offence if he knows that the book, document or thing is required or indeed may be required in evidence in that particular proceeding. He is equally guilty even if no such judicial proceeding is in existence or even contemplated, provided it is proved that he, the accused, knew that the book, document or thing may be required in evidence if any such proceeding is ever commenced.
The learned Judge was therefore obviously in error when he said in effect that the charge must contain an allegation and which must be proved that at the time that an accused removes or destroys any book, or document or thing judicial proceedings must have been contemplated or pending. ] am persuaded by the stand taken by the Nigerian courts as regards the interpretation of a similar provision of the Nigerian Criminal Code. Section 123 of that Code says:
"Any person who, knowing that any book, document, or other thing of any kind, is or may be required in evidence in a judicial proceeding, wilfully removes, conceals or destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence is guilty of felony ..."
Under that Code the West African Court of Appeal held in
Okuyemi v. Police (1946) 12 WACA 3, that it was sufficient if
the accused must have known that the document etc. might be,
not necessarily was or would be, required in a judicial
proceeding (not necessarily in a criminal proceeding). And it
was subsequently held in Ebeftulam v. Police (1955) 1 ERNLR 6,
that destroying an article seized in the execution of a search
warrant is an offence under the section even if the article is

not in fact incriminating. What is of importance is the proof of the intention of the accused (which may be founded on inference) that by removing or destroying the document or papers etc. he thereby intended to prevent them from being used in a judicial proceeding if ever one was instituted. It does not matter if a judicial proceeding is pending or is in contemplation or that indeed one was subsequently undertaken and there was no need to use the book or document, or thing in evidence in that proceeding. In my view what is of over-riding importance is that the accused at the time he wilfully removed or destroyed the book, or document, or any other thing he knew that the book, document or thing is or might be required in evidence in a judicial proceeding. The prosecution has to prove his knowledge in this regard, and as I have indicated earlier, that proof will in most cases be found in inferences to be drawn from the facts and circumstances of the case.
In conclusion therefore in my view the statement of Sapire, Ag. J., quoted earlier in this judgment as regards the interpretation of Section 119 of the Penal Code is erroneous.

T. A. AGUDA, JUDGE OF APPEAL
I agree,

I agree,
B. A. DOYLE JUDGE OF APPEAL

G. BIZOS
JUDGE OF APPEAL

GIVEN AT THE COURT OF APPEAL OF BOTSWANA, LOBATSE, this 4th day of July 1991.

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