HARRAGIN, C.J., GOLD COAST:-
The Appellants in this case were convicted by the District Magistrate at Ada of taking part in an unlawful assembly contrary, to Section 342 of the Criminal Code (Cap. 9).
Against this conviction they appealed to the Divisional Court, which dismissed their appeals, and it is against that dismissal that they have now appealed to the West African Court of Appeal.
There is only one ground of appeal of substance, and it reads as follows:-
“That the Court was wrong in holding that ‘meeting of more than five with the beating of drums to deliberate over and assent not to accept the payment of tolls or proposed tax, constituted an unlawful assembly with the common purpose of resisting lawful authority’”.
The facts are that there was evidence before the court which if believed, would have more than justified a conviction of an unlawful assembly. An unlawful assembly is described in Section 342 of the Criminal Code 88 follows:-
“If any persons assemble or are together with a purpose of committing a riot, each of them is guilty of a misdemeanour”, while the definition of a "riot" is to be found in Section 355 (1), which reads as follows:-
“If five or more persons together in any public or private place commence or attempt to do any of the following things, namely:-
(a) To execute any common purpose with violence, and without lawful authority to use such violence for that purpose; or
(b) To execute a common purpose of obstructing or resisting the execution of any legal process or authority; or
(c) To facilitate, by force or by show of force or of numbers, the commission of any crime, they are guilty of a riot”.
It is beyond argument that had the Magistrate believed certain of the witnesses for the Prosecution who stated that th~ assembly at which the Appellants were present had agreed that they would kill any elders whom they saw, there would have been no substance in this appeal, but the learned Magistrate quite rightly set out in his judgment the facts which he found to be proved, which were as follows:-
“After considering the evidence on record as to the prosecution as to the accused in this case save as to Nos. 2 and 7 accused, r am of opinion that the act of such accused in the light of all the surrounding circum- stances of this case, in meeting to the number of more than five, with the beating of drums and the deliberating over and the assenting to the agreement, not to accept the payment of the tolls or proposed tax, constituted an unlawful assembly with the common purpose of resisting lawful authority. . .”.
The question for the consideration of this Court is therefore whether it is an offence under Section 342 of Cap. 9 for more than five persons to meet together, beat drums and enter into an agreement not to pay a certain tax. When this question was considered by the Divisional Court, the learned Judge made the following observations:-
“The assembly was clearly unlawful because its design was to overawe by show of force the Manche of Ada in the exercise of a lawful power”.
Unfortunately the facts referred to here by the learned Judge were not the facts found by the trial Magistrate, and if the trial Magistrate believed the evidence of the witness Kwame Seyami, who was a constable stationed at Big Ada, there was no question of a design to overawe the Manche of Ada, and we are of the opinion that the learned Judge was wrong in that finding of fact, which, as we have mentioned before, was not in accord with the finding of the trial Magistrate.
The only question therefore remaining for this Court to decide is whether it is an offence to agree at an assembly such as the one described to re use to pay a certain legal tax.
It might here be noted that the non-payment of this tax is not a criminal offence, for the tax can only be sued for as a civil debt. It would therefore appear that if five or more persons meet together and decide that they will not pay their income tax next year, automatically they will be guilty of taking part in an unlawful assembly and be liable to imprisonment for two years. With this contention we cannot agree.
An analogy with the law in force in England as was drawn by the Divisional Court is misleading, for in England an unlawful assembly occurs where three or more persons “give firm and courageous persons in the neighbourhood of such assembly reasonable ground to apprehend a breach of the peace in consequence of it” (Stephen's Digest of Criminal Law, 7th edition, p. 74). But in this country no reference is made in the definition to the apprehension of a breach of the peace, and in any event the trial Magistrate made no finding of fact with regard to an apprehension of a breach of the peace.
We are of the opinion that the words “resisting authority” which occur in the Code are incapable of being stretched to mean t agreeing to omit to pay a lawful civil debt, and that in order to obtain a conviction under Section 355 (1) (b) it is necessary to show that the persons concerned assembled together for the purpose of actively resisting authority, and it is not sufficient to prove a passive agreement to omit to pay a civil debt to government.
For the above reasons we are of the opinion that the appeals of all the Appellants should be allowed, the recognizances cancelled, and the fines, if paid, should be refunded. In the event of any of the Appellants serving a term of imprisonment for non-payment of the fine they should be discharged.
The attention of the authorities should be drawn to the clear cut difference between an “unlawful assembly” in England and that set out in our Criminal Code. In the former, as we have indicated above, an offence is committed when three or more persons assemble together in such a manner as to give firm and courageous persons in the neighbourhood of such assembly reasonable ground to apprehend a breach of the peace in consequence of it, but no such provision occurs in the Gold Coast Criminal Code.
We are of opinion that the omission of this provision is a matter for the serious consideration of the Law Officers of the Crown.