DEBRAH V THE REPUBLIC [1991] 2 GLR 517-534

CASE NAME: DEBRAH V THE REPUBLIC [1991] 2 GLR 517-534 

COURT NAME: HIGH COURT, HOHOE 

NAME OF THE JUDGE: ACQUAH J 

DATE OF JUDGEMENT: 20 DECEMBER 1991 

PARTIES INVOLVED:  

YAW DEBRAH alias Atikpo, THE ACCUSED 

THE REPUBLIC (REPRESENTING THE STATE’S PROSECUTION) 

FACTS OF THE CASE: 

The appellant, who was said to have insulted the chief of Kadjebi by way of conduct, was convicted for disrespecting a chief, contrary to section 53(a) of the chieftaincy act, 1971 (370) , which provides that “any person who knowingly uses disrespectful or insulting language or offers any  insult whether by word or conduct to a Chief, shall be guilty of an offence…”1 

According to the first prosecution witness, who was the linguist of the chief allegedly insulted, he  got a complaint that the appellant was collecting stone particles in front of the palace, which to  him was contrary to Kadjebi custom. He consequently reported the incident to the chief, who  headed an arbitration to afford the appellant an opportunity to defend himself.2 

At said arbitration, the appellant was found liable for breaching the custom and was asked to make  certain payments. He, however, spoke directly to the chief, said he would not pay, and left without  permission. These acts were equally alleged to be against custom. The linguist then reported the  issue to the police.3 

ISSUES 

1. Whether the appellant’s acts of collecting stones in front of the palace, speaking to the chief  directly and not through the linguist and leaving the arbitration without permission to do  so amounted to disrespecting the chief, contrary to section 53 of Act 370.
2. Whether or not the appellant’s acts of collecting stones in front of the palace, speaking to  the chief directly and not through the linguist and leaving the arbitration without permission  to do so were punishable offences. 

ARGUMENTS OF THE PARTIES 

• For the Accused(Appellant) 

There was no evidence that supported the charge. Prosecution evidence was  inconsistent with the particulars. 

The chief did not testify, hence there was no proof of insult. 

The conduct alleged was at most a breach of custom not statutory offence. 2. For the republic 

The prosecution relied on the testimony of the linguist and witnesses that  appellant’s actions amounted to disrespect under custom. 

The prosecution argued that refusal to obey the chief’s ruling and direct speech  amounted to insult. 

JUDGEMENT.

The appeal was allowed and the accused was acquitted and discharged. Ruling of the trial  magistrate was set aside.4 

RATIO DECIDENDI: 

For a person to be guilty of committing the offence of disrespecting or insulting a chief, the  prosecution must show that the language or conduct complained of is disrespectful or insulting;  that the accused used or offered the said disrespectful or insulting language or conduct knowingly;  and that the person against whom the said language or conduct was directed is a chief.5 

In examining the first element, and in the absence of any statutory definition of the words “insult”  and “disrespectful”, the court adopted their everyday meaning and stated that “a disrespectful or  insulting word or conduct must be one which is injuriously contemptuous or discourteous of the  chief. It must be very scornful, rude or an affront to the chief.”6 

However, their lordships noted that Whether or not particular words or conduct are insulting to a chief depends upon the  circumstances of each case. There can be no general criteria that, for example, whenever anyone  sits with his legs crossed before a chief that conduct is insulting to the chief in question, except  where a particular community regards such a sitting as disrespectful to their chief. Neither can it  also be said that whenever a person tells a chief “Nana think carefully”, such an expression is  insulting to the chief. The environment and circumstances of the occasion are relevant in  determining the offensiveness of the language or conduct. 

Furthermore, where the accused pleads not guilty or denies that the words are insulting or  disrespectful, the evidence of the chief who claims that the said words are insulting or  disrespectful to him is indispensable. In such a case, a conviction cannot be sustained without the  evidence of the chief in question. Judicial decisions are not based on hearsay matters and  consequently, one who claims to have been insulted is the proper person to satisfy the court that he had indeed been insulted or disgraced. 

However, the fact that the chief in question had testified that the words or conduct are insulting  or disrespectful to him does not necessarily mean that they are indeed insulting or disrespectful.  The court is always under a duty to make a finding whether having regard to the to the  circumstances of the occasion, the nature of the words or conduct, and the manner in which the  accused used or offered them, his behaviour is insulting or disrespectful as claimed by the chief.7 

Their Lordships noted that while the chief might have been annoyed by the acts of the appellant,  “annoyance is not enough” to render the appellant’s acts disrespectful or insulting. 

On the second element of the offence, their Lordships noted that if the prosecution fails to prove  that the appellant deliberately or purposefully used insulting or disrespectful language, he cannot  be said to have acted contrary to section 53(a) of Act 370. Thus,  if the language in question is indeed insulting or disrespectful, but the accused did not  know that the said words or conduct was insulting or disrespectful, he commits no  offence. As I said earlier on, whether a word or conduct is insulting depends upon the  circumstances of each case. Thus where in a locality, it is an offence to sit before a chief  with one’s legs crossed, a stranger to that area cannot be charged unless it is proved that  such a conduct is known by the stranger, and that with such a knowledge the stranger  deliberately sat with his legs crossed before the chief. 

The court noted that the prosecution failed to prove that the appellant knew that the conduct in  question was insulting to the chief or Kadjebi custom. 

The final element of the offence was that the insulting comments had to be directed at a chief. In  the present case, their Lordships noted that all the acts of the appellant were against Kadjebi custom  and not the chief. 

On the second issue, it was stated that if the fine imposed on the appellant was an arbitration award,  its enforcement does not lie with the police but with a substantive civil action. However, if it was  a punishment for finding him guilty of a customary offence, then section 8 of Act 298provides:  “No person shall be liable to punishment by the common law for any act.” In defining the common  law, section 17(1) of the Interpretation Act, 1960 provides that it includes the “rules of customary  law included in the common law under any enactment providing for the assimilation of such rules  of customary law as are suitable for general application“. 9To act in accordance with section & of  Act 29, the Court noted that 

whenever a traditional area is of the view that certain particular conducts are offences against  their custom and tradition, and that such offences ought to be punished, the traditional area in question should take steps to have those offences together with the appropriate sanctions spelt out  and presented to the National House of Chiefs. The latter after due investigations and  consideration would present a draft to that effect to the Head of State who shall after consultation  with the Chief Justice make a legislative instrument giving effect to such customary offences and  sanctions. This is the procedure laid down in sections 41 – 47 of Act 370.10 

It is indeed a fundamental right of every individual that he shall not be punished for any offences  which had not been clearly set out and the punishment thereon equally laid down. This is what is  implied by section 8 of Act 29. And therefore for any customary offence to be punishable, steps  must be taken to have such offences and their punishment clearly spelt out in the relevant statutory  instrument. This is to ensure that individuals are not subjected to capricious and sometimes  outmoded and unintelligible customary offences. 

Since there was no legislative instrument making the alleged acts of the appellant customary  offences, the appellant could not be punished for them by the payment of a fine because the  combined effects of section 8 of Act 29 and sections 41 – 47 of Act 370 are “no citizen can be  subjected to violations of vague, undefined, and uncodified offences alleged to be against custom.  The individual is entitled to know beforehand what the offence is and the punishment for it.” 

CONCLUSION 

The high court in Debrah v The republic, firmly established that for liability under section 53(a)  of the chieftaincy Act 1971 (ACT 370), the prosecution must strictly prove that the accused’s  conduct was truly insulting or disrespectful to a chief, that it was done deliberately and directed at  the chief personally. 

In this case, the prosecution failed on all counts. The conduct complained of was at best breach of  custom not a statutory offence. The required mens rea was not proven and crucially the chief did  not testify. 

According, the conviction could not stand and the appellant was rightly acquitted and discharged. 

TABLE OF AUTHORITIES 

Cases 

∙ Debrah V The Republic [1991] 2 GLR 517-534 Statutes 

∙ Chieftaincy Act 1971 (ACT 370) 

∙ Criminal Code 1960 (ACT 29) 

∙ Interpretation Act (CA 4)

Reference(S):

1 Chieftaincy Act 1971 (Act 370), s 53)(a) 

2 Debrah v The republic [1991] 2 GLR 517,519 

3Ibid 520

4Ibid 534 

5Ibid 525 

6Ibid 526 

7Ibid 528

8 Criminal Offences Code, 1960 (Act 29), s 8 

9Interpretation Act 1960, s 17(1)

10 Chieftaincy Act 1971 (Act 370), s 41-47