REX . . . Respondent v.

AUGUSTUS WILLIAM KOJO

THOMPSON . . . Appellant.
JELR 83488 (WACA)

West Africa Court of Appeal • • Ghana

CORAM

COR. KINGDON, C.J., M’CARTHY AND SMITH, JJ.

JUDGEMENT
*Page 201

Criminal Law-Criminal Code, .ss. 3, 5, 6 (3), 394-Gold Coast Colony

(Legislative Council) Order in Council, 1925. The British Settlements Act,
1887 (50 and 51 Vict., c. 54).

Defendant was charged before the Assize Court Accra with corruption and
extortion as a public officer, being the elected Municipal Member for Accra
in the Legislative Council of the Gold Coast, and the trial Judge found that
he, as such member, offered to permit his conduct to be influenced by a
gift and unlawfully demanded money ; but the Judge was in doubt whether
defendant was or was not _a public officer within the definition of' “public
officer.” in s. 5 of the Criminal Code, having regard to the fact that the
election of such a member was regulated by the Gold Coast Colony
(Legislative Council) Order in Council, 1925, and the Electoral Regulations
thereunder, neither of which was an Act of Parliament or Ordinance or
formally expressed to be made under such an Act or Ordinance, and he
stated a case for the opinion of the West African Court of Appeal. “Public
Officer” is defined in s. 5 of the Criminal Code as a person holding anyone
of the offices therein named, inter alia “any office to which a person is
nominated or appointed by statute or by public election “ ; and “public
election’ means any election the qualification for voting at which, or the
mode of voting at which, is determined or regulated by statute”.

The crux was whether the election was under a statute” , which is defined in
s. 3 of the Code as “any Act of Parliament or Ordinance, and any orders or
rules or regulations made under the authority of an) Act of Parliament or
Ordinance” ; and the main question (dealt with at length in the opinion)
was whether the 1925 Order in Council was made under the authority of
the British Settlements Act, 1887.

Held (I) that the position of elected Municipal Member of Legislative

Council is an “office” within the meaning of s, 5 (2) of the Criminal Code ;

(2) that the Gold Coast Colony (Legislative Council) Order in Council 1926,
is an “order" within the meaning of that term as used in s, 3 of the Criminal
Code;

(3) that the election of the defendant as Municipal Member for Accra was
an election the qualification for voting at which is determined by the 1925
Order in Council.
*Page 202

(4) that though the 1925 Order in Council is not formally issued under the
authority of the British Settlements Act, 1887 it is in fact so made, and is
therefore a “statute” within the meaning of that term as defined in s. 3 of
the Criminal Code.

(5) that the election was therefore a “public election” within the meaning of
s. 5 of the Criminal Code, and the defendant consequently a “public officer”
within the definition in that section.

Case stated by Doorly, Ag. C.J., sitting in the Accra Assizes.

The opinion of the Court was delivered by the President :-

The following is the case stated as amended :-- “Case stated by the
undersigned Alfred Noel Door1y, Acting Chief justice of the Supreme Court
of the Gold Coast sitting in the Assizes of the Divisional Court of the Eastern
Province of the Gold Coast at Accra under the Courts Ordinance (Cap. 4 of
the Revised Laws of the Gold Coast.)

“1. At a Court of Assize sitting at Accra aforesaid, an information was

preferred by the Attorney-General on behalf of our Lord the King under the
Criminal Procedure Code (Cap. 10 of the Revised Laws) against Augustus
William Kojo Thompson (hereinafter called the defendant) for that-

(1). Augustus William Kojo Thompson on or about the 21st day of March.
1944. at Accra in the Eastern Province being a Public Officer to wit: the
elected Municipal Member for Accra in the Legislative Council of the Gold
Coast offered to permit his conduct as such officer to be influenced by the
gift of £25,000 to be received by him from the Association of West African
Merchants; (Contrary to section 394 of Cap. 9);

“(2) .Augustus William Kojo Thompson on or about the 21st day of March
at Accra in the Eastern Province being a Public Officer to wit: the elected
Municipal Member for Accra in the Legislative Council of the Gold Coast
under colour of his office demanded from the Association of West African
Merchants the sum of £25,000 which he knew he was not lawfully
authorised to demand: (Contrary to section 394 of Cap. 9)’;

“which information was heard by me on the 2nd day of May, 1944. and
thereafter de die in diem until the 13th day of May (both dates inclusive)
when I the said Acting Chief Justice of the Gold Coast, under the provisions
of sections 327 and 328 of the Criminal Procedure Code (Cap. 10),
postponed judgment in the said trial and reserved for the consideration of
the West African Court of Appeal a question of law arising therein;

“2. Now therefore I the said Acting Chief Justice of the Gold Coast, by virtue
of the authority given to me by section 327 of the Criminal Procedure Code
(Cap. 10) do hereby state and sign the following case :- CASE “3. Upon the
hearing of the said information the following facts were proved or admitted
before me :- “(1) That the defendant on the 21st March, 1944, was the
elected Municipal Member for the town of Accra in the Legislative Council
of the Gold Coast,

“(2) That the defendant on the 21st March, 1944. at Accra in the Eastern
Province being the elected Municipal Member for Accra in the Legislative
Council of the Gold Coast offered to permit his conduct as such elected
Municipal Member for Accra in the Legislative Council of the Gold Coast to
be influenced by the gift of £25.000 to be received by him from the
Association of West African Merchants;

“(3) That the defendant on the 21st March, 1944, at Accra in the Eastern
Province being the elected Municipal Member for Accra in the Legislative
council of the Gold Coast under colour of his position as such elected
Municipal Member for Accra in the Legislative Council of the Gold Coast
demanded from the Association of West African Merchants the sum of
£25,000 which he knew he was not lawfully authorised to demand. *Page 203“4.
On the part of the Crown it was contended that the defendant was a Public
Officer within the meaning of the definition of ‘Public Officer’ contained in
section 5 of the Criminal Code (Cap. 9). “5. On the part of the defendant it
was contended to the contrary. “6. My attention was drawn to the following
decisions:- “Rex v. Whittaker 1914 3 K.B. 1283. “Rex v. White }15 English and
Empire Digest Rex v. Bunting 662. Footnotes. “Rex v. Mayor of Tiverton 88
E.R... 136”. .

“7. I being in doubt whether the defendant’s election being one the
qualification for voting at which or the mode of voting at which are
determined or regulated by the Gold Coast Colony (Legislative Council)
Order in Council. 1925 (Vol. IV pp. 27 et seq.) and by the Legislative Council
Electoral Regulations (Vol. IV pp. 59 et seq.) made under Clause 48 of the
above- mentioned Order in Council, neither of which pieces of legislation is
an Act of Parliament or Ordinance or is formally expressed to be an Order,
Rule or Regulation made under the authority of an Act of Parliament or
Ordinance, reserved for the decision of the West African Court of Appeal
the question whether the defendant is or is not a Public Officer within the
terms of the definition of ‘Public Officer’ in section 5 of the Criminal Code
(Cap. 9). “QUESTION “8. The question upon which the opinion of the Court
is desired is whether, upon the above statement of facts, the defendant is a
Public Officer within the definition of ‘Public Officer’ in section 5 of the
Criminal Code (Cap. 9)”.

“Dated the 15th day of May, 19.4.

(Sgd.) A. N. DOORLY. Acting Chief justice”

In our view the answer to the question submitted to us turns mainly upon a
question of considerable constitutional importance and of some difficulty,
namely was the Gold Coast Colony Legislative Council) Order in Council,
1925, Laws of the Gold Coast Vol. IV p. 27 (hereinafter referred to, with the
amending Order of 1927 (id. p. 50), as “ the 1925 Order in Council” ) made
under the authority of the British Settlements Act, 1887 (50 and 51. Vict. c.
54), though not formally so made.

Section 5 of the Criminal Code, which contains the definition of “Public

Officer”, within the meaning of which it is contended on behalf of the
Crown that the defendant falls is in the following terms :-

“Public Officer’ means any person holding any of the following offices, or
performing the duties thereof, whether as a deputy or otherwise, namely :-

“(1) Any civil office, including the office of Governor. the power of
appointing a person to which or of removing a person from which is vested
in His Majesty, or in the Governor, or the Governor in Council, or in any
public commission or board; or

(2) Any office to which a person is nominated or appointed by statute by

public election; or
“(3) Any civil office the power of appointing to which .or of removing from
which is vested in any person or persons holding public office of any kind
included in either of the two last preceding paragraphs of this section; or

(4) Any office of arbitrator or umpire in any proceeding or matter submitted

to arbitration by order or with the sanction of any Court; or

“(5)Any justice of the Peace.'

A person acting as a minister of religion or ecclesiastical officer, of

whatsoever denomination, is a public officer in so far as he performs
functions in respect of the notification of intended marriage, or in respect
of the solemnization of marriage, or in respect of the making or keeping of
any register or certificate of marriage, birth, baptism, death, or burial, but
not in any other respect.

“Civil office’ means any public office other than an office in the naval,
military, or air service of His Majesty.

“Public office’ means the office of any public officer.

“Judicial officer’ means any person executing judicial functions as a public

officer.

“It is immaterial, for the purposes of this section, whether a person be or be

not entitled to any salary or other remuneration in respect of the duties of
his office.

“Public election’ means any election the qualification for voting at which, or
the mode of voting at which, is determined or regulated by statute.

The submission on behalf of the Crown is that the defendant as the elected
Municipal Member of the Legislative Council for the town of Accra holds an
office to which he has been appointed by public election.

The first question which arises upon that submission is-- Is the position of
elected Municipal Member of Legislative Council an “office” within the
meaning of paragraph (2) of section 5? We have no doubt that it is. The
1925 Order in Council itself, referring in Cl.al1se 11 (2) to an unofficial
member, speaks of “ his term of office “, and in Clause 22 (2) speaks of “ the
office of Mining Member of the Council “. In this respect there can be no
difference between the Mining Member and a Municipal Member.
Moreover it is clear from the words of Wills, J. in Rex. v. Lancaster and
Worrall (16 Cox, 737) “ The nature of the office is immaterial as long as it is
for the public good”, that the widest interpretation should be given to the
term in cases of this kind.

The Crown then contends that the election by which the defendant became
appointed Municipal Member for Accra was a “public election” within the
meaning of the definition of that term given in section 5 of the Criminal
Code. It is contended (a) that Clause 20 (2) of the 1925 Order in Council
determines the qualification for voting at the election of a Municipal
Member by prescribing that the electorate for the purpose shall coincide
with the electorate for the time being for the purpose of the election of a
member of the Town Council; and (b) that the 1925 Order in Council is a
“Statute” within the meaning of that term as used in the definition of “
Public election” , the definition of “Statute” for that purpose being given in,
section 3 of the Criminal Code. And it is further contended (c) that the
mode of voting at the election of a Municipal Member is regulated by the
Legislative Council Electoral Regulations made under the 1925 Order in
Council and (d) that those Regulations are also a “Statute” within the
meaning of that term as used in the definition of “Public election” ; and
further (e) that since the expression “ or “ where it occurs in the definition
of “Public election” must be construed disjunctively (Criminal Code section
6 (3) it is sufficient to establish the correctness of either contentions (a) and
(b) together or of contentions (c) and (d) together. We agree with
contention (e). We also have no difficulty in agreeing with contention (a).
That seems clear on the face of it.

The real crux of this case is contained in contention (b). The definition of
“Statute” given in section 3 of the Criminal Code is in the following terms :-
“Statute” means any Act of Parliament or ordinance, and any orders or rules
or regulations made under the authority of any Act of Parliament or
ordinance”.

The 1925 Order in Council is clearly an “Order” within the meaning of that
term as used in the definition ; the learned Attorney- General on behalf of
the Crown contends further that it must be made under the authority of the
British Settlements Act, 1887, (50 and 51 Vict. c. 54), and so is a “Statute”
within the meaning of the definition; learned Counsel for the defendant on
the other hand contends that the Order, is not made under the authority of
the 1887 Act but by virtue of the Royal Prerogative and consequently is not
a “Statute” within the meaning of the definition. That is the important
constitutional question which has to be decided “ upon this case. In
considering it one is met at the outset by the fact that Order is not formally
issued under authority the 1887 Act. This is pointed out in Halsbury’s Laws
of England (2nd Ed;) Vol. 11 Note (d) at page 141, moreover that note does
not go on to indicate that though not formally issued under the Statute the
Order was in fact so issued, although in the case of Sierra Leone such an
indication is given on the same page at Note (i) and in the case of the
Gambia at the previous page at Note (b). Neither in the Sierra Leone Order
in Council of 1924 nor in the Gambia Letters Patent of ] 915 (to both of
which we have referred) is there any reference to the Act pf 1887, yet in the
case of Sierra Leone the note states “ The Colony is regarded as settled and
falls under the British Settlements Act, 1887, though not formally cited “
and in the case of the Gambia” Gambia is legislated for under the British
“Settlements Act, 1887” . We are unaware why there is a distinction in the
notes between the Gold Coast on the one hand and Sierra Leone and the
Gambia on the other, But at any rate these notes do show that, although in
some cases when an Order is issued under the authority of the 1887 Act it
is so recited (e.g. The West African Court of Appeal Orders in Council 1928 -
35 Consolidated, Gold Coast Laws Vol. IV page 190), that course is not
invariably followed, and the fact that an Order in Council is not formally
made under the Act is not conclusive that it is not in fact so made. But
there is one eminent authority on Gold Coast Law who had no doubt upon
the question. At page 26 of his booklet entitled A Note on the History of
the British Courts in the Gold

Coast Colony, with a brief account of the changes in the Constitution of the
Colony the late Sir William, Brandford Griffith states in terms “This Order,
made under section 2 of the British Settlements Act, 1887”.

Furthermore at page 268 of his Constitution, Administration and Laws of

the Empire, Professor Berriedale Keith states:--

“In other cases the power to create constitutions rests simply on the
prerogative to assign the form of government of a conquered or ceded
colony, as in the cases of Ceylon, Mauritius, Seychelles, Hong Kong, Fiji,
Gibraltar, Malta, Ashanti, Basutoland, St. Lucia, Trinidad, and British
Guiana. .In other cases it rests on express statutory authority, as, in the case
of the Straits Settlements when they were transferred from the care of India
to the Colonial Office in 1867, and in that of the Falkland Islands. These
islands were, it is true. settled territories, but the manifest absurdity of
creating a representative legislature for a tiny population presented itself,
and a similar question arose regarding the control of British settlers in West
Africa; the existing legislation is represented by the British Settlements Act.
1887, which gives power to the Crown to legislate by Order in Council for
any British settlement, and to establish in it a legislature of not less than
three persons. It is by virtue of this legislation that legislatures were set up
in the Gambia, Gold Coast, and Sierra Leone.”

We might perhaps have been content to accept these dicta as correct

statements of the law without further inquiry, but we have thought it right
to make a full investigation into Constitutional Law and to decide the
question for ourselves. It has been contended 1on behalf of the defendant
that the question is not one of law, but of fact since it turns upon the
question of how the Colony of the Gold Coast was acquired, whether by
settlement on the one hand or conquest or cession on the other , and that
this question is one which can only decided upon evidence, which ought to
have been given in the Court below and upon which that Court should have
made a finding of fact. We do not agree with this contention since we think
that the question can be determined as a question of pure Constitutional
Law to be found in public documents, decided cases and recognised text-
book authorities. For this purpose it is unnecessary to look beyond the
latter part of the eighteenth century by which time it was well established
that the power of the Crown to legislate by virtue of the Royal Prerogative
was limited far as a settled Colony was concerned, to the grant of a
representative Constitution. (11 Halsbury (2nd Ed.) page 6 Note (m), ;
Keith’s Introduction to British Constitutional Law pages 83 and 190, 191),
although in the case of a conquered or ceded Colon the Crown has always
had full power to legislate by virtue of the Royal Prerogative, unless and
until it was lost by the Crown itself conferring a representative Constitution,
without reserving the right to legislate (Campbell v. Hall (1774) 20 State
Trials, 239). At page 5 of his British Rule and jurisdiction beyond the Seas
the late Sir Henry Jenkyns states :--

“As regards a settled colony, the principle is well established that an

Englishman carries with him English law and liberties into any unoccupied
country where he settles, so far as they are applicable to the situation
having regard to all the circumstances.

“Consequently, apart from statute law, no legislature can be established in a

settled colony by the Crown, except one which comprises a representative
body having powers of taxation, Nor can the Crown legislate for it by Order
in Council or otherwise”.

The distinction between “Settlements” and possessions acquired by cession

or conquest is maintained and exemplified in section 6 of the British
Settlements Act, 1887.

The text-book writers seem in some doubt as to the category in which the
Gold Coast should be placed. Professor Berriedale Keith, the contributor of
the relevant title in the 2nd Edition of Halsbury’s Laws of England says at
Vol. 11 page 10 paragraph 11 :-- “Settlement may take various forms.
Occupation of territory may be authorised by the Crown, possession taken
in the King’s name, and settlers introduced. Such is the case with the
Australian colonies, British North America excluding Ontario, Quebec,
Newfoundland, and in the West Indies, the Leeward Islands, Bahamas,
Barbados, and Bermuda, The Falkland Islands and the Gold Coast, Sierra
Leone, and even the Gambia may fall into this category.” The italics are
ours.

On the other hand in the same title in the 1st Edition (of which Sir Charles
Tarring was one of the joint authors) the Gold Coast is mentioned under
the heading of conquered and ceded colonies(10 Halsbury, 1st Ed., p. 566/7
paragraph 986). But in his own book on the Law relating to the Colonies Sir
Charles Tarring deals with the Gold Coast under the heading of occupied,
i.e. settled Colonies (4th Ed., p. 5).

Upon this point there can be no doubt that the Gold Coast Colony had its
origin in the settlement of British subjects on the West Coast of Africa, and
these original settlements form the nucleus round which what is now the
Gold Coast Colony has grown.

Towards the latter part of the first half of the last century it was recognised
that there was required some wider power to legislate for such settlements
than the limited rights under the Royal Prerogative; consequently in 1843
the Statute 6 and 7 Vict. c. 13 was enacted. It is entitled “An Act to enable
Her Majesty to provide for the Government of Her Settlements on the
Coast of Africa and in the Falkland Islands’ and enacts inter alia-

“Whereas divers of Her Majesty’s subjects have resorted to and taken up

their abode and may hereafter resort to and take up their abode at divers
Places on or adjacent to the Coast of the Continent of Africa and on the
Falkland Islands: And whereas it is necessary that Her Majesty should be
enabled to make further and better Provision for the Civil Government of
the said Settlements: Be it therefore enacted .That it shall be lawful for Her
Majesty, by any Order or Orders to be by Her made, with the Advice of Her
Privy Council, to establish all such Laws, Institutions, and Ordinance, and to
constitute such Courts and Officers, and to make such Provisions and
Regulations for the Proceedings in such Courts, and for the Administration
of Justice, as may be necessary for the Peace, Order and good Government
of Her Majesty’s subjects and others within the said present or future
Settlements respectively, or any of them; any Law, Statute, or Usage to the
contrary in anywise notwithstanding.”

By the Act 23 and 24 Vict. c. 121 enacted in 1860 the provisions of the 1843
Act were extended to all possessions:

“I. The Provisions of the said Act shall extend to all Possessions of Her
Majesty not having been acquired by Cession or Conquest, nor (except in
virtue of this Act) being within the Jurisdiction of the legislative Authority of
any of Her Majesty’s Possessions abroad.”

“Both the 1843 and the 1860 Acts were repealed in 1887 by the British
Settlements Act,.1887 (50 and 51 Vict. c. 54). The preamble to that Act
states :--

“Whereas divers of Her Majesty’s subjects have resorted to and settled in,
and may hereafter resort to and settle in, divers places where there is no
civilised government, and such settlements have become or may hereafter
become possessions of Her Majesty, and it is expedient to extend the
power of Her Majesty to provide for the government of such settlements
and for that purpose to repeal and re-enact with amendments the existing
Acts enabling Her Majesty to provide for such government:”

The important sections for the purpose of the present argument are:
Section 2. “It shall be lawful for Her Majesty the Queen in Council from time
to time to establish all such laws and institutions, and constitute such
Courts and officers, and make such provisions and regulations for the
proceedings in the said Courts and for the administration of justice, as may
appear to Her Majesty in Council to be necessary for the peace, order, and
good government of Her Majesty’s subjects and others within any British
Settlement.”
Section 5. “It shall be lawful for Her Majesty the Queen in Council from time
to time to make, and when made to alter and revoke; Orders for the
purposes of this Act.”

Section 6. “For tile purpose of this Act, the expression British possession
means any part of Her Majesty’s possessions out of the United Kingdom,
and the expression’ British settlement’ means any British possession which
has not been acquired by cession or conquest, and is not ' for the. time
being .within the jurisdiction of the Legislature, constituted otherwise than
by virtue of this Act or of any Act repealed by this Act, of any British
possession.”

Soon after the enactment of the 1843 Act the Crown made use of its
provisions. On the 3rd September, 1844, it passed an Order in Council
appointing Cape Coast Castle a place of trial of offenders. That Order was,
in terms, made partly under the Act of 1843. On the 4th April 1856 an Order
in Council was made, also, in terms, partly under the 1843 Act, which
recites-

“And whereas Her Majesty hath acquired power and jurisdiction , within
divers countries on the said coast of Africa, hereinafter called the protected
territories on the Gold Coast, near or adjacent to Her Majesty’s Forts and
Settlements on the said Gold Coast, and it is expedient to determine the
mode of exercising such power and jurisdiction”. On the 19th February
1866 a Commission was passed under the . Great Seal, which at Clause V11
recites the 1843 Act and goes on to provides inter alia for the
establishment of a Legislative Council for forts of West Africa including the
Forts and Settlements on the Gold Coast.

On the 26th February, 1867 an Order in Council was passed, reciting the
1843 Act as its authority, and creating “The West Africa Court of Appeal”-
not the present Court of Appeal but its predecessor of nearly the same
name.
On the 13th January 1886 Letters Patent were passed under the Great Seal
separating the Government of Her Majesty’s Settlement at Lagos from the
Government of Her Majesty’s Settlements on the Gold Coast (which had
been joined in the previous Letters Patent of the 22nd January 1883). It
provides-

“II. Our Gold Coast Colony (hereinafter called the Colony) shall, until we
shall otherwise provide, comprise all places, settlements, and territories
belonging to us on the Gold Coast in Western Africa between the fifth
degree of west longitude and the second degree of east longitude.”

and also provides for the government of the said Colony and proceeds by
Article IX of those Letters Patent made in pursuance of the 1843 Act to lay
down the powers of the Legislative Council.

The second part of Article X reserves to the Crown powers of legislation in

the following terms :-

“We do also reserve to ourselves, our heirs and successors, our and their
undoubted right, with the advice of our or their Privy Council, from time to
time to make all such laws or Ordinances as may appear to us or them
necessary for the peace, order, and good government of the Colony.”

These Letters Patent of 1886 after having been amended in 1905, 1906 and
1912, were finally revoked and fresh Letters Patent were issued dated 20th
September, 1916.

These do not purport to be made1l:ll;der the British Settlements Acts, 1887,

which had replaced the 1843 Act, but they contained an Article, No, X,
similar to the second part of Article X of the 1886 Letters.

These Letters Patent of 1916 were still in force when the 1925 Order in
Council was made, namely on the 8th April 1925 but were revoked a few
weeks later on the 23rd May, 1925, when fresh Letters Patent were issued.
Neither the 1925 Order in Council nor the Letters Patent of 1925 recites the
1887 Act.
So much for the history of legislation by the Crown affecting the Legislative
Council, but there was a very important Order in Council made by the King
in 1901, namely “The Gold Coast Order in Council, 1901”. “This recites-

“WHEREAS by Letters Patent passed under the Great Seal of the United
Kingdom of Great Britain and Ireland bearing date the 13th day of January,
1886, provision was made for the government of Her late Majesty Queen
Victoria’s settlements on the Gold Coast, and it was provided that the Gold
Coast Colony of Her said late Majesty should, until Her Majesty should
otherwise provide, comprise all places, settlements, and territories
belonging to Her Majesty on the Gold Coast in Western Africa between the
fifth degree of west longitude and the second degree of east longitude,
and the Legislative Council of the said Colony was empowered, subject
to .any conditions, provisos, and limitations prescribed by any instructions
under Her Majesty’s sign manual and signet, to establish such Ordinances
not being repugnant to the Law of England and to constitute such Courts
and offices, and to make such provisions and regulations for the
proceedings in such Courts, and for the administration of justice as might
be necessary for the peace, order, and good government of the Colony:

“And Whereas it is expedient that the boundaries of the Gold Coast Colony
should be further defined, and that all such portions of the territories on
the West Coast of Africa, with the limits hereinafter defined, which have not
already been included within His Majesty’s dominions should be annexed
to, and should henceforth form part of, the said Gold Coast Colony:” and
Article 3 declares-

“All such parts of the territories within the limits aforesaid as have not
heretofore been included in His Majesty’s dominions shall be, and the same
are hereby, annexed to His Majesty’s dominions; and the whole of the said
territories are declared to be part and parcel of His Majesty’s Gold Coast
Colony in like manner, and to all intents and purposes as if all such
territories had formed part of the said Colony at the date of the said Letters
Patent of the 13th day of January, 1886.”
Indisputably the Forts which apparently constituted the limits , of the early
settlements on the Gold Coast come within the definition of a settlement in
section 6 of the 1887 _Act.

In 1850 the Danish settlements were ceded to the British Crown.

Examination of the relevant public documents makes it clear that these
ceded settlements were at no time treated as separate administrative units
by the Crown. Of course they might have been, in which case the law
relating to ceded territory would have applied to them. Actually there can
be no doubt that the Crown waived its prerogative in this respect and
absorbed them for all purposes into the original British settlements. It is
clear for instance in the Commission of 1886 that all British territories on
the Gold Coast were treated as a single administrative unit.

It was the same with the Dutch territories ceded to the British Crown in
1871. They have never been treated since the cession as a separate
administrative unit.

In the Letters Patent of 1886 the Gold Coast Colony is declared to comprise
all places, settlements and territories belonging to the Crown on the Gold
Coast within the limits mentioned: and the Letters Patent provide for the
government of the Colony as a single unit expressly, in so far as the
Legislative Council is concerned, under the 1843 Act. It is clear that the
original settlement never lost the character of a settled possession.

In our view any territories acquired otherwise than by settlement by the

Crown before the Letters Patent of 1886 were absorbed in and acquired the
character of the settlement . This was confirmed by the Letters Patent. We
hold that at the time of the annexation of the protected territories by the
Order in Council dated 1901, the Colony as a whole partook of the nature
of a settlement within the meaning of section 6 of the Act of 1887. The
Order in Council provides that the protected territories should become part
of the Colony as from 1886 for all intents and purposes; these territories
were not acquired either by concession or by conquest; they were simply
annexed after having been brought under British protection;, and in our
opinion the effect of the Order was to constitute the enlarged Colony a
settlement within the meaning of section 6 of the Act of 1887.

It is indisputable that the 1925 Order in Council must have been made as
regards certain parts of the Colony under the authority of the Act of 1887.
That in our Opinion is sufficient to make the Order a “statute” within the
meaning of section 3 of the Criminal Code. But we go further than that for,
in our view, whatever the rights of the Crown in respect of other parts of
the Colony may be, it is clear from the foregoing that the Order was in fact
made in respect of the whole Colony as a single administrative unit under a
single authority, namely the Act of 1887.

We, therefore, find ourselves in agreement with the late Sir William
Brandford Griffith when, in effect, he so states in his booklet from which we
have already quoted, and with Professor Berriedale Keith.

This being so the answer to the question submitted to us follows

automatically. The election of the Defendant as -Municipal member for
Accra is an election the qualification for voting at which is determined by
the 1925 Order in Council. That Order in Council is an Order made under
the authority of an Act of Parliament, namely the British Settlements’ Act,
1887. It is therefore a “statute” within the meaning of that term as defined
in section 3 of the Criminal Code.

The election is therefore a “Public election” within the meaning of section 5

of the Criminal Code. The Defendant has therefore been appointed
Municipal Member for Accra by public election, and we have already held
that the position of Municipal Member is an “office” within the meaning of
section 5 (2) of the Criminal Code.

It follows that in our opinion the Defendant is a Public Officer within the
definition of “Public Officer” in section 5 of the Criminal Code, and we so
answer the question submitted to us. Having so decided, it is superfluous to
deal with contentions (c) and (d) put forward on behalf of the Crown, but
we think it right to say , that whilst (c) is obviously correct we do not agree
with (d) for the reason that the legislative Council Electoral Regulations are
made under the 1925 Order in Council which although, as we have held, a
“statute” is not either an Act of Parliament or an Ordinance and therefore
the Regulations are not a “ statute” within the four corners of the definition
in section 3 of the Criminal Code.

Nor do we agree with the further contention of the Attorney- General that,
even if the 1925 Order in Council is not a “statute” the qualifications for
voting were, at the time of the election, regulated under the Town Councils
Ordinance (Cap. 51), which is a “statute”, so that the election was a “Public
election” within the meaning of section 5 of the Criminal Code. We think
that the correct view upon this point is that the qualification for voting is
regulated by Article 20 (2) of the 1925 Order in Council by reference to the
Town Councils Ordinance. Before leaving the case we wish to express both
to the Attorney-General and Crown Counsel on the one hand and to
Counsel for the Defendant on the other our appreciation of the great
assistance they have rendered the Court in its endeavors to come to a
correct decision upon the question of law submitted.

We have already indicated our answer to that question.