Division: IN THE SUPREME COURT
Date: 20 NOVEMBER 1964
Before: OLLENNU, ACOLATSE AND SIRIBOE JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. On 10 November 1964 we allowed the appeal in this case, quashed the conviction and the sentence passed upon the appellant, and acquitted and discharged him. The following are the reasons for our decision.
The appellant was convicted by his honour Judge Okyere-Darko (as he then was) in the Circuit Court, Kumasi on four counts of extortion contrary to section 239 of the Criminal Code, 1960.1 The first count reads as follows:
“Samuel Kwame Donkor, road section officer, on the 1st day of December 1963, at Central Market, Kumasi, in the Ashanti Magisterial District and within the jurisdiction of this Court, did extort cash the sum of £G1 from one Aliborsha Mali.”
The second count is as follows:
“Samuel Kwame Donkor, on the 16th day of December 1963, at Central Market, Kumasi, in the Ashanti Magisterial District and within the jurisdiction of this Court, did extort cash the sum of £G20 from one Abdulai Mali.”
The wording of the third and fourth counts is identical with that of the second count, save as to the dates of the alleged offences.
At the close of the case for the prosecution it was submitted for the appellant that the charges were defective, that they disclosed no triable offence, and further that no evidence had been led to prove that the appellant took money under the colour of any office. The circuit court judge overruled the submissions and gave as his reason for doing so that, “The evidence adduced, if believed, clearly shows that the accused obtained the said sums mentioned in the charge under colour of his office.” The learned circuit court judge had earlier in his ruling, referred to the case of Commissioner of Police v. Wemah,2 and said that upon the authority of that case, “the accused has used his occupancy of an office, either by representing or misrepresenting his duties or powers, to obtain advantage. This is acting ‘under colour of his office’ and it follows that it is not necessary to show any particular duty owed within, or by virtue of the office.”
With due deference to the learned circuit court judge, we must point out that his ruling does not show that he appreciates the principles discussed in the Wemah case (supra). That case showed the difference which exists between the offences of corruption and extortion by a public officer, and emphasized that an essential element of the offence of extortion by a public officer is the demanding or obtaining money under the colour of a public office which he holds. It means therefore that a charge of extortion by a public officer must aver: (i) the holding of a public office and (ii) the demand or receipt of money made under colour of the said public office.
Now it is alleged in count one that the appellant is a road section officer; but there is nothing to show that a road section officer is a public officer as defined by our law. Again it was not alleged, and no evidence was led to show, that the appellant demanded or received any money under the colour of any public office. Not one of the witnesses called for the prosecution gave evidence in that regard. Here we must refer to a letter of complaint written by the first prosecution witness which led to the institution of the proceedings in this case. The very first paragraph of the letter reads: “I beg to report to you that a certain man who appears to be a C.I.D. man came to me this morning and collected £G1 bribe from me for selling a bag of salt for £G1 7s. which price he said was too exorbitant.” It shows that first prosecution witness does not know whether or not the appellant holds any office; he merely assumed that the appellant may be a C.I.D. man. As far as the second, third and fourth charges are concerned, no office of
any sort was alleged in the charge. In every respect the circuit court judge erred in overruling the objection and subsequently convicting the appellant.
On appeal to the High Court, Sowah J. agreed with the appellant’s submissions that the charges were defective and held that “the particulars given in the charge sheet are defective.” He nevertheless dismissed the appeal, relying on the case of R v. McVitie3 He held that the omission of the particulars notwithstanding, the charges disclosed a triable offence.
In this court counsel for the appellant argued that the particulars omitted are of the essence of the offence, and that their omission rendered the charges not only defective but bad in law such that they disclose no offence in law. Learned senior state attorney concluded honourably that in view of the decision of this court in Akowuah v. Commissioner of Police,4 he could not support the conviction.
The law on this point, i.e. the proper interpretation of section 112 of the Criminal Procedure Code, 1960,5 has been explained in some detail in the Akowuah case (supra). We may restate it as follows. A charge has two parts: Part I must state the specific offence with which the accused person is charged and Part II should give particulars of the charge. The particulars required in Part II are of two kinds: (i) particulars which are only necessary for giving reasonable information as to the nature of the charge and (ii) particulars which are of the essence or form the gravamen of the offence charged. As to the particulars in (i), an omission to aver the first type of particulars, namely, those only necessary for giving reasonable information as to the nature of the charge, renders the charge merely defective. That defect however may be cured by evidence which supplies the omission. As to the particulars in (ii), an omission of the second
category of particulars from the charge, i.e. those particulars which are of the essence of or form the gravamen of the charge is fatal, because without them the charge would disclose no offence. Such an omission cannot be cured by evidence, it can only be cured by amendment.
We will now apply the above principles to this case. There are two types of extortions under our Code: one is extortion under section 151 of Act 29 and the other is extortion under section 239 of the same Act. The first is extortion by means of threats, the second is extortion by a public officer or juror. That being the case, a count in the information or charge which merely states the offence as “extortion” without further words to show the specific offence of extortion with which a person is charged, is inherently bad, as it violates subsection (1) of section 112 of Act 30, which requires that a charge should state “the specific offence with which the accused person is charged.” Therefore by reason of the failure to specify the offence of extortion charged, each of the four counts is bad.
As regards subsection (2) of the section, two questions arise, namely are the particulars which were omitted particulars which are of the essence of the charge or are they particulars which are only necessary to give reasonable information of the nature of the charge? And if the particulars are of the second category, were the omissions supplied by the evidence? The particulars omitted were that the appellant holds an office which is a public office, that he demanded or received money, and that the said demand or receipt of money was made under colour of a public office. These are matters which go to the root and form the essence or gravamen the offence. All these were omitted, their omission is therefore fatal, such that the charges as they stand disclose no offence. Even if the omitted particulars had been of the second class of particulars, i.e. matters necessary to give a reasonable explanation of the nature of the charge, the omission would not have been cured because the prosecution elected not to lead any evidence in proof of those matters. Therefore from that point of view also the omissions prove fatal. The circuit court judge was therefore wrong in holding that there was a case to answer; and the judge of the High Court also misdirected himself in holding that the McVitie case (supra) applied without determining the nature of the particulars omitted. And worst of all, he erred in holding that the omission did not affect the case, when there was no evidence on the record supplying the omissions.
Since the prosecution closed their case when there was no proper charge, i.e. of a triable offence before the court, and no evidence which in law could establish the active principles of the offence purported to be charged, the circuit court should have upheld the submission of no case made on behalf of the appellant; and the High Court too should have allowed the appeal even though some parts of the evidence given by the appellant after he had been wrongly called upon for his defence, seemed to supply some of the omissions of the prosecution. Any such incriminatory evidence given after the prosecution had closed their case, cannot change the legal position of the prosecution, namely that they alleged no offence and proved none. See the judgment of the Court of Appeal in R. v. Osabu.6 Thus the conviction of the appellant by the circuit court, and the dismissal of his appeal by the High Court have occasioned a grave miscarriage of justice. But there is this saving grace, namely, that both the circuit court and the High Court granted a respite of sentence, therefore the appellant has not served the term of eight months’ imprisonment with hard labour that was imposed upon him.
DECISION
Appeal allowed.
T.G.K.
