BINEY v. THE REPUBLIC [1972] 2 GLR 229
HIGH COURT, HO
Date: 16 JUNE 1972
BEFORE: FRANCOIS J.
CASES REFERRED TO
(1) Osei v. The Republic (No. 2) [1971] 1 G.L.R. 449.
(2) Donkor v. The State [1964] G.L.R. 598, S.C.
(3) Andoh v. The Republic, Court of Appeal, 23 January 1970, unreported; digested in (1970) C.C. 42.
NATURE OF PROCEEDINGS
APPEAL against a conviction for extortion. The facts are fully set out in the judgment.
COUNSEL
Kwaw Swanzy for the appellant.
E. A. Addo, Assistant State Attorney, for the respondent.
JUDGMENT OF FRANCOIS J.
The appellant was convicted on a charge of extortion contrary to section 239 (1) of the Criminal Code, 1960 (Act 29). The facts appear in the particulars of the count which are as follows:
“1. Joseph Cobbina Biney: General Police Corporal; 2. Eric Mawusi: Escort Police Corporal; 3. Bernard Lawrence Salifu Neah: General Police Constable: For that you on or about the 10th day of July, 1971 at Sogakofe, in the Volta Magisterial District and within the jurisdiction of this Court being public officers and under the colour of your office, did demand and obtain cash the sum of N¢9.00 from one Ali Mahamadu Fulani, for allegedly contravening the Aliens Act, and at the time of demanding and obtaining the said money you knew you were not lawfully authorised same to do. ”The demand by the appellant and his companions of a sum from Mahamadu Fulani is amply supported by witnesses whose veracity could hardly be impeached. Most impressive is the evidence of the second prosecution witness Halm, a storekeeper, who was well-acquainted with the accused and had no axe to grind. Though the appellant’s denial of complicity was too thin for serious examination, the magistrate in the line of duty gave it full and impartial consideration. I find also that the [p.231] of [1972] 2 GLR 229 identification parade which was held to establish the identity of those implicated in the crime was faultlessly conducted. Further, the evidence of the third accused which was received with due caution, lent support to the prosecution’s case. On the evidence therefore no other conclusion was open to the magistrate than a finding of guilt against the appellant.
Mr. Kwaw Swanzy for the appellant has consequently anchored his arguments on fundamental principles and even sought the aid of the suspended Constitution, 1969. I shall now address myself to the issues he raised.
Counsel first urged that the charge was bad for duplicity as the appellant had been charged with both
“demanding” and “obtaining” ‘in the same count. In this view he found support in the magistrate who said, “It is therefore bad for duplicity if both ‘demands’ and ‘obtains’ are brought in the same count as it is done in the charge in the instant case.” The magistrate, however, held that the defect was not fatal as it had occasioned no miscarriage of justice, and buttressed his view with some authorities. He finally concluded by holding that the appellant who had counsel should have objected to the charge as framed if any embarrassment or prejudice had been occasioned. Learned counsel for the appellant has, however, parried this by referring to article 20 (2) (c) of the suspended Constitution, 1969, which was in force at the time of the offence. Mr. Swanzy’s submission is to the effect that the question of a discharge, arising only if the circumstances of a miscarriage of justice has occurred, should not be countenanced if there has been a fundamental breach of the Constitution. The fact that an accused person is damnified or not is an irrelevant consideration where the fundamental law of the land is broken. Mr. Swanzy relies for support on a judgment of Hayfron-Benjamin J. in the case of Osei v. The Republic (No.2) [1971] 1 GLR 449.
That was a case dealing with sales above the control price in contravention of the Control of Prices Act, 1962 (Act 113), and the whole question there was whether the charge had given reasonable particulars to enable the accused to appreciate what she had to face. Consequently Hayfron-Benjamin J. directed his attention to the peculiar circumstances of that case in relation to fundamental rights and then came to the conclusion that there had been a fundamental breach of article 20 (2) (c) of the Constitution, 1969, which made the charge incurably bad even though no miscarriage of justice had occurred. That case was decided as I have said, on its peculiar facts and I am glad I am not called upon to approve or reprobate it in this appeal as the facts in that case are very dissimilar from those in the instant case.
The Osei case is earlier in point of time than the Courts Act, 1971 (Act 372), and it is my opinion that Act 372 has settled that a technical acquittal is no longer valid. What is a fundamental defect will also depend on the particular facts of the case. In this context I think the distinction drawn between parts of a charge and what must result from fundamental defects in any said part, as enunciated in Donkor v. The State [1964] G.L.R. 598, S.C. is still of relevance.
[p.232] of [1972] 2 GLR 229 I now turn to the Constitution itself before a final examination of Act 372. Article 20 (2) (c) of the Constitution reads: “Every person who is charged with a criminal offence shall be informed immediately in a language that he understands, and in detail, of the nature of the offence charged.” In my view this article was to prevent an accused being disadvantaged by a complex, intricate or technical charge. I do not see how it can relate to the defect of duplicity. Indeed where the question of duplicity is raised there is a clear appreciation of the offence charged but the objection is to the fact that more than one offence appear in the same count. It seems to me therefore that there is no fundametal law which makes a charge automatically fatal for duplicity. The erstwhile Constitution did not change the rule that where there is no miscarriage of justice, technical objections will not avail.
Indeed by section 26 (12) of Act 372 an appellate court is enjoined to dismiss an appeal,
“if it considers that no substantial miscarriage of justice has actually occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted upon that charge or indictment.”
This proviso runs counter to the argument of defence counsel. Furthermore section 26 (14) makes
substantial inroads into what were once considered fundamental rights:
(a) The failure to plead to an amended charge can no longer enure to the accused to secure his
acquittal.
(b) In fraud charges the omission of the magic words “with intent to defraud” cannot avail the accused.
(c) In charges of corruption and extortion a failure to allege that the accused was a public officer would not secure his acquittal if there was the relevant evidence.
(d) Where an allegation of ownership in stealing and allied offences is omitted but the requisite
evidence is led, the omission will not be fatal to a conviction.
Section 26 (14) has consequently statutorily overruled a number of authorities which were previously the bulwark of many a defence.
Act 372 received presidential assent on 22 September 1971, I have no I knowledge that any of its
provisions were challenged as contravening the Constitution before the suspension of the said
Constitution. It must also be observed that section 26 of Act 372 is not new and it is almost identical with paragraph 13 of the Courts Decree, 1966 (N.L.C.D. 84). This section was considered as late as January 1970 during the subsistence of the Constitution, in the case of Andoh v. The Republic, Court of Appeal, 23 January 1970, unreported; digested in (1970) C.C. 42. The court drew attention to the mandatory requirement of disallowing [p.233] of [1972] 2 GLR 229 appeals where the grounds urged are merely technical in character and not prejudicial or occasioning a miscarriage of justice to the accused. I think that is the last word for the moment and learned counsel’s argument is completely annihilated by the Andoh case (supra) which I must follow.
The argument that demanding and obtaining are offences unknown to Ghana criminal law is also a
misconception. Indeed what is rather the truth is that they are two offences known to the criminal law. The objection to duplicity as already stated in itself admits that they are known offences, but being two, must be the subject of separate charges. Indeed following the Andoh case (supra) there can be no doubt that the statement of offence herein has been correctly stated but the particulars only are defective, but not incurably so. The only question left is therefore a technical one.
I am not inclined in the circumstances to lend any special ear to learned counsel’s seductive arguments and I must express regret that counsel’s brave attempts have come to nought. The appeal is consequently dismissed. As to sentence I have been following the English practice of imposing a fine instead of a custodial sentence where the appellant has been imprisoned and released on bail pending appeal. I shall accordingly substitute a fine herein of ¢400.00 and in the alternative ten months’ imprisonment with hard
labour.
DECISION
Appeal dismissed.
S.O.
