BOATENG v. THE REPUBLIC [1968] GLR 1027

DIVISION: HIGH COURT, ACCRA

DATE: 18 NOVEMBER 1968

BEFORE: ARCHER J.

NATURE OF PROCEEDINGS

APPEAL against conviction. The facts are fully stated in the judgment.

COUNSEL

H. P. Swaniker for the appellant.

Tawiah for the respondent.

[p.1028] of [1968] GLR 1027

JUDGMENT OF ARCHER J.

The appellant was charged with accepting a bribe after doing an act contrary to section 244 of the Criminal Code, 1960 (Act 29). The particulars of offence read as follows:

“On 16 July 1967 at Kankang in the Anyinam magisterial district and within the jurisdiction of this court, then being a public officer to wit health overseer did accept a goat after having taken action against one Yaa Ntiwah for allowing her goats to go astray and failed to prosecute such Yaa Ntiwah.”

The trial magistrate found the appellant guilty of the charge and convicted him but in view of the appellant’s fifteen years’ unblemished record of service, he was fined N¢8.00 or one month’s imprisonment with hard labour in default of payment of the fine.

Learned counsel for the appellant argued that section 244 of Act 29 did not create an offence but only explained the law relating to the offence of corruption by a public officer. There is no doubt that section 244 does not create an offence. That section reads:

“244. If, after a person has done any act as a public officer, juror, or voter, he secretly accepts, or agrees or offers secretly to accept for himself or for any other person, any valuable consideration on account of such act, he shall be presumed, until the contrary is shown, to have been guilty of corruption, within the meaning of this Chapter, in respect of that act before the doing thereof.” It is also clear from the wording of this section that the acceptance of a bribe by a public officer after doing an act is not an offence known to the Criminal Code, 1960 (Act 29). Section 244 is nothing more than a rule of evidence creating a presumption which is rebuttable. The offence of corruption by a public officer is contained in section 240 of Act 29 which reads: “240. A public officer, juror, or voter is guilty of corruption in respect of the duties of his office or vote, if he directly or indirectly agrees or offers to permit his conduct as such officer, juror, or voter to be influenced by the gift, promise, or prospect of any valuable consideration to be received by him, or by any other person, from any person whomsoever.” It follows that the offence of corruption is committed when a public officer “directly or indirectly agrees or offers to permit his conduct as such officer . . .to be influenced by the gift, promise or prospect of any valuable consideration.” The relevant charge which should have been framed against the appellant was under section 240 and the prosecution should have proved all the constituent elements in that crime. [p.1029] of [1968] GLR 1027

Section 112 (1) of the Criminal Procedure Code, 1960 (Act 30), as amended by the Criminal Procedure Code (Amendment) Act, 1965 (Act 261), s. 1 provides that every charge shall be sufficient if it contains a statement of the offence with which the accused person is charged together with such particulars as may be necessary for giving reasonable information as to the nature of the charge and notwithstanding any rule of law to the contrary it shall not be necessary for it to contain any further particulars than the said particulars. Subsection (2) of the same section as amended by Act 261, s. 1 also provides that: “(2) The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence and if the offence is one created by an enactment, may contain a reference to the enactment.”

In summary trials, therefore, the charge sheet need not refer to the enactment whereas in trials on indictment, it is necessary to refer to the enactment creating the offence as will be seen from the words of section 202 (4) (c) of Act 30 which reads:

“(4) (c) The statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by enactment shall contain a reference to the section of the enactment creating the offence.” In the case of summary trials, the charge sheet need not state the section or the Act under which the accused is charged. It is sufficient if he is given sufficient particulars to indicate to him the nature of the offence. It seems to me that the charge sheet in the present appeal was framed in such language, although not in the exact words of section 240 so as to enable the appellant to understand the nature of his offence, namely, that he refrained from prosecuting the complainant because he accepted one goat as a gift from her. I think the wrong reference to section 244 can therefore be excused. Nevertheless, there is one crucial question which should be answered in this appeal. Did the prosecution prove their case beyond reasonable doubt? I think not. The evidence of the complainant herself was as follows:

“As I could not pay the amount it was agreed between the accused and myself that I should give to the accused one young

[p.1030] of [1968] GLR 1027 he-goat as representing the impounding fee of N¢2.00 and to set the mother and the young goat free. The accused in accordance with this released the mother and the young ones after accepting one young he-goat. The accused sent one Ojam to collect the he-goat from my house before the impounded goats were released.”

Then in cross-examination she stated as follows, “It was the next day that the goats returned to the house. Ojam collected the he-goat the same day for you. I gave you the he-goat in payment of the impounding fee of N¢2.00.” The evidence of the second prosecution witness who is the husband of the complainant, is nothing but hearsay evidence, that is, what the complainant told him. The evidence of the third prosecution witness, Ojam, is to the effect that it was one week later that the appellant instructed him to collect one goat from the complainant. However in cross-examination this witness stated that he knew “that certain people’s animals were released from impounding after warning by” the appellant. The appellant’s explanation was that after he had impounded three stray goats belonging to the complainant, he released them after he had warned the complainant. Three days later, one Asare came to tell him that the first prosecution witness had asked him to collect one goat as a gift. He therefore sent one Ojam, the third prosecution witness, to collect the goat. One Darko, the first defence witness, gave evidence for the appellant and explained that it was he who even begged the appellant to release the goats. After considering the whole evidence, one impression is formed. The evidence for the prosecution bristles with doubts. It is not clear when the gift was made. The complainant herself stated that the three goats were released after she had made the gift. The husband of the complainant stated that the three goats were released before Ojam collected the goat as a gift. The second and third prosecution witnesses were not present when the goats were impounded. However the first defence witness, Darko, was present but the trial magistrate in his judgment ruled that “the court found this piece of evidence as untrue.” There is no basis for this finding. Darko claimed to be present and explained that he interceded. The evidence of Darko was not challenged in cross-examination yet the trial magistrate did not consider it. Did the prosecution prove that the appellant agreed or offered directly or indirectly to permit his conduct to be influenced? I think the prosecution failed to prove this essential ingredient. The complainant herself testified that the goat she sent was in lieu of the fee of N¢2.00. She did not testify that the appellant agreed to release the three goats if she made a present of one goat to him. [p.1031] of [1968] GLR 1027

The trial magistrate did not make and could not have made any specific finding on such an agreement because there was no evidence to support such finding. Rather the trial magistrate in his judgment made the following observation:

“If even the accused accepted the he-goat as a gift from the first prosecution witness although this is denied by the first prosecution witness he cannot be exonerated from the charge of corruption on the explanation given by himself herein because he must have realised that it was a gift from the first prosecution witness in return for releasing her goats free of charge for her.” It is obvious that the trial magistrate was concentrating on the marginal note to section 244—acceptance of bribe by public officer after doing an act. But as I have already explained, section 244 does not create an offence. It is merely a rule of evidence creating a rebuttable presumption. The words “until the contrary is shown” do not impose the same onus of proof on the appellant. The appellant may rebut the presumption by giving an explanation which raises a reasonable doubt. His burden is not higher than the burden in civil proceedings. In my view the appellant gave an explanation and if the trial magistrate had considered this explanation very carefully together with the inconsistencies in the prosecution witnesses’ evidence, he would have come to the conclusion that the presumption had been rebutted. Mere acceptance of a gift by a public officer after doing an act is not an offence. It may be immoral but it is not an offence known to the criminal law. To constitute the criminal offence of corruption, the public officer must have agreed or offered to permit his conduct to be influenced. It is immaterial whether the conduct was later influenced. The most important thing is the initial agreement. If there is no evidence of agreement, then no offence is committed. In the present case, the prosecution failed to prove any such agreement before the three goats were released. Moreover, the trial magistrate was misled by the presumption created by section 244 and failed to consider the evidence for the defence. The presumption is not an irrebuttable presumption. For the above reasons, the appeal is allowed. The conviction is quashed and the sentence is set aside. The fine imposed, if paid, should be refunded. The appellant is acquitted and discharged.

DECISION

Appeal allowed.

Appellant acquitted and discharged.

L. F. A.