COMMISSIONER OF POLICE v. ANOM AND OTHERS [1965] GLR 512

DIVISION: SUPREME COURT

DATE: 28 JUNE 1965

BEFORE: MILLS-ODOI, OLLENNU AND SIRIBOE J.J.S.C.

 CASES REFERRED TO

(1) Commissioner of Police v. Wemah (1957) 3 W.A.L.R. 41, C.A.

[p.513] of [1965] GLR 512

(2) Motayo v. Commissioner of Police (1950) 13 W.A.C.A. 114. (3) R. v. Baskerville [1916] 2 K.B. 658; 86 L.J.K.B. 28; 115 L.T. 453; 80 J.P. 446; 60 S.J. 996; 25 Cox C.C. 524; [1916 – 1917] All E.R. Rep. 38; 12 Cr.App.R. 81, C.C.A. (4) Alhadi v. Allie (1951) 13 W.A.C.A. 323.

NATURE OF PROCEEDINGS

APPEAL from convictions on charges of extortion entered by the trial Circuit Court, Accra, and affirmed by the High Court. The facts are set out in the judgment of Siriboe J. S.C.

COUNSEL

Hayfron-Benjamin, Sen. for the appellants. K. A. Sekyi, State Attorney, for the respondent.

JUDGMENT OF SIRIBOE J.S.C.

Siriboe J.S.C. delivered the judgment of the court. The three appellants (the first an inspector of police, the second a police corporal and the third a detective constable of the Ghana Police Service) were tried and convicted in Accra by the circuit judge, his honour Mr. F. N. Amarteifio on 9 September 1963, for the offences of extortion involving an amount of £G500 and stealing 55 cases of drinkables and five cartons of safety matches valued at approximately £G1,000. They were accordingly sentenced to eighteen months’ imprisonment with hard labour on each count, concurrent, in the case of the first appellant, and thirteen months’ imprisonment with hard labour on each count, concurrent, in the case of the second and third appellants. Thereafter they appealed against their convictions to the High Court, presided over by Annie Jiagge J. who dismissed their appeals on 23 January 1964. It is from this latter decision that they have now appealed to this court on a number of grounds filed but three only of which were argued by learned counsel on their behalf. These are, in the order argued by counsel, as follows:  “(4) The identification parade being irregular the trial was as a result unsatisfactory.  (2) The principal witnesses, apart from the police witnesses, were as found by the learned circuit judge accomplices and there was clearly no corroboration of the evidence.  (6) The tenth prosecution witness having been put forward as a witness of truth and whose evidence being consistent with the evidence of the defence should have been believed and the accused accordingly discharged and acquitted.” And now a brief account of the facts of the case before we come to consider the arguments of learned counsel: The three appellants were at all times material to the date of preferring of the charges which led to their conviction, i.e. on or about 16 November 1962, stationed at [p.514] of [1965] GLR 512

Teshie Police Station. The first appellant was in charge of the station, the other two being his subordinates. According to the prosecution, the first prosecution witness and ten others (who did not appear to give evidence because they could not be traced) bought a quantity of drinkables (of different kinds), cigarettes and matches from Ada on 15 November 1962 and brought the same to Teshie where they arrived at about 1 a.m. on 16 November 1962. There were in all 157 cases (34 of which were claimed by the first prosecution witness) which included gin, Martell brandy, schnapps, cigarettes and three star safety matches, and these were kept in the room of one Tsaale with the latter’s consent, after which the first prosecution witness and his people left for Ashiaman. Soon after this, the eighth prosecution witness who owns the house where the goods were stored but lives in another of his houses, proceeded to that house, following information he had received while in bed. On arrival, he met the first and second appellants in uniform who challenged him as being a thief, which he denied. They asked him to open Tsaale’s room for them which he did, and they found cases of drinkables packed inside which almost filled the room. Tsaale was then not present. The police took these cases away on a vehicle in three trips. Linking this up is the evidence of the fourth prosecution witness who said that about the same time as the removal of the drinkables took place, the first appellant went and told him that he and other policemen had seized certain goods, for which they wanted a place to keep. As a result he showed them a bathroom in his house then not in use, where the first and second appellants kept cases of drinkables numbering over a hundred, which they brought on a police jeep in three trips. Before leaving, the first appellant told him they would return in the morning to collect the goods to the station, but according to the fourth prosecution witness, the first and second appellants and a police driver came in the morning and collected only part of the goods. It was only one trip they made. Later that morning at about 7 a.m., the fourth prosecution witness was approached by the first prosecution witness accompanied by the second and third prosecution witnesses with a request to intercede on behalf of the first prosecution witness and others, in getting restored to them their goods which they had learnt the appellant had seized and removed to the fourth prosecution witness’s house. The three appellants upon being contacted by the fourth prosecution witness came to the latter’s house where the matter was put before them, and they admitted taking the goods, which they agreed to restore upon payment of £G1,000 which was finally settled at £G500. [p.515] of [1965] GLR 512 In the evening of that day, 16 November 1962, the first prosecution witness went with the second, third and sixth prosecution witnesses to the fourth prosecution witness’s house where the amount was paid to the appellants after which the appellants instructed the fourth prosecution witness to release the goods to the first prosecution witness and his people which the fourth prosecution witness did, and they were taken away. It was at that time when the goods were being taken away that the first prosecution witness and others found there were only 97 cases instead of 157. The first appellant, according to the fourth prosecution witness, later gave him five bottles of White Horse whisky, eight bottles of schnapps and seven bottles of Gordon’s gin, which the first appellant told him were part of the goods they seized from the first prosecution witness and his people. As a result of a report received on 21 December 1962 by the ninth prosecution witness of the police C.I.D. headquarters, the quarters of the appellants at Teshie police barracks were searched on 22 December 1962, where the following were found: In the case of the first appellant, three-and-a-half bottles of White Horse whisky, two-and-a-half bottles of Martell brandy and two cartons and ten packets of three star safety matches. In the case of the second appellant, two bottles of Martell brandy and in the case of the third appellant, two bottles of Martell brandy and five packets and six boxes of three star safety matches. After certain inquiries including an identification parade held on 14 February 1963 the appellants were charged on 19 July 1963 and subsequently tried and convicted as stated. The defence case was that upon information received at about 10.30 p.m. on 15 November 1962 by the second appellant which he passed on to the first appellant, the two of them accompanied by the tenth prosecution witness (a police driver) and one constable Nyarko went on patrol duty in Teshie town later that night. In the course of this, they saw two people in the dark in front of them as a result of which the first appellant ordered the tenth prosecution witness to pull up, which he did. The three appellants and Nyarko then alighted and gave chase; the first and second appellants taking one direction and the third appellant and Nyarko another direction. There was no trace of the two people, but instead, the first and second appellants came upon five cases of drinkables and one carton of safety matches along a lane. There is some conflict between the appellants as to the exact place where these were found. According to the first appellant, it was “along a path leading to an uncompleted house,” whereas the second appellant said it was “along a lane,” and the third appellant, it was “along a footpath where the weeds were overgrown.”

[p.516] of [1965] GLR 512

While awaiting by the goods, the eighth prosecution witness emerged from the right side facing Nungua, and on being challenged by the first appellant the eighth prosecution witness denied all knowledge of the goods and said he went to the lavatory in the bush nearby. This was about 3 a.m. on 16 November 1962. The first appellant then blew his whistle and soon afterwards, Nyarko and the third appellant arrived on the scene where they met the eighth prosecution witness being interrogated by the first appellant. On the instructions of the first appellant, the three of them, i.e. the second and third appellants and Nyarko, carried the five cases of drinkables and one carton of matches to the police jeep which was waiting where it had stopped, and they all drove away to the Teshie Police Station. Entries of the goods were made in the appropriate book, after which they were deposited in the exhibits room. At daybreak a report was made to the seventh prosecution witness, Deputy Superintendent, Central Police Station, who went to Teshie Police Station and inspected the entries as well as the goods. Following that, were the search of the appellants’ quarters, the exhibits found therein, as before stated; the appellants’ transfer on 30 December 1962 from Teshie to the Regional Training Centre, Accra, the identification parade held on 14 February 1963, and the charges later preferred against them, which they all denied at the trial, but were convicted of. In support of ground (4) learned counsel for the appellants contended that the identification parade was irregular and the trial also unsatisfactory, because the first prosecution witness and the second prosecution witness’s evidence was that they met the appellants for the first time in the fourth prosecution witness’s house and did not know them before. In that case learned counsel argued, the identification was necessary, and if it was to be held it ought to have been properly done. The trial circuit judge, according to learned counsel, held that the parade was not properly conducted, but the learned judge of the High Court erroneously held that the appellants were known to the witnesses. As to this ground it is to be observed that the evidence of the fourth prosecution witness that he knew the appellants very well at Teshie was not disputed. Indeed, the first appellant admitted having gone to his house before, although he said it was for a different purpose. The evidence of the first prosecution witness and the second prosecution witness also shows that they had seen the appellants twice on 16 November 1962, the day of the offence. All this coupled with the evidence of the police officers the fifth and the ninth prosecution witnesses and the final conclusion arrived at by [p.517] of [1965] GLR 512 the circuit judge made ineffective any observation by the circuit judge in respect of the identification parade. In our view therefore ground (4) fails. As to ground (2) learned counsel for the appellants referred to the trial court’s judgment, and said the “circuit judge was right in holding that the first, second, third, fourth and eighth prosecution witnesses were accomplices, because the case is one of corruption and not extortion.” He therefore submitted that the conviction of the appellants on a charge of extortion in respect of count (1) was wrong. The evidence of the sixth prosecution witness also, learned counsel contended, shows that “he took an active part in the transaction and he should have been treated as an accomplice, with the result that his evidence could not be accepted as corroborating the evidence of the other witnesses.” On the evidence, it is impossible to imagine how the eighth prosecution witness can be treated as an accomplice either in respect of the first count of extortion (which counsel contends ought to be corruption), or in respect of the second count of stealing. In the view of this court, there is no evidence that the eighth prosecution witness was present when the demand for money or payment thereof was allegedly made. Similarly, there is no evidence that the eighth prosecution witness was part-owner of the goods found in Tsaale’s room, or knew or took part in keeping them there. The fact that he went there upon the information received, and met the first and second appellants who removed the goods, did not by itself make him an accomplice. The case of the other witnesses, the first, second, third, fourth and sixth prosecution witnesses, of course stands on a different footing, for it is clear from their own evidence that they had a hand in whatever steps were taken to restore the goods which the appellants kept in the fourth prosecution witness’s house to the first prosecution witness and his people, namely, the payment of the sum of £G500 to the appellants. Learned state attorney, in his reply to the arguments on the second count, maintained that the evidence supports a charge of extortion as laid and not corruption. He further contended that the first, second, third, and fourth and eighth prosecution witnesses were not accomplices. Referring to sections 239 (1), 240 and 247 of the Criminal Code, 1960,1 he submitted that, “section 239 taken together with section 247 of Act 29 shows clearly that whether the public officer is in law authorised to demand or obtain, where the obtaining of the money is made in respect of the duties of his office it can be extortion.”

[p.518] of [1965] GLR 512

We shall now examine these sections, in the light of the relevant evidence together with any authority on the point, in order to decide whether in the present case, the conviction on count (1) should be for extortion or corruption. Section 239 (1) creates three distinct offences, namely, corruption, wilful oppression or extortion. It reads thus: “Every public officer or juror who commits corruption, or wilful oppression, or extortion, in respect of the duties of his office, shall be guilty of a misdemeanour.” We are, in this case, concerned with extortion and corruption by a public officer—explanations as to which are as follows: Section 240—Explanation as to corruption by public officer: “A public officer … is guilty of corruption in respect of the duties of his office . . . if he 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 to be received by him, or by any other person, from any person whomsoever.”

Section 247 — Explanation as to extortion by public officer:

“A public officer is guilty of extortion who, under colour of his office, demands or obtains from any person, whether for public purposes or for himself or any other person, any money or valuable consideration whichhe knows that he is not lawfully authorised to demand or obtain, or at a time at which he knows that he is notlawfully authorised to demand or obtain the same.”In view of the phrase “under colour of his office” used in section 247, it is beyond doubt that where anoffence of extortion is alleged, the essence of that offence is that the accused has used his occupancy of anoffice, either by representing or misrepresenting his duties or powers to obtain advantage. That has been held to constitute the meaning of acting “under colour of his office.” See Commissioner of Police v.Wemah.2 It was a case in which a distinction was drawn between corruption and extortion; and although it was based upon the now repealed sections 413 and 437 of the former Criminal Code,3 the decision stillholds good in that the provisions of those sections have been re-enacted in the present sections 239 (1)and 240 of Act 29 quoted supra. Again, in the case of Motayo v. Commissioner of Police,4 where thecourt considered the meaning of the phrase “under colour of his office” in a charge preferred against theappellant in that case, it had this to say:

[p.519] of [1965] GLR 512

“‘It should seem that section 404 (1) relates to a public officer extorting money or its worth under the guiseof legality; his claim is not genuine, though such ostensibly under his employment, but this is really a pretextfor making the claim and a veil to give it the appearance of legality.’ . . . To constitute an offence under that section there must, in our view, not only be a corrupt demand, but also a pretence that the party making it islawfully empowered to do so by reason of his employment. It is immaterial whether he pretends that the money is to be paid into the funds of the public authority that employs him or whether it is a perquisite forhimself; it suffices if he conveys the impression to his victim, whether directly or by implication, that by virtue of his employment he is entitled to demand it.”In the present case before us, the evidence is that when the appellants went to the fourth prosecution witness’s house and met the people, the appellants admitted seizing the goods which they removed to thefourth prosecution witness’s house, and demanded £G1,000 which was finally settled at £G500 before the appellants released the goods to the owners. On the above authorities, therefore, the demand or obtaining of the £G500 by the appellants was not done under the colour of their office. They as policemen (and as such being public officers) had a duty to perform, namely, to take the goods they had seized together with those people who went to claim them, to the police station in order to be charged and prosecuted before the court in respect of those contraband goods. This duty, they failed to discharge, by permitting their conduct in that behalf to be influenced by the acceptance of the £G500. Put in another form, they asked for a bribe of £G500 in order to refrain from performing their official duties as stated. That in our opinion, therefore, was clearly a case of corruption and not extortion, as charged in count (1) and upon which the conviction was based. It is to be pointed out, however, that that did not thereby bring an end to the matter as far as count (1) is concerned, because section 155 (1) of the Criminal Procedure Code, 1960,5 provides that when a person is charged with extortion as a public officer, and it is proved that he was guilty of corruption he may be convicted of corruption although he was not charged with that offence.

[p.520] of [1965] GLR 512

The question then is, can a conviction of corruption be substituted for that of extortion in the instant case? The answer, in the opinion of the court, is yes. The trial circuit judge accepted the evidence of those present at the bargaining and the subsequent payment to the appellants of the sum of £G500, before the release of the goods to the owners. Before coming to that conclusion, he had treated those people present as accomplices and then proceeded to warn himself “as to the admissibility of their evidence” by which, he no doubt meant the danger of convicting on the uncorroborated evidence of those accomplices. Having so warned himself, it was within the learned circuit judge’s legal province to convict upon the unconfirmed evidence of these accomplices. The Court of Appeal, it has been held, will not quash a conviction after the proper caution has been given, merely, upon the ground that the accomplice’s testimony was uncorroborated. “In considering whether or not the conviction should stand, this court will review all the facts of the case, and will bear in mind that the jury had the opportunity of hearing and seeing the witnesses when giving their testimony. But this court, in the exercise of its powers, will quash a conviction, even when the judge has given to the jury the warning or advice above mentioned, if this court, after considering all the circumstances of the case, thinks the verdict ‘unreasonable’ or that it ‘cannot be supported having regard to the evidence’.” See R. v. Baskerville.6 We have considered all the circumstances of this case, and are of the view that notwithstanding the fact that there was no independent witness present at the bargaining and payment of the amount in question, a conviction for the offence of corruption could be based upon the facts in substitution for that of extortion, under section 155 (1) of the Criminal Procedure Code, 1960. With regard to the second count of stealing, learned counsel for the appellants referred to the evidence of the first prosecution witness, and contended that his evidence did not show that the whisky formed part of the goods he said he bought. Further, that there was no evidence to show that the goods taken to the fourth prosecution witness’s house had any connection with those removed by the appellant off the Ada — Teshie road, nor was there any nexus between the goods taken to the police station and those sent to

the

[p.521] of [1965] GLR 512

fourth prosecution witness’s house. As to the goods taken to the police station, learned counsel’s argument was that there was no evidence to show who owned them. The case for the prosecution, he maintained, therefore bristled with doubt, the benefit of which the trial and the appellate court failed to give to the appellants. We are of opinion that the evidence of the fourth prosecution witness and the eighth prosecution witness as to the time of conveyance and the number of trips made of the goods, taken together, afford strong circumstantial evidence that both incidents related to the same goods. The circumstantial evidence is further strengthened by the evidence of the payment of £G500 and the release of the goods to the first prosecution witness and others. Again, the evidence of the fourth prosecution witness that the appellants after depositing the goods in the bathroom told him that they would come later in the morning to remove them to the station, and that, they in fact came but took away only part of these goods, clearly shows that the goods (i.e. five cases of drinkables and one carton of three star safety matches) found in the exhibits store at the police station were some of those goods. It follows from this, and the evidence of the eighth prosecution witness about the removal of the goods from Tsaale’s room which was accepted by the trial court, that the appellants’ case that the goods were found abandoned along a path or a lane was rightly rejected by the trial court as untrue. The discovery of similar goods during the search of the premises of the appellants and the fourth prosecution witness and the latter’s evidence that the first appellant gave him those found in his possession as being part of the goods seized, also go to establish that the goods referred to were part of those goods the first prosecution witness and others stacked in Tsaale’s room. In the circumstances, we are of the opinion that there was evidence to support the charge and conviction of stealing. The fact that the other owners could not be traced to give evidence at the trial was immaterial, and did not affect the conviction on the count, because the first prosecution witness’s evidence was that he was the spokesman for all those who purchased the goods. As to ground (6) it is difficult to understand learned counsel’s argument that the tenth prosecution witness’s evidence supported the case for the defence, and that the learned judge on appeal was wrong in saying that his evidence could be excluded. The fact of the tenth prosecution witness’s evidence was that the appellants brought five cases of drinkables and one carton of matches which they took to

[p.522] of [1965] GLR 512

the police station on the date in question; but the appellants took some of the goods to a certain Ga man’s house near a petrol dump. It is clear from the evidence on record, that the tenth prosecution witness could not have meant any other person than the fourth prosecution witness as the Ga man to whose house the appellants took some of the goods and such piece of evidence, seems to us to be rather more favourable to the prosecution than to the defence. We would also point out that what the learned appellate judge is reported to have said did not enure to the benefit of the appellants. The passage complained of appears in her judgment as follows: “Counsel for the appellants argued that the tenth prosecution witness put forward as a witness of truth was vague and inconsistent. The tenth prosecution witness was the police driver, his evidence can be excluded altogether and that would not affect the case one way or the other.” We agree with the learned judge that the fact that the evidence of a witness called by the prosecution is excluded on the ground that it has been challenged as being vague and inconsistent will not necessarily render the conviction bad if there is some evidence from other witnesses to support it, as appears to be the case here. It is like misreception of evidence which it has been held does not affect the judgment, if there is other evidence to support it. See the case of Alhadi v. Allie.7 For the above reasons, we are of the opinion that the appeal of each of the appellants must be dismissed.

DECISION

Appeal dismissed.

A.K.F.