DARKWA AND ANOTHER vs. THE REPUBLIC [1973] 1 GLR 431

CASES REFERRED TO

(1) R. v. Dawkins (1942) 28 Cr.App.R. 151, C.C.A.

(2) R. v. Gerard [1948] 1 All E.R. 205; 205 L.T.J. 79; 112 J.P. 165; 92 S.J. 113; 46 L.G.R. 211; 32 Cr.App.R. 132, C.C.A.

(3) R. v. Val-Vannis (1957) 2 W.A.L.R. 199, W.A.C.A.

(4) Chief Superintendent of Police v. Saidy (1956) 2 W.A.L.R. 82.

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

(6) R. v. Thomas (1800) 2 East P.C. 934.

(7) R. v. Giddins (1842) Car. & M. 634; 174 E.R. 667.

(8) R. v. Fuller (1797) 1 Bos. & P. 180; 2 Leach 790; 1 East P.C. 92; 126 E.R. 847.

NATURE OF PROCEEDINGS

APPEAL by the appellants against their summary conviction for extortion by a district magistrate grade I. The facts are fully set out in the judgment.

COUNSEL

I. N. K. Wuaku for Nutsuga for the appellants.

Addo, Assistant State Attorney, for the respondent.

JUDGMENT OF ATA-BEDU J.

The appellants were tried by the District Magistrate, Grade I, Sogakofe, and convicted on a charge of extortion under section 239 of the Criminal Code, 1960 (Act 29), and sentenced to six months’ imprisonment with hard labour each.

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At the time of the alleged offence they were both escort police constables and were alleged to have demanded and obtained the sum of ¢10.00 from one Nuborbi Adzokatse under colour of their office. They were stationed at Adidome.

The grounds of appeal filed are:

(a) The judgment cannot be supported having regard to the evidence.

(b) The learned magistrate failed to consider fully the defence of the appellants.

The case for the prosecution is that on 24 April 1971 the complainant, the first prosecution witness, travelled on the truck of the fifth prosecution witness to Adidome Poultry Farm to buy some chicks. On their arrival at Adidome at 8 a.m., they saw the appellants both in uniform near the police station. The appellants stopped the fifth prosecution witness and asked for his driving documents. These documents were handed to the first appellant by the driver, the fifth prosecution witness, who explained, in answer to the first appellant, that his handbrake was not functioning effectively because he could not obtain the necessary materials for the repair. The first appellant kept the driving documents and told the fifth prosecution witness to meet them (the appellants) at Adidome junction on their return from the poultry farm. On their return journey they saw the appellants standing under a mango tree at Adidome junction where the fifth prosecution witness stopped his vehicle, alighted and walked up to them and demanded the return of his documents to him. It is at this stage that, according to the fifth prosecution witness, the first appellant demanded from him some drink before he would give back the documents. When the fifth prosecution witness said he had only one cedi the first appellant said that was not enough and demanded ¢10.00 from the fifth prosecution witness, who remained with the appellants for about three hours pleading with them to accept the one cedi he had on him while the first prosecution witness was waiting in the vehicle for the fifth prosecution witness. Realising that his chicks were dying as a result of the delay, the first prosecution witness went up to the fifth prosecution witness and demanded to know the reason for the delay. The first appellant, it is alleged, became annoyed, boarded the vehicle with the second appellant and requested the fifth prosecution witness to drive to the police station, according to the fifth prosecution witness, to be charged. After driving the vehicle, the fifth prosecution witness, on the request of the first appellant, stopped and the three of them alighted, repaired to a small building where the demand was again renewed and discussed and the second appellant is alleged to have said, for the first time in the endeavour, that the one cedi was not enough and, therefore, they would not accept it. The first prosecution witness again went up to them and asked what was happening. The first prosecution witness was told by the fifth prosecution witness in the presence of the appellants that both appellants had told him the one cedi was not enough but they wanted ¢10.00.

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According to the first prosecution witness, when he went up to the fifth prosecution witness and the appellants near the small building and complained of his chicks dying, the first appellant told him that the driver said he had no money and as he, the first prosecution witness, was complaining that his chicks were dying, if he had money he should give the ¢10.00 he was demanding to the driver, the fifth prosecution witness. He then paid it and the first appellant returned the documents to the first prosecution witness who in turn gave them to the fifth prosecution witness. The first prosecution witness later reported the matter to the police.

The defence of the appellants was that on that day in question they both left Adidome Police Station at about 7.15 a.m. for duty at Atsenfo (Achenfo) after causing the entry of the same to be made in the station diary. They reached Achenfo which was about three-and-a-half miles away from Adidome at about 9 a.m. to 10 a.m. They went to look for one Wisdom Kwasi Hoseme but they could not get him. At Achenfo they contacted the chief of the village and told him of their mission. Having waited for the wanted person for a long while in vain they returned to Adidome Police Station at about 5 p.m. and caused the same to be entered in the station diary. Until they saw him at Adidome Police Station, both appellants said they did not know the first prosecution witness. They denied the charge.

The learned trial magistrate after a review of the evidence as a whole, accepted the evidence adduced for the prosecution and convicted each of the appellants and the relevant portion of his judgment is as follows:

“I am satisfied with the case for the prosecution. It establishes that both the accused are policemen and were working or acting together at the material time.

The evidence of Nuborbi Adzokatse and especially the driver shows that the first accused took into his possession the driver’s documents for some time. He later asked the driver to turn round to the police station to charge him. The second accused joined the vehicle. But on the way the driver was asked to stop. The accused are policemen and their conduct shows they were acting under colour of their office, that is to say, by their representation or misrepresentation of their duties as policemen.

I am also satisfied that it was under colour of their office as such policemen, namely, public officers that the accused demanded and obtained the sum of ¢10.00 unlawfully from Nuborbi Adzokatse.

The prosecution have proved their case and I find each accused guilty and convict him on the offence.”

In arguing the grounds of appeal together, learned counsel for the appellants contends that the learned magistrate failed to consider the alibi put forward by the accused in their statements to the police. He says that throughout the trial these averments were never dislodged.

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The prosecution failed to conduct an investigation into the movements of the appellants and were silent on the issue.

The reply by the learned assistant state attorney to this contention, and I am in entire agreement with him, is that the appellants had a duty to furnish particulars to enable the prosecution to make inquiries under section 131 of the Criminal Procedure Code, 1960 (Act 30), but this they did not do. Learned counsel submits that merely saying they were at Achenfo was not enough and that the defence of alibi must fail.

In a summary trial when the person charged intends to put forward a defence of alibi, he is required, under section 131 of Act 30, to give notice to the prosecution with particulars as to the time and place and of the witnesses by whom it is proposed to prove it before the examination of the first witness for the prosecution. If such notice is given then the court may upon the application of the prosecution grant an adjournment where it appears reasonable so to do. Where the person charged put forward a defence of alibi but fails to give the required notice the court shall call upon him to give notice to the prosecution of the particulars mentioned either forthwith or within such time as the court may allow and adjourn the case if the prosecution wishes. If the person charged refuses to furnish the required particulars the case shall proceed but no evidence in support of a plea of alibi shall be considered.

Having stated the rule relating to a plea of alibi, I shall now consider whether there was any such plea properly put forward in accordance with the above rule. Learned counsel for the appellants has contended that the alibi was put forward in the statements of the appellants, exhibits C and D. In my view these statements do not constitute such a notice of alibi as could be tested by the police because they were not addressed to the prosecution; they did not state the hour of the day they set out for and returned from Achenfo village; they did not mention which part of the village they went to and did not give any particulars of any witnesses by whom the alibi was to be proved. However, the sixth prosecution witness who investigated the case said, under cross-examination, that he visited Achenfo village but he had no information about the appellants going there. The court was not aware of the contents of these statements until they were tendered in evidence. The particulars required were not known to either the prosecution or the court until the appellants gave evidence and yet they were defended by counsel who should have adverted his mind to section 131 of Act 30 when this was pointed out to him by the sixth prosecution witness. There cannot be any excuse or justification for the appellants’ counsel, who, no doubt, had full instructions from them, to have ignored such a defence whether or not he believed it. What is worse is that the chief of Achenfo whom the appellants alleged they contacted was not called by them as a witness whose evidence would have been very material as far as their presence there on the alleged mission was concerned. Although, according to the sixth prosecution witness, the station diary showed that the appellants booked for duty at Achenfo his information from an independent witness revealed that the appellants did not reach Achenfo

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before the incident. The station diary was not subpoenaed by the appellants to prove the entries, if any, not only that they contacted the chief at Achenfo but also of the time of departure from and arrival at the station.

The plea of alibi in the present case consists not only of a denial that the appellants were the persons alleged to have committed the offence charged but also that they were nowhere near the scene of the crime. This calls for evidence tending to show the identity of the culprits and, in this regard, there was the evidence on record of the identification of the appellants at the parade which the trial magistrate considered tersely in his judgment and found that the appellants were the culprits. This finding meant a rejection of the defence of alibi and this is what the trial magistrate had to say.

“The defence of the accused appears to be one of alibi and at a certain stage of the case for the prosecution, I drew counsel’s attention to this but he intimated that the case should go on. No notice of alibi was therefore filed. The accused did not also call any person especially the chief of the village, whom they alleged they saw and who asked them to wait for Wisdom Hoseme, to testify . . .

I watched the accused when they gave their evidence. I do not believe their story that they did not meet the driver and Nuborbi Adzokatse to demand and obtain N¢10.00 from them.”

Failure to give notice of alibi in accordance with the provisions of section 131 of Act 30 is a good ground for suspecting it to be untrue: see R. v. Dawkins (1942) 28 Cr.App.R. 151, C.C.A. and R. v. Gerard [1948] 1 All E.R. 205, C.C.A. The appellants now cannot complain that the prosecution did not investigate into their movements and that they have been prejudiced in their defence, particularly where they were represented. Also, having failed to substantiate their defence of alibi they cannot complain: see R. v. Val-Vannis (1957) 2 W.A.L.R. 199 at pp. 201-202, W.A.C.A.

The next point raised by counsel for the appellants is that there is no evidence that there was a demand made of Nuborbi Adzokatse. Counsel says the prosecution’s case is that the demand was made of the driver but there is no evidence that the demand was made of the driver and the first prosecution witness jointly. For this reason counsel submits that the prosecution failed to prove the case as laid in the charge and that the trial magistrate on that ground should have acquitted and discharged the appellants.

I agree with counsel for the respondent that there is evidence on record of a demand made of the first prosecution witness. There is, no doubt, evidence that the demand was first made of the driver the fifth prosecution witness for ¢10.00 which he could not afford and he pleaded with the appellants who in their persistence held up both the

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fifth and first prosecution witnesses for over three hours. Later the demand was directed to the first prosecution witness when he complained to the appellants that his chicks were dying because of the delay and this is what he said:

“I told the first accused that my chicks were still dying. The first accused said that the driver complained he was having no money. I was standing near the vehicle. The accused were about fifteen yards away when the first accused spoke to me that the driver said he had no money. I started to beg the accused that my chicks were dying; 33 out of the chicks died. I showed them to the accused. I approached the driver and told him that the accused wanted to take money from him and my chicks were dying and so what should we do. The first accused said I complained my chicks were dying and that if I had money I should give to the driver and that he was demanding ten cedis (¢10.00) from the driver. I then gave ¢10.00 to the first accused.”

On the evidence there is no doubt that the ¢10.00 was taken or obtained by the first appellant and with him the second appellant.

The statement of offence is extortion which is the offence in subsection (1) of section 239 of Act 29. The particulars of the offence alleged the words “demand and obtain” which are the elements mentioned in section 247 of Act 29 which explains the offence of extortion. Consequently, the omission to state subsection (1) in the statement of offence on the charge sheet is not fatal: see the case of Chief Superintendent of Police v. Saidy (1956) 2 W.A.L.R. 82 at p. 83.

On the record, the evidence of demand is so overwhelming that I am not persuaded by counsel for the appellants when he says there was no demand made by the appellants. But according to learned counsel for the respondent, the only significant portion of the particulars of the offence which is disturbing is the inclusion of the conjunctive words “demand and obtain” but this, he says, is not fatal though it would amount to duplicity of offences in the charge. In my opinion the “demanding” and “obtaining” are the elements by which the offence of extortion is to be proved. In the case of Commissioner of Police v. Wemah (1957) 3 W.A.L.R. 41 at p. 46, C.A. the court held the view that “the gist of the offence of extortion ‘lies in taking under colour of office from any person any money or valuable thing which is not due from him; if the act is done otherwise than in good faith . . ..” It is clear, therefore, that the inclusion of the word “demand” in conjunction with the word “obtain” in the particulars is not such a duplicity as will be fatal to the case for the prosecution. Though the conjunctive words “demand and obtain” do not conform to the wording of section 247 of Act 29, namely, “demands or obtains” and may be deemed to be two separate elements and, therefore bad for duplicity, the real point in the offence is the “taking under colour of office.” Moreover, the facts of the case show that the “demanding and obtaining” were acts in the course of one endeavour for the commission

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of the offence of extortion charged: see R. v. Thomas (1800) 2 East P.C. 934; R. v. Giddings (1842) Car. & M. 634 and R. v. Fuller (1797) 1 Bos. & P. 180. However, as submitted by learned counsel for the respondent, there has been no miscarriage of justice.

On the facts and the law, I find nothing wrong with the judgment of the trial magistrate which justifies my interference with it. The appeal is therefore dismissed.

DECISION Appeal dismissed.

S. Y. B.-B.