DIVISION: IN THE SUPREME COURT
DATE: 3RD MAY, 1963
BEFORE: ADUMUA-BOSSMAN, OLLENNU AND BLAY JJ.S.C.
NATURE OF PROCEEDINGS
APPEAL against convictions on two counts, viz. extortion by a public officer contrary to the Criminal
Code, 1960, s. 239 (1) and defrauding by false pretences contrary to the Criminal Code, 1960, s. 131.
During the hearing of the appeal it was conceded by the senior state attorney that the two charges
appeared to be contradictory and the appeal proceeded in respect of the conviction on the charge of
extortion only. The facts are set out in the judgment of the Supreme Court.
COUNSEL
W. Adumua-Bossman for the appellant.
N. O. Annan, Senior State Attorney, for the respondent.
JUDGMENT OF BLAY J.S.C.
Blay J.S.C. delivered the judgment of the court. The appellant in this case was charged and tried before
the Circuit Court, Tamale, on two counts, one of extortion by a public officer, contrary to section 239 (1)
of the Criminal Code 1960,1 and one of defrauding by false pretences, contrary to section 131 of the
Criminal Code, 19602. He was convicted on both counts and sentenced to a day’s imprisonment plus a
fine of £G150 or twelve months imprisonment with hard labour on each. The fines were non-cumulative
and the sentences concurrent. From this conviction and sentence he has appealed to this court on eleven
original grounds of appeal to which five more were added by leave in this court. At the hearing of the
appeal it was pointed out to the learned senior state attorney that the two charges appear to be
contradictory, in that if the appellant did demand the amount he is alleged to have obtained under colour
of his office as a works foreman and a public officer, then he could not at the same time be charged with
obtaining the same amount under false pretences so as to warrant a separate charge and conviction under
section 131 of the Criminal Code. Learned senior state attorney rightly conceded this and said he could
not support the conviction of the appellant on both counts by the learned circuit court judge but that he
could only support one. However as the sentences imposed were concurrent and non-cumulative, the
hearing of the appeal proceeded in respect of the conviction on the charge of extortion.
The case against the appellant was that he, as a public officer, to wit, as works foreman of the Department
of Social Welfare and Community Development, at Sinibariga village near Bawku in the Northern and
Upper Regions, did under colour of his office, obtain for himself cash the sum of £G60 from one Barike
Akurugu, chief of Sinibariga village, knowing that he was not lawfully authorised to do so. In support of
the case against the appellant, the prosecution called eight witnesses in all. Four of these witnesses, the
first, second, third and fifth, gave evidence about two visits to their village by the appellant. At the first
visit the appellant had been introduced to the chief of the village as the officer who was to help them in
their community development work, especially in the construction and repair of the road leading to the
village. On the second visit the appellant asked for the sum of £G60 to enable him to buy petrol
[p.400] of [1963] 1 GLR 398
for the caterpillar intended for use in the construction of the road. The amount demanded had been given
to the appellant by the chief of the village who had to borrow £G20 from one of his sub-chiefs in order to
make up the £G60.
After the appellant had taken the money he left the village and was never seen again, and as the promised
caterpillar was never seen on the road, a report was made to the prosecution’s seventh witness and
subsequently to the police. The appellant in defence denied going to the village twice. He alleged that he
had visited the village on one occasion only when he was introduced to the chief and his people. He
denied visiting the village on a second occasion and demanding and receiving the amount of £G60 or any
money at all. The case for the prosecution as it stood was, if believed, sufficient to secure a conviction.
However the prosecution which was represented by counsel did a most peculiar thing in an attempt to
boost up the case against the appellant. It asked the leave of the court to recall its fourth witness who had
earlier given evidence and was in the court room all the time the remaining witnesses were giving
evidence. This application although opposed by counsel for the appellant in the court below was granted
and the witness, Abongo Abuguri, was recalled. The evidence he gave was as follows:
“I am Mass Education Assistant in charge of the Garu district. I have in my hand a memorandum made by
me dated the 15th August, 1961. On the 13th July, 1961, the accused came to Garu. He confessed he had
collected £G60 from the chief of Kuguri and £G60 from the chief of Sinibariga. He said he used the money
for the purchase of iron bars, cement and timber boards to be used for the bridges on the roads. He said further that he had collected £G40 from the chief of Patia. He said he would not like the case to go to court
because the three chiefs had been kind to him. He asked me to go and tell the chiefs to meet him before the
chief of Tempane to apologise to them and he would refund the money to them. I told accused that once the
police had taken over the case I would not like to interfere. I made it known to the accused that I would
report the matter to Mr. Sackey. He begged me not to report to Mr. Sackey. On the 9th August, 1961, the
accused came again and repeated his request and also on the 10th August, 1961. On the 10th August, 1961, I
told the accused that the Tempane chief had lost his young wife and so we should not worry him with this
case. On the 13th July, 1961, the accused brought one bottle of whisky and three bottles of beer for us to go
and see the Tempane chief with, which we sent. On the 10th August, 1961, the accused again brought fifteen
bottles of beer, two bottles of White Horse whisky and one hundred kola nuts. We sent those too to the chief
of Tempane but he was busy as he was celebrating the funeral of his late wife. The accused asked if I had
spoken to the three chiefs about the apology and when I said no he said he was going to report me to the
P.C.D.O. at Bolgatanga that I had not been helping him in this case. On the 14th August, 1961, I made a
report to Mr. Sackey.
Cross-examined by Mr. Appiah:
I made a report to Sackey. I heard Mr. Sackey when he gave evidence. He never mentioned that I made a
report to him. I was surprised. I never gave this evidence on the 8th March, 1962. I had the memorandum
with me on
[p.401] of [1963] 1 GLR 398
the 8th March, 1962. I never told police about the memorandum. I made a statement to police. I gave
evidence before the commission but I never mentioned the memorandum to the commission. Mr. Sackey was
present at the commission. At that time I had already mentioned the memo- randum to Mr. Sackey. I never
contorted evidence with Mr. Sackey this afternoon. Mr. Sackey informed me about this case between the end
of June and the beginning of July, 1961. The accused spoke to me about the case and requested me to see the
chiefs to meet him before the chief of Tempane.
Re-examined:
Mr. Sackey never approached me this afternoon about the case. I was approached by the state attorney. As a
result I had to give evidence this afternoon. I explained why I never mentioned the memorandum on the 8th
March, 1962.”
As stated by the witness in this evidence he never at any time during his evidence in the first instance
made mention of the alleged confession by the appellant which he now gave in such detail.
Before this court, the leave to recall the witness as well as the admission in evidence of the alleged
confession have been severely attacked by counsel for the appellant. We have no hesitation in endorsing
the criticism. In our view it is important that when an application is made for the recall of a witness, the
court should enquire from counsel or the applicant the nature of the evidence the witness was being
recalled to give and if it appears that the evidence intended to be given is not an explanation of something
he had already said, the application should be refused. A witness should only be recalled when it becomes
necessary to explain something already deposed to by him or in very exceptional cases where it would be
in the interest of justice to do so and not otherwise. In our view the appellant’s alleged confession should
not have been admitted by the court at that stage and in the circumstances in which it was given in
evidence. Before this court the only ground of appeal argued by counsel for the appellant which appears to have
some substance in it, is the admission by the circuit court of the evidence of the appellant’s alleged
confession. The learned circuit court judge says in his judgment in no uncertain terms that he believed the
evidence of this alleged confession of the appellant given by the fourth prosecution witness. If the learned
circuit judge did believe the evidence of the alleged confession of the appellant as stated above then it is impossible to say that he was not prepared to believe in the case against the appellant. We feel therefore reluctant to accept the contention of learned senior state attorney that besides the evidence of the alleged confession, there is other sufficient evidence on record which the circuit court judge did believe and which he relied on in convicting the appellant. It is true that the learned circuit court judge in his
judgment did review the evidence given against the appellant. But he however ended his judgment as
follows:
“As regards the alleged confession by the accused to the fourth prosecution witness, Abongo Abuguri, I am
of the opinion, after seeing and hearing the accused and the witnesses, that the accused in fact did make the
confession. The accused admitted offering drinks, i.e. whisky and beer to the chief of
[p.402] of [1963] 1 GLR 398
Tempane during the funeral celebration of the chief’s wife. I take judicial notice, with my knowledge of the
custom of the area, that drinks, i.e. whisky and beer, are not offered during funeral celebrations. After seeing
and hearing witnesses I find it difficult to disbelieve their evidence having regard to their mentality. I don’t
believe the evidence of the accused as the case had been overwhelmingly proved by acceptable evidence.
In view of the foregoing I am satisfied beyond reasonable doubt and find as a fact that the accused as
foreman of works of the T.F.U. of the Department of Social Welfare and Community Development in charge
of projects demanded the £G60 which was paid by the chief of the village to him through the first
prosecution witness. Also the accused represented that he had been sent to do the work and needed £G60 for
petrol for a caterpillar which he was bringing. The chief, believing the accused, paid the money. The
caterpillar was not brought and the accused never returned to do the work. In the circumstances I find the
accused guilty on both counts and convict him accordingly. The accused is sentenced to one day’s
imprisonment plus a fine of £G150 or twelve months imprisonment with hard labour on each. Fines
non-cumulative, sentences concurrent.”
From the above it is impossible to say how far the learned circuit judge was influenced by the alleged
confession of the appellant as well as by his own supposed knowledge of the custom of the area, about
which there was not a tittle of evidence on record. In the circumstances we are reluctantly compelled to
allow the appeal, set aside the verdict of guilty and substitute instead a verdict of acquittal and discharge.
Justice should not only be done, but should manifestly be seen to be done.
DECISION
Appeal allowed.
Appellant acquitted and discharged.
J. D.
