REPUBLIC vs. HAGAN [1968] GLR 607

CASES REFERRED TO

(1) Commissioner of Police v. Appiah, W.A.C.A., 10 June 1947, unreported.

(2) Commissioner of Police v. Wemah (1958) 3 W.A.L.R. 41, C.A.

(3) R. v. Otoo, Yawson and Aggrey (1955) 1 W.A.L.R. 31, W.A.C.A.

(4) R. v. Mullins (1848) 12 J.P. 776; 3 Cox C.C. 526.

(5) R. v. Griliopoulos (1953) 20 N.L.R. 114.

NATURE OF PROCEEDINGS

ACCUSED was charged with two counts of extortion by public officer and three counts of accepting bribe to influence a public officer contrary to sections 239 (1) and 247 and 252 (1) respectively of Act 29, based on findings made under Act 230. The facts are fully stated in the judgment of Amissah J.A. sitting as an additional judge of the High Court.

COUNSEL

T. Ahlijah, State Attorney, for the Republic.

Harold Darkoh for the accused.

JUDGMENT OF AMISSAH J.A.

The accused was a Regional Commissioner for a number of years in the ousted regime. In July 1965 he was posted from the Central Region to the Eastern Region where he remained

[p.609] of [1968] GLR 607 until the change of government in February 1966. Evidence was led before the commission of inquiry into irregularities and malpractices into the grant of import licences (popularly known as the Ollennu Commission) that after the accused had got to Koforidua, one Hushie a food contractor who used to supply food to the hospitals and the prisons in the region sought and obtained an introduction through one Blankson to the accused. Blankson was a civil servant attached to the Eastern Regional Administration as private secretary. Hushie wanted the introduction to protect his interests in the food contracting business, because it was the Regional Commissioner who was responsible for the award of the contracts. People had been complaining that he, Hushie, was not a member of the Convention Peoples Party, and he thought that if he did not get to know the accused, this might harm his business.

Hushie was not at the time of his meeting with the accused interested in the importation of goods nor did he know anything about that trade. But some time afterwards he was told by Blankson that the accused had promised to help him, that is Hushie, to obtain an import licence to import goods. Hushie was further told that he should take steps to register as an importer. He did so reluctantly because he did not want to incur the displeasure of the accused. Blankson later told him that he should pay £G6,00 as commission on the licence to be granted. Hushie therefore went along with Blankson and paid that amount to the accused. According to Hushie, he originally tendered the money direct to Hagan but upon the accused’s advice he handed it over to Blankson who first checked it before giving it to the accused. Later on Hushie paid £G1,000 upon demand and through the same process to the accused. On this latter occasion, the accused asked Hushie to meet him the next morning at a point on the Koforidua—Accra road, so that the accused might take him to Accra to see Kwesi Armah, the Minister responsible for Trade, who was to issue the import licence. Hushie met the accused as directed and was taken to Kwesi Armah at his house in Accra and there he was introduced to the Minister. A few days later Hushie got licences by post, worth £G4,000. Thereafter he paid a further sum of £G100 to the accused, again upon a request made by the accused through Blankson, to thank the accused for arranging the licences for him. The licences were revoked after the coup d’etat, and Hushie, upon the advice of Blankson demanded the refund of the money from Mrs. Hagan, the wife of the accused, but eventually Mrs. Hagan refused to pay. This was the story which the commission accepted. It was a story told by Hushie and Blankson and supported by one Awotwi who

[p.610] of [1968] GLR 607 was a relation and a driver of the accused and one Banda, the cook of the accused. The commission made the following finding upon it:

“I accept the evidence of Hushie, Blankson, Awotwi and Banda. Upon that evidence I find that Hagan demanded and received from Hushie on three respective occasions the sums of £600, £1,000 and £100 as bribes for the issue of import licences.”

As is well known, the commission sat under the Corrupt Practices (Prevention) Act, 1963 (Act 230). The finding therefore formed the basis of the five charges that have been preferred by the Attorney-General against the accused. Two of the charges, a count of extortion by a public officer and one of accepting bribe to influence a public officer, relate to the first transaction involving the £G600. They are the first and the second counts. Two others, again a count of extortion by a public officer and one of accepting bribe to influence a public officer, relate to the transaction involving the £G1,000. They are the second and the fourth counts. The last payment of £G100 forms the subject-matter of the fifth count of accepting bribe to influence a public officer.

In accordance with the Act, the accused was, after the reading of the charges to him, called upon to show cause why he should not be convicted and sentenced on the basis of the finding. The cause, shown by counsel on his behalf, consisted mainly of submissions. Some of these were directed to the validity of the charges, others to the evidence.

With regard to the charges, it was submitted that counts (1) and (2) could not stand because the law required that the offences be committed by an accused in respect of the duties of his public office. But that the particular allegations against this accused were not in respect of the duties of his office. One may here recite the relevant provisions of the Criminal Code, 1960 (Act 29), to give point to this submission. Section 239 (1) under which the charges are laid provides that:

“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.”

The offence of extortion is explained in section 247 as follows:

“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 which he knows that he is not lawfully authorised to demand or obtain, or at a time at which he knows that he is not lawfully authorised to demand or obtain the same.”

[p.611] of [1968] GLR 607

It will be noticed that the relevant words are that the accused should act “under colour of his office” not that the offence be committed by him in respect of the duties of his office. I do not think the two are the same. The expression “under colour of his office” has been explained in Commissioner of Police v. Appiah, W.A.C.A., 10 June 1947, unreported as followed by Commissioner of Police v. Wemah (1958) 3 W.A.L.R. 41 at p. 44, C.A. as in this manner:

“‘The first ground of appeal argued was, in substance, that the evidence did not establish that the appellant when he obtained money from the complainants did so “under colour” of his office. Counsel cited the Nigerian case of R. v. Minimah ((1940) 6 W.A.C.A. 192). We would point out that the decision in that case was to the effect that where the charge relates to the performance of the duty of the accused it is necessary to prove what was that duty. It is not so under the section relevant to the present charges. There is clearly a distinction between “the performance of the duties of an office” and “under colour “ of that office. In the latter case it is necessary to establish no more than that the accused held the office averred in the charge and that it was “under colour” of the office, that is to say, by his representation or even misrepresentation of the duties thereof that he demanded or obtained money from the complainant’.”

It has also been held in R. v. Otoo, Yawson and Aggrey (1955) 1 W.A.L.R. 31 by the West African Court of Appeal that it is not an essential ingredient of the offence of extortion by a public officer under our law that a public officer who has made an unlawful demand should have conveyed the impression to his victim that he had, by virtue of his office, authority to make such a demand.

Quite clearly, one need not be acting within the strict confines of one’s duties as a public officer before satisfying the requirements of the offence. Nevertheless it does seem to me that not every demand or obtaining constitutes extortion merely because the culprit happens to be a public officer. The demand or obtaining must have some reference to his public office. That element is what in the Appiah case comes out as the duties of the public office which are represented or even misrepresented and through which the money is obtained. The question is whether the accused here obtained the £G600 and the £G1,000 through a representation or a misrepresentation of the duties of his office as Regional Commissioner. I do not think so. There should in the offence of extortion, be an act or conduct which [p.612] of [1968] GLR 607 amounts to the representation or misrepresentation of the duties of his office. In this case, it is difficult to accept that when Hushie was paying the money he was acting as a result of some representation or misrepresentation of the duties of a Regional Commissioner made by the accused. He must have known that the moneys were not due. The accused had attained a position of some prominence and influence in society by reaching the office of Regional Commissioner. Because of that he may have formed certain associations which enabled him to secure favours he would not otherwise have got. If he asks another for money in order to use his personal influence to secure a favour and that other well understands that the demand has no connection with the public office which that officer is holding, can this be said to be a demand under the colour of that office? If the answer is the same whether the offender holds one particular public office or not or whether indeed he holds no public office at all, then there cannot be a demand under colour of an office. And I think that is the case here. Mr. Hushie went to see the Regional Commissioner because of his food contracting business. When it came to paying money in connection with import licences he knew he was paying to someone claiming influence with Kwesi Armah, not necessarily as a Regional Commissioner. And on that account counts (1) and (2) should in my opinion fail.

But the position is quite different when the counts of accepting bribe to influence a public officer are considered. Section 252 (1) which creates the offence provides as follows:

“Whoever accepts, or agrees or offers to accept any valuable consideration, under pretence or colour of having unduly influenced, or of agreeing or being able so to influence, any person in respect of his functions as a public officer or juror, is guilty of a misdemeanour.”

Assuming that there is evidence that the accused accepted the moneys under the colour of being able to influence a public officer, namely, Kwesi Armah, the Minister of Trade, then it is quite irrelevant that the accused was holding the office of Regional Commissioner or any other office. His position would have been the same whether he held public office or not. For no question of the colour of the offender’s office arises. The question is whether there was such evidence. There was evidence from Hushie that the accused accepted the £G600 and £G1,000 on the understanding that he was going to assist Hushie to obtain the licence. There was also evidence that the accused did what amounted to such assistance by taking Hushie to see Kwesi Armah

[p.613] of [1968] GLR 607 and that after this visit the licence materialised. One who is accused of this offence must have acted under pretence or colour of having influenced or being able to influence. He acts “under colour” if he represents or even misrepresents that he has influenced or is in the position to influence. Here clearly what is relied on is the fact that the accused represented that he was in the position to influence. I think there is evidence of this. Mr. Harold Darkoh, counsel for the accused, has contended that the accused never made any direct representation to Hushie. But that is not necessary. A representation need not be made by word alone. Here the evidence is that the accused used Blankson as his intermediary to ask for the money. The fact that it was a third person who made the oral demands would have made some difference if the accused’s conduct had been contrary to the messages which Blankson delivered. But it was not. Blankson comes with a message that the accused would help Hushie to obtain a licence if he registered as an importer. Blankson next comes with the message that the accused wants £G600 in connection with the licence deal. Hushie takes £G600 to the accused who accepts it in the presence of Blankson. Instead of asking what the money is for, the accused tells Hushie that the business will prosper if Hushie tries to carry it out and within a year Hushie would see the profit. The same applies to the transaction over the £G1,000. But on this occasion, upon the accused accepting the money, he offers directly to take Hushie to Kwesi Armah the following day, having already said that others were offering larger amounts but he, the accused, would see what the £G1,000 could do for Hushie. Then he actually takes Hushie as promised to Kwesi Armah. I think there is ample evidence of accepting bribe to influence a public officer.

The learned commissioner dealt with whether the bribes were demanded for and on behalf of Kwesi Armah and came to the conclusion that they were not; although Kwesi Armah was influenced by the accused to issue the licence irregularly.

As I said, there was evidence to support the charges of accepting bribe to influence a public officer laid in counts (3) and (4). The only question is whether it was credible. On this Mr. Harold Darkoh, counsel for the accused, has submitted that the evidence of Hushie and Blankson should not be accepted because they were accomplices. There is no legal rule which prevents the evidence of an accomplice being accepted. The rules require that it be treated with caution before acceptance. Therefore the tribunal of fact must either look for corroboration from on independent untainted source or warn itself of the danger of accepting the evidence of an accomplice without

[p.614] of [1968] GLR 607 corroboration before proceeding to act upon it. Once more, passages in the commission’s report have been cited to me to show that the commissioner himself took it as his duty to apply the rules of evidence strictly before making an adverse finding against any person. With regard to that passage in paragraph 158 of the report on accomplices and corroboration, I have once before said that the learned commissioner stated the law much more favourably to the persons adversely affected by his finding than he need have. And I see no reason now to change my view on that. He took the view that Hushie and Blankson were not accomplices. In a charge of extortion, Hushie, as the victim, would have been free from the stigma of the accomplice, but I have already held that there was not extortion in this case. For the purposes of the charges of accepting bribe to influence a public officer I am afraid that Hushie was and must be treated as an accomplice of the accused. In fact if he had been charged under section 252 (2) of Act 29 for giving a bribe to a public officer for the grant to himself of a benefit or advantage or for the exercise of influence in his favour, there is every likelihood that the prosecution would have succeeded. He was the witness who gave the material evidence on all the issues. His evidence could in my view be corroborated by that of Blankson. Blankson was found by the learned commissioner not to be an accomplice or a willing agent in that he was a servant acting upon directions of a superior who could easily ruin him should he refuse to carry out the direction. With all due deference to the learned commissioner, that does not seem to me to be the test of an accomplice. Having taken active part in all the transactions under consideration, Blankson could escape the charge of an accomplice only if he could be shown to have been an innocent agent of the accused. But that he certainly was not. That he found himself in the unenviable position where he had to choose between his career and his honour makes him deserving of sympathy. It does not exonerate him from being particeps criminis.

The learned commissioner however went on to say that if corroboration were needed of the evidence of Hushie and Blankson there was sufficient in the evidence of Awotwi and Banda. These two, completely foreign to the transactions, told of the accused picking up Hushie on the Koforidua—Accra road and all of them travelling in the accused’s car to Kwesi Armah’s house. They did not go as far as to say that Hushie also went into the house to see Kwesi Armah. But they did not say categorically that he did not. The commissioner took the view that they were not forthcoming on this last point because of their connection with the accused. It would be recalled

[p.615] of [1968] GLR 607 that Awotwi was not only the driver but also the nephew of the accused; while Banda was the accused’s cook. The point for consideration is whether this journey terminating in Kwesi Armah’s house in Accra as told by Awotwi and Banda was sufficient corroboration of Hushie’s story. Mr. Darkoh has objected that it was not, as the two witnesses were not present at the time the money was alleged to have been paid and did not testify to this. But had they been and had they given evidence of the transactions as told by the complainant, who was the accomplice, the evidence of the complainant would have been surplusage. This was held so in R.v. Mullins (1848) 3 Cox C.C. 526 at p. 531, where it was stated that corroboration does not mean that there should be independent evidence of that which the accomplice relates, otherwise his testimony would be unnecessary, as merely confirmatory of other independent testimony. The point was also put quite neatly in the Nigerian case of R. v. Griliopoulos (1953) 20 N.L.R. 114 at p. 116 where Bairamian J. said:

“Corroboration does not mean evidence from an untainted witness on every detail of the evidence of the dishonest witness; if full evidence from an untainted witness were available, there would be no need to call the dishonest witness at all. The dishonest witness is called because there is no untainted witness available for the whole story: the corroboration needed from an honest source is merely such as may tend to prove that the offence was committed and also implicate the accused in the commission of the offence and thus render it safe to act on the evidence of the accomplice. The point to bear in mind is this; it is the evidence of the accomplice that must be relied on for the whole story — to put it more precisely, it is his evidence that must be relied upon in the first instance for the story that the accused committed the offence: in other words the accomplice must be believed on his own to begin with; if he is, the untainted evidence is used as a support for making it safe to rely on the accomplices evidence; if he is not believed on his own to begin with, the evidence of the honest witness does not help.”

Perhaps the accomplice, here described as a “dishonest witness,” would be better described as a “tainted witness” otherwise the passage states what the law is on the point. In this light I believe that Awotwi and Banda’s evidence provided the corroboration. It must be otherwise quite an extraordinary coincidence that Hushie should say that they visited Kwesi Armah’s house in connection with the licence and have the visit confirmed by two persons who had no connection

[p.616] of [1968] GLR 607 with him whatsoever. It is impossible to explain Hushie’s presence in the car of the accused on this visit to Kwesi Armah’s house in Accra except on the basis of the accused bringing him to intercede on his behalf, as stated by Hushie, in connection with the licence which was later granted. There cannot be any innocent explanation for the visit with Hushie otherwise the accused and his wife who was also in the car that day would have admitted it and provided the explanation. They chose instead to deny that Hushie had ever been in the accused’s car on such a visit.

Taking the view that I do that the evidence of Blankson himself is evidence emanating from a tainted source and not providing that necessary corroboration of Hushie’s story, I do not think it makes any difference that he told two inconsistent stories. At best this inconsistency could nullify his evidence. But even if that happens, there is the evidence of Hushie to contend with. And Hushie was beveiled by the learned commissioner. However, I must add that if the commissioner considered the matter as he seemed to have done and found that the latter story of Blankson was the truth, I would see no reason to apply some rule of thumb principle merely to show that the commissioner must necessarily have been wrong.

I cannot accept that the learned commissioner did not consider that case of the accused. He did not found it fantastic which must mean that not only was it not true but it was also not reasonably probable. The consideration I have given to the arguments advanced in connection with counts (3) and (4) apply equally to count (5). I therefore need not repeat it. Accordingly the accused is convicted on the third, fourth and fifth counts. He is acquitted and discharged on the first and second counts.

DECISION Accused acquitted and discharged on first two counts but convicted on last three counts. L.F.A.