REPUBLIC vs. QUANSAH [1968] GLR 235

CASES REFERRED TO

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

[p.236] of [1968] GLR 235

(2) Davies v. Director of Public Prosecutions [1954] A.C. 378; [1954] 2 W.L.R. 343; [1954]1 All E.R.

507; 118 J.P. 222; 98 S.J. 161; 38 Cr.App.R. 11, H.L.

(3) Nweke v. R. (1955) 15 W.A.C.A. 29.

NATURE OF PROCEEDINGS

SUMMARY TRIAL at the High Court on a charge of corruption by a public officer contrary to the Criminal Code, 1960 (Act 29), s. 239 (1). The facts are fully set out in the judgment.

COUNSEL

J. O. Amui, State Attorney, for the Republic.

Accused in person.

JUDGMENT OF ARCHER J.

The criminal proceedings in this case commenced at the Circuit Court, Cape Coast, but by an order of transfer signed by his lordship the Chief Justice, the case was transferred to this court to be summarily tried.

The accused, Abraham Quansah, is charged with corruption by a public officer: contrary to section 239 (1) of the Criminal Code, 1960 (Act 29). The particulars of offence as they appear on the charge sheet are that:

“No. 1203 GC/2 Abraham Quansah on 1 November 1966 at Asikuma and within the jurisdiction of this court, being a public officer, to wit: general police constable, under colour of your office, and in respect of the duties of your office, did receive the sum of ¢8.00 and permitted your conduct as a public officer to be influenced by foregoing the arrest of Jane Ayensu and Afua Ansowo for the crime of selling above the price control in consideration of the sum of ¢8.00.”

When the charge was read I entertained certain qualms as to the propriety of the inclusion of and the relevance of the five words “under colour of your office.” The section under which the accused is charged reads: “239. (1) 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.” Corruption by a public officer is explained in section 240 in the following terms:

“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.”

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It is obvious that the words “under colour of his office” do not constitute an essential element in the crime of corruption. In the case of Commissioner of Police v. Wemah (1957) 3 W.A.L.R. 41 at p. 43, the Court of Appeal had the following to say:

“Trial courts often find some difficulty in deciding whether the particulars of the offence alleged, or the facts, amount either to corruption or extortion. In our view there is no need for such difficulty. The test to be applied is as follows: if the particulars of offence or acts complained of are committed in respect of the duties of an office, or in other words, committed in the performance of the duties of an office, then clearly the offence contemplated is corruption; but if the particulars or the acts are committed under colour of the office then the offence contemplated is extortion.

In explaining the offences of corruption and wilful oppression by a public officer, sections 429 and 436 [now 240 and 246] respectively of the Criminal Code clearly show that these offences may be committed in respect of the duties of his (the accused’s) office’; but when we come to the explanation of the offence of extortion as provided by section 437 [now 247], we find that the phrase ‘in respect of the duties of his office’ is dropped and the phrase ‘under colour of his office’ is used. It is our opinion that the distinction is deliberate. A public officer may be guilty of corruption or wilful oppression ‘in respect of the duties of his office,’ that is, in the performance of the duties of his office; or guilty of extortion, that is, by demanding or obtaining ‘under colour of his office’.”

As the words “under colour of his office” appear to be unnecessary, I did not bother to invite the learned state attorney to consider whether the charge was in order. I do not know why those words were incorporated and although they still remain in the charge, I intend to ignore those words for the purpose of my judgment as they represent, in my view, a flourish or blemish which cannot have any legal consequences so far as the crime charged is concerned. If the prosecution prefer to adorn the particulars of offence with innocuous verbiage, my attitude would be to refuse to see or to admire the adornment. I have also considered whether the charge sheet is bad for duplicity but I am satisfied there is no such duplicity because although the words “under colour of your office” are used, there are no further phrases in the charge sheet suggesting extortion.

What is the case for the prosecution? There is a popular township called Asikuma in the Central Region to which traders flock from

[p.238] of [1968] GLR 235 various villages to buy and sell. On 1 November 1966, a Tuesday which was a market day, two women, namely, Jane Ayensu, the first prosecution witness, and Efua Ansowo, the second prosecution witness, were selling their wares at the market place at Asikuma at about 8 o’clock in the morning. According to the first prosecution witness (whom I shall hereafter refer to simply as Jane) the accused came to her and bought three large packets of cube sugar at 3s. 6d. each, that is, 10s. 6d. for the three. The second prosecution witness, whom I shall also hereafter refer to briefly as Efua, also stated the accused came and bought a bar of red key soap from her for 4s. The accused paid the price demanded by these two women but later informed them that they had sold their articles above the controlled price and therefore he had arrested them and they should follow him to the police station. The evidence of both Jane and Efua is to the effect that they asked the accused what was the controlled price but he did not tell them. Later the two women approached the third prosecution witness, Abubakari, who is a ticket collector at the lorry park near the market at Asikuma. Abubakari advised Jane and Efua to bring the accused to him so that he might also intercede. The accused went to the office of Abubakari and after some discussion of the matter, the accused suggested that he would consider the matter if Jane and Efua would vacate the office and wait outside to enable the accused to confer privately with Abubakari. Jane and Efua went out and later returned to Abubakari when the accused had left. According to Abubakari the accused told him that if Jane and Efua could give him ¢10.00, he would release them. Abubakari asked for a reduction and the accused granted what I should term a rebate and demanded ¢4.00 from each of the two women.

After Abubakari had conveyed the accused’s message to them, Jane and Efua, collected ¢4.00 each and handed the total to Abubakari to be given to the accused. Abubakari placed the amount in his pocket to await the arrival of the accused. About 9 a.m. the accused arrived and stood about twenty yards away from the office of Abubakari and waved. As Abubakari was eating at the time, he himself could not interrupt his breakfast but found a driver called Kwesi Nkrumah, the fourth prosecution witness, walking across. Abubakari requested this driver to hand over the amount of ¢8.00 to the accused who could be seen by both the driver and Abubakari. The driver counted the notes and found them to be ¢8.00. He then walked the short distance and handed the money to the accused. Abubakari saw the accused take the amount and put it in his pocket. The accused then went to Abubakari and confirmed the receipt of the money and asked Abubakari to inform Jane and Efua to collect the articles which

[p.239] of [1968] GLR 235 were the subject-matter for the original arrest. The accused, according to these women, came to them and informed them that he had received the money but as they had collected their wares it was just and proper that they should refund the price he paid. Accordingly, the two women refunded the purchase price for the sugar and soap to the accused.

Before then, one Asante, the fifth prosecution witness, a storekeeper had gone to Jane to change his money and Jane had mentioned the threatened arrest to Asante who on his way met Detective Sergeant Hayford, the sixth prosecution witness, and another sergeant and revealed what had happened. Sergeant Hayford together with other policemen went to Jane and Efua who pointed out the accused and thereupon he was arrested. Sergeant Hayford took the accused and the complainants to the front of the store of Asante for further interrogation. According to Sergeant Hayford the accused attempted to pull something out of his pocket but he outwitted him and rushed on the accused, dipped his hand in his pocket and pulled out some currency notes. Sergeant Hayford’s description of these notes was that there were three separate old cedis but he found a bundle of eight old cedis rolled up in the pocket together with miscellaneous coins, exhibit C, which I need not classify in this judgment.

The accused denied when he was first confronted that he had taken any money as a bribe from these two women. When he was arrested, he made a statement to the police exhibit F in which he admitted buying some articles from the complainants. He also admitted in that statement that he “questioned these two women and started bringing them to the station for further action when one of them went inside the lorry park ticket office and told the keeper to beg for her, “ and as he was in a hurry and the keeper begged, he, the accused, left the matter after one constable had advised him to free the women. In that statement the accused denied ever receiving any bribe from these two women.

In his defence, the accused gave sworn testimony and admitted buying the articles from these two women. He also admitted arresting them and walking with them towards the police station. He said further that both women and Abubakari begged him but he refused. However, the women complained that they had left their wares unattended and wanted to go back to see to the safety of their wares. He went back with them to their stalls where the women begged again but on this occasion Jane and Efua remembered their Creator and begged in the name of God. The accused’s explanation is therefore that he released these two women because they begged him in the name of God. He explained further that Jane and Efua demanded the

[p.240] of [1968] GLR 235 return of their articles because they feared that if he the accused went away with the articles he could and would use these articles as exhibits in criminal proceedings against them. He agreed to the return of the articles and he retrieved the purchase price he had paid. He testified further that about ten minutes later two sergeants came and arrested him and after searching him found ¢11.00 and the various coins. He denied ever seeing the driver, the fourth prosecution witness, on that day or receiving any money from anybody on behalf of these two women.

As the burden of proof in this case lies on the prosecution, it follows that before the accused can be convicted lawfully, the prosecution must prove that at the material time the accused was a public officer; that in respect of his duties, the accused directly or indirectly permitted his conduct as a public officer to be influenced; that he received the sum of ¢8.00 from the two complainants or their agents; that the sum he received was valuable consideration and lastly that he was influenced by that valuable consideration.

Section 32 (1) of the Interpretation Act, 1960 (C.A. 4), defines a public officer to mean:

“a member of any of the Public Services, namely, the Civil Service, the Judicial Service, the Police Service; the Local Government Service and such other services as may, . . . be constituted by Act of Parliament as Public Services of Ghana, and any other person declared by any enactment to be a public officer.”

Then section 3 of the Criminal Code, 1960 (Act 29), defines a “public officer” to include “any person holding an office by election or appointment under any enactment or under powers conferred by any enactment.” As it is not in dispute that the accused is a public officer, I do not wish to consider the enactment under which the accused was appointed. Moreover, the accused admits that he is a general police constable and the certificate of his appointment was tendered in evidence as exhibit A. The police notebook of the accused was also tendered as exhibit B. It is also not in dispute that the accused arrested the two complainants for selling above the controlled price. There is evidence that these two women sold the articles to the accused above the prices approved by the Ministry of Trade. Sergeant Hayford also testified that before the material date, that is, 1 November 1966, instructions had been given to all police officers throughout the country to check all cases of profiteering. The evidence of Sergeant Hayford revealed that his investigations at the Police Service Workshops, Accra, pointed out that the accused was a deserter at the material time. The view I take is that whether he was a deserter or

[p.241] of [1968] GLR 235 not at the material time, the accused still had his name in the records of the police as a person whose appointment had not been terminated, and as the accused had not been suspended, he was still empowered to discharge his duties as a police constable.

Section 10 of the Criminal Procedure Code, 1960 (Act 30), provides:

“10. Any police officer may, without an order from a Court and without a warrant, arrest— (a) any person whom he suspects upon reasonable grounds of having committed a felony or misdemeanour.

(b) any person who commits any offence in his presence; . . .”

The word “may” according to the Interpretation Act must be construed as permissive and it seems to me therefore that when the accused bought the articles above the controlled price, the two complainants committed an offence in his presence and he had permissive power to arrest them.

The most crucial question I have to answer is whether the accused received the ¢8.00 and if so, whether the sum influenced him. The accused has denied receiving any money but the prosecution rely on the evidence of the two complainants, Abubakari and especially the evidence of the driver. The two women Jane and Efua testified that the gave the total of ¢8.00 to Abubakari who in his evidence confirmed that he received the money. Abubakari also stated that he gave the money to the driver who has also confirmed that statement. The driver also maintains that he handed over the ¢8.00 at the request of Abubakari to the accused who was standing not far away. According to Sergeant Hayford, he measured the distance which turned out to be 66 ft., that is 22 yds. Some prosecution witnesses have stated 20 yds. but I do not think this conflict is very material, because 33 yds. is a short distance. Abubakari has also confirmed that he saw the driver giving the money to the accused. Abubakari and the two women also confirmed that the accused himself came and informed them that he had received the amount and the women could collect their wares. There is therefore an appreciable consistency in the evidence adduced by the prosecution.

The accused has denied receiving any money and has maintained that he never saw the driver that day and that he had never seen him since his own birth. The accused admits that Abubakari begged him when Jane and Efua went into the office. When he was asked in cross-examination why he went with Jane and Efua to Abubakari’s office, his answer was that he did not know how they got there but

[p.242] of [1968] GLR 235 he was watching them. In his police statement, exhibit G, he said he released the two women after a police constable whom he saw at the market had advised him to leave the women. He said further that he was walking with this police constable, whose name he did not know, when the two sergeants called them. Surely if this unnamed police constable was around when the two sergeants confronted him the accused could have called this constable immediately to defend him. How did the accused know that this man was a constable? He must have been wearing a police uniform or must have shown his identity card to the accused or must have introduced himself as a police constable. In his evidence in this court, he said that he released the women because they mentioned the name of God when begging him. Jane in cross-examination by the accused stated that the arrest took place between 8 a.m. and 9 a.m. The accused did not deny this. Asante, the fifth prosecution witness, and Sergeant Hayford, the sixth prosecution witness, got their information between 11.35 a.m., and 11.42 a.m., respectively and the search of the accused took place at about 11.50 a.m. Yet the accused wants the court to believe that from 8 a.m. to 11.42 a.m., he was still with these women listening to their entreaties and humble supplications to the accused through Almighty God—the accused had now been transformed into a deity by these women and God had become the intermediary whose secret intercessions weighed with the accused. If really the accused wanted to take the women to the police station, was this delay of two or three hours reasonable and sensible?

I have given very careful consideration to the possibility however remote that some of the prosecution witnesses may be classified as accomplices and in such a case I should warn myself against the danger of convicting without corroboration of their evidence. I have borne in mind the analysis made by Lord Simonds in Davies v. Director of Public Prosecutions [1954] A.C. 378, H.L. in an attempt to categorise these prosecution witnesses as participes criminis but I cannot do so with confidence. Russell on Crime (12th ed.), Vol. I at p. 381 quotes Douglas, Election Cases at p. 400 as laying down this rule:

“Whenever a person is bound by law to act without any view to his private emolument, and another by a corrupt contract engages such person on condition of the payment of money or other lucrative consideration to act in a manner which he shall prescribe, both parties are by such contract guilty of bribery.”

This principle, no doubt, is deducible from the common law but as section 8 of our Criminal Code frowns upon common law offences I have decided to recoil from this principle. Fortunately for me, the

[p.243] of [1968] GLR 235 case of Nweke v. R. (1955) 15 W.A.C.A. 29 affords the judicial assistance I require. That was a case involving official corruption and it was urged on appeal that the trial judge erred in not treating the complainant as an accomplice and that had he been so treated there would have been no corroboration of his evidence. Foster Sutton P. delivering the judgment of the appellate court held at p. 30 that:

“On the evidence in the present case we are of the opinion that the learned trial Judge was right in treating the complainant as a victim and not as a participant, in the offence charged. He cannot be said to have been participes criminis to the request for the money or to its receipt, and in this connection those are the relevant elements of an offence under section 116 (1) [of the Nigerian Criminal Code]. “ On the evidence before me, it is obvious that the driver who handed the money was completely innocent of the purpose of the ¢8.00. Jane and Efua did not offer the money but the evidence shows that it was the accused who demanded the money as consideration for their release. They did not receive the money but rather gave away the money at the request of the accused. There is no doubt that they were victims. It cannot also be said that Abubakari was the accused’s agent. On the contrary, Abubakari was all the time interceding on behalf of these two women and indeed it was the accused himself who suggested ¢10.00 and later reduced it to ¢8.00. I therefore refuse to regard any of the prosecution witnesses as accomplices. And even if I am wrong and the two women and Abubakari are accomplices, then there is corroboration of their evidence that the accused received the money by the evidence of the driver who was an innocent agent with no knowledge that the ¢8.00 were tainted with criminality.

Throughout the trial, I assumed the role of the accused’s counsel and advised him on the purpose of cross-examination. Some of the questions he asked were not impressive and when Sergeant Hayford even revealed that the accused was a deserter, he did not challenge him. I am convinced that his visit to the Asikuma market was for a purpose known only to himself. However, he assumed the powers vested in him as a police officer and purported to exercise them. I have considered very carefully whether his explanation may be true or reasonably probable but his inconsistent statements and conduct during the period he was at the Asikuma market have not raised any reasonable doubt in my mind as to his guilt.

I find therefore, that these two women gave the ¢8.00 to Abubakari who in turn sent the driver to give the amount to the accused. I find also that the ¢8.00 was valuable consideration as defined by

[p.244] of [1968] GLR 235 section 261 of the Criminal Code, 1960, because the ¢8.00 were currency then circulating within the Republic. They were not obsolete or currency no longer in circulation. I also find that the accused released these two women from arrest after he had received the ¢8.00. In other words he allowed this valuable consideration to influence him in his conduct in respect of the duties of his office. In this connection I must stress that the prosecution have satisfied me that the accused had a duty to perform when he arrested the two women and as consideration for not performing that duty, he received ¢8.00 and released the women by foregoing their arrest. The accused therefore committed corruption in respect of the duties of his office. Another synonym for corruption is bribery and Russell on Crime (12th ed.), Vol. I at p. 381 cites 3 Cokes Institutes and other commentaries as authority for laying down the following proposition:

“Bribery is the receiving or offering any undue reward by or to any person whatsoever, in a public office, in order to influence his behaviour in office, and incline him to act contrary to the known, rules of honesty and integrity.”

In the present case before me, the accused permitted his conduct to be influenced by ¢8.00 and he cannot tell the court that he acted according to known rules of honesty and integrity. The word “influence” is not defined in the Criminal Code but I see from one or two good dictionaries I have consulted that it means to have effect upon. Briefly therefore the ¢8.00 had effect on the accused. I have considered whether at the time as a deserter the accused would have carried out the arrest. In any case the allegation that he was a deserter is hearsay evidence from Sergeant Hayford as the representative of Service Workshop in Accra did not give evidence to that effect. The accused himself has admitted that he arrested the two women and he was sending them to the police station when they started begging.

I therefore find that all the essential ingredients in the crime have been proved beyond all reasonable doubt by the prosecution. I find the accused guilty and convict him accordingly.

This offence was committed after the 24 February 1966 coup when sermons and discussions were concentrated on public morality. Measures were immediately taken to arrest all cases of profiteering and police officers had a vital role to play in this campaign. Yet the accused became oblivious of his singular role in this exercise and permitted himself to be led astray by ¢8.00. Perhaps he had no faith in the cries and clamour of the “holier than thou” advocates of public morality whose effusions against corruption and corruptibility have had no effect on the eardrums of their listeners.

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The amount involved is small but that should not be the criterion for determining sentence. A vital principle of professional probity in the Ghana Police Force is involved and the accused must be made to develop a sense of compunction during the ensuing months. I have taken into consideration that he has been in custody for nearly five months. He is therefore sentenced to twelve months’ imprisonment with hard labour with effect from today.

The packets of sugar and the soap and ¢8.00 should be returned to the complainants. The police appointment card and note book should be handed over to the Ghana Police. The balance of ¢5.00 and 44p. should be returned to the prisoner.

DECISION

Accused convicted and sentenced.

S. K. T.