TOGBE FITI IV v. THE STATE [1965] GLR 33

DIVISION: HIGH COURT, HO

DATE: 3 FEBRUARY 1965

BEFORE: SOWAH J.

CASES REFERRED TO

(1) R. v. Asiegbu (1937) 3 W.A.C.A. 142.

(2) Republic v. Amoah, Supreme Court, Cyclostyled Judgments, July-December 1961, p.56, unreported.

NATURE OF PROCEEDINGS

APPEAL from a decision of the District Court, Ho, convicting and sentencing the accused to eight months’ imprisonment for the offence of accepting money to influence a public officer.

COUNSEL

A. A. Ackuaku for the appellant.

F. E. Creppy, Assistant State Attorney, for the respondent.

JUDGMENT OF SOWAH J.

Sowah J. The appellant was on 11 August 1964 convicted and sentenced to eight months’ imprisonment by the district magistrate N. A. Tham, Esquire, for the offence of accepting money to influence a public officer contrary to section 252 (1) of the Criminal Code, 1960.1

The particulars of the offence were given as follows:

“CHIEF FITI IV: Paramount Chief of Aflao Traditional Area; For that you during the month of June 1962 at

Aflao in the Volta Magisterial District and within the jurisdiction of this court, did offer to accept valuable consideration in the sum of £G100 under pretence of being able so to influence Mr. Hans Kofi Boni, Volta

Regional Commissioner in respect of his functions as a public officer and did accept the sum of £G50 from

Agbodoxo Vitor to influence the said Hans Kofi Boni, the Volta Regional Commissioner.”

Counsel submitted that the statement of offence and the particulars as they stood at the beginning of the trial were bad for duplicity.

[p.35] of [1965] GLR 33

The contention of learned counsel if I should say so is well founded, but the law enjoins upon counsel to raise an objection to the charge at the earliest possible opportunity; it is the duty of counsel to raise it as a preliminary point or at any time before the prosecution closed its case. For the law is settled that where counsel appears on behalf of an accused person and fails to raise an objection an appeal will not be allowed solely on the ground of duplicity. In this connection it is only necessary to refer to the case of R. v. Asiegbu.2

In this case however it appears that the district magistrate himself after the close of the case of the prosecution and in the middle of the case of the defence discovered the error which should have been manifest to him from the start. At that stage he had no power to amend the charge, but he proceeded to amend the charge and to continue with the case on the amended charge. I am satisfied from the affidavits sworn to by counsel and the learned magistrate on this issue that learned counsel did protest though the learned magistrate says that the protest was not vehement.

In my view at that stage the learned magistrate ought not, indeed he had no power to amend the charge, and when he had done so he did not even follow the procedure laid down by law in requesting the accused to plead to the fresh charge or the charge as amended. Thus the accused continued to lead his defence to meet the new charge and called the witness after the charge had been amended, then closed his case. In counsel’s submission he argued that the learned magistrate was wrong in substituting a fresh charge and further in not conforming to the provisions of section 176 (1) and (2) of the Criminal

Procedure Code, 1960.3

It appears that during the writing of his judgment the learned magistrate discovered his mistake and then purported to re-amend the charge and substitute the original charge. He says as follows:

“In any case by section 176 [of Act 30] the amendment should not have been made because even though

Archbold say is the power it is permissible that power of the High Court and not a district court. I therefore declare the amendment void. If that is the case the original charge stands.”

In my view if he has himself declared the amendment void, there was no other charge before the court, because the original charge was completely obliterated by the amendment and the only way the learned magistrate could resuscitate it is by amending the charge as

[p.36] of [1965] GLR 33 amended, to bring to life the original charge. To declare the amended charge void and to leave it at that is to leave nothing before the court.

A more serious and fundamental objection is that the learned magistrate having decided after court and during the writing of his judgment to reinstate the original charge, he should have caused hearing notices to be given to the prosecution and the accused and to have informed them of his intention so to do; for the defendant was in the middle of his case when the charge was amended. Quite naturally the conduct of the defence would change to meet the new situation. It is my view that this unusual and most irregular procedure prevented the defendant from conducting his case to meet the case of the prosecution and further these irregularities must have worked to his prejudice. The law is not loaded against an accused person, it is the duty of the court to give him an opportunity so to conduct his defence that not only will it appear to all others, if not to the accused, that justice is being done but it is fairly and properly being done. The conduct of the trial was so unsatisfactory that I have pondered whether this is not a case in which I should order a re-trial. But in addition to these irregularities both procedural and fundamental in law the appellant’s case was not at all considered by the learned magistrate. The appellant’s case was not only a denial. He went further to show the reasons why the complainant and his elders had brought the charge against him. He said that the complainant, Micheal Vitor and his elders who are now alleging that they gave him £G50 two years before to influence the Regional Commissioner, Volta Region and the

Minister of Justice, were involved in a case in which he was the chairman of the panel of arbitrators. He says further that the complaints lost the case and were angry with him as they had expected his support since they themselves had supported the appellant while he was fighting for his stool. As a result of the arbitration, the complainants have not been on speaking terms with him and have framed him.

This is the defence he put up in cross-examination of the complainant and his witnesses and of which he gave evidence. The magistrate failed to consider the defence completely. In my view it was of vital importance for the magistrate to have considered the defence: first because the complainant is a civil servant and must have or should have known that the giving of £G50 by his elders to influence persons in authority is illegal and an offence and should have reported the matter to the police immediately.

Secondly no explanation was given for the delay in bringing the matter to the notice of the regional commissioner and the police. Again the complainant is an educated chief and could have written to the regional

[p.37] of [1965] GLR 33 commissioner concerning the alleged amount or matter. Thirdly one may ask why did they wait until they had lost the case in the arbitration headed by the accused before bringing up this matter?

As I have said these are some of the reasons why the learned district magistrate should have considered his case carefully. On this point I am bound by authority. I refer to the case of Republic v. Amoah4 where it is stated that:

“Whatever the defence of a prisoner may be however weak or improbable, he is entitled to have it put adequately to the jury. The first and most important thing for the criminal law is that it should appear that the prisoner is having a fair trial and that he should not be with any sense of injustice on the grounds that his case has not been fairly put before the jury.”

In the case of Republic v. Amoah, (supra) the Supreme Court allowed the appeal on the grounds that the defendant’s case was not a mere denial but he gave a further explanation which the judge failed to put to the jury, the judge saying that the defence was merely a denial.

In the circumstances of this case I am therefore bound by law to allow the appeal, set aside the conviction and sentence and substitute a discharge and acquittal.

DECISION

Appeal allowed.

Appellant discharged and acquitted.

E. A. -A.