YEBOAH AND OTHERS v. THE REPUBLIC (CONSOLIDATED) [1972] 2 GLR 281
HIGH COURT, HO
Date: 7 JULY 1972
BEFORE: ATA-BEDU J.
CASES REFERRED TO
(1) Donkor v. The State [1964] G.L.R. 598, S.C.
(2) Hassan v. The State [1962] 2 G.L.R. 150, S.C.
(3) R. v. Bandoh (1944) 10 W.A.C.A. 190.
(4) Commissioner of Police v. Wenyonu (1958) 3 W.A.L.R. 459, C.A.
(5) R v. Richards (1832) 1 M. & R. 177; 174 E.R. 60.
(6) Thomas v. Lindop [1950] 1 All E.R. 966; 114 J.P. 290; 66 T.L.R. (Pt. 1) 1241; 94 S.J. 371.
(7) Davies, Turner & Co., Ltd. v. Brodie [1954] 1 W.L.R. 1364; 118 J.P. 532; 98 S.J. 770; [1954] 3 All E.R. 283 D.C. [p.284] of [1972] 2 GLR 281
(8) State v. Obeng alias Donkor, Supreme Court, 23 March 1966, unreported, digested in (1966) C.C.
98.
(9) Kofi v. R. (1955) 14 W.A.C.A. 648.
(10) Majekodunmi v. R. (1952) 14 W.A.C.A. 64.
NATURE OF PROCEEDINGS
APPEAL against convictions for extortion and aiding and abetting extortion contrary to sections 151 and 20 (1) of Act 29. The facts are fully set out in the judgment.
COUNSEL
I. N. K. Wuaku for the appellants.
Djabatey, Senior State Attorney, for the respondent.
JUDGMENT OF ATA-BEDU J.
The appellants in the first three appeals were a general police corporal, a general police constable and an escort police constable respectively at the material time of the alleged offence for which they were charged and tried at the District Court Grade I at Hohoe. The fourth appellant is a farmer.
For the sake of convenience I shall refer to the appellants in the order of their appeals as the first, second, third and fourth appellants.
Against the first three appellants the offences charged are as follows:
“1. STATEMENT OF OFFENCE
CONSPIRACY: Sections 23 (1) and 151 (1) of Act 29/60.
PARTICULARS OF OFFENCE
No. 14894 G/Cpl. E. O. Yeboah, No. 12332 G.C./1 E. J. O. Appiah-Danquah, No. 13579 E.C./1 Kwame
Kyereme: For that you on or about the 23rd day of October, 1970, at Dufrumkpa/Brewaniase, in the Hohoe Magistrate District, and within the jurisdiction of this Court did agree with others to act with a common purpose to commit crime, viz: Extortion.
2. STATEMENT OF OFFENCE
EXTORTION: Section 151 of Act 29/60.
PARTICULARS OF OFFENCE
No. 14894 G/Cpl. E. O. Yeboah, No. 12332 G.C./1 E. J. O. Appiah-Danquah, No. 13579 E.C./1 Kwame
Kyereme: For that you on the same date and place aforementioned in the Hohoe Magisterial District and within the jurisdiction of this Court, being Public Officers, did extort, cash the sum of N¢220.00 from Kwadzo Kakraba. [p.285] of [1972] 2 GLR 281
3. STATEMENT OF OFFENCE
WILFUL OPPRESSION: Section.239 (1) of Act 29/60.
PARTICULARS OF OFFENCE No. 14894 G/Cpl. E. O. Yeboah, No. 12332 G.C./1 E. J. O. Appiah-Danquah, No. 13379 E.C./1 Kwame Kyereme: For that you on the same date and place aforementioned in the Hohoe Magisterial District and within the jurisdiction of this court, being Public Officers, did commit wilful oppression to wit: search the premises of one Kwadzo Kakraba without authority.”
The statement of offence charged against the fourth appellant is aiding and abetting extortion” under
sections 20 (1) and 151 (1) of the Criminal Code, 1960 (Act 29). The particulars are that he,
“on the 23rd day of October, 1970, at Dufrumkpa/Brewaniase in the Hohoe Magisterial District, and within the jurisdiction of this Court, did act in a manner purposely to facilitate the commission of a crime to wit, extortion by No. 14894 G/Cpl. E. O. Yeboah, No 12332 G.C./1. E. J. O. Appiah-Danquah and No. 13579 E.C./1 Kwabena Kyereme.”
The other persons who were also charged with aiding and abetting extortion were tried jointly with the appellants at the trial court. These (then as the fourth and the sixth accused) were acquitted and
discharged but the first, second and third appellants were each convicted and sentenced to six months’ imprisonment with hard labour on each of the three charges. The sentences were to run concurrently. The fourth appellant was also convicted and sentenced to six months’ imprisonment on the charge of aiding and abetting extortion.
The learned magistrate ordered a restitution by the appellants to the respective alleged contributors of the money found to have been paid as follows: (1) N¢22.00 to the first prosecution witness; (2) N¢100.00 to the fourth accused; (3) N¢18.00 to the sixth accused; (4) N¢20.00 to Genyede; (5) N¢100 to the third prosecution witness.
Against these convictions and sentences these appeals have been brought. It is at this early stage to be noted that the description of the second appellant in the second and third charges as to the first name is wrong and I feel it would not embarrass or prejudice the second appellant if the same is amended to read “Kwabena” instead of “Kwame.” This mistake should have been amended at the trial court.
The case for the prosecution is that the complainant, the first prosecution witness, who at the material time was living at Dufrumkpa, was in his farm cottage when a boy called Tumekpey Kwadwo Moses (the second prosecution witness), who was sent by his father, went to him for some gun powder. After obtaining the gun powder which was put in his cap, the second prosecution witness left but on the way he was [p.286] of [1972] 2 GLR 281 challenged by the first, second, and the third appellants and another person. The second prosecution witness accompanied by these four men, went to the first prosecution witness and pointed him out as the person from whom he obtained the gun powder for his father. In answer to a question by the appellants the first prosecution witness said he obtained the gun powder from Kassardjian motor road. Before he was
asked to open his door, the first prosecution witness alleged that he was slapped by the third appellant; but according to the second prosecution witness it was the fourth person not charged who slapped the first prosecution witness when the fourth appellant had asked the first, second and third appellants and that fourth person to call at his house before leaving the village. When the first prosecution witness refused to open his door the key to the door which was then in his pocket was removed by the second appellant who opened the door. But according to the second prosecution witness, the first prosecution witness was holding the key when the fourth person took it and opened the door. According to the first prosecution witness the appellants pushed him into his room, started beating him and removed the box containing the gun powder. From his house the first prosecution witness was taken to the fourth appellant’s house where it is alleged the extortion was committed. The fourth and sixth accused, before their acquittal and discharge, and the appellants all denied being at Dufrumkpa on that day and in fact denied the charges against them.
The grounds of appeal first argued by learned counsel for the appellants are:
“Additional ground 1: That the charge of conspiracy to extort was never proved and therefore it was wrong in law for the learned Magistrate to convict the appellants on other charges allegedly committed ‘on the same date and place afore-mentioned.’ Further additional ground 1. That the particulars of offence in counts 2 and 3 were wholly insufficient to satisfy the legal requirements contained in Act 30 of 1960, section 112 (1) and (4).”
In arguing the above grounds, learned counsel contends that the charge of conspiracy was not proved
because there was no evidence of agreement by the first three appellants to do anything in common. He argued that the evidence of the first prosecution witness that the first three appellants at the fourth appellant’s house refused to allow him to go and see the fourth appellant and that the fourth, sixth accused and fourth appellant later, after consultation, gave him money to be given to the first three appellants, does not support the charge of conspiracy nor of extortion by the three appellants.
From the evidence on the record and particularly that of the complainant (the first prosecution witness) himself, it is manifestly clear that there was an attempt to influence the first three appellants. In support of this, it is significant to quote the following piece of evidence of the first prosecution witness: [p.287] of [1972] 2 GLR 281 “None of the policemen heard what the fifth accused told me. The fourth and sixth accused and one Yao were with me when the fifth accused told me about the money. At the time the money was given to me the policemen were not with us. At the time also that I handed the money to the fifth accused, none of the policemen was with us.”
This piece of evidence shows that the offer was discussed in the absence of the first, second and third
appellants. It is quite obvious that the foregoing grounds of appeal are correct and I find that the
arguments advanced in support are convincing.
Another point raised by learned counsel which is equally sound is about the sufficiency not only of the statement but also of the particulars of the second charge of extortion which I have quoted above. The offence of extortion under section 151 of the Criminal Code, 1960 (Act 29) provides: [His lordship here read the provisions as set out in the headnote and continued:] This is distinct and clear in terms from the offence of extortion under section 239 of Act 29 as regards its ingredients. Section 151 alleges “extortion by threats” whereas section 239 alleges “extortion by public officer or juror.”
There is no doubt that the first, second and third appellants at the material time to this case were police officers and therefore public officers. If by charging them with extortion it is meant that they had used the occupancy of their office to obtain the alleged money then in my opinion the charge is wrongly laid, because that offence does not lie within the purview of section 151 but of section 239 of Act 29.
The charge as laid, as learned counsel for the appellants has rightly contended, is not supported by the evidence. What is worse is that the gravamen of the charge of extortion under section 151 is not merely demanding or obtaining but doing so with threats. This section is so worded that the word “by means of threats” must be alleged in either the statement or the particulars of the offence. The charge, therefore, by merely alleging “extortion” without further words to show the specific offence of extortion with which the first three appellants are charged is bad since it does not conform to the provisions of section 112 (1) and (4) of the Criminal Procedure Code, 1960 (Act 30): See Donkor v. The State [1964] G.L.R. 598, S.C.
Neither in the statement nor the particulars of offence are the words “by means of threats,” let alone any further words, stated so as to give the appellants the necessary information as to the nature of the offence charged as required by section 112 (1) and (4) of Act 30 (as amended by section 1 of Act 261), which provides as follows:
“(1) Subject to the special rules as to indictments hereinafter mentioned, every charge, complaint,
summons, warrant or other document laid, issued or made for the purpose of or in connection with
any proceedings before any Court for an [p.288] of [1972] 2 GLR 281 offence shall be sufficient if it contains a statement of the offence with which the accused person is charged together with such particulars as may be necessary for giving reasonable information as to the nature of the charge and notwithstanding any rule of law to the contrary it shall not be necessary for it to contain any further particulars than the said particulars. (4) After the statement of the offence, necessary particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be required.” The charge as laid is bad since it discloses no offence under the section charged against the first three appellants as public officers (see Hassan v. The State [1962] 2 G.L.R. 150, S.C.) and the learned magistrate did not avail himself of the provision of section 176 (1) of the Criminal Procedure, Code, 1960 (Act 30). Such a defect, not having been so cured but left unamended, vitiates the conviction: See R. v. Bandoh (1944) 10 W.A.C.A. 190. In the light of these provisions I am obliged to say that it behoves those responsible for settling charges to follow the words of the statute creating the offence for the benefit of the person charged. In this appeal, there is no evidence on the record to show any demand made by the first three appellants or any of them so as to supply the omission which was left unamended.
It would appear from the evidence for the prosecution that there were moves by the appellants for
contributions, but it does seem obvious that they never uttered a word. There is no evidence establishing or indicating that the demeanour of the first three appellants was such that an ordinary reasonable man could understand that a demand for money was made and that the demand was made by threats. As counsel for the appellants had earlier on submitted, if the first three appellants had agreed to extort money from the first prosecution witness, they would not have refused to allow him to go and see the fifth accused (now the fourth appellant) when the latter was in his house. The fact that the first three appellants did nothing by way of demand is borne out by the evidence of the first prosecution witness when he said that the fifth accused called him aside and told him that the policemen wanted N¢400.00. It does not appear in the evidence of the witnesses for the prosecution that the first three appellants or any of them demanded money from the first prosecution witness. The first prosecution witness himself and the second prosecution witness did not say so and the third prosecution witness clearly admitted under cross-examination that he did not hear the policemen demand any bribe from the first prosecution witness.
Another matter raised is the alleged payment of whatever money was collected to the first three
appellants. There is the evidence of the first prosecution witness that the money collected was given to him and he in turn gave it to the fifth accused (now the fourth appellant) but
[p.289] of [1972] 2 GLR 281there is no evidence on record that the money was paid to any of the first three appellants.
The impression which is created from the perusal of the whole of the evidence for the prosecution on the record is that rather, if any attempt was made at all, then it was an attempt on the part of the fourth, fifth and sixth accused to corrupt the first, second and third appellants. The learned magistrate, therefore, was wrong when in his judgment he said:
“By their agreement to send the first prosecution witness into the house of the fifth accused, I find that their agreement to exact money from the first prosecution witness became complete before they set foot into the house of the fifth accused.”
With due respect to the learned magistrate, the mere fact of going to the house is not sufficient to support the charge of conspiracy. These policemen did not go to the house of the fifth accused, if at all, on their own volition but were requested by the latter to come there. This request was not made in secret but to the hearing of the people who had gathered at the first prosecution witness’s house. The second and third prosecution witnesses who were present and heard the fifth accused did testify to this. The learned senior state attorney honourably and in fairness to the appellants conceded the points raised against the conviction on the first and second charges.
Learned counsel for the appellants has contended also that the quashing of the conviction on the first
charge which specifies the date and place of the commission of the offence will render the second and
third charges which do not specify the dates and places unsupported for lack of particularity and cites in support of this contention the case of Commissioner of Police v. Wenyonu (1958) 3 W.A.L.R. 459 at p. 461, C.A. The words complained about are, “on the same date and place aforementioned.” The learned senior state attorney has conceded that the case cited is on all fours with the situation in the present case on appeal but he, however, expresses the view that it is a moot point whether it can be said that the appellants did not have enough particulars concerning these charges when the incident about which the case was brought was alleged to have happened on one particular day and at one particular place. He has referred to section 1 of Act 261 amending section 112 of Act 30 which I have earlier quoted.
In an indictment, and I have no doubt the same may apply to a charge for summary trial also, it is
provided under section 202 (8) of Act 30 that sufficient description of any place and time to which it is necessary to refer should be in such a manner as to indicate with reasonable clearness the place and time referred to.
Where it is alleged that the events leading to the commission of the crime charged are diverse, the
indictment must specify the dates and places. But where the facts in an indictment are stated to have
occurred at the same time, time and place having been laid as to the first fact and afterwards referred to by words “then and there” as to the others [p.290] of [1972] 2 GLR 281 have been held not material and, therefore, cannot vitiate the indictment: See Archbold, Pleading, Evidence and Practice in Criminal Cases (35th ed.), s. 115, p. 51. In the case of R. v. Richards (1832) 1 M. & R. 177 where the indictment alleged a dwelling-house to be “situate at the parish aforesaid,” it was held that the parish last mentioned must be intended.
My understanding of the facts in the case of Commissioner of Police v. Wenyonu (supra) is that the two charges preferred against the appellant related to two events occurring not at the same time so that if the particulars of the second charge of neglect of duty failed to specify the date and place in relation to which the offence was committed it was rightly held bad. But in the present case, I must say that the facts in the charges all relate to one and the same continuous incident or event which happened at one particular time and place in respect of which the words and figures “on or about the 23rd day of October, 1970, at Dufrumkpa/Brewaniase” in the first charge have been referred to in the additional charges by the words “on the same time and place aforementioned.” In the circumstances, I agree with the learned senior state attorney that it cannot be said that the appellants did not have sufficient particulars concerning those charges. Defence counsel’s contention on this ground therefore cannot be sustained. However, this form of describing the time and place of the commission of an offence in the particulars of additional charges, in my opinion, must be frowned upon. Ground 2 of the additional grounds of appeal runs thus: “The charge of wilful oppression was not made out or in the alternative was bad in law.” In developing his argument in respect of this ground, learned counsel has contended that there is no evidence on the record to support the charge and has referred to section 246 of the Criminal Code, 1960 (Act 29), which provides as follows:
“A public officer or juror is guilty of wilful oppression in respect of the duties of his office if he wilfully commits any excess or abuse of his authority, to the injury of the public or of any person.”
In Halsbury’s Laws of England (3rd ed.), Vol. 10, para. 1154 at p. 616, this is what is stated:
“A public officer is not guilty of oppression if he acted in good faith, in the belief that he had the legal right to do the act in question, and without any intention to act corruptly or oppressively. “
Counsel for the appellants has submitted that in order to find the appellants guilty of this offence there must be an assumption that they were doing something unauthorised; that there must be an actual offence committed by the complainant and that there must be authority in the police to arrest which they must have exceeded.
This third charge as laid is based on the search of the premises of the complainant without authority.
Granting that there is satisfactory [p.291] of [1972] 2 GLR 281 evidence of the search, there was the information that the first prosecution witness was in possession of gun powder which reasonably led the first three appellants and the alleged fourth person to believe in the existence of their authority to search his premises and they cannot be convicted: See Thomas v. Lindop [1950] 1 ALL E.R. 966 and Davies, Turner & Co. Ltd. v. Brodie [1954] 3 All E.R. 283, D.C. In the absence of such a belief, the search per se would constitute a departure from the principles of procedure but not a crime. It could be a criminal offence only if it is proved that it was made with an improper motive resulting in the loss to the first prosecution witness by the payment of the alleged money. But the evidence of what took place at the house of the first prosecution witness is so conflicting that no reliance can be placed on it to justify the conviction. Throughout the judgment a fourth person has been referred to
by the learned magistrate as the fourth constable when, in fact, the witnesses made no mention in their evidence of such a policeman.
The evidence as to who took the key from the first prosecution witness against his will and opened the door is conflicting for while the first prosecution witness said it was the second appellant, the second prosecution witness said it was the fourth person. According to the second prosecution witness there was another person with the first prosecution witness in his house when he the second prosecution witness went there with the policemen. But it is significant to note that the first prosecution witness himself did not mention this in his evidence. If what the second prosecution witness said is true, this other person would have been called to support his evidence. Even though the second prosecution witness is described by the learned magistrate as a minor below sixteen years, he is the only witness whose evidence was relied upon by the learned magistrate for convicting the appellants despite the fact that his evidence was very much in conflict with that of the complainant himself and the third prosecution witness. The learned magistrate failed to give reasons why he believed the evidence of the second prosecution witness alone.
The magistrate’s finding of mala fides on the part of the three appellants merely because they did not take the first prosecution witness to the police station is erroneous having regard to the fact that they were requested by the fourth appellant to go to him and having regard also to the fact that this request was made to the hearing of the first, second and third prosecution witnesses and others present at the house of the first prosecution witness.
The evidence as to the payment of whatever sum of money was collected by way of contributions to the first three appellants is also contradictory. The first prosecution witness said in one breath that the fourth, fifth (now fourth appellant) and sixth accused gave him the money to be given to the first three appellants which he did. But in another breath he said they (the fourth, fifth and the sixth accused) paid the moneys to the first three appellants. From the evidence on record it does not appear that the alleged money collected was given by [p.292] of [1972] 2 GLR 281 the fourth appellant to the first three appellants at all. All that the second prosecution witness said is that
after the money had been given to the fifth accused (that is, the fourth appellant) he and the first
prosecution witness were told to go home. Under cross-examination the second prosecution witness said he did not know what happened to the money that was given to the fifth accused. According to the third prosecution witness he did not see any money being paid to the first three appellants. The finding, therefore, of the learned magistrate that the sum of N¢220.00 was demanded is wrong.
It is in the face of these conflicts and other conflicts in the evidence for the prosecution that the learned magistrate convicted the appellants. These conflicts were so obvious that the learned magistrate should have stopped the case after the close of the case for the prosecution when a submission of no case was made at the trial. The evidence is not clear whether the first three appellants did the act alleged in the first prosecution witness’s house, if at all, with the intention to extort.
As regards the sum of N¢220.00 laid in the charge as extorted from the first prosecution witness the
evidence disclosed that after contributions the sum of N¢201.00 was realised and this is what the learned magistrate found was paid to the first three appellants. The contention of learned counsel for the appellants is that since the evidence disclosed N¢201.00 instead of N¢220.00 which is the gravamen of the charge of extortion, the charge was not proved. But I am in entire agreement with the learned senior state attorney when he said that if there is evidence of extortion the fact that the amount proved is less than the amount alleged in the charge should not be deemed material. The support for this view is found in the case of State v. Obeng alias Donkor, Supreme Court, 23 March 1966, unreported, digested in (1966) C.C. 98, S.C. (a stealing case) where it was held that, “Where a person is charged with stealing a certain sum, it is sufficient if the prosecution proves that in fact he stole part of that sum.” The contention of counsel for the appellants in arguing ground 3 of the additional grounds of appeal is that the restitution order made is wrong since the persons named therein were not alleged in the charge to be the owners of the amount in respect of which it was made. This contention is conceded by learned senior state attorney who submitted that this order made defeats the entire reasoning during the trial towards the conviction.
‘The principle as regards restitution of property in cases where a person is prosecuted and convicted for the offence of extortion on behalf of the owner of the property involved is that the property is to be restored to the owner. It is clear in the second charge that the owner named is Kwadzo Kakraba. I am therefore in entire agreement with the submission that the order as made is wrong.
It has often been emphasized by the courts that in criminal trials the guilt of the accused must be proved with that degree of certainty required by law and where the conviction is not supported by the evidence it is the duty of the court to quash the conviction: See Kofi v. R. [p.293] of [1972] 2 GLR 281
(1955) 14 W.A.C.A. 648. Also in the case of Majekodunmi v. R. (1952) 14 W.A.C.A. 64 at p. 69 it was
clearly expressed that the conflicts and the discrepancies in the evidence for the prosecution were such that it could not be said that the case against the appellant was proved with that certainty which is necessary in order to justify the verdict of guilty. In the present case it cannot be said that the evidence for the prosecution is free from many conflicts. I
have no alternative but to adopt the view in the two authorities cited above on the same grounds and allow the appeal and quash the convictions against the first, second and the third appellants on all the charges against each of them. Each is acquitted and discharged.
Consequent upon the quashing of the convictions of the first three appellants on the second charge I allow the appeal of the fourth appellant and quash the conviction because there is no offence which he could be said to have aided and abetted. The fourth appellant is also acquitted and discharged.
DECISION
Appeal Allowed.
