ILLIASU AND ANOTHER v. THE REPUBLIC [1968] GLR 742

DIVISION: HIGH COURT, ACCRA

DATE: 31 JULY 1968

BEFORE: EDUSEI J.

NATURE OF PROCEEDINGS

APPEAL against conviction by the Circuit Court, Accra, for the offences of extortion contrary to the Criminal Code, 1960 (Act 29), s. 151 and perjury. The facts are sufficiently set out in the judgment.

COUNSEL

Dr. de Graft-Johnson for the appellant.

G. E. K. Aikins, State Attorney, for the respondent.

JUDGMENT OF EDUSEI J.

The first appellant was on 2 October 1967 convicted by the Circuit Court, Accra, of the offence of extorting money in the sum of N¢400.00 from one Amina Dagomba by means of threats, contrary to section 151 (1) of the Criminal Code, 1960 (Act 29), and was sentenced to three years’ imprisonment with hard labour. The second appellant who was a defence witness at the trial of the first appellant was, after the conviction of the first appellant, also convicted of perjury and sentenced to three months’ imprisonment with hard labour.

I shall proceed to deal with the case of the second appellant. It is beyond doubt that the circuit judge in convicting the second appellant for perjury was exercising his summary powers under section 152 of the Criminal Procedure Code, 1960 (Act 30). The learned state attorney at first attempted to support the conviction of this appellant and after addressing his mind to the evidence and the authorities like Commissioner of Police v. Wood (1956) 1 W.A.L.R. 71, W.A.C.A.; .R. v. Mensah and Abutakyi (1956) 2 W.A.L.R. 129, W.A.C.A. and R. v. Otubu (1943) 9 W.A.C.A. 20 he capitulated and confessed his inability to support the conviction of the second appellant. It would also appear from the proceedings that the trial court did not believe the answer the appellant gave. The trial court informed the appellant that “it could not be true that the second prosecution witness had threatened him not to give evidence as it is clear that he had already proffered to give evidence before his name was mentioned in court.” The appellant answered that “I came to court because of what the second prosecution witness told me.” He was in effect saying that it was true that the second prosecution witness threatened him not to give evidence and it was because of that, that he came to court to give evidence. It has been held in Kwame v. The State [1964] G.L. R. 612 at p. 615, S.C. that: “The fact that a court does not believe a witness on any particular issue and rejects the evidence of that witness is no proof that what the witness said on the issue is false, and that it is within the knowledge of the witness that what he deposed to is false. If that were so, it would mean that every party who loses a civil or criminal case on facts, and his witness, would be guilty of perjury.”

[p.745] of [1968] GLR 742

The second appellant’s appeal is allowed; he is acquitted and discharged. I now turn my attention to the case of the first appellant who was convicted of extorting N¢400.00 by means of threats. The learned state attorney was called upon to support the conviction. He conceded that at the time the money passed from the second prosecution witness, Amina Dagomba, the threat had ceased to operate on her mind. The prosecution story is simply that the appellant and Amina Dagomba (hereinafter referred to as the complainant) knew each other for some time, and that the appellant had been receiving financial assistance from the complainant from time to time. The complainant testified that the appellant had informed her that the Political Committee of the National Liberation Council had received a complaint about her activities at Yendi and that the Special Branch would contact her. She was in fact arrested by the Special Branch who took a statement from her about her activities in the north of Ghana. The appellant later visited the complainant and told her of the seriousness of the allegations against her adding that the warrant for her arrest had been signed by Mr. Deku, Commissioner of Police (C. I.D.). The complainant burst into tears, and the appellant asked her to get ready £G300 or £G400 to be given to Mr. Deku because he, the appellant, had seen Mr. Deku. The complainant said she had no money. In the meantime the complainant who had been granted bail was reporting to the Special Branch until she was finally asked to report no more. On the same day that she was asked not to report to the Special Branch, the appellant came to her and asked for the money for Mr. Deku otherwise she would be placed in protective custody within two or three days from that day. The appellant asked the complainant to listen in to the news at 6 p.m. that day and she would hear the names of persons to be placed in protective custody. The complainant could not understand the conduct of the appellant because it was the Special Branch that granted her bail and if they wanted her they could send for her. She therefore decided to report the conduct of the appellant to the Special Branch who gave her N¢400.00 to be given to the appellant at an agreed time in the complainant’s house. At the appointed time the complainant gave the N¢400.00 to the appellant and by means of a pre-arranged signal the appellant was arrested by the police who were around the house of the complainant. He was taken to the police station, searched and the amount of N¢400.00 was found on him. Assuming that the facts as put forward by the prosecution are true, the learned state attorney argued that though at the time the N¢400.00 passed to the appellant the threat had ceased to operate [p.746] of [1968] GLR 742 on the mind of the complainant yet the appellant could still be convicted of the offence. His contention was that the threat need not operate on the complainant’s mind; it was on the intention of the appellant and the nature of the threat that the appellant’s guilt depended rather than on the effect of the threat. Counsel referred me to two East African cases Vaz v. R. [1961] E.A. 320 at p. 323 (T.) and Moledina v. R. [1960] E.A. 678 at pp. 686-687 (U.) and invited the court to consider their persuasive effect. Counsel said that by these two authorities it was not necessary for the prosecution to prove that the complainant’s mind was in fact unsettled and alarmed by what the appellant threatened would happen to her if she failed to pay the money, provided the threat was calculated and intended to have that effect. In the instant appeal there can be no doubt that as soon as the complainant made a report about the conduct of the appellant to the Special Branch and they gave her N¢400.00 as a trap to have the appellant arrested when he came for the money, there was no threat operating on the mind of the complainant, and I am of the view that the threats by which money is extorted must operate on the mind of the victim so as to make him an unwilling party to the parting of his money. Thus in R. v. Walton and Ogden (1863) 9 Cox C.C. 268 at p. 272, C.C.R. in an offence of demanding property with menaces Wilde B. said: “The essential matter is that it be of a nature and extent to unsettle the mind of the person on whom it operates, and take away from his acts that element of free, voluntary action which alone constitutes consent.”

Again in R. v. Tomlinson [1895] 1 Q.B. 706 at pp. 709-710, C.C.R. Lord Russell of Killowen C.J. had this to say in a case of demanding money with menaces:

“he ought to have told the jury that the question was whether the threat or words used were such as would naturally and reasonably operate on the mind of a reasonable man; in other words, whether they would have such an effect on such a person as to deprive him of his free volition and put a compulsion on him to act as he would not act otherwise.”

My view of the matter, bearing in mind the words of section 151 of Act 29, is that if a man is induced to part with his money or property through fear or alarm he is no longer a free agent and is no longer capable of parting with the property with his consent. If the threat is of such a character that it is not calculated to deprive any person of reasonably sound mind and ordinary mind of the free and voluntary action of his mind it would not be a threat within the meaning of the section: see R. v. Boyle and Merchant [1914] 3 K.B.

[p.747] of [1968] GLR 742

339, C.C.A. As soon as the police intervened and handed to the second prosecution witness N¢400.00 the threat was no longer operating on her mind and any money given after that would not be the result of any threat operating on the second prosecution witness’s mind.

I would prefer to ground my decision on the English authorities which seem to me to give a better interpretation of “extorting property by means of threats” than on the East African authorities which concentrate on the intention of the accused person. I am of the view therefore that having regard to the period of time when the second prosecution witness had the N¢400.00 and paid it to the appellant there was no threat on her mind, and the charge must fail.

The learned state attorney went on to invite the court to consider the possible conviction for attempting to extort the N¢400.00 by means of threats. I have given serious consideration to this submission of learned state attorney and have come to the conclusion that there cannot be such an offence as attempting to extort money by means of threats; for the English Court of Criminal Appeal stated in R. v. James Moran (1952) 36 Cr.App.R.10 that it was not open to a court to direct the jury to convict of an attempt to demand money with menaces for such an offence is unknown to the law. Having regard to the particular facts of this case I cannot conceive a conviction for an attempt to extort money by means of threats when in fact the money did pass to the appellant but unaccompanied by threats at the time the threats having ceased to operate on the second prosecution witness’s mind. Finally, I wish to refer to another submission of counsel for the appellant that the trial circuit judge did not adequately consider the defence that the appellant had, prior to the day of the parting of the money by the second prosecution witness, solicited for some financial assistance from the second prosecution witness to enable him to settle his bills.

There is evidence that when the appellant’s premises were searched, certain bills (exhibits E and El) were found and these bills were to be settled by end of May 1967 and the alleged offence was committed on 23 May 1967. The second prosecution witness in her evidence admitted giving various sums of money as gifts at various times to the appellant, and that when he the appellant visited the house of the second prosecution witness he was given some money which the second prosecution witness said was only N¢40.00 and there was no need for him to count them because that was also meant to be a gift to him. The learned state attorney in the course of his address frankly conceded that the defence was not adequately considered by the trial circuit judge. [p.748] of [1968] GLR 742

Taking all these matters into account the appeal of the first appellant must succeed. I allow the appeal, set aside his conviction and sentence and enter a verdict of acquittal.

DECISION

Appeal allowed.

S.K.T.