TOGBE FITI IV vs. THE STATE [1965]DLHC1859

Date	1965-02-03
Suit No.
Citation No.	[1965]DLHC1859

SOWAH J.

A. A. ACKUAKU FOR THE APPELLANT.

F. E. CREPPY ASSISTANT STATE ATTORNEY FOR THE RESPONDENT.

[1965]DLHC1859
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													<main id="main" class="content" style="min-height: 60rem" >TOGBE FITI IV<o:p></o:p>&nbsp;vs. <o:p></o:p>THE STATE <o:p></o:p>[HIGH COURT, HO]<o:p></o:p>[1965] GLR 33<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
3 FEBRUARY 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

A. A. ACKUAKU FOR THE APPELLANT.<o:p></o:p>

F. E. CREPPY, ASSISTANT STATE ATTORNEY, FOR THE
RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SOWAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SOWAH J.<o:p></o:p>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<o:p></o:p>The
particulars of the offence were given as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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.”<o:p></o:p><o:p>&nbsp;</o:p>Counsel
submitted that the statement of offence and the particulars as they stood at
the beginning of the trial were bad for duplicity.<o:p></o:p><o:p>&nbsp;</o:p>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<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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<o:p></o:p><o:p>&nbsp;</o:p>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:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“In any
case by section 176 [of Act 30] the amen</main>