BINEY vs. THE REPUBLIC [1972]DLHC2209

Date	1972-06-16
Suit No.
Citation No.	[1972]DLHC2209

FRANCOIS J.

KWAW SWANZY FOR THE APPELLANT.

E. A. ADDO ASSISTANT STATE ATTORNEY FOR THE RESPONDENT.

[1972]DLHC2209
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													<main id="main" class="content" style="min-height: 60rem" >BINEY <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[HIGH COURT, HO]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1972] 2 GLR 229<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
16 JUNE 1972.<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">

KWAW SWANZY FOR THE APPELLANT.<o:p></o:p>

E. A. ADDO, 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.<o:p></o:p>The
appellant was convicted on a charge of extortion contrary to section 239 (1) of
the Criminal Code, 1960 (Act 29). The facts appear in the particulars of the
count which are 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">“1.
Joseph Cobbina Biney: General Police Corporal; 2. Eric Mawusi: Escort Police
Corporal; 3. Bernard Lawrence Salifu Neah: General Police Constable: For that
you on or about the 10th day of July, 1971 at Sogakofe, in the Volta
Magisterial District and within the jurisdiction of this Court being public
officers and under the colour of your office, did demand and obtain cash the
sum of N¢9.00 from one Ali Mahamadu Fulani, for allegedly contravening the
Aliens Act, and at the time of demanding and obtaining the said money you knew
you were not lawfully authorised same to do.”<o:p></o:p><o:p>&nbsp;</o:p>The
demand by the appellant and his companions of a sum from Mahamadu Fulani is
amply supported by witnesses whose veracity could hardly be impeached. Most
impressive is the evidence of the second prosecution witness Halm, a
storekeeper, who was well-acquainted with the accused and had no axe to grind.
Though the appellant’s denial of complicity was too thin for serious
examination, the magistrate in the line of duty gave it full and impartial consideration.
I find also that the identification parade which was held to establish the
identity of those implicated in the crime was faultlessly conducted. Further,
the evidence of the third accused which was received with due caution, lent
support to the prosecution’s case. On the evidence therefore no other
conclusion was open to the magistrate than a finding of guilt against the
appellant.<o:p></o:p>Mr. Kwaw
Swanzy for the appellant has consequently anchored his arguments on fundamental
principles and even sought the aid of the suspended Constitution, 1969. I shall
now address myself to the issues he raised.<o:p></o:p>Counsel
first urged that the charge was bad for duplicity as the appellant had been
charged with both “demanding” and “obtaining” ‘in the same count. In this view
he found support in the magistrate who said, “It is therefore bad for duplicity
if both ‘demands’ and ‘obtains’ are brought in the same count as it is done in
the charge in the instant case.” The magistrate, however, held that the defect
was not fatal as it had occasioned no miscarriage of justice, and buttressed
his view with some authorities. He finally concluded by holding that the
appellant who had counsel should have objected to the charge as framed if any
embarrassment or prejudice had been occasioned. Learned counsel for the
appellant has, however, parried this by referring to article 20 (2) (c) of the
suspended Constitution, 1969, which was in force at the time of the offence.
Mr. Swanzy’s submission is to the effect that the question of a discharge,
arising only if the circumstances of a miscarriage of justice has occurred,
should not be countenanced if there has been a fundamental breach of the
Constitution. The fact that an accused person is damnified or not is an
irrelevant consideration where the fundamental law of the land is broken. Mr.
Swanzy relies for support on a judgment of Hayfron-Benjamin J. in the case of
Osei v. The Republic (No.2) [1971] 1 GLR 449. That was a case dealing with
sales above the control price in contravention of the Control of Prices Act, 1962
(Act 113), and the whole question there was whether the charge had given
reasonable particulars to enable the accused to appreciate what she had to
face. Consequently Hayfron-Benjamin J. directed his attention to the peculiar
circumstances of that case in relation to fundamental rights and then came to
the conclusion that there had been a fundamental breach of article 20 (2) (c)
of the Constitution, 1969, which made the charge incurably bad even though no
miscarriage of justice had occurred. That case was decided as I have said, on
its peculiar facts and I am glad I am not called upon to approve or reprobate
it in this appeal as the facts in that case are very dissimilar from those in
the instant case.<o:p></o:p><o:p>&nbsp;</o:p>The Osei
case is earlier in point of time than the Courts Act,</main>