Rex V. Emmanuel Agbale Worentutu (1940)
LawGlobal Hub Judgment Report – West African Court of Appeal
Extortion con. section 394 of Cap. 9—Wrongful use of term ” corruption ” does not justify allowing the appeal.
Held : Although the word ” Corruption ” was wrongfully used instead of ” Extortion,” no failure of justice was occasioned.
A. G. Heward-Mills for Appellant. A. Ridehalgh for Crown.
The following joint judgment was delivered :-
PETRIDES, C.J., STROTHER-STEWART AND BANNER-MAN, JJ.
The only ground of appeal filed when this appeal first came before this-Court is the following :-
” Because the Court was wrong in confirming the conviction by the Magistrate, as there was no evidence to support the conviction, the witnesses for the prosecution all being accomplices and there was no corroboration of their evidence.”
We are satisfied that none of the witnesses for the prosecution was an accomplice. The Magistrate having come to the conclusion that their characters were bad received their evidence, as 1–vE. states, with reserve but saw no-reason to disbelieve it.
At the commencement of the hearing of the appeal Cottn-;, for the appellant asked, and was granted leave, to add three furth,-– grounds of appeal, i.e.
- Conviction wrong in law in that the case against accused was started by one Magistrate and concluth-± by another.
- Conviction against weight of evidence.
- Sentence severe and excessive.
Counsel adduced no argument as to (1) of these grounds as -,4t was satisfied the case was heard de novo by the second Magistrate.
After Counsel for appellant had argued in support of (2) and (3) a remark from the Bench led him to ask leave, which was granted, to add another ground of appeal, i.e. ” Charge bad in that it was laid conjunctively.” This ground was not apparently relied on at the trial nor on appeal before Doorly, j.
The charge as amended before the Magistrate reads :-
” STATEMENT OF OFFENCE :
” Corruption : Contrary to section 394 of Cap. 9.
” PARTICULARS OF OFFENCE :
” For that you on or about the 27th March. 1940, at Tarkwa in the Sekondi Magisterial District, being a Public Officer to wit Second Division Clerk, in the District Commissioner’s Office, Tarkwa, did, corruptly and .ender the colour of your office extort from one Nufu Moshie the sum of £6 by alleging to the said Nufu Moshie that the said sum was due as a reward to you.
Appellant’s Counsel contended that the charge was bad for duplicity on the ground that appellant was charged with (1) Corruption and (2) Extortion. The use of the word ” corruption ” is clearly wrong and obviously arose from quoting the marginal note to section 394 of Cap. 9. If we were satisfied that the charge was bad for duplicity we should doubtless allow the appeal although the objection was not taken at the trial. We are not however satisfied that there was duplicity of charges ; in fact the only charge the appellant had to meet was one of extortion.
Section 333 of the Crinimal Procedure Code reads as follows :—
” Subject to the provisions hereinafter contained, no finding, sentence, or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or review on account—
- of any error, omission, or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment, or other proceedings before or during the trial or in any enquiry or other proceedings under this Code ; or
- of the omission to revise any list of jurors in accordance with the provisions of Part VI ;
- of any misdirection in any charge to a jury, unless such error, omission, irregularity, or misdirection has in fact occasioned a failure of justice :
Provided that in determining whether any error, omission, or irregularity has occasioned a failure of justice the Court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”
There was undoubtedly an error in the charge in the use of be word ” corruption ” instead of extortion. The fact that this crror was not relied upon as a ground of appeal from the
Magistrate’s Court to the Judge and in this Court, until the very last moment, tends to show that that error was not considered by Counsel for appellant as having occasioned a failure of justice.
In our opinion this error did not occasion a failure of justice.
There is no substance in the other ground of appeal, namely, that the conviction was against the weight of evidence.
As regards the appeal against sentence the original sentence of 12 months with hard labour was reduced by the. Judge on appeal to one of three months’ imprisonment with hard labour and a fine of i’10 and in default of payment to two months further imprisonment with hard labour.
We do not consider this sentence excessive.
Appeals against conviction and sentence are accordingly dismissed.