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BAFUOR KWESI AWUAH
V
COMMISSIONER OF POLICE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
6TH DAY OF JANUARY, 1950
2PLR/1950/10 (P. C.)
OTHER CITATION(S)
2PLR/1950/10 (P. C.)
(1950) XII WACA PP. 1 – 3
LEX (1950) – XIII WACA 1 – 3
BEFORE THEIR LORDSHIPS:
BLACKALL, P.
WILSON, C.J., GOLD COAST
LEWEY, J.A.
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BETWEEN:
BAFUOR KWESI AWUAH – Appellant
AND
COMMISSIONER OF POLICE – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. (CR. APP. 40/49)
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REPRESENTATION
E. O. Asafu-Adjaye — for the Appellant
R. M. H. Rodwell, Crown Counsel — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Conviction by District Magistrate of corruption by an agent under section 419A of the Criminal Code altered on appeal to the Supreme Court to conviction of corruption by a Public Officer under section 394 of the said Code – Section 141 of Criminal Procedure Code wrongly invoked by appellate Judge – Power to alter conviction under section 319(1)(a)(ii) of the Code correctly exercised sentence increase by Supreme Court – Powers of West Africa Court of Appeal to increase or reduce sentence under section 325 of the Criminal Procedure Code considered
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CASE SUMMARY
This case came to the Court on a petition under section 324 of the Criminal Procedure Code. The District Magistrate, Kumasi, convicted the appellant of corruption by an agent contra section 419A of the Criminal Code. On appeal to the Supreme Court the Judge, invoking the provisions of sections 141 and 319(1)(a)(ii) of the Criminal Procedure Code, substituted a conviction of corruption by a Public Officer contra section 394 of the Criminal Code and also increased the sentence passed on the appellant.
Counsel for the appellant argued (inter alia), that the Judge had wrongly invoked the provisions of section 141 of the Criminal Procedure Code. Counsel also applied for, and was refused, leave to withdraw his appeal against sentence which, thereafter, the Judge enhanced.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
1. Section 141 of the Criminal Procedure Code has no application to proceedings on appeal, and that in any event the requirements of section 141 of the Criminal Procedure Code were not satisfied.
2. Section 319 applies to appeals from the Magistrates’ Courts. The powers conferred by this section are very wide, and the Code contains no restrictive or qualifying provisions which could have the effect of narrowing them.
3. The action of the Judge in altering the Magistrate’s finding worked no injustice on the appellant and he properly invoked the provisions of section 319.
4. The Judge was entitled to refuse leave to withdraw the appeal against sentence. There is no right of appeal to the Court of Appeal on the question of severity of sentence in the case of a second appeal from a Magistrate’s Court, but under the provisions of section 325 of the Criminal Procedure Code this Court has power, of its motion, to increase or reduce sentence.
5. The Court of Appeal saw no reason to interfere with the Judge’s decision enhancing the sentence.
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MAIN JUDGMENT
The following Judgement was delivered:
LEWEY, J.A.
This case came to this Court on a petition under section 324 of the Criminal Procedure Code, after the rejection by Jackson, J of an appeal to the Divisional Court against the appellant’s conviction by the District Magistrate, Kumasi. The conviction was in respect of a charge, against the appellant of corruption by an agent contrary to section 419A of the Criminal Code and the sentence was six months’ imprisonment with hard labour.
The corruption alleged against the appellant in the second count, on which he was convicted, consisted in his acceptance of a bribe of £150 to influence the decision in a case which was set down for trial before the Native Court of which he was a member. For the sake of later reference we here set down the particulars of the offence of which he was convicted as set out in the charge:-
“Bafour Kwesi Awuah, Anantahene, on or about the 14th day of June, 1949, at Kumasi in the Ashanti Magisterial District, being an Agent to wit, Aila Dtahene attached to the Asantehene’s Court ‘B1’, Kumasi, as a member of the panel, did corruptly accept the sum of £150 from one Thomas Kofi Donkor for himself as a reward to do an act in relation to his principal’s business to wit, to assist the said Thomas Kofi Donkor in giving judgment in his favour in cases between himself Thomas Kofi Donkor, wife Yaa Nyantah against the Agogohene, Nana Kyei Mensah, which cases were to be tried by the said Asantehene’s Court ‘B1’”
Jackson, J., in dealing with the appeal considered the case in great detail both as regards the findings of fact by the Magistrate and the submissions of law made on behalf of the appellant.
The learned Judge was satisfied as to the evidence given by the prosecution and its corroboration. But he considered that the charge should have been brought, not under section 419A but under section 394 of the Code, since the appellant, who was a member of the Asantehene’s Court “B”, on his view of the evidence, was not an agent at all but a public officer who had accepted a bribe in respect of the duties of his office. Accordingly the learned Judge specifically .relying on the provisions- of sections 141 and 319(1)(a)(ii) of the Criminal Procedure Code, altered the finding of the Court below, and convicted the appellant of the offence of Corruption by a Public Officer contrary to section 394 of the Criminal Code.
The finding of the learned Judge was attacked from various angles by Counsel for the appellant when the appeal came before this Court, but, save in relation to the submissions as to the proper application of section 141 of the Criminal Procedure Code, we are unable to find any substance in those arguments or in the grounds of appeal to which they relate.
With regard to section 141, counsel for the appellant argued that the Judge sitting in the Divisional Court on appeal was not justified in invoking, as he did, the provisions of that section when altering the conviction of the appellant to one under section 394 of the Criminal Code. We agree with that contention, though not entirely on the grounds advanced by Mr. Asafu-Adjaye. Our view is that section 141, which appears in Part III of the Criminal Procedure Code the heading of which reads: “Provisions Relating To All Criminal Investigations” has no application to proceedings on appeal, though we agree with the submission of Mr. Asafu-Adjaye that the requirements of section 141 were not in any event satisfied in this case; for it is perfectly clear that such integral parts of the original charge under section 419A as were proved did not in fact constitute an offence under section 394. The three integral parts of the charge under section 419A were (i) that the appellant was an agent who (ii) corruptly accepted a bribe (iii) in relation to his principal’s affairs or business. Of these only the second was proved, and by itself that could not constitute an offence under section 394. In our view, therefore, the provisions of section 141 could not in the circumstances of this case be invoked at any stage of the proceedings as part of the justification for the conviction under section 394 of a person who had been originally charged under section 419A.
But in altering the finding of the Magistrate that the appellant was guilty of an offence under section 419A to one of guilty under section 394, Jackson, J., further invoked the powers provided by section 319(1)(a)(ii) of the Criminal Procedure Code. There remains, for consideration therefore, the question whether that sub-section by itself is sufficient authority for altering the conviction under section 419A to one under section 394. In this connection, we think that the position occupied in the Criminal Procedure Code by section 319 is significant, for it appears in Part VIII of the Code, dealing with appeals and under the sub-heading “Appeals from Magistrates’ Courts”. The powers conferred by the section are very wide, and we can find in the Code itself no restrictive or qualifying provisions which could have the effect of narrowing them, though they should not, of course, be invoked where such a course would cause any injustice. In the present case we can see no reason for holding that the action of the learned Judge in altering the Magistrate’s finding as he did, worked any injustice to the appellant. The particulars of the offence under section 419A, as set out in the charge, gave the appellant the fullest possible notice of the facts with which he was charged and of the real substance of the charge; and even though the actual charge was laid under a wrong section it cannot possibly be said that he had not full notice of the details of the accusation against which he had to defend’ himself. In our opinion, therefore, the learned Judge properly invoked the provisions of section 319 for the purpose of altering the Magistrate’s finding.
As we have come to the conclusion that the learned Judge was perfectly correct in his view of the facts and of the law, and in the procedure which he adopted – except in regard to the application of the provisions of section 141 – it follows that this appeal must be dismissed.
There was an appeal to the Divisional Court against the sentence of six months hard labour. Counsel for the appellant tried to withdraw that part of the appeal at the conclusion of the proceedings, but the Judge refused leave and acting under the powers given by section 319(1)(a)(ii) of the Criminal Procedure Code, increased the sentence to one of twelve months’ imprisonment with hard labour to date from the day of conviction. Where under section 324 of, the Criminal Procedure Code there is no right of appeal to this Court on the question of severity of sentence in the case of a second appeal from a Magistrate, the Court, by reason of the provisions of section 32.5 of that Code, has power of its own motion to reduce or increase sentences. In this case we see no reason, however, to interfere with the decision of the Judge on this point: the appellant was acting in a judicial capacity, and it is in relation to his conduct in that capacity that he has been convicted. That is a very grave offence and one which merits severe punishment.
Appeal dismissed.