JELR 81149 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1940 6 WACA 194-196
Core Terms Beta
failure of justice
ground of appeal
hard labour
use of the word
27th march
appellant’s counsel
commencement of the hearing of the appeal counsel
court of competent jurisdiction
criminal procedure code
district commissioner’s office
duplicity of charges
earlier stage
further grounds of appeal
last moment
list of jurors
magistrate’s court
months’ imprisonment
nufu moshie
only charge
only ground of appeal
original sentence
particulars of offence
provisions of part vi
public officer
second magistrate
sekondi magisterial district
statement of offence
such error
wit second division clerk

 PETRIDES, C.J., STROTHER-STEWART AND BANNEMAN, 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 he states, with reserve but saw no reason to disbelieve it.

At the commencement of the hearing of the appeal Counsel for the appellant asked, and was granted leave, to add three further grounds of appeal, i.e. (1) Conviction wrong in law in that the case against the accused was started by one Magistrate and concluded by another.

(2) Conviction against weight of evidence.

(3) Sentence severe and excessive. Counsel adduced no argument as to (1) of these grounds as he 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 under 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 Criminal 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-

“(a) 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

“ (b) 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 the word “corruption “ instead of extortion. The fact that this error 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 £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.