BINEY v. THE REPUBLIC

JUDGMENT OF FRANCOIS J.

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:

"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."

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 [p.231] 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.

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.

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 em