SARPONG V. COMMISSIONER OF POLICE

Baker, Ag. C.J. This is an appeal from the Judgment of the Divisional Court Accra, which on appeal affirmed a conviction of the appellant on four charges of corruption.

The appellant was originally charged with corruption contrary to section 394 of the Criminal Code but at the request of the prosecution the charges were amended to those of extortion.

The Magistrate in his judgment found the following:- “Accused has been guilty of obtaining moneys by corruption by means of his duties as a public officer.”

Against this decision appellant appealed to the Divisional Court where the appellate Judge found that there were only two points of substance m the appeal the first with which we are concerned, being, that the appellant was convicted of corruption that he had never been imperiled on the charge of corruption and had all through the case been defending himself against the charge of extortion.

The appellate Judge in his judgment when referring to this ground of appeal states the following;- “Although there is some force in his argument I do not agree that the learned Magistrate meant to convict of corruption, but that it is merely an unfortunate wording in his judgment which gives the impression that such was his intention. It is perfectly clear that what he intended to say was something in the nature of ‘I find as a fact that accused has been guilty of corruptly obtaining monies, etc.’, and I find that he correctly convicted the appellant of the offence with which he was charged”.

Section 410 of the Criminal Code defines corruption as follows;- “A public officer, juror, or voter, is guilty of corruption in respect of the duties of his office or vote, if he directly or indirectly agrees or offers to permit his conduct as such officer, juror, or voter to be influenced by the gift, promise, or prospect of any valuable consideration to be received by him, or by any other person, from any person whomsoever,” and section 418 defines extortion as:

“A public officer is guilty of extortion who, under colour of his office, demands or obtains from any person, whether for public purposes or for himself or any other person, any money or valuable consideration which he knows that he is not lawfully authorised to demand or obtain, or at a time at which he knows that he is not lawfully authorised to demand the same.”

The two offences it will be seen are quite distinct and differ with regards to the ingredients of the offence. The question of alternative charges does not arise for the charge was extortion and extortion only.

Counsel for appellant after referring to the Magistrate’s judgment submitted that it is clear from the said judgment “That the Magistrate had in his mind and was under the impression that he was trying the appellant for corruption and convicted him of corruption. Appellant’s defence was against a charge of extortion and that to find him guilty of corruption was illegal and, moreover. was so prejudicial to the appellant that it amounted to a miscarriage of justice.”

Counsel in support of the conviction after reading the material portions of the Magistrate’s judgment submitted that by using the word “corruption” in his judgment the Magistrate intended to indicate that the appellant had obtained the moneys knowing that he was not lawfully authorised to do so, and that as the Magistrate also found that the appellant obtained the moneys under colour of his office, all the ingredients of the offence as defined in section 418 were satisfied.

Now the appeal Court is bound by the record of the case and cannot take into consideration what may have been the intention of the Magistrate when convicting an accused with an offence with which he was not charged--see lnspector- General of Police v. J. C. Adjitey, Gold Coast Law Reports (1928) Div. Court 1926-29. This principle was followed in the case of R. v. Effie, Gold Coast Law Reports, 22nd August, 1931, where it was stated in the judgment of the Court: “Whatever may have been the intention of the Judge we are bound by the record of appeal.”

We are satisfied that appellant was convicted of an offence for which he was not charged and therefore the conviction must be quashed and the appellant discharged. If the fine imposed has been paid then the same is to be returned to the appellant.

Appeal allowed.