Fuseini Vrs Republic [2022] GHAHC 106 (16 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, CRIMINAL COURT 4, HELD IN ACCRA ON WEDNESDAY, THE 16TH DAY OF NOVEMBER, 2022, BEFORE HER LADYSHIP JUSTICE COMFORT KWASIWOR TASIAME, JUSTICE OF THE HIGH COURT. SUIT NO.: CR/0394/2022 LAWAL FUSEINI - APPELLANT VRS. THE REPUBLIC - RESPONDENT JUDGMENT COUNT 1 Conspiracy to commit crime: contrary to section 23(1) of the criminal code 1960 (Act 29) Particulars of offence 1. Lawal Fuseini, Public Servant, 2. Bawa @Large: for that you on or before 19th March, 2018 at Accra in the Greater Accra Circuit and within the jurisdiction of this court, did agree to act together with a common purpose to commit crime to wit: Extortion. Count 2 Unlawful entry contrary to section 152 of the criminal code 1960, (Act 29) Particulars of offence Page 1 of 23 Lawal Fuseini, Public Servant: for that on or before 19th March, 2018 at Accra in the Greater Accra Circuit and within the jurisdiction of this court, you unlawfully entered the office of Mr. Bennet Aboagye with intent to commit crime. Count 3 Extortion contrary to Section 151 of the criminal code 1960, Act 29 Particulars of offence Lawal Fuseini, Public Servant: for that you on 23rd March 2018 at State House, Ridge in the Greater Accra Circuit and within the jurisdiction of this court, you extorted cash the sum of GH¢20,000.00 from Mr. Bennet Aboagye by means of threat. Count 4 Extortion contrary to section 151 of the of the Criminal Code 1960, Act 29 Particulars of offence Lawal Fuseini, Public Servant: for that you on 24 March,2018 at DNR Restaurant, East Legon in the Greater Accra Circuit and within the jurisdiction of this court, you extorted cash the sum of GH¢20,000.00 from Mr. Bennet Aboagye by means of threat. Facts of the case Complainant in this case is the former Managing Director of Metro Mass Transit Company Limited (MMTL) whilst A1 is the Security Coordinator of the same company and A2 is at large. On 15th March, 2018, A1 requested a meeting with the complainant and his Personal Assistant citing a security breach in the company as the agendum. Complainant could not make it to the meeting and asked his Personal Assistant to meet A1. During the meeting, A1 informed the Complainant’s Personal Assistant that he received a phone call from A2 and his group who requested to meet him (A1). A1 allegedly went to meet A2 and his supposed group who revealed Page 2 of 23 that they had a damaging audio recording of the complainant’s conversation implicating him in several corrupt deals as such was demanding one million dollars from the complainant to destroy the audio recording, refusing which A2 will give the audio recording to the print and electronic media for publication. Later, when the complainant and his Personal Assistant made it to a meeting at the behest of A1, A1 handed over to him a transcription of the said audio recording and reiterate his demand on behalf of A2. Complainant realized this was an obvious ploy by A1 to blackmail and extort money from him and decided to play along. Complainant involved a witness in this case he considered an expert in security issues. The witness invited the complainant and A1 to his office and negotiated the amount of one million dollars demand to GH¢20,000.00 in exchange for the said damaging audio recording. A1 refused this new offer but later settled on GH¢40,000.00. Complainant became alarmed when on the morning of 17th March, 2018; his wife found a scanned copy of a Criminal Check report he obtained at the CID Headquarters and kept at his office for traveling on their compound. On the scanned copy of the Criminal Check report was a typed threatening message which read; “Mr. Bennet, you think you are smart, before Monday, 19th March, 2018, let’s hear your new offer and not that GH¢40,000.00 you told the security guy at the state house or else don’t even dare go to the China. Because you know CHINESE GOVT DON’T TAKE LIGHTLY WITH ISSUE OF CORRUPTION. Just like we overwhelmed your security coordinator, you will soon get cardiac arrest from the metal trauma you will get. We will offer the Chinese Government for free what we have. Be warn”. Complainant’s suspicion of A1’s involvement in the blackmail was confirmed since the Criminal Check report was in his office and the only person who could have had access to it was an employee of the company. Complainant therefore reported the case to the police. Prior to the arrest of A1, the complainant and the witness had met A1 to pay GH¢40,000.00 in two separate installments of GH¢20,000.00 on different dates and locations as earlier agreed. Witness captured A1 on camera when receiving the money in the first instance. On 26th March, 18, A1 was Page 3 of 23 arrested at the MMTL premises and copies of the alleged audio recordings of the GH¢40,000.00 from the complainant to stop the leakage of the recordings to the media with the aid of A2 after and earlier denial. However, A1 insist he took that decision to secretly record complainant’s conversation in order to procure evidence of corruption deals by the complainant and his Personal Assistant to be given to the Special Prosecutor. A1 has failed to account for the GH¢40,000.00 he extorted from the complainant and also lead Police to A2. During investigations, A2 was contacted on his cell phone number 0508186876, but he denied any knowledge and involvement in the case as being alleged by A1. Efforts are still underway to arrest A2. Investigation reveal that the company, MMTL had a common room where all keys to the various offices are kept including that of the complainant. A1 unlawfully accessed complainant’s office and planted a recorder to record complainant’s conversations and also picked his Police Check Report, scanned and inserted the threatening message on it. A1 managed to drop the said document at complainant’s residence to coerce him into paying the money. Investigations also uncovered that, A1 after receiving the GH¢40,000.00 lodged same into his ADB accounts on 5th May, 2018 and subsequently withdrew GH¢1,000.00 and GH¢39,000.00 on 19th and 21st May 2018 respectively. After investigation accused person was charged and arraigned before you. Grounds of Appeal The appellant being dissatisfied with the judgment of the Circuit Court filed an appeal on the following grounds: 1. The Circuit Court Judge erred in ruling that the Appellant is not a whistleblower under the Whistleblower’s Act, 2006 (Act 720). 2. The conviction and sentence cannot be supported having regard to the evidence adduced at the trial. 3. The sentence of Ten years I. H. L on the three counts with sentences to run concurrently was manifestly harsh. Page 4 of 23 4. The Circuit Court Judge’s rejection of Exhibits ‘1’ and ‘7’ which the Appellant sought to tender in evidence denied the Appellant the necessary facility to mount his defence thereby occasioning a grotesque miscarriage of justice. “It is now settled law, backed by a host of cases that where an Appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which, if applied could have changed the decision in his favour, or that there are certain pieces of evidence that had been wrongly applied against him. The onus is on such an Appellant to clearly and properly demonstrate to the appellate Court the lapses in the judgment being appealed against. See case of Djin v Musah Baako [2007-2008] SCGLR 686. BURDEN OF PROOF IN CRIMINAL CASES It is trite that the burden of proof in criminal cases rests on the prosecution and that the standard is “proof beyond reasonable doubt.” Section 11(2) of the Evidence Act, 1975 (NRCD 323) states that “In a criminal action, the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of a fact beyond reasonable doubt.” The meaning of this hallowed phrase of “proof beyond reasonable doubt’ has been the subject of many decisions. The most cited of these is by Lord Denning in Miller vs. Minister of pensions [1947]2 All ER 372 when he explained that standard of proof at p.373 thus: “it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is strong against a man as to leave a remote possibility in his favour which can be dismissed in a sentence of course it is possible but not the least probable, the case is proved beyond reasonable doubt, but nothing Page 5 of 23 short will suffice.” See the case of KWEKU QUAYE alias TOGBE vs. THE REP. [2021] DLSC 10794 at page 9-10 per Prof Mensah Bonsu. The law has granted an appellate court in criminal appeals under section 30 of Courts Act, 1993, Act 459 orders available to Superior Courts over appeals as the following; (a) S.30 Subject to this Act, an appellate court may in a criminal case on an appeal from a conviction or acquittal 1. Reverse the finding, sentence and acquit and discharge or convict the accused or order the accused to be retried by a court of competent jurisdiction or commit the accused for trial. 2. After the finding, maintaining the sentence or with or without altering the finding, reduce or increase the sentence or 3. With or without the reduction or increase and with or without altering the finding, alter the nature of the sentence or 4. Annul the conviction and substitute a special finding to the effect that the accused was guilty of the act or omission charged but was criminally insane so as not to be responsible at the time when the act was done or the omission was made, and order the accused to be confined as a criminally insane person in a mental hospital prison or any other suitable place of safe custody. 5. Annul or varied an order of imprisonment or any other punishment on the person convicted. Guarded and guided with the above, I will proceed to deal with the issues raised by this appeal. GROUND ONE: Whether or not the Judge erred in ruling that appellant is not a whistle Blower. Learned counsel for the Appellant submitted that, the Circuit Court erred in ruling that the Appellant is not a whistle blower. The learned state Attorney in response Page 6 of 23 submitted that, Appellant’s disclosure of the alleged impropriety in the audio after investigation and his trial commenced was not in good faith. Who is a whistle Blower according to Whistle Blowers Act, 2006 Act 722? Section 1(3) provides “A person who makes a disclosure of impropriety is in this Act referred to as a “whistleblower”. Section 1(1) of the Whistle Blowers Act, 2006 Act 722 provides that, 1(1) A person may make a disclosure of information where that person has reasonable cause to believe that the information tends to show, (a) An economic crime has been committed, is about to be committed or is likely to be committed; (b) Another person has not complied with a law or is in the process of breaking a law or is likely to break a law which imposes an obligation on that person; (c) A miscarriage of justice has occurred, is occurring or is likely to occur; (d) In a public institution there has been, there is or there is likely to be waste, misappropriation or mismanagement of public resources; (e) The environment has been degraded, is being degraded or is likely to be degraded; or (f) The health or safety of an individual or a community is endangered, has been endangered or is likely to be endangered. (2) A conduct which falls within any of the matters specified in subsection (1), of this Act referred to as an “impropriety”. The next question I ask is who can be a whistle Brower? Page 7 of 23 Act 722 states that a Person who qualifies to make disclosure of impropriety may be, (a) An employee in respect of an employer, (b) By an employee in respect of another employee, or (c) By a person in respect of another person, or an institution. The Appellant testified that, he is an employee of MMTL. Being an employee, he is qualified to disclose any impropriety in the employment. According to the Appellant, he had information that his MD/Complainant and his Personal Assistant were demanding bribes from suppliers who had executed their contracts to the company before they could sign cheques for them. He confided in his colleague security Coordinator, Mr. W. O.1 Moses Nutakor and the executives of the Junior Union section of MMTL and some trusted Managers and senior staff of the company. That he planted an audio recorder behind MD’s office at where the ‘engine’ of his air-conditioner and recorded conversations between the MD and others who visited him. According to the Appellant, the recording revealed the following; 1. Procurement irregularities in the process to procure 300 buses and its spare parts to MMTL, demanding and receiving bribes, corruption in the sale of MMTL scrap buses and other reprehensible crimes. 2. An attempted rape by Mr. Yiadom Kessie (MD’s Personal Assistant) was also revealed. 3. Insulting and criticizing President Nana Addo and his vice president was also discovered. 4. The recording also revealed why and how the former Electoral Commissioner, Madam Charlotte Osei was removed. 5. The recording also revealed that the Vice President Mahamudu Bawumia will be pushed away for Mr. Alan to lead NPP after Nana Addo. Page 8 of 23 6. That all these serious and mindboggling blockbuster data was analyzed, it was revealed that complainant, his Personal Assistant and the people in complainant’s own voice, were patiently waiting for the deal to go through so they can share the Ten Million United State Dollars (US $10 million) was involved. Section 1(4) of Act, 722 states; section 1 (4) Despite any other law to the contrary, a disclosure of an impropriety is protected if, (a) The disclosure is made in good faith. (b) The whistleblower has reasonable cause to believe that the information disclosed and an allegation of impropriety contained in it are substantially true, and (c) The disclosure is made to one or more of the persons or institutions specified in section 3. Section 3 of Act 722 states a Whistle Blower may report disclosure to any of the following; Section 3(1) of Act 722 provides: (1) Disclosure of impropriety may be made to any one or more of the following: (a) An employer of the whistleblower; a Police Officer, the Attorney-General, the Auditor General, a staff of the Intelligence Agencies, a member of Parliament, the Serious Fraud Office and other security agencies. The next question I ask is whether or not the Appellant reported or disclosed the alleged impropriety to any of the above listed or the Special Prosecutor as he stated in his evidence. During cross-examination of the Appellant as captured at page 289 of the proceedings, this is what ensued; Question: You also did not give a copy to the Special Prosecutor whom you alleged you petitioned? Page 9 of 23 Answer: I did on 31st October, 2018. The Special Prosecutor asked Inspector Julius and one Mohammed to buy a pen drive so I could transfer to them. I did before leaving the office. Question: Did you know that complainant has been discharged by the special prosecutor. Answer: I am not aware. Question: I am putting it to you that the Special Prosecutor has discharged complainant for lack of evidence from your audio. Answer: It cannot be… From the evidence on record, the Appellant submitted the audio after his arrest and charges leveled against him and that was in October 2018 when he did the recording somewhere in March, 2018. Before the submission, the Appellant had negotiated and pocketed GH¢40,000.00. Appellant’s recording of the complainant had been ready for more than 6 months without him disclosing the content to any of the persons listed in section 3 of Act 772. A Whistle Blower is to submit any impropriety he came across to the appropriate authority for an action. Contrary to that, appellant told complainant about the secret audio made by him, showed him some transcripts and entered into negotiations with the Complainant. Since he failed to do what the law requested of a Whistle Blower, I do not think the trial judge was wrong in her judgement that, the Appellant is not a whistle Blower. I hereby affirm the decision of the trial judge and hold that, Appellant is not a Whistle Blower. This leg of the appeal is dismissed. As held by his honour KK OBIRI YEBOAH, the charges before the trial court has nothing to do with the case of a whistle Blower. If he is a Whistle Blower, he still has the right to proceed through with his case. Page 10 of 23 WHETHER OR NOT REJECTION OF EXHIBIT 1 AND 7 DENIED THE APPELLANT NECESSARY FACILITY TO MOUNT HIS DEFENCE. Learned counsel for the Appellant submitted that rejection of Exhibits 1 and 7 which the Appellant sought to tender in evidence denied the Appellant the necessary facility to mount his defence thereby occasioning a grotesque miscarriage of justice. Exhibit 1 is the work schedule of the security coordinator (Appellant) of the MMTL. Exhibit 7 is Re-Execution of approved minutes. At page 284 exhibit “1” was rejected because according to the trial judge, this document is not relevant and material to the case. She supported her ruling with Section 51(3) of the Evidence Act, 1975 (NRCD 323). Section 51(2) of act 323 states “Relevant evidence admissible Section 51 (2) of the Evidence Act states “Evidence is not admissible except relevant evidence”. According to the trial Judge the work schedule of the Appellant was not relevant. It is in evidence that the Appellant was a security officer at the MMTL and was held by the learned trial Judge as such. The work schedule goes to prove the kinds of work he was doing. I think the work schedule only goes to prove whether he is a worker at MMTL or not. Appellant testified that he intended to submit his recordings to the special Prosecutor for an action. He is the first security coordinator at MMTL. Exhibit 7 was not authored by him. Exhibit 7 is minutes by the Board of MMTL. Appellant was invited to give evidence before the Board. At page 2 of Exhibit 7, it is provided as, “At the request of the board the security coordinator played back some portions of the recording to the hearing of the Board. Some of the recorded portions played back included some discussions on the scrapped buses, procurement issues and alleged kickbacks.” This minutes and other pieces of evidence might exonerate appellant from the charge of Unlawful entry. Secondly, his defence of being a whistle Blower. Page 11 of 23 The judge in his reasoned judgment exonerated the accused and completely discharged him on this unlawful entry because there were other pieces of evidence like as a security coordinator he had the right to do checks in the office of the complainant. Apart from that, the Appellant testified that he placed the recording device outside the room which meant he did not even enter the room. Apart from that Exhibit 7 has showed some kind of impropriety by the Complainant. D/SGT. MARTIN DOKYI BAWUAH testified that, he searched through all the electronic gadgets retrieved from the accused in his presence and found on the HP laptop alleged several audio recordings of the complainant’s conversation and that of other actors allegedly implicating them in corrupt deals at MMTL. So, the police found recordings implicating the complainant in impropriety. However being a whistle Blower and proof that Complainant has committed some kind of impropriety, which was not reported but turning round threatening complainant cannot be a defence to the charge of extortion. Since Exhibits 1 and 7 cannot serve as a defence, I hold that the learned trial judge was right in rejecting Exhibits 1 and 7. Rejection of these exhibits do not amount to miscarriage of justice I so hold. Unlawful entry? Section 152 of the Criminal and Other Offences Act, 1960(Act 29)”A person who unlawfully enters a building with the intention of committing criminal offence in the building commits a second degree felony.” From the evidence on record, the Appellant being a security coordinator had every right to enter offices at the MMTL. It has been held by the Supreme Court in a case where a servant who broke into his master’s room and made away with his master’s property was convicted of stealing and unlawful entry, an appeal against conviction for unlawful entry was allowed because the servant had access to the room for the performance of his lawful duties. Therefore, the court held that prosecution failed to establish that he entered the room with the intention of committing a crime. See the case of KANJARGA VS. THE STATE [1965] GLR 479, SC. Since the Appellant was a security Coordinator, he had access to the offices at the MMTL, I hold that the Page 12 of 23 discharge of the Appellant on the charge of unlawful entry was within the law and I so affirm. Conspiracy to commit crime namely extortion. Section 23(1) of the Criminal and Other Offences Act, 1960 (Act 29) defines conspiracy thus; “If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be.” See Logan & Laverich vs. The Republic [2007-2008] 1 SCGLR at 83-86 per Aninakwah JSC. In the case of State vs. Otchere & Others [1963] GLR 463, It was held that; “A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agreed to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promised against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means.” See also the case of KINGSLEY AMANKWAH (a.k.a. SPIDER) vs. THE REPUBLIC [2021] DLSC 10793 at page 28 per Dotse, JSC. The prosecution testified that, Appellant told the complainant that, he was acting on behalf of others. He even mentioned one Bawah as his accomplice. Bawah was not arrested. He was contacted on phone and he denied being involved and went into hiding. The complainant testified that, the accused who was pretending of acting on behalf of others told us that he was going to consult the alleged group members to Page 13 of 23 see if they will accept our offer of GH¢40,000.00. Mr. Dokyi the investigator testified that, “All attempts by police to trace and arrest A2 (Bawa) have been unsuccessful.” At page 287 of Record of Appeal, prosecution during cross-examination of Accused/Appellant, this is what ensued. Question: You told PW2 that the transcript was prepared by Bawa. Is that so? Answer: No. I never mentioned any person’s name but said it was done by a group of investigators. Appellant denied conspiring with anyone in coming out with the audios and transcripts. Apart from the allegation that the Accused person said he committed the offence with one Bawah he denied. The GH¢40,000.00 collected by the Accused person was deposited in his own account. This may confirm that he did commit the offence alone. There is no concrete evidence of proof by the prosecution that, the Appellant conspired with another in committing the offence of extortion. In the case of AGYAPONG vs. THE REPUBLIC [2015] 84 GMJ 142 C. A., the High Court set aside the conviction on the charge of Robbery but left the conviction for conspiracy undisturbed. On further appeal to the Court of Appeal, it was held, inter alia, that the new formulation of the law on conspiracy in section 23(1) of the Criminal Offences Act, required the prosecution to prove an agreement to act together for an unlawful purpose and since the prosecution had failed to so prove, the conviction could not stand. In this Appeal, prosecution did not lead any evidence of accused having agreed to act together or acted together in the extorting of money from the Complainant. In the case of extortion, the prosecution is required to prove that the threat used or the words used were such that it would naturally and reasonably operate on the mind of a reasonable man and not a mere threat or words which could not operate on the mind of a reasonable person to part with his/her property. The test is whether the threat or the words used are capable of having an effect on the victim Page 14 of 23 to the extent that it would deprive the victim of his free volition and compel him to act in a way that he would not otherwise have done. See page 329 of Contemporary Criminal Law in Ghana by DENNIS DOMINIC ADJEI. See also the case of ILLIASU vs. The Republic [1968] GLR 742 which seems to be the locus classicus on the offence of extortion. The facts and holdings of ILLIASU’S case as captured in the headnotes are reproduced herein. “The appellant was convicted at the Circuit Court for extortion contrary to section 151 of the Criminal Code, 1960 (Act 29). The case for the prosecution was that appellant informed complainant that the National Liberation Council had received a complaint about her political activities and that the Special Branch would soon contact her. Complainant had been previously arrested by the Special Branch who released her on bail after interrogating her. The appellant again informed the complainant that a warrant had been issued for her arrest, and demanded money for one Deku in order to forestall her arrest. Suspicious of the conduct of the appellant, she reported the matter to the Special Branch who gave her the money to be given to the Appellant at a given time and place. By means of a pre-arranged signal, the Appellant was arrested when the money passed. On appeal, Held, allowing the appeal: A person could not be convicted of extorting money by means of threats unless the threat by which the money was extorted operated on the mind of the victim so as to make him an unwilling party to the parting of his money. Further that, this case as soon as the complainant reported the conduct of the Appellant to the police and a trap was set for him (Appellant), there was no threat operating on the mind of the complainant. The facts of Illiasu’s case and the holding are as follows; The first appellant was on 2nd October, 1967 convicted by the Circuit Court, Accra, of the offence of extorting money in the sum of N¢400.00 from one Amina Dagomba by means of threats, contrary to section 151 (1) of the Criminal Code, 1960 (Act 29), Page 15 of 23 and was sentenced to three years' imprisonment with hard labour. The Learned State Attorney was called upon to support the conviction. He conceded that at the time the money passed from Amina Dagomba, herein after referred to as the Complainant, the threat was no longer operating in her mind. The appellant had informed complainant that the Political Committee of the National Liberation Council had received a complaint about her activities at Yendi and that the Special Branch would contact her. She was in fact arrested by the Special Branch who took a statement from her about her activities in the North of Ghana. The Appellant later visited the complainant and told her of the seriousness of the allegations against her adding that the warrant for her arrest had been signed by Mr. Deku, Commissioner of Police (C. I. D.). The complainant burst into tears, and the appellant asked her to get ready £G300 or £G400 to be given to Mr. Deku because he, the appellant, had seen Mr. Deku. The complainant said she had no money. In the meantime, the complainant who had been granted bail was reporting to the Special Branch until she was finally asked to report no more. On the same day that she was asked not to report to the Special Branch, the appellant came to her and asked for the money for Mr. Deku otherwise she would be placed in protective custody within two or three days from that day. The complainant could not understand the conduct of the appellant because it was the Special Branch that granted her bail and if they wanted her they could send for her. She therefore decided to report the conduct of the appellant to the Special Branch who gave her N¢400.00 to be given to the appellant at an agreed time in the complainant's house. At the appointed time, the complainant gave the N¢400.00 to the appellant and by means of a pre-arranged signal the appellant was arrested by the police who were around the house of the complainant. He was taken to the police station, searched and the amount of N¢400.00 was found on him. The Learned State Attorney argued that though at the time the N¢400.00 passed to the appellant, the threat had ceased to operate [p.746] on the mind of the complainant yet the appellant could still be convicted of the Page 16 of 23 offence. His contention was that the threat need not operate on the complainant's mind; it was on the intention of the appellant and the nature of the threat that the appellant's guilt depended rather than on the effect of the threat. Counsel referred to two East African cases Vaz vs. R. [1961] E. A. 320 at p. 323 (T.) and Moledina vs. R. [1960] E. A. 678 at pp. 686-687 (U.) and invited the court to consider their persuasive effect. Counsel said that by these two authorities it was not necessary for the prosecution to prove that the complainant's mind was in fact unsettled and alarmed by what the appellant threatened would happen to her if she failed to pay the money, provided the threat was calculated and intended to have that effect. The court held that in the instant appeal there can be no doubt that as soon as the complainant made a report about the conduct of the appellant to the Special Branch and they gave her N¢400.00 as a trap to have the appellant arrested when he came for the money, there was no threat operating on the mind of the complainant, and that the threats by which money is extorted must operate on the mind of the victim so as to make him an unwilling party to the parting of his money. Thus in R. vs. Walton and Ogden (1863) 9 Cox C. C. 268 at p. 272, C. C. R. in an offence of demanding property with menaces Wilde B. said: "The essential matter is that it be of a nature and extent to unsettle the mind of the person on whom it operates, and take away from his acts that element of free, voluntary action which alone constitutes consent." The court held further that, bearing in mind the words of section 151 of Act 29, is that if a man is induced to part with his money or property through fear or alarm he is no longer a free agent and is no longer capable of parting with the property with his consent. If the threat is of such a character that it is not calculated to deprive any person of reasonably sound mind and ordinary mind of the free and voluntary action of his mind it would not be a threat within the meaning of the section: See R. vs. Boyle and Merchant [1914] 3 K. B. [p.747] 339, C. C. A. As soon as the police intervened and handed to the Complainant N400.00 the threat was no longer operating on her mind and any Page 17 of 23 money given after that would not be the result of any threat operating on the Complainant's mind. I am of the view therefore that having regard to the period of time when the Complainant had the N¢400.00 and paid it to the appellant there was no threat on her mind, and the charge must fail.” In effect, there is a difference between extortion and where a person parts with a property to an accused person without threat operating and taking away from the victim’s voluntary action. The latter does not meet the requirement for extortion if there is evidence that the words or the threat used was not capable of depriving the mind of a reasonable man to part with his or her property. See page 329 of Contemporary Criminal Law in Ghana by Dennis Dominic Adjei. Mr. Bennet Aboagye (MD), MMTL and Complainant, testified that, on the Wednesday, 14th March, 2018, he had information that his office had been bugged and that accused was playing his voices on his personal laptop. He then consulted his lawyer who advised him to contact the BNI with request to sweep his office. On the 15th March, 2018, one Mr. Yiadom, his personal Assistant at MMTL informed him that, the accused had called him requesting for a meeting between him, Kessie and the MD/Complainant. That the reason for the meeting was to discuss a security breach at his office since he was already on the way to BNI, he directed Mr. Kessie to meet the Accused person. Mr. Kessie met the accused but it became necessary that the three of them meet. That on the same day, 15th March, 2018 Complainant himself, Kessie and the accused person met at KFC North Industrial area. According to the Complainant, the Accused, who has planned to blackmail him, produced a transcript of a supposed conversation he had in his office for a period. That Accused told them that some group of people led by certain Bawah gave him the said transcript which seemed to enumerate a number of allegations against him. Attached to the transcript was a threatening message which last sentence reads “Warning you can alert the Page 18 of 23 security agencies it will be ….to the detriment of your reputation, image, your family image, business, interest and the NPP party as a whole because we will unleash all arsenal on you and Mr. Yiadom Kessie etc. Accused then told them that the group was demanding one million United States Dollars from him else they will release the audio to the media houses for publication. That he immediately rang and informed a friend Dr. Amoako Tuffour, a security expert of the outcome of the meeting and he asked them to meet him at the office which they obliged. When they met Dr. Amoako Tuffour, accused repeated his demand of One million USD to be given to the supposed group to release the supposed tape recordings to them. That he then had a discussion with Dr. Amoako Tuffour and came to the conclusion that the accused was only using blackmailing and threatening to extort money from him. That they then proposed to bait him (Accused) with GH¢40,000.00. That accused who was pretending of acting on behalf of others told them that he was going back to consult the alleged group members to see if they will accept the offer of GH¢40,000.00. The complainant testified further that, on the 17th March, 2018, his wife picked a scanned copy of his criminal check report which he did while preparing to travel to China, with the original report on his office desk. According to the complainant, on the scanned document, the accused made the following threatening insertion “Mr. Bennet do you think you are smart, before Monday, 19th March, 2018, let us hear your new offer and not that GH¢40,000.00 you told your security guy at the state house, or else don’t even dare go to China, because you know Chinese government do not take issues lightly with corruption. Just like we overwhelmed your security coordinator, you will soon get cardiac arrest from the mental trauma you will get. We will offer the Chinese Government for free what we have.” That this heightened his suspicion and believe that the accused had unlawfully entered his office. On the 19th March, 2018, he reported the case to the police at CID headquarters and submitted a written statement. Further, that on the 23rd March, 2018, Accused went Page 19 of 23 to Dr. Amoako Tuffour in his office and told him that, he had accepted their offer and collected GH¢20,000.00 with a promise that he will produce the supposed audio recording in a later date and collect the remaining GH¢20,000.00. On the 24th March, 2018 on the behest of the accused, Dr. Amoako Tuffour, Mr. Kessie and he himself gave the remaining GH¢20,000.00 to the accused but he only gave them an old pen drive which he said contained the said audio recording. When Dr. Tuffour demanded the entire recording devise, accused promised that having received the full payment, he will present to his group and return at 5:00pm that same day. At page 345 of the Record of Appeal, the learned trial judge rightly discussed threat as under Section 17 of Act, 29/60. Discussed by Respondent too under the same Act 29. The trial court stated “in the case of Yeboah & Others vs. The Republic [1972] 2 GLR 281, the court held that “the gravamen of the charge of extortion is not merely demanding or obtaining but doing so with threats.” And, in the case of Illiasu vs. The Republic [1968] 741 at 748 clarified that the inducement to part with the property must be founded upon the threat. Prosecution tendered documents to prove that Appellant did receive the money. Secret pictures were taken of him collecting the cash. The question is whether the Complainant parted with the GH¢40,000.00 under threat. From Illiasu’s case, it was held that “A person could not be convicted of extorting money by means of threats unless the threat by which the money was extorted operated on the mind of the victim at the material moment so as to make him an unwilling party to the parting of his money.” Learned Counsel for the Appellant submitted that ILLIASU’s case is on all fours with the case before the trial court but the trial Judge applied it differently. That at the time the Complainant parted with the money, the threat was not operating on his minds. Page 20 of 23 There is no doubt that the Appellant issued threatening words such as Warning you can alert the security agencies it will be ….to the detriment of your reputation, image, your family image, business, interest and the NPP party as a whole because we will unleash all arsenal on you and Mr. Yiadom Kessie etc. Same as in the Illiasu’s case, the Appellant threatened the complainant of arrest and to forestall that she must give money to the Appellant to be given to the CID boss. Complainant made a report of the threat to the police. Complainant was advised to bait the Appellant with the amount he requested. Upon collecting the money, the Appellant was arrested. He was arraigned before the court, tried and convicted on extorting money. The issue here is whether or not the threat issued by the Appellant operated on the mind of the victim/MD/Complainant to let him part with the GH¢40,000.00. Complainant testified that, he had a discussion with Dr. Amoako Tuffour, a security expert and came to the conclusion that Accused wanted to extort money from him. The Complainant and others decided to bait accused with an amount of GH¢40,000.00 which was given in two tranches. Appellant admitted having received the monies as stated on the charge sheet. On the 19th March, 2018, complainant made a report to the police. The police investigator testified that, Dr. Amoak Tuffour, complainant’s friend who he considered a security expert advised the complainant to feign interest. The report to the police and decision to bait accused preceded the giving out or parting with the 1st and 2nd tranches of the agreed amount GH¢40,000.00. By the law under Section 151 of Act 29/60, Illiasu’s case and page 329 of Contemporary Criminal Law in Ghana by DENNIS DOMINIC ADJEI, to succeed on the charge of extortion, prosecution must prove that, victim parted with his/her property due to threat issued by the accused. In the case before me, complainant did not part with the money because of the threat. Page 21 of 23 When the Complainant made the report to the police and took a decision to bait the accused or feign interest in the retrieval of the audio, the threat had stopped working on Complainant’s mind. It is true accused did a wrong by 1. Demanding an amount of $1,000,000.00 from the complainant, issuing threats, collecting an amount of GH¢40,000.00 for audios allegedly made, not giving the alleged recording to the complainant. However, the essential element to be proved in the case of Extortion is whether the threat or the words used are capable of having an effect on the victim to the extent that it would deprive the victim of his free volition and compel him to act in a way that he would not otherwise have done. Having regard to the particular twists and turns of this case, I cannot conceive a conviction for an extortion of money by means of threats when in fact the money did pass to the appellant unaccompanied by threats at the time the threats having ceased to operate on Complainant’s mind. Taking all these matters into account the appeal of the appellant must succeed. I allow the appeal, set aside his conviction and sentence and enter a verdict of acquittal. In view of that Appellant is acquitted and discharged. (SGD) COMFORT K. TASIAME (JUSTICE OF HIGH COURT) COUNSEL: 1. ANTHONY NAMOO FOR THE APPELLANT 2. DAVID BEECHAM STANDING IN FOR DORM ESI FIADZOE FOR THE REPUBLIC Page 22 of 23 CASES REFERRED TO: 1. Kanjarga vs. The State [1965] GLR 479, SC 2. Logan & Laverich vs. The Republic [2007-2008] 1 SCGLR at 83-86 per Aninakwah JSC 3. Ayapong vs. The Republic [2015] 84 GMJ 142 C. A. 4. Illiasu vs. The Republic [1968] GLR 742 5. R. vs. Walton and Ogden (1863) 9 Cox C. C. 268 at p. 272, C. C. R. 6. Djin vs. Musah Baako [2007-2008] SCGLR 686. 7. R. vs. Boyle and Merchant [1914] 3 K. B. [p.747] 339, C. C. A. 8. Yeboah & Others vs. The Republic [1972] 2 GLR 281 9. Illiasu vs. The Republic [1968] 741 at 748 10. KINGSLEY AMANKWAH (a.k.a. SPIDER) vs. THE REPUBLIC [2021] DLSC 10793 at page 28 per Dotse, JSC Page 23 of 23