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J U D G M E N T
OWUSU (MS), JSC:
Alan William Hodgson, the
Appellant herein, was arraigned
before the High Court (Fast
Track Division) with five others
on narcotic drug related
offences under the Narcotic
Drugs (Control, Enforcement and
Sanctions) Law, P. N. D. C. L
236.
The Appellant was charged on two
counts of engaging in criminal
conspiracy to commit an offence
relating to Narcotic Drug and
possessing Narcotic Drug without
lawful authority contrary to
sections 56 (c) and 2
respectively of the Narcotic
Drugs (Control, Enforcement and
Sanctions) Law of 1990, P. N. D.
C. Law 236.
He pleaded not guilty to both
counts, was tried and found
guilty. He was convicted and
sentenced to 20 years I. H. L on
both counts. The sentences were
however to run concurrently.
Dissatisfied with both the
conviction and sentence, he
appealed to the Court of Appeal,
which on 4th day of
November 2005 dismissed the
appeal against both conviction
and sentence.
Dissatisfied with and aggrieved
by the Judgment of the Court of
Appeal, pursuant to leave
granted by that Court, has
appealed against that Judgment
to this court for redress on the
following grounds:
i. “That the Court of
Appeal did not properly consider
the objections raised by
appellant as to the charges
brought against appellant.”
ii. “That the Court of
Appeal failed to properly
evaluate the evidence which
formed the basis for the
conviction of Appellant by the
trial Court.”
iii. “The dismissal by the
Court of Appeal of appellant’s
appeal was unreasonable
and occasioned appellant a
substantial miscarriage of
justice.”
iv. “That the Court of
Appeal and the trial Court
failed to give adequate and
proper consideration to
appellant’s defence.”
v. “That the Court of
Appeal ought to have mitigated
the sentence imposed on
appeal by the trial Court.”
In short, the Appellant is
before this Court because,
according to his counsel, there
was no evidence to support the
conviction and that even where
the prosecution tried to link
Appellant to the charges for
which he was convicted, there
was enough evidence to prove
that the evidence was completely
unreliable because same was
either contradictory or that
other pieces of evidence adduced
at the trial proved the evidence
not to be credit worthy.
Counsel submitted that the
Appellant is an unfortunate
victim of circumstances because
his presence in the house of 1st
Accused where the narcotic
substances were found was
fortuitous.
The five grounds set down in the
Notice of Appeal were thereafter
argued as filed.
On the first ground of Appeal,
counsel admitted that it is not
the strongest point of the
appeal. He however deemed it
fit to argue same first as
filed. In doing so, the charges
levelled against Appellant were
set out for purposes of
demonstrating how defective the
charge of conspiracy is. The
charge was reproduced as below:
“ STATEMENT OF OFFENCE:
ENGAGING IN CRIMINAL
CONSPIRACY TO COMMIT AND (SIC)
OFFENCE RELATING TO NARCOTIC
(SIC) DRUG CONTRARY TO SECTION
56(c) OF THE NARCOTIC DRUGS
(CONTROL, ENFORCEMENT AND
SANCTIONS) LAW, P. N. D. C. L
236.
PARTICULARS OF OFFENCE:
KEVIN DINSDALE GORMAN, Mohammed
Ibrahim Kamil, John David Logan,
FRANK DAVID LAVERICK, Allan
William Hodgson and Sven
Leonhard between September 2003
and 7th January, 2004
in Spain, United Kingdom and
Tema – Ghana engaged in criminal
conspiracy to commit an offence
relating to narcotic drug.”
It is the submission of counsel
that the charge as reproduced
does not disclose the specific
nature of the Crime or the
particular narcotic drug offence
of which there was a criminal
conspiracy to commit. Failure to
state the particular narcotic
drug offence in respect of which
the Appellant and the others
conspired to commit rendered the
charge defective.
Dealing with the charge of
conspiracy which according to
counsel is defective, We deemed
it appropriate to refer to the
facts of the case upon which the
charge was based. According to
the prosecution, on 07/01/04,
the Appellant together with the
other accused persons was
arrested in the house of the 1st
accused person, Kevin Dinsdale
German at Tema where parcels of
a whitish substance suspected to
be cocaine was found. Before
the arrest, the Narcotic Board
in Ghana had received reports
from International sister
Agencies concerning narcotic
drugs as a result of which the
Narcotic Control Board mounted
surveillance on the 1st
accused for about a year.
Following further intelligence
information, a combined team of
the Board and the Drug Law
Enforcement Unit of the police
service on 07/01/04 raided the
residence of the 1st
accused. The parcels of the
whitish substance suspected to
be cocaine were found concealed
in a special compartment or hole
in a wall within the corridor
upstairs behind a large dressing
mirror. The 1st, 3rd,
4th and 5th
accused persons who were present
in the house were confronted
with the parcels whereupon the 1st
accused said the parcels were
brought to him for safe keeping
by one Yakubu for a fee of fifty
thousand US dollars (U$
50,000.00). The parcels of the
whitish substance were forwarded
to the Ghana Standards Board for
examination and same were found
to be positively narcotic drug
i.e. cocaine.
At the trial, evidence was led
by the prosecution as to the
involvement of 5th
accused person, Appellant
herein, in the charges preferred
against him. With regard to the
other count of possessing
Narcotic Drug without lawful
authority, counsel again
submitted that neither the
statement of the offence nor the
particulars gave the Appellant
an indication as to how
Appellant dealt with the alleged
narcotic substance for it to be
said that he was in possession
of it.
The count on possession as laid
in the charge sheet is as
follows:
“THIRD COUNT
STATEMENT OF OFFENCE:
POSSESSING OF NARCOTIC DRUG
WITHOUT LAWFUL AUTHORITY
contrary to section 2 of the
Narcotic Drugs (Control
Enforcement and Sanctions) Law,
1990 P. N. D. C. Law 230.
PARTICULARS OF OFFENCE:
KEVIN DINSDALE GORMAN, MOHAMMED
IBRAHIM KAMIL, JOHN DAVID LOGAN,
FRANK DAVID LAVERICK, ALAN
WILLIAM HODGSON and SVEN
LEONHARD HERB between 30th
December 2003 and 7th
January 2004 at Tema in the
Greater Accra Region and within
the jurisdiction of this Court
had in their possession 588.33
kilograms of cocaine, a narcotic
drug.”
Arguing the appeal, counsel
dwelt extensively on the defects
in the charges even though he
contends that that is not the
strongest point of the appeal.
In doing so, he touched on the
decision of the trial court on
that point which decision was
confirmed by the Court of Appeal
with regard to the Appellant in
the case of John David Logan & 2
others Vrs THE REPUBLIC.
(Unreported)
Counsel also submitted the
statement of offence and the
particulars sin against Art. 19
(2) of the Constitution.
Both the trial court and the
Court of Appeal had dismissed
counsel’s submission calling
upon them to acquit the
Appellant on the charge of
conspiracy for the reason that
the charge is defective. Both
courts held that the charge as
laid is proper, as same is known
under the Narcotic Drug
(Control, Enforcement and
Sanctions Law) 1990 P. N. D. C.
Law 236, the defect not
withstanding.
On the 2nd ground, “That
the Court of Appeal failed to
properly evaluate the evidence
which formed the basis
for the conviction of the
Appellant by the trial Court,”
Counsel argued that the
conclusion for convicting
Appellant cannot be supported
having regard to the evidence
led by the prosecution at the
trial, in that evaluation of the
evidence relied upon by the
trial Court will leave this
Court in no doubt that at the
trial Court, no evidence was led
to prove the charges against the
Appellant.
It is counsel’s submission that
the finding that the Appellant
assisted the 2nd
accused to cart the parcels from
the beach of Prampram where they
were allegedly transported to
Tema is not supported by the
evidence. Accordingly, a
finding that from there he was
in possession is also
unsupportable. That it was on
the basis of this conclusion
that the trial Court convicted
the Appellant on the charges
preferred against him.
With the evidence from the
prosecution that the parcels of
cocaine were transported from
Prampram to Tema on 31/12/03,
when the Appellant was even not
in Ghana, the findings of the
trial Judge referred to supra
cannot be supported.
Counsel thus urges upon this
Court that in fact there is no
evidence to support the charges
of conspiracy and possession
against the Appellant.
This ground leads reasonably to
the third ground that “the
dismissal by the Court of Appeal
of appellant’s appeal was
unreasonable and occasioned
appellant a substantial
miscarriage of justice.”
To press home counsel’s
contention on this ground, great
reliance was placed on the case
of JOHN DAVID LOGAN & ANOR VRS
THE REPUBLIC [2007-8] SCGLR p
.76
In that case, this court had
allowed the appeal of the
Appellants against their
convictions and sentences in
respect of their trials with the
other four accused persons
including the Appellant for want
of evidence against them. The
Court of Appeal by a majority
decision had dismissed their
appeal. They were charged with
the same offences as the
Appellant herein.
As normally the case in all
Criminal appeals, the fourth
ground of Appeal alleges failure
on the part of both the Court of
Appeal and the trial court to
give adequate and proper
consideration to Appellant’s
defence.
Under this head, counsel
reiterates his earlier
submission that the Appellant
was in no way involved in the
commission of any drug related
offence. He contended that with
the reasons given by the
Appellant for coming to Ghana,
i.e. first, to visit his girl
friend who was about to travel
to the United States of America
and second, to bring medication
to his sick uncle (1st
accused); it was wrong for the
trial court to have concluded
that the first reason for his
coming was not worthy of belief
because he could not remember
the name of the girl friend.
This, counsel said was wrong
because P.W.II confirmed that
the girl was Appellant’s
girlfriend and that Appellant
mentioned her name as Jutta
Bansah. There was also evidence
to confirm that the girl had a
U. S. Visa in her passport and
was due to travel to the U.S.A.
With the evidence from the
prosecution, which corroborated
the Appellant’s story, the
matter should have been put
beyond dispute, he submitted.
The fifth ground of appeal
touched on the sentence of 20
years I. H. L. imposed
concurrently on the appellant.
Against the criticisms of the
judgment of the court below by
counsel for the Appellant,
counsel for the
Republic/Respondent is urging on
this court to uphold the
conviction and sentence on both
counts and dismiss the appeal.
On ground one, he contends that
what the appellant needed was
reasonable information to enable
him prepare and defend himself.
He referred to section 112(1) as
amended of the Criminal
Procedure Code of 1960 (Act 30)
now (Criminal and Other Offences
Procedure) Act, 1960 which
states that:
“Subject to the special rules as
to indictments mentioned in this
section, a charge, complaint,
summons, warrant, or any other
document laid, issued or made
for the purpose of or in
connection with proceedings
before a court for an offence
shall be sufficient if it
contains a statement of
the offence with which the
accused person is charged
together with the particulars
necessary for giving
reasonable information as the
nature of the charge and
although there may be a rule of
law to the contrary it shall not
be necessary for it to contain
any further particulars other
than necessary particulars.”
Counsel also made reference to
section 406(1) of the same Act
and submits that by this
section, an order, sentence,
findings or decisions of a court
of competent jurisdiction cannot
be altered or reversed on appeal
on account of error, omission in
the summons, charge, judgment,
order etc unless such error,
omission, irregularities,
misdirection etc, has in fact
occasioned a substantial
miscarriage of justice.
He also referred to the Courts’
Act of 1993, section 31 (2) of
which states that:
“That appellate Court shall
dismiss the appeal if it
considers that a substantial
miscarriage of justice has not
actually occurred or that the
point raised in the appeal
consist of a technicality or
procedural error or a defect in
the charge or indictment but
that there is evidence to
support the offence alleged in
the statement of offence in the
charge or indictment or any
other offence of which the
accused could have been
convicted on that charge or
indictment.
Counsel however concedes that
where the defect is fundamental
or constitutes the gravamen of
the offence, it cannot be cured
by any amendment or evidence.
According to him, the defect
complained of by counsel for the
Appellant relates to the issue
of the particulars of the
offence of conspiracy not giving
reasonable information to the
appellant in that the type of
Narcotic Drug in issue was not
specifically stated.
He therefore referred to section
9(1) of the Drugs Law P. N. D.
C. Law 236 of 1990 schedule 5
under which cocaine is specified
as Narcotic Drug. He continued
that there is evidence from P.W.
8., the chemical analyst that
the white substance in the boxes
concealed in the secret
compartment behind the mirror
was cocaine.
He argued further that those who
engaged in that offence
themselves knew that cocaine is
classified among a whole range
of prohibited drugs as
Narcotic. Therefore even if the
charge did not specify the type
of Narcotic Drug, that could not
have denied the accused persons
the knowledge of the nature of
the offence they were facing.
It was his further contention
that the Appellant knew the type
of narcotic drug for which he
was tried as a provisional test
by the police of the whitish
substance in the house of the 1st
accused upon the discovery,
proved that same was cocaine.
In reply to counsel for the
appellant’s submission on
Article 19 (2) (d) of the
constitution that the statement
and particulars of the offence
sinned against that provision,
he submitted that same is not
applicable in the present case.
He contended that the provision
is applicable on arrest.
For these reasons, he submitted
that the appellant had
sufficient information as to the
charges preferred against him
and therefore the charge sheet
is not fundamentally defective
or incurably bad to render the
trial null and void, as the
defect has not occasioned any
substantial miscarriage of
Justice.
On the 2nd ground of
Appeal, counsel referred to the
evidence on record touching on
the appellant and submitted that
the Appellant could not be said
to be innocent in the entire
transaction as the evidence
established his guilt beyond
reasonable doubt. The trial
judge was therefore right when
he came to the conclusion that
the prosecution succeeded in
proving his guilt which
conclusion the Court of Appeal
properly endorsed.
In answer to ground 3 of the
appeal, counsel submitted
following from his submissions
on ground 2, that counsel for
the Appellant is desperately, by
his reliance on Logan’s case,
hoping that similar conclusions
will be reached in favour of the
Appellant. He therefore
proceeded by distinguishing the
facts and law in Logan’s case
from that of the Appellant. In
the case of the Appellant, he
contended that sufficient
evidence was led to prove the
charges of conspiracy and
possession against him.
On ground four, counsel for the
Respondent submitted that there
is sufficient evidence on record
establishing the involvement of
the Appellant in the charges
against him. This evidence,
considered against the case of
the Appellant, that he had come
to Ghana to give medication to
his uncle (A1) and visit his
girlfriend was not whittled down
in any way. He had been seen
constructing the secret
compartment in which the parcels
of the cocaine were found and
the reasons for coming to Ghana
and his denial of his
involvement in the offences did
not succeed in raising any doubt
in the mind of the trial court
in accepting the evidence of the
prosecution. The conclusion
arrived at by the trial court
was affirmed by the Court of
Appeal.
On sentence, the Respondent is
of the view that having regard
to the circumstances of the
case, its gravity and prevalence
in the country, the sentence is
adequate and commensurate with
the offences charged.
He therefore prays that on the
whole the appeal be dismissed
and the conviction and sentence
upheld.
On the complaint of the
defective nature of the first
count of engaging in criminal
conspiracy, we are of the view
that the trial court commendably
dealt with it and the law
justifies the position taken by
him. The Court of Appeal was
therefore right in affirming the
conclusion arrived at by the
trial court.
Under section 112(1) of the
Criminal and Other Offences
(Procedure) Act, as amended “a
charge, complaint - - - issued
or made for the purpose of or in
connection with proceedings
before a Court for an offence
shall be sufficient
if it contains a statement of
the offence with which the
accused person is charged
together with the
particulars necessary for giving
reasonable information as to the
nature of the charge - -
-.
The trial Judge exhaustively
reviewed the case law on the
subject, notable among them, the
cases of DATSA VRS THE REPUBLIC
[1971] 1 GLR 418, BRUCE VRS. C.
O. P. [1963] 1 GLR 36 and
Akowuah VRS. THE STATE [1964]
GLR 598 and came to the
conclusion that no miscarriage
of justice was occasioned by the
defect complained of.
His Lordship Akamba J.A. in his
Judgment in the Court of Appeal
also extensively touched on the
same subject matter as raised in
the court below. This is what he
said:
“In BRUCE VRS C. O. P. the then
Supreme Court held that:
“Where however the omission to
specify in the particulars of
the crime, the commission of
which the appellant was alleged
by his conduct to have intended
to facilitate amounts to a
failure by the prosecution to
state what is necessary for
giving reasonable information to
the appellants as to the nature
of the charge as required by the
Criminal Procedure Code, 1960,
section 112(1), the charge as
laid is bad and a conviction
based on it cannot be upheld.”
The case of AKOWUAH VRS C. O. P
in 1964 followed the decision in
BRUCE VRS C. O. P and in holding
2, held that:
“A proper interpretation of the
Criminal Procedure Code, 1960
section 112 shows that (a) Same
particulars of a charge are only
necessary for giving reasonable
information as to the nature of
the charge while (b) others are
of the essence or constitute the
gravamen of the offence charged.
Omission to include in the
charge the particulars in the
first instance (a) cannot render
the charge fatally bad but
merely defective and such defect
can be filled by evidence at the
trial. Omission to include in
the charge the particulars in
the second instance (b) was
fatal because no offence would
be disclosed and the omission
could not be cured by amendment.
Again, the case of DONKOR VRS
THE STATE [1964] followed the
same trend of interpretation of
section 112(1) of Act 30.”
There are however contrary
decisions by the courts on this
same section 112(1) of Act 30,
His Lordship noted.
In the case of STATE VRS LAWMANN
[1961] GLR (P11) 698 the
indictment on the first count
failed to provide particulars of
the alleged forgery, the then
Supreme Court held following the
decision in R VRS MCVITTIE
[1960] 2ER 498 that:
“The count one of the
indictment disclosed an offence
known to the laws of Ghana, and
despite the omission of
particulars of the alleged
forgery, all the material
particulars were proved of the
trial. The omissions therefore
caused no miscarriage of
justice.”
In the present appeal, the
substance of the Appellant’s
complaint is that:
“Statement of offence was
improper and that by reason
thereof the particulars were
also insufficient to give
appellant the appropriate notice
as to the specific offence he
was called upon to defend”
The statement of offence as
already referred to, contained
what under section 56 (c) of P.
N. D. C. Law 236, was required.
The complaint that it failed to
state what particular narcotic
offence that the accused persons
engaged in criminal conspiracy
to commit is misplaced. As
counsel for the appellant
rightly stated, there are many
offences relating to narcotic
drug and under the charge of
conspiracy, all of them could
not be stated.
Under the general law of
conspiracy, the offence is
conspiracy to commit crime:
contrary to section 23(1) of the
Criminal and Other Offences Act
of 1960. It is desirable for
the crime in respect of which
the accused persons conspired to
commit to be stated in the
statement of offence but that is
not necessary to make the
offence of conspiracy to commit
crime complete and therefore
proper under the law.
For example where two or more
persons are charged with
conspiracy to commit murder and
murder, the statement of offence
is complete and proper, if it
only states “conspiracy to
commit crime” contrary to
section 23(1) of the Act. Where
the charge states: conspiracy to
commit murder, then section
23(1) is linked to section 46 of
the Act which creates the
offence of murder so that in
that case the offence as stated
will be contrary to sections
23(1) and 46 of the Act and not
23 (1) alone.
In this case the offence is laid
under section 56 (c) alone and
under the offence, the
particular drug related offence
is not stated. Admittedly, the
particulars of the offence
should have included the
specific offence relating to
narcotic drug that the accused
persons engaged in criminal
conspiracy to commit. However,
what is the position of the law
now? BRUCE VRS. C. O. P and
AKOWUAH VRS STATE already
referred to ceased to be good
law. Same were held in the case
of ANDOH & ANOTHER VRS THE
REPUBLIC [1970] C.C. 42 by the
then Court of Appeal to have
been given per incuriam.
Where such omission on the
evidence has not occasioned any
substantial miscarriage of
justice, an appeal, on that
ground alone will not vitiate a
conviction. By sections 406(1)
of the Criminal and Others
Offence (Procedure) Act, Act 30
of 1960, and section 31(2) of
the Court Act (Act. 459) of 1993
already referred to the effect
of omission of such particulars
in indictment have been settled.
Counsel for the Appellant is
therefore right when he said
this ground is not the strongest
point of the appeal. Indeed it
is no point at all now when the
evidence led filled in the
particulars and same is
accordingly dismissed.
At this point however, we would
want to distinguish the case of
DATSA VRS THE REPUBLIC [1971] 1
GLR 418 from the case of the
Accused persons in the trial
Court.
In the Datsa case, indeed what
was put down as “statement of
offence” was in fact the
particulars of offence. For this
reason, François J. (as he then
was) held that no specific
offence was charged and no
offending section of the
criminal code was stated. As
such the Court had no
jurisdiction to convict and the
general proviso contained in the
then Act 30 did not apply. We do
agree with him as under those
circumstances, the charge was
fundamentally bad.
On Article 19 (2) (d), under
which “a person charged with a
criminal offence shall –
“Be informed immediately in a
language that he understands and
in detail, of the nature of the
offence charged”,
we will not agree with counsel
for the Respondent that the
Article is applicable only on
arrest. What the Article states
is “ A person charged
with a criminal offence”
From the Appellant’s charge
statement, Exhibit “AA” he was
informed of the offences with
which he was being charged and
indeed this was in the presence
of his counsel lawyer Addo-
Atuah. He had relied on an
earlier statement he had made to
the police. At the trial, he
knew the nature of the offences
he was being tried for and from
count 3 and the evidence the
particular offence which he
conspired to commit was made
clear to him. We do not
therefore agree that Art. 19 (2)
(d) was infringed upon.
Generally, an appellate Court
will not set aside conviction,
if from the record there is
sufficient evidence to support
it. Admittedly, the finding that
Appellant assisted the 2nd
accused to consign the parcel
from the beach of Prampram to
Tema is not supported by the
evidence. However, there is
evidence from the prosecution on
the involvement of the Appellant
in the offences charged. The
evidence is that he created the
secret compartment in the house
of his uncle (A1) where the
parcels were found. There was
also evidence that he was seen
at the beach with A2 and
according to P.W. 3 they told
him they were bringing fish.
This evidence turned out to be
incorrect as the evidence
establishes that the appellant
arrived in Ghana some three days
after the parcels were
transported to Tema. Upon
proper evaluation of the
evidence therefore, that finding
of the trial Court is erroneous.
All the same, the offence of
conspiracy as defined under
section 23 (1) of Act 29, is
committed, “If two or more
persons agree to act together
with a common purpose for or in
committing or abetting a crime
whether with or without any
previous concert or deliberation
each is guilty of conspiracy to
commit or abet that crime, as
the case may be.”
As between the case of the
prosecution and that of the
Appellant on the charge of
conspiracy the trial court
preferred the evidence at least
of P.W.l who testified that she
saw the Appellant construct the
secret compartment to the
appellant’s denial that he did.
His Lordship in the trial court
had considered section 80 (2) of
the Evidence Decree of 1975
(N.R.C.D 323) and the evidence
led before him and concluded
that the Appellant is not a
witness of truth.
Section 80 (2) deals with
matters which may be relevant to
the determination of the
credibility of a witness even
though the matters listed there
under are not exhaustive. The
Court of Appeal therefore found
no reason to interfere with the
finding that he Appellant
constructed the secret
compartment, which finding is
supported by the evidence.
Even though the Appellant
succeeded from the evidence to
prove that he is only a
carpenter, in the light of the
evidence from the prosecution
i.e. P.Ws 1 and 5, we do not
think that is enough to at least
raise a doubt in the mind of any
reasonable tribunal that he
could not also do some masonry
work.
If he did, then he together with
the others acted together with a
common purpose to bring into the
country the parcels of the
cocaine which A1 took possession
of and concealed in his house.
Facing a charge of conspiracy,
where the charge is proved then
he becomes equally blameable for
any act of any of the
conspirators.
Admittedly, he was in A1’s house
as a visitor but having been
charged with A1 and the others
for conspiracy if there is
evidence in support of that
offence, then possession by A1
is possession by all of
them. See the case of FRIMPONG
VRS THE REPUBLIC [1980] GLR
575. A1 had the parcels in his
possession and told the
arresting team that he took them
into his possession for safe
keeping, the falsity of that
assertion notwithstanding.
The moment the Appellant agreed
to construct the secret
compartment, he joined in the
execution of a conspiracy which
had been previously planned and
would be equally as guilty as
the planner even if he did not
take part in the formulation of
the plan or did not know when or
who originated the conspiracy.
In the present case, even though
the evidence establishes that
when the cocaine arrived in
Ghana the Appellant was not in
Ghana, he is equally as guilty
as those who brought in the
cocaine and
A1
who took possession of it. For
this reason, the Appellant and
all the others should have been
charged with the importation of
the cocaine.
See the case of STATE VRS.
OTHCHERE [1963] 2 G.L.R. in
which the Court cited the case
of R. VRS. MEYRICK [1929] 21 Cr.
App. R. 94.
On the charge of possession, the
particulars stated what
particular narcotic drugs the
accused had in their possession
and the evidence made it
abundantly clear that the
whitish substance which they had
in their possession was cocaine.
The Appellant’s involvement was
established from the evidence.
In the case of the count of
possession, we would not even
say that same was defective
because the particulars failed
to give the Appellant and indeed
all the others reasonable
information as to the nature of
the offence charged.
On ground three that the
dismissal by the
Court
of Appeal of the
Appellant’s appeal was
unreasonable and occasioned a
substantial miscarriage of
Justice, counsel relied on this
Court’s decision that the
evidence adduced at the trial
could not support the conviction
of the 3rd and 4th accused
persons. May we at the onset say
that counsel’s reliance was
misplaced. The facts and the
applicable law in their case are
different from the case of the
Appellant. In their case, the
only evidence against them is
that they were in the house of
A1 on the morning of 07/01/04
when the raid was carried out.
The Court, confirming the
minority decision of Piesare
J.A. which acquitted them held
that there was no evidence to
support the charges against them
since mere presence at the scene
of a crime will not make one a
conspirator.
Even though His Lordship in his
minority decision acquitted and
discharged the 3rd and 4th
Appellants, he dismissed the
appeal of the 5th, Appellant
herein, because he found the
charges against him proved. In
the case of the Appellant, the
Court of Appeal unanimously
dismissed his appeal because it
found sufficient evidence to
support the
conviction.
We have extensively reviewed the
evidence against him under
ground 2 and we will not
belabour the point that there is
sufficient evidence to support
his conviction. The dismissal of
his appeal was therefore
reasonable and occasioned no
miscarriage of justice or for
that matter a substantial one.
The appeal on this ground also
fails as without any merit.
Coming to the defence, which
counsel submits was not
adequately and properly
considered by both the
trial
Court and the Court of
Appeal, the question to ask is
what is the Appellant’s defence?
The defence is one of denial. He
denied any involvement in the
charges preferred against him.
His evidence is that he is a
carpenter and not a mason. He
denied constructing the secret
compartment and gave reasons for
his coming to Ghana to start
with.
The trial court which heard him
and had the opportunity to
assess his credibility came to
the conclusion that he is not a
truthful witness. His denial was
weighed against the evidence of
the prosecution witnesses which
the trial court preferred. Short
of believing
the Appellant, did he put up
any defence which can be said to
be reasonably probable? We do
not think so. Did this evidence
succeed in raising any doubt,
the benefit of which the trial
court should have given to him?
We have already stated that the
Appellant’s denial and the
reasons he gave for coming to
Ghana did not in any way whittle
down the case of the prosecution
against him. Having concluded
that the evidence was properly
evaluated, this ground must also
fail and same is dismissed.
On the conviction therefore, all
the grounds of appeal fail.
On the sentence, counsel for the
Appellant did not state before
this Court any reason why the
Court of Appeal should have
tampered with it.
“The principles upon which the
court would act on an appeal
against sentence were that it
would not interfere with a
sentence on the mere ground that
if members of the Court had been
trying the Appellant, they might
have passed a somewhat different
sentence. The Court would
interfere only when it was of
opinion that the sentence was
manifestly excessive having
regard to the circumstances of
the case or that the sentence is
wrong in principle.”
See the case of APALOO & OTHERS
VRS THE REPUBLIC [1975] 1GLR
In the case of KWASHIE VRS. THE
REPUBLIC [1971] 1 G.L.R. 488 at
489, the appellant used his
office as a police detective to
seize a large quantity of goods
that had been smuggled into the
country. Rather than sending the
goods to the police station they
were sent to the private house
of the accomplices for the
purpose of selling them for the
benefit of all who participated.
They were tried and upon their
conviction for stealing each was
sentenced to seven years
imprisonment with hard labour.
On appeal, counsel for the
appellant argued that the
sentence was excessive and this
is what the court said:
“Since the offence was of a very
grave nature, the sentence must
not only have been punitive but
it must also have been deterrent
or exemplary in order to mark
the disapproval of society of
such conduct by police
officers…”
The trial court gave good
reasons for the 20 years
imprisonment imposed on the
accused persons. He had taken
into consideration the nature of
the crime and the quantity of
the cocaine brought in among
others. This is what he said:
“But taking into consideration
the method or design of the mode
of importation of the offending
drug - cocaine - into the
country and by the very huge
quantity of the drugs brought in
and the modus operandi of all
the accused persons in this
case, they appear to be leaders
or ground masters for the
distribution of this condemned
drug in Ghana and elsewhere. In
view of this, I am minded to
mete out to them a deterrent
sentence…”
The court of Appeal
found no good reason for
interfering with the sentence
and we have found none either.
The appeal against the sentence
on ground five also fails.
The appeal in its entirety fails
and same is accordingly
dismissed
R. C. OWUSU (MS)
(JUSTICE OF THE SUPREME COURT)
DOTSE, JSC:
Like my other brothers and
sister, I have the privilege of
having read the judgment just
delivered by my sister Rose
Owusu JSC.
I agree in the conclusion
reached that the appeal be
dismissed in its entirety.
There is however, one small
point I wish to exercise my mind
on. That is the issue of
sentence.
Even though I also agree that
the appeal against sentence
should fail, I think there are
other indicators that Courts of
law especially trial Courts
should apply when evaluating
appropriate sentences to be
imposed on persons who are
convicted of crimes in respect
of which the entire society
abhors.
It is generally accepted that
dealing in Narcotic drugs to
wit, cocaine is a menace which
has for the past couple of years
engulfed the entire nation Ghana
and has threatened the very
foundations of its
socio-cultural and political
stability.
This the country has decided to
deal with by imposing harsh and
deterrent sentences.
One sure way of measuring and or
evaluating a country’s
abhorrence or dislike for
particular crimes such as
dealing in Narcotics is to be
seen in the types of punishment
to wit the sentences that are
imposed on convicted persons.
Where an enactment gives or
states only the minimum sentence
as 10 years, and does not state
the maximum, then it is
sufficient indication, just as
objects are viewed in a mirror
that the society or country
intends to impose not only
deterrent sentences but also to
show revulsion against the
thriving business in Narcotics.
I am therefore of the view that,
since the country, through
statements by its political
leaders and shown clearly in the
enactment governing the crime,
to wit PNDC Law 236, by the
strong indications in the
MIRROR OF THE STATE which
can be described as the policy
measures of the state on
fighting Narcotic drugs then the
stage is set for punitive
sanctions. One way the Courts
can assist in this regard is to
consider the public policy
measures when it comes to
imposing sentences on convicted
persons.
In the instant appeal, since I
am satisfied that, both the
trial Court and the Court of
Appeal, used the correct
barometers in imposing the
sentence of 20 years on the
appellant, there is really no
good legal basis to disturb the
sentence. If anything at all, it
ought to be enhanced.
The appeal against sentence is
therefore dismissed.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
DATE-BAH (DR.)
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
THADDEUS SORY FOR THE APPELLANT
EVELYN KEELSON FOR THE ATTORNEY
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