|
Review -
Criminal law - Narcotic drug –
Exportation - Minimum mandatory
sentence – Burden of proof -
Exceptional circumstances -
Whether or not an error by the
final court of the land cannot
ordinarily be remedied by itself
- Whether or not the Supreme
Court occasioned a grave
miscarriage of justice in its
interpretation and application
of the nature and quality of
circumstantial evidence used in
convicting an accused person -
Section 2 - Narcotic Drug
(Control Enforcement and
Sanctions) Law, 1990 (PNDCL 236)
- 54(a) - Supreme Court Rules
1996 (CI 16),
HEADNOTES
The applicant
was convicted by the High Court
(Fast Track Division) Accra of
two charges of
attempted
exportation and possession
of a
narcotic drug, namely
Cannabis Sativa weighing 695
grammes and sentenced to a
minimum
mandatory sentence of 10
years IHL on each count to run
concurrently. His appeals to
the Court of Appeal and to this
court were dismissed. The
applicant now applies for review
of this court’s ordinary
decision
HELD
We are
however suspicious of the
circumstances in which Harry
Campbell the alleged Principal
of the appellant escaped
arrest. Indeed in her judgment
at P.183 of the record the trial
judge said: “it is in evidence
that an attempt was made to
effect the arrest of Campbell
but this was bungled by the
police.”
We are however not
versed in police tactics in such
matters. It is obvious however
that if the cloudy escape of
Harry Campbell is scrutinised
with regard to the facts on
record by those with the
requisite expertise and found to
have been orchestrated then some
executive intervention by way of
the presidential prerogative
under article 72 of the
constitution in respect of at
least the appellant (as opposed
to the 1st accused
who on the evidence is a factory
of criminality) might be
relevant. This is however
entirely a matter for the
appellant and his advisors.
It is for the
foregoing reasons that though we
came close to granting this
application, upon a full and
anxious consideration of the
same we are constrained to
dismiss the same.
STATUTES
REFERRED TO IN JUDGMENT
Narcotic Drug
(Control Enforcement and
Sanctions) Law, 1990 (PNDCL
236),
1992
Constitution
Supreme Court
Rules 1996 (CI 16)
Supreme Court
Rules, 1962 L.I. 218
Supreme Court
Rules, 1970 (CI 13
High Court
(Civil Procedure) Rules, 1954
(LN 140A)
Evidence
Decree, 1975, NRCD 323
CASES
REFERRED TO IN JUDGMENT
Chapel Hill
Ltd v the Attorney-General &
Anor,J7/10/2010 (5/5/2010)
Gihoc
Refrigeration (No. 1) v Hanna
Assi (No. 1) [2007 – 2008] SC
GLR 1
Afrainie V
Quarcoo [1992]2 GLR 561
Mechanical
Lloyd Assembly Plant v Nartey
[1987-88]2 GLR 598;
Bisi and
others v Kwayie [1987-88]2 GLR
295;
Nasali v Addy
[1987-88]2 GLR 286;
Ababio v
Mensah (No.2) [1989-90]1 GLR
573;
Quartey v
Central Services Co. Ltd.
[1996-97] SC GLR 398;
Pianim (No.
3) v Ekwam [1996-97] SC GLR 431;
Koglex (Gh)
Ltd. v Attieh [2001-2002] SC GLR
947;
Attorney
General (No. 2) v Tsatsu Tsikata
(No. 2) [2001-2002] SC GLR 620
In Re
Effiduase Stool Affairs (No. 3)’
Republic v Numapau, President of
the National House of Chiefs and
Others; Exparte Ameyaw II(No. 3)
[2000]SC GLR 59.
Adji & Co v
Kuming (1982-83)2 GLR 1382 C.A
Brutuw v
Afeniba (1984-86)I GLR 25 C.A
Gyamerah v
Brefo (1984-86) 1 GLR 110 C.A
Kambey v The
Republic (1989-90) 1 GLR 213 C.
A
Akyea-Djamson
v Duagbor (1989-90) 1 GLR 223
S.C
Marfo v
Adusei, Supreme Court, 24
February 1964 unreported
Benneh v The
Republic (1974)2 GLR 47 C.A
(Full Bench)
Swaniker v
Adotei Twi II (1966) GLR 151 S.C
A/S Norway
Cement Export Ltd. v Addison
(1974)2 GLR 177 (Full Bench)
In Re Gomoa
Ajumako Paramount Stool (No.2);
Acquah Applicant; Kwa Nana v
Apaa and Another [2000] SC GLR
394
Republic v
High Court, Kumasi; Exparte
Abubakari (No. 3) [2000]SC GLR
45
NTHC Ltd v
Antwi (2009) SC GLR 117
Baiden v
Ghana National Trading
Corporation [1989-90] 2 GLR 79
Koglex Ltd.
(No. 2) v Field (2000) SC GLR
175.
Bonsu @
Benjillo v The Republic (2000)
SC GLR 112
Otsiba v The
Republic (1978) GLR 290
George
Mattouk v Elie Masad (1941) 7 WA
CA 91
Donkor v. The
Republic (1974) 2 GLR 254
Woolmington v
Director of Public Prosecutions
[1935] A.C. 462
R. V Abraham
[1973] 3 All E.R. 694, C.A
Pianim (No.3)
v Ekwam (1996-97) SC GLR 431.
Logan v. Republic [2007-2008]
1SCGLR 76
Anane v Fiadzo [1961 ] 1 GLR 416
Duah v.
Republic [1987-881] GLR343
BOOKS
REFERRED TO IN JUDGMENT
Oxford
Advanced Learners Dictionary
(Fifth edition)
DELIVERING
THE LEADING JUDGMENT
ATUGUBA,
J.S.C:
COUNSEL
SAM OKUDZETO WITH NENE
AMEGATCHER, ASINI
OKUDZETO,PATRICK BOAMAH, KWESI
KELLY DELATA FOR THE APPLICANT.
EVELYN
KEELSON (MRS) P. S. A. FOR THE
RESPONDENT
______________________________________________________________________
R U L I N G
______________________________________________________________________
ATUGUBA,
J.S.C:
The applicant
was convicted by the High Court
(Fast Track Division) Accra of
two charges of attempted
exportation and possession of a
narcotic drug, namely Cannabis
Sativa weighing 695 grammes and
sentenced to a minimum mandatory
sentence of 10 years IHL on each
count to run concurrently. His
appeals to the Court of Appeal
and to this court were
dismissed.
The applicant
now applies for review of this
court’s ordinary decision on the
grounds that;
“(a) The
Supreme
Court occasioned a grave
miscarriage of justice in its
interpretation and application
of the nature and quality of
circumstantial evidence used in
convicting an accused person.
(b) The
Supreme Court inadvertently fell
into grave error in its
consideration of the requisite
mental blameworthiness for
convictions under
Section 2
of the Narcotic Drug (Control
Enforcement and Sanctions) Law,
1990 (PNDCL 236), resulting
in a grave miscarriage of
justice.”
In his
supplementary statement of case
he identifies the issues raised
for review as follows:
“Summary of
the Argument
Your
Lordships, the gist of our
argument is that on all four
issues raised above, this Court
committed fundamental errors of
law that have resulted in a
miscarriage of justice in the
sense that its verdict, as a
whole, undermined the
constitutionally guaranteed
liberty interest of the
Applicant. On the issue of
possession, this Court erred
fundamentally when it held that
the Applicant was in legal
possession of a narcotic drug
because he engaged in acts that
were inconsistent with
innocence. We submit that
disbelieving the Applicant is
not an automatic call to guilt-
the defence may be incredible
but that is not synonymous with
proof beyond reasonable doubt, a
burden squarely placed on the
prosecution with respect to the
offence of possession of a
narcotic drug.
With respect
to the second issue, Your
Lordships, we argue that this
Court fundamentally erred in its
judgment when it glossed over
the critical issue of the
reversed
burden of proof placed on
the Applicant under section 2 of
PNDC Law 236, to wit, proof of
the lawfulness of the possession
of a narcotic drug. The
gravamen of our argument on this
issue is that this Court should
have held the aforesaid reverse
onus clause unconstitutional
because it is an unreasonable,
arbitrary and disproportionate
limitation on the right of the
Applicant to be presumed
innocent until proven guilty and
his right to a fair trial under
article 19 of the
Constitution.
Your
Lordships, we argue with respect
to the third issue that this
Court has power, ex proprio
motu, to have held that a
critical element of the offence
created under section 2 of PNDC
Law 236, to wit, proof of lawful
possession of a narcotic drug,
was not established at the trial
and therefore the conviction and
sentence of the Applicant were
unlawful. Having glossed over
that issue of law, this Court
committed a fundamental error
that has resulted in a
miscarriage of justice.
Finally, we
argue that this Court erred
fundamentally in law when it
endorsed the unsubstantiated
inferences drawn by the lower
courts from facts which the
prosecution patently failed to
establish at the trial and in
fact drew inferences itself from
such facts and proceeded to make
conclusions that were not
supported by the Record of
Appeal. In all this, this Court
misapplied the law on the use of
circumstantial evidence in
criminal trials.”
In view of
the principles governing our
Review
jurisdiction the natural
question is whether the
application is within them. The
relevant principles have been
stated in several cases and have
been forcefully summed up by Dr.
Date-Bah JSC in
Chapel
Hill Ltd v the Attorney-General
& Anor,J7/10/2010 (5/5/2010)
as follows:
“I do not
consider that this case deserves
any lengthy treatment. I think
that it represents a classic
case of a losing party seeking
to re-argue its appeal under the
garb of a review application.
It is important that this Court
should set its face against such
endeavour in order to protect
the integrity of the review
process. This court has
reiterated times without number
that the review jurisdiction of
this court is not an appellate
jurisdiction, but a special
one. Accordingly, an issue of
law that has been canvassed
before the bench of five and on
which the court has made a
determination cannot be
revisited in a review
application, simply because the
losing party does not agree with
the determination. This
unfortunately is in substance
what the current application
before this court is.
x
x
x
I would like
to reiterate the view that I
expressed in
Gihoc
Refrigeration (No. 1) v Hanna
Assi (No. 1)[2007 – 2008] SC GLR
1 at pp.12-13 that:
“Even if the
unanimous judgment of the
Supreme Court on the appeal in
this case were wrong, it would
not necessarily mean that the
Supreme Court would be entitled
to correct that error. This is
an inherent incident of the
finality of the judgments of the
final court of appeal of the
land. The brutal truth is that
an error
by the final court of the land
cannot ordinarily be remedied by
itself, subject to the
exception discussed below. In
order words, there is no right
of appeal against a judgment of
the Supreme Court, even if it is
erroneous. As pithily explained
by Wuaku JSC
in
Afrainie V Quarcoo [1992]2 GLR
561 at pp. 591-592:
“There is
only one Supreme Court. A
review court is not an appellate
court to sit in judgment over
the Supreme Court.”
However, in
exceptional circumstances and in
relation to an exceptional
category of its errors, the
Supreme Court will give relief
through its review
jurisdiction. The grounds on
which this Court will grant an
application for review have been
clearly laid out in the case
law. Notable in the long line
of relevant cases are
Mechanical Lloyd Assembly Plant
v Nartey [1987-88]2 GLR 598;
Bisi and others v Kwayie
[1987-88]2 GLR 295; Nasali v
Addy [1987-88]2 GLR 286; Ababio
v Mensah (No.2) [1989-90]1 GLR
573; Quartey v Central Services
Co. Ltd. [1996-97] SC GLR 398;
Pianim (No. 3) v Ekwam [1996-97]
SC GLR 431; Koglex (Gh) Ltd. v
Attieh [2001-2002] SC GLR 947;
and Attorney General (No. 2) v
Tsatsu Tsikata (No. 2)
[2001-2002] SC GLR 620. The
principles established by these
cases and others are that the
review jurisdiction of the
Supreme Court is a special
jurisdiction and is not intended
to provide an opportunity for a
further appeal. It is a
jurisdiction which is to be
exercised where the applicant
succeeds in persuading the Court
that there has been some
fundamental or basic error which
the Court inadvertently
committed in the course of
delivering its judgment and
which error has resulted in a
miscarriage of justice. This
ground of the review
jurisdiction is currently
exercised by the Court pursuant
to rule
54(a) of the Supreme Court Rules
1996 (CI 16), which refers
to “exceptional circumstances
which have resulted in
miscarriage of justice.” This
is a high hurdle to surmount.”
The public
interest in avoiding the
protraction of litigation
requires that this Court should
continue to uphold these
principles.”
However it
has to be remembered that this
court has consistently held that
the categories of exceptional
circumstances cannot be
exhaustively stated. Thus in
In Re
Effiduase Stool Affairs (No. 3)’
Republic v Numapau, President of
the National House of Chiefs and
Others; Exparte Ameyaw II(No. 3)
[2000]SC GLR 59; this court
stated as in holding (1) of the
headnote as follows:
“the
application herein was made
under the first ground specified
in rule 54(a) of the Supreme
Court Rules, 1996 (C.I 16),
namely, the existence of
“exceptional circumstances which
have resulted in a miscarriage
of justice.” Therefore, to
succeed, the applicant must
demonstrate to us the existence
of exceptional factors which
show that the decision of the
majority has manifestly resulted
in a miscarriage of justice.
What constitutes
exceptional circumstances
cannot be comprehensively
defined. It was incumbent on
the applicant to show that his
substantial rights in the matter
that came before this court have
been prejudiced by some
fundamental or basic error made
by the majority. Therefore,
whatever factors the applicant
relies on must be such that the
exercise of our power of review
becomes extremely necessary to
avert irreparable harm to him.
A mere re-arguing of his
original application would not
suffice.”
Since before
an application for review can be
brought the matter would have
been argued invariably, it would
be inconceivable that a Review
application is entirely free
from
re-
argument. The formulation in
the In Re Effiduase case, supra,
lends support to this line of
reasoning. Obviously if the
pursuant judgment does not
contain a palpably serious error
a review application in that
situation can aptly be described
as “A mere re-arguing of his
original application.” However
if that is not the situation the
argument on Review cannot be
described as “a mere
re-arguing....”
Perverse
Decision
It would
emasculate the Review
jurisdiction if too much
emphasis is put on the question
whether the matter has
previously been argued rather
than on the character of the
judgment emanating from the
matter argued. If despite
argument on the matter a court
arrives at a decision that is so
palpably unsustainable as to be
describable as perverse, is that
not an exceptional
circumstance? One has only to
consider the meaning of the word
“perverse” in order to see its
implications.
The
Oxford
Advanced Learners Dictionary
(Fifth edition) defines
perverse, inter alia, as
follows;
“perverse
adj. ( of people or their
actions, intentions, etc)
showing a deliberate and
STUBBORN (1) desire to behave in
a way that is wrong unreasonable
or unacceptable: ........ a
perverse decision /judgment (ie
one that ignores the facts or
evidence).”
Even judges
have shown great revulsion to
judgments that are so palpably
wrong and unsustainable that
they have described them as
perverse. Thus in
Adji & Co
v Kuming (1982-83)2 GLR 1382 C.A.
at 1394 Francois J.A said “The
judgment appealed against is
clearly perverse. Even the
counsel for the respondent,
hereafter called the defendant,
could not help labelling the
judgment as an “unhappy one.”
This charitable description
stretches euphemism to extreme
limits.”
Again in
Brutuw v
Afeniba (1984-86)I GLR 25 C.A
at 30, Francois J.A (Edusei
and Mensah Boison JJ. A
concurring), said: “The judge
decided firmly on what appeared
overwhelming evidence in the
defendants’ favour. As already
pointed out, that judgment
received the unalloyed support
of the Court of Appeal. Indeed
on the basis of the evidence on
record it would have been
bizarre and perverse had the
judgment been otherwise”
So also in
Gyamerah
v Brefo (1984-86) 1 GLR 110 C.A.
at 115, Abban J.A said “As
matters stood, the defendant’s
right to the house was based on
documents which were proved to
be nothing but forgery and we do
not see how any court of law or
equity could allow the defendant
to hold on to the disputed
house...”
See also
Kambey v
The Republic (1989-90) 1 GLR 213
C. A. at 220 and
Akyea-Djamson v Duagbor
(1989-90) 1 GLR 223 S.C. at
259.
Inadequate
Consideration of a Case
A decision
may be the product of very
serious inadequate consideration
of the case presented and can be
a ground for review. Let me
hasten to clarify this
proposition by saying that such
a situation involves the
overlooking of very material and
practically decisive matters.
As there are precedents on this
aspect I better go on to
them. Indeed r.54(a) of C.16
has no pretence to originality.
It is a lift over from r.33 of
the then
Supreme Court Rules, 1962 L.I.
218 which provided thus:
“The Court
shall not review any judgment
once given and delivered by it
save where it is satisfied that
the circumstances of the case
are exceptional and that in the
interest of justice there should
be a review.”
This
provision was first applied in
Marfo v
Adusei, Supreme Court, 24
February 1964 unreported, in
which an application for review
was granted by the court because
as explained by Azu Crabbe C.J
in Benneh
v The Republic (1974)2 GLR 47
C.A (Full Bench) at 59:
“... it was
satisfied that it was influenced
by some typographical errors on
the record, and consequently it
omitted to consider certain
issues in the appeal. In its
ruling the court said:
“[T]his is a
proper case for a review in
compliance with the specific
provision as contained in rule
33 of the Rules of Supreme
Court, 1962. The judgment of
this court [reported [1963]1
G.L.R. 225] is in our view per
incuriam occasioned by
incorrect court notes from the
court below quite apart from
incoherent passages in the
plaintiff’s evidence in which
there are also obvious
omissions.
Accordingly,
we are of the opinion that there
are special circumstances and in
the interest of justice the said
judgment should be vacated and
it is hereby vacated and the
appeal will be relisted and
heard de novo by this court as
constituted.”
Again in
Swaniker
v Adotei Twi II (1966) GLR 151
S.C at 162 Ollennu JSC held
as follows:
“As earlier
pointed out, none of the reasons
which the trial court gave for
its judgment received any
attention in the judgment which
is now sought to be reviewed;
and that makes it apparent that
it escaped the court to deal
with the very task it set
itself, i.e. to demonstrate the
fallacy in the reasoning of the
trial court. There is therefore
an error evident in the
judgment. Moreover, the
arguments advanced and the
points discussed in the judgment
are so clear that the contention
of counsel for the opposer that
the matters omitted to be
considered must be deemed to
have been impliedly included in
those points and arguments is,
in my view, untenable, and must
be rejected. In my opinion the
circumstances of this case are
obviously exceptional, and in
the interest of justice warrant
a review.”
At 163 Apaloo
JSC (concurring) said:
“I agree with
my brother in thinking that it
would not be wise to lay down
what are exceptional
circumstances for the purpose of
this rule and that each case
would be left to be judged on
its own merits. But where
litigants submit their dispute
to a judicial tribunal which
determines it with full reasons,
I should myself regard it as
exceptional if any appellate
tribunal disturbed that
conclusion without itself
demonstrating the fallacy of the
trial court’s reasoning.
I think that
is what happened in this case.
The judgment of this court
proceeded on the footing that
the reasoning of the trial court
on the various controverted
matters on which it pronounced a
decision was fallacious. That
being so, it behoves this court
to show this by its own
independent reasoning. That
clearly has not been done and
this omission is apparent on the
face of the judgment. In these
circumstances, ordinary fairness
requires that this court should
make good its omission and have
a fresh look at its judgment.
Accordingly, like my brother
Ollennu, I also think that the
judgment of this court should be
reviewed and I concur that
orders be made in the manner he
has proposed.”
Obviously in
such cases the record of appeal
and not just the bare judgment
delivered will be required for
the determination of the Review
application. See
A/S
Norway Cement Export Ltd. v
Addison (1974)2 GLR 177 (Full
Bench) at 181.
In
In Re
Gomoa Ajumako Paramount Stool
(No.2); Application for
substitution, Acquah Applicant;
Kwa Nana v Apaa and Another
[2000] SC GLR 394 the facts
of the case were as stated per
Charles Hayfron-Benjamin JSC at
396 as follows:
“Ordinarily
this court would not entertain
an application for review unless
such an application was brought
within the ambit of the rules of
this court, now clearly spelt
out in the Supreme Court Rules,
1996 (CI 16), r 15(2). But in
this case, the applicant by his
statement of case prepared on
his behalf by counsel, raises an
important issue worthy of
consideration.
X
X X
To buttress
......, counsel argued that if
their lordships had carefully
examined the record, they would
have noticed that by 20 August
1991, when the registrar of this
court issued the notice to
strike out and directed the said
notice for service on Kwa Nana,
the said Kwa Nana was already
dead, and in the submission of
counsel, the registrar
“therefore could not have taken
any step in this case.”
Upon these
facts this court held as per the
headnote as follows:
“Held,
unanimously granting the
application for review of the
ruling of the court given on 26
June 1992, dismissing the
applicant’s motion for
substitution and an order of
re-listment in respect of the
appeal which was deemed to have
been struck out under rule 13(2)
of the
Supreme Court Rules, 1970 (CI 13):
the object of rule 13(2) of CI
13 was to notify all parties
mentioned in the notice to
strike out, that the appeal has
been stuck out. In the instant
case, even though the appeal was
deemed to have been struck out
for failure by the previous
appellant to file statement of
case as required by rule 13(2),
notice thereof was never served
on the appellant because he had
died before the issue of the
notice. The purported service
of the notice on a person who
was, in fact, dead was a
nullity. Consequently, the
applicant for the instant review
is entitled ex debito
justitiae to have the
earlier ruling set aside. The
court would, therefore, order
that the applicant be
substituted for the deceased
appellant and further order that
the appeal be re-listed.”
Again in
Republic
v High Court, Kumasi; Exparte
Abubakari (No. 3) [2000]SC GLR
45 this Court reviewed its
earlier decision mainly because
this court had overlooked
certain basic and material facts
relating to the election of a
Moshiehene. Thus it is stated
in holding 2 thereof as follows:
“(2) On the
undisputed evidence or facts as
found by the trial judge, the
question of headship of the
Moshie Community in Kumasi did
not fall within the definition
of “chief” under article 277 of
the 1992 Constitution”.
Furthermore
in NTHC
Ltd v Antwi (2009) SC GLR 117
the Editorial Note thereto
shows that this court was
compelled to review its previous
order as to interest because of
certain factual errors relating
to its duration and
computation. In
Baiden v
Ghana National Trading
Corporation [1989-90] 2 GLR 79
the headnote vividly states
thus:
“Held,
granting the application for
review: since exhibit P upon
which the court relied to fix
the period for the award of
damages for wrongful dismissal
was never brought to the
knowledge of the plaintiff (as
it never left the
defendant-corporation) there was
an obvious error on the part of
the court when it assumed that
from January 1985 the plaintiff
had had notice of the
regularisation of his
termination. There was
therefore an error or mistake
apparent on the face of the
record in terms of Order 39, r 1
of the
High Court (Civil Procedure)
Rules, 1954 (LN 140A), and
that failure to review the
judgment would amount to a
denial of justice”. (e.s)
I do not
think that in view of the ratio
decidendi therein it matters
anything that the Review was
made under 0.39 r.1 of L.N.
140A. See also
Koglex
Ltd. (No. 2) v Field (2000) SC
GLR 175.
All this
should not be surprising because
as a matter of principle, since
it is trite law that this court
can review a decision which is
per incuriam as to the law why
can’t it also review a decision
that is per incuriam as to
compelling facts. After all the
expression per incuriam simply
means through oversight. It is
also trite law that a statute
must be construed as a whole and
purposively. The second ground
of this court’s Review
jurisdiction, namely r.54 (b)
relates to “discovery of new and
important matter or evidence
which, after the exercise of due
diligence, was not within the
applicant’s knowledge or could
not be produced by him at the
time when the decision was
given.” Quite clearly then the
legislature is anxious that any
fact that could have altered the
decision of the court, were it
known, should be given effect
even after judgment has been
delivered. Very clearly then it
stands to reason that if
“important matter or evidence”
was adduced but was overlooked
by the court such a situation
should qualify as an exceptional
circumstance under r.54(a) of CI
16. After all it is trite law
that the spirit of a statute
cannot be divorced from its true
construction. This means that
if the substance of an
application for Review is that a
different decision from the
earlier one is merely preferable
and not that the earlier
decision is starkly wrong, it is
a proper matter for appeal not
Review.
For all the
foregoing reasons the
submissions filed by the
applicant’s counsel raise the
questions whether (1) the
ordinary decision of this court
in this case was perverse or (2)
whether it overlooked important
and substantial matters of fact
which, were they considered,
would have compelled a different
decision by this court. One
such fact was that a similar
fake air waybill standing in the
name of Friesland West Africa
had been used on the 30th
day of August 2006 to dispatch a
parcel described as containing
documents by the DHL Company
which found nothing suspicious
about its alleged contents.
Clearly therefore the use of a
fake air waybill by the
appellant does not necessarily
point to a criminal purpose or
mind in relation to the charges
against him. Another fact is
that the first accused indeed
had with him several of such air
waybills for the purpose of
facilitating the theft of the
postal fees of the parcels
concerned.
Nonetheless
every incident must be
ultimately decided upon its own
peculiarities if any. So far as
the facts of this case are
concerned the courts below have
concurrently found that it was
the appellant’s executed intent
so to distance the identity of
the sender from the criminal
parcel as to avoid detection.
For this purpose though the
appellant supplied the
consignee’s name and address on
the fake exhibit ‘A’ he never
disclosed the name and/or
address of the consignor, Harry
Campbell in the documentation
for processing and dispatching
the said parcel. There is
nothing on the evidence to show
that these circumstances are the
same as those surrounding the
use on 30/8/2006 of the other
fake Friesland West Africa
airwaybill for the successful
and unsuspected dispatch of a
parcel allegedly containing
documents.
Assuming that
the 1st accused used
the fake airwaybills to steal
the postal fees of the parcels
to be dispatched by D.H.L. there
is nothing in the evidence to
suggest that the appellant was
privy to that design of the 1st
accused. Indeed the appellant
alleged that he joined issue
with the 1st accused
over the use of that airwaybill.
It follows that the residue of
any improper intent on the part
of the appellant with regard to
the criminal parcel was for his
own purposes either directly or
as agent for and on behalf of
his principal Harry Campbell.
It is quite clear on the
evidence that exhibit ‘B’ the
parcel containing the Indian
Hemp, is clean shaven, as far as
bearing any name and/or address
of the consignor(be he the
applicant or Harry Campbell) is
concerned despite the contrary
avowal by the appellant. Again
the contention of the appellant
that the 1st accused
undertook to post the
particulars of exhibit ‘A’ unto
a blank airwaybill at the DHL
office is most incredible since
if he did not sign exhibit ‘A’
as he contends, the parcel
would have had to be dispatched
without any consignor’s
signature on the airwaybill, a
thing that is not done on his
own evidence, since he
positively testifies that he
until this particular criminal
parcel always filled in the
requisite particulars on the air
waybill and signed the same. In
the alternative if he did sign
exhibit ‘A’ as contended by the
1st accused then his
signature would have been
incapable of being transferred
unto the pursuant blank air
waybill which the 1st
accused is said to have promised
to substitute for exhibit ‘A’ by
transferring the particulars of
the parcel thereunto in carbon
copies.
A resort to
the original exhibits
transmitted to this court, inter
alia, clearly establishes the
foregoing facts against the
appellant.
The anonymity
of the consignor’s identity in
the documentation for the
purpose of the postage of the
criminal parcel is explicable
only in terms of the need for
concealment thereof because of
the criminal contents of the
parcel in question. Therefore
the presence of the Indian hemp
in the criminal parcel to the
knowledge of the appellant and
the 1st accused has
been proved even before that
parcel could reach the DHL
offices. Therefore the
possibility of any implanting of
that narcotic drug in the parcel
delivered by the appellant to
the 1st accused by
any of other persons who have to
handle the same at the DHL
offices has been eliminated
before hand. Also as held in
the head note in
Bonsu@Benjillo v The
Republic(2000) SC GLR 112:
“The proof of
knowledge or mens rea is
not capable of direct proof but
same may be inferred from
established facts as stated in
Section 18(2) of the
Evidence
Decree, 1975, NRCD 323.
S.18(2) states as follows: ‘An
inference is a deduction of fact
that may logically and
reasonably be drawn from another
fact found or otherwise
established in the action.”
Whether or
not acts of an accused that are
inconsistent with innocence
necessarily point to guilt
depends on the facts of each
case. See
Otsiba v
The Republic (1978) GLR 290
C.A.
It is to be
expected that narcotic drug
traffickers would use very
subtle methods in their
dealings. Even the starkly
plain divergence of the
handwritings of the appellant in
his statements to the Police and
in exhibit ‘A’ portrays the
appellant as a person of no
innocent ability. The foregoing
analysis of the facts in this
case only portrays the
contrivance of the appellant and
the 1st accused in
the words of Graham Paul C.J in
George
Mattouk v Elie Masad (1941) 7 WA
CA 91 at 96 as “deliberate
downright lying showing at once
a marvellous though debased
talent for invention and a total
disregard of truth and of
[their] oath to tell the
truth”. Consequently on the
facts of this case even if
exceptional circumstances have
been established they are not
exceptional circumstances “which
have resulted in a miscarriage
of justice” as required by
r.54(a) of C.I. 16.”
As to the
applicant’s counsel’s contention
that the onus of proof has been
unconstitutionally shifted to an
accused person with regard to
the requirement of lawful
authority for the possession of
a narcotic drug, we disagree.
It is a fair onus since
certainly the obtention of such
authority would have been in the
knowledge and possession of the
accused person and in any event,
it is trite law that its
discharge is far easier than the
discharge of any onus on the
prosecution. As Edward Wiredu
J. (as he then was) said in
Donkor v.
The Republic (1974) 2 GLR 254
at 258 “where a statute
creates an offence, it is the
duty of the prosecution to prove
each and every element of the
offence which is a sine qua
non to securing conviction.
Unless the same statute places a
particular burden on the
accused, the fundamental and
cardinal principle as to the
criminal burden of proof on the
prosecution should not be
shifted even slightly: see
Woolmington v Director of Public
Prosecutions [1935] A.C. 462
per Viscount Sankey L.C. at pp.
481-482, H.L. and
R. V
Abraham [1973] 3 All E.R. 694,
C.A.”. In any case if the
appellant had lawful excuse for
possessing the narcotic drug it
is incomprehensible that he
should take all the pains to
ensure the anonymity of the
consignor or sender of this
parcel or of himself.
As to counsel
for applicant’s contention as to
the need for a special
dispensation with regard to the
principles for Review in this
court in criminal cases, we
think the principles expatiated
above do adequately redress his
concerns. The Review
jurisdiction is a unitary one.
The federal approach advocated
by the applicant’s counsel was
urged on this court
unsuccessfully in
Pianim
(No.3) v Ekwam (1996-97) SC GLR
431.
We are
however suspicious of the
circumstances in which Harry
Campbell the alleged Principal
of the appellant escaped
arrest. Indeed in her judgment
at P.183 of the record the trial
judge said: “it is in evidence
that an attempt was made to
effect the arrest of Campbell
but this was bungled by the
police.”
We are
however not versed in police
tactics in such matters. It is
obvious however that if the
cloudy escape of Harry Campbell
is scrutinised with regard to
the facts on record by those
with the requisite expertise and
found to have been orchestrated
then some executive intervention
by way of the presidential
prerogative under article 72 of
the constitution in respect of
at least the appellant (as
opposed to the 1st
accused who on the evidence is a
factory of criminality) might be
relevant. This is however
entirely a matter for the
appellant and his advisors.
It is for the
foregoing reasons that though we
came close to granting this
application, upon a full and
anxious consideration of the
same we are constrained to
dismiss the same.
(SGD) W. A.
ATUGUBA
JUSTICE OF THE SUPREME COURT
ANSAH, J.S.C.
I
agree:
(SGD)
J. A. ANSAH
JUSTICE OF THE SUPREME
COURT
ADINYIRA
(MS), J.S.C.
I
also agree:
(SGD)
S. O. A. ADINYIRA
(MRS.)
JUSTICE OF THE
SUPREME COURT
YEBOAH. J.S.C.
I
also agree:
[SGD] ANIN
YEBOAH
JUSTICE OF THE SUPREME COURT
AYEETEY, J.S.C.
I also agree:
[SGD]
B. T. ARYEETEY
JUSTICE OF
THE SUPREME COURT
JONES DOTSE
JSC:
This is to
confirm that I have been
privileged to have read the well
considered and erudite opinion
of my respected brother and
president of this court, Atuguba
JSC and I am in complete
agreement that this review
application must fail and should
be dismissed.
I am also in
complete agreement with the
reasons given for the dismissal
of the review application.
However, as I
have been scheduled to be out of
town on the date of the
judgment, which is 20th
January 2011, I have accordingly
requested my respected brother
Anin-Yeboah JSC to read this
concurring opinion on my behalf
to validate the opinion of the
court, just delivered by the
President of the Court, Atuguba
JSC.
Dated in
Accra at the Supreme Court, this
19th day of January
2011.
(SGD)
J. V. M DOTSE
JUSTICE OF THE SUPREME
COURT
BAFFOE-BONNIE:,J.S.C.
I have had the benefit of
reading beforehand the judgment
read by the president of the
court Atuguba JSC and concurred
in by my brothers and sister. I
am unfortunately unable to agree
with them in the conclusion for
reasons which I will articulate
hereafter.
In the case of Afranie v.
Quarcoo Wuaku1992] GLR 561at pgs
591-592 JSC said,
“There is only one Supreme
Court. A review court is not an
appellate court to sit in
judgment over the Supreme Court”
Then in the case of GIHOC
Refrigeration (no 1) V. Hanna
Assi(1) (2007-2008) SCGLR
1 Dr. Justice Date-Bah said;
“Even if the unanimous judgment
of the Supreme Court on the
appeal in this case were wrong,
it would not necessarily mean
that the Supreme Court would be
entitled to correct that error.
This is an inherent incident of
the finality of the judgments of
the final Court of Appeal of the
land. The brutal truth is that
an error by the final court of
the land cannot ordinarily be
remedied by itself, subject to
the exceptions discussed below.
In other words, there is no
right of appeal against a
judgment of the Supreme Court,
even it is erroneous”
These and a long line of cases
are often cited as militating
against the use of the review
process to overturn decisions
given by the Supreme Court
except for exceptional
circumstances that has
occasioned a miscarriage of
justice.
Ordinarily one should not have
any problem with any rule of
procedure that seeks to bring
finality to the adjudicatory
process and which is based on a
rule of law like Rule 54 of CI
16. But all these authorities
harping on the need for the
existence of exceptional
circumstances, etc followed by
this court have been on civil
cases.
The Constitution 1992 which is
the basic law of the land was
promulgated to regulate and
promote good governance and the
rule of law. And at the heart
of the rule of law is the
liberty of the individual. I
cannot see any rule of law or
procedure which should take
precedence over the promotion
and sustenance of the liberty of
the individual.
I therefore cannot see my way
clear refusing to review a
decision .of the regular court
on the grounds that there must
be finality in judgments of the
final court of the land, even if
clearly in my humble view the
judgment was wrong
For my part, keeping the
applicant in jail on the
parroted grounds that there are
no exceptional “circumstances
that has occasioned a
miscarriage of justice”, and
that to review means giving him
a second chance to re-argue, is
a violation of the constitution
which we swore an oath to
uphold.
I believed then, and I still
believe, that the applicant was
wrongly convicted by the trial
High Court and same confirmed on
appeal. We piled a multitude of
suspicions together and made
proofs out of them. We failed to
give the benefit of the doubt to
the applicant and most
importantly we misapplied the
rule on the use of
circumstantial evidence, which
this court has laid in down in
its previous decisions.
Seethe cases of;
LOGAN V. REPUBLIC [2007-2008]
1SCGLR 76
ANANE V FIADZO 1961 1 GLR 416
DUAH V. REPUBLIC1987-881 GLR343
and a host of others.
It is my humble view that the
applicant is in jail serving a
term of imprisonment for an
offence which the prosecution
did not fully prove he
committed. His continued
incarceration is a breach of the
constitution. If these are not
exceptional circumstances that
call for a review of our
decision, then I do not know
what else is.
For my part I humbly believe
that, the desire to achieve the
liberty of the human person
should not be sacrificed on the
alter of expediency of finality
of judgments. After all it is
often said that it is better to
set free 99 guilty persons than
to convict one innocent person.
It is for these reasons that I
will grant the application and
quash the conviction.
(SGD) P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL:
SAM OKUDZETO WITH NENE
AMEGATCHER, ASINI OKUDZETO,
PATRICK BOAMAH, KWESI KELLY
DELATA FOR THE APPLICANT.
EVELYN KEELSON (MRS) P. S. A.
FOR THE RESPONDENT. |
