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J U D G M E N T :
On or about 2nd
February 2010, the Appellant
herein was charged with a count
of possession of Narcotic Drug
Contrary to Section 2(1) of the
Narcotic Drugs (Control,
Enforcement and Sanctions) Act
1990 (PNDCL.326). He was
arraigned before the Circuit
Court 1, Accra where he denied
the charge. After a full trial,
the trial court delivered its
judgment on 17th
December 2010. The Appellant
was found guilty. He was
consequently convicted and
sentenced to ten (10) years
imprisonment with hard labour.
Aggrieved by and
dissatisfied with his conviction
and sentence, the Appellant
lodged this appeal, seeking to
have the said conviction and
sentence set aside upon the
grounds listed below:
1.
That the Judge erred when he
convicted and sentenced the
Accused Person to ten (10) years
prison term when the Accused
denied that he was the owner of
the bag and its contents.
2.
That the Judge did not consider
all the facts contained in the
case before the court and
3.
That the driver cannot be found
guilty when a prohibited item is
found on a passenger in his
vehicle.
The facts of the case as
presented by the Prosecution
were that on 7th
June, 2009, at about 11.40p.m.,
a group of police personnel
under the command of the Legon
Police Commander were on patrol
duties along the Accra-Tema
Motorway. At a point close to
the Trassaco Valley Estates they
saw an Opel Astra Caravan with
Registration Number ER 276 V
being driven by the Accused
person. No sooner did the
Accused person see the police
patrol vehicle than he made a
quick u-turn towards the
Motorway. The patrol team
chased the Accused person’s
vehicle till the latter
stopped. Two men who were on
board the Accused person’s
vehicle managed to run into the
nearby bushes. A search in the
Accused person’s vehicle
revealed six (6) parcels of
dried leaves suspected to be
cannabis sativa, a narcotic
drug, concealed beneath the
spare tyre in the booth of the
car. Although Accused person
denied ownership of the bag and
its contents he was nevertheless
arrested. The dried leaves
proved positive for cannabis
sativa a narcotic drug when
examined by the Police Forensic
Laboratory.
It would appear that
the Lawyer for the Appellant
lumped all the three grounds of
appeal together and argued same.
He started by stating the
general principle of law with
regard to how an Appellate court
must treat a finding of fact
made by a trial court. Indeed
Lawyer accurately started the
principle as follows:
”findings of fact made by a
trial court ought not to be
disturbed unless they were
perverse or unsupportable by the
evidence on record.”
Lawyer then invited this court
to re-evaluate the totality of
the evidence on record and come
to its own conclusion as to
whether the Appellant had
possession of the narcotic drug.
Lawyer for the
Appellant also pointed out a few
inconsistencies in the evidence
of the Prosecution witnesses and
argued that these raised doubts
in the case of the Prosecution
which doubts must inure in
favour of the Appellant.
Lawyer posited that
the Appellant was not in
possession of the narcotic drugs
and that since there was
evidence that sought to suggest
that the two men who ran away
might be the owners, the
Appellant must not be made to
suffer for their crime.
In response, the
learned State Attorney
maintained that there was
evidence to support the findings
of facts made by the trial
Judge. She indeed recounted all
the ingredients that required
proof by the Prosecution and
painstakingly evaluated the
evidence on record. She was
emphatic that the charge
preferred against the Appellant
was possession and not
ownership. For the learned
State Attorney, there appeared
to be some discrepancies
between the pieces of evidence
adduced by some of the
Prosecution witnesses but those
discrepancies did not go to the
pith of the Prosecution’s case.
Referring to the case of
Republic v Adekur a [1984-86]
G.L.R. C.A.345 the learned State
Attorney argued that conflicts
and inconsistencies must relate
to material evidence. She
continued that evidence offered
to prove a matter not in issue
or not probative of the matter
in dispute is immaterial and
conflicts in such evidence can
have no relevant bearing on the
judgment.
State Attorney
concluded that the Prosecution
proved its case beyond
reasonable doubt at the trial
hence the conviction and
sentence were proper. She urged
this court not to disturb the
judgment of the trial court
delivered on 17th
December, 2010.
To begin with there
appeared to be differences in
the facts used or relied upon by
both Lawyers in this case. Upon
a close reading of the records
as well as the judgment, it is
apparent that the facts
presented by the Prosecution to
the trial court was the version
used or relied upon by the State
Attorney.
Now at the trial the
Prosecution called three (3)
witnesses. The Prosecution’s
case was that P.W. 1 and P.W. 2
both police officers were on
patrol duties together with
others along the Accra-Tema
Motorway. Whilst there they saw
an Opel Caravan with
Registration No. ER 276 V
around the Trassaco Valley
Estates area. Upon seeing the
patrol vehicle the driver made a
fast u-turn towards the
Motorway. The vehicle was
chased and Appellant arrested.
The other two (2) men on board
the vehicle managed to bolt into
the nearby bushes. When the
vehicle was searched there were
six (6) parcels of cannabis
sativa hidden under the spare
tyre in the booth of the car and
Appellant was promptly
arrested.
Appellant denied
ownership and knowledge of the
presence of the narcotic drug.
According to the Appellant he
was driving from Kpando to Accra
to settle his indebtedness on
the said car. On the way he
gave a lift to three (3) persons
a woman and two (2) men. He
claimed that when we got to a
spot along the Motorway, the
lady pleaded with him to take
her home as it was late and
therefore dangerous for her to
alight along the Motorway.
According to Appellant it was
when he went and dropped the
said woman and was rejoining the
Motorway that the police chased
and arrested him. Appellant
added that he had a flat tyre on
the way and the two (2) men he
assisted him to replace the tyre
and that it was those two (2)
men who put the spare tyre back
into the booth of the car.
From the evidence,
the fact that the narcotic drug
was found in the booth of the
Appellant’s car was not in
doubt. Clearly, he could be
said to be in physical
possession. However, on the
authorities, the offence is
proved only when such possession
was with knowledge. See the
Supreme Court Cases of Amartey
v The Republic [1964) G.L.R.
256 and George Bonsu @ Benjillo
v the Republic [2003] SCGLR 112.
The critical
question therefore is whether or
not the Appellant knew about the
presence of the narcotic drug in
the booth of his car. According
to the Prosecution, as soon as
the Appellant who was at the
steering wheel saw the police
patrol team he made a fast
u-turn towards the Motorway. By
this conduct, it would appear
that the Appellant had a guilty
mind and therefore became
alarmed at the sight of the
police. His conduct was to
prevent the police from
searching his car. Second,
there was this issue of where
the narcotic drug was placed in
the car. Now to place the
narcotic drug in the car, the
carpet in the booth was raised,
the spare tyre was removed and
the drug placed in the hole.
The spare tyre was then put back
and the carpet lowered. By
this, the presence of the bag
and its contents will not be
known unless the carpet was
raised and the spare tyre
removed. That was a clearly a
deliberate act to avoid the
detection of the presence of the
bag and its offending cargo.
The Appellant wants this court
to believe that this careful and
clearly time consuming
concealment was done by persons
he had picked along his journey
and without his knowledge and
consent. Evidently, the
Appellant cannot be telling the
truth. In fact his story is
simply not probable. For me the
narcotic drug cannot be where it
was in the vehicle without the
knowledge of the Appellant. It
was because the Appellant knew
he was carrying a narcotic drug
that he painstakingly tried to
conceal it under the spare
tyre. The trial Judge cannot
therefore be faulted for finding
that the Appellant knew he was
ferrying a narcotic drug.
As to the issue of
authority or excuse to possess
the narcotic drug, it was on the
authorities a burden to be
discharged by the Appellant.
From his evidence, he failed to
discharge that burden.
Consequently the learned trial
Judge was right in finding
Appellant guilty as charged and
convicting him.
Now, about the
inconsistencies referred to by
Lawyer for the Appellant, I
have looked at them very
closely. Indeed the learned
trial Judge himself drew
attention to them and stated
that he could not gloss over
them. As pointed out by the
learned State Attorney the issue
as to who asked Appellant what
question and who was the owner
of the narcotic drug did not go
to the root of the offence
charged. For an inconsistence
to have a bearing on the case of
the Prosecution, it must relate
to material evidence. Here, the
inconsistencies did not affect
the fact that Appellant had a
narcotic drug hidden beneath the
spare tyre in his booth. Since
the inconsistencies did not go
to the pith of the offence
charged, they cannot inure in
favour of the Appellant.
I do agree with
Lawyer for the Appellant that a
driver must not be found guilty
when a prohibited item is found
on a passenger in his vehicle.
However, each case is to be
determined on its peculiar
facts. In the case at bar, the
prohibited item was concealed in
a place where ordinarily only
the driver or his mate if any
could have access to. Also the
driver attempted to avoid
contact with the police. In my
humble view, if the bag had not
been concealed and the driver
did not attempt to avoid the
police, probably the decision
would have been different.
It is from all the
above that I hold that with the
greatest respect, I find no
merit in the appeal. The same
is hereby dismissed. The
conviction and sentence are
hereby confirmed.
(sgd.) M. H. LOGOH
JUSTICE OF THE HIGH COURT.
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