HOME             SUPREME COURT JUDGMENTS

JUDGMENT

MRS. JOYCE BAMFORD-ADDO, J.S.C.:

This appeal arose out of the case of Sylvester Chuka Osunoh and four others including appellant who was 2nd Accused in the case. The charge sheet contains three Counts but the Count in  respect of which appeal has been brought relates to Count 3 and reads as follows:

"Count Three

Statement of Offence

Possessing Narcotic Drug contrary to Section 2(1) of the Narcotic Drugs (Control Enforcement and Sanction) Law 1990 (PNDCL 236)

Particulars of Offence

Sylvester Chuka Osunoh, George Bonsu @ Benjillo,

Henry Akoto, Gordon Amartey and Alexander Osunoh on the 27th March 1996 at Accra in the Greater Accra Circuit of the Republic of Ghana and within the jurisdiction of this Tribunal did have in your possession 417.0670 grammes of heroin a narcotic drug, without lawful authority.”

The facts are that on the 27th of March 1996 Gordon Amartey 4th Accused in the case and an administrative officer of the General Post Office, Accra collected an EMS parcel addressed to one Iddrisu Mohammed from the post office.  Upon collection of the parcel he took it to an office and put it in a disused fridge and he was later arrested by the Narcotics Central Board and the Customs Excise and Preventive Services (CEPS) officials who had mounted surveillance on him. When he was arrested he retrieved the parcel and led the officers to the Office of the third Accused Akoto to whom he handed over the parcel.  Akoto upon receipt of same also handed it to a stationary dealer and the boy at once put it in a box near him and closed it.  Akoto was also arrested and when questioned as to who owned the parcel he led them to 2nd Accused's shop and handed the parcel to 2nd Accused who took possession of it. Upon interrogation 2nd Accused in turn claimed that it belonged to one Mohammed who asked him to receive it from 3rd  Accused and to keep it until it was collected from him by 1st Accused, a Nigerian. He took the officers to a Hotel in Accra where he claimed 1st Accused was lodging but latter was not met. They then all returned to 2nd Accused Store where 1st and 5th Accused persons both Nigerians were met waiting, and 2nd Accused handed over the parcel to 1st Accused. All the five accused persons were arrested and taken to the Narcotic Boards office where the parcel was opened and was found to contain two books whose hard covers were packed with some substance later found to be heroin. Whereupon the five persons were charged with the three counts of the following offences:

Abetment of crime to wit unlawful importation of Narcotic Drug contrary to s.5(C) of the Narcotic Drugs (Control Enforcement and Sanctions) Law 1996 PNDCL 236 Unlawful importation of Drugs contrary to Section 1(1) of PNDCL 236 and Possessing Narcotic Drug contrary to Section 2(1) of PNDCL 236.  They were first put before the Greater Accra Circuit Tribunal but later the case was transferred to the Greater Accra Regional Tribunal for trial.  All five accused persons were tried together but 1st and 5th Accused who had by then absconded were tried in absentia, and they were convicted and sentenced.

The three Ghanaians  2nd , 3rd  and 4th  Accused persons appealed their convictions to the Court of Appeal.  In respect of the present Appellant the Court of Appeal upheld his appeal on the Abetment charge but affirmed the conviction on Count 3 i.e. unlawful possession of heroin and dismissed his appeal on that count.  He was sentenced to 10 years imprisonment.  Appellant Accused has further appealed to this court on the following grounds namely:

“1. That the Court erred in law when it held that the fact that the Appellant handled the parcel, later found to contain a narcotic drug, to wit, heroin, before handing it over to the actual owner of the said parcel constituted “possession” and is sufficient evidence to convict the appellant of the offence of possession of narcotic drug.

2.  The majority of the Court of Appeal which found the Appellant guilty on the charge of possessing a narcotic drug and dismissed his appeal against conviction on that charge, erred in law in relying on the alleged acts of suspicious conduct on the part of the Appellant, to conclude that he knew or ought to have known that the parcel in the case i.e. Exhibit "D" contained a narcotic drug.

3. That the Learned Judges of the Court of Appeal having found the trial court committed not just one but several very serious errors of law comprising straight misdirection's and misdirections by non-direction erred, in holding that the Appellant's conviction could be "saved" or maintained by the invocation of Section 5(1) of NRCD 323 and/or section 31(1) of Act 459.

4. Since the learned Judges of the Court of Appeal held that the cross-examination of the appellant, to which objection was taken by his counsel to no avail, was highly prejudicial to the case of the Appellant, they erred in law in not allowing his appeal against conviction.

5. The trial court erred in trying 1st and 5th accused persons in their absence and this error vitiated the whole trial.”

As I said earlier the 1st and 5th Accused persons together with the three others were all first put before the Circuit Tribunal but as soon as they were granted bail the 1st and 5th Accused persons, never appeared in court again.  When a nolle prosequi was entered at the Circuit Tribunal and the case was transferred to the Regional Tribunal they also failed to appear.  At the Regional Tribunal the attention of the Tribunal was drawn to the fact that 1st and 5th Accused were absent in court and counsel for the Republic then submitted that under Article 19(3)(a) of 1992 Constitution the two absent accused persons who were aware of the charges against them and of their pending trial and who had intentionally absconded from this country even before the entry of the nolle prosqui, were notified of their trial and could therefore be tried in absentia.  The court in the circumstances of this case, in my view, correctly ruled that the trial was to proceed in their absence.

At the trial the cautioned statements of 1st and 5th accused persons were tendered in evidence not objected to, and were received in evidence.  During the course of the trial the prosecution was permitted, even after objection from counsel for 2nd Accused, in cross-examination to ask certain prejudicial questions on the ground that they provided evidence of similar conduct, and fell under S.55 of the Evidence Decree 1975 (NRCD 323)

The prejudicial cross-examination starts as follows from p.23 and ends at p.30 of the record of proceedings:

“Q.  Can you tell the Court why it should be you who had to collect the parcel for Mohammed who had relatives in Ghana.

A.  It is because a lot of people know Benjillo.

Q.  I suggest to you that it is because you are a notorious narcotics dealer that he came to  you.

A.  It is not true …………………….. etc”

In this appeal counsel for Appellant complains about (1) the trial of  1st and 5th Accused Persons in absentia and (2) the admission of their statements in evidence. It was submitted that the trial of the accused persons together with 1st and 5th accused was a nullity because those absconded Nigerians were not notified of their trial before the Regional Tribunal as stipulated under Article 19(3) of the 1992 Constitution and should not have been tried in absentia.

Article 19(3)(a) says:

“The trial of a person charged with a criminal offence shall take place in his presence unless   .......................

(a) he refuses to appear before the court for the trial to be conducted in his presence after he has been duly notified of the trial.”

The two accused persons were notified of the charges against them and knew of their trial which started in the Circuit Tribunal in their presence but upon the grant of bail to them they absconded and refused thereafter to attend their trail, in fact they were not seen again at the Tribunal.  They demonstrated by this conduct that they were not prepared to appear for any trail even though they know they were to be tried for drug offences, and the transfer of the case to a higher court would not have changed their intention as stated above. Under the circumstances the mere transfer of the same case to a higher Tribunal, cannot be said to alter the fact that they had been earlier notified of their trial, nor be allowed to nullify the earlier notification given to them.

Since by their own conduct of leaving this jurisdiction, they refused to stand trial and intentionally prevented service of any further documents on them they cannot be allowed to benefit from their misconduct and must be held to have known of their trial at the time of notification.  In any case since they are not appellants herein, nor can their trial in absentia even if wrong (which is denied,) benefit the Appellant herein there is no need to belabour this point which is devoid of merit.  As to the other complaint that the cautioned Statement of 1st and 5th Accused persons admitted in evidence cannot be used against the Appellant, I am in entire agreement with counsel for Appellant on this issue.  Counsel submitted that the 1st Accused statement Exh. G was not evidence against 2nd Accused since according to him:

“... without the statement attributable to the 1st accused, and allegedly made on 28th March 1996 there would have been no hard evidence on which the Regional Tribunal could have convicted any of the accused persons or at any rate the Appellant."

Counsel's submission has two parts.  The first part is that evidence in the 1st Accused unsworn statement is no evidence against his client; and second that apart from the evidence in the said statement there is no evidence on which 2nd accused could have been convicted.  On the first arm of the submission counsel is perfectly correct.

In the case of Lawson v. Republic (1977) 1 GLR 63 holding (3) it was held as follows:

"if two persons were jointly tried together, unsworn statements made by each were generally only evidence against him who made them. And such an unsworn statement would be inadmissible evidence where (as in the instant case) it was made in the absence of the Appellant who denied it at the trial, and the co-accused repudiated it when cross-examined by the Appellant. Even if the unsworn statement had been made in the presence of the appellant, its admissibility would depend on what part of it he expressly or impliedly accepted. Dicta of Lord Atkinson in R v. Christie (1914) AC 545 at pp.554 and 555 - 556 PC of Lord Parker C.J."

6.  However if such a statement was repeated on oath at the trial and the maker is cross examined on it it would be admissible evidence against a co-accused.  This did not happen in this case so the evidence in the 1st Accused statement Exh.G incriminating the Appellant should not have been relied upon against Appellant.  Having said so can it be said also that apart from the said evidence there was no other evidence on record to support Appellant's conviction? The answer would become evident after a proper and thorough scrutiny of all the available evidence on record.   In considering the evidence against the Appellant on count 3, I would exclude the contents Exhibit G from consideration as regards any evidence contained therein against Appellant.

As regards the wrong admission of prejudicial evidence complained of, this matter was taken up on Appeal at the Court of Appeal, where counsel for Republic honourably conceded the point.   She however submitted that no miscarriage of justice can be said to have occurred as a result of the wrongful reception of the said prejudicial evidence and sought which she said should be made applicable to this case in aid S.5(1) of NRCD 323 which she  said should be made applicable to this case.

Section 5(1) of The Evidence Decree 1975 NRCD 323 says that:

"No finding, verdict, judgment or decision shall be set aside, altered or reversed on appeal or review because of the erroneous admission of evidence unless the erroneous admission of evidence resulted in a substantial miscarriage of justice".

Normally all relevant evidence is admissible, however the court ought to exclude evidence however relevant if it is prejudicial against an accused. See S.52 of the Evidence Decree 1975 (NRCD 323)

“S.52. The Court in its discretion may exclude relevant evidence if the probative value of the evidence is substantially outweighed by —

(b) the risk that admission of the evidence will create substantial danger of unfair prejudice or substantial danger of confusing the issues.”

In view of this provision the Tribunal should have disallowed the prejudicial cross- examination of the accused to the effect that he was a drug trafficker and consequently that evidence even though denied would be excluded from consideration of the case against Appellant.  See S.5(1) of NRCD 323 and also S.31 of the Courts Act 1993 (Act 459) whose various provisions are similar.

S. 5(1) of NRCD 323 as follows in:

“S. 5(1) No finding, verdict, judgment or decision shall be set aside, altered, or reversed on appeal or review because of the erroneous admission of evidence unless the erroneous admission of evidence resulted in a substantial miscarriage of justice.”

And S.31(2) of the Courts Act 1993 (Act 459) reads:

“31(2) The Court shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or that the point raised in the appeal consists 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 upon that charge or indictment."

The question left is this, is there enough evidence, despite the exclusion of the offending stated pieces of evidence, left on the record, to support the offence charged in count 3 against the Appellant? If yes the conviction should be affirmed.

Evidence in proof of a case normally is either direct and/or circumstantial.  The proof of “knowledge” or mens rea is not capable of direct proof but same may be inferred from established facts as stated in 5.18(2) of the Evidence Decree 1975 NRCD 323.

In this case the evidence in proof of the charge of unlawful possession of heroin in Court 3 against the Appellant consists of direct and also circumstantial evidence.  The proof of “knowledge” which is not capable of direct proof is established by reasonable inferences that can be made from established facts. The ingredients of the charge in Count 3 can be found in Section 2 of the Narcotic Drugs (Control Enforcement and Sanctions) Law 1990 PNDCL 236 which provides:

“2. Any person who without lawful authority proof of which shall be on him has in his possession or under his control any narcotic drug commits an offence."

The evidence is that Appellant was handed the parcel containing the heroin Exh. “D” by Akoto and he received same into his possession, he then handed it over to his secretary to record it in the receipt of letters and books.   So that physical possession is not in dispute.

However, to prove the charge of illegal possession of drugs it must also be shown that Appellant not only had physical possession but also knew of the contents of the parcel namely that it contained heroin.  In all the relevant authorities it has been held that possession connotes not only physical possession but knowledge of the nature of the thing possessed.

The Judges of the Court of Appeal were unanimous on this legal issue of "knowledge,”

plus physical possession.

In Warner v. Metropolitan Police Commissioner (1969) 2 AC 256 at 281 per Lord Reid:

“As a legal term "possession" is ambiguous at least to this extent there is no clear rule as to the nature of the mental element required.  All are agreed that there must be some mental element in possession but there is no agreement as to what precisely it must be"

Like the English authorities it has been decided by the Courts in this country that to sustain a charge under S.47(1) of Act 64 the prosecution must prove possession with knowledge of the nature and quality of the article possessed; in this case, there must be an awareness of the nature and quality of what is possessed, namely narcotic drug since physical possession without that requisite knowledge amounts to no offence.  In Amartey v. Republic (1964) GLR 256 Ollennu J.S.C. said:

“..... possession must be possession with knowledge of the nature and quality of the article ...... without that knowledge there is no legal possession which can support that charge”

The Amartey case was decided under the former Law Act 64 which has been replaced by the present PNDC L236.

Under the new law the possession of narcotic drug contrary to s.2(1) of  PNDCL 236 was considered in the case of Peter Yaw Ani v. The People, unreported judgment C.A. No. CRA 22/93 dated 25th May 1995.  There the Court of Appeal also relying on the Amartey case held that mere physical possession without the knowledge of the nature and quality of the article possessed, is no offence.  Said that court,

"The law on this point to be applied to the facts of this case is fully explained in the former case i.e. Amartey v. The State at page 261 as follows:

‘What is the possession, proof of which without move, makes a person guilty of an offence. Under the said Section 47(1) unless he proves that his possession is lawful. Upon a proper construction of the section the possession must be possession with knowledge of this nature and quality of the article, awareness that what is possessed is opium or Indian Hemp or residue from the smoking of Indian Hemp. Physical possession without knowledge is no offence. Without that knowledge there is no legal possession that is, in addition to proving physical or constructive possession they must go further to lead evidence which establishes that the defendant had the requisite knowledge or evidence from which it will be reasonable to presume that the defendant proved to be in possession well knew or ought to have known that the article he possessed was “opium or Indian Hemp.”

See also Rex v. Azu 12 WACA 486 at 487 and R v. Onuolia  (1963) 3 WA CA 88 and R v. Obiase (1938) 4 WACA 16.

What are the facts in this case from which evidence of knowledge on the part of Appellant as to the contents of the parcel, can be found or inferred.  On the 27th March 1996 when 4th Accused Amartey was arrested after collection of the parcel Exh. “D” he led officers to 3rd Accused Akoto after he was made to collect the parcel from a disused fridge in his office in which he had hidden Exh. "D". then he went with the officers and handed over the same parcel to Akoto, who also gave it to a stationary seller in front of his office to hide it in a wooden box. Also in Appellants office, when he was handed the parcel by Akoto, he also handed it over to lst Accused in the presence of the Narcotic Board Officials and realising that he was in trouble Appellant asked 1st Accused to give the officers "something". (see Exh. "H" and evidence of PW 4) If he did not know the illegal contents of the parcel, would he have made this request of lst Accused?  It should be noted that this was an attempt to get lst Accused to bribe the officials and that it was made even before the parcel was opened at the Narcotic Board Office to reveal the actual contents i.e. heroin hidden inside the covers of two books.   Is the behaviour of 2nd Accused under the circumstances the normal behaviour of innocent person receiving a parcel containing harmless children's books as it was claimed by Appellant to be the contents of the parcel?  The answer, as I find it, is No! In my opinion the only reasonable inference that can be made from the facts, is that Appellant must have known of the actual contents of the parcel namely heroin, in order to have behaved in the suspicious and guilty way and manner he did behave before the security officer.

Then according to Appellant he knew the addressee of the parcel Iddrisu Mohammed in U.S. in 1984 but was not a friend of his, only a casual acquaintance. That in 1994 Mohammed came to Ghana and visited him in his store. Also that in or about middle of March 1996 i.e. two weeks before 27th March 1996 Mohammed again visited him and introduced Akoto to him as a person who works at P & T Office, North Branch.

Mohammed according to Appellant told him that Akoto 3rd Accused, would collect a certain parcel for him from the post which would be passed on to him Appellant, and that he was to take charge of the parcel until it was collected by his Mohammed's brother i.e. lst  Accused, a Nigerian national.

Appellant said two weeks after this contact the parcel was handed over to him and when asked in cross examination whether he knew the contends of the parcel he was to receive and keep for Mohammed, he said he was told by former that it contained childrens book. He was asked why such a parcel would be handed over to a busy man like him to keep, when there were relatives of Mohammed in this country and he answered:

“It is because a lot of people know Benjillo.”

Is this fact a good enough reason why Benjillo should have been chosen to of all acquaintances of the said Mohammed to handle the parcel.  Was Akoto who works at the post office and arranged with Amartey to collect the parcel which was handed to him, not fit to keep that kind of children's books for Mohammed?  And what about Akoto handing over the parcel direct to 1st Accused the alleged Mohammed's brother who was then in the country: at the time but rather through only the busy Appellant?   One would ask — What was in it for the Appellant any way — what benefit would Appellant derive from accepting to carry out the request of Mohammed who was only a casual acquaintance to receive and keep such a low value parcel of children books?  Unless the Appellant had knowledge of the valuable contents of Exh. “C and C1” it is difficult to believe that Appellant a busy man and not a close friend of Mohammed would agree to collect and keep children's books, of not much value, for Mohammed gratuitously?  Upon these facts the reasonable inference that I find is that the Appellant knew of the actual contents of the parcel and its value which he was handling for Mohammed. Again the parcel was addressed to Mohammed Iddrisu and posted from Bangkok Thailand by one Tony Pisu.  When Amartey went to collect the parcel the particulars of which had already been supplied to him by Akoto, from P & T EMS. Office, he found out that the addressee had to identify himself before the parcel could be released, and since he was not the addressee he was asked to produce and authority note from the addressee before that parcel could be released to him Amartey.   Amartey reported this to Akoto and surprisingly within 24 hours the authority note from Mohammed who was said to have been away from the country was sent to the post office, by Fax to facilitate the release of the parcel to Amartey.   The fax message was purported to have been signed by Mohammed from Tamale Communication Center, and was tendered in Evidence a Exh. “M”.

Yet according to the Appellant, Mohammed was not in the country at the time Exh. “M” was sent from Tamale on or about 26th March.   Further, Akoto, said that Mohammed had told him that if he wanted him he was to go to the house of Appellant to find him.  If so to whom would Akoto necessarily report the necessity of Exh.  “M” for release of the parcel, when according to the evidence Amartey did not know Appellant at all.   The reasonable and irresistible inference is that Amartey must have told Akoto who in turn told Appellant.  And who was the person who sent Exh. "M"?  Again the logical and reasonable inference is that, Appellant procured Exh. "M" after the report to him that it was what was needed to get the parcel released.

This is because Mohammed according to the evidence was not present in Ghana to have signed Exh.  “M” Why then would anyone go to such length if he did not know the valuable illegal contents of the parcel? Surely if the parcel contained only children's books rather than heroin the matter would not have been treated with such quick  despatch by an interested party who knew of the contents of the parcel before it was actually opened and who I have held to be the Appellant because of his attempt to get the officials bribed earlier. The Court of Appeal based the proof of knowledge on correct inferences made upon available evidence, and therefore it would be wrong to ignore it and substitute any other inference in place of those correct findings. What amounts to inference is discussed in the case of Caswell v. Poweff Daffy Collieries (1940) AC 152 at 169 by Wright[LJ] thus:

"My Lords the precise manner in which the accident occurred cannot be ascertained as the young man was alone when he was killed.  The Court therefore is left to inference or circumstantial evidence.  Inference must be carefully distinguished from conjecture or speculation.  There can no inference unless there are objective facts from which to infer the other facts which is sought to establish.  In some cases the other facts can be ascertained with as much practical certainty as if they have been actually observed ......”

See also Nyamo v. Tarzan Transport and Another (1973) 1 GLR 8.  Held in holding (3)

“There is a distinction between pure conjecture and reasonable inference. A conjecture may be plausible but it is of no legal value for its essence is that it is a mere guess.  An inference in the legal sense on the other hand, is a deduction from the evidence and if it is a reasonable deduction, it may have the validity of legal proof. The attribution of occurrence to a cause is always or matter of inference..”

Crabbe J.S.C. observed thus at p.209 in the case of Asamoah v. State (1962) 2 GLR-207 held in holding (3) as follows:

“(3) .... It is not necessary for the prosecution to lead evidence of actual knowledge.  evidence from which the knowledge of the accused may be justifiably inferred is sufficient."

In the case of Nyams v. The Republic (1971) 2 GLR at p.140 the Court of Appeal per Azu Crabbe J.S.C. at p. 144 quoted with approval the statement of the law on circumstantial evidence stated in the case of R v. Taylor (1928) 21 Cr.App. Rep. 20 at 21 per Lord Hewart C.J. who said:

“It has been said that the evidence against the applicants is circumstantial; so it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial”

And finally Section 18(2) of the Evidence Decree 1975 NRCD 323 defines inference as:

“S. 18(2) An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in an action.”

Considering all the facts established in this case the Court of Appeal was right in making certain justifiable inferences which led the said court to conclude that the Appellant had knowledge of the contents of the parcel he possessed or received into his possession namely that he knew the parcel contained heroin. I have come to the same conclusion based on the evidence.  Therefore the necessary ingredient of  “knowledge” of what is possessed was proved in this case beyond all reasonable doubt.

The burden of proof on the prosecution having been discharged beyond reasonable doubt, it can not be correct to say that there was not, apart from the excluded evidence contained in Exh. "G', any other evidence to support the Appellant's conviction.   Indeed there was, as, I have endeavored to point out above, ample evidence to support the conviction, in which case an Appellate Court would endorse the findings of the lower Court.  In this case there is sufficient evidence, apart from the exclusion of the pieces of evidence as discussed earlier in this judgment, to support the conviction of Appellant on the charge of unlawful possession of narcotic Drug contrary to s.2(1) of Act 236 of 1990 and Appellant having failed to prove that he had lawful authority for possessing heroin was rightly convicted.

Since there has been no substantial miscarriage of justice in this case section 31(2) of Act 459, the Courts Act 1993, would be applied.   This section says that the court in an appeal shall dismiss the appeal if it finds that there has been no substantial miscarriage of justice in any case because there is evidence in support of the offence charged. s.5(1) of NRCD 323 also refers.

In the case of Yirenkyi v. The State (1963) 1 GLR p.66 in holding (3) the Court held:

"(3) Whatever the nature of the misdirection complained of (whether it be an omission by the judge to put the defence adequately to the jury, or a misdirection on a point of law) if it can be predicted that properly directed the jury must have returned the same verdict, then there being no substantial miscarriage of justice, the Appeal fails. Dicta of Lord Aikins in Lawrence v. The King (1933) AC 699 at 707 applied.”

For the foregoing reasons the Appeal is unmeritorious and is accordingly dismissed.

AMPIAH, J.S.C.:

 I agree.

KPEGAH, J.S.C.:

I agree.

ATUGUBA, J.S.C.:

I agree with the judgment of the court delivered by my learned and respected sister Bamford-Addo, J.S.C., dismissing the appeal.  however, I would like to express my concurrence with the dismissal of the appeal in my own words.

The principal issue in this case is whether the courts below were right in concurrently finding that the appellant had in his possession 417.06 kilograms of heroin, a narcotic drug without lawful authority.

Section 2(1) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law 1990 (PNDCL 236), enacts that:

“any person who without lawful authority, proof of which shall be on him, has in his possession or under his control any narcotic drug commits an offence.”  (e.s.)

The nature of possession contemplated by this offence received extensive and learned discussion in the judgments of the Court of Appeal which referred to several English and Ghanaian authorities on the question.  It is said that all these authorities establish the same principle, namely, that the section requires not the act of possession but also knowledge of the nature of the thing possessed.  But it is important to note that there is some element of difference as to the nature of the knowledge of what is possessed, depending on the wording of the statute concerned.  In England, it appears that if a statute in criminalising possession of a drug or other thing refers to that drug or thing directly et eo nomine then English ideas as to the legal elements of its possession are co-extensive with the expositions on the matter contained notably in Amartey v. the State [1964] GLR 256, SC and Nyameneba v. The State [1965] GLR 723, SC.

However, where the statute creates a term, uno flatu, to cover a wide range of drugs or things scheduled to the Act, then, as I understand the English cases, it is only necessary for the prosecution to prove that the accused had knowledge of the presence of the thing possessed but not the nature or quality of that thing. Thus in Director of Public Prosecutions v. Brooks [1974] AC 862, PC. the Board had to construe section 7(c) of the Jamaican Dangerous Drugs Law (1953) Rev., c 90), which provided as follows:

"Every person who  ... has in his possession any   ... ganja ... shall be guilty of an offence against this Law."

(The emphasis is mine)

It will be seen that the formulation of this offence is much the same as our section 47(1) of the Pharmacy and Drugs Act, 1961 (Act 64) (as then amended by the Pharmacy and Drugs (Amendment) Act, 1963 (Act 222), which provided that:

"No person shall have in his possession .... any opium or Indian hemp...." (The emphasis is mine)

On such wording, the Privy Council held, (as did the then Supreme Court in Amartey v. The State and Nyameneba v. The State (supra) that the law required, inter alia, that:

(i) “a defendant, before he can be convicted, must be shown to have had knowledge that he had the thing in question” and

(ii) a defendant must “before he can be convicted, be further shown to have had     knowledge that the thing which he had was ganja.”

(The emphasis is mine.)

It is true that their Lordships said they were reluctant to disturb the construction of the said Jamaican statutory provision, by the Jamaican Court of Appeal in R v. Livingstone (1952) 6 GLR 95 which had stood for over 20 years.  But the Board also stated that whilst the question as to what amounted to the actus of possession was “special to the facts of Livingstone’s case,” the questions about knowledge of the thing possessed and the nature and quality of the thing possessed  “are not special to the facts of Livingstone is case but deal with principles of law of general application.” (The emphasis is mine.)

In any case the Board even disagreed with the exposition of what constitutes the actus of possession in the Livingstone case.

However, when the English House of Lords had to construe section 1 of the Drugs (Prevention of Misuse) Act, 1964, its approach was different. Section 1(1) provides that subject to certain exemptions,

“...... it shall not be lawful for a person to have in his possession a substance for the time being specified in the Schedule to this Act  ......”

In Director of Public Prosecutions v. Brooks (supra), the Privy Council held that the Jamaican Court of Appeal in R v. Livingstone (supra) had wrongly relied on Warner v. Metropolitan Police Commissioner (1968) 2 All ER 356, H.L because, as Lord Diplock, who delivered the judgment of the Board said at p.865:

“The question of what are the mental elements required to constitute a criminal offence of having in one's possession a prohibited substance is a finely balanced one, as Warner's case itself shows. It turns on a consideration not only of the particular provision creating the offence but also of the policy of the Act disclosed by its provisions taken as a whole. The Jamaican legislation is not the same as that which was under consideration by the House of Lords in Warner’s case.”  (The emphasis is mine)

The import of the decision of the English House of Lords in Warner v. Metropolitan Police Commissioner (supra) on the question of the elements of possession of prohibited drugs though “a finely balanced one” as Lord Diplock put it in Director of Public Prosecutions v. Brooks (supra), was nonetheless, to my mind, vividly captured by Edmund Davies LJ, delivering the judgment of the Court of Appeal in R v Marriott [1971] 1 All ER 595. At p.597 he said:

"Not all members of the House of Lords expressed themselves in precisely the same way, but for the purposes of this present appeal the result of Warner's case may broadly speaking and (we hope) with accuracy be stated in this way:

“if a man is in possession, for example, of a box and he knows that there are articles of some sort inside it and it turns out that the contents comprise, for example, cannabis resin, it does not lie in his mouth to say I did not know the contents included resin'.  On the contrary, on those facts he must be regarded as in possession of it, and, if not lawfully entitled, would, therefore, be guilty of an offence such as that charged in the present case.

But what about a man who is undoubtedly in possession of a penknife which, as far as he knows, has no foreign matter on it at all, but, on the minute analysis to which it is subjected in the forensic laboratory, it then emerges: (a) that there is foreign matter adhering to the blade; and (b) that that minute foreign matter is in fact, cannabis resin? Does it follow as night follows day that such a man must necessarily be guilty of the grave offence of being in unlawful possession of the minute quantity of cannabis resin, or is it incumbent on the prosecution to establish that he had reason to think that at least there was some foreign matter on the blade or on other parts of the knife?

It might be urged that, if knowledge of the existence of some foreign matter is established, the decision in Warner’s case must lead to the conclusion that thereafter it would be no defence to say ‘Although I could see just a speck of stuff sticking to the blade, I did not know the speck was canabis.’  Perhaps the law does go as far as that.” (the emphasis is mine)

That English law recognises the necessity for proof of knowledge of the presence of the thing possessed but not its nature or quality is strenghtened by the decision of the English Court of Appeal in R v. Ashton-Rickardt [1978] 1 All ER 173.  There the court did not find any change in the law relating to possession of a controlled drug by reason of the introduction of the Misuse of Drugs Act, 1971.  Roskill LJ, delivering the judgment of the court held at p. 177 as follows:

"It is true that the language of s 5(1) and (2) of the 1971 Act is not precisely the same as that of s 1 of the 1964 Act, but the word 'possession' appears in both the statutory provisions.  It would be strange indeed if Parliament, being deemed to know in 1971 what the House of Lords had decided in Warner v. Metropolitan Police Commissioner in 1969, should have intended a different meaning to be given to 'possession' in the 1971 Act from that given by the House of Lords in Warner v. Metropolitan Police Commissioner when construing that word in the 1964 Act.  If that had been Parliament's intention, one would have expected to have found some very clear language to that effect in the 1971 Act.”

Accordingly his Lordship concluded at p. 178 that:

“It seems to us plain that there is nothing ... which in anyway alters the burden which rests on the Crown so that when they seek to prove unlawful possession of a controlled drug, proof of possession involves proof of knowledge by the accused that he had control of the ‘thing’ in question, as the House of Lords decided in Warner's case.” (The emphasis is mine)

The said English law on the question of the elements of possession in drug cases is put beyond doubt by the decision of the House of Lords in R v. Boyeson [1982] 2 All ER 161.  At p.163 Lord Scarman (in whose speech all other members of the court, following Warner v. Metropolitan Police Commissioner, concurred, said:

“Possession is a deceptively simple concept.  It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control. You may possess a thing without knowing or comprehending its nature; but you do not possess it unless you know you have it.”

(The emphasis is mine.)

Is English law (as stated in R v Boyeson (supra) applicable to the construction of section 2(1) of our Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236)? It provides:

“2(1) Any person who, without lawful authority, proof of which shall be on him has in his possession or under his control any narcotic drug commits an offence." (The emphasis is mine)

Section 9(1) of the Law defines a narcotic drug as:  “any of the substances specified in the Schedules to this Law whether in its natural or synthetic form.” (The emphasis is mine) It is apparent from these provisions that they are substantially similar to those of section 1 of the English Drugs (Prevention of Misuse) Act, 1964, (supra).  I do not think that the words “or under his control” were meant to alter the law relating to prohibited drugs.  The Memorandum to the Law states as follows:

"The purpose of this Law is to bring under one enactment offences relating to illicit dealing in narcotic drugs and to further put in place provisions that will prevent illicit narcotic drug dealers benefiting from their crimes.

In view of the rising incidence of narcotic drug abuse in the country and the threatening dimensions that illicit narcotic drug dealing has taken internationally, it has become necessary to revise the existing laws on narcotic drugs by clearly spelling out the offences and providing realistic and deterring punishments in respect of them” (The emphasis is mine)

To my mind, the Law is substantially a consolidating enactment.  In Boulter v. Kent Justices [1897] AC 556 at 573 HL Lord Davey said that a consolidating Act is:

“ … the last place in which you would look for a substantive and important change in the law … I think that the words used .... must be interpreted in the same sense as that in which they are used in the repealed sections." (The emphasis is mine.)

Similarly in Grey v. inland Revenue Commissioners [1960] AC 1 at 13

Viscount Simonds said:

"My Lords, the principles applicable to the construction of a consolidating Act are not in doubt. The presumption is that such an Act is not intended to alter the law, but this prima facie view must yield to plain words to the contrary.”  (The emphasis is mine)

The exposition of the law as to the elements of possession of a prohibited drug in Amartey v. The State and Nyameneba v. The State (supra) did cover a case of constructive possession. But in Sewononim alias Atuahene v. The Republic [1976] 1 GLR 15 Osei-Hwere J (as he then was) held at p.18 (though he referred to Amartey v. The State) that section 47(1) of the Pharmacy and Drugs Act, 1961 (Act 64) as amended by the Pharmacy and Drugs (Amendment) Act, 1963 (Act 222), did not cover a case of constructive possession.  At the time Sewononim @ Atuahene v. The Republic way way decided, the decision in Amartey v. The State though a decision of erstwhile Supreme Court, was not binding stricto sensu on the High Court: see In re Agyepong (Decd); Donkor v. Agyepong [1973] 1 GLR 326, CA.  At that time, Republic v. Munkaila [1996-97] SC GLR 445 which vindicated the applicability of the doctrine of constructive possession to drug cases, did not exist.  When therefore in 1990 the Legislature determined “to revise the existing laws on narcotic drugs by clearly spelling out the offences”  it, in my opinion, found it necessary to insert the words: “has in his possession or under his control any narcotic drug” in section 2(1) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236).  It would be invidious and metaphysical to hold that those new words were meant to discount the element of guilty knowledge of the thing possessed since the retention of the words “has in his possession”, would still in one breath import that element, that element being uniformly required by the superior court decisions that had preceded the enactment of PNDCL 236:

see particularly Amartey v. The State, Nyameneba v. The State (supra), and Lanquaye v. The Republic [1976] 1 GLR 1.

It is therefore clear from the foregoing that the additional requirement (as laid down by case law) that the accused should know the nature and quality of what he possesses, unlike the English scenario, was imported into and preserved by PNDCL 236.  Even English law experienced difficulties in discounting that element in drug cases. Thus in the leading case of Warner (supra), Lord Pearce said at p.388:

"I think that the term 'possession' is satisfied by a knowledge only of the existence of the thing itself and not its qualities, and that ignorance or mistake as to its qualities is not an excuse. This would comply with the general understanding of the word "possess.” Though I reasonably believe the tablets  which I possess to be aspirin, yet if they turn out to be heroin I am in possession of heroin tablets. This would be so I think even if I believed them to be sweets.   It would be otherwise if  I believed them to be something of a wholly different nature.  At this point a question of degree arises as to when a difference in qualities amounts to a difference in kind.”  (The emphasis is mine.)

Lord Guest in the Warner case fully gave vent to the inchoate nature of the English principle that the English Act required knowledge of the presence of the thing possessed but not its nature or quality. He said at p. 385:

"This construction is to import the element of mens rea into the offence because it requires knowledge of the existence of the very thing or res which is the subject of the charge.  I may ask — Why stop there? Why not require also knowledge of the quality of  the substance because it is the possession of the prohibited substance that is the offence under the Act?”  (The emphasis is mine.)

And Lord Morris also said at p. 376 as follows:

“Accepting that the words 'to have in his possession a substance" carry with them an involvement of knowledge, I could have understood a submission that in a prosecution under s 1 of the Act of 1964 the prosecution must both prove that someone with knowledge has possession of a thing and also prove that he knew what was the quality of the thing, i.e., that the thing was or contained a substance specified in the Schedule to the Act of 1964.”

These statements would be squarely in line with the principle enunciated in Amartey v. The State and followed in Nyameneba v. The State (supra), if they are intended to refer to the factual nature or quality of the thing possessed as opposed to its legal nature. No one would contend that an accused person should be shown to have known what constitutes the law before he can be held liable to it.  Ignorantia juris haud excusat: see section 29(2) of the Criminal Code. 1960 (Act 29).  The question whether a substance is what it ordinarily is, is a question of fact to be ascertained not through legal knowledge but often through scientific chemical analysis. When its factual nature is thus ascertained then the question whether it is a prohibited drug becomes a question of law.

Ghanaian law punishes despite ignorance of the latter but exculpates for ignorance of the former.  This is the crux of section 29(1) of Act 29.  This is the distinction succinctly drawn in Nyameneba v. The State (supra) at p.728.

The common theme in Warner was that the element of mens rea must be kept within the limits earlier set out in this judgment since the enactment intended absolute liability for possession of prohibited drugs.  But as aptly stated by the Privy Council in Lim Chin Aik v. R [19631 AC 160 at 174:

“But it is not enough in their Lordships" opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations.  That means that there must be something he can do, directly or indirectly,.... which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.”

And Lord Wilberforce also said in the Warner case at p. 391:

“This legislation against a social evil is intended to be strict, even severe, but there is no reason why it should not at the same time be substantially just.”  (The emphasis is mine)

Ghanaian criminal jurisprudence shares all the foregoing judicial sentiments and crystallises them legislatively.   Hence section 4 of the Criminal Code, 1960 (Act 29) under “PART 1 — GENERAL PROVISIONS” provides as far as relevant, as follows:

“4.  The following general rules shall be observed in the construction of this Code, namely —

(a) This Code shall not be construed strictly, either as against the State or as against a person accused of any offence, but shall be construed amply and beneficially for giving effect to the purposes thereof.”  (The emphasis is mine.)

Part 1 of Act 29 covers sections 1-29 thereof.  Section 29(1) provides:

“A person shall not be punished for any act which, by reason of ignorance or mistake of fact in good faith, he believes to be lawful. " (The emphasis is mine.)

And section 5 also provides:

"Whenever under the provisions of any law for the time being in force other than this Code any offence is created, this Part shall apply, except in so far as a contrary intention appears, to the offence as it applies to offences under this Code." (The emphasis is mine)

I am constrained to think that if the English Drugs (Prevention of Misuse) Act, 1964 had contained these benign and generous provisions, Warner would have been decided the same way as our courts did in Amartey v. The State, Nyameneba v. The State and Lanquaye v. The Republic (supra).  I can find nothing in PNDCL 236 which requires a court to hold that “the legislature imposed strict liability merely to find a luckless victim.”  On the contrary, by dint of section 4 of the Criminal Code, 1960 (Act 29), that Law prima facie, cannot be construed strictly.  Once again, as the Memorandum to PNDCL 236 shows:

“The purpose of this Law is to bring under one enactment offences relating to illicit dealing in narcotic drugs” and to “prevent illicit narcotic drug dealers benefiting from their crimes.”  A person who does not even know the nature and quality of the substance he possesses cannot be said to engage in “illicit dealing in narcotic drugs” but is merely  “a luckless victim” whom our legislature, prima facie, does not hold to ransom.

From all the foregoing, I hold that on a charge of possessing a narcotic drug under PNDCL 236 the prosecution must prove: (i) custody or control of the drug by the accused; (ii) knowledge of the presence of the drug: see Warner v. Metropolitan Commissioner  R v. Boyeson (supra) and Akosah v. The Republic [1979] GLR 250; and (iii) knowledge of the nature and quality of the drug possessed.  I hasten to say that proof of any of these ingredients may be actual or constructive: see the following cases earlier referred to, i.e. Republic v. Munkaila, Warner v. Metropolitan Police Commissioner, R v. Marriott, R v. Boyeson, Akosah v. The Republic, Amartey v.  The State, Nyameneba v. The State and Lanquaye v. The Republic. I need hardly say that the English authorities cited must be read mutatis mutandis.  As to the proof of the said ingredients the court in Amartey v. The State (supra) at p.261 per Ollennu J.S.C. stated as follows:

“What is the possession, proof of which, without more, makes a person guilty of an offence under the said section 47(1), unless he proved that his possession is lawful. Upon proper construction of the section, the possession must be possession with knowledge of the nature and quality of the article; awareness that what is possessed is 'opium or Indian hemp" or 'residue from the smoking of opium or Indian hemp.' Physical possession without that knowledge is no offence. Without that knowledge there is no legal possession which can support the charge.  Therefore to succeed on such a charge, the prosecution must prove legal possession; that is, in addition to proving physical or constructive possession, they must go further to lead evidence which establishes that the defendant had the requisite knowledge, or evidence from which it will be reasonable to presume that the defendant proved to be in possession well knew, or ought to have known, that the article he possessed was ‘opium or Indian hemp' …”

I am of the opinion that once the ingredients of the offence of possessing a narcotic drug, ut supra, permit of actual or constructive proof, the objects of the legislation can be attained, contrary to the fears expressed in Warner v. Metropolitan Commissioner and such construction is ample and beneficial for the purpose thereof, within the general intendment of section 4 of Act 29 the innocent will be protected and rascals punished.

In this case, there is clear evidence that the appellant had had actual physical custody and thereafter, control of the parcel containing the heroin.  But is there also “... evidence which establishes that the defendant had the requisite knowledge or evidence from which it will be reasonable to presume that the defendant proved to be in possession well knew, or ought to have known that the article he possessed” was heroin?  Counsel for the appellant, meticulously fighting his case, relied on a dictum of Lord Morris in Warner’s case (supra) at p. 375 that:

"If there is some momentary custody of a thing without any knowledge or means of knowledge of what the thing is or contains then ordinarily I would suppose that there would not be possession.” (e.s.)

Alternatively he relied on a statement, in Professor Glanville Williams' book on Criminal Law, about a court holding that a defendant” did not have a sufficient substantial relation to the thing to be accounted possession. (e.s.) The evidence on record, however, discounts any suddenness about the appellant's possession of the article.   This was a package for which he had waited for about two weeks before its arrival and the circumstances were such that his receipt of it was not innocent, thus rendering the quantum of his “relation to the thing” irrelevant.   In any case in Director of Public Prosecutions v. Brooks (supra) the Privy Council warned of the dangers of relying on the technical notions of legal possession formulated by writers such as Pollock and Wright.  On the other hand in Warner’s case it was acknowledged that a defendant's relation to the thing possessed was relevant to the issue of his knowledge or means of knowledge that he, in fact, possessed the thing in question. 

Knowledge of the nature and quality of the thing possessed being a question of the state of the mind, resort is often had to the circumstances surrounding and the explanations given by the accused, for the possession of the thing in question.   Thus in the South African case of R v. Langa (1936) SALR (CP Div) 158 Watermeyer J held the view that guilty knowledge could be inferred from the fact that the accused took the suitcase to a witness by night and asked him to keep it, and that on arrest he told an implausible story about the suitcase and later in the box denied all knowledge of it.

In DPP v. Brooks (supra), the appellant was the driver of a van in which large quantities of ganja in sacks were found.  The Privy Council held at p. 867 that:

“Upon all the evidence and in particular the fact that he and other occupants of the van attempted to run away as soon as they saw the uniformed police approaching, the magistrate was, in their lordships view, fully entitled to draw the inference that the defendant knew what he was carrying in the van.” (e. s.)

It is significant that there was no evidence suggesting that the appellant had opened the sacks at any time. In R v. Ashton-Rickardt [1978] All ER 173 the court per Roskill LJ observed at p. 175 as follows:

“At the trial the appellant gave evidence that on the day before his arrest, he had met a man, whom he described as a Scotsman named Bruce and whom he claimed to have known some two years previously; that Bruce was a 'hippie' type and had spent the night in the appellant's lodgings at the appellant's invitation; that he remained there alone the following day and that Bruce had asked him if it would be all right to make up a reefer. He had not done so in the appellant's presence, or to his knowledge. Later he gave Bruce a lift to the motorway; his defence was that Bruce must have leaned over and put the reefer into the car door pocket as a gesture of thanks, when the appellant was out of the car getting some petrol.  Not surprisingly, the jury disbelieved that somewhat improbable explanation.

Accordingly, there can be little doubt that this man was in possession of a controlled drug and, therefore, was liable to be convicted.”  (The emphasis is mine.)

Applying these tests to the present case, a close study of the facts reveals that the appellant claims that at the time of the arrival of the parcel, his friend Mohammed Iddrisu, its alleged owner, was in and yet out of Ghana. At page 13 of the record, the third prosecution witness said:

“... The second accused said, 'the parcel was for a friend one Alhaji Iddrisu Mohammed, who asked him to keep it for him. He added that we should wait; that he would soon come for the parcel.”

(The emphasis is mine.)

At page 22 of the record, between lines 29-31, the appellant testified under cross-examination as follows:

“Q. You told the court that you took the police to Mohammed's house, where is the  house?

A.  Assurance Hotel."

At page 21 between lines 14 - 21 the appellant said:

“... I also instructed my secretary to give the parcel to Mohammed when he comes ... I was informed that I was being arrested for the parcel which had been brought. They asked about the ownership of the parcel.  I therefore took the three men and others to the house of Mohammed .... We did not meet Mohammed.  I called my office and I was informed that two persons had come to collect the parcel meant for Mohammed.” (The emphasis is mine.)

It is quite clear from the foregoing that at the time the illicit parcel arrived in Ghana, the alleged Mohammed Iddrisu, its alleged owner, was in Ghana. Yet at p.29 of the record between lines 4-14 the appellant testified under cross-examination as follows:

“Q. You said you knew Iddrisu Mohammed and that at the time the parcel came he had travelled.?

A.  yes.

Q.  Look at exhibit M whose signature is on it?

A.  Iddrisu Mohammed.

Q.  Look at the top right hand corner of the statement. What date is on it.

A.   26 March 1996.

Q.   This was dated at a time when he was supposed to be out of the country.

A.   I cannot tell whether Iddrisu Mohammed was in the country.

Q.  When did he tell you he was going to travel?

A.  Two weeks before the parcel was brought.

Q.  When did the parcel arrive?

A.  I saw the parcel on 27 March 1996 but I do not know when it came.”

It is, indeed, demonstrable from the record of appeal that Mohammed Iddrisu was one and the same person as Chuka Osunoh Sylvester (the first accused).  In arriving at this conclusion, I discount his statement exhibit G as inadmissible against the appellant. But in the appellant's statement, exhibit H, dated 28 March 1996, Mohammed Iddrisu informed him that he was travelling to Europe and that the expected parcel should be given to his said brother Chuka.  (It is indisputable from the record that the name Chuka is the shorter form of Chuka Osunoh Sylvester.)  This was about two weeks earlier. That works out to about 14 March 1996.  It is significant that according to the record of appeal that was the first time in 1996 that the appellant saw the alleged Mohammed Iddrisu.  By strange coincidence, the fifth prosecution witness (the investigator) testified that Chuka's Nigerian passport showed that he entered Ghana on 15 March 1996. In the said exhibit H, the appellant stated:

“Yesterday, about 10.30 am, I had a telephone call from Mr. Akoto that the parcel had arrived and I rang Chuka in his hotel and informed him that he should come to my shop at 12. 00 pm to collect the parcel. ”

So clearly the appellant would like to be believed that because Mohammed Iddrisu was not in the country the person to whom he had to deliver the parcel was Chuka. Yet in his viva voce evidence, the relevant excerpts of which I have earlier set out (supra), the person to whom the parcel belonged was Mohammed Iddrisu and he had instructed his secretary “to give the parcel to Mohammed when he comes," and he, indeed, took the police to the Assurance Hotel to look for the said Mohammed Iddrisu and not Chuka.  This certainly confirms the veracity of the third prosecution witness's evidence, earlier set out, namely:

“the second accused said the parcel was for a friend one Alhaji Iddrisu Mohammed, who asked him to keep it for him. He added that we should wait that he would soon come for the parcel.”

How could Chuka who was called by the appellant on phone to come for that parcel metamorphose into Mohammed Iddrisu who “would soon come for the parcel”? It is also significant that on failing to meet Mohammed Iddrisu at the Assurance Hotel, the appellant later handed over the parcel to the said Chuka (the first accused) and not to the fifth accused who was with Chuka at the time.

In the appellant's words, at p. 21 of the record between lines 24-25:  “... I gave the parcel to the first accused who looked at it and said that was the parcel.” (The emphasis is mine.) And further at line 31 thereof the appellant said, when the parcel was opened and the heroin discovered, “the first accused claimed ownership.” This tallies with the evidence of the third prosecution witness at p.13 of the record between lines 28-32 as follows:

“... the second accused told me the first accused was the owner of the parcel ... The second accused handed the parcel to the first accused. The first accused examined the parcel and said that was the correct parcel he was expecting.”

(The emphasis is mine.)

It is significant that Chuka (the first accused) never denied the allegation of the appellant when he said it to his face that he (Chuka) was the owner of the parcel. Certainly, if Mohammed Iddrisu were a different person from Chuka the latter would have said so at the time. He did not say so because he Chuka is one and the same person as Mohammed Iddrisu.

It is crystal clear that whether as Mohammed Iddrisu or Chuka, this magical personality was a Nigerian national.  This Nigerian national was expecting a parcel from Canada (which metamorphosed into Bangkok) and the parcel was, for inexplicable reasons, so incapable of direct postage to his brother Chuka in Nigeria that the venue had to be Ghana. And even then this parcel was so incapable of being collected by Mohammed Iddrisu or Chuka from the Post Office in Ghana that another Ghanaian, the third accused, was to do so and thereafter could only be received immediately from the second appellant by the Nigerian national at a fabrics vending shop.

In Lockyer v. Gibb [1966] 2 All ER 653 the accused had been in a café with some people when the police came in.  A man, whom apparently she did not know, gave her a bottle containing tablets "to look after for him."  She put them at the bottom of her shopping bag and when she went out she was stopped by the police.  She was prosecuted for being in possession of a scheduled drug. The magistrate held that there was a possibility that she did not know that the tablets contained any of the scheduled drugs.  Commenting on  these facts, Lord Reid observed at p.369 of Warner's case that:

“She may have been a very stupid woman, for I would think that any normal person being given a bottle of tablets in such circumstances would know perfectly well that the tablets must contain prohibited drugs which the man did not want the police to find in his possession.” (The emphasis is mine.)

Similarly in the circumstances of this case, any normal person would know that there was something illicit in the parcel which Mohammed Iddrisu, be he one or two persons, did not want to be found in his possession.  Certainly the fact that Mohammed Iddrisu as well as Chuka, be they the same person or not, is or are Nigerian(s) of ordinary standing, would in Ghanaian social reckoning  portend a danger signal to the appellant. The falsehood of Mohammed Iddrisu's split personality was known on the facts to the appellant, who in his statement and viva voce evidence, tried, with conflicting slips, to maintain.  He therefore consciously, was a criminal recruit and front man of the said Mohammed Iddrisu.  He did not therefore act stupidly, simpliciter.  I therefore disagree with his counsel's submission that the Court of Appeal in this case, like Bramwell B, required of the reasonable man: “the strength of Hercules, the wisdom of Ulysses and the foresight of a Hebrew prophet.” (The emphasis is mine.)

The deliberate criminal collaboration of the appellant in the matter is further evidenced by the fact that he asked Chuka to give something to the two customs officials after he had been arrested.   In his statement exhibit H, the appellant said:

“I made a call on our way and had a response that Chuka and his brother were waiting in my office.  I rushed to the office .... and with two Customs personnel, and introduced them as P & T personnel who had brought the parcel.  I requested from Chuka to give something to them but he said he had nothing but would see them later.”

It is true that the appellant had, before his arrest, told the fourth prosecution witness that he would "see" him “if he was able to contact the addressee.”  However, his request to Chuka “to give something” to the Customs officials at a time he was under arrest, was plainly a corrupt act, inconsistent with the conduct of an innocent man.  It is also quite significant that though the appellant, upon his arrest, gave the impression that he did not know the contents of the illicit parcel yet under cross-examination, at page 21 between lines 38-39 and at page 22 between lines 1-2 he testified as follows:

“Q.  Did Mohammed tell you the contents of the parcel?

  A  Yes.

Q.   What did he say were in the parcel?

A.   Some pamphlets and some things on children."

Since there is nothing illicit about “pamphlets and some things on children” it is amazing that upon arrest, the appellant gave the impression that he did not know the contents of the parcel, if really the legendary Mohammed Iddrisu told him that those were the contents.  Matched against this, however, is the appellants’ statement, exhibit H, in which he said:

“Finally I would like to say that all what I did was to help a friend in taking delivery of his parcel without any knowledge about the contents whatever.” (the emphasis is mine)

It can therefore be clearly inferred that the appellant knew of the contents of the parcel. It can only mean that the appellant was not willing to tell the real truth about the contents of the parcel.  Since it is clear that he knew of its real contents and those real contents were heroin, it follows that the appellant did know, at the time he received the illicit parcel, that the same contained heroin.

This case demonstrates how the further requirement in Ghanaian criminal law, but which English law rejects, that the accused must be shown to have in addition to knowledge of the presence of the drug possessed, knowledge of its nature and quality, does not frustrate the objects of the legislation, and vindicates lord Pearce's optimism expressed at p.388 of Warner's case as to the outcome when:

“... a question of degree arises as to when a difference in qualities amounts to a difference in kind. That is a matter for a jury who would probably decide it sensibly in favour of the genuinely innocent but against the guilty” (The emphasis is mine)

In this vein, for example, a contention that one did not know the nature and quality of the drug possessed is not likely to be taken seriously if the accused had a reasonable opportunity of ascertaining the same but neglected or opted not to so.  Certainly, it is central to the whole idea of criminalising the possession of narcotic drugs that, Caveat possessor.  If this were not so,  compliance with the legislation would depend upon the whims and caprices of the accused. An accused person ought fairly to be protected under the criminal law but not pampered or aided in his criminal conduct and that is the crux of section 4 of the Criminal Code, 1960 (Act 29).

The appellant's counsel has submitted that on the facts of this case, the proviso to section 31(2) of the Courts Act, 1963 (Act 459), is inapplicable. I accept and adopt his submission regarding the correct application of that proviso namely, that:

“The provisions of section 31(2) of Act 459 are not fundamentally different from the provisions of section 406(1) of the Criminal Procedure Code, 1960 (Act 30), and both are designed to achieve the same object.   In Ebgetorwokpor v. The Republic [1975] 1 GLR, 485, the Court of Appeal held that for section 406(1) of Act 30 to be applicable, the court must be satisfied that if the offending evidence were excluded on a proper direction, it must be possible to say that the jury must inevitably or certainly have returned the same verdict.  If it was not possible to say this, the conviction could not stand.

In this case, .... the proper judicial approach should be whether it is possible to say that if the many misdirections had not taken place, the tribunal which was also the jury ... would inevitably or certainly have convicted the appellant. (The emphasis is mine)

I hasten to add that the principle is the same whether the misdirection is as to evidence or some other matter.

Applying this principle, I am of the view that in this case “it is possible to say that if the many misdirections had not taken place, the tribunal which was also the jury … would inevitably or certainly have convicted the appellant.”  In this regard, English law is the same as ours.  In the celebrated case of Warner v. Metropolitan Police Commissioner (supra) the facts were that the appellant, who was a floor-layer by occupation, sold scent as a side-line. He went to a café, where on inquiry whether anything had been left for him, the proprietor told him that there was something for him under the counter. The appellant found two boxes there which, according to his evidence, he took without looking inside the smaller box, assuming that it also contained scent.  A police officer stopped the appellant when driving his mini-van.  In the smaller of two boxes were found twenty thousand tablets containing amphetamine sulphate, a prohibited drug. The larger box contained scent.  The jury were misdirected that absence of knowledge on the part of the appellant of what the smaller box contained went only to mitigation. In the House of Lords, Lord Reid said at p.370 as follows:

“So it remains to consider whether this is a proper case for the application of the proviso as amended by s.4 of the Criminal Appeal Act, 1966. Taking into account the prevarications of the appellant before he produced his final story and the whole circumstances, I cannot believe that any reasonable jury would accept that story.  If they did not, they would be certain to return a verdict of guilty. So in my judgment there has been no miscarriage of justice and I would, therefore, dismiss this appeal.”

At p. 390-39 Lord Pearce also said:

“The appellant has, ... been deprived of the chance of putting before the jury a defence which was in theory open to him on the facts of this case; but the evidence against him was so strong that no jury properly directed would have acquitted him.  In my opinion, therefore, the proviso should be applied and I would dismiss the appeal.”  (The emphasis is mine)

At p.395 Lord Wilberforce also said:

“If the direction was defective, the facts were such in my opinion that a properly directed jury must have found the accused guilty and I would apply the proviso.” (The emphasis is mine)

Even in Okorie @ Ozuzu v. The Republic (1974) 2 G.L.R. 272 GA where it was contented on appeal that the admission of the appellant's statement infringed a constitutional provision, the Court of Appeal upheld that contention, expunged the said statement but sustained the conviction on the residue of the evidence on record.

In conclusion, therefore, I would hold that in this case though there were misdirections, “the facts were such .... that a properly directed jury must have found the accused guilty and 1 would apply the proviso” and dismiss the appeal.

SAPONG, J.S.C.:

I also agree.

COUNSEL

Mr. Peter Ala Adjetey for the Appellant.

Appellant in person.

Mr. Osafo Sampong, Chief State Attorney for Respondent.

I.W.