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Criminal law - Narcotic Drugs -
Section 23 (1) of Act 29/60 and
Section 1 (1) of PNDCL 236 -
Whether there was a
Conspiracy to import
Narcotic Drugs without - That
the said conviction was not
based on law and invited the
court to set aside
HEADNOTES
The facts of this case admit of
no controversy whatsoever. The
Police, acting on a tip off led
by then Superintendent Edward
Tabiri, went to H/No 348 at
Mempeasem near Legon and
cordoned it off. When the Police
succeeded to gain access into
the main house, they announced
their presence whereupon , Joel
Mejia Duarte Moises a.k.a Joel
Mejia was seen upstairs. Police
immediately arrested him and he
led them to his room.
Thereafter, searches were
conducted into other rooms in
the house. However, of
particular relevance are the
following incidents which led to
the involvement of the Appellant
herein.
Appellant herein together with
the drugs and all the items
retrieved from this Mempeasem
House were taken to the Police
CID Headquarters. -
HELD :-
For purposes of emphasis,
we confirm that the deportation
order made against the Appellant
by the learned trial Judge still
stands and must be executed at
the end of his sentence.The
appeal therefore fails in it’s
entirely and is accordingly
dismissed.
STATUTES REFERRED TO IN JUDGMENT
CRIMINAL OFFENCES ACT, 1960 ACT
29 Section 23 (1)
NARCOTIC DRUGS (CONTROL,
ENFORCEMENT AND SANCTIONS) LAW,
1990 (PNDCL 236)Section
1 (1)
Evidence Act, 1975 NRCD 323.
sections 18 (1) and (2)
CASES REFERRED TO IN JUDGMENT
Kamil v The Republic
[2011] 1 SCGLR 300.
Gligah & Atitso v The
Republic [2010] SCGLR 870 at 884
BOOK REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE, JSC:-
COUNSEL
AUGUSTINE OBOUR MINTA FOR THE
APPELLANT.
K. ASIAMA-SAMPONG, CHIEF STATE
ATTORNEY WITH HIM VICTORIA
ASIEDUWAA, SENIOR STATE ATTORNEY
FOR THE RESPONDENT.
DOTSE, JSC:-
The appellant herein was
charged and tried jointly with
two others, (namely Joel Mejia
Duarte Moises (A1) and Vasquez
Gerardo Duarte David (A3) at
large) on three counts,
convicted and sentenced by the
trial High Court presided over
by Ayebi J, (as he then was) on
13th day of April
2007 and sentenced to 20 years
IHL on all counts to run
concurrent.
The three counts which the
appellant and the others
referred to supra faced are the
following;-
COUNT 1
Conspiracy to import Narcotic
Drugs without licence issued by
the Minister of Health contrary
to Section 23 (1) of Act 29/60
and Section 1 (1) of PNDCL 236.
COUNT 2
Importation of Narcotic
Drugs without lawful authority
contrary to section 1 (1) of the
Narcotic Drugs (Control
Enforcement and Sanctions) Act,
1990, PNDCL 236.
COUNT 3
Conspiracy to commit crime
namely possessing Narcotic Drugs
contrary to Section 23 (1) of
the Criminal Act, Act 29, (1960)
and Section 2 of PNDCL 236.
BRIEF FACTS
The facts of this case
admit of no controversy
whatsoever. The Police, acting
on a tip off led by then
Superintendent Edward Tabiri,
who later testified during the
trial as PW1, went to H/No 348
at Mempeasem near Legon and
cordoned it off. When the Police
succeeded to gain access into
the main house, they announced
their presence whereupon (A1),
Joel Mejia Duarte Moises a.k.a
Joel Mejia was seen upstairs.
Police immediately
arrested him and he led them to
his room. Thereafter, searches
were conducted into other rooms
in the house. However, of
particular relevance are the
following incidents which led to
the involvement of the Appellant
herein.
During the search, the
Police requested A1 to invite
the person whom he claimed
invited him to Ghana and who
according to A1, owned the
things found in the house.
However, during the
telephone conversation, A1
started speaking Spanish to the
person at the other end,
whereupon the Police intervened
and requested that other person
to come over and bail A1.
Within thirty minutes A2, the
appellant herein was seen
entering the house. Upon seeing
the Police, he attempted to
retreat, but he was arrested by
the Police and sent upstairs.
His cell phone was seized and
when his contacts were scrolled,
his contacts were found to
contain BUDE which also appeared
on A1’s cell phone. This BUDE
has been identified to be the
same as Shamo also called
Vasquez who is A3.
On the same 24/11/2005, AI
and the Appellant herein
together with the drugs and all
the items retrieved from this
Mempeasem House were taken to
the Police CID Headquarters. The
following day 25th
November 2005, statements were
taken from A1 and the Appellant
with the assistance of Anthony
Osei (PW7), the Spanish
Interpreter. Evidence gathered
during the investigations and
adduced before the Court during
the trial indicated that the
Mempeasem residence was rented
for A1 and the Appellant to
reside in at the instance of A3,
who got one Grace Asibele, his
girlfriend to rent the said
facility for the use of both A1
and Appellant who resided there
until their arrest by the
Police.
ITEMS OF RELEVANCE TO THE CHARGE
SHEET FOUND IN THE HOUSE
1. Three bottles of
ammonia used as a precursor to
turn cocaine into crack.
2. One henkelman vacuum
machine used in compressing the
cocaine into compact
slabs/tablets.
3. Thirteen pieces of
hand gloves used to protect
hands during the processing of
the drug.
4. A quality of white
polythene wrappers used to wrap
the cocaine after it has been
compressed into tablets.
5. Royal Dutch
Airline (KLM) Cargo Stickers
used to stick the boxes after
the cocaine had been packed.
6. Brown
cellotapes that are used to wrap
the drug in order to isolate it
from air and to prevent
detection by the security.
7. A fitting bottle that
is used for testing and sniffing
of Cocaine.
8. Exercise books
including shorthand note book
showing record of sale of drugs
to individuals and
9. Two Nokia cell phones
showing contact names and other
related information.
Particulars of Offences Charged
a. Particulars to
Count 1
These state that the three
accused persons in or about
November, 2005 in Accra did act
together with a common purpose
to import into Ghana 588
kilos of cocaine a narcotic drug
without license issued by the
Minister of Health.
b. Particulars to
Count 2
These specify that, the
three accused persons did import
into Ghana 588 kilos of
cocaine, a narcotic drug without
license issued by the Minister
of Health.
c. Particulars to
Count 3
These also specify that
the three accused persons acted
together with a common purpose
to possess a narcotic drug
namely, cocaine.
CONVICTION AND SENTENCE BY TRIAL
HIGH COURT
After trial, in a well and
considered judgment, the learned
trial Judge Ayebi J, (as he then
was) convicted the appellant
herein and the others after
evaluating the evidence led as
follows:-
“On the totality of the
evidence adduced by both the
prosecution and the defence, I
am satisfied that the
prosecution has proved the guilt
of A1 and A2 beyond reasonable
doubt. I therefore convict
A1 on all the four counts
against him. A2 is also
convicted on courts 1 to 3.
“
It should be noted that,
the appellant herein is the A2
refereed to supra.
On sentence, the learned
Judge stated his reasons for the
imposition of the sentence as
follows:-
In Ghana now, we read of
arrest of drug traffickers
almost every week in the media.
So it cannot be gainsaid that
the incidence of drug
trafficking has engulfed the
whole country. In the case of
the accused in this case, it
appeared they have made Ghana a
distribution point as well,
hence the large quatity they
brought into the country. To
mark the abhorrence of decent
minded Ghanaians to the narcotic
business, I am minded to mete
out a sentence commensurate with
the severity of the offence to
the accused. That being so
(1) A3, the
master-mind of the business is
sentenced to 25 years IHL each
on counts 1, 2 and 3.
(2) A1 who was found
physically in possession of the
narcotic drug and items for
processing the Cocaine into
crack is also sentenced to 25
years IHL each on counts 1, 2, 3
and 4.
3. A2 who
joined business later in Ghana
is sentenced to 20years IHL on
counts 1, 2 and 3.
4. The sentences of A1
and A2 shall be deemed to
commence on 24th
November 2005 when they were
arrested and taken into custody.
In all cases, sentences will run
concurrently”
APPEAL BY APPELLANT TO COURT OF
APPEAL AND IT’S DISMISSAL
On the 9th June
2016, the Court of Appeal in a
unanimous decision dismissed the
appeal by the appellant herein
against both conviction and
sentence. In a well considered
judgment, the Court of Appeal
per Kusi-Appiah J.A dismissed
the appeal in the following
terms:-
“I am at a loss as to what
informed the appellants
contention that his conviction
was not based on law and invited
the court to set aside his
conviction and sentence and ipso
facto acquit and discharge him.
I must say that evidence
on record indicates that the
trial Judge after examining the
evidence before him from the
parties (i.e. prosecution and
defence/accused including
drawing up inferences and
deductions from the conduct of
the appellant, convicted the
appellant and two others on
circumstantial evidence and
imposed the sentence as stated
above. The trial Judge did not
err when he convicted the
appellant on the circumstantial
evidence. See Kamil v The
Republic [2011] 1 SCGLR 300.
Emphasis
As regards the imposition
of the 20 years IHL sentence on
the appellant, the Court of
Appeal reviewed the record of
appeal, and again speaking
through Kusi-Appiah J.A stated
as follows:-
“It is my view that the
trial Judge assigned very good
reasons for the exercise of his
discretion to impose the
deterrent sentence on the
appellant.” Emphasis
Dissatisfied with the
judgment of the Court of Appeal,
the appellant has appealed that
decision to this court on the
following grounds of appeal:-
GROUNDS OF APPEAL TO THE SUPREME
COURT
a. The Court of
Appeal erred in both law and
fact when it affirmed the
Appellant’s conviction and
sentence.
b. The evidence on
record is against the judgment
of the Court of appeal. Thus the
judgment of the Court of Appeal
is not supported by the
evidence.
c. Additional
grounds may be filed upon
receipt of the certified true
copy of the judgment.
ADDITIONAL GROUNDS OF APPEAL
1. The Court of
Appeal erred when it affirmed
that prima facie case was made
against the Appellant at the
trial.
2. The Court of
Appeal erred when it affirmed
the conviction of the Appellant
even though the prosecution
failed to prove the case beyond
reasonable doubt.
3. The Court of
Appeal erred by affirming the
conviction of the Appellant even
when the trial Judge had failed
to adequately consider the
defence of the Appellant.
DECISION OF THIS COURT
We have considered and
reviewed the entire record of
appeal. We have also considered
the written statements of case
of learned counsel for the
Appellant Augustines Obour and
learned Chief State Attorney for
the Republic/Respondent, K.
Asiama-Sampong, in respect of
all the grounds of appeal. We
have also reviewed the case law
especially the reliance on
circumstantial evidence in this
case to convict the Appellant
and the two others.
Under the circumstances,
we reiterate the statement by
this court in it’s unanimous
decision in the case of
Gligah & Atitso v The Republic
[2010] SCGLR 870 at 884 on
circumstantial evidence, as
follows:-
“It was generally accepted that
when direct evidence was
unavailable, but there were bits
and pieces of circumstantial
evidence available (as in the
instant case) and when those
were put together, they would
make stronger, corroborative and
more convincing evidence than
direct evidence”.
Emphasis
In the instant case, both
lower courts, i.e. the trial
High Court and the Court of
Appeal were therefore right in
making the necessary inferences
from the available evidence. See
sections 18 (1) and (2) of the
Evidence Act, 1975 NRCD 323.
For example, in this case,
the circumstantial evidence
against the appellant is
overwhelming. The following
narration will suffice to
establish the circumstantial
evidence against the appellant.
1. Appellant was
arrested in the Mempeasem House
contrary to his evidence that he
was arrested on the street in
front of the house. Reference
evidence of PW2 and PW3.
2. Appellant
claimed he was lodging in a
Hotel in Achimota since his
arrival in Ghana four days
before his arrest, but was
unable to lead the Police team
to the said hotel. On the
contrary, Appellant was found to
be resident in the Mempeasem
House.
3. Appellant has
been proven to have called both
A1 and A3, on his mobile phone.
Indeed A1 and Appellant knew
each other in Venezuela before
this case.
4. The prohibited
substance, cocaine was found in
the Mempeasem House where the
Appellant was found to be
resident at all material times.
Taking all the above factors and
pieces of evidence into
consideration, we are of the
opinion that there is indeed no
merit in this appeal and it is
accordingly dismissed.
In arriving at the above
decision, we have reviewed the
grounds of appeal and are of the
view that, for the reasons
stated in the Court of Appeal
judgment, it is considered
inappropriate to alter both the
conviction and sentence. There
is indeed the need to stamp out
this menace of dealing in
narcotics by both Ghanaians and
foreigners in Ghana. Deterrent
sentences are therefore in order
considering the quantity of
drugs involved and the
sophisticated method by which
the appellant and the others
operated in committing the
offence.
For purposes of emphasis,
we confirm that the deportation
order made against the Appellant
by the learned trial Judge still
stands and must be executed at
the end of his sentence.
The appeal therefore fails
in it’s entirely and is
accordingly dismissed.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
COUNSEL
AUGUSTINE OBOUR MINTA FOR THE
APPELLANT.
K. ASIAMA-SAMPONG, CHIEF STATE
ATTORNEY WITH HIM VICTORIA
ASIEDUWAA, SENIOR STATE ATTORNEY
FOR THE RESPONDENT.
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