BONSU alias BENJILO AND OTHERS vs. THE REPUBLIC [1997-1998] 2 GLR 598

CASES REFERRED TO

(1) Munkaila v The Republic [1995-96] 1 GLR 367, SC.

(2) Anang v The Republic [1984-86] 1 GLR 458, CA.

(3) Zortovie v The Republic [1984-86] 2 GLR 1, CA.

(4) R v Harris [1927] 2 KB 587; 20 Cr App R 144, CA.

(5) Gyabaah v The Republic [1984-86] 2 GLR 461, CA [p.607] of [1997-1998] 2 GLR 598 (6) R v Wright (1976) 62 Cr App R 169, CA.

(7) R v Ashton-Rickhardt [1978] 1 WLR 37; [1978] 1 All ER 173; (1977) 65 Cr App R 67, CA. (8) R v McNamara (1988) 87 Cr App R 246, CA.

(9) Warner v Metropolitan Police Commissioner [1969] 2 AC 256; [1968] 2 WLR 1303; [1968] 2 All ER 356, HL.

(10) R v Lewis (Garreth) (1988) 87 Cr App R 270, CA.

(11) R v Boyesen [1982] AC 768; [1982] 2 WLR 882; [1982] 2 All ER 161, HL.

(12) R v Bland (1988) Crim L Rev 41, CA.

(13) Amartey v The State [1964] GLR 256, SC.

(14) Commissioner of Police v Sarpey and Nyathmekye [1961] 1 GLR (Pt II) 756, SC. (15) Yirenkyi v The State [1963] 1 GLR 66, SC.

(16) Boateng II v The Republic [1974] 1 GLR 214, CA.

(17) Lawson v The Republic [1977] 1 GLR 63.

(18) Anni v The People, Court of Appeal, 25 May 1995, unreported.

(19) Lutterodt v Commissioner of Police [1963] 2 GLR 429, SC.

(20) R v Haddy [1944] 1 KB 442; [1944] 1 All ER 319; 170 LT 406, OCCA.

(21) R v Thomas (No 2) [1957] 1 WLR 1091; [1957] 3 All ER 350; 101 SJ 853.

(22) Thompson v R [1918] AC 221; 87 LJKB 478; 118 LT 418, HL.

(23) Frimpong v The Republic [1980] GLR 575.

(24) R v Hilton (1971) 55 Cr App R 466, CA.

(25) Banda v Republic [1975] 1 GLR 752.

(26) Mahama v The Republic [1980] GLR 100, CA.

(27) R v Green (1908)1 Cr App R 124, CCA.

(28) R v Brown (1908) 72 JP 427; 1 Cr App R 85, CCA.

(29) R v Curnock (1914) 111 LT 816; 24 Cox CC 440; (1914) 10 Cr App R 207, CCA. (30) Sweet v Parsley [1970] AC 132; [1969] 2 WLR 470,; [1969] 1 All ER 347.

(31) R v Bow Road Domestic Proceedings Court; Ex parte Adedigba [1968] 2 All ER 89; 132 JP 301, CA.

(32) Greaves v Tofield (1880) 14 Ch D 563; 50 LJU 118; 43 LT 100, CA.

[p.608] of [1997-1998] 2 GLR 598 (33) Barras v Aberdeen Steam Trawling & Fishing Co. [1933] AC 402; 102 LJPC 33; 149 LT 169, HL. (34) R v Sheppard [1981] AC 394; [1980] 3 WLR 960; [1980] 3 All E R 899, HL.

(35) Republic v Tekperbiawe Divisional Council; Ex parte Nene Korlell II [1972] 1l GLR 199. (36) Nyameneba v The State [1965] GLR 723, SC.

(37) Caswell v Powell Duffj’yn Associated Collieries Ltd [1940] AC 152; [1939] 3 All ER 722; 161 LT 374; 55 TLR 1004, HL.

(38) R v Burdett (1820) 4 B & Ald 95.

(39) Nyame v Tarzan Transport [1973] 1 GLR 8.

(40) Asamoah v The State [1962] 2 GLR 207, SC.

(41) State v Anani Fiadzo [1962] 1 GLR 416, SC.

(42) Domena v Commissioner of Police [1964] GLR 563.

(43) Nyame v The Republic [1971] 2 GLR 140.

(44) R v Taylor (1930) 21 Cr App R 20, CCA.

(45) R v Willesden Justices; Ex parte Utley [1948] 1 KB 397.

APPEAL by the appellants to the Court Appeal against their conviction for offences under the Narcotic Drugs (Control, Enforcement and Sanctions Law, 1990 (PNDCL 236) The facts are sufficiently set out in the judgment of Lamptey JA.

Miss Asare Korang (with her A Gyambiby) for the Republic.

Owusu Fordjour for Bonsu.

Authur Mensah for Akoto.

Agbesi for Amartey.

Lamptey JA. On 6 May 1997 the Greater Accra Regional Tribunal convicted and sentenced three persons, namely George Bonsu, Henry Akoto and Gordon Amartey, having found each of them guilty of (a) the offence of abetment of unlawful importation of narcotic drug; and (b) the offence of possessing narcotic drug. All the three persons were aggrieved by the conviction and sentence and appealed to this court. A number of grounds of appeal were stated in the notice of appeal filed on behalf of each person. With leave of this court, additional and further grounds of appeal were permitted to be argued by counsel for the appellants.

The facts which gave rise to the prosecution of the three persons and two others, non-appellants, are fairly simple. On 27 March 1997 Amartey, who at the request of Akoto had agreed to take delivery of a parcel that had arrimved at the Accra office of the [p.609] of [1997-1998] 2 GLR 598 Expedited Mail Service (EMS) was arrested by officials from the Narcotic Control Board soon after he took delivery of the parcel. He was interrogated by the officials. He took the officials who arrested him to the office of Akoto. There he handed over the parcel to Akoto and he was promptly arrested by the officials. In the light of what Akoto told the officials, he was escorted to the shop of Bonsu. There, Akoto handed over the parcel to Bonsu who accepted it. He was immediately arrested. In the light of what Bonsu told the officials he was escorted to a hotel to enable him identify the owner of the parcel. The owner was not at the hotel. Bonsu was permitted to use his mobile phone to trace the whereabouts of the owner. The owner was waiting for Bonsu in Bonsu’s shop. Bonsu was escorted back to the shop. In the shop Bonsu handed over the parcel to one of two Nigerians who claimed ownership of the parcel. The two Nigerians were promptly arrested by the officials. In due course, the parcel was opened in the presence of all five persons. The parcel was a brown envelope in which were two books. In the hard covers of the books were concealed whitish substance which on examination was found to be narcotic drug.

Counsel for Bonsu argued ground (2) of the notice of additional grounds of appeal which reads:

“(2) The tribunal erred in law in its definition of ‘possession’ and misapplied the legal principle of possession enuniciatedenunciated in the case of Munkaila v The Republic [1995-96] 1 GLR 367, ScC.

This error resulted in a substantial miscarriage of justice.”

In arguing this ground of appeal, counsel for Bonsu submitted that the tribunal misdirected itself in relying on the case of Munkaila v The Republic [1995-96] 1 GLR 367, SC to convict each of the appellants. He sought to show that the facts of the Munkaila case are different from those of the instant appeal. He argued that the meaning of “constructive possession” found on the facts of Munkaila case (supra), as given in that case, cannot be applied to the facts of the instant case. He contended that “possession” as required by law was not proved in the instant case. In reply, counsel for the Republic submitted that there was sufficient evidence to prove possession as charged. She disagreed with the contention that the prosecution must in addition to physical possession of the prohibited article prove knowledge of what was

[p.610] of [1997-1998] 2 GLR 598 possessed. She did not advert to the criticism of the judgment, namely that the facts of the Munkaila case (supra) can be distinguished from those of the instant appeal; and that the tribunal erred in applying it.

I have looked carefully at the Munkaila case (supra) and I find that the tribunal reproduced four pages out of the seven pages of the judgment. In my opinion the Munkaila case decided what “constructive or joint possession” meant in applying that criminal law. The case before the tribunal below did not raise the issue of “constructive or joint possession.” In the case before the tribunal, the issue of ownership of exhibit D was not raised for determination because first and fifth accused persons claimed ownership of exhibit D. In the Munkaila case (supra), Munkaila was not caught in possession of narcotic drugs even though he was charged with that offence. In that case a co-accused called Fatima stated that it was Munkaila who gave her the narcotic drugs to bring to Ghana. The Supreme Court rejected the defence of Munkaila and found that “his conduct betrayed him to be implicated in the crime.” The court then concluded that Munkaila was in “constructive possession” of the narcotic drugs imported to the country by Fatima. I do not see what assistance the tribunal obtained from the Munkaila case (supra) in the light of the facts of that case.

Again, the Supreme Court considered the issue of corroboration in the Munkaila case (supra)and made a finding on it. In the instant case the issue of corroboration was not raised for the consideration of the tribunal. I have not been able to find the reason why the tribunal made copious reference to and reproduced the passages from the Munkaila case (supra) dealing with the issue of corroboration and constructive possession. I agree with the submission of counsel for Bonsu that the tribunal misunderstood and therefore misdirected itself on the issues of law decided by the Supreme court in the Munkaila case (supra).

My view on the issue raised by the Munkaila case (supra) was that the tribunal blindly copied five pages verbatim from the Munkaila case (supra) and did not derive any assistance from it. Take for instance the following quotes from the judgment of Aikins JSC in the Munkaila case (supra) at 373: “These passages [quotations by the court from the ijudgments of Essilfie -Bondzie JA and Afreh JA]1 cannot be

[p.611] of [1997-1998] 2 GLR 598 successfully assailed as counsel for the appellant is assiduously trying to do. He is taking the court for granted and twisting the law for our consumption. Counsel is an officer of the court, and under no circumstances should he try to mislead the court. His duty is to assist the court and not to confuse it, thinking that his twisted ingenuity can put his client in a better stead. The client may in the final analysis stand to lose.”

With great respect to the tribunal, the above passage is wholly irrelevant and unsupportable bearing in mind the facts in evidence and the conduct of the lawyers who defended the appellants in the lower court.

Ground (3) in the notice of additional grounds of appeal reads:

“(3) The trial tribunal erred in admitting prejudicial evidence as adduced by the prosesecution in cross-examination of the second accused person.”

Before us, counsel for Bonsu read through the relevant portions of the cross-examination of Bonsu and submitted that the tribunal erred in law in permitting the questions asked Bonsu on the ground that the answers sought to be put before the tribunal were inadmissible in law. The evidence was also prejudicial against Bonsu. At the trial he objected to the line of cross-examination on legal grounds but his objection was overruled. Counsel for the Republic submitted that the evidence elicited through cross- examination was admissible evidence in law. She contended that the cross-examination was intended to prove and establish similar facts. She cited as authority section 55 of the Evidence Decree, 1975 (NRCD 322).

Since this court was referred to portions of the cross -examination, I turn my attention to the relevant passages. The record shows that Bonsu was questioned about a “transaction” between himself and one Margaret Johnson. The objection raised by counsel for Bonsu reads as follows:

“That transaction in 1993 is the subject-matter of a trial between the second accused (Bonsu) and the State and is pending before Mr Justice Duose. It is therefore sub-judice and it would be wrong to cross-examine the accused in the present case on that matter . . ..”

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The tribunal asked the prosecutor to reply. Counsel sought and was granted an adjournment to enable her reply to the objection raised. On the adjourned date she made the following reply:

“In answer to the submission, counsel submits that the law allows the question on grounds that the question is to establish similar facts. Counsel relies on section 55 of NRCD 323 and refers to the commentary on that section.”

The court ruled that:

“In so far as the cross-examintion is only seeking to establish a system the question is proper taking into account the provision of section 55 of the Evidence Decree. The character of the witness has not been put into issue and the court takes note of this.”

The issue raised in this court calls for consideration of section 55 of NRCD 323. The section provides thus:

“55 (1) Any otherwise admissible evidence of the routine practice of a person or an organistionorganisation is admissible to prove conduct on a specified occasion in conformity with routine practice.

(2) Routine practice may be proved by evidence in the form of an opinion or by evidence of specific conduct on specified occasions sufficient in number to support a finding of fact that the practice was routine.”

The side note to section 55 reads “Routine practice.” I find it difficult to appreciate the line of cross-examination of Bonsu which was intended to prove and establish routine practice within the intendment of section 55 of NRCD 323. What was the routine practice of Bonsu sought to be proved bearing in mind the charges he faced?

I must point out that the prosecution closed its case after calling five witnesses. None of the five witness was asked to tell the tnribunal and give evidence of “routine practice” of Bonsu or any of the other appellants. In particular the fifth prosection witness, the police investigating officer, did not testify about routine practice of any of the appellants. The tribunal permitted cross-examination on a transaction between one Margaret Johnson and Bonsu. There was a transaction between her and Bonsu. There was cross -examination involving one Nana Kwarteng; further cross-

[p.613] of [1997-1998] 2 GLR 598 examination involving a transaction between one Osei Bonsu Agyemang and Bonsu, all these in an endeavour to prove routine practice pursuant to section 55 of NRCD 323. I apprehend that by the rules of court in a criminal trial, the prosecutor, before she closed her case, must lay the foundation for routine practice by calling as witnesses for the prosecution Margaret Johnson, Nana Kwateng and Osei Bonsu Agyemang. In the instant case none of these three persons was called by the prosecutor to assist the court on the issue of “routine practice.” The tribunal was not told why none of the three persons was called to assist it. Regrettably, to observe, Bonsu was confronted with names with the leave of the tnribunal. The more serious issue that arises for consideration in my humble opinion is the source of the information relating to and touching upon “routine practice.” How did the prosecutor come by the names of Margaret Johnson, Nana Kwateng and Osei Bonsu Agyemang? Had each of these made written statements to the fifth prosection witness, Detective Inspector Osei Kwadwo, who took the written statements in this case? In my view, the tribunal gravely erred in law in permitting inadmissible evidence to be led. Section 55 of NRCD 232 was plainly not applicable in the instant case. The tribunal misdirected itself when it ruled that section 55 of NRCD 323 permitted that line of cross-examination in the case before it.

The other equally serious issue of law raised in the objection which was not adverted to by the prosecutor in her reply and which the tribunal failed to consider was that the “transaction” between Magaret Johnson and Bonsu according to counsel for Bonsu was sub judice and was pending before Mr Justice Duose. In my view, this statement from an officer of the court deserved very serious attention and consideration by both the prosecutor and the chairman of the tribunal, a lawyer. Was it lawful and proper practice for a case which is sub-judice before a tribunal of competent jurisdiction to be the subject matter of cross -examination in another tribunal? I am certain in my mind that section 55 of NRCD 323 on which the tribunal relied as authority in law to overrule the objection could not be and was not authority in law to support the ruling of the tribunal. I find that the tribunal gravely erred in law when it permitted the cross-examination of Bonsu on a matter that was sub-judice before Mr Justice Duose. I entirely agree with counsel for Bonsu when he stated that evidence elicited from Bonsu was prejudicial to the case against Bonsu. The

[p.614] of [1997-1998] 2 GLR 598 line of cross-examination cannot be supported in law. The evidence obtained thereby was in law inadmissible evidence.

I next consider ground (4) of the additional grounds of appeal which reads as follows:

“(4) The trial tribunal also erred in misdirecting itself on the law as to admission of a statement given at the police station, ie not given on oath and not repeated on oath in court.”

Arguing this ground of appeal, counsel for Bonsu submitted that the statement made to the police investigating officer by Sylvester Osunu (the first accused) and admitted in evidence as exhibit G was inadmissible in law. He submitted that since the first accused was a co-accused who was tried in absentia, the statement(exhibit G) was not evidence against any of the other accused persons charged with him. He drew this court’s attention to the statement the first accused made when he was charged with the offences before the lower court. This was exhibit Gi1. The first accused in exhibit G1i rejected exhibit G on the ground that exhibit G was extracted from him under “duress and suppression.” He thereforce invited this court to find that the tribunal erred in law in relying on exhibit G to convict the appellants. In reply, counsel for thec Republic graciously conceded that the tribunal erred in law in considering the evidence contained in exhibit G. She contended however that even if the evidence contained in exhibit G was rejected and excluded, there was other evidence on record to establish and prove the charge against the appellants.

There can be no doubt that the tribunal gravely erred in law when it admitted in evidence the statement made by the first accused when the case against him was being investigated. It was not made on oath. In exhibit Gi1, the first accused rejected exhibit G on the ground that it was obtained from him under “duress and suppression.” The issue of law raised is provided for at section 120 (1) of NRCD 323. This section was considered by the Court of Appeal in the case of Anang v The Republic [1984-1986] 1 GLR 458, CA. One of the issues raised on appeal was the admissibility of a statement made under “pressure” (duress) and therefore not voluntary. The court held as stated in the headnote, holding (2) as follows:

[p.615] of [1997-1998] 2 GLR 598

“(2) Sections 3 and 120 of NRCD 323 as amended by the Evidence and Criminal Prosecutions (Amendment) Decree, 1979 (SMCD 327), necessitated a prior trial within the trial often referred to in the books as the voire dire to determine whether a statement was voluntary before it was admitted in evidence.”

The court held further, as stated in the headnote, holding (3) as follows:

“(3) All the relevant provisions of section 120 (l)–(3) of NRCD 323 applicable to the appellant and designed to protect him were blantantlyblatantly breached by the police and non-chalantly ignored by the trial court and the appellate court in spite of the submissions of his counsel calling attention to those statutory requirements.”

The Court of Appeal’s decision was that the statement Anang, the appellant, made was not voluntary and was consequently not admissible in evidence (against him). In the instant appeal the statement of the first accused was in law not admissible in evidence. The tribunal erred in law in admitingadmitting exhibit G in evidence. The Court of Appeal restated the law in the case of Zortovie v The Republic [1984-1986] 2 GLR 1, CA, as stated in the headnote, holding (1) as follows:

“(1) when a witness, such as in the instant case, was shown to have made a previous statement inconsistent with his evidence at the trial, the jury should not merely be directed that his eivdenceevidence given at the trial should be regarded as unreliable, but should also be directed that the previous statement whether sworn or unsworn, did not constitute evidence upon which they could act. That of course would be subject to opportunity having been given to the witness for an explanation, which was lacking in the instant case.”

(The emphasis is mine.)The Court of Appeal made it clear and beyond argument that a statement, whether sworn or unswomrn, cannot be admitted in evidence unless an opportunity was given to the maker to be tested on its contents. See on this the English case of R v Harris (1927) Cr App R 144 at 147, CA. The last authonritative statement of the law on this issue I wish to refer to is

[p.616] of [1997-1998] 2 GLR 598 the Court of Appeal case of Gyabaah v The Republic [1984-1986]12 GLR 461, CA at holding (2) as follows:

“(2) The trial judge should have directed the jury, as a matter of law, not to accept the evidence of the fourth prosecution witness in view of his own admission of his prior inconsistent statement to the police for which he offered no explanation. For the law was that a witness whose evidence on oath was contradictory of a previous statement made by him, whether sworn or unsworn, was not worthy of credit and his evidence could not be regarded as being of any importance in the light of his previous contradictory statement unless he was able to give a reasonable explanation for the con tradiction.”

IEn the case before us, the record shows that the first accused was a fugitive from justice and was lawfully tried in absentia. The statements, exhibits G and Gi1 were both statements which were inadmissible in evidence. The complaint made against this portion of the judgment was sound and supportable in law. I find that the tnrial tribunal gravely erred in law in admitting exhibit G in evidence. In due course, I will deal with the consequences that naturally and lawfully flow from my finding that exhibit G should not have been admitted and considered by the trial tribunal.

I now turn my attention to the ground of appeal which briefly put was that the tribunal erred in law when it found each of the appellants guilty of possessing narcotic drugs contrary to section 2 (1) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 PNDCL 236. Counsel for the appellants urged on this court that since the term “possession” was not defined in PNDCL 236, the court should seek assistance from case law on the subject. To this end the court was supplied with cases on both English law and local law. I have found the cases to which this court’s attention was drawn helpful and useful.

I will start with the definition and meaning of “possession” as stated in some English and Ghanaian cases. I will next apply the definition as I have understood it to this case. I wish to consider some English cases which fell to be decided on the English Misuse of Drugs Act, 1971 in particular, as to what constitutes “possession” within the meaning of that Act. But before I do so, I must state the principles of English law on possession before the 1971 Act. The wrinters on this subject are all agreed that in dealing

[p.617] of [1997-1998] 2 GLR 598 with and determining what constitutes possession within the intendment of the Act, the following points must be borne in mind. First, the law separates the physical element of possession (the corpus) from the mental element (the animus possidendi), ie the intention to possess. Only when possession as seen above has been established by evidence does one go further to consider the defence put forward by the accused person; for instance defence to show lack of intention to possess; see on this R v Wright (1976) 62 Cr App R 169, CA and R v Ashton-Rickhardt (1977) 65 Cr App R 67, CA.

I will look at some of the decided cases on this issue of possession. I refer to the case of R v McNamara (1988) 87 Cr App R 246, CA. The Court of Appeal considered the earlier case of Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (a case governed by the pre-1971 law). One of four propositions stated by the Court of Appeal, especially in a case involving a package or a box, was as follows:

“(4) In the case of a package or box the defendant’ s possession of it led to the strong inference that he was in possession of the contents. However if the contents were quite different in kind from what he believed, he was not in possession of them.”

(The emphasis is mine.) It is the opinion of their lordships that to rebut the inference in proposition (4), the defendant must prove or raise a real doubt as to whether, either (a) he was a servant or bailee who had no right to open the package and no reason to suspect that its contents were illicit or were drugs, or (b) he had no knowledge of, or had made a genuine mistake as to the nature of the contents, even though he was the owner, and had received the package innocently and had no opportunity to acquaint himself with its actual contents. On this principle of law, Lord Reid stated as follows at 281:

“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.”

(The emphasis is mine.)

[p.618] of [1997-1998] 2 GLR 598

The issue of possession was considered again by the English Court of Appeal in the case of R v Lewis (Garret/ih) (1988) 87 Cr App R 270, CA. At 305 Lord Pearce stated his opinion as follows: “I think 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 will not 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 even if I believe them, to be sweets, would be otherwise if I believe them to be something of wholly different nature . . . The situation with regard to containers presents further problems. If a man is in possession of the contents of a package prima facie his possession of the package leads to the strong inference that he is in possession of its contents. But can this be rebutted by evidence that he was mistaken as to its contents? As in the case of goods that have been “planted” in his pocket without his knowledge, so I do not think that he is in possession of contents which are quite dVifferent in kind from what he believed. For a man takes over a package or suitcase at risk as to its contents being unlawful, he he does not immediately examine it (if he is entitled to do so). As soon as may be he should examine it and if he finds the contents suspicious, reject possession by either throwing them away or by taking immediate sensible steps for their disposal.”

(The emphasis is mine.) The English case of R v Wright (supra) would be a good example to use as a guide in determining what “possession” in a drug case means. In the Wright case (supra), the Court of Appeal discussed the case law including the Warner case (supra). Briefly put, the court was faced with a case as follows:

“If a person is handed a container and at the moment when he receives it he does not know or suspect, and has no reason to suspect, that it contains drugs, and if, before he has time to examine the contents, he is told to throw it away and immediately does so, the Court of Appeal held,[applying the . . Warner case] he cannot . . . be said to have been in possession of drugs, which happened to be in the container . . . This

[p.619] of [1997-1998] 2 GLR 598 is so even though the instruction to throw away the container, which he instantly obeyed, made him suspect that there was something wrong about its contents.”

(The emphasis is mine.) The case of R v Boyesen [1982] AC 768, HL followed and applied the meaning of “possession,” The House of Lords, per Lord Scarman, held at 773-774 H that:

.

“Possession . . . 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 compre- hending its nature: but you do not possess it unless you know you have it.”

The emphasis is mine. See also the case of R v Bland (1988) Crim LR 41, CA where the court held: “The fact that appellant and R lived together in the same room was not sufficient evidence from which the jury could infer that she exercised custody or control. There was sufficient evidence to infer knowledge that R was drug dealing but no more. Assistance, though passive, required more than mere knowledge; for example, it required evidence of encoura gement or some element of control.”

The opinion of Lord Morris of Borth-y-Gest in his speech in the Warner case (supra) (with which their lordships concurred) was stated as follows at 296:

“I think that in criminal matters it is important to have clarity and certainty. I have endeavoured to set out my view as to what the Act denotes by the words “to have in his possession.” So far as summary is possible my conclusion is that in a prosecution under section 1 it is for the prosecution to prove (a) that the accused was knowingly in control of some article or thing or substance or package or container in circumstances which enabled him to know or discover (or could have enabled him, had he so wished, to know or discover) what it was that he had before assuming control of it or continuing to be in control of it, and (b) that, whether the accused knew this or not, the article or thing or substance or package or container that he had, consisted of, or contained, a prohibited substance.”

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The English cases therefore defined possession to include (a) physical possession; and (b) additionally, knowledge of what was possessed.

Is the legal position in Ghana different from that of the English courts? The earliest authoritative definition of possession was stated by the Court of Appeal in the case of Amartey v The State [1964] GLR 256, SC at holding (3) as follows:

“(3) As from 17 December 1963, to sustain a charge under section 47 (1) of Act 64 the prosecution must prove only possession with knowledge of the nature and quality of the article possessed; there must be an awareness that what is possessed is ‘opium or indian hemp’ . . . Physical possession without that knowledge is no offence.”

(The emphasis is mine.) In considering a charge under the present law, ie PNDCL 236, it was submitted by the prosecutor that the offence created under section 2 (1) of that Law was absolute. Counsel for the Republic therefore contended that because posses sion was absolutely forbidden and outlawed, the prosecution need not prove that each appellant knew of the contents of the parcel. She submitted that the prosecution was enjoined to adduce evidence of physical possession and no more, to sustain a charge of possession. Counsel for each of the appellants submitted that the prosecution assumed the burden of proving (a) physical possession; and (b) knowledge on the part of each appellant as to the nature and quality of what was possessed.

I must point out that the tribunal made a finding of “constructive possession” against only Bonsu. There was no finding of “any” possession against the third and fourth accused persons. The tribunal did not discuss nor give any indication as to what it meant by “constructive possession” in its judgment. What I was able to discover was that the tribunal lifted the expression “constructive possession” from the judgment of the Supreme Court in the case of Munkaila v The Republic (supra). In that case the Supreme Court was faced with an issue raised by the appellant, Munkaila, namely that he was not the owner of the narcotic drug and further that he was not found nor arrested with the narcotic drugs found in the possession of Fatima. In considering the facts given in evidence on this issue, Aikins JSC employed the terminology of “constructive possession.” The learned judge expanded this term and gave meaning to it when he stated further, at 371, as follows:

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“The actual manual possession or touch of the goods by the prisoner, however, is not necessary to the completion of the offence. It is sufficient if the prosecution can prove that the article was in possession of a person over whom the defendant or accused had control, so that the article would be forthcoming if he ordered it . . .…”

The learned judge, as he was enjoined by law to do, then proceeded to consider the evidence before the court. He concluded at 372 as follows: “Since the appellant (Munkaila) employed or asked Fatima to bring the narcotic drugs to Ghana he is deemed to be in possession of drugs and liable accordingly.” It would seem that Aikins JSC use of “constructive” possession was not intended to give a new and different meaning and interpretation to possession as used in PNDCL 236 or to depart from the meaning under the earlier drug laws. Indeed, the facts of the Munkaila case (supra) are different from those of the instant case. The issue of “constructive” possession therefore did not arise. The tribunal misdirected itself on this issue.

As stated earlier in this judgment, the word “possession” was interpreted and given meaning in the Amartey case (supra). Before us, the bone of contention as I see it is whether apart from physical possession of narcotic drugs, the prosecution must to sustain the charge, additionally adduce evidence to prove and establish knowledge of the contents of what is possessed. The prosecution contends the prohibition is absolute. The defence sumbittedsubmitted that in addition to physical possession there must be evidence the from prosecution of knowledge of what was possesedpossessed. To resolve this issue, I must go back to the Amartey case (supra) which stated the law in no uncertain language. Writing the unanimous judgment of the Supreme Court, Ollennu JSC at 261 stated thus: “. . . under section 47 (1) of the Act, possession creates absolute responsibililty, so that once possession is proved, the appellant would be guilty of the offence . . .…” The Supreme Court then proceeded at 261-262 to place on the prosecution the burden to prove know ledge on the part of the appellant of the contents of the parcel and to give meaning to the word “possession” as follows:

“According to the police the parcel was neatly wrapped up in paper and enclosed in a pillow case; they had to tear the paper covering off before they were able to know what the parcel contained;, that is, without undoing the parcel they could not

[p.622] of [1997-1998] 2 GLR 598 have known what it contained. It means then that any other person, including the appellant, who received the parcel, would, like the police, not have been able to know the contents . . . Therefore, upon the evidence before the court there was no proof of legal possession such as is necessary to sustain the charge.”

Section 47 (1) of the Drugs and Pharmacy Act, 1961 (Act 64) reads as follows: “47.(l) No person shall have in his possession without lawful excuse (proof of which shall be, upon him) . . .…” The Supreme Court after due consideration and deliberation interpreted “possession” to mean both (a) physical possession and (b) knowledge of what was possessed. In the instant appeal, the offence created by section 2 (1) of PNDCL 236 reads as follows: “2 (1) Any person who without lawful authority, poof of which shall be on him, has in his possession or under his control any narcotic drug commits an offence.” The language employed in creating the offence under section 47 (1) of Act 64 is not dissimilar to that of PNDCL 236. The definition and meaning of “possession” as stated in the Amartey case (supra) can and should safely be adopted in cases in which the term “possession” is used in criminal prosecutions. I have not found any authority which would enable me to depart from the meaning of “possession” as laid down in the Amartey case (supra).

I now turn to the facts of the instant appeal on the issue of proof of possession by the prosecution. The evidence of the fifth prosecution witness, the police officer who investigated the offence, was in part as follows:

“Mr Afari identified the parcel to the fifth accused person as the parcel which was retrieved from them. In my presence he asked of the owner of the parcel, and the first accused claimed ownership. The parcel was opened in my presence and was found to contain two books identified by the witness . . . In the inside of the four hard covers of the two books were found some whitish substance wrapped in polythene bags. The substance was suspected to be narcotic drugs . . . The two books were in a brown envelope. Envelope tendered without objection as exhibit D. The envelope had on it the name ofl one Iddrisu Mohammed as the addressee and it was addressed through GPO, Accra It was a EMS parcel . . .…”

[p.623] of [1997-1998] 2 GLR 598

On the issue whether or not there was evidence of knowledge of what was possessed which was essential and crucial to proof of “legal” possession, the fifth prosecution witness was cross-examined as follows: “Q Before exhibit D was opened did you know the contents? A. No.” The impression created was that unless and until the parcel, the brown envelope, was opened and further that the books were also opened, the fifth prosecution witness did not know the contents of the parcel. It will be recalled that the policeman who investigated the Amartey case found himself in the same position as the fifth prosecution witness found himself in the instant case. Indeed, there was no evidence on record to prove and establish that the prosecution witnesses and also each of the appellants knew that the parcel contained narcotic drugs. The prosecution therefore failed to prove and establish by evidence an essential ingredient of the offence charged, namely possession on the part of each appellant with knowledge that what they each possessed was narcotic drugs. This ground of appeal succeeds.

I now turn to ground (1) on the notice of additional grounds of appeal. It reads thus:

“(1) The panel misdirected itself in considering the charge of ‘abetment’, to wit importation of narcotic drugs as proved when there was no proper evidence before the court as to assistance given by first appellant in its importation.”

The above complaint was made by the other appellants. On behalf of all three appellants it was submitted that the prosecution led no evidence to prove and establish the assistance each appellant gave on the importation of narcotic drugs. It was also contended that there was no evidence to prove and establish the assistance each appellant gave on the importation of narcotic drugs. It was also contended that there was no evidence of importation of narcotic drugs. It was submitted that the tribunal erred in finding the charge of abetment proved against each appellant. Counsel for Bonsu referred the court to the Supreme Court case of Commissioner of Police v Sarpey and Nyamekye [1961] GLR (Pt II) 756 in which the offence of abetment was considered by the court. Counsel for the Republic, in reply, submitted that there was sufficient evidence on record to support the charge as laid. She took the court through the record and pointed out pieces of

[p.624] of [1997-1998] 2 GLR 598 evidence from prosecution witnesses which proved and established the offence charged.

I reproduce holding (1) of the Sarpey case (supra) as follows:

“(1) an act constituting abetment of a crime must precede it or must be done at the very time when the offence is committed. Abetment must be contemporaneous in place, time and circumstance with the commission of the offence . . .”

The test laid down in the Sarpey case (supra) is not difficult to identify. The act complained of must either precede the commission of the substantive offence or, in the alternative, it must be conduct which enabled the offence to be committed. In the instant case, the case of each appellant must be considered on its own facts and merits. Unfortunately, the tribunal did not follow this rule of law in so far as it failed or neglected to consider the case against each appellant separately and distinctly. Be that as it may, this appeal is by way of re-hearing: see on this, section 8 (1) of the Court of Appeal Rules, 1977 (C1l 19).

In her submission, counsel for the Republic conceded that the word “import” appearing in section 1 (1) of PNDCL 236 was not defined. She, however, referred the court to the definition of “export” as is given in section 340 of the Customs, Excise and Preventive Service (Management) Law, 1993 (PNDCL 330). 1I must confess I have not found that definition helpful in construing the term “import” as used in section 1 (1) of PNDCL 236. I find that PNDCL 330 gives the following definition of “importer” in section 340 which may guide this court in giving meaning to the term “import”:

“importer” includes the owner or the person for the time being possessed of or beneficially interested in any goods at and from the time of their importation until they are duly delivered out of the charge of the proper officer; and also any person who signs any document relating to any imported goods required by this law to be signed by an importer.”

(The emphasis is mine.) It will be seen from the above definition that apart from the true and lawful owner of goods who is an importer, any other person who signs any document, relating to any imported goods which the true and lawful owner must sign, is deemed to be an “importer.” Is there evidence on record that each [p.625] of [1997-1998] 2 GLR 598 of the appellants assisted in the importation of the parcel, exhibit D, by signing any document which the owner can sign?

In the instant case, there was undisputed evidence that the first and fifth accused, the two Nigerians fugitives from justice, arrived in Ghana respectively on 15 March 1996 and 24 March 1996. They each entered the country through Aflao. The evidence further showed that they lodged at a hotel at Abeka in Accra. Each of the Nigerians was in possession of a valid Nigerian passport. See exhibits AA and BB. There can therefore be no argument that each of the Nigerians was lawfully in the country. They could each have gone to the EMS office to take delivery of exhibit D. Why was it necessary for them to seek the assistance of Ghanaians to enable them take delivery of a parcel addressed to Mohammed Iddrisu?

When Amartey went to the EMS officer to collect and take delivery of the parcel, exhibit D, on the 25 March 1996, he gave the following testimony: “The manager asked me to produce the authority mentioning my name that I could collect the parcel.” Then on the 27 March 1996 when Amartey actually took delivery of the parcel, he made the following statement, exhibit H, to the fifth prosectioin witness: “The following day with my ID card on me I signed the slip. I took the parcel to my office.” (The emphasis is mine.) The explanation Amartey offered when questioned about the parcel, among others, was that a colleague Akoto, also of the Post and Telecommunication Corporation (P & T), had requested him to take delivery of the parcel that had arrived at the EMS Office, Accra. By the definition of “importer,” there can be no doubt that Amartey when he signed the documents at the EMS office was deemed to be an importer of the parcel. He aided and abetted the importation of exhibit D. The submission of counsel for Amartey is misconceived. The charge was proved against him. I so find.

The defence put forward by Akoto was rejected by the tribunal. I note that the tribunal did not give reasons for rejecting his defence. In sum, his defence was an unqualified admission by him to assist his friend Iddrisu Mohammed to take delivery of a parcel he, Mohammed, was expecting from Canada. This was part of Akoto’s evidence-in-chief:

“At that point he (Mohammed) told me he wanted to travel and that the wife would be posting a parcel from Canada and

[p.626] of [1997-1998] 2 GLR 598 wanted my assistance to collect same. I agreed to assist. I indicated that I would contact fourth accused (Amartey) to collect the parcel for him.”

(The emphasis is mine.) Pressed under cross-examination, Akoto testified that he was prepared to request and ask assistance of other P & T officials to take delivery of the parcel. Akoto, on this showing, was willing and ready to assist Mohammed receive the parcel, exhibit D. I find that Akoto told a lie to the tribunal when he gave the answers during his cross-examination as follows:

“Q Was it Mohammed who collected the parcel?

A It was fourth accused who collected it.

Q Because it was not Mohammed who went for the parcel there was the need for an authority note from Mohammed?

A I do not know how fourth accused (Amartey) collected the parcel.

Q Because of the problem in collecting the parcel hence the need for exhibit M which was fictitious.

A It is not true.”

What did Akoto mean when he gave the last answer? Exhibit M was a fax massage sent from Tamale to EMS, Accra authorising the EMS Manager to release exhibit D to one “Gordon Amartey of Ghana Postal Services Corporation, Accra.” The evidence before the tribunal was that Akoto had requested Amartey of the same address to take delivery of a parcel at EMS, Accra and he Amartey had willingly agreed to take delivery of exhibit D, then with EMS, Accra. The fax message was signed by “Iddrisu Mohammed” When it is pointed out that Akoto had willingly agreed and offered to aid and assist one Mohammed take delivery of a parcel with the EMS Accra, and further that he (Akoto) had requested Amartey to take delivery of the parcel (exhibit D), the answers Akoto gave are a pack of lies.

I find further support for my view that Akoto told lies on this issue of taking delivery of exhibit D from evidence on record that established and proved a special relationship between Akoto and Mohammed. I reproduce portions of Akoto’s evidence:

“He (Mohammed) came back later with the forms and we met is the forecourt of my office as I was on my way to pick my

[p.627] of [1997-1998] 2 GLR 598 children from school. He offered to pick up my children from school for me . . .…”

It would seem from this passage that Akoto struck a special relationship with Mohammed who had only applied for a tele phone from P & T. This story cannot be true. In my view, to prove his story, he should have subpoeneedsubpoenaed Mohammed’s application forms for a telephone. He did not do this and did not call any evidence on this issue. He concocted the story about the application for a telephone. I reject it.

In my opinion Akoto was not a truthful witness. I do not intend to burden this judgment with a catalogue of lies that he told the tribunal. I would content myself with only one more example from the cross-examination following:

“Q Did it not sound strange to you that Mohammed took you to his friend’s house (Bonsu’s) and there asked you to collect a parcel from him when you did not know him?

A: I was not surprised.”

The answer Akoto gave showed that it vas not open to him to plead that he did not aid and abet Mohammed to receive exhibit D. Akoto testified that the purpose behind Mohammed taking him to his Mohammed’s house at Achimota, was that he Akoto on taking delivery of the parcel should take it to that house at Achimota and hand it over to Bonsu. The evidence on record, which is nolt disputed and not challenged, from the second, third and fourth prosecution witnesses, was that when Akoto was arrested with exhibit D he took the officials not to the Achimota house but to the shop of Bonsu. Again, Amartey testified that when the EMS Manager requested him to produce the authority from the owner of the parcel (exhibit D) to enable the parcel to be released to him, Amartey got in touch with Akoto and told him about the problem and difficulty he faced at the EMS Office, Accra,. In due course, one Mohammed Iddrisu sent a fax message to the EMS Office in Accra authorising the parcel to be released to Amartey.

There was further evidence from Akoto to establish that he was ready and willing to assist Mohammed Iddrisu to receive the parcel. This was what Akoto told the tribunal:

“Q Before contacting fourth accused (Amartey) you contacted Mr Coleman9?

[p.628] of [1997-1998] 2 GLR 598

A Yes.

Q The purpose of contacting Mr Coleman was to see whether he could collect your parcel for you?

A Yes.

Q If you had not got fourth accused you would have got someone else to collect the parcel for you?

A Yes.”

On the evidence before the tribunal, Akoto knew the whereabouts of Mohammed Iddrisu. Akoto knew about the sending of the fax message. I find that there was sufficient evidence before the tnribunal to prove and establish that Akoto abetted the importation of the parcel. His conviction on that count is supportable. I affirm it.

The case against Bonsu was that he abetted the importation of the parcel, exhibit D. The facts given in evidence and not disputed were fairly simple. Bonsu had agreed to accept and keep a parcel consigned to one Mohammed Iddrisu from Aklcoto until Iddrisu called for it. On 27 March 1996 Akoto, pursuant to the arrangement, brought the parcel, exhibit D, to the shop of Bonsu. Akoto was accompanied by officers from the Narcotic Control Board. As soon as Bonsu took delivery of the parcel he was promptly arrested. In due course Bonsu assisted the officers to arrest the true owners of the parcel.

The defence put forward by Bonsu was rejected by the tribunal. I must point out that the tribunal failed or omitted to give reasons for rejecting the defence of Bonsu. I must consider the defence ofl Bonsu. The impression created by Bonsu was that he had met Mohammed Iddrisu in his (Bonsu’s) house and had agreed to help him receive a parcel he (Mohammed) was expecting to arrive alt the EMS Office, Accra. At that meeting, Akoto who was present was introduced to Bonsu as the person who would bring the parcel to Bonsu. It cannot be disputed that Bonsu knew or ought reasonably to have known that the parcel was imported into Ghana. What he did not know was that instead of children’s books the parcel turned out to be books containing narcotic drugs. He cannot deny and had not disputed that the parcel was imported. He also willingly agreed to assist Mohammed receive the imported parcel.

The prosecution sought to prove that Bonsu’s story about Mohammed Iddnrisu was not creditworthy. Bonsu was cross-

[p.629] of [1997-1998] 2 GLR 598 examined as follows: “Q: I suggest to you that there is nobody known as Mohammed Iddrisu. A: There is somebody known as Mohammed Iddrisu.” I must point out that all along, Bonsu’s case was that he had met with Mohammed in person and had agreed to help him. The evidence which is not disputed is that the parcel was collected by the first and fifth accused persons but not Mohammed.

I find the evidence of Bonsu was not only unconvincing but not reasonably probable. Take this example from his evidence-in -chief:

“The parcel and its contents was brought to me. I took it and gave it to my secretary to enter the parcel in our receipt book. I instructed my secretary to give the parcel to Mohammed when he comes.”

This piece of evidence means and can only mean that at the time of his arrest Mohammed was the only person who would call on Bonsu to collect exhibit D. To support this finding, I reproduce the relevant testimony of Bonsu as follows: “They asked about the ownership of the parcel. I therefore took the three men and others to the house of Mohammed.” It turned out that Bonsu took the three men and others to the Assurance Hotel to show that Mohammed lived at that hotel. On record the first and fifth accused lodged at that hotel but not Mohammed Iddrisu. If indeed Bonsu took the police to that hotel to check on his story, he Bonsu should have made sure that fifth prosecution witness checked on this. The fifth prosecution witness should have been cross -examined on this issue. This was not done, The onus in law was on Bonsu to prove that Mohammed in truth lived in that hotel. I must refer to evidence on record to the effect that on 27 March 1996 one Mohammed Iddrisu sent a fax message from Tamale to EMS, Accra authorising the release of exhibit D to Amartey. This is the parcel Bonsu had agreed to receive and keep for Mohammed or his agent. It was while the parcel, exhibit D, was with Bonsu that he was arrested. At that point the act of importation had not been completed because Customs and Excise had not identified the true and real importer of exhibit D and for that reason it had not exercised its statutory power to examine the parcel and to cleari it. This duty it discharged after the first and fifth accused had claimed they were the true and lawful owners of exhibit D.

[p.630] of [1997-1998] 2 GLR 598

In my opinion, Bonsu should have explained the sudden appearance of a person other than Mohammed who showed up to collect the parcel. The failure or omission on the part of Bonsu to provide the link between Mohammed and first accused, Chuka Osunu, no doubt prompted the tribunal itself to cross-examine Bonsu as follows: “By Court: Q Since your arrest have you heard from him (Mohammedl)? A He rang from Canada.” It is difficult to understand and appreciate the fact that Bonsu was not led to give evidence-in-chief about the first accused, Chuka Osunu. In exhibit H, a statement Bonsu made to the police, he stated as follows:

“. . . he (Mohammed) informed me that he would travel to Europe and that Mr Akoto would bring a parcel to me to be kept for him until his brother Chuka (first accused) comes to collect it. I agreed . . .”

It seems to me that because Bonsu omitted the above statement in his evidence-in-chief, he was cross-examined at length on the whereabouts of Mohammed. Boànsu finding himself in difficulty, proceeded to tell lies as follows: “Q You told the court you took the police to Mohammed’s house, where is the house? A: Assurance Hotel.” Bonsu did not call the owner of Assurance hotel to corroborate his evidence to show that Mohammed lived at that hotel. On record the first and fifth accused lodged at that hotel. The onus in law was on Bonsu to prove that Mohammed lived in that hotel.

A weakness in the defence of Bonsu was his unsatisfactory answer to the crucial question, namely why he had agreed to assist Mohammed. The cross-examination was as follows: “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 Benjilo.” I have no doubt in my mind that if the trinbunal had considered Bonsu’s explanation as given above, it would have had no hesitation in rejecting it, having regard to all the evidence before it. There was evidence from Akoto that Mohammed drove Akoto’s children from their school to Akoto’s house. Mohammed knew Akoto’s office at the P & T and Akoto was arranging to have a telephone installed for Mohammed. When all the evidence is considered, the explanation of Bonsu would be rejected by the tribunal and justifiably so.

I have elsewhere in this judgment lamented the failure of the tribunal to give reasons to support its finding of guilt. Bonsu had [p.631] of [1997-1998] 2 GLR 598 agreed to receive and keep exhibit D for Mohammed. I find that Bonsu failed to explain why he readily agreed to assist Mohammed whom he had not seen for quite sometime. When the whole of the evidence on record is considered, it cannot be disputed that Amartey, Akoto and Bonsu each willingly and voluntarily agreed to aid and assist Mohammed to take delivery of exhibit D. There can be no doubt that on the evidence Mohammed unlawfully imported narcotic drugs into the country. Mohammed no doubt knew or reasonably ought to have known that he commitedcommitted an offence, hence he made certain that other people took delivery of exhibit D. He approached Akoto for assistance. Though a perfect stranger to him, Akoto readily and without question agreed to assist. On being approached by Akoto, Amartey willingly and readily agreed to assist and help and actually sighed for and took delivery of exhibit D. Claiming a long standing relationship with Mohammed, Bonsu agreed to assist Mohammed to receive exhibit D. The evidence on record support the conviction of Amartey, Akoto and Bonsu. I find the charge on count 1 proved by the evidence. I affirm the conviction of each appellant on count 1.

Wood JA. On or about 27 March 1996, the third appellant who is an administrative officer of the General Post Office (GPO), Accra, acting on the instructions of the second appellant, collected a parcel, addressed to one Idrissu Mohammed, from the Expedited Mail Service (EMS) offices of the GPO. The appellant was immediately arrested by personnel from the Narcotics Control Board and the Customs Excise and Preventive Services (CEPS). He led these officials to the second appellant’s office and handed over the parcel to him. He was also arrested. He in turn took them to the first appellant who upon receipt of the parcel was also promptly arrested. So also were two Nigerians one of whom later received the parcel from first appellant. When it was eventually opened it was found to contain two books. The hard cover of each of these books was found to have been stuffed with some substance which later proved to be heroin.

All three appellants and the two Nigerians, who are now at large, were subsequently charged with the offences of abetment of unlawful importation of narcotic drugs, contrary to section 56 (c) and 2 (1) (c) of the Narcotics Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236) and, together with the other

[p.632] of [1997-1998] 2 GLR 598 two at large, with the offence of possessing narcotic drugs, contrary to section 2 (1) of PNDCL 236. On Wednesday, 30 April 1997, exactly a year ago, they were each found guilty and convicted. The three appellants were each sentenced on the first count to the minimum mandatory sentence of ten years and five years on the second count. All three however, being greatly dissatisfied with their convictions, promptly appealed against the verdicts on substantially the same grounds. The first appellant was the most comprehensive. In all, seven grounds were argued on his behalf. I had very little difficulty in agreeing with counsel on a good number of the points he raised. I propose therefore to deal with the grounds involving these issues before proceeding to the more problematic ones. It thus follows that I shall not be dealing with the various grounds in the same order in which they were filed and argued, but in the more convenient order I above described.

Basically, the argument in support of the additional ground (3) is that the tribunal erred in relying on section 55 of the Evidencce Decree, 1975 (NRCD 323) to admit prejudicial evidence againsit the first appellant. In further expatiation of this argument, it was contended that in this matter the tribunal commitedcommitted two errors. The first major complaint and therefore the more serious is that the section 55 of NRCD 323 was wholly inapplicable to this instant case as the matters raised referred not to specific evidence but questions asked under cross-examination. The second complaint is that even when the tribunal chose to rely on the section 55 it failed again to comply with section 52 of the NRCD 323 which required that before any relevant evidence would be admitted the court ought first to weigh its probative value and exclude same if the probative value of the evidence is substantially outweighed by the risk that its admission “will create substantial danger of unfair prejudice.” Counsel’s contention is that had the trinbunal carried out this exercise, it would have unhesitatingly refused the admission of these highly prejudicial matters. What then was the counsel for the Republic’s counter-arguments? Although to start with she claimed that there was nothing Prejudicial about the matters she introduced, she did however concede the point. She however urged that we do the following: (1) expunge that part from the record; and (2) conclude that the Misreception these prejudicial pieces of evidence did not result in

[p.633] of [1997-1998] 2 GLR 598 any miscarriage of justice as contended by the other since no findings based on these matters were made.

In my view, it is absolutely important for a proper resolution of the issues raised on both sides of this legal divide that we determine whether or not in the first place prejudicial evidence was at all received at this trial. The importance of this question cannot be overemphasised. The appellant counsel has contended that (1) section 55 of NRCD 323 is inapplicable to this case. He has also accused the trial tribunal of contravening section 52 of NRCD 323 on the other hand. The respondent counsel has urged that we apply section 5 (1) of NRCD 323 and conclude that even if there has been any misreception of evidence it has not led to any serious miscarriage of justice. Giving the matter some thought, I found myself unable to agree with both sides for the simple reason that the sections they both referred to are applicable to matters which constitute “evidence” properly so called. The record however shows that no “evidence” as such was led by the prosecution and consequently I would be falling into error if I agreed with the criticism that the trial tribunal failed to comply with section 52 of NRCD 323. I would equally be in error if I applied section 5 (1) of NRCD 323 to save the situation.

What are my reasons for saying so? I first would like to reproduce the relevant sections of the Decree:

“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.

“52 The court in its discretion may exclude relevant evidence if the probative value of the evidence is substantially out weighed by– (a) . . .

(b) the risk that admission of the evidence will create substantial danger of unfair prejudice or substantial danger of confusing the issues; or (c) . . . that such evidence would be offered.”

(The emphasis is mine.) A cursory reading of these provisions show that they are applicable to matters which constitute “evidence”. A careful look at the record show that it was during

[p.634] of [1997-1998] 2 GLR 598 the cross-examination of the first appellant that the learned Chief State Attorney put certain questions and suggestions to the first appellant aimed rather unfortunately at showing that he was a notorious drug dealer. Happily, he denied each and every material allegation levelled against him. The questions and suggestions from the prosecution do not constitute evidence. It is the answers that he gave on oath which rather constitutes evidence. The prose cution failed totally in its bid and the true factual position (as the prosecution led no evidence in disproof of the evidence he led) is that he is not a notorious drug dealer.

On the record we have no admission by him of any of the unlawful acts he was accused of. That which in my view has been wrongly described by both sides as evidence are the questions and suggestions (not on oath) from the prosecution. That is not to say they are not prejudicial, they are and I shall presently address the issues raised by their introduction and how they may be resolved. The pertinent point is that in law quesitonsquestions put to parties, accused persons and their witnesses while being cross-examined do not constitute evidence. The authority, statutory, to support this conclusion is NRCD 323, s 179 (1) which reads as follows: “. . . … ‘evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or non-existence of a fact.” In my view then, criticism that the trial tribunal contravened section 52 (1) of NRCD is not valid for at that stage no evidence was being led by the prsecutionpersecution and which neccesitatednecessitated an application of section 52. Also, the first appellant’s answers were not prejudicial, they were favourable. It is for these same reasons, namely that the prosecution was not at that stage leading any evidence, that I will agree with the first appellant’s counsel that the tribunal erred in relying on section 55 (1) of NRCD 323 to allow the prosecution to continue in that vein, namely allow what I will describe as questions, rather than “evidence” albeit of a highly prejudicial nature, to be asked.

In order to justify the point I have made, namely that section 55 (1) of NRCD 323 is applicable only to matters which constitute evidence, I will reproduce the section. It states “55 (1) Any otherwise admissible evidence of the routine practice of a person or an organisation is admissible to prove conduct on a specified occasion in conformity with the routine practice.”

[p.635] of [1997-1998] 2 GLR 598

(Emphasis is mine.) Even so, by section 55 (2) the law stipulates the form in which such evidence—–evidence of a routine practice, or system or what others describe as “similar facts” should take. The law which is self-explanatory states:

“(2) Routine practice may be proved by evidence in the form of an opinion or by evidence of specific conduct on specified occasions sufficient in number to support a finding of fact that the practice was routine.”

In my view then, though the law does allow evidence of routinec practice or system in order to prove conduct on a specified occasion in line with the routine practice or system, proof is by either opinion evidence or by evidence of specific conduct on numerous occasions, so numerous as to lead to the conclusion that the practice was routine. In my view, when objection was raised to the line of cross-examination and counsel’s prompt reply by reference to section 55 of NRCD 323 was that the law allows the question on grounds that the question is to establish “similair facts,” the objection ought to have been sustained. Why? In the first place the section 55 does not talk about questions but “evidence.” In other words, where the prosecution seeks to rely on routine practice to prove conduct, the evidential burden rests on her. It is for the prosecution to lead such necessary evidence as has been prescribed under the rules.

Admittedly, the prosecution is allowed to cross-examine the accused on these matters when he gives evidence on his own behalf. But I am of the view that that would be permissible only when the prosecution has discharged its initial burden. In this case, the prosecution had led no such evidence; the prosecution neveir intimated that they were applying to be allowed at a future date to produce any such evidence on routine practice, neither were they granted leave to do so. I therefore think the tribunal took an erroneous view of the law when it held that in so far “as the cross -examination is only seeking to establish a system, the question is proper taking into account the provisions of section 55 of NRCD 323.” Neither section 55 of NRCD 323 nor indeed any known rule of law or procedure allows the prosecution to introduce questions and suggestions as highly prejudicial as those referred to in this cnriminal trial. I think we need to guard against such practices, fori the decided cases show that in jury trials in particular, they could lead to disastrous consequences both for the defence and the

[p.636] of [1997-1998] 2 GLR 598 prosecution. For the defendant, it may lead to a wrong conviction, while an appeal it may lead to a reversal of the verdict.

In the same way, the fact that the matters raised during the cross-examination do not constitute evidence means we cannot apply section 5 (1) of NRCD 323 to this present case. The section deals with “evidence” which has been wrongly received. It reads:

“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.”

(The emphasis is mine.) But, does it therefore mean that there is no substance in the first appellant counsel’s submissions, namely that prejudicial matters were allowed to creep into the proceedings? Does it also mean that even if section 5 (1) of NRCD 323 were inapplicable no other valid ground exists in law for saving the conviction? The answer to both questions is No! As concerns the latter, the applicable rule would be the general rule which permits this court to allow appeals only where there has been a substantial miscarriage of justice. That rule is section 31 of the Courts Act, 1993 (Act 459) which incidentally works on about the same principle as section 5 (1) of NRCD 323. It provides that:

“31. (1) Subject to subsection (2) of this section an appellate court on hearing any appeal before it in a criminal case shall allow the appeal if it considers that the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgement in question ought to be set aside on the ground of a wrong decision on any question of law or fact or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal.

(2) The court shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occured 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.”

[p.637] of [1997-1998] 2 GLR 598

What constitute miscarriage of justice has been considered by our Supreme Court in a number of cases including: (1) Yirenkyi v The State [1963] 1 GLR 66, SC and (2) Boateng II v The Republic [1974] 1 GLR 214, CA. Although these were considered in the light of previous Court Acts, the provisions are the same and therefore there cannot be a departure from the time honoured principles neatly outlined in these previous decisions. I will like particularly to refer to the dictum in the judgment of the English Court of Criminal Appeal in Cohen v Bateman (1909) 2 Cr App R 197 at 208-208 (read by Channell 3J) and adopted by our Supreme Court, speaking (with one voice) through Akufo-Addo JSC in the Yirenlckyi case (supra) at 73. The learned justice said:

“There is such a miscarriage of justice not only where the Court comes to the conclusion that the verdict of guilty was wrong, but also when it is of the opinion that the mistake or omission on the part of the judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted and therefore, as there is no power of this Court to grant a new trial, the conviction has to be quashed. If, however, the Court in such a case comes to the conclusion that, on the whole of the facts and with a correct direction, the only reasonable and proper verdict would be one of guilty, there is no miscarriage of justice, or at all events no substantial miscarriage of justice within the meaning of the proviso, notwithstanding that the verdict actually given by the jury may have been due to some extent to such an error of the judge, not being a wrong decision of a point of law.”

Applying these principles to this case, my conclusion is that the errors on the part of the tribunal has not occasioned any serious miscarriage of justice. First, no comments, findings or conclusions based on these prejudicial questions and suggestions were made. Indeed the answers given to those questions were all favourable to the appellant. Second, and even more important, if those questions, as we are entitled to do, and suggestion are expunged from the record, there would still be evidence on thec i record to

[p.638] of [1997-1998] 2 GLR 598 support the conviction. I would therefore expunge those prejudicial questions from the record (together with the answers) but would dismiss the appeal based on this ground alone.

Again, I had very little difficulty in agreeing with counsel for the first appellant on the submissions made with respect to the ground (4) of the additional grounds of appeal. This was partly due to the concessions made by counsel on the other side, but mainly to the fact that his arguments were unassailable. The pith of his argument was that the tribunal erred in basing the first appellant’s (and indeed the other appellants’) conviction on the unsworn statements of the first and fifth accused persons who were tried in absentia. Now, exhibits G and G1i were statements made by the first accused to the police after his arrest. Exhibit G contains incriminating matters against the first appellant. That the tribunal allowed exhibits G and Gi1 to be admitted into evidence is in itself not an error in law; the error lay in the trial tribunals plain disregard of the elementary rule of law that if two (or more persons) are jointly tried together, the statement made by each are generally only evidence against the maker: See Lawson v Republic [1977] 1 GLR 63. The following extracts from the judgement however shows that the tribunal used these incriminating pieces of unsworn statements to convict the appellants. First the tribunal noted: “The statements of the first accused, exhibit G and Gi1; the second accused, exhibit H; and the fifth accused, exhibit L, are quite revealing and this court accepts them as such. Counsel1 for the second, third and fouthfourth accused persons sought in their written addresses to this court to play down the effect of the statements . . . to prove the innocence of their clients. However, this court accepts exhibit G, Gi1 and H as the correct version that led to the present prosecution.”

After reproducing those damaging portions of the statement the tribunal, wrongly in my view, held them to be “evidence” and concluded: “Can it be said that the accused persons have not committed any offence? The answer is an emphatic No!”

However, although I have come to the conclusion that the convictions based on these unswornm statements are plainly erroneous, I think the saving grace for the prosecution, once again lies in the proviso–—section 31 (2) of Act 459. Thus, if the errors complained of had not been committed or, put otherwise, had the

[p.639] of [1997-1998] 2 GLR 598 tribunal properly directed itself, the verdict would have been the same. I shall in the course of this judgment bring out these pieces of evidence which supports the conviction. It thus follows that this error has again, in the language of the Act, not ocassionedoccasioned any subtantialsubstantial miscarriage of justice and an appeal on this ground most fail.

In arguing ground (6), it was submitted that the tribunal erred in not holding the first and second appellants as mere bailess or servants who had no right to own the parcel or know the contents and so be “fixed with the intention to possess” the subject matter. It was further urged that in that regard the finding that the firsit appellant was in constructive possession of the narcotic drugs is clearly wrong. To counter these arguments two points were made, the most important being that even if the first appellant’s was a case of a mere bailee, the failure of the tribunal to come to this conclusion is not fatal to the conviction. Counsel was of the opinion that whether he was a mere bailee or not, the more important fact that had to be determined was whether or not at one point in time he was in physical possession of the offending substance; and since the answer is clearly in the positive the verdict ought not to be disturbed for this reason alone.

I do however partly agree with counsel for the appellant that the tribunal erred in its application of Munkaila v The Republic [1995-96] 1 GLR 367, SC and in the main the conclusion drawn therefrom that at all material times, the first appellant was in constructive possession of the drugs. In so far as the conclusion presuppossespresupposes he was in constructive possession from when it was procured in Thailand to the time when it was seized from the and fifth accused persons, I also share the view that the finding is not supported by evidence on the record. In my humble view, the principle clearly discernible from the Munkaila case is that it is either an owner, or one who employesemployees a carrier, agent or servanti that could properly be held to be in constructive possession orfi joint possession. It thus follows that since the evidence in this case does not establish that the first appellant was the owner of the substance or that he got the second and third appellants as well as first and fifth accused to have custody of same, it would be palpably wrong in my view to hold him to be in constructive possession at these times also that these persons took the substance into their possession. However the reason why I did say I agree with counsel in part only in this. In setting out the

[p.640] of [1997-1998] 2 GLR 598 circumstances under which a person may be said to be in constructive possession, the learned, justice, quoting from the judgment of Aikins JSC in the Munkaila case (supra) at 371 said:

“A person is said to be in constructive possession or joint possession of an object if he has control over the other person in physical control of the article as to its disposal, control or otherwise. The actual manual possession or touch of the goods by the prisoner, however, is not necessary to the completion of the offence. It is sufficient if the prosecution can prove that the article was in the possession of a person over whom the defendant or the accused had control, so that the article would be forthcoming if he ordered Iit . . .”

(The emphasis is mine.) To that extent, if the first appellant could be said to have been in constructive possession at all it would be during that brief period when he handed the parcel over to his employee and gave directions as to how it was to be disposed of, namely that it was to be handed over to Mohammed when he turned up. Certainly, the first appellant had control over his secretary and could order him to produce the parcel at any point in time. The more important point however is that even if this finding is also wrong, the uncontroverted evidence is that he was entrusted with the parcel; in which circumstances respondent counsel is right in his contention that the proper finding should have been that he was a bailee.

However, I do not in the least subscribe to the view that the tribunal’s failure to make this specific finding is fatal to the conviction. In actual fact, in my humble opinion, in this particular case (as indeed should be the case in offences of this kind), a determination of the exact legal relationship between the first appellant and the real owner of the drugs is not at all necessary for a determination of the appellant’s guilt or otherwise. What I mean is this. It is not essential to establish in what specific legal capacity he had physical possession or custody of the subject-matter. Whether as agent, carrier or bailee is immaterial. I think in cases of this kind the court’s mission should (unless it is for some reason absolutely essential) be limited to determining this primary fact — whether the appellant was at anyone point in time had custody of or was in physical possession of the offending substance. Of course there is also the more important question of whether he had the requisite knowledge. At the moment however, I am talking

[p.641] of [1997-1998] 2 GLR 598 about this not so-difficult-to prove ingredient or element of “‘physical custody” or “physical possession.” And, in this regard, the evidence that he had physical possession of the parcel is overwhelming. He admits physically or manually handling it, if even for the brief period only. For this reason I would again say that the erroneous finding that he was in constructive possession has not led to any serious miscarriage of justice.

As to the counsel’s complaint that the court ought to have “‘viewed” that their position as not being owners put them in a position where they did not know the contents of the parcel, I have this to say. It is not clear whether counsel’s proposition is that the mere fact that they are bailees entitles them to an automatic acquittal. If that is the view being urged, then I beg to disagree. In my view, the mere fact that a mere bailee or servant receives into his custody or physical possession a parcel in which a narcotic substance is hidden, does not entitle him to an acquittal simply on the basis that he happens not to be the owner of the parcel. If there is evidence that he knew or had reasons to know the contents of the parcel, then he is equally as guilty as the bailor, master, owner or principal. Such a person cannot be permitted to seek refuge under the law and plead: “I rely on section 148 (2) of the Criminal Code, I am not the owner. After all I am only a mere bailee. The real owner is the one in constructive possession therefore go after him.” To argue this way would amount to a misapprehension of the principle enunciated in the Munkaila case (supra). The learned justices did not state that section 148 (2) of Act 29 was an escape mechanism or escape route for bailees, servants, agents and the like. The section is not to be employed or used to exonerate bailees, servants, or agents who though not owners are proved not only to have been in physical possession of such parcels, but more importantly also where the evidence shows they knew what was contained in that which was entrusted to their care.

On the other hand, if counsel’s argument is that in their case the evidence discloses that the fact of their being mere bailees made it imposibleimpossible for them to know what was contained in the parcel, I would yet maintain that argument is untenable. I will demonstrate, when dealing with ground (2), that the first appellant, on the facts in his case, “knew” what was contained in the parcel which he look into his custody. Once again it means I am applying the proviso to dismiss the appeal on this ground.

[p.642] of [1997-1998] 2 GLR 598

Now, ground (2) of the additional grounds of appeal raised the most important questions. I will consider this ground alongside ground (7) by which the tribunal was accused of failing to consider the first appellant’s defence. The main criticism is that the tribunal erred in its definition of “possession” as appears under the relevant law under which the appellant was charged, namely section 2 (1) of PNDCL 236. It was contended that under the law the prosecution was not only enjoined to prove – (a) physical possession, but also (b) knowledge that appellant was possessed of the substance, that is to say knowledge on appellant’s part that the parcel contained narcotic drugs. I entirely agree with counsel that “possession” as used in the statute connotes more than physical possession. Indeed, “knowledge” is such an important ingredient in an offence of this kind that failure to prove it must automatically lead to the accused’s acquittal. Admittedly, the statute has not defined “possession” but all the authorities are agreed that in offences of this kind there can be no “possession” in law without “knowledge” of possession. First in Blackstone’ ‘s Criminal Practice (1997) the writer examines the meaning of the word “possession” as used under the English Misuse of Drugs Act, 1971, section 5 (2). This statute, like PNDCL 236, is concerned with unlawfhul possession of controlled drugs. Basically then, in substance, the two laws are the same since they both prohibit the possession of certain drugs. I am relying on the textwriter’stext writer’s views as persuasive authority, to help me define “possession.” That statute also does not define “possession.” But, writing under the heading “knowledge of Possession” the learned author states at page 680: “It is clear that the basic proposition is that a person must know that he is in possession of something which is, in fact, a controlled drug.”

Again, although Archbold, another distinguished author, in his book Criminal Pleading, Evidence and Practice (1996) admits there is some difficulty in defining “possession” as used under the English Act, he nevertheless came to the same opinion, afteir reviewing some of the leading authorities on the point. I found one of the speeches of the law lords in the case of Warner ‘v Metropolitan Police Commissioner [1969] 2 AC 256 very useful for the reason that it states also how proof of this essential element may be effected. From it, we learn that the knowledge need not be proved by direct evidence only, it may be pres umed that is to say

[p.643] of [1997-1998] 2 GLR 598 appropriately inferred from all the circumstances. On these important matters, Lord Wilberforce said at pages 310-311:

“The question, to which an answer is required, and in the end a jury must answer it, is whether in the circumstances thec accused should be held to have possession of the substance, rather than mere control. In order to decide between these two,. the jury should, in my opinion, be invited to consider all thec circumstances—–to use again the words of Pollock & Wright [Possession in the Common Law, p 119] the—–“”modes orfi events” by which the custody commences and the legal incident in which it is held. By these I mean, relating them toc typical situations, that they must consider the manner and circumstances in which the substance, or something whichl contains it, has been received, what knowledge or means ofl knowledge or guilty knowledge as to the presence of thec substance or as to the nature of what has been received, thec accused had at the time of receipt or thereafter up to thec moment when he is found with it; his legal relation to thec substance or package (including his right of access to it). Onr such matters as these (not exhaustively stated) they must makce the decision whether, in addition to physical control, he has, or ought to have imputed to him the intention to possess, orfi knowledge that he does possess, what is in fact a prohibited substance. If he has this intention or knowledge, it is not additionally necessatry that he should know the nature of the substance.”

(The emphasis is mine.)

In R v Boyesen [1982] AC 768, HL the other lords of appeal concurred to Lord Scarman adoption of the above speech. It was also adopted by the Court of Appeal in R v Lewis Gareth 87 Cr App R 270. This is how Lord Morris put it at 289 C:

“In my view in order to establish possession the presecutionprosecution must prove that accused was knowingly in control ojf something in circumstances which showed he was assenting to being in control of it; they need not prove that in fact he had actual knowledge of the nature of that which he had.”

(The emphasis is mine.) Lord Pearce affirmed the position thus (305 D)

[p.644] of [1997-1998] 2 GLR 598

“On the other hand, I do not think Parliament intended to make a man guilty of possessing something when he did not know that he had the thing at all . . . I think the term ‘possession’ is satisfied by knowledge only of the existence of the thing itself and not its qualities and that ignorance or mistake as to its qualities will not excuse.”

More authoritatively, this court in Anni v The People, Court of Appeal, 25 May 1995 unreported held the view, when dealing with a similar charge of possessing narcotic drugs, that physical or constructive possession without knowledge that the substance was possessed is no “possession in law.” Indeed one of the leading cases under the old law relating to drug offences, namely Amartey v State [1964] GLR 256, SC states the same proposition. It is permissible as persuasive authority to rely on these decisions to arrive at a definition of “possession” for the only substantial difference between this law and the previous legislation is the use of the word “authority.” Whereas the previous law demands of an accused “lawful excuse,” this present legislation requires the accused to prove “lawful authority,” if he must escape the clutches of the law. I have taken the trouble to deal with this issue in depth because of the position adopted by the prosecution both at the court below and in this court, and which view was accepted by the trinbunal that when the prosecution establishes possession, whether physical or constructive, the burden shifts on the accused to prove lawful excuse.”

My understanding of this view expressed by the tribunal is that the only element the prosecution need prove in a charge of this kind is physical or constructive possession. I thought that was a wrong view of the law. It is absolutely essential that the prosecution proves knowledge on the accused’s part. I must however add that I do agree with the view that “the prosecutiorn has no burden to prove mens rea.” The House of Lords in the Warner case (supra) clearly reiterated that the fact that the offence of unlawful possession under the Act was an absolute offence. The court explained what is meant by an absolute offence or, differently put, an offence which creates an absolute responsibility. The court said “in order to be satisfied of guilt, there is no need for the jury to be satisfied of any mental elementi in the ingredients of the offence such as we use to describe mens rea.” What this means is that provided the accusued is also proved

[p.645] of [1997-1998] 2 GLR 598 to have the necessary knowledge of possession, he is guilty of the offence whether he had a guilty or innocent mind that he had the necessary mens rea. Let me point out however that this is just an aside. It is not appellant’s complaint that there was this third requirement of mens rea which was not proved. His grievance is that it was never proved that he knew he was in possession of a narcotic substance. Although I have come to the conclusion that the tribunal erred in not considering this important element, the argument that this error has led to a serious miscarriage of justice cannot be valid because there is evidence on the record from which that conclusion could have been reached. In other words, I do not agree with appellant’s counsel that the error had led to a grave miscarriage of justice.

Again, it seems to me the position adopted by the trial tribunal, namely that all the prosecution had to prove was physical or constructive possession disabled it from considering the appellant’s defence as it stood, namely that he did not know that a prohibited substance was in the parcel. It would appear from the judgment that what the tribunal looked for as a valid defence was lawful “authority” and finding none, set out to convict the accused. In my view however, the complaint that the tribunal failed to adequately consider the defence would not automatically lead to the first appellant’s acquittal. The case of Boateng II v The Republic [1 974]J 1 GLR, 214, CA sets out the circumstances under which such a failure would lead to grave consequences for the prosecution. The learned justices opined (in holding (1)): “The argument that the failure of a trial judge to direct a jury adequately on the defence was fatal to conviction could not be true in all cases since the determination of each case depended on its own facts and special circumstances. Where there was overwhelming evidence to support the verdict, and it was one which a reasonable jury could arrive at, the appellate court would not interfere, and would apply the proviso to Act 372, s 26 (12), even though they may feel that they might have come to an entirely different conclusion themselves.”

I think this is a classic case where the proviso to Act 459, s 31 (1) ought to apply. Indeed considering the issue of whether or not the appellant knew the contents of the package he took into his custody, necessarily implies a consideration of his defence that he

[p.646] of [1997-1998] 2 GLR 598 did not know and further that he thought he was in possession of some other lawful items.

The crucial question then is, what is the evidence by which such guilty knowledge was proved or from which it could reasonably be inferred or presumed? I found the first appellant’s story of how he came to be in possession, to borrow the words of Pollock and Wright (Possession in the Common Law, p 119) the “modes or events” by which the custody commenced and what this amounts to in practical terms has been explained in great detail) so propesterouspreposterous, I think no reasonable tribunal would have come to the reasonable conclusion that he did not or did not have reason to know what was contained therein. The evidence clearly shows that there did not exist any close relationship between the alleged owner and the first appellant. Indeed, after parting company in the United States (and the evidence does not show they were friends while sojourning there) they never met or heard from each other until ten years later when the former visited him in his shop on only one ocassionoccasion. Little wonder then that when he was asked: “Q.: Was he your friend?”, his answer was “A: He was not really a friend.” That their relationship, if any even existed, was a very superficial one is also borne out by the fact that the appellant could not even tell for how long the said owner stayed in Ghana.

But then the appellant would have us believe that the next things that happened was, after bypassing the house of his own relatives at Mamobi, he walked into his house at Achimota only to ask him to take custody of a parcel consisting of “pamphlets and children things.” How did this gentleman who is not his friend know his house? The available evidence shows that that was also the first time he met the third appellant. Did he not find it surprising thati the owner did not ask his own relatives to take custody of these seemingly harmless stuff “pamphlets and children things?” Could the guardians of those children to whom some of those things belong not have been better custodians of this parcel? Or even better still, why does third appellant who he seems to know and was in any case going to take delivery of the parcel not keep it fort him until he was ready to take possession of it? Ordinarily, persons who receive other peoples parcels for safekeeping would normally seek details of what the exact contents are to enable them know how and where they must be kept – that is to say to enable a safe storage to be provided. I find it incredible that all the information he obtained and he was satisfied with was that the

[p.647] of [1997-1998] 2 GLR 598 parcel contained “pamphlets” and “childrenschildren’s things.” What type of childrenschildren’s things? Pamphlets on what?

Given the fact that the first appellant is a man of some substance and importance, a sales manager with servants working under him, I find it implausible that the said Idrisu Mohammed would go to him, take into his keeping a parcel of such small value as the appellant would have us believe. The question which keeps on coming up is, what was so special about the parcel that it is a man of his calibre who must take custody of it and pass it on to the real owner or his agents? I find his story so implausible it cannot pass the tests set in Lutterodt v Commissioner of Police [1963] 2 GLR 429, SC . I am therefore of the view that he knew or had reason to know what was contained in the package. Under the circumstance, the only way he could extricate himself was to show what legal authority he had to possess it. His failure to prove any such legal authority can lead to only one conclusion, namely he must be convicted for the offence of possession.

The main arguments raised by ground (1) of the additional grounds of appeal is that because at the time the package came into the custody of the first appellant the process of importation had been completed, he cannot be said to have aided and abetted the importation. In other words, the complaint of counsel is that there is no evidence to show that he aided and abetted the actual importation itself. While it is true that importation has not been defined in PNDCL 236, using the Customs, Excise and Preventive Service (Management) Law, 1993 (PNDCL 330) as an aid would help us arrive at a reasonably fair interpretation when we combine the meaning of the two words used in the law namely “export” and “import” as appears under section 340 of PNDCL 330. We would come to the conclusion that: (1) “import” means “to take or cause to taken into Ghana”, and (2) “the process of importation ends at the time they are duly delivered out of the charge of the proper officer.” That being so, a charge of aiding and abetting importation of narcotic drug must necessarily imply doing any of the acts specified under section 20 (1) of the Act 29 for the purpose of enabling the process of importation to be effected. That is what is meant by the expression “the act complained of must be contemporaneous with the offence.” In my view, it does follow that the acts of aiding and abetting as contemplated under the law must be acts done up until the time the narcotic substance is “duly delivered out of the charge of the proper officer,” in this case the

[p.648] of [1997-1998] 2 GLR 598

EMS official. Again this implies that acts done after the goods have been taken out of the charge of the proper officer would not constitute “aiding and abetting importation.”

Under these circumstance, I would agree with counsel for the first appellant that the evidence does not show that the first appellant committed any act in furtherance of the substantive offence. The only evidence of the role he played in the whole drama comes from his statement and the evidence he gave as well under cross-examination. It is expedient that I reproduce them. The relevant portion of his statement reads:

“About two weeks ago I was in my office when Mohammed came there with one person, a Mr Akoto who works with the P&T, Accra North branch and informed me that he would travel to Europe and that Mr Akoto would bring a parcel to me to be kept for him until his brother, namely Chuku comes to collect it.”

From this account we merely find the role he was invited to play after Akoto has received the parcel. It is not even clear where the parcel was going to emanate from. Be that as it may, there is no evidence that he aided and abetted its importation. This very shorlt account of how he came by the parcel itself is found in his evidence-in-chief:

“On 27 March 1996 at about 10 00 am I was at my office at Benjilo Fabrics when the third accused and fourth prosecution witness came to me. The third accused was holding a parcel. The parcel, exhibit D, and its contents was brought to me.”

Then the evidence elicited from him under cross-examination is as follows:

“Q Mohammed told you a parcel belonging to him will be delivered to him through third accused?

A Yes.

Q This time where did you see him?

A At my house in Achimota. When he came he said he was going to travel and that he was expecting a parcel. That Mr Akoto would bring the parcel when it arrives. That I should keep the parcel for him or he would send someone to collect it.”

[p.649] of [1997-1998] 2 GLR 598

In my opinion, the appellant is entitled to be acquitted on count (1) for the evidence shows, if anything at all, that the parcel which was imported into the country came into his custody only after the process of importation had been completed. There is no evidence that he played any role in furtherance of the actual importation.

The appeal therefore succeeds with respect to the count (1) and he is accordingly acquitted and discharged on that ground. It thus follows that the appeal however fails with respect to the count (2) and the conviction is therefore accordingly affirmed.

I have however made this startling discovery. Upon conviction of the offence of possessing narcotic drugs, the tribunal sentenced the first appellant and indeed the other two appellants to a sentence of five years imprisonment with hard labour each. This is manifestly unlawful and therefore a void sentence for it is not sanctioned by law. The appellants were charged and convicted under section 2 (1) of PNDCL 236. Subsection (2) of the same Law prescribes the minimum mandatory sentence upon conviction. The law clearly stipulates that it shall not be less than ten years. It does not vest the tribunal with any discretion to give a lesser term under any circumstances. That being so, no court has power to sentence any person convicted for an offence under section 2 (1) of PNDCL 236 to imprisonment for any term less than ten years. My plain duty under these circumstances is to comply with the law. By invoking the powers inherently conferred on me, since an appeal is by way of rehearing, and also under section 30 (a) (ii) of Act 459, I would set aside the illegal sentence and impose one accordance with law. In this regard I am constrained to do what I think the tribunal would have done had it adverted its mind to the mandatory requirements of the law. Given the circumstances of this case, particularly the sentence passed on the first and fifth appellants, the fact also that the appellant has no previous conviction, I would set aside the sentence of five years and in its place substitute the minimum sentence of ten years imprisonment with hard labour.

Now, the main grievance of the second appellant is that the trinbunal placed a wrong interpretation on the word “possession.” Since I have concluded that knowledge that one is in possession of such narcotic substance is an essential element, I would now determine whether the failure by the tribunal to consider it in this light has occassionedoccasioned any miscarrimage of justice. I think in this

[p.650] of [1997-1998] 2 GLR 598 case also that the answer should be in the negative, as there is evidence from which this guilty knowledge could be inferred.

First, in his statement which was confirmed by him under cross-examination, he maintained that the alleged owner told him the parcel contained chess and other childrenschildren’s games, toys and pamphlets. Yet the unchallenged testimony of the third prosecution witness is that “when the third accused handed over the parcel to the fourth accused, he “instantly handed over the parcel to a stationery dealer, a young boy who put it in a box and closed the box.” This unusual or strange behaviour on part of the appellant was admitted by the appellant himself under cross -examination as the following would clearly show:

“Q When fourth .accused brought the parcel he handed it over to you?

A Yes, Q When the parcel was retrieved it was given back to you?

A Yes.”

I found this behaviour on the second appellant’s part strange because he is a responsible officer working at the P & T. He describes himself as an administrative officer. He even has a secretary working under him. Why should he hand over that which he would have us believe was a harmless parcel of pamphlets and childrenschildren’s toys sent from as far as Canada and which has been entrusted to his care and custody to an ordinary boy selling stationery by the roadside for it be locked up in his box? Has he no office in which to keep it? What prevented his secretary from keeping it for him? After all, he works in the engineering section and not the department where parcels are stored. What was he afraid of? That someone might think he pinched it from among the customers’ parcels? Is that not an improbability, for in any case does the address on the back of the parcel not show it originated from GPO and not the Accra North Post Office? And indeed would a one quick place call to the GPO not have confirmed the fact that the parcel was not stolen property.

Again, the evidence clearly established that it is the second appellant, not the third appellant, who knows the alleged owneri and also where the first appellant may be contacted. He has all the details about as for example his full name and the fact that he was supposed to be out of the country at the time the parcel arrived Indeed it was he who asked the third appellant to collect the parcel

[p.651] of [1997-1998] 2 GLR 598 for him. Also, he admits that the third appellant told him the parcel was not going to be released jiunless a note authorising him to collect same were produced. The evidence shows the next day an authority note, exhibit M, purporting to come from the owner did indeed arrive at the EMS offices. The question is who else, from the given facts, could have procured exhibit M but the second appellant who from the evidence is the only person who has full particulars of both the third appellant, the man to collect the parcel and the person to whom the parcel belongs? The evidence shows exhibit M is spurious. The question is, who would want to go to such lengths, arrange to have a forged document, make it emanate from as far as Tamale merely to collect an innocuous parcel made up of such objects as children toys and a pamphlet? After all, has he not stated that Iddrisu was out of the jurisdiction? How then did he get in touch with him? I can very well understand his anxiety to procure an authority note at all costs for without it the parcel would not have been released. But the question is, what was the neccessitynecessity for making such an authority emanate from Tamale? In my view such a need would arise only where the intention is to cover up. Why would anyone want to be involved in any cover up with respect to such innocent and harmless things as toys and a pamphlet? For the second appellant now to turn round and completely deny any knowledge of the exhibit M and offer no explanation as to its source, how the sender got to know the name and address of the third appellant etc only goes to show from all the circumstances that his claim that he did not know or had no reason to know the contents of the parcel cannot be reasonably true. Perhaps had he offered any explanation as to why the exhibit M had to emanate from Tamale, my conclusion would have been different. To my mind the evidence justifies a finding that he was not only in physical possession but with knowledge of the contents. The appeal on this ground fails and is accordingly dismissed. For the reasons given in the case of the first appellant, I will set aside the sentence of five years and impose the minimum sentence often years.

The role of the second appellant in the entire drama justifies a finding that he aided and abetted the importation. He confesses in his evidence-in-chief, thus confirming his statement to the police, that he was told the parcel was being imported from Canada intco Ghana and that he agreed to find someone to collect if from the point of entry. In fulfilment of his promise, whilst the pnarcel was

[p.652] of [1997-1998] 2 GLR 598 yet to leave the charge of the EMS officer, he procured the third appellant to collect the parcel and to therefore complete the process of importation. Having concluded that he procured exhibit M, or caused it to be sent, he unlike the first appellant actively assisted in the importation. Under the circumstance, the, appeal on this count must fail and the same is hereby dismissed.

I also set aside the unlawful sentence of five years. The sentence on this count is however to run concurrently with the ten years sentence on count (3); the counsel for the third appellant submitted basically the same arguments as the first appellant counsel. I would therefore say that with respect to ground (c) of the additional grounds that there is evidence from which, like the other appellants, we can reasonably infer that he knew or had reason to know what was contained in the parcel. Why do I say so? The unchallenged testimony is that on receipt of the parcel he went and kept it in a fridge. The natural question again would be, why should he or any reasonable person with an innocent mind want to keep a “clean parcel” (he said in his statement to the police that he was told they contained books) lawfully and duly collected upon the production of all necessary documents, namely authority note and identity, want to keep the parcel so collected in an unused fridge? In fairness to him, I have adverted my mind to his explanation that his office was locked (see his statement of 4 February 1997). But I find that excuse not only fanciful but a complete lie. The evidence, unchallenged, of the first and second prosecution witnesses shows that upon taking delivery of the parcel he quickly took it to an office at the GPO, came out from the office with the parcel before going into the canteen in the GPO to keep the package in the fridge. Nevertheless, even so, assuming even his office were locked, is an unused fridge the safest place for keeping it? If his office were closed, why did he not leave the parcel with the EMS for collection later when his own offices were open? Alternatively, why did he not carry it on himself while the office doors were open? After all he has not shown that it was of such size that it could not be carried about. Innocent chance collectors (as he was described by his counsel) do not keep parcels in such unholy places. I can only infer from the place where the parcel was hid that he knew or must have reason to know the contents. In my view, since there is evidence on the record to sustain the charge it cannot be said that only or the errors that the tribunal might have committed have occasssionedaccessioned any serious

[p.653] of [1997-1998] 2 GLR 598 miscarriage of justice. With the proper directions this verdict would have been the same. I would therefore dismiss the appeal based on these grounds.

It was also contended that the conviction cannot be supported for the simple reason that the evidence shows the parcel had arrived in this country before the third appellant came into the scene. More particularly, it was submitted that since the evidence does not prove that the importation has been completed, he ought not to have been convicted.

I have stated my views clearly on what constitutes “importation.” The process is completed when the goods leave the charge of the officer at the point of entry. Also, “importer” is defined as the one who signs the goods (obviously at the point of entry) on behalf of the owner. It follows that when he signed for and collected the parcel, he was very much part of the process of importation. In fact his act not only sealed, but also perfected the very deed or act of the importation. In other words he aided and abetted the importation. It follows that the argument is invalid and the appeal must fail on this ground. It is accordingly dismissed. Both convictions are affirmed. I will once again substitute for the unlawful sentence of five years on count (3) a sentence of ten years. Both sentences to run concurrently.

Gbadegbe J. On 29 November 1996, in the Regional Tribunal holden at Accra, the appellants herein were charged with the offences of abetment of the unlawful importation of a narcotic drug, to wit heroin and being in possesionpossession of the said drug without lawful authority. The said charges were brought under the provisions of the Narcotics Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236) and in particular sections 56 (c) and 1 (1) in respect of the offence of abetment, and section 2 (1) for that of possession. They were eventually convicted after a full scale trial and now appeal to this court against their conviction by the said trial tribunal.

The facts giving rise to the charges being preferred appear to be as follows: The security agencies in Ghana having suspected a parcel which originated from Thailand consigned to an address in Ghana to contain a narcotic drug, mounted surveillance at the Expedited Mail Service (EMS) office in Accra, the place from which the parcel was to be collected. On 27 March 1996, the third appellant herein want to the EMS Office where he obtained the

[p.654] of [1997-1998] 2 GLR 598 parcel. Before he went to collect the same, he had been there previously and was asked to produce an authority note from the owner since he wvas not the consignee. On that fateful day when he west to collect the parcel, there was a fax message from the owneri which authorized him to receive the parcel. Having succeeded in taking the same, he moved in the direction of his office and having reached thereto he placed the parcel (exhibit D) in an unused fnridge. When he was confronted about the contents, he said he did not know what it contained and that the second appellant had asked his to collect the same for him.

He was asked to take thec personnel who had confronted him to the said second appellaniappellant which he did. When the second appellant was seen, he also received the parcel from the third appellant and moments thereafter handed the same over to a bystander who placed it is a bag which he then closed. NatuarallyNaturally, the personnel from the security agencies confronted him also about the contents but hec said he did not know and that it was the first appellant who had asked him to receive them for him. He was then asked to receive the parcel which he did. Again, he led the personnel who confronted him to the first appellant who also took the parcel and when confronted he said he knew not of the contents and that the true owners had asked him to collect it for them. He further indicated that they would turn up for the same and indeed the said persons turned up to collect the parcel and were arrested. In all five persons including the appellants herein were arrested and tnried. At the end of the trial, the appellants, as said earlier on, were convicted on the offence of abetment of unlawful importation and possession of the prohibited narcotic drug, heroin, which was admitted in evidence as exhibit A; the parcel itself being exhibit D.

In this appeal, several grounds were argued which run into more than three adjournments, each appellant being represented by different counsel and the respondent also, replying to the submissions made. In my view, having regard to the powers of this court under section 31 (1) and (2) of the Courts Act, 1993 (Act 459), which is expressed in the same words as the proviso toc section 26 (12) of Courts Act, 1971 (Act 372) and should thereforen have the same effect in relation to criminal appeals, the questiont which this court has to consider is whether having regard to the evidence, the conviction of the appellants is well founded? It may also be asked thus: whether in the absence of the matters

[p.655] of [1997-1998] 2 GLR 598 complained of in this appeal, the verdict would have been the same? See (1) Yirenkyi v The State [1963] 1 GLR 66 at 73, SCc, (2) R v Haddy [1944] 1 KB442, ccCCA, CA and (3) Boateng II v The Republic [1974] 1 GLR214.

It is settled at law that if the answer to the questions formulated above, having regard to the powers of this forum sitting on an appeal in a criminal matter, is in the affirmative, then it has the effect of saying that on the admitted evidence at the trial any reasonable tribunal would have convicted the appellants, in which case the appeal ought to be dismissed. On the other hand, if the said questions are answered in the negative, then it has the effect of saying that the admitted facts at the trial did not satisfy the burden of proof against the appellants and consequently their conviction was an instance of miscarriage of justice, in Wwhich case their appeals ought to be allowed. See R v Thomas [1957] 3 All ER 350.

Indeed, in the Boateng II case (supra) at 222, the Court of Appeal in considering section 26 (12) of the repealed Act 372 which, as earlier on said, is in the same words as section 31 (1) of the current Courts Act, Act 459, did indicate of the proviso as follows:

“But we wish to state quite clearly that this court will apply the proviso to section 26 (12) of the Courts Act, 1971, where (1) the evidence against the appellant is overwhelming, and (2) it (the court) is satisfied that on the whole of the facts and with a correct direction the only proper verdict would have been one of guilty.”

In my view therefore, having regard to the powers contained in section 31 (2) of Act 459, this court has to consider (1) whether the evidence against the appellants is overwhelming, and (2) whether on the whole of the facts (evidence properly admissible) and a correct application of the law, the only verdict would have been one of guilty. I next proceed to the grounds which were argued on behalf of the appellants.

As earlier on said, several grounds of appeal ware argued on behalf of the appellants. The said grounds are as follows,. On behalf of the first appellant:

“(1) The panel misdirected itself in considering the charge of ‘abetment’ to wit, of importation of narcotic drugs as

[p.656] of [1997-1998] 2 GLR 598 proved when there was no proper evidence before the court as to any assistance given by the first appellant in its importation.

(2) The tribunal erred in law in its definition of ‘possession’ sad misapplied the legal principles of possession enunciated in case of Munkaila v The Republic [1995-96] 1 GLR 367, SC. This error resulted in a substantial miscarriage of justice.

(3) The trial tribunal also erred in admitting prejudicial and unproved evidence as adduced by the prosecution in cross-examination of the second accused person.

(4) The trial tribunal also erred in misdirecting itself on the law as to admission of statement, ie not given on oath and not repeated in court.

(5) The trial tribunal did not take into account and did not evaluate the evidence of the prosecution witness and thus the judgment does not reflect the evidence of the prosecution witness.

(6) The trial tribunal erred in not viewing the second accused person and indeed the second and third accused persons’ positions via-a-visa the handling of the parcel as not more than mere bailees or servants without any right to know the contents thereof and thereafter to be fixed with intention to possess.

(7) The tribunal erred in law by its complete failure to consider the defence of the first appellant.”

As regards the second appellant, the learned counsel who appeared on his behalf expressed himself as adopting the arguments canvassed on behalf of the first appellant by his respected colleague. What I understood him to mean by this approach is that the attacks made on the conviction by the said counsel applied equally to his client. He, however, made a positive urging to the effect that section 2 (1) of PNDCL 236 when truly construed required an accused to have knowledge of the substance which he is alleged to possess to be lawfully proceeded against. The second appellant only filed two grounds of appeal, namely:

“(1) Conviction was wrong and unreasonable having regard to the evidence on record.

(2) The trial tribunal erred in law in that it failed to consider the defence of the accused person”

[p.657] of [1997-1998] 2 GLR 598

His adoption of the arguments must relate only to these.

On behalf of the third appellant, in view of one of the grounds being found to be too general and vague, namely “the conviction was wrong in law,” he only argued that “the judgment of the trial tribunal is unreasonable and cannot be supported having regard to the evidence adduced at the trial;” and that which was formulated thus: “That the trial tribunal failed to consider fairly and adequately the defence of the appellant.” He also added that he adopted the submission of Mr Owusu Fodwuor, counsel for the first appellant, in his arguments on behalf of the first appellant. Again, as commented earlier on in relation to the approach of counsel for the second appellant in saying that he adopted the arguments of his respected colleague for the first appellant, I think that since the appellants have come to this court based on different notices and grounds of appeal, to have the benefit of the arguments made on behalf of the first appellant, the grounds must either be similar and/! or the same. I do not, speaking for myself, think that where there is no similarity in the said grounds argued, this court can give the benefit of the points so raised to either the second or third appellant, because arguing on behalf of his client counsel for the first appellant limited himself only to the consideration of the evidence admitted at the trial against his client.

In my opinion, the issues which arise for a determination in this appeal are whether the prosecution was able at the end of the trial to prove the respective cases which it had made against the appellants on the offences hereinbefore referred to? But before then, I wish to consider the points of law raised on behalf of the first appellant in relation to the admission of certain pieces of evidence at the trial. It was urged on his behalf that in the course of the trial the panel, notwithstanding an objection in that behalf, permitted prejudicial evidence to be tendered against his client to the effect that he was a notorious drug dealer. It was also sought to show that he was involved in other pending cases. In my opinion the law on this may be found in the Evidence Decree, 1975 (NRCD 323), s 52 (b) to wit:

“The Court is its discretion may exclude relevant evidence if the probative value of the evidence is substantially outweighed by–—

[p.658] of [1997-1998] 2 GLR 598

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

In my opinion this is a requirement of the position which exists at common law contained in several judgments, one of which may be cited, namely Thompson v R [1918] AC 221 at 232, per Sumner LJU to the following effect:

“No one doubts that it does not tend to prove a man guilty of a particular crime to show that he is the kind of man who would commit a crime, or that he is generally disposed to crime and even to a particular crime.”

I think that this statement of the law must be jealously guarded in order to secure the protection of accused persons. I think therefore that the admission of the said pieces of evidence was wrong; they ought not to have been admitted. I am surprised that in the face of clear objection to that effect, the tribunal ignored what is not only a well-settled principle of the common law but is contained in the NRCD 323.

Before considering what this court should do with the evidence which I have found to have been wrongfully admitted, I wish to turn to the ground which also raises a similar point in respect of the usage of the out-of-court statement made by the first accused who was tried in his absence as a basis to convict the appellants I must say that while not totally in agreement with counsel that the said statement ought not to have been used at all, I wish to say that its use should have been restricted only to the maker, ie the first accused. In the absence of the maker being available to have afforded the other accused persons of the opportunity of cross-examining him on those facts which implicated them, the court ought not to have accepted the truth of what is contained in the said statement. See (1) section 118 of NRCD 323 and (2) Frimpong v The Republic [1980] GLR 575.

Having come to the view that the said pieces of evidence were wrongly admitted, this court as an appellate court is enabled at law to exclude the said offending pieces of evidence from the record In such a case the court should go further to consider whether in their absence there was some other admitted evidence to sustain the conviction: (1) R v Hilton (1971) 55 Cr App R 466, CA (2)

[p.659] of [1997-1998] 2 GLR 598 Banda v Republic [1975] 1 GLR 52 at 56 and (3) Mahama v The Republic [1980] GLR 100, CA.

It must also be stated that section 5 (3) of NRCD 323 provides what the approach of an appellate court in such a matter should be in the following words:

“(3) No finding, verdict, judgment or decision should be set aside, altered or reversed on appeal or review because of the erroneous exclusion of evidence unless—–

(b) the erroneous admission evidence resulted in a miscarriage of justice.”

See also section 5 (2) of NRCD 323 for some of the matters to be considered by an appellate court in such a situation when a trial court relied on erroneously admitted evidence and (1) R v Green (1908) 1 Cr App Rep 124, CCA. And (2) R v Brown (1908) 1 Cr App Rep 256, CCA.

In view of the fact that learned counsel for the first appellant has conceded that the evidence which sought to portray his client as a notorious drug dealer and link him with other pending cases involving drugs was not taken into account by the court in its evaluation of the evidence, there cannot be said to be any miscarriage of justice arising only from the misreception of the said evidence. As regards the wrongfully admitted pieces of evidence, including that which was accepted by the tribunal as the truth of the matters therein contained (see exhibit G), as said earlier on, they must be expunged and thereafter the matter proceeded with on the basis of whether in the absence of the said erroneously admitted pieces of evidence, there is evidence to sustain the conviction? See (1) R v Curnock (1914) 10 Cr App Rep 207, CCA. So stated, my next task is to consider whether from the evidence properly admitted, there was sufficient evidence to enable a reasonable tribunal come to the view of the facts which the trial tribunal came to, ie whether the evidence was such as to have enabled the court of first instance to convict the appellants on the charges preferred against them.

I wish to commence from a consideration of the offence of the abetment of unlawful importation. In my view the facts which were tendered by the prosecution generally to sustain the charges were not challenged; the only issue which from the proceedings appear to have been taken by the appellants being that their conduct disclosed not the offences with which they were charged.

[p.660] of [1997-1998] 2 GLR 598

It was contended on behalf of the appellants that at the time the parcel on which the charges are based (exhibit D) reached Ghana the offence of importation was completed and as such they could not legally have abetted its commission. On the other side of the fence it was urged on behalf of the Republic that until the parcel reached the owners, the importation was not completed. The enabling section, namely section 56 of PNDCL 236 provides:

“Any person who– (c) abets or is engaged in a criminal conspiracy to commit any offence under this Law or under any other corresponding foreign law whether or not the offence is committed, is guilty of the offence . . .”

Since “abetment” is a term of art defined in the Criminal Code, 1960 (Act 29), in my thinking it is important that one considers what Act 29 says of this. In section 20 (1) it is provided thus:

“20. 1 Every person who, directly, or indirectly, instigates, commands, counsels, pocures, solicits or in any manner purposely aids, facilitates, encourages, or promotes, whether by his act or presence or otherwise, and every person who does any act for the purpose of aiding, facilitating, encouraging, or promoting the commission of a crime by any other person, whether known or unknown, certain or uncertain, is guilty of abetting, that Crime, and of abetting the other person in respect of that crime.”

Examining the two pieces of legislation together, I am of the view that an act which constitutes an abetment must have the effect of furthering the commission of a crime, which act must be either before the commission of the crime or at the time of its commission, ie it must be contemporaneous. See Commisisoner of Police v Nyamekye [1961] GLR (Pt II) 756, SCc.

I now turn to the evidence and wish to say that for the purpose of this offence the relevant acts of the appellants to be considered are those which were done before exhibit D was taken out of the EMS Office. In coming to this view, I wish to say that although the word “importation” is not defined in PNDCL 236, the definition of the word “importer” in section 340 of the customs, Excise and Preventive Service (Management) Law 1993, (PNDCL

[p.661] of [1997-1998] 2 GLR 598

330) may be of some assistance. The said law defines “importer” as:

“including the owner or the person for the time being possessed of or beneficially interested in any goods at and from the time of their importation until they are duly delivered out of the charge of the proper office, and also any person who signs any document relating to any imported goods required by this law to be signed by an importer.”

Applying the said definition to the facts of this case as contained in the record of proceedings, there can be no doubt that the conduct of the third appellant who it was who actually took delivery of the parcel from the “charge of the proper officer” is one within the intendment of the law. As regards the second appellant, it was only after the third appellant had succeeded in taking the parcel from the charge of the proper officer that he had anything to do with it. But before then, the evidence on the record, which he does not deny, is that it was he who asked the third appellant to take the parcel from the EMS Office for him. I think that effect of his request is one which purposely aided or facilitated the commission of the offence of unlawful importation.

I think that on this ground the second appellant is also caught in the web of section 56 of PNDCL 236. What about the first appellant? I have examined the admitted evidence on the record and I have come to the view that since his role commenced only after the parcel had come out of the charge of the proper officer, no evidence being led to show that before then he had by his act, presence or otherwise aided and/or facilitated the taking out of the parcel from the EMS section of the Post and Telecommunication Corporation (P & T), I do not think that his conviction for the offence of abetment can be supported by the evidence. I must say that both the version related by the prosecution, through its witnesses and that tendered by the first appellant in his defence are silent on the role which he played such as to evince an abetmenti within the intendment of the law. Of particular significance is the fact that when he testified his version of the facts which in my view clearly exenoratedexonerated him on the charge of abetment was notl challenged under cross-examination, the effect of which is that the first appellant’s conviction for abetment was wrong.

I now turn to the offence of possession created under section 2 (1) of PNDCL 236 in the following words “Any person who,

[p.662] of [1997-1998] 2 GLR 598 without lawful authority, proof of which shall be on him, has in his possession or under his control any narcotic drug commits an offence.” While on behalf of the appellants it was contended that to constitute an offence under section 2 (1) of the Law the prosecution must prove that they had legal possession, ie physical possession coupled with knowledge of the contents of that which they possessed, on the other side of the fence it was said that once there is proof that the appellants had physical possession at one time or the other of exhibit D, then upon their failure to provide the specified authority under the Act they come within the class of persons competent to be proceeded with under the law. I think that the said urgings raise on the one hand the requirement of mens rea and on the other that the offence being considered is one of absolute prohibition (and/or strict liability). What the exact nature of the offence is may be seen when the word “possession” as expressed in section 2 (1) is given a true construction. On the nature of a crime of strict liability, see (1) Halsbury ‘’s Laws of England, (4th ed), Vol II, paras 18 and 20-21; (2) Sweet v Parsley [1970] AC 132 at 148, per Reid LJ.

I would however say that while a crime of absolute prohibition prohibits an act under the sanction of a penalty for non- compliance, the general view is that to constitute a crime one should have done something which brings about the ingredients of the crime and by so doing incurs criminal liability, ie there can be no liability without the requisite mens rea. This view of criminal responsibility is quite a strong presumption applied when con struing crimes. Words such as “recklessly”, “maliciously”, “know ing and believing”, “maliciously”, “wilfully” and “permitting” are often used in denoting the mens rea requirement and although their absence from legislation does not conclusively mean that it is thereby only intended to dispose with mens rea, it is a factor which may be taken into account.

Further to the above, whereas in this case the present legislation, PNDCL 236, may be said to be a later Act which came to repeal certain provisions of the previous one on drugs, namely the Pharmacy and Drugs Act, 1961 (Act 64), then if in enacting the later legislation the law-maker has used words which have received settled judicial interpretation under the previous one, then there is the presumption that the words were used in the context in which they have been construed. This presumption however is only a guide to construction and may be displaced by the use of

[p.663] of [1997-1998] 2 GLR 598 words which clearly show a contrary intention or the decision is found to be erroneous or an instance of injustice: see R v Bow Road Domestic Proceedings Court; Ex parte Adedigba [1968] 2 All ER 89 at 93, CA, per Denning MR. The said presumption in my thinking has the effect of providing for consistency and giving effect to the due process of law requirement particularly in a system such as ours in which the doctrine of judicial precedent is significant; indeed a feature which distinguishes it from other system such as the civil law jurisdiction. This presumption may be found in the following words of James LJU in Greaves v Tofieldc (1880) 14 Ch D 563 at 571, CA as follows:

“. . . if an Act of Parliament uses the same language which was used in a former Act of Parliament referring to the same subject, and passed with the same purpose, and for the same object, the safe and well known rule of construction is to assume that the Legislature when using well–known words upon which there have been well–known decisions uses those words in the sense which the decisions have attached to them.”

See (1) Barras v Aberdeen Steam Trawling & Fishing Co (1933) AC 402 at 446; (2) R v Sheppard [1980] 3 All ER 899 at 906, HL,; (3) Republic v Tekperbiawe Divisional Council [1972] 1 GLR 199 at 207.

I next pass to consider the meaning which was placed on the said words in the previous Act. It is settled that the said word attracted a meaning in a long chain of cases to the effect that to be legally possessed of an article one must be proved to have knowledge of the nature of the article, ie what it is that he posses ses. See in particular (1) Amartey v The State [1964] GLR 256, SC; and (2) Nyameneba v The State [1965] GLR 723, SC. I have particularly examined the present section, namely section 2 (1) of PNDCL 236 which in my view is a re-enactment of virtually the previous section 47 (1) of Act 64 with the exception that while previously the possession had to be one of lawful excuse, now one has to provide lawful “authority” for the said “possession.” From my examination, I do not see from the words as they are expressed that the law-maker intended a meaning to the contrary. I also do not think that the said construction results in any injustice and therefore in my thinking, to constitute an offence under section 2 (1), one has to prove in relation to the appellants both actual or

[p.664] of [1997-1998] 2 GLR 598 physical possession and also that they knew that exhibit D ofi which they were possessed contained a prohibited narcotic drug, namely heroin. Indeed, in the case of Anni v The People, Court ofi Appeal, 26 May 1995, unreported, which considered the word “possession” in section 2 (1) of PNDCL 236, the same view was taken. It was noted, in the words of Acquah JA (as he then was), thus: “The rule therefore is established in relation to an offence that a man cannot be said to possess something until he knows that he possesses it and is also aware of its true character . . .” In coming to this construction, the court had considered the settled interpretation placed on the word “possession” under the previous Act namely, the Pharmacy and Drugs Act, 1961 (Act 64). So said, in my opinion, to incur liability under the section one must have not only physical possession but be aware of what one possesses.

It is common knowledge however that it is very often difficult to prove the knowledge of some other person, particularly one accused of a crime. Knowledge in a crime is proved not only by actual knowledge which in many cases cannot be so done, but by resort to what is known as circumstantial evidence by which the entire circumstances are considered and a presumption and/ori inference is placed on the said facts. In such a case, however, certain primary facts would have been established from which the inference is then made. An example of when to make such an inference was referred to by Wright LJU in Caswell v Powell Duffyn Associated Collieries Ltd [1940] AC 152 at 169, HL as follows: “My Lords, the precise manner in which the accident occurred cannot be ascertained as the unfortunate young man was alone when he was killed. The Court therefore is left to inference or circumstantial evidence. Inference must be carefully distinguiseddistinguished from conjecture or speculation. There can be no inference unless there are objective facts frorrm which to infer the other facts which it is sought to establish. JIrn some cases the other facts can be inferred with much as practical certainty as if they had been actually observed. InJr other cases the inference does not go beyond reasonabhle probability. But if there are no positive proved facts froffm which the inference can be made, the method of inference fails and what is left is mere specu lation or conjecture.”

[p.665] of [1997-1998] 2 GLR 598

See also R v Burdett (1820) 4 B & Alid 95 at 161, per Abott CJ and (2) Nyame v Tarzan Transport [1973] 1 GLR 8 at 15. Indeed in the case of Asamoah v The State [1962] 2 GLR 207 at 209, SC Crabbe JSC observed similarly of an offence involving possession thus: “It is not necessary for the prosecution to lead evidence of actual knowledge; it is sufficient if there is evidence from which knowledge of the accused may be justifiably inferred.”

I wish to say that the method of inference which I have referred to, though said in a civil matter, is in the realm of evidence and applies equally to crimes. See section 18 (2) of NRCD 323. In cnriminal matters, having regard to the requirement of proof beyond all reasonable doubt, the inference from the surrounding circumatancescircumstances must be one which leads to an irresistible conclusion of guilt and not consistent with innocence. See (1) State v Anani Fiadzo [1961] GLR 416, SC; (2) Domena v Commissioner of Police [1964] GLR 563 at 565, ScC; and (3) Nyame v The Republic [1971] 2 GLR 140. In the latter case, the Court of Appeal quoted with approval the statement of the law on this point which appears in R v Taylor (1928) 21 Cr App Rep 20 at 21, CcCA thus:

“It has been said that the evidence against the applicant 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.”

A patient and critical examination of the evidence admitted at the trial raises certain questions touching and concerning the conduct of the appellants which have, in my thinking, the effect of casting suspicion on them such as to render their denial of the knowledge of the content of exhibit D not reasonably probable. For instance, it may be asked why were they readily willing to assist the true owner of the parcel in its collection even before the same had reached the shores of Ghana? Why again did they proceed to collect the parcel which did not oOrginateoriginate from Ghana as the second appellant said was the destination which the owner mentioned to him when it was quite clear that exhibit D had as its place of origin Thailand? Further, it may be asked why did the third appellant moments after he had succeeded in collecting the pnarcel from the EMS office have the same placed in an unused

[p.666] of [1997-1998] 2 GLR 598 fridge? Perhaps, one may also wish to know why the second appellant soon after receiving exhibit D from the third appellant have to give it to a bystander who also immediately placed it in a box and closed it? Was the presence of the said bystander fortuitous or deliberate? Also, why did the true owners not turn up themselves to collect what was theirs but had to solicit the assistance of three Ghanaians of whom the two who were concerned with taking the parcel out of the post office were employees of the P & T?

I have no doubt that these questions and others which legitimately arise from the evidence would tend to be supportive of the fact that the appellants conducted themselves with a view to prevent the detection of the contents of exhibit D. I also have no doubt that from the surrounding circumstances any tribunal of fact composed of reasonable man would have any difficulty in coming to the conclusion that the appellants very well knew that exhibit D contained heroin, a narcotic drug whose possession is prohibited under section 2 (1) of PNDCL 236. I do not think that proof of the knowledge of the appellants by resort to circumstantial evidence does any injustice to them at all, it being the only inference that may be presumed from their admitted facts which unfolded at the trial. Perhaps the appellants thought that what they had carefully contrived of will never come to light, but as fate would have it they were caught right in the act at a time when they very well might have thought that they had succeeded in achieving their design. I am of the view that in such a case, they must have the courage of men to face up to the consequences of their voluntary acts. I do not also think that their conduct whenp looked at within the context of the surrounding circumstances would lead any reasonable tribunal to the view that they are innocent. I do therefore think that their denial of the knowledge of the contents of exhibit D was an afterthought, an attempt by them to be wiser after the events.

In my opinion, I do not think that the appellants who I must say appear to me to be men of reason and responsible men did not put themselves in a situation whereby they would reasonably have inquired of the role which they had accepted to play in the matter, and that hjiaving done so, very well knew of the perilous nature of their assignment. If on the other hand, as their feeble denial would seem to portray, they did not embark upon such an inquiry, then they would have done so deliberately, in which case they have

[p.667] of [1997-1998] 2 GLR 598 themselves only to blame for having behaved in a careless manner and would have to be met with the imputation that men of reason would place on their conduct. In my opinion therefore their conviction on the charge of possession laid under section 2 (1) of PNDCL 236 was proper.

I wish at this stage to pause and consider a point of law urged on behalf of the appellants regarding their liability in view of the fact that they were not the owners of exhibit D. It was said that they were mere bailees and persons who had no right to know of the contents of exhibit D, and as such they did not come within the purview of section 2 (1) of PNDCL 236. I share a contrary opinion. In fact a dispassionate and clear reading of section 2 (1) of the PNDCL 236 shows that the law-maker intended to create the offence in respect of both the one who actually handled the prohibited drug and the owner who might not have had actual possession of the parcel irrespective of the purpose for which the possession was. Where therefore from the facts those who exercised actual or physical possession are not the real owners, then the person(s) at whose instance they had possession, ie the owner is also liable to be proceeded against. I do not think it is right to say that once the owner is found, those who at his behest had possession such as the appellants do not commit the offence of possession. I think that this view of the law which learned counsel for the appellants sought to have this court place on the provision contained in section 2 (1) of PNDCL 236 is a strained and an unnatural meaning which finds no favour with me and I proceed without any hesitation to reject the same. I must note that I am surprised that in the face of the clear statement contained in the words of Aikins JSC in the case of Munkaila v The Republic (supra) at 371 which was quoted in the judgment of the trial court, learned counsel for the appellants based their submission on this point on the said statement which is as follows:

“A person is said to be in constructive possession or joint possession of an object if he has control over the other person in physical control of the article as to its disposal, control or otherwise. The actual manual possession or touch of the goods by the prisoner, however, is not necessary to the completion of the offence. It is sufficient if the prosecution can prove that the article was in the possession of a person

[p.668] of [1997-1998] 2 GLR 598 over whom the defendant or accused had control, so that the article would be forthcoming if he ordered it . . .”

I think that there is nothing in the said statement which supports the view that a non-owner of a prohibited drug mentioned in the schedule to PNDCL 236 who is proved to have had possession of the drug cannot be proceeded against under section 2 (1) of the law. Since the appellants were found to have at one time or the other manually possessed exhibit D and yet were unable to provide the specified lawful authority provided in the law when they were called upon to defend themselves, I have no reason to doubt that their conviction for the offence of possession laid under section 2 (1) of the said law was proper. I do not think that any tribunal composed of reasonable men would or could have come to any other conclusion and that consequently their conviction on the charge of possession is no instance of miscarriage of justice. I think that this view must equally apply to the conviction of the second and third appellant on the charge of abetment of unlawful importation of a narcotic drug.

The result is that the conviction of the second and third appellants on the charge of abetment is affirmed and their appeal dismissed on the same. As regards the first appellant, his conviction on the said charge is set aside and he is accordingly acquitted and discharged on the same. I also think that the sentences passed on the second and third appellants pursuant to the said conviction are lawful and I desire not to interfere therewith. As regards the conviction for possession, as said earlier on, the same was proper and consequently the appeals of the three appellants against the same is dismissed and the conviction affirmed.

I have however noted that contrary to the mandatory provisions of the section which provides the punishment to be meted out, the tnrial tribunal went on its own in imposing a sentence which is not warranted by the law. In particular, I wish to quote section 2 (2) of PNDCL 236 which provides for the penalty to be imposed for persons who come within the ambit of section 2 (1). It provides as follows: “Any person found guilty of an offence under subsection (1) shall on conviction be liable to imprisonment for a term not less than ten years.” I have carefully read the entire legislation and I am of the view that it does not give any discretion to a court which convicts an accused under section 2 (1) for the offence of

[p.669] of [1997-1998] 2 GLR 598 possession of a narcotic drug without lawful authority to impose a sentence lower than ten years. The discretion which is conferred on a court which convicts for the offence under the law to impose a lower sentence relates to offence under section 5 (1) and 6 (1) relating to the use and supply of narcotic drugs. This being so, the imposition of a sentence of five years by the trial tribunal is one which is not authorised at law and as such is illegal. In my view, notwithstanding the fact that in this court no point has been raised on the said sentence, it being purely legal point, this court exercising itself as an appellate court may under section 30 (a) (ii) of Act 459 alter the sentence in order that the requirements of the law may be given effect to. The said section provides as follows:

“30. Subject to the provisions of this Sub-Part, an appellate court may in a criminal case– (a) on an appeal from a conviction or acquittal– (ii) alter the finding, maintaining the sentence or with or without altering the finding, reduce or increase the sentence.”

I think that there can be no doubt that this provision enables an appellate court to set aside illegal sentences which may either be in excess of the statutory maximum or as in this case fall below the statutory minimum provided for an offence. Where a court imposes an authorised sentence pursuant to a conviction it has the effect of rendering the conviction bad on its face and a clear instance of a miscarriage of justice. Indeed, in the case of R v Wilesden Justices; Ex parte Utley (1948) 1 KB 397 at 398-399, Goddard LCJ said of such sentences, in a manner which I accept as a correct exposition of the law, as follows:

“. . . but having considered them all, my opinion remains an it was at the outset, that if a sentence be imposed which is not authorised by law for the offence for which the defendant is convicted, that makes the conviction bad on its face and being a bad conviction, it can be brought up here to be quashed, and when so brought up, must be quashed, for this court has no power, and never has had any power on certiorari, to amend the conviction. That power could only be exercised if the court was sitting as a court of appeal . . .”

This court, sitting as a Court of Appeal, has the express power to substitute an appropriate penalty. Where a wrong penalty has been

[p.670] of [1997-1998] 2 GLR 598 imposed, I think that this power enables the court to do that which is appropriate; and in so doing serve to enhance public confidence in the criminal justice system. The power of this court to set aside an excessive penalty, ie a penalty beyond the statutory maximum, has never been doubted and I can see no reason in principle why, if as in this case the penalty falls below that provided by statute, this court cannot intervene to correct the wrong. Accordingly, the sentence of five years imprisonment with hard labour imposed on all the appellants pursuant to their conviction under section 2 (1) is hereby set aside. In place thereof is substituted ten years imprisonment with hard labour. Where the sentences relate to more than one offence they are to run concurrently.

Appeal dismissed

SA