NYAMENEBA AND OTHERS v. THE STATE [1965] GLR 723

DIVISION: SUPREME COURT

DATE: 6 DECEMBER 1965

BEFORE: OLLENNU, AKAINYAH AND SIRIBOE JJ.S. C.

CASE REFERRED TO

Amartey v. The State [1964] G.L.R. 256, S.C.

[p.724] of [1965] GLR 723

NATURE OF PROCEEDINGS

APPEALS against convictions on a charge of possessing Indian hemp. The facts are set out in the judgment of Ollennu J.S.C.

COUNSEL

Appellants in person.

J.N.K. Taylor, Senior State Attorney, for the respondent.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. This is a very interesting case both as well with respect to the facts as with respect to the law involved. The appellants were tried at the criminal session,

Takoradi, by a circuit judge with the aid of assessors, on an indictment which charged some of them with possessing Indian hemp, some with smoking Indian hemp, and all of them with cultivating Indian hemp.

The appellants are members of a certain religious sect, and live in a place called Princess Town in the

Western Region. For the last four years or more prior to their arrest they have been growing certain herbs and been using them for all sorts of things, e.g. they have been burning a herb as incense for invocation at their worship, making soup out of it, boiling and using it themselves or administering it to other people as medicine for all kinds of ailment with success. They alleged that the father of one of them, upon spiritual inspiration, discovered these herbs and the sect had ever since used them publicly to the good of all the members and their associates. They call the herbs, “The herbs of life.” Here it is appropriate to quote in full the evidence-in-chief given by the second appellant in his defence to the charges:

“I am a farmer. I live at Princess. My leaves are leaves of life. I smoke the leaves which give me wisdom, understanding and strength so that I don’t do after some other people live. I don’t steal, I don’t lead a bad life. I don’t give false evidence against others. I am able to conform to the ten Commandments. When I smoke, I preach the Gospel to others so that they lead good lives. When I smoke the leaves, I don’t drink. In

Genesis Chapter 2 verse 9 the leaves are referred to.”

Continually the appellants had, at their public worship, condemned the chief and his elders, and particularly the youth of the town, for indulging in alcoholic and spirituous drinks, and for smoking cigarettes; these practices they alleged lead the people to bad lives which shut the gates of heaven against them; on the contrary they preached that if the youth would abandon drinks, cigarettes and the consequent bad life and would use the herbs of life, they would surely go to heaven when they died.

[p.725] of [1965] GLR 723

The appellants, as it would appear, make themselves a nuisance to all people outside their sect, and on

Christmas Day, 25 December 1963, some of the elders complained to the chief about their conduct and requested him, the chief, to take steps to stop this molestation. The chief thereupon sent some of his elders to the first, second, third and fifth appellants to remonstrate with them; the appellants on the contrary tried to convince the representatives of the chief about the alleged herbs of life, produced and showed some to them, and smoked some in their presence. The representatives suspected that the herbs might be Indian hemp, and took the appellants to the ahenfie. There the first, second, third and fifth appellants insisted that theirs are herbs of life, and not Indian hemp, whatever Indian hemp might be. The evidence of the chief and his elders disclose that none of them, the villagers, really knew what the stuff was; they merely suspected, from what they had heard of Indian hemp, that it may be Indian hemp. The party, i.e. representatives of the chief, the first three and the fifth appellants, and a crowd returned to the house of the first appellant, and there the fourth, sixth and seventh appellants came and introduced themselves as members of the sect, and produced some more of the stuff to the crowd. The chief caused the appellants to be taken to the nearest police station at Agona, to report the incident. There too the appellants maintained that the herbs in question are herbs of life, and could not on any account be what the police and the others called Indian hemp. Upon invitation of the appellants the police accompanied the appellants to a farm where they were growing the herbs.

From the time that the appellants have been known to possess these herbs, up to the time they appeared before us, the appellants have consistently maintained that their herbs are herbs of life and cannot by any means be the thing called Indian hemp. As part of their case, the prosecution tendered in evidence the chemist’s analytical report on the herbs certifying that the herbs are Indian hemp. The appellants did not object to the admission of the certificate, but insisted that the certificate could not relate to the herbs collected from them, and they therefore requested that the chemist should appear in person for them to cross-examine him with respect to the quality of their herbs, in the hope of eliciting from him, evidence which should convince the court that the stuff could not be Indian hemp. Accordingly the court made an order directing that the chemist who submitted the report should be called by the prosecution to give evidence; and the case was adjourned at that stage. On the next hearing day, the court made the following note, “Mr. Boateng states that the chemist is not from the country, and does not wish to call the chemist.”

The Mr. Boateng referred to is the state attorney

[p.726] of [1965] GLR 723 who conducted the case on behalf of the prosecution. We consider that the attitude he took in the case and the statement he made in respect of the circuit court’s direction that the prosecution should call the chemist, is most unfortunate. He seemed to have taken the stand that once he had tendered the certificate of the chemist, he had discharged his responsibility as a prosecuting officer; if that is his view, he is wrong.

Section 121 (1) of the Criminal Procedure Code, 1960,1 which makes certain scientific reports admissible in evidence says:

“Any document purporting to be an original report under hand of any Government medical practitioner, analyst, chemical examiner or geologist, or of any assayer or mineralogist recognised by a Minister for the purposes of this section by notification published in the Gazette, upon any substance or thing submitted to him for examination or analysis and report, may, if it is directed to the Court or is produced by any police officer to whom it is directed or someone acting on his behalf, be used as evidence of the facts therein stated in any enquiry, trial or other proceeding under this Code.”

The proper interpretation of that section, having regard to the operative words “may . . . be used as evidence of the facts therein stated” is, that the contents of such a report or certificate are prima facie evidence, not conclusive evidence. Therefore if a defendant against whom it is used as evidence challenges it, i.e. expresses intention to rebut it, the prosecution must make the person who gave that report available to be cross-examined by the defendant to lay foundation, if he could, for his evidence in rebuttal. It is for that reason that it is provided in section 121 (5) as follows:

“Upon receiving such report in evidence the Court shall if it thinks such a course proper for the ends of justice, summon and examine such medical practitioner, analyst, chemical examiner, geologist, assayer or mineralogist, or a person gazetted in accordance with subsection (3), as a witness or cause his evidence to be taken on commission under the provisions of this Code, as the case may require.”

In a case like this where the appellants consistently maintained that the herbs they grow and which they have been offering to the public of Princess Town for the past four or more years are herbs of life, and that it was because of religious jealousy that the chief of Princess Town, his elders and some of the other citizens are alleging that the

[p.727] of [1965] GLR 723 herbs are Indian hemp and not herbs of life, it is important that the prosecution should have carried out the directions given by the circuit court and called the chemist. And since the substance in question is available for examination at any time, another chemist could have been made to analyse it and give the requisite evidence if the one who originally analysed it happens not to be available.

However, in our view the refusal by the prosecution to call the chemist, and the failure of the circuit court to call him, have not resulted in any miscarriage of justice in this particular case. Having regard to the facts in the case, the evidence of the chemist cannot affect the defence one way or another, at its best all the oral evidence of the chemist could have done is to convince the appellants at a stage in the trial, that the thing they had honestly believed all these years to be a herb of life, is after all not a herb of life at all but a dangerous thing called Indian hemp. But such knowledge acquired by the appellants at that stage cannot relate back, and therefore cannot form the basis of the decision in the case.

And that takes us to the real issue in the case. As earlier pointed out, the charges against the appellants are that they cultivated, possessed and smoked Indian hemp. The appellants admit cultivating, possessing and smoking the stuff produced in court. In fact it was they themselves who voluntarily showed this stuff to the public of Princess Town, and later voluntarily showed and handed the stuff to the police. There is no question at all upon the evidence that the appellants honestly though erroneously, believed that the stuff is herbs of life and nothing else. The learned circuit judgment himself impliedly found as a fact that the appellants honestly believed the stuff to be herbs or tree of life, but that the government chemist’s report calls the same thing Indian hemp. He said, “I am satisfied that what accused persons call the tree of life is

Indian hemp as stated by the government chemist.” In spite of this positive finding the learned circuit judge convicted the appellants, giving as his reasons the following:

“That accused persons cultivated the Indian hemp trees without the permission of the Minister of Health. The accused persons who lived amongst the community in Princess Town had challenged those who would not smoke the Indian hemp leaves. Even though the Indian hemp trees and leaves were good as medicines for the accused persons, they should have obtained the permission of the Minister of Health as required by law.

Accused persons have failed to prove that the possession and smoking of the Indian hemp were lawful.”

[p.728] of [1965] GLR 723

Learned senior state attorney at first sought to support the conviction, and referred the court to section 29

(2) of the Criminal Code, 1960.2 We must observe that from the ratio decidendi in it, the judgment of the circuit court is also based upon the principle in the said section 29 (2) of Act 29. Subsections (1) and (2) of the said section 29 of Act 29 must be taken together: they provide:

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

(2) A person shall not, except as in this Code otherwise expressly provided, be exempt from liability to punishment for any act on the ground of ignorance that the act is prohibited by law.”

These subsections of the section put into a statutory form the general principle of law that while ignorance of the law is no defence, ignorance of fact is a complete defence. The question is, to which class of ignorance does the ignorance of the appellants in this case belong; the class of law, or the class of fact?

Section 49 of the Pharmacy and Drugs Act, 1961,3 under which the appellants were charged makes absolute prohibition of cultivation, possession or smoking of Indian hemp. Therefore no one can be heard to say that he does not know of the existence of the law which prohibits possession, etc. of Indian hemp.

That being so, if the case of the appellants had been that they knew that the stuff is Indian hemp, but did not know that there is law prohibiting its possession etc., their plea would be a plea of ignorance of the law; in which case the circuit judge would be justified in directing his attention to and applying section 29 (2) of Act 29, as apparently he did. But their case which is so obvious and convincing that the circuit judge had no difficulty in accepting, is that they are honestly ignorant of the fact that the herbs in question are Indian hemp. Theirs is therefore a plea of ignorance of fact which under section 29 (1) of Act 29 is a good defence. It is therefore to section 29 (1) that the circuit judge should have directed his mind. The absolute prohibition of possession of Indian hemp made by Act 64, can only arise if the prosecution proves possession with knowledge. This principle of knowledge is most important in a charge under Act

64 relating to possession of Indian hemp. The law on the point is fully explained in Amartey v. The

State.4 The possession required to sustain a charge under sections 47 and 49 of the Act is there defined as follows:

[p.729] of [1965] GLR 723

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

The prosecution completely failed to prove such knowledge, on the contrary, the defence went further and gave conclusive proof of absence of the all essential knowledge. The circuit judge misconceived the issue in the case, consequently he failed to direct himself on the law as applicable to the facts he found, and erred in convicting the appellants, thereby causing miscarriage of justice.

It is for these reasons that we allowed the appeal of each of the appellants, quashed the conviction of each of them and the sentences passed upon them, entered a judgment and verdict of acquittal, and thereupon acquitted and discharged each of them.

DECISION

Appeal allowed.

Verdict of acquittal entered.

A. K. F.