ANYASS JIBRIL vs. THE REPUBLIC
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2019
ANYASS JIBRIL - (Appellant)
THE REPUBLIC - (Respondent)

DATE:  27TH FEBRUARY, 2019
SUIT NO:  H2/14/2017
JUDGES:  MARIAMA OWUSU J.A. (PRESIDING), DZAMEFE J. A., WELBOURNE (MRS) J. A.
LAWYERS:  CECILIA ANIM PEPRAH TAKYI (S.A) WITH AVON ADJUMAH ADJARE AND AKOSUA DANSOAA ASIAMAH
CHRISTOPHER FOR THE REPUBLIC/RESPONDENT
JUDGEMENT

WELBOURNE, JA

This is an appeal against the judgment of the High Court, Kumasi, dated 11th January, 2013. The judgment is found at pages 109 to 131 of the Record of Appeal while the Notice of Appeal can be found at pages 132 to 135 of the Record of A ppeal, filed on 8th Februry, 2013 and 28th October, 2013.

The facts in this case are fairly simple and straightforward.

 

BRIEF FACTS:

The Brief Facts of this case as put forward by the Prosecution are that on the 4th of August 2011, personnel of the Bureau of National Investigations (BNI), Ashanti Region, arrested the Appellant herein at his residence at Asawasi, Kumasi and retrieved a total of three thousand, three hundred and twenty five (3325) wrappers of powdery and rocky substances which later tested positive for heroin and cocaine which are narcotic drugs. An amount of Three Thousand and Twelve Ghana cedis (GH3,012.00) and One Thousand One Hundred and Eighty Naira (N1,180.0) were also found in the Appellant’s room. The Appellant was subsequently arranged and tried before the High Court, Kumasi on the following charges:

Count One: Possession of Narcotic drugs without lawful authority contrary to Section 2(1) of the Narcotic Drugs (control), Enforcement and Sanctions Law, 1990 (PNDCL236).

The particulars of the offence was that the accused, a business man of 25years on or about the 4th of August 2011 at Asawasi, Kumasi in the Ashanti Region did without lawful authority. Have in his possession Twenty (20) wrappers of cocaine with a net weight of 0.4880 grams.

Count Two: Possession of Narcotic drugs without lawful authority contrary to Section 2(1) of the Narcotic Drugs (control), Enforcement and Sanctions Law, 1990 (PNDCL236).

The particulars of the offence was that the accused, a business man of 25years on or about the 4th of August 2011 at Asawasi, Kumasi in the Ashanti Region did without lawful authority. Have in his possession Two (2) wrappers of heroin with a net weight of 0.1217 grams.

Count Three: Possession of Narcotic drugs without lawful authority contrary to Section 2(1) of the Narcotic Drugs (control), Enforcement and Sanctions Law, 1990 (PNDCL236).

The particulars of the offence was that the accused, a business man of 25years on or about the 4th of August 2011 at Asawasi, Kumasi in the Ashanti Region did without lawful authority. Have in his possession Twelve (12) wrappers of cocaine with a net weight of 9.7553 grams.

Count Four: Possession of Narcotic drugs without lawful authority contrary to Section 2(1) of the Narcotic Drugs (control), Enforcement and Sanctions Law, 1990 (PNDCL236).

The particulars of the offence was that the accused, a business man of 25years on or about the 4th of August 2011 at Asawasi, Kumasi in the Ashanti Region did without lawful authority. Have in his possession Nine Hundred and Ninety-Five (995) wrappers of heroin with a net weight of 69.9951 grams.

Count Five: Possession of Narcotic drugs without lawful authority contrary to Section 2(1) of the Narcotic Drugs (control), Enforcement and Sanctions Law, 1990 (PNDCL236).

The particulars of the offence was that the accused, a business man of 25years on or about the 4th of August 2011 at Asawasi, Kumasi in the Ashanti Region did without lawful authority. Have in his possession Two Thousand, Two Hundred and Ninety-Six (2296) wrappers of cocaine with a net weight of 110.8912 grams.

After the trial, the Appellant was convicted and sentenced to Ten (10) years in hard labour (IHL) on all the five counts and the sentence was to run concurrently.

Dissatisfied and aggrieved with his conviction and sentence, the Appellant filed an appeal on the following grounds:

 

GROUNDS OF APPEAL:

      i.        The trial Court failed to properly evaluate the evidence which formed the basis of the conviction of the Appellant.

     ii.        The trial judge failed to give proper and adequate consideration to the Appellant’s case.

    iii.        Further grounds to be filed upon receipt of the records of appeal.

For purposes of simplicity and convenience, in this appeal, the Republic/Respondent is hereinafter referred to as the Respondent and the Convict/Appellant is hereinafter referred to as the Appellant. The Record of Appeal is hereinafter referred to as ROA.

We shall consider the grounds of appeal as they appeared on the Notice of Appeal and since the Appellant was not able to file any additional grounds per the ROA, this court shall consider ground one first and then follow with ground two of the appeal.

 

CONSIDERATION:

The well-established rule of law is that an appeal is by way of rehearing and an appellate court is therefore entitled to look at the entire evidence on record and come to proper conclusions on both the facts and the law. It follows that, the appellate court was virtually in the same position as if the hearing were the original hearing, and might review the whole case and not merely points as to which the appeal was brought. This means that in this judgment, the appellate court is in a position to do what, in its opinion, the trial court ought to have done but failed to do. See:Agyeiwaa vs. P & T Corporation (2007-08) SCGLR 968 at 989; and MamuduWangara vs. GyatoWangara [1982-83]GLR 63.

GROUND ONE (1):

“The trial Court failed to properly evaluate the evidence which formed the basis of the conviction of the Appellant”.

 

THE CASE OF THE APPELLANT:

Counsel for the Appellant commenced the submission for this ground of appeal at page 44 of the ROA, where he drew the court’s attention to the fact that the mode and manner in which the Appellant’s caution statement was taken by the Prosecution, is improper in law. His case is that, Jackson Cole of the Bureau of National Investigation (BNI) in his evidence stated that he took the Appellant’s statement while he was hand cuffed and the independent witness sat by him.

Counsel’s argument seems to suggest to this court that the Appellant’s statement was taken under duress or coercion, and same amounts to an affront to the liberty of the Appellant as provided in the constitution, 1992. (See Page 7 of Appellant’s Witness Statement).

The Appellant’s Counsel argued further that: “Apart from the mini trial, Prosecution have failed to lead sufficient evidence to convince the Court that indeed the caution Statement extracted from the accused was voluntary.” (See Page 8 of Appellant’s Witness Statement).

In his further submission, Counsel quizzed the effort made by the Police investigator so far to find the where about of Blessing, whom according to PW1, the Appellant mentioned as his supplier of the narcotic drugs. (See Page 8 of Appellant’s Witness Statement.

Counsel therefore cited and relied on the case of Manu v. The Republic (2013) 55 G.M.J., where the Court of Appeal, sitting in Kumasi said as part of its judgment inter alia that:

“The detective did not bother to investigate whether or not the Appellant’s story as regards MaameKorkor was true and the reason for not carrying out any investigations beyond that was because according to him, there was no way the Police could trace MaameKorkor since the Appellant had stated that he did not know the of the said MaameKorkor.” (See: Page 8 of Appellant’s Witness Statement.

According to him, the Police are only interested in dealing with the Appellant since they were not able to prove otherwise to the trial court. (See: Page 9 of Appellant’s Witness Statement.

According to Counsel, Kofi Amakye who the investigator used as an independent witness for taking the caution statement of the Appellant was at the same time an employee of the BNI, and therefore a subordinate of the investigator. So therefore, it is doubtful that he would not corroborate his superior officer’s story at any given time. Counsel’s case is that, the use of a subordinate as an independent witness is however contrary to section 120 of the Evidence Act, 1975 (NRCD 323) and same defies case law as well. (See page 9 of Appellant’s Witness Statement.

To elucidate his argument, Counsel quoted in extensothe provision underSection 120 of the Evidence Act, 1975 (NRCD 323) which he heavily relied on as the procedure which must be complied with to give validity to a confession statement and to make same admissible in court, only if:

120. (1) In a criminal action, evidence of a hearsay statement made by an accused admitting matter which –

a.    constitutes; or

b.    forms an essential part of; or

c.     taken together with other information already disclosed by him is a basis for an inference of, the commission of a crime for which he is being tried in the action is not admissible against him unless the statement was made voluntarily.

(2) Evidence of hearsay statement was shall not be admissible under sub-section (1)while arrested, restricted or detained by the state unless the statement was made in the presence of an independent witness.

(3) The independent witness must be a person who-

a.    can understand the language spoken by the accused;

b.    can read and understand the language in which the statement is made,

and where the statement is in writing the independent witness must certify in writing that the statement was made voluntarily in his presence and that the contents were fully understood by the accused.”

if the statement was made by the declarant

(4) Where the accused is blind or illiterate, the independent witness shall carefully read over and explain to him the contents of the statement before it is signed or marked by the accused, and shall certify in writing on the statement that he had so read over and explained its contents to the accused and that the accused appeared perfectly to understand it before it was signed or marked.”

Again, Counsel submitted at page 44 of the ROA, that: “the investigator said he works with the BNI and that Isaac Kofi Amakye, a security assistant of the BNI was present as the independent witness. According to Counsel, the rationale behind this explict provisions of the law is to ensure the right of the declarant, i.e. the accused who is under restrictions are not trampled upon by the Police or the investigative agencies. This constitutes the rights of all accused persons as has been protected in the 1992 Constitution.” (See: Page 10 of Appellant’s Witness Statement).

Counsel for the Appellant went a step further to cite and relied on the view expressed by the West Africa Court of Appeal, in R v. Grunshie (Abisa) 1 W.A.L.R 36, where it was held inter alia that:

“(ii) where a Police take a voluntary statement from a prisoner, it is desirable for them, particularly for a confession statement in a murder case, to require the presence of an independent civilian witness who understands what is being said, and who is present throughout the time the statement is taken. The civilian witness should sign the statement as a witness, on its completion.”

In his quest to demonstrate to the court who an independent witness is, Counsel cited the case of KwakuFrimpong a.k.a. Iboman v. The Republic (supra), where the Supreme Court construed who an independent witness is per the court:

“…taken literally, this should mean someone other than the person, institution or body taking down the statement….not dependent or relying on others, not subordinate, completely self-governing, thinking or acting for oneself, to self-respecting to accept help, not subject to bias, etc.”

Counsel summed up the definition of who an independent witness is by submitting as follows:

“An independent witness is a person who is free from the authority for direction, and or assistance.” (See:age 12 of Appellant’s Witness Statement).

Counsel argued that, in the scheme of things, the independent witness statement envisage under section 120 of the Evidence Act, referred to supra must be someone who satisfies the above definition.

 

THE CASE OF THE RESPONDENT:

In submitting the Respondent’s case at page two (2) of their written submission, Counsel for the Respondent in relation to ground one of the appeal, strongly argued that the manner and mode in which the Appellant’s caution statement was procured by the prosecution was improper. According to Counsel, the fact that the Appellant was hand-cuffed at the time his statement was being taken suggests that same was taken under duress. He further argued that, the Appellant’s caution statement, Exhibit K was a confession statement. Their case is that, Confession statement by their nature, if given voluntarily by an accused person himself, offers the most reliable piece of evidence upon which to convict the accused. He further argued that, it is for this reason that safeguards have been put in place to ensure that what is given as a confession is voluntary and of the accused person’s own free will without any fear, intimidation, coercion, promises or favours.

The case of the Respondent is that, the Appellant, during the mini-trial, denied ever signing or thump-printing Exhibit K. However, the fingerprint report tendered showed that he was the one who thumb-printed the document. Also, Counsel’s own statement that the mode and manner in which Exhibit K was procured is improper is an admission of the fact that indeed a statement was obtained from the Appellant. Thus, the only matter to critically consider is whether or not this confession statement was voluntarily made.

In the view of Counsel for the Respondent, PW5, the Investigator, during the mini trial at page 44 of the ROA stated that the Appellant was handcuffed when he procured Exhibit K. The question therefore is whether or not the handcuffing of the Appellant at the time of the taking Exhibit Krender it involuntary.

He further submitted by adverting the court’s mind to take notice that the Appellant did not write his statement himself. He spoke in twi and same was recorded down in English by the Investigator. He did not therefore need to use his hands, which were in cuffs, to write down his statement. He opened his mouth and admitted his involvement in the commission of the crime.

Counsel observed with interest that the Appellant, during the mini trial, did not state that he was induced to make the statement by being subjected to cruel or inhuman conditions, or by the infliction of physical suffering upon him by a public officer.

Section 120(4) of the Evidence Act, 1975 (NRCD 323) provides as follows:

“(4) For the purposes of this section, a statement that was not made voluntarily includes, but is not limited to a statement made by the accused if;

(a) The accused when making the statement was not capable because of a physical or mental condition of understanding what the accused said or did; or

(b) the accused was induced to make the statement by being subjected to cruel or inhuman conditions, or by the infliction of physical suffering upon the accused by a public officer or by a person who has a direct interest in the outcome of the action, or by a person acting at the request or direction of a public officer of that interested person; or

(c) the accused was induced to make the statement by a threat or promise which was likely to cause the accused to make the statement falsely, and the person making the threat or promise was a public officer, or a person who has direct interest in the outcome of the action, or a person acting at the request or direction of a public officer or the interested person.”

A careful perusal of the proceedings during the mini trial, shows that the Exhibit K was procured in accordance with the provisions of the section 120 of the Evidence Act.

The learned also contended that Kofi Amakye, who was a worker at the Bureau of National Investigation (BNI), did not qualify to serve as an independent witness as envisaged under section 120 of the Evidence Act, 1975 (NRCD 323).

Counsel in arguing his point, relied on the Supreme Court’s decision in the case of KwakuFrimpong Iboman v. The Republic [2012] 1 SCGLR 297, 25 GMJ 1 SC. In the Iboman case (supra),it was stated among other things, that an independent witness must not be someone who is so closely connected to the police as to make him more or less dependent on the police since such a scenario will defeat the purpose for which the law was enacted.

It is important to note that the Supreme Court in the case of EkowRussel v. The Republic [2016] 102 G.M.J. 124 S.C, had an opportunity to have another look at its per in-curiam position in the Iboman case (supra). In the Russel case (supra) it was stated inter alia as follows:

“any person, be it a policeman, a soldier, a prison officer, other security investigating apparatus or civilian who qualifies in terms of being disinterested in the matter under investigation, and is not under the direct control and influence of the person investigating the crime, or is not himself part of the investigating team qualifies to be a competent witness may be serve as independent witness.”

Also, the distinguished jurist, J. OforiBoateng, at page 115 of his book entitled ‘The Ghana Law of Evidence, 1993’ provides a very useful and beneficial definition of an independent witness as follows:

“Independent witness may include every person who qualifies to be a competent witness and has no direct personal interest in the case in issue. And so, even policemen and soldiers who come from the investigating stations may qualify under the Decree to be independent witness whether the detained accused person approves of them or not. An incarcerated accused person, wishing to confess voluntarily therefore has no choice but to accept any competent disinterested person imposed on him by the investigating police or military officer, even when this person imposed on him by the investigating police or military officer, even when this disinterested person is another policeman or a military man.”

It is against the above position that Counsel for the Appellant proceeded to examine whether or not Isaac Kofi Amakye was capable of being an independent witness. The investigator named Isaac Kofi Amakye, a security assistant at their BNI office as the independent person who witnessed the taking of Exhibit K. Counsel quoted an excerpt from the cross-examination of PW5, the Investigator during the mini trial at page 47 of the ROA:

“Q. Amakye is your subordinate?

A. He works under the Regional Commander, not me.”

It is quite evident from the record that Isaac Kofi Amakye was not under the direct control and influence of the PW5, who was investigating the crime. Also, there is nothing on record to suggest that he was part of the investigating team as it was the case in the EkowRussel case. Isaac Kofi Amakye therefore qualifies to serve as an independent witness as envisaged under section 120 of NRCD 323.

It is the case of the Respondent’s Counsel that the question raised by the Appellant’s Counsel to the effect that if indeed the narcotic drugs were supplied to the Appellant by one Blessing as stated by the investigator in his evidence then he would have made some effort to investigate the whereabouts of the said Blessing, is flawed.

 

According to the Respondent’s Counsel, the reference made by the Appellant’s Counsel that the Appellant stated in Exhibit K that the said Blessing supplied him with the drugs and that, had Blessing been arrested she or he would have been charged with supplying the Appellant with narcotic drugs without lawful authority contrary to section 6(1) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236) and not with being in possession of the drugs found in the Appellant’s room, was not in issue. However, the whereabouts of Blessing would have been relevant to this case if the Appellant had told the Police that the room where the Exhibits were found belonged to the said Blessing or the Exhibits retrieved in the room belonged to Blessing.

Another issue raised by the learned Counsel in adversary is the failure of the Prosecution to call Adiza, who was a material witness to the case of the Prosecution.

It must be noted, in establishing the standard of proof in a criminal trial, it is not the quantity of witnesses called that is important, but, the quality of the witnesses called and whether at the end of the case, the witnesses called by the party had succeeded in proving the ingredients required in a particular case.

What is important to consider is whether the evidence of the five (5) prosecution witnesses who gave evidence in the case testified upon what is relevant and material evidence.

But, the Prosecution Counsel holds the view that, the five prosecution witnesses gave credible and admissible evidence, which are not only corroborative, but also consistent.

In this case, the learned Principal State Attorney amply discussed in her written addresses at pages 95,96,97,98 and 99 how the five witnesses called were able to give relevant and material evidence that linked the Appellant to the commission of the crime.

The testimonies of PW1, PW2 and PW5 on record amply shows that at all material times, the Appellant had custody of the drugs and knew of the presence of the narcotic drugs in his room.

Also, PW3 told the court that when he had his interview with the Appellant, he (Appellant) explained to him that the substances were wrapped differently and separately because they were different kinds of drugs. He also said that the Appellant explained to him that the powdery substance in the bottle was procaine penicillin, which he used to dress his sores. This evidence shows that the Appellant did not only knew of the presence of the drugs in his room but also knew of the nature of the drugs he possessed.

The testimonies of all the five prosecution witnesses were sufficient in proving the essential ingredients of the offence of unlawful possession of narcotic drugs. Thus, as stated in the case of Gligah&Atiso v. The Republic (2010) 20 MLRG 99; (2010) SCGLR 870, to call any additional witness which in the instant case would be Adiza, would be a surplusage. This is because she would virtually have repeated the same points or sought to corroborate evidence that had already corroborated.

We do not find any merit in the Appellant’s first ground of appeal and accordingly, same is dismissed.

GROUND TWO (2):

“The trial judge failed to give proper and adequate consideration to the Appellant’s case.”

 

THE CASE OF THE APPELLANT:

The Appellant’s Counsel opened this second ground of appeal by stating as follows; “in criminal trials, where the onus of proof is on the Prosecution, the evidence of the Prosecution should not be fraught with conflicts and inconsistencies which create doubts instead of resolving the matter(s) in issue.”

On that basis, he cited the cases of Domena v. Commissioner of Police (1964) GLR 563 at 567 SC; and Regina v. Adamu (1960) GLR 91, CA, to buttress his argument.

According to Counsel, there were inconsistencies in the accounts given by the Prosecution witnesses in relation to the point of Appellant’s arrest up to where they saw Adiza, the Prosecution’s own witness during the arrest. In PW1’s own account at page 7 of the ROA, he claimed that they found Adiza at the corridor and they asked her to stand in as an independent witness as they conducted the search. This position was later contradicted at page 68 of the ROA, where the following transpired during the cross-examination of PW2:

Q. Only Adiza witnessed the accused’s arrest aside your officer’s?

A. Adiza was found with the Accused. I think she was the only witness to the accused’s arrest.

According to Counsel for the Appellant, both Appellant and Adiza claimed that Adiza was counting the Appellant’s money when the BNI entered the Appellant’s room. So PW2’s position rather corroborates the position of the Appellant and Adiza, the independent witness to the arrest, at the time and point of the Appellant’s arrest.

Again, Counsel for the Appellant argued that, there was so much controversy over the actual amount of money that was retrieved from the Appellant’s room, during his arrest. It is the case of Counsel for the Appellant that, the total amount of money retrieved from the Appellant during his arrest was GH30,000.00 and not the GH3,012.00 as claimed by the Prosecution witness. This was again corroborated by Adiza, the independent witness at the point of arrest of the Appellant. Counsel further argued that, the leader of the BNI team, Mr. Frank Dadzie, interestingly did not know the amount of money that was retrieved during the arrest of the Appellant.

Counsel extracted from page 11 of the ROA, following responses given by PW 1 in relation to the money found in the Appellant’s room, during the cross-examination:

Q. At the Circuit Court, you said you did not know the amount of money found with the accused?

A. That was correct. That was because I wasn’t around when the first count was made.

According to Counsel, another controversy yet to be resolved can be found at page 8 of the ROA where, PW1 claimed that three of them entered the Appellant’s room inclusive of the independent witness.

This is what happened during cross-examination of Frank Dadzie, PW1:

Q. How many people entered the room with the accused?

A. We were three in number.

Q. Does it include the independent witness?

A. Yes.

At page 15 of the ROA, this contradiction has occasioned the responses given by PW1 during cross-examination:

Q. How many were you?

A. We were three.

Q. How many entered the room?

A. Two with the Accused and the lady, making four.

In relation to PW2, counsel argued that, he contradicted himself per his statement at page 14 and his responses during cross-examination which can also be found at 16 of the ROA respectively in respect of which of them entered the Appellant’s room first, are much revealing:

Q. So you entered the room before the others entered?

A. Not correct. We were all entering the room the door was narrow so we had to enter one after the other.

These were the responses given by PW3 in relation to who broke the seal of the parcel when same was received in Accra. This evidence can be found at page 25 of the ROA:

Q. You said the seal on the envelope was broken?

A. Correct.

Q. Who broke the seal?

A. I don’t know.

Q. Can you tell the Court the purpose of sealing the materials before being sent to the Standard Board?

A. We seal to prevent any other person from opening it.

Counsel’s view is that, the Exhibits were tampered with by unknown person(s).

Counsel for the Appellant’s case is that, these unresolved issues identified above should go to the advantage of the Appellant.

Counsel further argued that, if Prosecution was unable to establish the basic fundamentals of the number of people who entered the room of the Appellant at the point of arrest,then whatever happened in the room could have been a mere conjecture. Counsel further argued that, one cannot give credit to Prosecution for these clear inconsistencies.

Counsel for the Appellant holds a strong view that since evidence on record demonstrates that all the Prosecution witnesses were contradictory and very evasive in their responses during cross-examination, they must fail as credible witnesses.

As to whether or not the Appellant knew the quality of the supposed drugs found in his room, this is what his Counsel had said at page 19 of their written submission by citing legal authorities among other things:

 

In Amartey v. The Republic (1964) GLR 256 at 261 SC, the Supreme Court held among other things that, mere physical possession without the knowledge of the nature and quality of the article possessed is no offence.

According to Appellant’s Counsel, “as a matter of fact, assuming without admitting that Prosecution found the narcotic drugs on the accused, the question remained unanswered as to be convinced that the Appellant has knowledge and knew the quality of the goods presumed to be in his possession. Absolutely no evidence was led by Prosecution to unearth this.”

In further denial of the guilt of the Appellant, Counsel stated inter alia at page 20 of their written submission that, the Prosecution has not been able to establish that the accused knew the nature of the drugs he possessed.

On Prosecution’s failure to call a material witness, i.e. Adiza to testify for the Prosecution during the trial process, Counsel argued that failure to call a material witness is fatal to a case and went ahead to cite and rely on the case of Total Ghana v. Thompson (2011) SCGLR 458, Holding, where the court held as follows:

“By its conduct in neither calling the Police alleged to have investigated the complaint against the Plaintiff nor person who had allegedly made statements that had implicated the Plaintiff, the Defendant might be said to have admitted the Plaintiff’s claim that the allegations made against him were untrue…..”

In his effort to further demonstrate that Prosecution failed to call the independent witness because of the controversy surrounding the arrest and the purported finding of the Narcotic drugs in the possession of the Appellant, Counsel cited the case of Tetteh v. The Republic (2001-2002) SCGLR at page 857, Holding (2), where it was held inter alia that:

“The Prosecution, as a general rule, had discretion to present such witnesses as it elects to call in support of its case. But, the discretion must be exercised in a manner that would further the interest of justice and ensure fairness to the accused so that he did not suffer any disadvantage...”

According to Counsel for the Appellant, the question that begs for an urgent answer is why an independent witness like Adiza as described by the Police and who has witnessed the arrest of the Appellant be also arrested and detained in the Police cell if nothing incriminating was found on her ?

In Counsel’s view, the Prosecution should have used Adiza as a material witness in the case. He also submitted that, Appellant denied prosecution’s Claim that he volunteered a cautioned statement.

We hold the view that, even though Counsel for the Appellant suggest that the finger print experts were not professional in their dealing with the Exhibits, we are satisfied that there was no controversy surrounding the finger prints of the Appellant since it was scientifically proven and Appellant did not deny that the finger print on the envelopes was not his.

 

THE CASE OF THE PROSECUTION:

In submitting his second ground of the appeal, Counsel for the Appellant stated that there were inconsistencies in the evidence of the prosecution witnesses. It is his contention that PW1 and PW5’s accounts of where Adiza was at the time the arresting officers got to the Appellant’s house are not the same.

It is important to draw the court’s attention to the fact that it was rather PW5 who was being cross-examined on page 68 of the ROA and not PW2. PW1 in his testimony was certain that they saw Adiza at the corridor leading the Appellant’s room and this fact was corroborated by PW2 in his evidence at page 14 of the ROA because they were at the scene.

PW5, under cross-examination at page 68 was asked whether Adiza was the only one who witnessed the arrest of the Appellant aside the arresting officers. PW5’s answer was that Adiza was found with the Appellant so he thinks that she was the only witness to the accused’s arrest.

It must be noted that PW5, under cross-examination, was never asked the particular spot in the Appellant’s house where the arresting officers first met Adiza for him to have contradicted PW1’s account. Also, PW5’s answer to the question “Only Adiza witnessed the accused’s arrest aside your officers” cannot in any way corroborate the position of the Appellant and Adiza’s position that, Adiza was counting the Appellant’s money when the BNI entered the Appellant’s room.

Counsel has also submitted that PW1 stated that three people entered the Appellant’s room inclusive of the independent witness. However, PW2 in cross-examination, contradicted what PW1 said in respect of the number of people who entered the Appellant’s room.

PW1, under cross-examination stated that they were three in number because he was asked, “How many people entered the room with the accused?” The question was couched in a way that, the answerer (PW1) in giving his answer was to exclude the accused (the Appellant). That was why in a follow up question, PW1 stated that the three included the independent witness (Adiza).

PW2 again is said to have contradicted himself when he stated in his testimony that he was the first person to enter the Appellant’s room however denied having entered first under cross-examination.

It is trite law that conflicts and inconsistencies in evidence during a trial should relate to material evidence. In the case of The Republic v. Adekura [1984-86] 2 GLR 345, CA, it was stated inter alia that, evidence offered to prove a matter not in issue or not probative of a matter in issue is immaterial and conflicts in such evidence can have no relevant bearing on the judgment.

It is the view of this court that, since the Prosecution has successfully proved their case beyond reasonable doubt, being the standard imposed on them by the Evidence Act. We hold the view that the inability of the Prosecution to call Adiza as an additional witness was not relevant anymore. The law is settled that, you cannot put a multitude of suspicions together and make proof out of it. See: The State v. Ali Kassena [1962] 1 GLR 144, SC.

 

Based on the above principle, it is submitted that the evidence as to the person who first entered the Appellant’s room is not material thus conflicts in such evidence can have no relevant bearing on the judgment.

Counsel has raised other issues, which include the controversy regarding the money that was retrieved from the Appellant’s room. It is interesting to note that the Appellant, in Exhibit K, stated that the money found was GH3,012.00 but never mentioned the fact that the money in found was GH30,000.00. Also, Adiza who claims to have been counting the money in the room never mentioned in her statement, Exhibit E to the Police the amount that she had counted before the BNI officials walked in. However, she stated in her evidence in court that the money was GH30,000.00.

Further, this is what the Appellant said in evidence in chief at page 73 of the ROA:

“When they entered, Adiza was counting money. They began to search the room. Nothing was found. They found money. They gathered all the money into the polythene bag. They sent it to their office. They began to count the money in their office but they later said it was late so they will continue the counting the next day. They said the money was GH30,000.00. They mentioned the GH30,000.00, on the second day of counting. That money belongs to me.”

It is quite amazing how the Appellant himself did not know the amount of money he had in his room but told the court that the BNI officials who counted the money said it was GH30,000.00.

Again, Appellant, under cross-examination at page 77 of the ROA stated that he buys and sells cars. If indeed it is true that he deals in cars then one can say that the money was proceeds from the sale of car. If it were so, then it is surprising that he did not know the exact money that was paid for the purchase of the car but had to wait upon the Police to count the money before he got to know the amount of money he had in his room.

Counsel for Prosecution concludes his submission by quoting section 31 of the Court Act, 1993 (Act

and section 5 of the NRCD 323 set out the overriding principles governing the determination of appeals. The overriding consideration in allowing appeals is whether or not from the totality of the evidence of the prosecution and the defence, the point raised, granted it is valid, has occasioned a substantial miscarriage of justice. If not, then notwithstanding the validity of that point, the appeal ought to be dismissed.

This Court agrees with the conclusion reached by Counsel for the Prosecution herein that this second ground of the appeal should be dismissed as same is unmeritorious and not grounded in law. This is because there was no evidence on the ROA to prove that the trial judge failed to give proper and adequate consideration to the Appellant’s case amidst inconsistencies and controversies as alleged by the Appellant herein.We therefore dismiss this ground of the appeal.

 

CONCLUSION:

The law is trite that even though an appeal is said to be by rehearing, the Appellant bore the burden of satisfying an Appellate Court that the judgment of the Court was defective in law and same has occasioned a miscarriage of justice. See Friesland Frico Domo v. Dachel Co. Ltd (2012) 1 SCGLR 41, at Holding 2:

“(2) Counsel for the Defendant had merely relied on the submissions filed on its behalf before the Court of Appeal without showing in the Supreme Court where the Court of Appeal had erred in dismissing the appeal. Such practice would be frowned upon by the Supreme Court as the appeal before the court was not against the judgment of the trial court but that of the Court of Appeal. Even though an appeal was said to be a re-hearing, the Defendant bore the burden of satisfying the Supreme Court that the judgment rendered by the Court of Appeal was defective. Consequently, the Defendant should have identified the alleged errors of law and errors of fact and/or misdirection in the judgment of the Court of Appeal and state the grounds relied on in asserting that the judgment was defective. It was insufficient for an Appellant to state that he or she did not agree with the outcome of the case or merely repeat the arguments submitted before the Court of Appeal without pointing out what had gone wrong.”

Also, in Oppong Kofi v. Attibrukusu (2011) SCGLR 176 the Court observed inter alia that:

“…in considering the appeal by the Defendants, the main focus of the Supreme Court, would be to look closely at the totality of the evidence adduced at the trial and seek to do what, the view of the court, both the trial High Court and the Court of Appeal did not do adequately, i.e., to draw necessary inferences from facts that had been clearly established by the evidence, both oral and documentary. It is only when that had been done, that the expectations of justice would be fully met”.

This position also has a statutory backing under Rule 8(1) of the Court of Appeal Rules (C.I. 19) which provides that: “Any appeal to the Court shall be by way of re-hearing and shall be brought by a notice referred to in these Rules as ‘the notice of appeal.’”

Considering the facts and the circumstances surrounding the instant case, we observed the brilliant application of the law to the facts of this case by the learned judge. It is very clear from the ROA, the Prosecution was able to prove their case beyond reasonable doubt to the effect that the Appellant was as guilty as charged.(See: Section 13(1) and (2) of NRCD 323). The Prosecution’s case was consistent and same was supported with ample evidence in proving the guilt of the Appellant. However, the Appellant was not able to discharge the burden of guilt shifted on him by the Prosecution to the effect that he is guilty of the offence as charged. What the Appellant sought to do was to attempt to attack the case of the Prosecution by punching holes into it so as to raise the slightest doubt in the mind of the Court as to the credibility of the Prosecution’s case. That was clearly a futile exercise by the Appellant, since from the record the Prosecution presented a solid case.

For these reasons, in the opinion of this Court, the sentence of ten (10) years IHL imposed by the learned trial Judge is just, fair and therefore grounded in law. The sentence in our view was commensurate with the crime committed by the Appellant herein.

In Criminal Appeal No. H2/05/14 delivered on Thursday the 31st day of July, 2014, Kofi Adomako

Ascona v. The Republic, the Court of Appeal speaking through His Lordship Justice E. K. Ayebi JA, said that:

“A sentence is wrong in principle when it is not commensurate with the gravity of the offence committed or the role played by the convict (Dabla case), or when the previous good character of the convict is not taken into consideration or when the age of the convict is not considered or when the obvious physical circumstances of the accused is overlooked”.

Again, inthe case of The Republic v. Bofah [1968] GLR 620, it was held that “having regard to the value of the object, a severe sentence should have been imposed to serve as a deterrent to others”.

The sentence as it is currently, has considered the time that the Appellant spent in custody before the conviction of the Appellant and pronouncement of same by the court.

In Oyo v. The Republic (1999-2000) 1GLR, the Court of Appeal, per Benin J.A. (as he then was) held inter alia that By the provision in section 315(3) of Act 30, a sentence of imprisonment should start from the date it was pronounced. A court was thus not entitled to back date a sentence.”

See also: Akakpo v. TheRepublic (Practice Note) [1974] 1GLR 65 and Commission of Police v. Marbah (Practice Note) [1962] 2 GLR 159, SC.

For these particular offences under the Narcotic Drugs (Control), Enforcement and Sanctions Law (supra), the minimum sentence is ten (10) years. We therefore have no justification whatsoever, to disturb the conviction and sentence of the Appellant by the learned trial judge. Whichever way one considers the case of the Appellant, it could not be sustained.

Having been given the minimum sentence by the trial Court, this Court does not have the mandate to go below the minimum sentence, but to affirm same.

The entire appeal is without merit and same is dismissed.



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