IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
DON OBIOHA - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 25TH JULY, 2018
CRIMINAL APPEAL NO: H2/3/2018
JUDGES: IRENE C. LARBI (MRS) J.A. (PRESIDING), LAWRENCE L. MENSAH J.A., A. M. DOMAKYAAREH (MRS.) J.A.
LONGINUS CHINEDU FOR THE APPELLANT
NANA AISHA SALIFU, ASSISTANT STATE ATTORNEY, FOR THE RESPONDENT
A. M. DOMAKYAAREH (MRS), J.A
1. This is an appeal from the judgment of the High Court, Cape Coast, dated 11th January 2017 wherein the conviction of the appellant by the Circuit Court, Cape Coast on one count of possessing Narcotic drugs contrary to Sections 41(1) and 57(1) of Act 64/61 as amended by Section 2(1) of PNDCL 236/90 was upheld and affirmed by the said High Court.
2. The facts of the case are that on 10th June 2013 at 2.14pm, a group of unidentified young men on board a Nissan Pickup vehicle with Registration Number GV 586–A arrested and brought the appellant to the Komenda Police Station bleeding profusely from multiple injuries on his body and a deep cut on the head and reported that they spotted him at Aburansah near Komenda and suspected him to be a criminal. According to the captors who failed to give their identity to the Police, when they conducted a search on the appellant, they found a parcel of dried leaves suspected to be Indian Hemp in his bag. The Police took him to Hospital for treatment and after investigations by the Police, he was then charged, tried and convicted as aforesaid. He was sentenced to 10 years Imprisonment with Hard Labour.
3. Being aggrieved with this outcome at the Circuit Court, the appellant filed a Petition of Appeal at the High Court, Cape Cost against his conviction on three grounds, namely:-
§ That the Circuit Judge erred in law by not considering the mental state of the convict by sending him to a mental hospital to ascertain his mental state
§ That the sentencing of the convict/appellant is too harsh and excessive and § The judgment is against the weight of evidence.
4. The High Court, in its appellate capacity, duly considered the appeal and dismissed same on 11th January 2017.
It is against this judgment of the High Court that the appellant has launched the instant appeal. His complaint is against the whole judgment of the High Court and his grounds of appeal are 3, namely;-
1) That the High Court Judge erred in upholding the judgment of the Circuit Court judge that the convict/appellant was rightly charged for possession of Narcotic Drugs instead of being charged for use of Narcotic Drug.
2) That the High Court judge erred in upholding the judgment of the Circuit Court judge, that the convict/appellant understood the nature and what he was charged for and therefore his mental state was not in doubt
3) That the judgment of the High Court is against the weight of evidence.
That the High Court Judge erred in upholding the judgment of the Circuit Court judge that the convict/appellant was rightly charged for possession of Narcotic Drugs instead of being charged for use of Narcotic Drug.
5. The argument of Counsel for the appellant is that the appellant ought to have been charged for use of the Narcotic drug instead of possession and therefore the learned appellate High Court judge erred in upholding the decision of the Circuit Court that the appellant was rightly charged for possession. Counsel based this submission on what the learned High Court Judge stated thus at page 52 of the Record of Appeal:-
“The use of the drug for medicinal purpose was indeed the consistent story of the appellant from the investigation to the end of the trial….. Even after he was convicted, he still insisted that he was using the drug rather than possessing same”.
Counsel therefore contended that the appellant ought to have been charged for the use of the drug under Section 5(1) of the NARCOTIC DRUGS (CONTROL, ENFORCEMENT AND SANCTIONS) LAW, 1990 (PNDCL 236) and not possession under Section 2(1) thereof. Section 5() provides as follows:
“Section 5 - Use of Narcotic Drugs Prohibited.
(1) No person shall without lawful authority or excuse smoke, sniff, consume, inject in his body or otherwise administer narcotic drug on his body.
(2) Any person who without lawful authority injects any person with, or in any manner administers narcotic drug to any person commits an offence.
(3) A person convicted for an offence under subsection (1) or (2) is liable to be sentenced to imprisonment for a term of not less than five years.” (Emphasis added)
Section 2 also provides as follows:
“Section 2 - Prohibition on Possession of Narcotic Drugs.
(1) Any person who, without lawful authority, proof of which shall be on him, has in his possession or under his control any narcotic drug commits an offence.
(2) Any person found guilty of an offence under subsection (1) shall on conviction be liable to imprisonment for a term of not less than ten years.” (Emphasis added)
Counsel therefore contended that the charge of use would have reduced the number of years the appellant would have been sentenced to and that he could equally be made to pay some fine.
6. Counsel for the respondent on her part defended the judgment of the High Court. Contending that the appellant was appropriately charged for possession of the Narcotic drug, she referred to the case of BONSU ALIAS BENJILLO V THE REPUBLIC (2000) SCGLR 112 at 138 where the Supreme Court, speaking through Atuguba JSC (as he then was) posited thus:
“I hold that on a charge of possessing a narcotic drug under PNDCL 236 the prosecution must prove:
i) Custody or control of the drug by the accused
ii) Knowledge of the presence of the drug …… and
iii) Knowledge of the nature of the drug possessed”.
Counsel submitted that the prosecution led evidence to show that the appellant had control of the substance which he admitted ownership of without lawful authority and that he was also aware of its nature and quality.
Indeed, the appellant’s evidence-in-chief at page 30 of the Record of Appeal confirms this. Hear him:
“I was handed over to the police and the investigator searched my bag in my presence and found cannabis and decided to charge me. The cannabis belonged to me. As for the cannabis I drink it as tea and in turn it helps to boost my immune system thereby preventing me from getting sick. I got to know about this through self-discovery and I use it in the best interest of my health”.
Under a very brief cross-examination, this is what transpired at page 31 of the Record of Appeal:
“Q. I am putting it to you that the said weed found in your bag per the Forensic Lab report is cannabis
A. I agree
Q. I put it to you that you don’t have authority to carry cannabis within this country
A. I don’t have it”
7. This is direct and plain evidence without any shred of ambiguity that the narcotic drug was found in the appellant’s bag; he admitted ownerships of it; knew that it was cannabis and that he did not have authority to carry same. We therefore entirely agree with the learned appellate High Court Judge when he stated thus at page 54 of the Record of Appeal:
“…….. It is apparent that the use of narcotic drug under Section 5 of the Act is constituted by a single activity or dealing with the drug at the material time whilst possession under Section 2 implies a continuous exercise of ownership and control over the drug at the material time. Whereas one may have possession of the drug without necessarily using it, the one using the drug must necessarily have possession of it at the time. Inspite of the confession made by the appellant in this case to a continuous use of the drug found in his possession he was not using it at the time of his arrest. He was therefore appropriately charged with the offence of possession instead of the use of the drug”.
8. To revert to the argument of Counsel that the appellant ought to have been charged for use of the drug to the exclusion of possession of same, the above analysis of the evidence on record demonstrates that he was properly charged for possession. May be he could have been charged for use of the drug based on his own voluntary confession statement and insistence on same throughout the trial. But that would have been in addition to the charge of possession. No advantage would inure to the appellant since he would have ended up being convicted on two counts instead of one. It is true that the sentence for “use” is lesser than that for possession but under Section 302 of the Criminal procedure Code 1960 (Act 30), where one Act constitutes several crimes and in the opinion of the court, the crimes form one continuous transaction (in this case one cannot use the narcotic drug without possessing same) the person may be punished for the whole of such acts as one crime. In the instant case, since there is a statutory mandatory sentence of a minimum of 10 years for possession of a narcotic drug without authority, the appellant would have been sentenced to the five (5) years for use and the ten (10) years for possession. Both sentences could even run consecutively unless the judge states otherwise in accordance with Section 301 of act 30.
Ground 1 of the grounds of appeal is accordingly dismissed.
That the High Court judge erred in upholding the judgment of the Circuit Court judge, that the convict/appellant understood the nature and what he was charged for and therefore his mental state was not in doubt
9. The part of the judgment of the appellate High Court judge that triggered this ground of appeal is found at pages 51-52 of the Record of Appeal. It goes thus:
“Nothing said by the appellant in his defence was suggestive of insanity. The appellant was consistent and coherent in his statements and evidence before the court. He knew the leaves to be cannabis. He found them grown in a farm at Aflao and picked them for use as tea in order to boost his immune system and prevent him from falling sick. What he did not know was the fact that it was unlawful for him to possess cannabis in Ghana. He was able to recollect and narrate exactly how he was captured by the young men and handed over to the Police, and how the cannabis was discovered by the Police and parcelled for examination, long after the events (between his arrest on 10th June 2013 and his evidence in court on the 27th August, 2014) … … …
The events and facts cited by Counsel for the appellant in my opinion rather established the sanity and mental fitness of the appellant, as the accused person, to plead and partake in the proceedings which in my estimation he perfectly did. The defence of insanity fails therefore”
10. Counsel contended that the learned High Court judge failed to realise that no normal person will tell you that while on a journey, he alighted at a particular point while the driver was waiting, went into a bush to pick the leaves. Counsel contented that this statement of the appellant suggests that the appellant was not normal or sane because no driver of a passenger vehicle will wait for a passenger to go inside the bush to pick leaves just like the appellant is said to have done.
11. We must right away say that this narrative by Counsel is a modified version of what the appellant stated in Exhibit ‘A’ found at page 40 of the Record of Appeal.
This is what he stated therein:-
“…… On my way to Ghana, on reaching Aflao, our car stopped for us to ease ourselves. I went to a bush nearby to ease myself and found a farm full of (Indian Hemp)/cannabis. I harvested some and kept in my bag to take along. Anytime I felt hungry, since I did not have enough money with me, I would steam and sieve some of the leaves to drink. (It kept me going on without food)… ...” It is therefore not true that the driver stopped for the appellant alone as portrayed by counsel, but rather for all the passengers to ease themselves which is a practice that this court can take judicial notice of even though it is not an acceptable practice for people to ease themselves in the bush.
12. Counsel for the respondent defended the findings of the Appellate High Court Judge. Counsel contended that there was nothing throughout the trial to suggest that the appellant did not understand the nature of the charge and that the Statements he wrote were consistent with the utterances of a person in charge of his mental faculties.
Indeed the Learned High Court Judge took into consideration the generally accepted criteria for fitness to plead when he considered the defence of the mental state of the appellant. These are:-
(i) Understand the nature of the charge and the possible consequences to himself.
(ii) Following proceedings in court
(iii) Challenge the jurors (prosecution witnesses) and
(iv) Properly instruct his defence (or conduct his defence)
13. We find that there is evidence on record to support all these ingredients. The appellant was given the opportunity to cross-examine PW1 No. 35674 Defective Corporal Frederick Tawiah Oppong of Komenda Police Station the sole Prosecution Witness but he declined to do so. This is understandable since from the Record, the evidence-in-chief of PW1 was virtually in tandem with the appellant’s evidence hence he could not have asked any question(s). The appellant’s plea of ignorance that it was unlawful to carry or possess the drug in Ghana is no defence to that strict liability because it is trite that under the common law jurisdictions ignorance of the law is no defence. Similarly, his reasons for using the drug (medicinal purposes) cannot avail him as a defence because he did not show any lawful authority like a prescription by a qualified Medical Doctor that he could use the drug and the dosage if any.
Ground 2 is dismissed.
That the judgment of the High Court is against the weight of evidence.
14. Counsel relied on his submissions on Grounds 1 and 2 of the Grounds of Appeal to contend that the judgment of the High Court was not supported by the evidence on record. We would like to point out that in criminal appeals the right formulation of the omnibus ground is that the judgment is not supported by the evidence on record whilst in civil appeals, the acceptable formulation is that the judgment is against the weight of evidence. Counsel laced his submissions on this Ground of Appeal by admonishing this Court with the Biblical quotation that says “do not forget to do good when it is in your hands to do so.” This Court is a court of law, established by law to apply the Laws of Ghana and nothing else. Unfortunately, the Bible is not part of the laws of Ghana and therefore we cannot take biblical edicts into account. We must however, hasten to add that where the law directs something good to be exercised in favour of an appellant or a party to litigation for that matter, it will be done as directed by the law.
There is no need to belabour this ground of appeal as Counsels grounds 1 and 2 of the grounds of appeal have been found not to be tenable. Ground 3 is dismissed.
15. There are provisions under the law which permit an accused person to be convicted of a lesser offence even if he were not charged for same. This is provided for under Sections 154 of the Criminal Procedure Code 1960 (Act 30) which specifically provides thus:
“Section 154—When Offence Proved is Included in Offence Charged.
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.”
However, the evidence on record shows that the prosecution has proved the charge of possession against the appellant beyond reasonable doubt as demanded under Sections 11(2) and 13(1) of the Evidence Act, 1975 (NRCD 323). The appellant cannot therefore avail himself of the lesser sentence of five (5) years that goes with conviction for use of a narcotic drug.
16. Furthermore, we find that none of the conditions stipulated under Section 31(1) and (2) of the Courts Act, 1993 (Act 459) exists to overturn the appellant’s conviction as no substantial miscarriage of justice has been occasioned to him. The said section 31(10 and (2) provide thus: -
“Section 31—Appeal in Criminal Matters Allowed on Substantial Miscarriage of Justice.
(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 judgment in question ought to be set aside on the ground of a wrong decision of 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 occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted upon that charge or indictment.”
17. Article 14(6) of the 1992 Constitution also provides thus: “14(6) Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.”
Section 315(2) of the Criminal Code 1960 (Act 30) also provides thus:
“Section 315—Warrants to be Issued in Respect of Sentence of Imprisonment.
(2) A sentence of imprisonment shall commence on and include the whole of the day on which it is pronounced.”
In respect of the application of Article 14(6) of the 1992 Constitution, this is what the Court of Appeal said per curiam per Brobbey JA (as he then was) in the case of OJO AND ANOTHER V THE REPUBLIC [1999-2000] 1 GLR 169:
“As a general guide, trial courts will be well advised to state expressly in the record of proceedings when they take a period of prior incarceration into account in imposing terms of imprisonment. This should be incorporated in the record and read out or announced before the precise period to be served in prison has been announced publicly by the trial judge.”
In respect of the application of the said Article 14(6) where statutory mandatory minimum periods of imprisonment are provided as in the instant case, this is what the court of appeal said on the same OJO case cited supra per Benin JA (as he then was) at Holding 2:
“Although article 14(6) of the Constitution 1992 enjoined a court before sentencing a convicted person to take into account any period he had spent in lawful custody, since by the provision of section 315(2) of the Criminal Procedure Code, 1960 (Act 30) a sentence of imprisonment should start from the date it was pronounced, a court was not entitled to backdate a sentence. Accordingly, under the law, the judge had to take the period spent in lawful custody into account before imposing the sentence. Thus when a court imposed a term of imprisonment it should be presumed to have imposed it in the light of article 14(6) of the Constitution, 1992. Accordingly, in the instant case, the tribunal could not have imposed the mandatory minimum ten years imprisonment on the appellants with a direction that it shou1d run from the date the appellants were taken into lawful custody since that would be contrary to the provision of section 315(2) of Act 30. Nor could it have imposed eight years' imprisonment on them in view of the two years they had spent in lawful custody since such a sentence would be contrary to the mandatory provision of PNDCL 236.”
Also see the Supreme Court case of BOSSO VRS. THE REPUBLIC  SCGLR 420 for an endorsement of the principles enunciated in the OJO case cited supra.
In both the judgments of the Circuit Court and the Appellate High Court, there is no express mention that Article 14(6) of the 1992 Constitution was taken into account in pronouncing the sentence on the appellant. We have taken the said Article into account but in view of the authorities cited immediately above, the sentence of ten (10) IHL imposed on the appellant cannot be varied.
In sum, the appeal is dismissed in its entirety and the judgment of the High Court dated 11th January, 2017 affirmed.