IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2018
GAMELI AGBAVOR - (Plaintiff)
THE REPUBLIC - (Defendant)
DATE: 11 TH MAY 2018
SUIT NO: F22/39/2018
JUDGES: ERIC BAAH JUSTICE OF THE HIGH COURT
M. Z. GLOVER FOR APPELLANT
SIMON ADATSI FOR THE REPUBLIC
The appellant was charged before the Circuit Court, Aflao on three counts. The first two counts related to "distribution of fertilizer without registration or licence, contrary to Section 68 (1) and 80 (5) (a) of the plant and Fertilizer Act, 2010, (Act 803).
In count three, he was charged for "smuggling and other evasion, contrary to Section 317 (1) (c) (e) and (f) of Act 29, 1960.”
After a plenary trial, he was discharged in respect of the first two counts. He was however convicted on the third count, and that is the subject of this appeal.
Mr Glover for the appellant urged the following on the court:
That the failure of the prosecution to call Stephen Dzodzi who arrested the appellant was fatal, for he was supposed to be the prosecution's star witness, and the omission to call him created a reasonable doubt, which must enure to the benefit of the appellant.
That there was confusion about the identity of the person who arrested the appellant. Whereas PW1 called him Dzodzi Atta, Pw2 called him Stephen Dzodzi. He wondered as to whether the two names referred to the same person or not.
That whereas Pw2 initially claimed that the appellant was arrested at Kpegadzi, he later said he was arrested at Tovi. On his part, PW1 asserted that the arrest took place at Deme. According to counsel, all three towns are within Ghana and far away from the Togo boarder.
In his view, the inconsistencies would have been sorted out if Stephen Dzodzi had testified.
With the mystery surrounding the actual location as to where the appellant was arrested, he lamented the decision of the trial judge to convict the appellant, and thereby ignoring the inconsistencies. The appellant is a known farmer who had purchased the fertilizer legally for it to be shared for farming purposes. He posited that a bad precedent will be established if such lawful activities linked to farming at the boarder communities are considered smuggling and therefore illegal. Mr Simon Adatsi for the republic agreed that there were indeed inconsistencies in the case of the prosecution as to where the appellant was arrested. He also agreed that the appellant is a known farmer who on countless occasions had bought fertilizer from licenced sellers. He however aligned with the conclusion of the trial judge that even though the appellant could not be said to have smuggled the fertilizer, the movement of the product after its purchase evinced an attempt to smuggle it. He posited that the trial judge was wrong in relying on Section 153 of Act 30, instead of acting under Section 317 of Act 29, which classified the offence as a misdemeanour but prescribed a minimum sentence of five (5) years. He however considered five years as too harsh in the circumstances of this case and prayed for remission of sentence. And appeal amounts to a rehearing, especially where the appellant challenges both conviction and Sentence. See: Bakano Ltd v Osei  77 G.M.J 68 CA; Brempong II v Amofa & ors [2001 - 2002] SCGLR 117; Koranteng II & Anor v Klu [1993 - 1994] 1 GLR 280.
I am accordingly entitled to review the record in its entirely and determine as to whether the decision by the trial court accords with the law. The prosecution's case was that the appellant hired Edoe Ahiaxonu a tricycle driver, to smuggle 25 bags of fertilizer bought at prices subsidised by the government of Ghana, into Togo. The prosecution called the said driver as PW1. His evidence before the trial court on 24 January, 2018, was that, the appellant hired him to convey the fertilizer from Dzodze township (Kuve market), to Deme. He alleged that it was on the way to Deme that they were accosted and arrested by one Dzodzi Atta, referred to elsewhere by PW2 as Stephen Dzodi Azakpo. The police investigator, Edward Quansah (PW2) who claimed to have been detailed with another officer to the "location to counter smuggling activities, testified, inter alia, on 31 January, 2018; "And so myself and Lance Corporal Kojo Otibu Djan were detailed on surveillance. I called upon Stephen Dodzi Azakpo to assist us. Myself and my colleague went to the location. Along the Dzodze Deme motor road we came across Dzodzi who had intercepted 25 bags of NPK 15 - 15 - 15 brand of fertilizer. The tricycle was driven by PW1 and one Kwame as a driver's made. PW1 denied smuggling the fertilizer and mentioned the accused as the person who engaged their services of conveying the 25 bags of fertilizer from Dzodze to Deme..." Edoe Ahiaxonu (PW1) was the tricycle driver arrested carrying the fertilizer. He claimed that he was arrested by Dzodzi "on our way to Deme market.” The police investigator, Edward Quansah (PW2) did not affect the arrest. He revealed that it Dzodzi who effected the arrest. He testified that he and his colleague found PW1 on the "Dzodze - Deme motor road," where PW1 had been arrested.
By some inexplicable reason, Dzodzi was never called to testify as a prosecution witness. As to how the prosecution left out their star witness and expected to prove their case in the circumstances, I am unable to fathom out. After having said that he found PW1 arrested on the Dzodze - Deme motor, PW2 then went on an unmitigated mission of hearsay testimony. Said he;
"The investigations revealed that the accused person was intercepted with the fertilizer at Kpegadzi which is a "no man's land"... between Ghana and Togo."
The question is, from where did the investigation reveal those facts? Why did the prosecution not call as witness, the person or persons who found the appellant or his agents at Kpegadzi?
Under cross - examination by the appellant, PW2 who had just testified that they found PW1 and Dzodzi on the Dzodze - Deme motor road, now said they met Dzodzi at Tove which is ahead of Deme village. If Tove is not between Dzodze and Deme, then PW2 contradicted himself. If Tove is beyond Deme (from Dzodze) then again, he contradicted himself, for he had earlier said that he found PW1 and Dzodzi between the Dzodze -- Deme motor road. The prosecution having failed to call any witness who found the appellant or PW1 at Kpegadzi, it was quite strange that the trial judge bought into the hearsay conspiracy theory that the appellant or PW1 was actually found at Kpegadzi. It appears from the proceedings that PW1 had stated in his investigation cautioned statement that he was caught at Kpegadzi. I do not have that statement so I am unable to verify by myself if he did say that. If indeed PW1 stated in his cautioned statement that he was caught on the road at Kpegadzi, then he contradicted himself.
The trial court glossed over the fact that the cautioned statement of PW1 (exhibit A) could only be treated as a "confession statement" in respect of its maker, and not another suspect like the appellant.
At the close of the trial, PW1 had stated that he was caught on the way from Dzodze to Deme. His investigation cautioned statement stated allegedly that he was caught at Kpegadzi. PW2 who had stated that he found PW1 caught by Dzodzi between Dzodze and Deme later testified that he found them at Tove. Dzodzi, who arrested PW1 either at Deme or Kpegadzi, was not called to testify. It should be noted that in a charge of smuggling and other evasions, the evidence must prove beyond reasonable doubt that the accused was smuggling the goods or was engaging in some evasion. Mere suspicion is not enough. In casu, the evidence of the prosecution was confusing and uncertain as to where PW1 or the appellant was arrested with the goods. When PW1 allegedly said in his investigation cautioned statement (exhibit A) that he was caught at Kpegadzi, but testified that he was caught at Deme, the prosecution should have applied to the court to cross - examine him as a hostile witness, with the aim of reconciling the inconsistency. I concede that the police officer who prosecuted the case may not have been aware of the law, but that ignorance did not change the law.
Secondly, the cautioned statement was tendered by PW2, after PW1 had left the witness box. PW1 therefore had no opportunity of objecting to it or verifying the contents to see if it was the statement he made. Further, since the appellant did not make that statement, he could not have properly objected to it when PW2 was tendering it. The rule of law is that where there is inconsistency between a cautioned statement and the evidence of an accused in court, the cautioned or charged statement usually prevails on ground that the statements therein were made closer to the event. That rule could not apply in this case. It applies only to the accused who made the two conflicting statements. The appellant did not make those conflicting statements. He insisted throughout the trial that his goods were seized at Deme. As things stood, the prosecution sought and secured conviction on the conflicting evidence of PW1 and the evidence of PW2 who was not immediately present at the scene of arrest and also gave conflicting statement. PW2 could not be certain as to whether the appellant or PW1 was arrested at Tovi or on the road between Dzodze and Deme.
At the close of the case for the prosecution, no prima facie case had been established. In the face of the conflicting evidence of PW1 and PW2; which created real doubts in the prosecution's case, the conviction and sentence of the appellant was clearly unsupported by the evidence. The proper exercise of jurisdiction was to have dismissed the case of the prosecution. There was no need to have called the appellant to open his defence. I find merit in the appeal and hereby uphold it.
The conviction and sentence of the appellant by the Circuit Court, Aflao, in its judgment of 18 April, 2018 is hereby set aside. The appellant is now on bail. He is discharged from the prison term and fine imposed on him by the judgment. The twenty-five (25) bags of fertilizer seized from him should be returned to him. If they have been sold as ordered by the trial court, the proceeds should be handed to him.