Republic Vrs Edith Amadu [2023] GHACC 506 (24 April 2023)

IN THE CIRCUIT COURT ‘3’ HELD AT ACCRA ON WEDNESDAY THE 24TH DAY OF APRIL, 2023 A. D. BEFORE HER HONOUR SUSANA EDUFUL (MRS). CIRCUIT

JUDGE CASE NO. D21/98/2021

THE REPUBLIC

VRS

EDITH AMADU

RULING ON SUBMISSION OF NO CASE TO ANSWER The Accused Person has been charged with two counts; Unlawful Possession of Narcotic Drug contrary to section 37(1)&(2) and Prohibited Business Relating to Narcotics and Contrary to Narcotics Control Commission Act 1019 (2020) The Brief Facts The brief facts as given by Prosecution are that ‚On 22nd day of September 2021, the Mamprobi Police Command embarked on an exercise to arrest narcotic drug peddlers and users within its jurisdiction. In the course of the exercise the team chanced upon Accused in her drinking bar where she trades in assorted alcoholic beverages. The Accused was seen holding a Plastic Coca-Cola bottle 1 | P a g e with brown –colored liquid substance in it. The Accused was questioned about the content of the bottle she was holing but she could not give any tangible answer and she was subsequently arrested on suspicion of trading in narcotic drug where upon the content of the bottle to be examined. In the course of investigation, the exhibit was sealed in the presence of the Accused and forwarded to Police Forensic Laboratory for examination and report. The result that was later received proved that the exhibits contained cannabis with gross weight of 1,127.93g. the Accused was accordingly charged with the offence‛. On March 28, 2022, the plea of Accused was taken, she pleaded not guilty to both charges proffered

against her. The court proceeded to hear the case. INGREDIENTS OF THE OFFENCE: The Accused Persons have been charged with Unlawful Possession of Narcotic Drug contrary to section 37(1) of the Narcotics Control Commission Act 1019 (2020) For the Accused Persons to be convicted under the charge, the prosecution must prove the following ingredients of the offence: ( i ) Custody or control of the drug by the accused persons ( ii ) Knowledge of the presence of the drug 2 | P a g e ( iii ) Knowledge of the nature of the drug possessed proof of which can be actual or constructive ( iv ) the accused had no lawful authority for possessing the narcotic substance Count 2 The Prosecution must in addition to the ingredients stated in Count 1, show that Accused Person was in the business of trading in the prohibited substance

THE LAW ON SUBMISSION OF NO CASE TO ANSWER The Criminal Procedure and Other Offences Act, 1960 (Act 30) is the law that guides the Court in any criminal trial in Ghana. Section 173 and 174(1) of Act 30 provides as follows: 173. Where at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require the accused to make a defence, the Court shall, as to that particular charge, acquit the accused. 174 (1) At the close of the evidence in support of the charge if it appears to the Court that a case is made out against the accused sufficiently to require the accused to make a defence, the Court shall call on the accused to enter his defence and shall remind the accused of the charge and inform the accused of the right to give evidence personally on oath or to make a statement. From the law stated above, it is clear that even without the prompting of the accused persons, this Court is obliged by law to consider, at the close of 3 | P a g e prosecution’s case, whether sufficient evidence has been offered to prove every essential element in the offence charged. On 28-09-2020 the Counsel for the defence filed a written submission of no case on behalf of the accused persons which has been read and considered in this ruling. To determine whether or not a case has been sufficiently made by the prosecution

to justify this Court to invite the accused persons to open their defence, I find it necessary to set out the scope of burden that is cast on the prosecution to discharge at this stage. That is to say, whether the prosecution has been able to establish a prima facie case against the accused persons in respect of each of the offences charged. The settled position of the law as espoused in several authorities decided by the Ghanaian Courts is that at the close of prosecution’s case, a prima facie case ought to have been established. MALI V. THE STATE [1965] GLR 710; THE STATE V. SOWAH [1961] 2 GLR 745; MOSHIE V. THE REPUBLIC [1977] 1 GLR 258; APALOO v. THE REPUBLIC [1975] 1 GLR 156; ALI KASSENA V. THE STATE [1962] 1 GLR 144 and recent cases such as TSATSU TSIKATA V. THE REPUBLIC [2003-2005] 2GLR 294 and MICHAEL ASAMOAH & ANOR v. THE REPUBLIC Suit No. J3/4/17 dated 26th July, 2017, where the Supreme Court speaking per Adinyira JSC stated the law thus: ‚Furthermore, the standard of proof borne by the prosecution at this stage cannot be proof beyond a reasonable doubt, as held in the case of Tsatsu Tsikata v. The Republic [2003-2004] SCGLR 1068‛ At the close of prosecution’s case, the evidence led should be capable of displacing the presumption of innocence of the accused persons. And, where the evidence has not been able to displace this presumption, then it means that a case has

not been sufficiently made out to justify the court to call on the accused to open his defence. SEE the ruling of the High Court in the case of THE REPUBLIC v. EUGENE BAFFOE- BONNIE & 4ORS Suit No. CR/904/2017 dated 23rd May, 2019. 4 | P a g e What will necessitate a discharge and an acquittal of the accused persons, at this stage is when the following are present; 1. That there has not been sufficient evidence to prove the essential elements in the offence charged.

2. That the evidence adduced by the prosecution had been so discredited as a result of cross examination that no reasonable tribunal could rely on that evidence.

3. That the evidence offered by the prosecution is so manifestly unreliable that no reasonable tribunal could safely convict upon it.

4. That the evidence is evenly balanced, that is to say, the evidence is susceptible to two likely explanations- one consistent with guilt, the other consistent with innocence. When any of the above elements are not made out, the court must acquit the accused persons. Section 37(1) of Narcotics Control Commission Act 1019 (Act 2020) which the Accused Persons has been charged, the offence created is intended to be one of strict liability. What is meant is that if prosecution establishes the basic facts and ingredients of the offence to the satisfaction of the court accused then assume the burden to prove otherwise. Humphrey J. delivery a judgment regarding an offence of strict liability in the case of R V CARR – BRAND [1943] K.B 607 that: ‘Either by statute or common law some matter is presumed against an accused person, unless the contrary is proved. That the burden of proof required is less than that at the hand of 5 | P a g e prosecution in proving a case beyond a reasonable doubt and that the burden may be discharged by evidence to satisfy the jury of the probability of that which the accused is called upon to establish’ This indeed is true as under section 13 (2) of the Evidence Act, that the burden on accused on a matter that is in issue required him to establish his case by the civil standard of the balance of probabilities. THE EVIDENCE: Prosecution called three

witnesses: First prosecution witness (PW1) was Detective Chief Inspector Issifu Baba, Stationed at Mamprobi District Police Station. PW1 investigated the case and therefore knows the Accused. According to PW1, on September 22 2021 the Accused was arrested with a plastic coca cola bottle which contained some liquid substance and she was brought together with substance to the Police Station for investigation. According to PW1 he sealed the substance in the presence of the Accused and an independent witness and then forwarded it to the substance to the forensic laboratory for examination and testing. PW1 took statement from the arresting officer, Moses Kumi who was part of the team that undertook the exercise. PW1 took the investigation caution statement and charge statement of Accused and tendered them in evidence as exhibit A and C respectively. The reported from the forensic laboratory was tendered in evidence as exhibit B series and the real exhibit in 1 liter 6 | P a g e Coca Cola bottle was tendered in evidence as exhibit D. The 2nd Prosecution witness(PW2) was Sergeant Governor Agboli, he is stationed at Mamprobi Police Station. According to pW2 On September 2021 the Mamprobi District Police Command organized and exercised to arrest narcotic drug peddlers and users in the Jurisdiction and he PW2 was part took part in the exercise. PW2 told the court that on arriving at the

seen the Accused was met at a drinking bar selling alcoholic beverages. The Accused was found holding a big bottle one liter Coca Cola bottle containing some drink which was suspected it contained narcotics. Accused was arrested together with the exhibits and sent to the Mamprobi Police Station for investigation. ANALYSIS OF THE EVIDENCE AND APPLICATION OF THE LAW: On the charge of possession of narcotic drugs. The 7th edition of the Black law’s dictionary defines the verb ‘possess’ to mean ‘to have in one’s actual control’. In the case of WARNER v. METROPOLITAN POLICE COMMISION [1969] A.C p. 256 possession was defined as follows: ‘Possession is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it in your control…’ 7 | P a g e Prosecution led evidence through PW1 and PW2 that a substance in the I liter coca cola bottle exhibit D was in possession of Accused. The exhibit D was taken to the Forensic Laboratory for testing and it was proved to contain narcotic substance. The invasion of the Accused’s shop by the Police was as a result of intelligence gathered by the Police. They eventually arrested Accused Person who was at the shop and when the substance was tested it proved to be cannabis per exhibit B series. The caution statement of Accused confirms the evidence of prosecution. The charge statement of Accused

is however different. The two statements of Accused are inconsistent and different. Exhibit A is a confession statement of the Accused to the effect that the substance exhibit D, was found in her possession and custody. She states ‚Today September 22, 2021 at about 5:30 pm whilst I was in my drinking bar some Police Officers come and met me with a bottle of mixture of the Indian Hemp and the milk and arrested me to Mamprobi Police station‛. Comparing the two statement the court finds that when the incident was fresh in Accused’s memory she admits the offence that fact that the police officers met her having the bottle in her hands, but after sometime in her charge statement she changes her statement her statement is different. This inconsistency in Accused’s statement show that exhibit C is an afterthought it was only being used to throw dust into the eyes of the court, consequently the court will reject Accused’s assertion in exhibit C and will not put any weight on it. The court has also considered the inconsistent statement of PW2 8 | P a g e when during cross-examination he makes a contradictory statement that he did not see Accused holding the bottle. Whether or not Accused was holding the bottle or not cannot discount the issue of possession in law. The court will not but any weight on the inconsistent statement of PW2.The court finds that the prosecution has been able

to establish the first ingredient to of the offence that accused was in possession of the substance which contained narcotic drugs. Regarding the second and third ingredients, prosecution must establish that apart from the fact that substance found in the custody of the Accused Persons the Accused Persons knew of the presence of the substance and also knew that it was in fact cannabis. As knowledge is incapable of direct proof evidence led by prosecution from which the necessary inference could be drawn may be sufficient. See the case of SOKOTO v. REPUBLIC [1972] 2G.L.R 372, the court held concerning proof of knowledge that: In discharging the burden of proof the prosecution need not establish actual knowledge in the accused person. Evidence from which the knowledge of the accused person may be justifiably inferred is sufficient’ There is evidence that PW2 together with the team found the substance. Again, the evidence by PW1, PW2 together with exhibit A which is the investigation caution statement of the Accused is so convincing about the fact that Accused knew the nature of Exhibit 9 | P a g e ‘D’ and what was at stake that is why she concealed the substance in the Coca Cola bottle. The court finds that prosecution has established that Accused knew that Exhibit ‘D contained cannabis, a narcotic drug. Exhibit ‘B2 shows that the substance had a net weight/Vol of 1,070.21g and

it contained all the active ingredients present in cannabis. The final ingredient that the prosecution must establish whether or not the Accused Person did not have lawful authority in possessing the drug found on them. Section 36 of Narcotics Control Commission Act 2020 states ‚(1) in accordance with section 126 of the Public Health Act, 2012 (Act 851) a person who imports, exports or re-exports a narcotic drug without a license issued by the Minister responsible for Health, commits an offence and is liable on summary conviction to a fine and a term of imprisonment as specified …‛ what is lawful authority under the Act can be defined as; ‘authority given by a person or body prescribed by the minister’ In the case of ELLIS TAMAKLOE v REPUBLIC [2008] 19 M. L.R.G 189 at page 194 per Gyaesayor J.A. that: ‘the duty of the prosecution is to satisfy the court that a person so charged possesses the illicit drug without lawful authority. It then becomes the duty of the person charged to show that he had lawful possession of the drug. That lawful authority shall be the 10 | P a g e minister responsible for health’ The Accused did not show throughout the evidence that he had license from the minister of health to possess the substance. Consequently, I find the prosecution has also established this ingredient of the offence… Count 2. What is on evidence to show that the Accused was

selling the substance. The Prosecution stated that the Accused operated a drinking bar and therefore sold other dinks in the shop. The substance was found with the Accused with the shop, which shows the substance is part of the drinks Accused was selling to the public. The burden is therefore cast on Accused to raise a doubt in the mind of the court on this piece of evidence The court finds that the prosecution has made a prima facie case against Accused. That is Accused was in the business of trading in the prohibited substance. The element of Per section 11(3) of the evidence Act, with the prosecution having established a case against the accused he is required only to raise a reasonable doubt concerning his guilt in his defense. They need not prove that they are innocent. It is enough if his defence is reasonably probable. See the case of AMARTEY v THE REPUBLIC [1964] GLR 11 | P a g e The prosecution has proved all the ingredients of the offence to the requisite degree of proof that the law requires at this stage. The Accused Persons therefore called upon to open her defence under court one and two of the charge sheet…

PROSECUTOR

INSPECTOR TEYE OKUFFO

LEGAL REPRESENTATION

BEN SEVOR FOR ACCUSED SGD H/H SUSANA EDUFUL (MRS) (CIRCUIT JUDGE) 12 | P a g e