REPUBLIC vs. WOAHENE [1967]DLCA1537

Date	1967-10-16
Suit No.
Citation No.	[1967]DLCA1537

OLLENNU JA

AZU CRABBE JA

APALOO J.A.

S. M. BOISON CHIEF STATE ATTORNEY FOR THE APPELLANT.

JOE REINDORF FOR THE RESPONDENT.

[1967]DLCA1537
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>&nbsp;vs.<o:p></o:p>&nbsp;WOAHENE <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 599<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
16 OCTOBER
1967<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

S. M. BOISON, CHIEF STATE ATTORNEY, FOR THE
APPELLANT.<o:p></o:p>

JOE REINDORF FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU, AZU CRABBE AND APALOO JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.A.<o:p></o:p>Ollennu
J.A. delivered the judgment of the court. The respondent was convicted by the
District Court, Kumasi, on 4 September 1965, of the offence of possessing
dangerous drugs, contrary to section 29 of the Pharmacy and Drugs Act, 1961
(Act 64), as amended by the Pharmacy and Drugs (Amendment) Act, 1963 (Act 222),
and was sentenced to four months’ imprisonment with hard labour and the drugs
in question were confiscated. Against that conviction, he appealed to the High
Court, Kumasi; the High Court allowed his appeal, set aside the conviction and
sentence and the order for confiscation, and thereupon acquitted and discharged
him. Dissatisfied with the judgment of the High Court, the prosecution appealed
to this court on five original grounds, namely:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1) The
learned High Court judge erred in holding that section 29 of the Pharmacy and
Drugs Act, 1961 (Act 64), as amended by Act 222 does not create an absolute
prohibition. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) His
lordship erred in holding that the trial district magistrate, by equating
lawful authority with lawful excuse, was confused in her thought and thereby
failed adequately to examine the case of the appellant. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(3) His
lordship erred in holding that the equation of lawful authority with lawful
excuse went to the root of the whole case. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(4) It
was wrong for the court to hold that the explanation of the appellant amounted
to lawful excuse within the meaning of the Act. (5) His lordship erred in
holding that he could not find any difference between Wong Pooh Yin v. Public
Prosecutor [1954] 3 All E.R. 31 and the case before him despite Dickins v. Gill
[1896] 2 Q.B. 310 cited by counsel for the respondent”, and one additional
ground, namely; “(a) The learned judge erred in law in holding that the
possession of the drugs by the respondent was not in contravention of the
statute and that the purpose for which the respondent had the drugs in his
possession did constitute `lawful excuse’ within the meaning of the statute.”<o:p></o:p><o:p>&nbsp;</o:p>A brief
history of the case is as follows: Some time in July 1964 the respondent was
charged with dishonestly receiving drugs, some cosmetics, toothpaste and tooth
brushes. He was acquitted and discharged, and the drugs and other articles were
returned to him upon an order of the court. In December 1963 and in April 1964,
that is to say, before his arrest and trial in July 1964, he had applied for
general licence under the Pharmacy and Drugs Act, 1961 (Act 64), to sell drugs,
but had had no reply. In November 1964, and in March 1965 he put in an
application for a C licence under the Act. The pharmacist, the third
prosecution witness, who deals with such applications deposed that he “tried to
take action in the accused’s application (made after July 1964) received by me,
but each time I went to the accused’s shop it was closed.”<o:p></o:p><o:p>&nbsp;</o:p>The shop
of the respondent was searched on 16 November 1964 upon a warrant applied for
upon instructions of one Mr. Quao, the Assistant Superintendent of Police who
unsuccessfully prosecuted the respondent in July 1964. The appellant was away
in the Northern Region at the time of the search, so the shop was broken into
by the police in the presence of his father, and the drugs, the subject-matter
of the present prosecution, were seized. Consequent upon this seizure, the
respondent, on his return home, reported at the police station on 27 April
1965; he was then arrested and charged before the circuit court with precisely
the same charge as in the present case. The prosecution subsequently entered a
nolle prosequi; the respondent was thereupon discharged and an order made in
his favour for restitution of the drugs, but the police did not return the
drugs to him and on 1 June 1965, the present proceedings were commenced against
him.<o:p></o:p><o:p>&nbsp;</o:p>