NYARKO vs. THE REPUBLIC [1973]DLHC2302

Date	1973-11-20
Suit No.
Citation No.	[1973]DLHC2302

ANDOH J.

AGBETTOH FOR THE APPELLANT.

E. AKWEI-ADDO STATE ATTORNEY FOR THE REPUBLIC.

[1973]DLHC2302
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">NYARKO<o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">THE REPUBLIC<o:p></o:p>&nbsp;[HIGH COURT, HO]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1974] 1 GLR 206<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:
20 NOVEMBER 1973.<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">

AGBETTOH
FOR THE APPELLANT.<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">

ANDOH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANDOH J.<o:p></o:p>This is a
criminal appeal from the judgment of his honour Judge E. T. A . Torto sitting
at Ho Circuit Court wherein upon trial and conviction of the appellant herein
on 15 August 1973 for the crime of smuggling, the learned judge sentenced the
appellant to five years’ imprisonment with hard labour. It is against this
conviction that the appellant appeals to this court and even though four
grounds of appeal were filed, Mr. Agbettoh counsel for the appellant in arguing
this appeal has confined himself to only two grounds, namely: (1) that the
learned trial judge erred in law when he admitted the appellant’s statement
without first investigating whether he made it or not and (2) that the learned
trial judge erred in law when he allowed further evidence to be led by the
prosecution at the close of the case for the defence. Before considering the
merits in this appeal, I would state concisely the facts leading to the arrest,
prosecution and subsequent conviction of the appellant in the court below. The
facts are quoted verbatim from the judgment of the learned circuit judge at
page 11 from lines 18—33 of the record of the proceedings. They are as follows:<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">“On 25
June 1973 a Bedford pick-up with registration No. GS 3459 was intercepted at a
barrier mounted by a team of Border Guardsmen at Asikuma, and on its
interception, 322 cartons of Rothmans Kingsize cigarettes were found concealed
in the body of the vehicle under a tarpaulin. These were suspected to be
contraband goods. The driver was interrogated as to the ownership of those
goods and he was alleged to have pointed out the accused who readily admitted
the fact adding he had only been given a lift from Anyirawase. The accused was
unable to produce the relevant document to show that customs duty had been
defrayed and so he was arrested. “<o:p></o:p>On these
facts, on 27 June he was charged with the following offence:<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">“Statement
of Offence: Smuggling contrary to section 49 (1) (a) and (e) of the Customs and
Excise Decree, 1972 (N.R.C.D. 114). Particulars of Offence: For that you on the
25th day of June, 1973 at Asikuma Junction border guard check point in the
Volta circuit and within the jurisdiction of this court with intent to defraud
the Republic of duty, did unlawfully import 322 cartons Rothmans
Kingsize-cigarettes from the Republic of Togo to Ghana.”<o:p></o:p><o:p>&nbsp;</o:p>I have
already mentioned the two grounds of appeal before this court but in order to
appreciate these, I think it would be fair to state other facts or occurrences
which took place either before or in the course of the trial to necessitate
these grounds relied on in this appeal.<o:p></o:p>Before
the accused was arraigned before the learned circuit judge, as is the normal
practice, he had been interrogated and cautioned for a statement by the police.
The accused was reported to have made a statement which in effect was a simple
confession. Again just before the first defence witness had concluded with his
evidence which was to the effect that it was he who had sold the said
cigarettes allegedly manufactured by Pioneer Tobacco Company, Accra, to the
accused and had given the accused a receipt to cover the transaction, the
prosecution applied to call a further witness. The application was vehemently
opposed and at p. 8 of the record of proceedings appears counsel’s objection
which is as follows:<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">“Mr.
Nutsugah objects on the ground that the prosecution had ample opportunity to
call all witnesses in support of their case and that since their case has been
closed they are precluded from so doing. If they are allowed to call a fresh
witness, it would mean that they are re-opening their case. This should not be
allowed. It would be different if they had previously intimated that they
intended calli</main>