OMENAKO vs. THE REPUBLIC [1974]DLHC416

Date	1974-11-11
Suit No.
Citation No.	[1974]DLHC416

ANTERKYI J.

ATO ENNISON FOR THE APPELLANT.

N. A. KOTEY STATE ATTORNEY FOR THE RESPONDENT.

[1974]DLHC416
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													<main id="main" class="content" style="min-height: 60rem" >OMENAKO<o:p></o:p>&nbsp;vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[HIGH
COURT, HO]<o:p></o:p>[1976] 1 GLR 151<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
11 NOVEMBER 1975.<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">

ATO ENNISON FOR THE APPELLANT.<o:p></o:p>

N. A. KOTEY, STATE ATTORNEY, 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANTERYI J.<o:p></o:p>At the
trial Circuit Court, Ho, his honour, Judge Torto, the presiding judge, after
delivering a very ably written judgment on 23 May 1974, did convict the
appellant of smuggling, contrary to section 49 (1)(a) of the Customs and Excise
Decree, 1972 (NRCD 114), and sentenced him to five years’ imprisonment with
hard labour with an order that the car and the goods involved “be confiscated
and forfeited to the Republic.”<o:p></o:p><o:p>&nbsp;</o:p>During
the hearing of this appeal, the only ground relied on by Mr. Ennison, learned
counsel for the appellant, was the second additional ground that, “The trial
court took upon itself to exercise a jurisdiction it did not possess, and its
decision therefore amounts to nothing.” Nullity, if there be, of the decision,
could be resolved from the arguments advanced by Mr. Ennison and countered by
Mr. Kotey, learned state attorney.<o:p></o:p><o:p>&nbsp;</o:p>The
ground of lack of jurisdiction on which the appeal hinges cannot better be determined
without a full statement of the charge on which the conviction was based. The
charge is stated hereunder as exactly as it had remained from the beginning of
the trial to the end. It was laid thus:<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">“The
Republic v. No. 2885 G/Sgt. Christian Aboa Omenako No 2885 G/Sgt. Christian
Aboa Omenako is charged with the following offence: Statement of Offence
Smuggling: Contrary to section 49 (1) (a) of the Customs and Excise Decree,
1972 (NRCD 114). Particulars of Offence No. 2885 G/Sgt. Christian Aboa Omenako
on or about 30 June 1973, imported the following restricted and prohibited
goods into Ghana, contrary to restrictions imposed by law: (1) 18 pieces of
Java wax print. (2) 14 bottles of White Horse whisky. (3) 12 bottles of Johnnie
Walker whisky. (4) 50 cartons of Rothmans King Size cigarettes. (5) 2 cartons
of `555’ State Express cigarettes.”<o:p></o:p><o:p>&nbsp;</o:p>The
undenied facts in evidence had been that the appellant on 30 June 1973, driving
his car No. UR 3116 from the Aflao direction towards Accra was intercepted at
the Abor junction by the border guards. When asked, whether he had anything to
declare he replied that there was nothing. His car was therefore searched.
Discovered in the car were wax prints under the back seat and in the front
boot. He was consequently taken back to Aflao upon suspicion. There, the engine
compartment as the back of the car was opened and in that compartment were
found the cartons of cigarettes and the bottles of whisky stated in the charge.
The appellant claimed ownership of the goods with the explanation that he had
purchased them from the Republic of Togo and so the prosecution started upon
the charge being preferred.<o:p></o:p><o:p>&nbsp;</o:p>During
the hearing of this appeal, Mr. Ennison, counsel for the appellant, contended
that: (1) the trial was a nullity on ground of lack of jurisdiction, and (2)
the appellant was therefore entitled to acquittal. In arguing that the trial
was a nullity, counsel contended that the trial court assumed a jurisdiction it
did not possess. In this regard counsel argued that section (1) (h) of the
Subversion Decree, 1972 (NRCD 90), covered the offence of smuggling which,
under the Decree, was an offence of subversion, an offence falling within the
jurisdiction only of the military tribunal under section 4 (1) of NRCD 90.<o:p></o:p><o:p>&nbsp;</o:p>As the offence
of smuggling with which the appellant was charged amounted to subversion under
NRCD 90, the provisions of subsection (</main>