LAWALA vs. THE REPUBLIC [1976]DLCA403

Date	1976-02-27
Suit No.
Citation No.	[1976]DLCA403

AMISSAH J.A

JIAGGE J.A

ARCHER J.A.

A. L. DJABATEY FOR THE APPELLANT.

MRS. J. BAMFORD-ADDO PRINCIPAL STATE ATTORNEY FOR THE RESPONDENT.

[1976]DLCA403
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													<main id="main" class="content" style="min-height: 60rem" >LAWALA <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 1 GLR 359<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:
27 FEBRUARY 1976.<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">

A. L. DJABATEY FOR THE APPELLANT.<o:p></o:p>

MRS. J. BAMFORD-ADDO, PRINCIPAL 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">

AMISSAH, JIAGGE AND ARCHER JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>Amissah
J.A. delivered the judgment of the court. The appellant was convicted of the
offence of attempted unlawful exportation of goods. The charge was brought
under sections 18 (2) of the Criminal Code, 1960 (Act 29), and section 49 (1) (c)
of the Customs and Excise Decree, 1972 (N.R.C.D. 114). Section 18 (2) of the
Criminal Code is the provision which creates the offence of attempt to commit a
crime. The crime in question in this particular case comes under section 49 (1)
(c) of N.R.C.D. 114 which states:<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) If
any person— . . .<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">(c) Exports
or is concerned in exporting any prohibited or restricted goods contrary to
such prohibition or restriction . . .he shall be guilty of an offence . . .”<o:p></o:p><o:p>&nbsp;</o:p>The
particulars of the offence charged said that the goods the appellant had
attempted to export were restricted goods. These restricted goods were itemised
as cartons of cube sugar, bags of granulated sugar, cartons of Geisha, Omo,
toilet rolls, Milo, Lux soap, Guardian soap, Key soap, Bournvita, Nescafe,
margarine, sardines, cases of tobacco, bags of wheat flour, pieces of khaki
drill, bags of rice, cases of milk and a number of coalpots.<o:p></o:p>The
appellant pleaded not guilty to the charge. The evidence led against him was
that on 20 November 1973, he arrived in a truck at 1.30 a.m. at the Honuta
barrier on the border between Ghana and Togo and asked that the barrier be
opened to enable him to proceed to Palime in Togo. At the barrier at the time
were three border guards, a corporal and two men. They suspected that he had
goods, which have now become popularly known as “foreign commodities” or
“essential goods,” on the lorry. The corporal explained to the appellant that
the barrier was open only from 6 a.m. to 6 p.m. every day and that the
appellant should therefore wait. In the morning the appellant’s vehicle was
searched and the goods mentioned earlier were found on board. The accused was
then arrested together with Lasaki Adebayo, his mate and both were charged. As
Adebayo was acquitted and discharged we make no further reference to him except
where necessary.<o:p></o:p><o:p>&nbsp;</o:p>The
prosecution neither mentioned nor gave specific proof of any restrictions on
the exportation of these goods. Their case, however, proceeded on the
understanding that the exportation of these goods was restricted by law. It was
also the contention of the prosecution that the facts they led in evidence
showed that the accused had done all within his power towards the commission of
the substantive offence specified in the charge. The appellant was prevented
from the completion of the offence, according to the prosecution, only through
the intervention of the border guards. The offence of an attempt to export the
goods unlawfully had therefore, been established.<o:p></o:p><o:p>&nbsp;</o:p>The
defence of the appellant was that he did not wish to cross the border to Togo
at all that night. It was true that he had arrived at Honuta barrier at 1.30
a.m. It was true he had on his lorry the goods described. But he came to the
barrier to discharge thirteen empty drums which were to be collected by someone
coming from Palime. The goods described in the charge was consigned to him for
delivery in Kadjebi and Hohoe. He told the story about how both the empty drums
and the other goods were given to him by two different people in Accra. The
owner of the goods consigned to Kadjebi and Hohoe was to meet him at appointed
place in Hohoe and at an appointed time to take charge of his goods. According
to the appellant when he got to Honuta that night, it was raining so heavily
that he decided to sleep there and to unload his drums the next morning before
continuing his journey to Hohoe and Kadjebi. At 5 a.m. he was arrested by the
border guards on the charge preferred against him in court.<o:p></o:p>