AMOAH vs. THE REPUBLIC [1976]DLHC351

Date	1976-05-03
Suit No.
Citation No.	[1976]DLHC351

MENSA BOISON J.

APPEA-KUBI FOR THE APPELLANT.

OSEI STATE ATTORNEY FOR THE REPUBLIC.

[1976]DLHC351
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													<main id="main" class="content" style="min-height: 60rem" >AMOAH <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[HIGH
COURT, SUNYANI]<o:p></o:p>[1976] 2 GLR 273<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:
3 MAY 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">

APPEA-KUBI FOR THE APPELLANT.<o:p></o:p>

OSEI, STATE ATTORNEY, FOR THE REPUBLIC.<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">

MENSA BOISON J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF MENSA BOISON J.<o:p></o:p>This is
an appeal against a disposal order of the District Court Grade I, Goaso,
forfeiting two firearms to the State by virtue of the provisions of section 144
of the Criminal Procedure Code, 1960 (Act 30).<o:p></o:p><o:p>&nbsp;</o:p>The brief
facts on which the prosecution was founded were as follows: On the day in question
two friends Kwame Budu and A.B., both males, each armed with a firearm went on
a hunting expedition. On seeing a group of monkeys the two were attempting to
shoot when pellets from Kwame Budu’s firearm strayed injuring A.B. Kwame Budu
was using a gun belonging to his father, Kwame Donkor. The complainant A.B. was
the son of Kwasi Amoah, the present appellant, and was using a gun of the
appellant’s on the hunting expedition. Kwame Budu was charged with possessing a
firearm without authority, contrary to sections 6 and 22 (1) (a) of the Arms
and Ammunition Act, 1962 (Act 118), and Kwasi Amoah and Kwame Donkor owners of
the two firearms, respectively, were charged with parting with possession of
arms without authority, contrary to sections 3 (1) and 11 of the Arms and
Ammunition Decree, 1972 (N.R.C.D. 9). On each accused pleading guilty they were
respectively convicted and sentenced to a fine of ¢400.00 or twelve months’
imprisonment with hard labour in default. The trial court concluded by ordering
“the two guns to be surrendered and forfeited to the State.”<o:p></o:p>The
original ground of appeal that N.R.C.D. 9 does not authorise forfeiture of the
exhibits was plainly misconceived. Counsel however eventually came home on
section 144 of Act 30, which provides for general disposal and restitution of
property connected with a trial. Section 144 (1) and (5) of Act 30, are
relevant and provide:<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">“144. (1)
Notwithstanding anything in this Code or in any enactment, when any person is
convicted of an offence the Court may make such order as in any case it thinks
fit for the destruction or for the forfeiture and disposal of any article
produced before it regarding which any offence appears to have been committed,
or which has been used for the commission of any 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">(5) No
order shall be made under this section in respect of any article unless the
article is owned by the accused or is in his possession with the consent of the
owner in such circumstances as to show that the owner was aware that an offence
would be committed in respect thereof, or that it would be used for the
commission of an offence. Any person claiming to be the owner of the article
shall be entitled to appear and be heard before any order is made under this
section. For the purposes of this subsection ‘owner’ includes any person with
an interest in the article.”<o:p></o:p><o:p>&nbsp;</o:p>It was
counsel’s submission that as Kwame Donkor’s firearm, and not the appellant’s,
was that used in injuring A.B., who is rather the appellant’s son, there was no
power to make an order confiscating the gun. In other words counsel’s stand was
that only an article “which has been used for the commission of an offence”
could lawfully be confiscated. That was plainly wrong. Alternatively it was
contended that as the appellant was not the owner of the firearm used in
injuring A.B. the court should have heard the appellant before making any
adverse order against him. The failure to hear the appellant thus rendered the
order, even if it was within section 144 of Act 30, invalid.<o:p></o:p><o:p>&nbsp;</o:p>Mr. Osei
for the Republic thought the point for interpretation offered no difficulty. He
submitted that an order for destruction or for confiscation, etc. may be made
firstly in respect of an article “regarding which an offence has been
committed.” That empowered the trial court in this case to have ordered the
forfeiture of the gun of the appellant on the ground that he committed an
offence in respect of his firearm by parting with the gun without authority to
his son A.B. Secondly there was power to order confiscation</main>