REPUBLIC vs. JAMES TOWN CIRCUIT COURT; EX PARTE MARKHAM [1977]DLSC1424

Date	1977-09-15
Suit No.
Citation No.	[1977]DLSC1424

CECILIA KORANTENG-ADDOW AG.J.

MIKE ATADIKA FOR THE APPLICANT.

OSAFO SAMPONG SENIOR STATE ATTORNEY FOR THE REPUBLIC.

[1977]DLSC1424
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>JAMES TOWN CIRCUIT COURT; EX PARTE MARKHAM <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1977]1 GLR 388<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:
15 SEPTEMBER
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">

MIKE ATADIKA FOR THE APPLICANT.<o:p></o:p>

OSAFO SAMPONG, SENIOR 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">

CECILIA KORANTENG-ADDOW AG.J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF CECILIA
KORANTENG-ADDOW AG.J.<o:p></o:p>The
applicant is an horologist, and carries on his business at Tema. On 7 April
1976, he was arraigned before the Circuit Court, James Town, on a charge of
selling specified goods without licence contrary to the Commercial Houses and
Supermarkets (Sale of Specified Goods) Decree, 1976 (S.M.C.D. 17). The
particulars of offence read:<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">“For that
you on 24 March 1976 at Tema in the Accra-Tema Circuit and within the
jurisdiction of this court, did sell 1,824 pieces of assorted dry cell
batteries without licence.”<o:p></o:p><o:p>&nbsp;</o:p>The case
proceeded on trial, and the prosecution led evidence, and concluded their case.
On a submission of no case, the presiding circuit judge ruled that there was no
evidence of a sale but called upon the applicant to answer a charge of an
attempt to sell. The relevant portion of his ruling reads;<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">“For as
much as I sympathise with such a submission I will respectfully hold that the
evidence so far adduced sufficiently establishes the ingredients of the offence
of an attempt to sell. I will not elaborate on them and I will therefore call
upon him to enter his defence.”<o:p></o:p><o:p>&nbsp;</o:p>The
applicant has moved, by way of certiorari, to quash the ruling of the learned
trial judge. The basis of the application is that there is error of law on the
face of the record. It is argued by counsel for the applicant that under the
Decree no offence of attempt was created and therefore no offence was committed
by the applicant on the facts presented to the court. He argued further that
the enactment of the Control of Sale of Specified Goods Decree, 1976 (S.M.C.D.
35), a few months after S.M.C.D. 17 reinforces his argument that at the time
the applicant was charged no offence could have been committed.<o:p></o:p><o:p>&nbsp;</o:p>In order
to appreciate counsel’s argument fully, I will recount the evidence which has
been summarised in the ruling of the learned circuit judge. The purchasing
officer of the Procurement Division of the State Fishing Corporation received
three pro forma invoices from the applicant. Two were issued on 17 and 19
February 1976 respectively and the last was issued on 24 March 1976. These
invoices were issued in respect of dry cell batteries which have been specified
under Part I of the Schedule to S.M.C.D. 17. The prices quoted on the invoices issued
in February were too high so the purchasing officer declined to buy them. In
the third invoice prepared on 24 March, the price quoted was said to be within
the controlled price so the purchasing officer accepted it and prepared a local
purchase order (L.P.O.) which he presented to his head of department for
approval. The head of the department in turn sought approval from the managing
director of the corporation. When the L.P.O. was put before the managing
director he did not approve of it. He directed that the applicant be advised to
surrender the dry cell batteries to the police because he was not authorised to
sell them under S.M.C.D. 17. The applicant did not have an approved commercial
house or supermarket or approved kiosk. Within the same hour that the telephone
call had been made to the applicant advising him to return the batteries to
police, he was arrested and the batteries taken away from him. Upon this
evidence the trial judge held that there was evidence which established there
was an attempt to sell.<o:p></o:p><o:p>&nbsp;</o:p>Section 1
(1) of S.M.C.D. 17 under which the applicant was charged reads:<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. (1)
Subject to the provisions of the Price Control Decree, 1974 (N.R.</main>