MORO vs. THE REPUBLIC [1978]DLHC1155

Date	1978-01-30
Suit No.
Citation No.	[1978]DLHC1155

ROGER KORSAH J.

ANNAN FOR THE APPELLANT.

BAWUMIA FOR THE RESPONDENT.

[1978]DLHC1155
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													<main id="main" class="content" style="min-height: 60rem" >MORO <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>&nbsp;[1979] GLR 256<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:
30 JANUARY 1978<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">

ANNAN 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">

ROGER KORSAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ROGER KORSAH J.<o:p></o:p>The
appellant stood trial on a charge of: possessing Indian hemp contrary to
sections 47 (1) and 57 (1) of the Pharmacy and Drugs Act, 1961 (Act 64). 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">“Hamidu
Moro, Arabic teacher: for that you on 16 February 1976, at Mampong Circuit and
within the jurisdiction of this court, had in your possession without lawful
excuse a quantity of Indian hemp weighing 5,902.0 grammes.”<o:p></o:p><o:p>&nbsp;</o:p>The facts
upon which the prosecution relied for the establishment of their case were
that: On 16 February 1976, one Daniel Akyaa, a police constable stationed at
Atebubu, was travelling outside his station to Sunyani, when the vehicle on
which he was travelling stopped at the Mobil filling station at Ejura. The
driver and passengers alighted for refreshment and the said constable also came
out and stood behind the vehicle. While he was thus standing, the accused
person arrived holding what is variously described as a bag or portmanteau, but
which all agree was reddish in colour. The accused boarded the vehicle and sat
on the last seat. Constable Akyaa also re-occupied his place, which was on the
last but one seat, before the vehicle proceeded on its way. In the course of
the journey, an ominous odour reminiscent of Indian hemp, greeted the olfactory
organ of the constable. He therefore suspected the accused “to have something
in the bag.” When the vehicle arrived at the Mampong police barrier, constable
Akyaa alighted and reported his suspicion of “the contents of the portmanteau”
to Essilfi Omane Agyekum who is a corporal in the Ghana Police Force and was on
that day, on duty at the said Police barrier. He pointed the accused out to
Corporal Agyekum, and the good corporal requested the accused “to bring out the
bag.” The accused complied with this request and was escorted by the two
policemen to the Mampong charge office. There, the accused again complied with
a police request “to open the portmanteau.” The portmanteau was found to
contain leaves suspected to be Indian hemp. He was thus handed over to the
police at the charge office. The police at the charge office sent the contents
of the bag, which were sealed in the presence of the accused, to the government
analyst who certified them to be Indian hemp. The accused was cautioned and
asked whether he wished to make a statement, and he stated, “I have nothing to
say. I will give my statement in court.”<o:p></o:p>The
defence put forward by the accused seems to me a little mixed and confusing.
Counsel for the accused suggested in his cross-examination of the prosecution
witnesses that although the accused entered the vehicle with a red bag, the red
bag which was taken off the vehicle, and tendered later in evidence, was not
the property of the accused. The accused, on the other hand, stated in evidence
that he had no luggage whatsoever when he boarded the vehicle. Disregarding this
discrepancy in the defence put forward by the accused, the gravamen of his
defence was that whether or not he boarded the vehicle with a red bag, the one
which was taken from the vehicle, opened at the police station and later
tendered in evidence, was not his property. He was, therefore, never in
possession of any Indian hemp as alleged.<o:p></o:p><o:p>&nbsp;</o:p>The
learned circuit judge when confronted with this defence, posed himself this
question:<o:p></o:p>“If the
accused person was not having any luggage, then why did he not say so when he
was cautioned to enable the police to investigate his version of the case, but
said that he was reserving his case for court?”<o:p></o:p><o:p>&nbsp;</o:p>It is the
bitter complaint of the accused, “that the trial judge erred in law in that the
failure of the appellant to give a statement to the police did not constitute
guilt.” I agree with counsel that the general principle of the criminal law is
that the refusal by an accused person to make a statement, when cautioned by
the police, must not be construed as evidence of his guilt. Indeed, this
principle can be inferred from the words employed to caution a person suspected
of crime: “You are not obliged to say anything unless you wish to do so, but
whatever you say will be taken down in wr</main>