COKER AND OTHERS vs. COMMANDING OFFICER OF THE BORDER GUARDS AND ANOTHER [1979]DLHC1053

Date	1979-06-12
Suit No.
Citation No.	[1979]DLHC1053

SARKODEE J.

J. A. DAWSON FOR THE PLAINTIFFS.

AHLIJAH PRINCIPAL STATE ATTORNEY FOR THE DEFENDANTS.

[1979]DLHC1053
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >COKER AND OTHERS <o:p></o:p>vs. <o:p></o:p>COMMANDING OFFICER OF THE BORDER GUARDS AND ANOTHER<o:p></o:p>[HIGH COURT, SEKONDI] <o:p></o:p>[1978] GLR 346<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:
12 JUNE 1979<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">

J. A. DAWSON FOR THE PLAINTIFFS.<o:p></o:p>

AHLIJAH, PRINCIPAL STATE ATTORNEY, FOR THE
DEFENDANTS.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF SARKODEE J.<o:p></o:p>In June
1978, the plaintiffs purchased various goods specified in the schedule to the
writ of summons and stored them in a house at Half-Assini. Later, the same
week, the second defendant, the officer in charge of the Border Guards Station,
Half-Assini, caused the said house to be broken into and the goods to the total
value of ¢142,001 removed. The goods were mainly adinkra cloths, kente cloths,
wax prints and six boxes of robb ointment. The plaintiffs immediately
approached the second defendant and demanded the return of the goods but the
second defendant refused to release them. Later the defendants loaded the goods
on to a Border Guards truck and took them away. Up till now the goods have not
been released to the plaintiffs. Therefore they issued a writ against the
defendants claiming against them jointly and severally the return of the goods
or the payment of the sum of ¢142,001, the value of the said goods and damages
for unlawful seizure and detention.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants admit removing the goods from the house at Half-Assini but say that
the plaintiffs had conveyed the goods from various places within Ghana to
Half-Assini with the intention of smuggling them to the Ivory Coast and that
upon information they searched the house on a warrant and found the goods.
Finally the defendants contend that they issued a notice of seizure on the
goods and that it was up to the plaintiffs to come forward and claim them which
they failed to do. Subsequent to hearing of arguments the principal state
attorney, counsel for the defendants, supplied the court with seizure notices
No. 57/78 and 12/78 signed by the Officer Commanding Border Guards,
Half-Assini, his authority for seizing the goods. The state attorney also
submitted four search warrants authorising the search. It appears from the
notices of seizure that the defendants seized the goods relying on the Customs
and Excise Decree, 1972 (N.R.C.D. 114). Not surprising though, the notices do
not state the section of the Decree from which the defendants derive their
power of search and seizure.<o:p></o:p><o:p>&nbsp;</o:p>However,
the learned principal state attorney found protection under section 42 (1) of
N.R.C.D. 114. He added that under the Armed Forces (Special Powers) Decree,
1973 (N.R.C.D. 236), a Border Guards official has power to prevent crime and
arrest offenders. In his view since the plaintiffs intended to smuggle the
goods to Ivory Coast the Border Guards rightly seized them adding that the
Border Guards were preventing the commission of a crime, namely, smuggling.<o:p></o:p>Section
42 (1) of N.R.C.D. 114 provides:<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"><o:p>&nbsp;</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">“42. (1)
When a magistrate is satisfied by information upon oath that there is
reasonable cause to suspect that any uncustomed or prohibited goods or goods on
which the excise duties have not been paid or secured by certificates or
otherwise as required by law are harboured, kept or concealed in any premises,
he may issue a warrant under his hand authorising any officer to enter and
search those premises, by day or by night, and to seize and take away any such
goods.”<o:p></o:p><o:p>&nbsp;</o:p>It is
clear that before a magistrate can issue a warrant under the subsection
authorising an officer to search premises, seize and take away goods he must be
satisfied that the goods are reasonably suspected to be uncustomed, prohibited
or goods on which excise duties have not been paid or secured by certificates
or otherwise as required by law. In any such case the magistrate has a
discretion to issue a search warrant where such goods are harboured or
concealed in any premises. There is nothing before me to show that the goods
which the defendants seized fall under any of the categories specified in section
42 (1) of N.R.C.D. 114. That apart, the defendants have not been able to show
that the plaintiffs intended to export the goods. Merely keeping large
quantities of goods in a house in Ghana does not by itself mean an intention to
export them or smuggle them out of the country and the fact that Hal</main>