KOBINA BADU AIKINS vs. THE REPUBLIC [2011]DLCA5703

Date	2011-11-10
Suit No.	CRIMINAL APPEAL NO.H2/6/2011
Citation No.	[2011]DLCA5703

S. E. KANYOKE JA (PRESIDING)

K. N. ADUAMA OSEI (JA)

DENNIS D. ADJEI (JA)

J.H. SENOO FOR THE APPELLANT

MRS. MARINA APPIAH OPARE PRINCIPAL STATE ATTORNEY FOR THE APPLICANT

[2011]DLCA5703
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													<main id="main" class="content" style="min-height: 60rem" >KOBINA BADU AIKINS<o:p></o:p>[APPELLANT]<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[RESPONDENT]<o:p></o:p>[COURT
OF APPEAL (CRIMINAL DIVISION), ACCRA]<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">

CRIMINAL APPEAL NO.H2/6/2011&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 10TH NOVEMBER, 2011<o:p></o:p>

MRS.
MARINA APPIAH OPARE PRINCIPAL STATE ATTORNEY FOR THE APPLICANT<o:p></o:p>

</div>DENNIS D. ADJEI (JA)<o:p></o:p>On
29 th July 2010, the High Court, Accra convicted the Appellant for Attempted
exportation of Narcotic Drug without License issued by the Minister responsible
for Health contrary to Sections 56 (a) and 1(1) of the Narcotic Drugs Control,
Enforcement and Sanctions Act. 1990 PNDCL 236 and possession of Narcotic Drug
without lawful authority contrary to Section 2(1) of the Narcotic Drugs (Control,
Enforcement and Sanctions) Act 1990 PNDCL 236. The appellant was sentenced to
ten (10) years IHL on both counts and were to run concurrently.<o:p></o:p>The
brief facts of the case were that the Appellant who was a third year student of
Regent University in Accra, went to one Mr. Alexander Ekow Nyankson, Manager of
World Express International at the Kotoba International Airport with a box
which the appellant alleged contained shear butter to be sent to someone in
London. The World Express International is a body which engages in Courier
Services. Mr. Alexander Ekow Nyankson, the complainant received the box and
examined it.<o:p></o:p>During
examination, he saw two parcels wrapped with a black polythene bag concealed
under an ice-chest and placed in the box. The complainant became suspicious and
reported the matter to the Airport Police. The Police arrested the appellant
and when the parcel was cut, it was found to contain some compressed dried
leaves suspected to be Indian hemp. The dried leaves were sent to the Police Forensic
Laboratory for further examination. The dried leaves were tested positive for
cannabidiol, cannabinol and tetrahydrocannabinol, all ingredients in cannabis.<o:p></o:p>According
to the Appellant, it was his friend known as Kit, who gave him the parcel to be
sent to someone in London through World Express International without knowing
that Cannabis had been concealed in it.<o:p></o:p>The
Appellant being aggrieved with the conviction and sentence filed a notice of
appeal at the trial Court to this Court to challenge the basis of his conviction.
The Appellant set out five (5) grounds of appeal and they are:<o:p></o:p>a)
The learned trial Judge erred in refusing to uphold the submission of no case
and calling on the accused to open his defence.<o:p></o:p>b)
The conviction is perverse and against the weight of evidence adduced at the
trial.<o:p></o:p>c)
The trial Judge failed to evaluate the evidence of the accused.<o:p></o:p>d)
The trial Judge was wrong in his assessment and inference and concluding that
the accused had prior knowledge of the existence of the narcotic drug in the
parcel and<o:p></o:p>e)
The trial Judge erred in his application of the law on knowledge and possession.<o:p></o:p>This
Court ordered the Appellant to file his written submission and he filed it on 9th
March 2011. The Attorney General filed his written submission in answer to the
Appellant’s written submission on 25 th March, 2011. The Appellant filed a
reply to the Attorney General’s answer on 3 rd May, 2011.<o:p></o:p>The
parties argued the case on its merits without noticing the incompetence of the
appeal. It is surprising that the Attorney General’s representative could not
find that the appeal was filed hopelessly out of time without leave of the
trial High Court or this Court and there was no need to write copiously on the
merits of the appeal.<o:p></o:p>The
appellant was convicted on 29th July, 2010 and the Notice of Appeal was
filed on 5th October, 2010. The Notice of Appeal is the last but 3
page in the record of appeal. I am making the reference in this manner because the
record of appeal is not numbered and it therefore becomes impossible to use
pages to make reference to some documents in it.<o:p></o:p>Appeals
in criminal matters from the High Court or the Regional Tribunal to the Court
of Appeal are regulated by the Courts Act 1993 Act 459. Section 11 (6), (7) and
(8) of the Courts Act, Act 459 provides thus:<o:p></o:p>“(6) Where a party desires to appeal
to the Court of Appeal in a criminal case, that party shall give notice of
appeal or notice of an application for leave to appeal within one month of the
decision appealed against.<o:p></o:p>