SALAOU SIAKA vs. THE REPUBLIC [2015]DLCA5144

Date	2015-01-29
Suit No.	SUIT NO: H2/19/2013
Citation No.	[2015]DLCA5144

OWUSU M. (PRESIDING)

ADUAMA OSEI J.A.

GYAN J.A.

MR. AUGUSTINE OBOUR FOR THE APPELLANT

MRS. MARINA APPIAH-OPARE (PSA) FOR THE REPUBLIC

[2015]DLCA5144
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													<main id="main" class="content" style="min-height: 60rem" >SALAOU SIAKA<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, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO: H2/19/2013&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; &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; JANUARY
29, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
AUGUSTINE OBOUR FOR THE APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoListParagraphCxSpLast" style="margin:0in;margin-bottom:.0001pt;
mso-add-space:auto;text-align:justify;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">MRS.
MARINA APPIAH-OPARE (PSA) FOR THE REPUBLIC<o:p></o:p>

</div>CORAM: <o:p></o:p>OWUSU
M. (PRESIDING), ADUAMA OSEI J.A., GYAN J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;tab-stops:63.75pt center 3.25in;border:none;mso-border-top-alt:
solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;padding:
0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARIAMA
OWUSU, J.A:<o:p></o:p><o:p>&nbsp;</o:p>On 9-12-2011, the High
Court, found the appellant guilty on two counts of attempted exportation of narcotic
drug and possession of narcotic drug without lawful authority contrary to
section 56 1 [a] &amp; 1 [1] and 2 [1] of the Narcotic Drugs [Control,
Enforcement and Sanctions] Act 1990, [PNDC Law 236]. He was found guilty and convicted
on both counts and sentenced to ten [10] years IHL on each count. The sentences
were to run concurrently.<o:p></o:p>Dissatisfied with the decision
of the High Court, the appellant appealed to the Court of appeal on the
following grounds;<o:p></o:p>[a] There were no narcotic drugs.<o:p></o:p>[b] The trial judge erred when he
convicted the appellant on the basis of suspicion.<o:p></o:p>[c] The appellant, if anything at all
ought to be convicted of supply and not possession.<o:p></o:p>[d] That the sentence is excessive in
the light of ground b.<o:p></o:p>In arguing the appeal,
counsel for the appellant in his written submissions dealt with two grounds together.
These are grounds C and D. They read as follows:<o:p></o:p>“The appellant if anything at all ought
to be convicted for supply and not possession of narcotic drugs and that the
sentence is excessive in the circumstances of the case.”<o:p></o:p>He then submitted that,
according to the facts given by the prosecution, the appellant was given the
drugs at New Town, Accra to be delivered to another person in the USA for a fee
of $3,500. However, the appellant could not lead the investigators to arrest
the person who supplied him with the drugs. Counsel continued that, the trial
judge should have convicted the appellant for attempted supply of narcotics
drugs in the circumstances of this case. He referred to section 154 of the
Criminal Procedure Code, 1960, Act 30, which talks of a lesser offence. This is
because the prosecution never challenged the appellant as to who owned the
drugs. In effect the appellant was employed by two drug barons to accomplish
their devilish act. Secondly, the quantity of drugs the appellant attempted to
supply should also have been taken into consideration. From the facts of the
case the appellant swallowed 40 pellets of heroin which was less than a
kilogram. Consequently, the ten [10] years prison sentence imposed on the
appellant by the trial court, even though was in accordance with the law was
harsh. The trial judge could have imposed a lesser sentence on the appellant if
the latter had been convicted of attempted supply and the quantity of the drug
taken into consideration. Counsel cited the case of AMOAH v THE REPUBLIC [1966] GLR 737 @ 739 and submitted that it is
the duty of the court to do justice. Thirdly, counsel argued, the appellant was
29 years old at the time of his arrest. This is according to his date of birth
in his passport. The appellant is also from Benin and therefore a long sentence
in the circumstances of this case may be too hash for him. <o:p></o:p>Counsel for the appellant
also had issue with the charge sheet filed on 8th December 2011. His
complaint is that, there was an earlier charge sheet filed on 8th
August 2011 with suit No. ST 184/2011. A new charge sheet was again filed on
the 8th December 2011. However, from the record of appeal, there is
no indication that the previous charge sheet was withdrawn. Not only this, the
new charge sheet did not have a suit number as the old suit number of 184/2011
was quoted. He therefore invited us to reject the charge sheet filed on
8-12-2011 as it did not have a suit number. This is because it is difficult to
know which of them the appellant pleaded guilty to at the trial. He concluded
on this point that, in a criminal trial, any doubt should inure to the benefit
of the accused.<o:p></o:p>Counsel for the appellant
further argued that, if the latter was charged on the charge sheet filed on
8-8-2011, then it was his submission that at the time of taking the plea of the
appellant it was doubtful whether or not the appellant was in possession of any
narcotic drug at all. The reason is that, the appellant was charged with
attempted exportation and possession of narcotic suspected to be heroin. After
quoting the particulars of offence on the charge sheet which states that;<o:p></o:p><i</main>