THE REPUBLIC vs. KWADWO NYARKO, SAMUEL KUMANI AND DAUDA INUSAH [2020]DLHC10125

Date	2020-10-26
Suit No.	CR 0589/2020
Citation No.	[2020]DLHC10125

JUSTICE RUBY ARYEETEY

ENAM LOH-MENSAH (ASA) (FOR DORA QUAYE (SA) FOR REPUBLIC)

KORMIVI DZOTSI (FOR MARTIN KPEBU FOR ACCUSED/APPLICANT)

[2020]DLHC10125
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>KWADWO NYARKO, SAMUEL KUMANI AND DAUDA
INUSAH<o:p></o:p>[HIGH
COURT,(CRIMINAL DIVISION), ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CR
0589/2020&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:
26TH OCTOBER, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ENAM
LOH-MENSAH (ASA) (FOR DORA QUAYE (SA) FOR REPUBLIC) &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">KORMIVI
DZOTSI (FOR MARTIN KPEBU FOR ACCUSED/APPLICANT)<o:p></o:p>

</div>CORAM:<o:p></o:p>JUSTICE RUBY
ARYEETEY<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>&nbsp;This is an
application for bail pending trial.&nbsp;
Counsel for the Applicants submitted that accused persons have been in
custody since their arrest on August 14th. The accused persons have pleaded not
guilty and have also in their motion in support furnished the court with the
title deeds of their proposed sureties to show that these sureties are men of
independent means and that they would come back to stand trial. Counsel further
submitted that although they are aware that the offences are serious the law is
in the bossom of the Judge and that looking at the facts of this case, the
court may grant bail especially as the Narcotic Control Act 2020 (Act 1019)
gives the court the discretion under Section 47 to half the sentence by at
least 50% if the accused corporates fully with officers of the commission.
Looking at the facts of the prosecution Counsel argued that there had been
stellar corporation from the accused persons. In the circumstance, the apparent
seriousness of the offences have been whittled down by Section 47 and by the
conduct of the accused persons they are not likely to abscond. <o:p></o:p>Prosecution
opposed the application for bail pending trial. They were satisfied with the
fact that counsel in his submission made reference to the seriousness with the
offence the applicants have been charged with, which is seriously frowned upon
by our laws specifically Section 41 and 42 of the Narcotics Commission Act
2020, Act 1019.<o:p></o:p>Prosecution
submitted that if this case should be tried the punishment that has been stated
by law would be such that if the accused persons are granted bail they will
abscond. Prosecution contended that with the totality of the evidence available
and the severity of the punishment the court should refuse this motion for
grant of bail because the Prosecution is ready and feverishly putting things in
place to start the trial.<o:p></o:p>&nbsp;DECISION:<o:p></o:p>A court of competent jurisdiction in granting or
refusing bail though discretionary must be exercised according to law by
complying with section 96 (1) – (6) of Act 30. The factors which should be
taken into consideration when granting bail are the nature of the accusation,
the nature of the evidence supporting the accusation and whether the evidence
is strong as well as the punishment for the sentence. Bail however shall not be
used as a punishment but merely to ensure the attendance of the accused person
in court.<o:p></o:p>&nbsp;Obviously, the discretion under section 47 of the
Narcotic Control Act 2020 (Act 1019) to half the sentence by at least half if
the accused persons corporate fully with officers of the Commission is not one
of the factors to be considered when considering the grant of bail. <o:p></o:p>Since the 1992 Constitution is the fundamental law
of the land, to the extent that Article 14 (3) and (4) mandates bail for all
offences, one requirement which is apparent is the provision that a person
charged with an offence is entitled to bail if he is not tried “within a
reasonable time”. Counsel for the applicants submitted that having pleaded not
guilty, the accused persons have furnished the court with title deeds of their
proposed sureties to show that these sureties are men of independent means and
therefore accused persons would appear to stand trial. It is clear from
Counsel’s submission that their plea for bail is also hinged on the fact that
accused persons have corporated with Police.<o:p></o:p>There are four main grounds based on which a court
may refuse to grant bail under section 96 (5) of Act 30. Prosecution shall
prove anyone of the four grounds to oppose an application for bail to the
satisfaction of the court. In this case Prosecution has established under
section 96 (6) that the punishment for the offence is a heavy one and it is
unlikely that Accused if granted bail will appear to stand trial. Furthermore,
investigations are over and Prosecution is feverishly putting things in place
to start the trial. Therefore there will be no delay in the trial and
determination of this case. Although all the Accused persons per their
affidavit have fixed places of abode, they all live outside Accra. <o:p></o:p>