MUNKAILA v THE REPUBLIC

[1995-96] 1 GLR 367

Division: SUPREME COURT, ACCRA

Date: 23 JULY 1996
Before: AIKINS, EDWARD WIREDU, CHARLES
HAYFRON-BENJAMIN, ADJABENG AND AKUFFO
JJSC

Criminal law and procedure—Indictment or charge—Contents—Possession of narcotic drugs—Section

2(1) of PNDCL 236 creating offence and section 2(2) providing for penalty for offence—Appellant
charged under both section 2(1) and (2) of PNDCL 236—Whether charge proper—Narcotic Drugs
(Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236), s 2(1) and (2).

Criminal law and procedure—Narcotic drugs—Possession of—Meaning of “possession”—Appellant

employing F to bring narcotic drugs into country—Whether appellant in possession of narcotic
drugs—Whether appellant liable for importation of narcotic drugs—Criminal Code, 1960 (Act 29), s
148(1) and (2).

Evidence—Corroboration—Co-accused—No requirement evidence needing corroboration for

acceptance—Whether court entitled to reject uncorroborated evidence—Discretion of court to warn itself
on uncorroborated

[p.368] of [1995-96] 1 GLR 367

Evidence—Appellant employing F to import narcotic drugs into country—F’s evidence implicating

appellant—Whether tribunal entitled to accept F’s evidence—Evidence Decree, 1975 (NRCD 323), s
7(3).

Evidence—Corroboration—Untruthful testimony—Effect of lies told by accused—Importation of narcotic

drugs—Appellant telling lies about date of last visit to Nigeria—Whether lies corroborating evidence of
co-accused that appellant gave her narcotic drugs on his visit to Nigeria.

Criminal law and procedure—Defect in composition of panel—Effect on conviction—National Public

Tribunal properly composed by three members—Composition part of mode of trial—When breach of
mode of trial invalidating verdict—Prosecution proving case of possession of narcotic drugs against
appellant—Whether proceedings to be invalidated by any defect in composition of tribunal—PNDCL 78,
ss 3(3), 13(17) and 24(2).

Criminal law and procedure—Sentence—Conviction for possession of narcotic drugs—Appellant

convicted of possession of narcotic drugs and sentenced to ten years’ imprisonment and fine of ¢2 million
or six years’ imprisonment in default—Whether fine lawful—Attitude of court to drug traffickers.
HEADNOTES
The appellant and one F (non-appellant) were convicted by the National Public Tribunal on charges of (a)
importation of narcotic drugs; and (b) possession of narcotic drugs contrary to sections 1 (1) and 2(1) and
(2) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236), respectively.
The appellant was sentenced to ten years’ imprisonment with hard labour on both counts and a fine of ¢2
million or in default six years’ imprisonment with hard labour. When the Court of Appeal rejected his
appeal against both his conviction and sentence, he made a further appeal to the Supreme Court. In
support of his appeal he contended, inter alia, that (i) since he had been charged under section 2(2) of
PNDCL 236 which was the penalty provision, the charge was unlawful; (ii) he was never physically
found in possession of the drugs; and (iii) the trial panel had not been properly composed. The court
however found, inter alia, on the evidence that (a) it was the appellant who had arranged for F to smuggle
the narcotic drugs into the country from Nigeria for his benefit; and (b) when two dummy parcels given to
F by the police after her arrest were handed over by her to the appellant he had sniffed them and only
dropped the parcels when the police approached the two of them.
Held, dismissing the appeal:
(1) the appellant had been charged under both section 2(1) and (2) of the Narcotic Drugs (Control,
Enforcement and Sanctions) Law, 1990 (PNDCL 236). Since section 2(1) of PNDCL 236 created
the offence of possession of narcotic drugs with which he had been charged, merely adding section
2(2) of PNDCL 236 which only reminded the tribunal of the penalty to be awarded if the appellant
was found guilty of the offence, did not detract from the effect of section 2(1) of PNDCL 236.
Accordingly, the charge against the appellant was proper.
(2) A person was said to be in constructive possession or joint possession of an object if he had control
over the other person in physical control of the article as to its disposal, control or otherwise.
However, the actual manual possession or touch of the goods by the prisoner, was not necessary to
the completion of the

[p.369] of [1995-96] 1 GLR 367

offence. It was sufficient if the prosecution could prove that the article was in the possession of a
person over whom the accused had control so that the article would be forthcoming if he ordered it.
Under section 148(1) of the Criminal Code, 1960 (Act 29) a person having possession of a narcotic
drug was in the same position as the person having possession of stolen property. Since on the
evidence, the appellant employed or asked F to bring the narcotic drugs to Ghana, he was deemed
to be in possession of the drugs under section 148(2) of Act 29 and liable accordingly. And he was
equally liable for the importation of the drugs by F, his agent over whom he had control. R v Smith
(1855) Dears CC 494, CCA and R v Gleed (1916) 12 Cr Ap R 32 applied.
(3) Although section 7(3) of the Evidence Decree, 1975 (NRCD 323) precluded any non-statutory
mandatory requirement that evidence should be corroborated before it could be acted on, it was still
legitimate for the court or tribunal to conclude that because the evidence was not corroborated, the
fact which supported it to be tendered would not be upheld. In any case, corroboration was not a
general requirement of law in the absence of which the decision of the trial tribunal of fact would
usually be reversed. Furthermore, the requirement that the tribunal should warn itself was only
meant to ensure that the tribunal’s mind was adverted to the dangers in uncorroborated evidence.
 Since there was no general mandatory requirement that warning should be given where evidence
was uncorroborated, the decision to warn was the preserve of the trial judge. In the instant case,
since the tribunal believed that F was speaking the truth, it was entitled to accept her evidence
which implicated the appellant. R v Akatia (1946) 12 WACA 98 at 99 applied.
(4) When an accused person took refuge in telling lies before a trial court, the only inference of his
behaviour was that he had a guilty mind and wanted to cover up. Accordingly, the trial tribunal was
justified in its inference that the lies the appellant told about the date of his last visit to Nigeria
corroborated the evidence of the first accused that it was the appellant who gave her the drug
during a visit in early August 1991.
(5) Under section 3(3) of the Public Tribunals Law, 1984 (PNDCL 78) a minimum of three members
of the National Public Tribunal were allowed to exercise the jurisdiction of the tribunal, with one of
them selected as the chairman as was done in the instant case. Moreover, even though it could be
argued that the composition of the tribunal was part of the rules governing the mode of trial and
therefore non-compliance with that rule was fatal, section 13(17) of PNDCL 78 provided that
non-compliance with the rules governing the mode of trial should not render a verdict invalid
unless a substantial miscarriage of justice had been occasioned. However, on the evidence, the
appellant never raised the issue of the composition of the panel during the trial. In any case, that
issue was a purely technical one which had not occasioned any miscarriage of justice since the
prosecution had been able to prove their case beyond reasonable doubt. A fortiori, the provisions of
section 24(2) of PNDCL 78 disabled the court from deciding that the proceedings in the case were
invalid by reason of a defect in the composition of the tribunal or in the appointment of any
member thereof. Accordingly, the conviction of the appellant was valid.

[p.370] of [1995-96] 1 GLR 367

(6) The tribunal had no jurisdiction to sentence the appellant to the fine of ¢2 million or in default six
years’ imprisonment with hard labour in addition to the minimum sentence of ten years’
imprisonment with hard labour. Accordingly, that fine would be expunged. However, even though
the court had intended to increase the sentence in view of the international outcry against drug
trafficking, it would retain the minimum sentence of ten years’ imprisonment imposed on the
appellant, but would henceforth deal drastically with drug offenders whose appeals came before the
court.

CASES REFERRED TO
(1) R v Smith (1855) Dears CC 494; 24 LJMC 135; 6 Cox CC 554, CCA.
(2) R v Gleed (1916) 12 Cr App Rep 32, CCA.
(3) R v Akatia (1946) 12 WACA 98.

NATURE OF PROCEEDINGS
APPEAL by the appellant to the Supreme Court against his conviction and sentence by the National
Public Tribunal for (a) importation of narcotic drugs; and (b) possession of narcotic drugs contrary to the
Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236), ss 1 (1) and 2 (1) and
(2), respectively. The facts are sufficiently stated in the judgment of Aikins JSC.
COUNSEL
F K Quartey for the appellant.
J C Amonoo-Monney, Ag Director of Public Prosecutions, for the Republic.

JUDGMENT OF AIKINS JSC.

The appellant was convicted by the National Public Tribunal, Accra on 26 April 1993 on charges of (a)
importation of narcotic drugs contrary to section 1(1) of the Narcotic Drugs (Control, Enforcement and
Sanctions) Law, 1990 (PNDCL 236) and possession of narcotic drugs contrary to section 2(1) and (2) of
PNDCL 236. He was convicted together with one Fatima Akinyemi who did not appeal against her
conviction or sentence. The appellant was sentenced to ten years’ imprisonment with hard labour on both
counts and a fine of ¢2 million or in default six years’ imprisonment with hard labour. The sentences were
to run concurrently.
Dissatisfied with his conviction and sentence, he appealed to the Court of Appeal which confirmed the
conviction but allowed the appeal against the sentence of fine imposed upon him. Still dissatisfied with
both the conviction and the sentence, he has appealed to this court

[p.371] of [1995-96] 1 GLR 367

on the grounds that:

“(a) The judgment of the court is not supported having regard to the evidence.
(b) The court misdirected itself on serious points of law.
(c) The trial is a nullity having regard to the inconsistencies in the composition of the panel.”

We are not convinced of the correctness of all the arguments put forward by his counsel on his behalf. His
attack on the propriety of the charge against him under section 2(2) of PNDCL 236 for the simple reason
that that subsection is the penalty provision of the Law is baseless. The appellant was charged under both
section 2 (1) and (2) of PNDCL 236; section 2(1) creates the offence with which he was charged. Merely
adding section 2 (2) of PNDCL 236 does not detract from the effect of section 2 (1) of PNDCL 236.
Section 2 (2) of PNDCL 236 only reminded the tribunal of the penalty to be awarded if he was found
guilty of the offence.
Counsel’s further argument that the appellant was not physically found in possession of the drugs is
untenable. The evidence before the tribunal is that it was the appellant who arranged for Fatima Akinyemi
to smuggle the narcotic drugs to Ghana for his benefit. The conduct of the appellant in his house during
the early morning of 28 September 1991 when he was confronted with Fatima Akinyemi clearly shows
the relationship between the two of them in the importation of the narcotic drugs into Ghana. It is on
record that immediately Fatima gave him the two dummy parcels he sniffed them, but when he turned
round and saw some men walking around, he became suspicious and dropped the parcels. Why did he do
that? His conduct betrayed him to be implicated in the crime. He was therefore in constructive possession
of the drugs right from the time he arranged with Fatima to bring the drugs to Ghana to the time he was
arrested in his house at Tema.
A person is said to be in constructive possession or joint possession of an object if he has control over the
other person in physical control of the article as to its disposal, control or otherwise. The actual manual
possession or touch of the goods by the prisoner, however, is not necessary to the completion of the
offence. It is sufficient if the prosecution can prove that the article was in the possession of a person over
whom the defendant or accused had control, so that the article would be forthcoming if he ordered it: see
R v Smith (1855) Dears CC

[p.372] of [1995-96] 1 GLR 367

494, CCA; R v Gleed (1916) 12 Cr App R 32; Archbold Criminal Pleading, Evidence and Practice (36th
ed), p 776 at para 2096 and Archbold Criminal Pleading, Evidence and Practice (38th ed), p 780 at para
1531.
A person having possession of a narcotic drug is in the same position as the person having possession of
stolen property under section 148(1) of the Criminal Code, 1960 (Act 29). Section 148(2) of Act 29
makes it clear that:
“(2) The possession or control of a carrier, agent, or servant shall be deemed to be the possession or
control of the person who employed the carrier, agent, or servant, and that person shall be liable
accordingly.”

Since the appellant employed or asked Fatima to bring the narcotic drugs to Ghana he is deemed to be in
possession of the drugs and liable accordingly. He is equally liable for the importation of the drugs by
Fatima, his agent over whom he had control.
With respect to corroboration of the evidence of a co-accused person, the correct statement of the law was
made by Essilfie-Bondzie JA in the majority decision of the Court of Appeal. He stated:
“When she went into the box the first accused repeated her statement on oath. Since she was not an
accomplice but a co-accused person, her submitted evidence needed no corroboration. So that even if
there was no independent witness to corroborate it, the tribunal was entitled to accept the first accused’s
story in preference to that of the second accused and his witnesses, provided it believed that she was
speaking the truth.”
Then Afreh JA also said:
“Regarding corroboration of the evidence of a co-accused, the general rule has always been that if the
co-accused person gives evidence in his own defence and implicates the other accused person he is not
treated as an accomplice. So his evidence need not be corroborated. In fact, in my opinion, since the
Evidence Decree, 1975 (NRCD 325) came into force on 1 October 1979 there are no non-statutory
mandatory requirements that evidence must be corroborated before it can be acted upon. Corroboration
is no

[p.373] of [1995-96] 1 GLR 367

more a general requirement of law in the absence of which a verdict or judgment should usually be
reversed.”
These passages cannot be successfully assailed as counsel for the appellant is assiduously trying to do. He
is taking the court for granted and twisting the law for our consumption. Counsel is an officer of the court,
and under no circumstances should he try to mislead the court. His duty is to assist the court and not
confuse it, thinking that his twisted ingenuity can put his client in a better stead. The client may in the
final analysis stand to lose.
Section 7(3), (4) and (5) of the Evidence Decree, 1975 (NRCD 323) state the current statutory position
thus:
 “(3) Unless otherwise provided by this or any other enactment, corroboration of admitted evidence is not
necessary to sustain any finding of fact or any verdict.
(4) No finding, verdict, judgment or decision shall be set aside, altered or reversed on appeal or review on
the sole ground that the court failed to caution itself or the jury as to the danger of acting on
uncorroborated evidence unless the appellate court is satisfied that such failure resulted in a
substantial miscarriage of justice.
(5) Nothing in this section shall preclude the court or any party from commenting on the danger of acting
on uncorroborated evidence or commenting on the weight and credibility of admitted evidence or
preclude the tribunal of fact from considering the weight and credibility of admitted evidence.”

(The emphasis is mine.)

It will be seen that although section 7 (3) of NRCD 323 precludes any non-statutory mandatory
requirement that evidence should be corroborated before it can be acted on, it is still legitimate for the
court or tribunal to conclude that because the evidence is not corroborated, the fact which supports it to be
tendered will not be upheld. Be that as it may, it is necessary to note that corroboration is not a general
requirement of law in the absence of which the decision of the trial tribunal of fact will usually be
reversed. As was clearly stated in R v Akatia (1946) 12 WACA 98 at 99:
“A prisoner who goes into the box to give evidence may exculpate or inculpate a co-prisoner R. v.
Hadwen and Anor [20 Cox CC

[p.374] of [1995-96] 1 GLR 367

206] and R. v. Macdonnell [2 Cr. App. R. 322]. He is in the same position as an ordinary witness and
may be cross-examined by the co-prisoner [R. v. James Paul and Anor (1920) 2 K.B. 183].”
The requirement that the tribunal should warn itself is only meant to ensure that the tribunal’s mind is
adverted to the dangers in uncorroborated evidence and nothing more. But here again, there is no general,
mandatory requirement that warning should be given where evidence is uncorroborated. The decision to
warn is the preserve of the trial judge.
On the issue of the burden of proof counsel for the appellant urged that the Court of Appeal, per Afreh JA
was in error when it said:
“The trial tribunal was entitled to infer that the dates in his passport and the lies he told out of court
about his last visit to Nigeria corroborated the evidence of the first accused that it was the appellant who
gave her the drug during a visit in early August 1991.”
He submitted that the prosecution by that failed to prove its case beyond a reasonable doubt, and that by
evoking questions as to any falsehood told by the appellant does not go to support the case of the
prosecution.
We are not convinced at all as to the correctness of this argument. Surely, when an accused person takes
refuge in telling lies before a trial court, the only inference of his behaviour is that he has a guilty mind
and wants to cover up. In our view, the prosecution did not fail to prove its case beyond reasonable doubt.
Justice Afreh’s opinion is the correct statement of the law.
The last ground argued by counsel for the appellant is that “the trial is a nullity having regard to the
inconsistencies in the composition of the panel.” Counsel for the appellant urged that of the total of
twelve sittings of the tribunal spanning from 3 March 1992 to 26 April 1993 the panel kept changing from
three to four and vice versa. He said the only consistent panelists were the chairman, KB Aning, and Felix
Kwanor, and that the other panelists were absent on some occasions, but that Mr MLK Otoo who almost
sat through the proceedings did not sign the judgment. We have taken some time to check the record and
find that from 3 March 1992 to 26 April 1993, the tribunal sat for fifteen times. On three occasions, ie 1
April 1992, 25 May 1992 and

[p.375] of [1995-96] 1 GLR 367

29 June 1992, the composition of the panel was not stated. On the twelve other sittings three of the
panelists, the chairman, Mr Aning, Mr Otoo and Mr Kwanor sat on eleven occasions. On the one occasion
that Mr Otoo was not recorded as sitting, ie 19 October 1992, the case was adjourned to 21 October 1992
for continuation after the tribunal had been shown a letter from one Mr Dometi Kofi Sokpor that he had
taken over the brief of the case for the first accused. No evidence was taken on that day. It will be seen,
therefore, that the statutory minimum of three members constituted by the chairman, Mr Aning and two
members, Messrs Otoo and Kwanor sat and heard all the evidence in the case. Even though the record
does not indicate that Mr Otoo signed the judgment, there is record that he was present when the
judgment was read on 26 April 1993. It is not clear that Mr Otoo dissented, but even if he did, the
judgment will be valid as that of the majority who signed.
In our view, there were no inconsistencies in the composition of the panel of the tribunal that would have
completely vitiated the entire tribunal proceedings. What happened was covered by section 3(3) of
PNDCL 78 which allowed a minimum of three members of the National Public Tribunal to exercise the
jurisdiction of the tribunal, with one of them selected as chairman as was done in the instant case.
Moreover, even though one can argue that the composition of the tribunal is part of the rules governing
the mode of trial, and for that matter non-compliance of the rules is fatal, section 13(17) of the Law
specifically stipulates that non-compliance with the rules governing the mode of trial shall not render a
trial invalid unless a substantial miscarriage of justice has been occasioned. Throughout the trial of the
appellant the issue of composition of the panel never cropped up, and no counsel for the accused persons
ever raised this issue. As far as we are concerned, even if there was non-compliance, which we doubt, that
is purely technical, and has not occasioned any miscarriage of justice. The prosecution were able to prove
their case beyond reasonable doubt. A fortiori, the provisions of section 24(2) of PNDCL 78 disables this
court from deciding that the proceedings in this case are invalid by reason of a defect in the composition
of the tribunal or in the appointment of any member thereof. The section states:
“(2) No decision, order, finding, ruling or proceeding of a Public Tribunal set up under this Law shall be
regarded as invalid

[p.376] of [1995-96] 1 GLR 367

by reason of any defect in the composition of the Tribunal or in the appointment of any member
thereof.”

The wording of the section is positive and leaves no room for ambiguity.
In our judgment, therefore, the appeal against conviction of the appellant fails and is dismissed
accordingly.
As to the sentence, the Court of Appeal rightly decided that the tribunal had no jurisdiction to sentence
the appellant to an additional fine of ¢2 million or in default six years’ imprisonment with hard labour.
With this additional sentence off the record, it remains the minimum sentence of ten years’ imprisonment
with hard labour that was imposed on the appellant. This cannot be reduced.
In view of the international outcry against drug trafficking, we had intended to increase the sentence, but
after further deliberations we have decided to let the minimum sentence of ten years’ imprisonment with
hard labour stand. This court will henceforth deal drastically with drug offenders whose appeals come
before us.

JUDGMENT OF EDWARD WIREDU JSC.

I agree.

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

I also agree.

JUDGMENT OF ADJABENG JSC.

I also agree.

JUDGMENT OF AKUFFO JSC.

I also agree.

DECISION
Appeal dismissed.
DRKS