The Republic VS Augustina Abu in The Fast Track High Court

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THE REPUBLIC
vs.
AUGUSTINA ABU AND OTHERS AT LARGE AND BEYOND THE

JURISDICTION OF THIS COURT
[HIGH COURT, ACCRA]
CASE NO. ACC 15/2010 DATE: 23RD DECEMBER, 2009

COUNSEL:
ASIAMA-SAMPONG FOR THE REPUBLIC.
ADDO- ATUAH, WITH PAUL ACHEAMPONG AND ADJEI LARTEY FOR THE
FIRST ACCUSED.
CORAM:
HIS LORDSHIP JUSTICE SAMUEL MARFUL-SAU
JUDGMENT
On the 16-11- 2009, I was authorised to sit as an additional High Court Judge to hear
this case by Her Ladyship, the Chief Justice of the Republic of Ghana under Article
139 (1) (c) of the 1992 Constitution and section 14 (1) (c) of the Courts Act 1993,(Act
459) as amended. The first Accused person herein Augustina Abu, from the charge
sheet was charged together with others alleged to be at large and beyond the
jurisdiction of this court. However the prosecution in this case failed to name and or
identify the accused persons who are at large and beyond the jurisdiction of this
court. The first Accused Augustina Abu and the others at large were charged jointly
with one count of engaging in criminal conspiracy to commit an offence namely
importation of cocaine, a narcotic drug. The first Accused alone was charged with
additional count of importation of narcotic drug namely cocaine without licence all
contrary to sections 56(c) and1 (1) of the Narcotic Drugs (Control, Enforcement and
Sanctions) Act 1990, PNDC 236, respectively.
The charge sheet registered and filed by the prosecution in this case is reproduced
below:-
COUNT ONE
STATEMENT OF OFFENCE
Engaging in criminal conspiracy to commit an offence namely importation of

cocaine, a narcotic drug without a license issued by the Minister of Health contrary
to sections 56(c) and 1(1) of the Narcotic Drugs (Control, Enforcement and Sanctions)
Act 1990, PNDCL 236
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PARTICULARS OF OFFENCE
Augustina Abu and others at large and beyond the jurisdiction of this court between
the months of April and May 2009 in the Greater Accra Region and within the
jurisdiction of this Court and in Guayaguil in Ecuador acted together with a
common purpose to import 56,685.7199gm of cocaine, a narcotic drug from Ecuador,
South America without a licence issued by the Minister of Health.
COUNT TWO
STATEMENT OF OFFENCE
Importation of a narcotic drug namely cocaine without a licence issued by the

Minister of Health contrary to section 1(1) of the Narcotic Drugs (Control,
Enforcement and Sanctions) Act 1990, PNDCL 236.
PARTICULARS OF OFFENCE
Augustina Abu, on or about 19th May, 2009 at Tema Harbour, in the Greater Accra
Region and within the jurisdiction of this Court imported from Guayaguil in
Ecuador in South America 56,685.7199gm of cocaine a narcotic drug without a
licence issued by the Minister of Health.
The first Accused person pleaded not guilty to all the two counts and for that matter
the prosecution was called upon to prove its case against the Accused persons.
FACTS
The brief facts of this case as presented by the prosecution are that on the 15-5-2009,
the ship M/V Mearsk Nolanville docked at the Tema Port with a lot of containers
from Ecuador, Panama and Spain. Among the containers was one with number
MSKU 011 8160 manifested to contain 1,880 cartons of chewing gum imported by
Augustina Abu of Augustina Abu Enterprise. Personnel of the Joint Port Control
Unit (JPCU) made up of officers from the Narcotic Control Board, Customs, Excise
and Preventive Services (CEPS), Bureau of National Investigations (BNI), Ghana
Ports and Harbours Authority (GPHA) and the Police tagged the said container,
which meant that the said container could only be opened and examined in the
presence of JPCU officials.
On the 19-5- 2009, at about 3:30pm container number MSKU 0118160 was scanned
and the image disclosed that it contained suspicious objects. During a physical
examination two (2) carrier bags containing a total of sixty-one (61) slabs of whitish
substances suspected to be cocaine were found in the said container, in addition to
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the cartons of chewing gum. A field test of the substances was conducted which
confirmed that the substances were cocaine, a narcotic substance. The first Accused
person, Augustina Abu, being the consignee of the container reported herself to the
Police and was subsequently arrested. Before the arrest of the first Accused, her
Clearing Agents and the driver of the truck hired to convey the container from the
Tema Port had been arrested. The whitish substance was forwarded to the Ghana
Standards Board for analytical examination and report. The report of the
examination confirmed that the substances in the two bags were cocaine, a narcotic
drug weighing 56,685.7199gm.
Based on events of the 19-5- 2009 the first Accused herein was originally charged
with five others in case No. ACC 40/2009, for engaging in criminal conspiracy to
commit an offence namely importation of cocaine, a narcotic drug without licence
issued by the Minister of Health and the importation of cocaine, a narcotic drug all
contrary to sections 56(c) and 1(1) of the Narcotic Drugs (Control, Enforcement and
Sanctions) Act 1990, PNDCL 236. However, on the 16-11- 2009, the prosecution
unconditionally withdrew the charge against the 2nd to 6th accused persons in Case
No. ACC40/2009, except the first accused therein, Augustina Abu. The prosecution
then registered a fresh charge sheet against the first Accused and others at large and
outside the jurisdiction of this court, as case No. ACC 15/2010. This judgment
therefore is in respect of Case No. ACC 15/2010.
THE PROSECUTION’S CASE
In all the prosecution called nine (9) witnesses to prove its case against the accused
persons. PW 1 was Edmund Tei Landy, an official of the Narcotic Control Board,
who described himself as the Team Manager of the Joint Port Control Unit, (JPCU)
based at the Port of Tema. On 19-5-09 he received information that a container that
had been tagged was ready for examination. He then dispatched two of his officers,
Joshua Addai and Hamidu Mohammed Abdulai to join the examination team. He
later received a call that in the course of the examination, two bags were found in
Container No. MSKU0118160 (herein after referred simply as the container) and
that his presence was required. On his arrival at the scan site, he saw his two officers
with the two bags in the company of a CEPS Officer and two other persons. He was
told that the two bags contained substances suspected to be narcotic drugs. He
joined the officers to the Customs office where the two bags were opened in the
presence of the Clearing Agents and security personnel. On examining the two bags,
61 slabs of whitish substances were found. According to PW1 he instructed one of
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the officers Joshua Addai to conduct a field test on the substance which proved
positive. He then called the Narcotics Control Board (NACOBOD) head office, to
report the discovery of the substances and also for reinforcement. Two officers from
NACOBOD head office, the Director of Enforcement, Harry Hackman Afful and
Head of Operations, Ferdinand Azeteriga came to the Tema Port. The slabs in the
two bags were recounted and another field test conducted. The substance together
with Clearing Agents and the truck driver were then handed over to the NACOBOD
head office. PW1 testified that containers tagged are usually scanned. He identified
the scan image of the container as ID 1.
Under cross examination PW1 stated that he was not present when the container
was physically opened so he could not tell the court the exact location of the two
bags in the container. He testified that during the counting of the slabs in the two
bags a seal was found in one of the bags but there was no indication that the seal was
form Ecuador.
PW1 testified that his team were only a detecting team and as such did not make any
contact with the shipping line even though that was the first time he found an extra
seal inside a container.
PW2 was Benjamin Klutse Gawuga, an examination officer of CEPS stationed at the
Gateway Services Tema. On the 19/5/09 he was scheduled to examine the container
so on the approach of the Clearing Agents of the first Accused, he proceeded to
conduct the examination with officials from the JPCU and National Security. He
examined the marks on the container and the seal. He observed that the marks on
the container were correct. However he found that the number on the seal on the
container was different from the number on the Bill of Lading. He ordered the seal to
be broken and the container opened. According to PW2 when the container was
opened he saw two bags sitting on top of the cartons in the container. He brought
the two bags down and when he opened them he found rectangular slabs and when
a slab was opened it contained whitish substance. He testified that since the
substance in the two bags were ‘unentered items’ he decided that they be taken to
the main CEPS office for thorough examination. In the main office an officer of the
JPCU conducted a field test on the substance and it was positive for cocaine.
According to PW2 the two bags contained 61 slabs of the whitish substance. The
substances were handed over to the NACOBOD head office. According to PW2 the
Bill of Lading consigned the goods in the container to Augustina Abu Enterprise.
Under cross examination PW2 confirmed that the number of the seal on the
container was different from the seal number indicated on the Bill of Lading. He
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admitted that the two bags that contained the whitish substance were not hidden
among the cartons in the container. He confirmed that there was an extra seal inside
one of the two bags. According to PW2 the extra seal was at the bottom of one of the
bags containing the slabs. PW2 testified that sometimes a container may have two or
three seals. According to PW2 the extra seal under the container was an unusual
occurrence. PW2 further stated that there were supposed to be two seals on the
container but when it was inspected it had only one seal. Answering questions from
the court, PW2 testified that the number on the extra seal did not match with the seal
found on the container or any of the seals manifested on the Bill of Lading.
PW3 was Joshua Selassie Kwesi Addai, an official of the NACOBOD attached to the
JCPU. On the 19-5-09 he was instructed by his boss PW1 to proceed to the scan site
to conduct investigations. The container had already been scanned for
investigations. He examined the scan image and found that it disclosed undeclared
items, thus showing a discrepancy in the image. He analysed the scan image on the
screen and requested for full examination of the container. So in the presence of his
colleague Hamidu Abdulai, the CEPS Examinations Officer, Benjamin
Gawuga(PW2), Mr. Emmanuel Abbey, a CEPS Preventive Officer, and the Clearing
Agent’s representatives namely, Simon Fafa and Kennedy Osei, the container’s seal
was broken and opened by a carpenter, Osman Sulley. On top of the cartons were
two bags one blue and the other black. The two bags were picked for examination
and on opening they contained slabs of whitish substances. PW3 testified that he
called PW1 to join them at the scan office. According to PW3 the slabs in the black
bag contained 33 parcels weighing 34.07 kilograms and the blue bag 28 parcels
weighing 36.75 kilograms. In the black bag was also found a new seal numbered M2-
PA0014996. PW 3 stated that he was instructed to carry out a field test of the
substances in the bags and they proved positive for cocaine.
According to PW3 the two bags, the clearing agents and the vehicle carrying the
container were handed over to the Deputy Executive Secretary of NACOBOD,
Mr.Mark Ewuntomah, for further investigation.
Under cross examination PW3 admitted that the container was manifested to contain
chewing gum but screening the container showed that the contents were not
uniform. PW3 also admitted that the shipping documents consisted of the Bill of
Lading, Packing List and Pro forma Invoice. According to PW3 each of these
documents describes the goods in the container as chewing gum. He did not know
the total number of boxes of chewing gum. PW3 confirmed the names of vessels that
transported the container from Ecuador and the names of the ships that did the
trans-shipment at Panama and Spain.
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PW3 confirmed the extra seal in the container and stated that in the shipping
industry seals are handled by shipping lines. He agreed that consignees or importers
had nothing to do with seals. He also confirmed that when manifested goods are
handed over to the shipping line the consignee has no control over the container.
PW3 further stated that at the port of departure there are customs officials and other
security agencies and that Ecuador is a signatory of the International Convention on
Narcotics. Consequently, PW3 agreed that if the Customs and Security officials had
sighted the two bags in Ecuador that would have been an offence in Ecuador too.
He confirmed that there was only one seal on the container with the number ML-
LA0448250 which was the shippers seal number. According to PW3, this seal was
different from the manifested shippers seal on the Bill of Lading. PW3 also stated
that he did not get to know the other person in Ecuador whom the first accused is
alleged to have conspired with.
PW4 was Emmanuel Abbey an official of CEPS. He was assigned to work on the
container. He checked the container number and it was correct. He checked the seal
number and it was not correct as manifested. He testified that when the container
was opened two bags were found on the cartons in the container. The two bags
according to PW4 contained some parcels. According to the witness his senior officer
Benjamin Gawuga PW2 and the JPCU officials took the two bags to the CEPS main
office. He admitted under cross examination that a container would normally be
subjected to Customs examination before it arrived in Ghana.
PW5 was Joseph Lartey Otopa, an official of CEPS. He was the image analyst when
the container was scanned. He tendered Exhibit A which is a printed scanned image
of the container. He testified that a yellow rectangular mark on Exhibit A, showed
the part of the container which appeared strange. His job ended with the scanning
and analysis of the scan image.
PW6 was Dorcas Afua Wilson a staff of Maersk Ghana Ltd. She confirmed that the
container was transported to Ghana through Maersk Line. She explained Maersk
Line’s procedure of loading containers and the shipment. According to PW6, the
shipper or his agent will do a booking with the shipping line. The booking enables
the shipper to pick up a container. After the booking has been confirmed a container
is released to the shipper for the packing of the goods. After the packing the
container is sealed in the presence of Customs Officials. The container is then
delivered to the terminal and the agent of the shipper submits shipping instructions,
which gives the shipping line instructions, like the contents of the container, who
pays for the shipment and other general instructions. When the ship takes off, a Bill
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of Lading is generated from the details given on the shipping instructions. PW6
testifies that a container cannot be shipped without going through Customs. She
tendered the freighted Bill of Lading as Exhibits B and B1. She stated that the
consignee on Exhibit B is Augustina Abu Enterprise and the shipper or Consignor
was Confetica-CA of Ecuador.
PW6 further stated that three seals were manifested on the bill of lading. The
numbers of the seals are as follows: (1) Maersk Seal – ML EC050 3129, (2) Shipper’s
Seal No 36688 and (3) Customs Seal 36699. She stated the significance of the seal
was to ensure the safety of the goods in the container. She testified that Maersk Line
does not inspect containers at the port of destination and that the containers are
handled by the terminal operator, in this case the Meridian Port Services. The
witness indicated that Maersk Ghana, did not receive any report that the container
had been tampered with on its way to Ghana.
Under cross examination PW6 confirmed that Customs have to examine the
container physically at the port of origin. She also confirmed that by Exhibit B and
B1, there were three seals on the container and that Maersk Shipping Line had
signed Exhibit B and B1 indicating that the three seals were on the container so on it
arrival at Tema, the three seals should have been on the container. PW6 stated that
Maersk Line was contacted after the container had been opened. She testified that
when Maersk Line Ghana contacted Maersk Line Ecuador as to whether there were
some discrepancies on the seals from the port of origin, the report was that
everything was intact and there was no discrepancy with the seals. She testified that
a shipper has no control over a container form the port of origin and the ports of
transhipment.
PW7 was Mark Ewuntomah, the Deputy Executive Secretary of Narcotic Control
Board. He testified that before 19-5-2009, his office received intelligence information
from partners abroad concerning container No. MXKU0118160 from Ecuador.
Accordingly, his office started monitoring the container. As a result when the ship
carrying the container arrived at the Tema Port, it was tagged which meant, it could
only be opened in the presence of officials from Narcotic Control Board. The
container was scanned on 19-5- 2009 and the scan showed the presence of unusual
images so a physical examination was ordered. According to PW7 before the
container was opened security officials detected that the seal on the container had a
number different form what was on the Bill of Lading. PW7 testified that the three
seals manifested on the Bill of Lading were not found on the container. Rather a new
seal was found on the container with seal No. ML-LA 0448250. He tendered the seal
that was on the container as Exhibit C. PW7 further testified that when the container
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was opened two bags were found on top of a consignment of 1,880 boxes of chewing
gum. The blue bag contained 28 slabs of whitish substance and the black bag
contained 33 slabs of the whitish substance. According to the witness an extra seal
different from all the manifested seals, was found in the black bag. He tendered the
seal found in the black bag as Exhibit D. According to the witness the seal is Maersk
seal No. ML-PA0014996.
PW7 confirmed the field test conducted on the whitish substances and stated that
the 61 slabs were sealed and sent to the Narcotic Control Board, head office, for safe
keeping. The witness testified that the clearing agents, the driver and other
concerned were arrested for further investigations. PW7 stated that on 20-5- 2009,
the first accused Augustina Abu, reported herself to the Narcotic Control Board.
Investigations were intensified by searching the premises of the accused and taking
possession of documents which could assist the investigations. The documents
showed that the accused had two other containers, one had been cleared and the
other was awaiting clearance. PW7 stated that investigations revealed that the
accused had been in the business of importing of chewing gum and biscuits for the
past 25 years. The accused traded from six countries namely Ecuador, China, Brazil,
Holland, Colombia and Turkey. He stated some of these countries are known as
source countries. He traced the route of the container, which he said left the port of
origin in Ecuador on 20-4- 2009, on board the vessel Maersk Victoria. It arrived in
Panama on 22-4- 2009 and docked at Balbao Port. The container was transferred to a
new ship. On the 25-4- 2009, the container left the port of Balbao for Spain and
arrived at the port of Algeciera on 5-5- 2009 on the ship Olga Maersk. On 8-5- 2009
the container departed from the port of Algeciera for Tema with another ship
Nolanville Maersk. It docked at Tema on 15-5- 2009. He testified that he wrote two
letters to Maersk and received two responds, which he tendered as Exhibits E and F.
The whitish substances were sent to the Ghana Standards Board for forensic
examination and the report proved the substances to be cocaine. Concluding his
evidence, PW7 stated that his office has written letters to their international partners
to assist in the investigations and they are still waiting for response.
Under cross examination PW7 confirmed that even though three seals were
manifested to be on the container only one was found physically on the container
and that had a different number. He admitted that the container was tampered with.
He also testified that the container stayed at Panama and Spain for some days. He
stated that the extra seal found in the bag with the whitish substance was pre-fix
ML- PA which meant Panama. When witness was asked that the accused had
nothing to do with the tampering of the container during its movement, PW7 said he
could not answer the question.
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PW7 admitted that the first accused person had no access to any extra seal as far as
the shipment of the container was concerned. PW7 confirmed that the accused paid
for the consignment through bank transfer from Ghana through either Barclays Bank
or Standard Chartered Bank. He also testified that investigations showed that the
first accused never travelled to Ecuador and that she transacted the business on the
internet.
PW7 stated that his office did not contact Confetica-CA, the manufacturers and
suppliers of the chewing gum from Ecuador because they were relying on their
partners abroad. PW7 stated that investigations have not uncovered the identities of
the persons first accused allegedly conspired with, who are at large and outside the
jurisdiction of this court.
PW 8 was Detective Inspector Hans Addai. He started investigations into the case
when the two bags containing the 61 slabs of cocaine were referred to him. On the
20-5-2009 the accused person was also handed over to him for investigations. He
took investigation caution statement from the accused. The statement was tendered
as Exhibit G. He also tendered the two bags containing the 61 slabs of cocaine, as
Exhibit H for the blue bag and Exhibit J for the black bag. He later handed over the
investigations to Inspector Oduro.
The last witness for the prosecution was PW9, Detective Inspector Anthony Oduro.
He tendered the report from the Ghana Standard Board which was admitted as
Exhibit K. He took the charge statement of the accused which was tendered as
Exhibit L. Under cross examination PW9 admitted that the investigations revealed
that it was the first accused person’s Clearing Agents themselves who went on three
occasions to invite CEPS official to conduct the examination on the container.
THE DEFENCE OF THE FIRST ACCUSED
The first Accused person testified but did not call any witness. In her evidence first
accused totally denied all the charges and insisted that she knew nothing about the
two carrier bags containing the cocaine that were found in the container. According
to first accused she has been in the business of importing chewing gums, biscuits
and candies for 25 years. She imports these goods from Brazil, Ecuador, Malaysia,
China, Holland, Turkey and Columbia. Accused stated that she conducts her import
business through the internet and she effect payments through bank transfer. She
tendered in evidence Bank Transfers notifications dated 6-7-05, 2-10-07 and 30-03-09
as Exhibits 1,2 and 5 respectively, to demonstrate the method she uses to pay for her
imports. She tendered in evidence Exhibit 3 a letter dated 6-2-09 from her supplier in
Ecuador requesting her to place her February order. The first Accused stated, she
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made the order on the 10-2-09 and tendered a copy of the order as Exhibit 4. The
order made through Exhibits 3 and 4 was to Confetika-CA of Ecuador and the
product was chewing gum.
The Accused testified that she had never travelled to Ecuador and explained that she
met officials of Confetika in Cologne, Germany when she attended a Confectionary
Fair in 2001 and ever since she has been in business with the company. She testified
that every year she orders about 4 containers from Confetika of Ecuador. She
testified that payment for the February order was effected through Barclays Bank,
Makola Branch, Accra. The payment notification was tendered and admitted as
Exhibit 5. According to first Accused the consignment of chewing gum, was shipped
on the 20-4-09. First Accused said she had nothing to do with the packing or loading
of the container in Ecuador. She stated that the freight was paid in Ghana to Maersk
Line. She received the Bill of Lading, the Pro forma Invoice and Packing list from the
manufacturers through DHL. The first accused tendered the Pro forma Invoice as
Exhibit 6 and the Packing list as Exhibit 7. According to first accused the Bill of
Lading covered 1,880 cartons of chewing gum. The cartons containing the chewing
gums were all labelled. On each carton was the inscription “Imported by Augustina
Abu Enterprise” together with address and telephone number of the Enterprise. The
first accused tendered a specimen label on the carton as Exhibit 8. She also tendered
a sample or replica of the cartons which normally contains the chewing gum. On the
carton is the name of the manufacturers and the business name and address of first
Accused Enterprise. A replica of the carton was admitted as Exhibit 9. She further
tendered samples of the chewing gum she imports, as Exhibits 10 and 10(1). The
packages of chewing gum, Exhibit 10 has the accused persons Enterprise inscribed as
the sole distributor.
The first accused denied any knowledge of the two bags found in the container and
stated that she first saw the bags at the Head Office of the Narcotic Control Board
and this was five days after she had been brought to court. She testified that
normally her imports from Ecuador go through transhipping but she does not know
the routes and that usually it is her Clearing Agent who knows the routes.
The first Accused concluded her evidence stating that when her container was
detained she reported the matter to the supplier through e-mail and she tendered the
reply to the e-mail as Exhibit 11. She also received a letter from the supplier
explaining their export procedures. This letter was tendered as Exhibit 13. The first
Accused confirmed that she voluntary reported at the Police Headquarters and was
taken to the Narcotic Control Board. This was after a friend had informed her that
her Enterprise had been mentioned on Oman F.M regarding the seizure of cocaine.
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Under cross examination the accused maintained that the two bags were not part of
the goods she imported from Ecuador. She stated that her consignment was 1,880
cartons of chewing gum. The accused also denied that she had control over the
container. She also stated that for the 25 years that she has been engaged in the
importing business, her container had never been intercepted before.
The above narration is the summary of the evidence adduced by the prosecution
against the accused persons and the defence offered by the first accused. As
observed earlier the first accused was charged with two counts of engaging in
criminal conspiracy to commit an offence namely importation of cocaine, a narcotic
drug without licence, and importation of cocaine a narcotic drug without a licence.
The offences are both contrary to sections 56(c) and 1(1) of the Narcotic Drugs
(Control, Enforcement and Sanctions) Act 1990, PNDCL 236, respectively.
On the 30-11-09, this court ordered the destruction of the 61 slabs of cocaine the
subject matter of this trial and which was tendered as Exhibits H and J. The
56,685.7199 gm of cocaine was accordingly destroyed by burning on the premises of
the court as ordered.
Now, before I engage myself in addressing the evidence and the law as regard the
offences charged, I like to address an issue that was raised by learned counsel for the
first accused, in his address to the court. The issue relates to the offence with which
the accused was cautioned. In Exhibit G the investigation caution statement, the
accused was cautioned with the offence of conspiracy relating to narcotic drug and
possession of narcotic drugs. However in Exhibit L the accused was charged with
the offence of conspiracy to commit crime to wit importation of narcotic drugs and
importation of narcotic drugs. These were the offences preferred in the charge sheet
registered in this court and for which the first accused person’s plea was taken.
Counsel argued that the charges preferred against the first accused were defective in
the sense that the accused was investigated for the offence of conspiracy to commit
crime and possession of a narcotic drug and not importation of cocaine. I do not
think that the difference in the offence, for which the accused was cautioned and
investigated and the ultimate offence charged, per se renders the charge defective. In
this case even though the first Accused, was eventually charged with the offence of
engaging in criminal conspiracy to commit an offence namely importation of cocaine
and importation of cocaine, a narcotic drug and not the offence of conspiracy and
possession of narcotic drug which was investigated, I am satisfied that no
miscarriage of justice has occasioned the accused. The reason is that the charge sheet
to which the first accused pleaded, contained all the necessary information and
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particulars of the two offences preferred against her. The first Accused thus had
reasonable information on the charges as required under section 112(1) of the
Criminal and Other Offences (Procedure)Act, 1960, Act 30 to enable her appreciate
the nature of the charges and prepare her defence to the charges.
Section 112(1) of the said Act provides as follows:-
‘’ Subject to the special rules as to indictments hereinafter mentioned, every

charge, complaint, summons, warrant or order document laid, issued or made
for the purpose of or in connection with any proceedings before any court for
an offence, shall be sufficient if it contains a statement of offence with which
the accused person is charged, together with such particulars as may be
necessary for giving reasonable information as to the nature of the charge and
not withstanding any rule of law to the contrary it shall not be necessary for
it to contain any further particulars than the said particulars’’.
Commenting on the above provision which is the same as in the old Criminal
Procedure Code, the Court of Appeal, in the case of ALI YUSUF ISSA v THE
REPUBLIC (No.1) 2003-2004 SCGLR 189, CORAM BROBBEY, BADDOO AND
AMONOO-MONNEY JJA (as they then were), stated as follows at page 200:-
‘’ Therefore, what one should ask is whether or not from the particulars, the
appellant or any objective reader of the charge will know what kind of
allegations have been levelled against the appellant for which the charges
have been preferred against him, and which he will be required to answer by
way of his defence’’.
I accordingly hold that the charges preferred against the first accused was properly
laid before the court
Now what is the exposition of the law on the offences charged? I will first deal with
count one which is the offence of engaging in criminal conspiracy to commit crime
namely, importation of cocaine a narcotic drug, contrary to section 56(c) and 1(1) of
the Narcotic Drugs (Control, Enforcement and Sanctions) Act 1990, PNDCL 236. The
Ghanaian law on conspiracy is well established and until the coming to force of the
new Criminal Offences Act, 1960 (Act 29) it was trite to state that our law on
conspiracy was wider in scope than what pertains in England. However for reasons
that I shall soon give in this judgment, I think the position of the law has been
altered by the new definition of conspiracy under the Criminal Offences Act.
Section 56(c) and section 1(1) under which the accused was charged on count one
reads a follows:-
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56(c) Any person who abets or is engaged in a criminal conspiracy to

commit any offence under this Law or under any corresponding foreign law
whether or not the offence is committed, is guilty of the offence and liable
to the punishment provided for the offence.
1(1) Any person who imports or exports any narcotic drug without a licence
issued by the Secretary for Health for that purpose commits an offence and
shall on conviction be liable to imprisonment for a term of not less than ten
years.
It is obvious that the Narcotic Drugs (Control, Enforcement and Sanctions) Act 1990,
PNDCL 236 does not provide a definition of the offence of conspiracy which is now
defined by section 23 of the Criminal Offences Act 1960 (Act 29), as follows:-
23(1) “If two or more persons agree to act together with a common purpose
for or in committing or abetting a crime, whether with or without any
previous concert or deliberation, each of them is guilty of conspiracy to
commit or abet the criminal offence.”
(2)’’A person within the jurisdiction of the courts can be convicted of

conspiracy by agreeing with another person who is beyond the jurisdiction,
for the commission of abetment of a criminal offence to be committed by
them or either of them, or by any other person, within or beyond the
jurisdiction’’.
I observe that the above definition of conspiracy in the Criminal Offences Act is
different from the definition offered in the previous Criminal Code of 1960, Act 29
on which our law on conspiracy has been developed and grounded. The old
Criminal Code defined conspiracy as follows:-
23 (1) ‘’If two or more persons agree or act together with a common purpose
for or in committing or abetting a crime, whether with or without any
previous concert or deliberation, each of them is guilty of conspiracy to
commit or abet that crime, as the case may be’’
The difference in the definition of conspiracy in the two statutes is in the opening
sentence. While the new Criminal Offences Act, uses the words agree to act; the old
Criminal Code uses the words agree or act. The effect of conspiracy as defined by
the Criminal Offences Act, is that the persons must not only agree or act, but must
agree to act together for common purposes. This to my mind raises the degree and
standard of proof for the offence of conspiracy, since by the Criminal Offences Act;
13
the prosecution must establish that the persons agreed to act, rather than just
agreeing or acting. The new definition of conspiracy, in my opinion, has changed the
scope and nature of the law of conspiracy in our criminal law. In our law reports are
a chain of authorities holding that a person could be guilty of conspiracy in the
absence of any prior agreement. These authorities to my mind are no longer good
law, in as much as the new definition requires that the persons must agree to act.
This calls for the existence of an agreement before the acting. Accordingly to
succeed in securing conviction for conspiracy currently, under the Criminal Offences
Act, 1960(Act 29), the prosecution must establish that the accused persons agreed to
act with a common purpose for or committing or abetting a crime. Conspiracy
under the new Criminal Offences Act therefore requires proof of prior agreement.
It is indeed trite law that one person cannot conspire with him or herself to commit a
crime. By the very definition of the offence of conspiracy by section 23(1) of Criminal
Offences Act, (Act 29), it requires two or more persons for the offence to be
committed. So that when three persons are charged with the offence of conspiracy
and two are acquitted except one, that one should also be acquitted unless it is
charged and proved that he conspired with others not named in the charge. See
Republic v. Bossman and others (1968) GLR 595 which followed the decision in R
v. Thompson (1851) 16 QB 832.
In this case the first accused and un-named persons described only, as others at large
and outside the jurisdiction of this court, have been charged on count one as having
engaged in criminal conspiracy to commit the offence of importing cocaine between
the month April and May 2009. On the authority of Republic v. Bossman supra, I
find nothing wrong with the charge preferred in count one. However it remains the
responsibility of the prosecution to prove that the first accused did conspire with the
unnamed persons, in terms of the definition of conspiracy under the Criminal
Offences Act.
This brings me to the responsibility that the prosecution assume whenever it mounts
a criminal trial. The elementary principle of the common law is that the prosecution
can only secure conviction under a criminal trial, if the guilt of the accused is proved
beyond reasonable doubt. This means that under count one the prosecution ought to
prove beyond reasonable doubt that the first accused Augustina Abu did engage in
criminal conspiracy with some unnamed persons who are at large and outside the
jurisdiction to import cocaine into the country. This is the standard of proof the
prosecution assumed when it mounted this trial. This principle of law was stated
14
by Viscount Sankey, LC in the case of Woolmington v DPP (1935) AC 462. The

learned Lord Chancellor delivered as follows:
“No matter what the charge or what the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the common law of
England and no attempt to whittle it down can be entertained.”
This principle has been adopted by Ghana and it has long been one of the pillars of
our criminal jurisprudence. Our 1992 Constitution has fortified the principle under
Article 19(2) (c) which provides:-
“A person charged with a criminal offence shall be presumed to be innocent

until he is proved or has pleaded guilty.”
The Evidence Act, NRCD 323 also sets the standard of proof required in all criminal
cases, except where the enabling statute provides otherwise. Section 11 of the
Evidence Act, NRCD 323 provides as follows:-
“11(2) in any civil or criminal action the burden of producing evidence, when
it is on the prosecution as to any fact which is essential to guilt requires the
prosecution to produce sufficient evidence so that on all the evidence a
reasonable mind could find the existence of the fact beyond reasonable
doubt.”
I have not lost sight also of section 13 (1) of the Evidence Act, NRCD 323 which
provides as below:-
‘’in any civil or criminal action the burden of persuasion as to the

commission by a party of a crime which is directly in issue requires proof
beyond reasonable doubt’’.
With this standard in mind I ask the question was the prosecution able to discharge
this responsibility, with regards to the charge of engaging in criminal conspiracy to
import cocaine, preferred against the first Accused herein? What evidence has been
adduced in this court in proof of count one? The prosecution called 9 witnesses. The
theme that runs through the evidence of all the witnesses is that a container
manifested as containing chewing gum was intercepted at the Tema Port originating
from the Ecuador. When the container arrived at Tema its security seals had been
tampered with. The container was subjected to both electronic and physical
examination and two bags containing 56,685.7199gm of cocaine were found on top of
the cartons of chewing gum. The container was consigned to Augustina Abu
15
Enterprise, owned by the first accused. The prosecution’s theory is that because the
container is owned by the first accused, anything found in it belonged to her. In the
main this is the evidence led by the prosecution. There was no direct evidence that
the first Accused agreed to act with any person named or unnamed for a common
purpose to commit the offence of engaging in criminal conspiracy of importing the
cocaine to Ghana. Indeed, PW 7 Mark Ewuntomah, admitted under cross
examination that investigations into this case had not disclosed the identities of
persons alleged as having conspired with the first accused.
Learned counsel for the Republic, however, in his address has argued that even
though the first accused did not travel to Ecuador to transact her business, her co-
conspirators put the cocaine in the container of 1,880 boxes of chewing gum with the
assurance that she would have it when the container came to her custody, since her
co- conspirators were working in concert with her. I pause to state that this
submission is not borne out of the evidence before the court. There is no evidence
from the prosecution as to how and where the cocaine got into the container which
according to the prosecution own evidence originated from Ecuador under three
secured seals. There is also no evidence in this case that first Accused agreed to act in
concert with some co -conspirators under an assurance that she will have the cocaine
if she took custody of the container.
Counsel for the Republic also submitted that the overt act in this case, is that the co-
conspirators knew the only person who could have opened the said container was
the accused or be opened in her presence, therefore they knew she could have direct
access to the cocaine, that was why the cocaine was not hidden among the boxes of
chewing gum, but displayed the two bags, as it were, on top of the cartons, so she
could have easy access to it.
Indeed, no evidence was led on record to support these submissions by the learned
Prosecutor. I find the submissions above very speculative and of no judicial value. I
say so because it is a matter of judicial notice that in this modern age, every
container is subjected to customs and security checks at both ports of departure and
arrival. The first accused as it did happen in this case, could not have been the only
person who could have opened the said container and as the evidence on record
show, particularly PW3 and PW6 evidence, the first accused could not have
exercised any control over the container, after the ship left the port in Ecuador.
Thirdly, Counsel for the Republic submitted that because the original seals on the
container were broken and was locked again with a new seal, an interference could
16
be drawn that first Accused person was in league with other person or persons
unknown and outside jurisdiction to commit the crime. On this point Counsel for the
Republic submitted further that if the cocaine were put into the container at the
premises of the confectioner, the original seals would have been intact. The meaning
of this submission is that the cocaine did not originate from Ecuador. So then if this
was so what does learned counsel for the Republic make of the particulars of the two
counts charged that the crime was committed in Accra and Guayaquil in Ecuador.
Again I find learned counsel submission very speculative rather than reasonable
inference from the facts before the court. The evidence is that the chewing gum in
the container originated from Ecuador under three seals. The further evidence is that
before the container was sealed there would have been both customs and security
checks. It is on record that when the ship sailed the shipper or importer had no
control over the container in the ship. The important question that the prosecution
needed to provide answers, through evidence, were how and where was the three
seals on the container broken, making way for the cocaine to be added to the
consignment. Unfortunately evidence on record does not directly answer this
question.
Fourthly, Counsel for Republic submitted that the consignment of cocaine seized
valued $1,960,000 (even though no evidence was led to establish this value) so no
person will randomly pick a container and throw such an expensive ‘cargo’ into it,
without being assured that it would be safely delivered. Counsel for the Republic
therefore argued that the persons or person who put the cocaine in the container was
in concert with the accused person.
I find the above submissions by the learned Prosecutor mere conjectures and very
speculative. I say so because several reasons could be assigned to the motive of the
person or persons who broke the original seals to get access to the container and
deposited the two bags on top of the cartons, exposing the two bags patently to
security checks.
From the above narration what the prosecution seek to do is to invite this court to
consider circumstantial evidence to convict the first accused person since there is no
direct evidence to prove the alleged offence of agreeing to act with a common
purpose to commit a crime of engaging in criminal conspiracy to import cocaine,
with others unknown.
I am not unaware that the offence of conspiracy can be proved through direct and
also circumstantial evidence. However the principle of law is that where the
17
evidence is circumstantial, the circumstances establishing the facts from which

conspiracy is to be inferred must lead uniquely to an inference of the existence of an
agreement. In Lartey and Another v. The Republic (1968) GLR 986, Akuffo Addo,
CJ sitting in the High Court delivered himself at page 989 as follows:-
‘’Conspiracy imports an agreement to commit a crime, and where there is no

direct evidence of any such agreement, as indeed there was not in this case,
the circumstances establishing facts from which the conspiracy is to be
inferred must lead uniquely to an inference of the existence of an agreement,
that is to nothing else. If the circumstances merely lead to suspicion that
there might have been such an agreement the charge of conspiracy is not
proved’’.
Still on the law on circumstantial evidence that a court could rely on , Ollennu JSC,
stated as follows in the case of Dowuona v. The State (1964) GLR 361 SC
“A court ought not to convict upon circumstantial evidence; put in another

form, there should not be conviction unless guilt is the only inference which
can be drawn from the facts. Therefore, where circumstantial evidence is
consistent with guilt as well as with innocence, the court must acquit.”
In this case as I have stated no direct evidence has been led before me that the first
Accused did agree to act with a common purpose with unknown persons to commit
the offence charged. The prosecution is only inferring unreasonably that the first
Accused had committed the offence with others because the cocaine was found in
her container.
The circumstances surrounding this case, particularly, the tampering of the seals on
the container and the fact that the first accused never travelled to Ecuador to arrange
for the shipment as the evidence reveal provides circumstantial evidence that could
both convict and acquit the Accused. For example it could be inferred from those
facts that the seals on the container were broken and the two bags, Exhibits H and J
dropped into the container to damage the first Accused business. This inference will
have more weight considering the fact that the cocaine was not hidden among the
cartons containing the chewing gum but deposited in unsecured bags and placed on
top of the cartons. A practice which defies logic and contradict known modus of
transporting narcotic drugs, which is, concealing the substance in objects or human
beings.
18
Accordingly, having considered with utmost care the evidence on record and
relevant legal authorities particularly Douwona v. The State supra, and Lartey v. The
Republic supra, I am unable to rely on the circumstantial evidence before me to
convict the accused. The reason being that evidence adduced at the trial does not
justify an irresistible inference that first accused agreed to act in common with the
unnamed persons said to be at large to import 56,685.7199 grams of cocaine into
Ghana. I therefore hold that the prosecution has failed to establish the offence
charged in count one, which is engaging in criminal conspiracy to commit the
offence of importing cocaine against the first accused person, beyond reasonable
doubt. The first Accused Augustina Abu, is therefore acquitted and discharged on
count one.
Indeed on the authority of R v. Cooper and Crompton (1947) 2 All E.R. 701, C.C.A
which was considered and approved by Akufo-Addo CJ in Lartey v. The Republic,
supra the charge in count two namely importing cocaine, a narcotic drug without
licence ought to fail since the evidence by which the prosecution sought to establish
the crime of conspiracy was the same evidence by which they sought to establish the
crime of importing cocaine.
However in view of the general paucity of reported judicial decisions in our

criminal jurisprudence and a poor depth of legal literature on the criminal
ingredients necessary to support a conviction on a charge of importation of narcotic
drug without licence, I shall address count two which is that the first Accused
imported a narcotic drug namely cocaine without a licence issued by the Minister of
Health contrary to Section 1(1) of the Narcotic Drugs (Control, Enforcement and
Sanctions) Act 1990, PNDC 236. The particulars of the offence are that on or about
19th May, 2009 at Tema Harbour the Accused imported from Guayaquil in Ecuador
in South America 56,685.7199 grams of cocaine, a narcotic drug without licence
issued by the Minister of Health.
Now before I proceed to deal with this second count I will want to put on record
some primary facts established in this trial which I find undisputed. These are:
1. The first accused placed an order for chewing gum from Confetica in
February 2009.
2. That Confetica of Ecuador packed a total of 1,880 cartoons of chewing gum
and shipped same to the first Accused as he consignee in a container.
3. That the container with the chewing gum was shipped from the port of
Guayaquil in Ecuador after customs and security inspection.
19
4. That the container was secured with three security seals of the shipper,
customs and carrier, which is Maersk Line.
5. That the container was transhipped at ports in Spain and Panama before
arriving at Tema.
6. That on arrival the three seals on the container were missing and there was
only one new seal on the container with a different number.
7. That the Accused person never travelled to Ecuador to transact the business
of shipping the chewing gum to Ghana. Neither did the Accused travel to
either Spain or Panama the two countries where the container was
transhipped on its way to Ghana.
8. That payment for the goods was effected with Bank transfer through Barclays
Bank, Makola Branch, Accra, Ghana.
9. That Accused has been engaged in her business of importing chewing gum,
biscuits and candies (toffees) for 25 years.
10. That Accused in her business deals with supplies from countries like
Ecuador, Brazil, Colombia, China, Holland and Turkey
11. When the container arrived in Tema two bags containing the cocaine were
found on top of the cartons of chewing gum, with a different extra seal inside
one of the bags.
I must state that while above are settled facts from the evidence on record, the
under-mentioned questions are at large, in that the prosecution which had the
responsibility of establishing them failed so to do positively. The questions
are:-
1) How did the two bags that contained the cocaine found it way into the
container?
2) Which of the ports were the two bags put inside the container? Was it
at the Port of Guayequil in Ecuador as recited in the particulars of
count two? Or was it at the Port in Spain or Panama?
3) Where were the seals on the container tampered with and the change
effected? Was it in Ecuador, Spain or Panama?
4) Who were the persons who changed the seals on the container and or
put the two bags in the container?
5) How did the new extra seal, which was different from the manifested
seals got into one of the bags that contained the cocaine and whose act
was it?
20
With these questions in mind, I now address the law and the evidence as regard
count two which is the importation of narcotic drug namely cocaine without a
licence, issued by the Minister of Health contrary to section 1(1) of the Narcotic
Drugs (Control, Enforcement and Sanctions) Act 1990, PNDCL 236.
Section 1(1) of PNDCL 236 states as follows:-
“Any person who imports or exports any narcotic drug without a licence
issued by the Secretary for Health for that purpose commits an offence and
shall on conviction be liable to imprisonment for a term of not less than ten
years.”
I observe rightly just as Mr. Asiama- Sampong, the Prosecutor noted in his
address that PNDCL 236 did not define the word “importation”.
Consequently, he referred this court to the definition of the word
“importation” from the Black’s Law Dictionary, Sixth Edition, 1990 at Page
755. The word is defined as:-
“The art of bringing goods and merchandise into a country from a foreign
country.”
From this definition I ask the further question, who is an importer? Is an importer
simply a person who brings goods and merchandise into a country from a foreign
country and nothing more? In formulating this judgment my research revealed the
case of Bonsu alias Benjilo and others v. The Republic, (1997-98) 2 GLR 598, Court of
Appeal, Coram Lamptey and Wood JJA and Gbedegbe J as they then were. In that
case the Court of Appeal was faced with a similar challenge as to the legal definition
of the word importation. The court had to fall on the definition of the word
“importer” in Section 340 of the Customs, Excise and Preventive Service
(Management) Law 1993, PNDCL 330, for the needed assistance. That law defined
importer as:
“including the owner or the person for the time being possessed of or
beneficially interested in any goods at and from the time of their importation
until they are duly delivered out of the charge of the proper office, and also
any person who signs any document relating to any imported goods required
by the law to be signed by an importer.”
From the above definition an importer of goods or merchandise must be one of such
persons:-
21
a) The owner of the goods or merchandise

b) A person in temporal possession of the goods.
c) A person beneficially interested in the goods from the time of importation
until delivered
d) A person who signs any document relating to any imported goods required
by law to be signed by an importer.
In this case and in count two, the first Accused is charged with the offence of
importing narcotic drug namely cocaine from Guayaquil, Ecuador without a licence
from the Ministry of Health. Applying the definition of an importer under PNDCL
330, in the circumstances of this case, I think the prosecution had to lead evidence
establishing beyond reasonable doubt that the first Accused was the owner of the
two bags with the cocaine found in the container, since the first Accused right from
the start of the investigations denied ownership and or any knowledge about the
two bags.
In Exhibit G, is the investigation caution statement of the first accused which was
taken on 21-5- 2009, two days after the interception of the container, the first
Accused categorically denied ownership of the two bags and its contents. This
statement was relied upon by the first Accused in Exhibit L, the charged statement.
It is evident that the two bags were found in the container among goods
acknowledged by the first Accused as per the Bill of Lading, Exhibit B and B1, the
chewing gums. Having found the bags among the goods in the container of first
Accused, it can be argued that the Accused had possession of the two bags that
contained the cocaine. Indeed as cited above PNDCL 330 also defines an importer as
a person for the time being possessed of any goods at the time of the importation
until they are delivered. This definition of importer equally has to pass the legal
definition of possession, which is having control and knowledge. For in law, a
person cannot be said to be in possession of a thing he does not know of. It is now
trite law that knowledge can be established through direct evidence which at times
is difficult or through inferences from proved facts. See Asamoah v.The State (1962)
2 GLR 207 and Bonsu alias Benjilo v.The Republic (2000) SCGLR 128.
Having examined the definitions of the words “importation” and ‘importer’ what
are the essential ingredients that the prosecution need to establish to sustain a charge
of importing narcotic drugs, namely cocaine without a licence from the Minister of
Health. From the exposition above, I am of the opinion that the prosecution has the
duty to establish the following:-
22
1. The import was prohibited

2. The Accused originated and facilitated the importation
3. The Accused was aware or had knowledge that she was importing a
prohibited good or was in a position where she should have known that the
good was prohibited.
4. That the Accused was in possession of the goods either physical or
constructive.
To my mind failure to prove one of these ingredients either through positive direct
evidence or circumstantial is fatal to the prosecution case. What that mean is that no
sufficient evidence would have been led to prove the charge against the first
Accused beyond reasonable doubt. I am fortified by the decision of the US Court of
Appeals, Tenth Circuit in the drug importation case of United States of America v.
Mario Amaya- Sanchez, decided on 17th December, 1997 and reported as 132 F3d
43 or 97 CJ CAR 3394.
In that case the Accused Mario Amaya- Sanchez was arrested when he attempted to
cross the US – Mexico border by concealing 118.2 pounds of narcotic drug in
specially built containers in the tyres of the vehicle he was driving to the USA. He
was consequently charged with the offence of drug importation, The Tenth Circuit
Court of Appeals held that:-
“The government must prove beyond a reasonable doubt that Mr. Amaya-
Sanchez knowingly brought marijuana into the United States.”
Even though this judgment is not binding on me, I find it very useful as it lends
support to my contention that a person charged with the offence of importing
narcotic drugs, such as in this case, must be proved to have knowledge that what she
was importing was a prohibited good. In Ghana, importing cocaine as a narcotic
drug, without licence is prohibited under PNDCL 236. The evidence also reveals that
the cocaine was in a container owned by the first Accused, which connotes
possession. Consequently in the circumstance I expected the prosecution to have led
evidence to establish the following:
1. That Accused was the owner of the two bags found in the container and the
two bags were in the container from Ecuador.
2. That the accused was aware or had knowledge or should have known that the
two bags contained cocaine.
3. That the Accused originated and facilitated the transportation of the cocaine
into Ghana in May 2009.
23
What evidence did the prosecution adduce in this case to establish the charge in
count two? From the record all that the prosecution proved through the nine
witnesses was that a container arrived at the Tema Port and upon examination two
bags with cocaine was found in the container. The container which originated from
Ecuador was consigned to the Accused. That the security seals on the container were
tampered with and the container arrived at the port of Tema, with only one strange
seal. The prosecution’s theory therefore is that since the first Accused, was the owner
of the container, she should be the owner of the two bags found containing the
cocaine and as such the importer of the cocaine.
There is no direct evidence as to how the two bags came into the container and at
which point and at which port. That being so it follows that the prosecution failed
woefully to prove the fact in the particulars of the offence charged, that the first
Accused imported the cocaine from Guayaquil in Ecuador. I find the prosecution’s
theory that the first Accused was the owner of the two bags containing the cocaine,
and that she knew the contents as the owner, as circumstantial. The evidence that the
two bags containing the cocaine originated from the port of Guayaquil is
circumstantial in face of Exhibits 11, 12 and 13. Exhibit 13 is an unchallenged
document from Confetica dated 30-6-2009 and the contents are produced below:-
“TO WHOM IT MAY CONCERN
CONFITICA has a business relationship with Augustina Abu Enterprise since

2001. During this time, this business relationship has being normal without
showing any credit problems.
CONFETICA C.A. is an Ecuador Company with 45 years in the market

holding influential businesses with over 40 customers around the world. All
our procedures are controlled under international standards and all our
expert procedures accomplish with BASC regulations and standards which
includes inspections at loading, inspection for insurance purposes and a
satellite monitor system inside of the Ecuadorian port.
Any additional information about the Confetica’s profile can be obtained in

www.confetica.com.
Signed, Ricardo Lara Viteri
As I have stated this exhibit was not challenged, besides there is no evidence
on record to show that investigation in this case was extended to ascertain the
24
security records and profile of this company called Confetica, which shipped
the chewing gum to the first Accused person from Guayaquil, Ecuador.
Exhibit 12 was tendered to corroborate the profile of Confetica as stated in
Exhibit 13. Exhibit 12 is a certificate from the Business Alliance for Secure
Commerce (BASC) dated at Quito, Ecuador on 9-6- 2009. The exhibit certifies
in part as follows:
“Confetica as part of BASC is periodically audited and warrant that their

products are produced and delivered under strict security controls and
monitored at every step of the production and transportation process, using a
range of security systems and processes.”
I find Exhibit 12 and 13 very important because on record is the evidence that the
first Accused did not travel to Ecuador, Spain or Panama to arrange for the purchase
and shipping of the goods. For that matter if the charge is that first Accused
imported the cocaine from Guayaquil, Ecuador then the prosecution is alleging that
Confetica which supervised the loading of cartons of chewing gum into the
container and getting same shipped are accomplishes to the unlawful import. That is
why the investigations should have been extended to Ecuador to ascertain the
circumstances under which Confetica conducts its export business.
Another source which I found could have assisted in establishing whether or not the
two bags originated with the consignment from Guayaquil, Ecuador was the
shipping line that transported the container. On record the shipping line was Maersk
Lines. The prosecution tendered in evidence Exhibit E. This is a letter addressed to
Mr. Mark Ewuntomah, PW7 the Deputy Executive Secretary of Narcotic Control
Board and it is dated 29-5- 2009, from Maersk Ghana Ltd. The letter is reproduced
below:-
Sir,
RE: SEIZURE OF 61 SLABS OF SUSPECTED COCAINE FROM

CONTAINER NO MSKU0118160 ON 19-5-09
Your letter to us dated May 21st 2009 on above subject refers:-
We have contacted our foreign offices where subject container had been loaded and
or transhipped and having also cross-checked all released updates in our systems;
we furnish you with below information in response to your enquiry.
25
a. No changes or amendments were made to the details of the shipment at the

various transhipment countries and that the original seal numbers updated
for this shipment had at no point been replaced as far as those updates are
concerned. Database updates show three seal numbers assigned to this
container. Maersk Line seal number EC0503129, shipper’s seal number 36688
and country of origin customs seal number 36699.
b. Tallying of loaded or discharged containers in Tema is not task of the
shipping line. This task is within scope of terminal operation and managed by
terminal operator.
c. Details on rooting of the said container can be traced live using internet at
www.maerskline.com . A copy will be made available to you at our meeting.
d. None of the use transhipment ports notified Maersk Ghana of any need or
confirmed case of re opening container in question, hence there was no reason
to make special checks nor need to make special up dates in our database
during the transhipment (re-loading) operations. Manifest information
submitted to Ghana customs shows three seal numbers matching the seal
numbers at time of load in the country of origin.
We trust you will find above written information as well as the live presentation
of all data records pertaining to this container useful in your investigations. We
also wish to reconfirm Maersk Ghana, full commitment and assistance in this
matter.”
Signed
Maersk Ghana Ltd.
The Prosecution tendered another letter from Maersk Ghana Ltd as Exhibit F. This
was also in response to enquiries from the Narcotic Control Board. It was dated 30-7-
2009 and addressed to the Executive Secretary of the Narcotic Control Board. The
letter is reproduced below:-
“RE: REQUEST FOR INFORMATION OR CONSIGNMENTS IMPORTED

BY AUGUSTINA ABU.
In reference to your letter on above request NCB/65/Vol. 4/80, please find below
responses to the specific requests made.
1. The design of the tracking site does not show the seal numbers. That is the site
design, hence applies for all shipments that are tracked on the site.
26
2. Extra seals are not given to shippers of containers.
3. Seals are issued to customers who have valid bookings for shipment.
4. It is normal practice that one container can be carried by more than one ship
from the origin to final destination. The number of ships that will carry the
container before its final destination depends on the route and ship
connections on the route.
5. Upon discharge of a container, the terminal should recognise if a seal has

been broken. If the terminal identify and notify the ship, the Chief Officer of
the ship will then sign off. Where there is a seal but number is different from
what was originally issued, this can be detected by customs at the point of
customs undergoing clearing process in the port.
6. To acquire seals, orders are placed to manufacturers mainly in Europe and

Asia.
We hope that the above information will be useful in addressing your requests.
Yours faithfully,
Signed
Acting Managing Director
Paragraph 5 of Exhibit F, points that on discharge of a container, the terminal should

be able to recognise if a seal has been broken. In this case the evidence is that the
container in issue was handled by Meridian Port Services, as terminal operators.
From Exhibit F therefore Meridian Port Services should have detected that the seals
on the container had been broken or tampered with, since two of the three seals
manifested were patently missing from the container when it arrived at Tema.
However there is no evidence on record as to whether the Meridian Port Services
were contacted during the investigations. I am of the opinion that if the Meridian
Port Services had been contacted they might have assisted the prosecution in
unravelling the mystery about the seals.
As things are, one cannot tell where the seals were broken in view of Exhibit 12 and
13 as well as Exhibit E and F. Were the seals broken on the high seas or at the Port of
Tema? These are questions that I am unable to answer from evidence on record.
27
These unanswered questions make the evidence adduced against the first accused
very doubtful.
As already stated in this judgment, the prosecution has the responsibility of proving
the guilt of the Accused beyond reasonable doubt. Evidence in proof of a case is
normally through direct or circumstantial or both. For example knowledge or mens
rea is generally proved through inferences from established facts. As observed in
this case no direct evidence has been adduced to prove that the first Accused was the
owner of the two bags and its contents and that she had knowledge of the two bags
as well as its contents. All the prosecution has done is to urge this court to assume
that once the first Accused was the consignee of the container then automatically
every item or good found in the container was owned by her. But how does one
reasonably explain the events that occurred or took place in the course of
transporting the container to Tema. I am specifically referring to the security seals
that were broken and changed. The evidence that all three manifested security seals
got missing and a different extra seal found inside one of the bags that contained the
cocaine; the evidence that the first Accused never travelled to Ecuador to organise
the shipment of the consignment. Neither did the Accused travel to the countries
where the container was transhipped. There is also evidence on record that once a
ship sails; the shipper has no access to the containers on board. So what inference
can a reasonable court draw from the evidence adduced in this case? In the English
case of Casewell v. Powell Duffryn Associated Galleries Ltd (1940) AC 15 HL,
what amounts to an inference is discussed. At page 169 of the report Wright LJ
delivered himself as follows:-
“My Lords, the precise manner in which the accident occurred cannot be
ascertained as the young man was alone when he was killed. The court
therefore is left to inference or circumstantial evidence. Inference must be
carefully distinguished from conjecture or speculation. There can be no
inference unless there are objective facts from which to infer the other facts
which is sought to establish. In some cases the other facts can be ascertained
with as much practical certainty as if they have been actually observed. In
other cases the inference does not go beyond reasonable probability. But if
there are no positive proved facts from which the inference can be made, the
method of inference fails and what is left is mere speculation or conjecture.”
The above statement of law was adopted by our Supreme Court in the case of Bonsu
alias Benjilo v.The Republic (1998-1999) SCGLR 112 at 127 and the Court of Appeal
in Bonsu alias Benjilo v.The Republic (1997-98) 2 GLR 598 at 664. What the statement
means is that: inference must come from objective facts before the court and where
28
there are no positive proved facts from which the inference can be made, then what
is left is speculation or conjecture which have no value in our criminal jurisprudence.
Further the Supreme Court in the case of The State v. Ali Kessena (1962) 1 GLR
144 at 148 the court held as follows:
“Where therefore, the evidence adduced on behalf of the prosecution fails to

take the case out of the realm of conjecture, the evidence is best described as
insufficient. It is the type of evidence, which because it cannot convince,
cannot be believed and therefore is in capable of sustaining conviction. In
these circumstances it would be wrong in a summary trial to overrule a
submission of no case to answer.”
I ask the question, from the record are there proved facts that first Accused imported
the cocaine? Evidence clearly shows that Accused imported chewing gum as part of
her normal business. The evidence is Exhibit B and B1, the Bill of Lading. There is
also the packing list Exhibit 7 and the Pro forma Invoice, Exhibit 6 as well as Exhibit
5, the Bank transfer evidencing the payment of the goods ordered by the first
Accused in February 2009. It is important to note that both Exhibit 6 and 7 originated
from Confetica the manufacturers of the goods in Ecuador. So why has the first
accused been charged? To my mind the only reason that first accused was charged
was that she is the owner of the container in which the two bags were found.
Evidently, the two bags were found in the container belonging to the first accused,
however considering the circumstance surrounding the handling of the container
can one reasonably conclude or infer simpliciter that the Accused is the owner of the
two bags and she had knowledge of the contents?
The evidence is very circumstantial. In all criminal trials, proof beyond reasonable
doubt requires that inference from the surrounding circumstances must be one
which leads to an irresistible conclusion of guilt and not consistent with innocence.
See State v. Anami Fiadzo (1961) GLR 416 SC and Nyame v. The Republic (1971) 2
GLR 140.
Having stated the above principle in our criminal jurisprudence, I am not unaware
of the authority in R v. Taylor (1928) 21 Cr App Rep 20 at page 21 where Lord
Hewart CJ delivered as follows:-
“It has been said that the evidence against the applicant is circumstantial: so
it is, but circumstantial evidence is very often the best. It is evidence of
surrounding circumstances which by undesigned coincidence, is capable of
proving a proposition with the accuracy of mathematics. It is no derogation
of evidence to say that is circumstantial.”
29
Bearing in mind the law on conviction on circumstantial evidence I ask myself again
does the circumstantial evidence adduced irresistibly lead to one conclusion of
mathematical accuracy? My mind tells me No! Why, because there are too many
doubts surrounding the way the first accused container was handled and tampered.
Further I ask myself why will the first Accused a person described by the
prosecution as having 25 years experience in international commerce, if indeed
wanted to import cocaine to Ghana adopt such a modus. Getting 1,880 cartons of
chewing gum well packed with her business name and address labelled or inscribed
on the cartons as in Exhibit 8 and 9 and patently put on top of these cartons, two
unprotected bags containing the cocaine. This modus as I have observed contradicts
known practice of transporting narcotic drugs the world over. The custom of
transporting narcotic drugs is to have the substance concealed in or among objects or
concealed in the human body. Why will any reasonable person transport a narcotic
drug so patently in a container, knowing very well that on arrival the container will
be examined either physically or electronically? Indeed the further question is what
prevented the first Accused from concealing the 61 slabs of the cocaine that was
found in the two bags among the chewing gum in the 1,880 cartons.
To my mind the fact that the two bags were found in the container of the first
accused, does not lead to one irresistible conclusion. For example it could also be
argued that the container was broken into and the bags deposited on top the cartons
to incriminate the accused by whoever tampered with the seals. Much as one cannot
say for sure that the bags were put in the container just to incriminate the first
accused, it is a possibility making the circumstantial evidence leading to various
conclusions. In my opinion therefore several conclusions can be drawn from the
circumstantial evidence, some in support of the prosecution case and some in
support of the first Accused case.
I have already referred to the case of Dowuona v. The State (1964) GLR 361 SC
where Ollennu JSC delivered himself as follows:
“It is quite clear from this judgment that the conviction is based entirely
upon circumstantial evidence. The law on the point has been stated and
restated time and again. We will repeat it again: a court ought not to convict
upon circumstantial evidence; put in another form, there should not be
conviction unless guilt is the only inference which can be drawn from the
facts. Therefore where circumstantial evidence is consistent with guilt as well
as with innocence, the court must acquit.”
In Dowuona v. The State supra, the appellant was charged with five others on
counts of conspiracy to steal, stealing and forgery. He was acquitted and discharged
30
on the charge of stealing, but convicted on the counts of conspiracy and forgery. He
appealed against the conviction and sentence on ground that the verdict of the court
was not supported by the evidence. Hear what Ollennu,JSC delivered at page 364
of the report:-
‘’Again the reasoning of the learned circuit judge that because the
typewriter, exhibit R, alleged to have been the one used to forge the
documents exhibits A and B, was found in a public office in the house where
the appellant lived, and because the appellant works in the bank and has
access to serial numbers of the bank as a statistician, and also because a few
bank pay in slips were found in his room, therefore the appellant must be the
person who forged the documents, exhibits A and B, is fallacious; it is most
unreasonable to infer from those premises that the appellant and no other,
was the person who could have forged the documents exhibits A and B. That
finding is not a justifiable inference to be drawn from those facts, and
certainly not an irresistible inference which can be drawn from them. The
evidence does not even raise a strong suspicion’’.
In this case, I have already observed that the circumstantial evidence is consistent
with guilt as well as the innocence of the first accused; it thus demands the acquittal
of the first accused. In conclusion, I find it very unsafe to record a conviction against
the first accused on count two namely, importation of a narcotic drug, namely
cocaine without a licence issued by the Minister of Health contrary to Section 1(1) of
the Narcotic Drugs (Control, Enforcement and Sanctions) Act 1990, PNCDL 236.
Accordingly the first Accused is acquitted and discharged of all the two counts
preferred against her in this case. There is no evidence against the persons charged
together with the first Accused, described as others at large and beyond the
jurisdiction of this court. Accordingly the said persons are also acquitted and
discharged.
31

The Republic VS Augustina Abu in The Fast Track High Court

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DENNIS LAW ONLINE REPORT www.dennislawgh.

AUGUSTINA ABU AND OTHERS AT LARGE AND BEYOND THE

[HIGH COURT, ACCRA]

CASE NO. ACC 15/2010 DATE: 23RD DECEMBER, 2009

Engaging in criminal conspiracy to commit an offence namely importation of

Importation of a narcotic drug namely cocaine without a licence issued by the

THE PROSECUTION’S CASE

THE DEFENCE OF THE FIRST ACCUSED

Section 112(1) of the said Act provides as follows:-

‘’ Subject to the special rules as to indictments hereinafter mentioned, every

56(c) Any person who abets or is engaged in a criminal conspiracy to

(2)’’A person within the jurisdiction of the courts can be convicted of

by Viscount Sankey, LC in the case of Woolmington v DPP (1935) AC 462. The

“A person charged with a criminal offence shall be presumed to be innocent

‘’in any civil or criminal action the burden of persuasion as to the

evidence is circumstantial, the circumstances establishing the facts from which

‘’Conspiracy imports an agreement to commit a crime, and where there is no

“A court ought not to convict upon circumstantial evidence; put in another

However in view of the general paucity of reported judicial decisions in our

Section 1(1) of PNDCL 236 states as follows:-

a) The owner of the goods or merchandise

1. The import was prohibited

“TO WHOM IT MAY CONCERN

CONFITICA has a business relationship with Augustina Abu Enterprise since

CONFETICA C.A. is an Ecuador Company with 45 years in the market

Any additional information about the Confetica’s profile can be obtained in

Signed, Ricardo Lara Viteri

“Confetica as part of BASC is periodically audited and warrant that their

RE: SEIZURE OF 61 SLABS OF SUSPECTED COCAINE FROM

Your letter to us dated May 21st 2009 on above subject refers:-

a. No changes or amendments were made to the details of the shipment at the

Maersk Ghana Ltd.

“RE: REQUEST FOR INFORMATION OR CONSIGNMENTS IMPORTED

2. Extra seals are not given to shippers of containers.

5. Upon discharge of a container, the terminal should recognise if a seal has

6. To acquire seals, orders are placed to manufacturers mainly in Europe and

Acting Managing Director

Paragraph 5 of Exhibit F, points that on discharge of a container, the terminal should

“Where therefore, the evidence adduced on behalf of the prosecution fails to

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