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The Court of Appeal Constituted by Gifty Adjei Addo, Barima Yaw Kodie Oppong and Jennifer Myers Ahmed JJA has set straight the ingredients of the offence of possession of a narcotic substance and the threshold of proof for the ingredients of the offence.
In a well laid out decision of the Court which was unanimous on the principle of law with a divergent view on the acquittal of the 1st Appellant, the Court reversed a conviction and punishments of the three Appellants for the failure of prosecution and the trial Court to address the ingredient of possession of a narcotic drug without lawful authority.
At page 39 of the reported decision, the Court held that, "[96] There is no finding in the judgment, express or implied, on this element in respect of either Appellant. There is no consideration of whether either of them put forward, or could have been said to have put forward, any case of lawful authority on the evidence; and there is, correspondingly, no judicial assessment of the strength or weakness of any such case. The element was, in plain terms, not engaged at all."
Case background
On the night of 13th October 2021, officers of the Narcotics Control Commission (NACOC) acting on intelligence, intercepted two tipper trucks as they were being driven away from a river bank loading point. The trucks bore registration numbers GT8494-20 and GT-8497-20. They were being driven respectively by the 1st and 2nd Appellants. A search conducted at the scene uncovered in the 1st Appellant's vehicle, 59 sixty (60) sacks and in the 2nd Appellant's vehicle, sixty-four (64) sacks of compressed dried leaves. The sacks were closed, tied and opaque. Their contents became visible only upon their being torn open by the arresting team. The government chemist's report, in due course, identified the leaves as cannabis.
The Appellants were tried and convicted. Upon conviction, the 1st and 2nd Appellants were each sentenced to ten (10) years imprisonment with hard labour (IHL) and fines of ten thousand (10,000) penalty units, or three years in default, on each of Counts 1 and 2; and similarly sentenced on Counts 3 and 4. The 3rd Appellant was sentenced to twelve (12) years imprisonment on Counts 5, 6, 7 and 8, to run concurrently.
3 days ago
6th Jul, 2026
30th Jun, 2026
16th Jun, 2026
15th Jun, 2026
Ingredients of possession of narcotic drug
In admirable eloquence, the Court of Appeal in the voice of Oppong JA summed up the ingredients and the threshold of proof in the following words: "[63] A close reading of section 37(1) of Act 1019 reveals that the offence of possession of a narcotic drug is constituted by three distinct elements, all of which must, by the close of trial, be found established beyond a reasonable doubt before a conviction can lawfully be entered. These are: (i) possession or control of a narcotic drug; (ii) for use or for trafficking; and (iii) the absence of lawful authority. The opening words of the section, "A person who, without lawful authority … has possession or control of a narcotic drug … commits an offence," do not merely describe a defence available to the accused; they form an integral part of the very definition of the offence."
[65] The element of "without lawful authority" is therefore to be assessed by the court at the conclusion of the trial in the same way as the other elements; as one of the matters on which the court must, on the whole of the evidence, be satisfied beyond a reasonable doubt before a conviction is entered.
Trial Court failing to assess "lawful authority"
In a voice seeking to address a shortcoming of trial courts and ensure fair and unimpeachable convictions for narcotic crime, the Court firmly registered a note to prosecutors and trial courts that "as a matter of necessity, when a narcotic drug case is placed before them and the accused is charged with relevant offences under Act 1019, they are to ensure that, the issue of whether or not the accused had lawful authority to possess the subject narcotic drug has been adequately engaged and disposed of. Our review of the numerous cases on this subject has led us to issue this word of reminder: as often is the case, that key element, which may arguably be the most important of all the elements of the offence, has been completely brushed aside or untouched."
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