Nyantechi v The Republic (CC16/060/2024) [2025] GHAHC 186 (13 February 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, SITTING AT SUNYANI, COURT ‘2’ ON THURSDAY THE 13TH DAY OF FEBRUARY 2025 BEFORE HER LADYSHIP JUSTICE WINNIE AMOATEY-OWUSU, JUSTICE OF THE HIGH COURT CASE NO: CC16/060/2024 EMMANUEL OSAFO NYANTECHI APPELLANT VRS. THE REPUBLIC RESPONDENT JUDGMENT The Appellant appeals against the judgment of the Circuit Court, Sunyani. He was arraigned before the trial court on 21st August 2020 on two charges based on the Public Health Act, 2012 (Act 851) and after a full trial, he was convicted on both charges and sentenced to pay forthwith, a fine of 7,500 penalty units on each charge, in default 24 months’ imprisonment IHL. The sentences were to run concurrently. Being aggrieved by the conviction and sentence, the Appellant filed the instant Petition of Appeal on 14th June 2024 pursuant to leave granted on 30th May 2024 by this Court, differently constituted. Page 1 of 14 The grounds of appeal are: a. That the judgment of the Circuit Court is against the weight of the evidence adduced at the trial. b. The trial judge erred when he held that the prosecution proved the guilt of the Appellant beyond reasonable doubt. c. The sentence is wrong in law. d. Additional grounds of appeal shall be filed upon receipt of the record of proceedings. A summary of the prosecution’s facts as contained on page 2 of the judgment of the trial court is that the Appellant is a nutritionist and owner of the sole proprietorship named Organic Heaven Naturals. Prior to his arraignment, he used to work as a dietician with Healthy Living and Organic Lifestyle Consult, Sunyani (hereinafter “HLOLC”). On 10th May 2019, Regulatory Officers from the Food and Drugs Authority (hereinafter “the Authority”) in the course of their regulatory activities in and around the Sunyani environs, went to the premises of HLOLC, where they conducted a search which led to the discovery of unregistered food supplements belonging to the Appellant that they seized. Further investigations revealed the Appellant had made some advertisements pertaining to the types of services he offered and the products available for sale. The Authority wrote a letter to the Appellant to stop the production, sale and distribution of the unregistered food supplements and take steps to have them registered but he failed to comply with the directives. Page 2 of 14 Subsequently, on 30th August 2019 when some officials of the Authoirty went to invite the Appellant for a meeting with their Head scheduled for 2nd September 2019, they met him at the SDA Hospital, Sunyani with some unregistered food supplements on his desk and in his drawer and seized them after they had delivered the message to him. When the Appellant failed to show up for the scheduled meeting, the Authority imposed an administrative expense of GH¢25,000 on him which it communicated by a letter dated 9th September 2019 that required the Appellant to make payment by 30th September 2019 and also stop the production, sale and distribution of the unregistered food supplements and take steps to have them registered. Yet again, the Appellant failed to heed the directives and a pliant was lodged with the Police leading to his arrest and arraignment before the trial court. The law is settled that an appeal is by way of rehearing. As such, my duty in this appeal is to evaluate the entire evidence on record to determine based on the facts and law, if the guilt of the accused was proved beyond reasonable doubt. In Amankwah v. The Republic (J3/04/2019) (2021) GHASC 27 dated 21st July 2021, the Supreme Court through Dotse JSC explained the principle as pertains to criminal cases as follows: “… applying the above principle in a Criminal Appeal might result in the Court embarking upon the following, to analyze the entire Record of Appeal and this must include the charge sheet, the Bill of Indictment (where applicable), the witness statements of all witnesses, all documents and exhibits tendered Page 3 of 14 and relied on during the trial, as well as the evidence during testimony and cross examination. To satisfy itself that the Prosecution has succeeded in establishing the key ingredients of the offence charged against the Appellant beyond reasonable doubt. And that the entire trial conformed to settled procedures under the Criminal and Other Offences Procedure Act, (Act 30) and that the acceptable rules of evidence under the Evidence Act (NRCD 323) have been complied with including the Practice Directions issued following the decision in the Republic vs. Bafffoe–Bonnie and 4 Others (2017-2020) 1 SCGLR 327 case.” Be that no additional issues were filed by the Appellant and no argument was advanced by counsel for the Appellant relative to ground (c) in his written submission, ground (c) is deemed abandoned and the only grounds to be discussed in this Judgment are ground (a) and (b). On count one, the Appellant was charged with advertising unregistered food supplements to the public, contrary to Section 114(1) and 129 of Act 851. Per the Particulars of Offence, the Appellant is said to have, on or around May 2019, at Sunyani in the Bono Region, advertised for sale some unregistered food supplements. On count two, the Appellant was charged with selling unregistered food supplements to the public, contrary to Section 118(1) and 129 of Act 851. Per the Particulars of Offence, the Appellant is said to have, on or around May Page 4 of 14 and August 2019, at Sunyani in the Bono Region, sold some unregistered food supplements to the public. It is important to state that whereas Section 114(1) and 118(1) are the offence creating sections, the punishment for the offences is prescribed in Section 129. It is provided in Section 114(1) that, “A person shall not advertise a drug, a herbal medicinal product, cosmetic, medical device or household chemical substance to the general public as a treatment, preventive or cure for a disease, disorder or an abnormal physical state, unless the advertisement has been approved by the Authority.” To successfully prove the charge, the prosecution must prove that: a. The Appellant advertised a drug, herbal medicinal product, cosmetic, medical device or household chemical substance to the general public; b. The drug, herbal medicinal product, cosmetic, medical device or household chemical substance was advertised as a treatment, preventive or cure for a disease, disorder or an abnormal physical state; and c. The advertisement was not approved by the Authority. It is also provided in Section 118(1) of Act 851 that “A person shall not manufacture, prepare, import, export, distribute, sell, supply or exhibit for sale a drug, herbal medicinal product, cosmetic, medical device or household chemical substance unless the article has been registered by the Page 5 of 14 Authority.” To successfully prove the charge, the prosecution must prove that: a. The Appellant manufactured, prepared, imported, exported, distributed, sold, supplied or exhibited for sale a drug, herbal medicinal product, cosmetic, medical device or household chemical substance; and b. The drug, herbal medicinal product, cosmetic, medical device or household chemical substance has not been registered by the Authority. I must point out that the documents filed in this Court in furtherance of the appeal consist only of a 26-page record of proceedings and the 20-page judgment of the trial court delivered on 5th July 2023. The Witness Statements of the prosecution witnesses and the Appellant; and the documents tendered during the trial were therefore not available for my consideration. At the time the case first came before me, the parties had already filed their written submissions. From the evidence on record, there is no dispute that sometime in May 2019 and August 2019, officials of the Authority visited HLOLC and the SDA Hospital respectively where they met the Appellant with some items or products which they seized from him. Based on the interpretation of the words “advertisement”, “sell”, “sale” and “selling” under Section 149 of Act 851, the trial judge rightly held that the items or products seized from Page 6 of 14 the Appellant had been advertised and were being sold. There is further undisputed evidence on record that whereas some of the products or items seized had labels, others did not. PW1, a Regulatory Officer with the Authority described the items or products seized as food supplements. The trial judge recognized that the Respondent bore the burden to establish that the items or products seized fell within the class of products mentioned under Section 114(1) and 118(1) of Act 851, and was further mindful that Act 851 did not define nutritional supplement nor food supplement. After resorting to “operational definitions from medical, health, and ordinary dictionary” as well as interpretation under Section 149 of Act 851 to determine the description and or definition of the class of products mentioned in Section 114(1) and 118(1), and further resorting to “the ordinary dictionary or any medical dictionary or institute for solution”, the trial judge arrived at the conclusion that nutritional supplements or food supplements are drugs under Act 851 and that Section 114(1) and 118(1) “need not specifically mention food supplement to cover food supplements as a regulated substance.”. This finding by the trial judge is the pith of this appeal. As expected, counsel for the Respondent does not find fault with the trial judge’s finding nor his resort to the dictionary or ordinary meaning of the words “drug” and “food supplement” in evaluating the evidence at the trial. She said what the trial judge did was in accord with the law and was Page 7 of 14 the only way of doing justice to the case. She submits that, “All that counsel for the Appellant has tried doing both at the trial level and in this appeal is to capitalize on the gap left by Act 851 in not defining nutritional supplement to traverse justice. However, the courts in their wisdom have sealed such loopholes in legislations through interpretation….” On the contrary, counsel for the Appellant argues that Section 114(1) and 118(1) of Act 851 under which the Appellant was charged and convicted do not prohibit the advertisement and sale of food supplements. That none of the prosecution witnesses was able to clearly convince the court that the term “food supplement” is the same as “a drug, herbal medicinal product, cosmetic, medical device or household chemical substance”. He said “What the judge did was to enter into unrestrained academic discourse to ascertain from unknown sources to determine whether the exhibits fall within the prohibited items under the law. Even though the word “drug” is defined under Section 149 of Act 851, the trial judge resorted to ordinary definitions instead of limiting himself to the provisions of the law.” Counsel for the Appellant submits further that although Act 851 defines drug to include “nutritional supplements”, “nutritional supplements” have not been defined under the Act and no examples of what constitute nutritional supplements have been given. Strangely, the trial judge sought to use “nutritional supplements” and “food supplements” interchangeably, which is a clear error on his part. He contends that if the law marker wanted Page 8 of 14 to prohibit the advertisement or sale of food supplements, they would have expressly done so. He posits that it can never be correct that food supplements and nutritional supplements are the same under Act 851 and that in any case, Section 114 and 118 of Act 851 under which the appellant was charged, never mentions food supplements but rather “food supplement” was used in the Charge Sheet. Again, counsel urges on the Court that the trial judge ought to have ordered the exhibits to be tested scientifically to ascertain their nature and constituent elements and that the trial judge’s view of the exhibits was mere guesswork without any scientific basis. Based on the samples of items or products tendered at the trial and listed on page 13 of the judgment (Exhibit E13, E14, E15, E16, E17, E20, E21 and E22) and the interpretation provided under Section 149 of the Act, it can easily be concluded that the aforementioned exhibits are not herbal medicinal products, cosmetics, medical devices or household chemical substances. The remaining product class is thus, drugs which is interpreted in Section 149 of the Act to include: “(a) a substance referred to in a publication mentioned in the Fourth Schedule, (b) a substance or mixture of substances prepared, sold or represented for use in Page 9 of 14 (i) the diagnosis, treatment, mitigation or prevention of disease, disorder of abnormal physical state or the symptoms of it, in man or animal, or (ii) restoring, correcting or modifying organic functions in man or animal, and (c) nutritional supplements.” So, what evidence did the Respondent lead before the trial court to prove that the products or items seized fell within the class of drugs Section 114(1) and 118(1) of the Act? Relevant portions of PW1’s cross-examination on page 6-8 of the record of proceedings are reproduced below: Q: As far as prohibited advertisement is concerned the Act 851 relates to drugs, herbal medicinal products, cosmetics, medical devices and household chemical substances, is that correct? A: Yes, please Q: Do you agree with me that any advertisement of any product other than those I just mentioned cannot be unlawful? A: I agree with you to some extent. However if you take some of the products ie. Drugs it involves herbal medical products also involves others like food supplements although it has not been stated as such. So food supplement are included. (sic) Q: Can you tell the court what a food supplement is? Page 10 of 14 A: With my knowledge as a regulator, without defining, these are products that have not been classified for treatment. However, they are product (sic) that are mostly used for prevention and protection of certain conditions (health conditions). Q: Please, in the light of your lay man’s definition of food supplement, tell the court if any of the exhibits you tendered contains food supplements? A: I cannot give the specific health condition. However, on the seizure notice there is no information as to what products it is. When we went to the facility to seize them, the products had labels indicating the prevention or control of certain health condition on them. If I had the products here, then we could have identified which of them is for which condition. They are plenty. Q: Now I put it to you that on the face of your exhibits there are no specific food supplements written on any of them? A: My lord, I strongly disagree. I think, for us to be able to prove your statement we need to have the real products with us which will indicate that these are real food supplements. Relevant portions of PW2, the investigator’s cross-examination on page 16- 18 of the record of proceedings are also reproduced below: Q: Can you confirm to this court whether E series are one and the same product? A: They are not the same product. Page 11 of 14 Q: Do you identify any food supplement in Exhibit E series? A: Yes, my lord. Q: Tell the court what food supplement is? A: My lord although I am not a technical person, what I know about food supplement is that they are edible substances taken to supplement food deficiencies. When PW2 was handed Exhibit E-E12 to tell the court what they were, he answered that although he did not personally know what they were, the Authority said they were food supplements. Further, when he was asked whether Exhibit E13-E22 were food supplements, he answered that “According to the FDA, who are mandated to regulate food say these are food supplement.”(sic) He finally admitted he had no technical knowledge of the products tendered in evidence. From PW1 and PW2’s cross-examination, it is obvious their descriptions of food supplements are different. Whereas PW1 describes them as products mostly used for prevention and protection from health conditions, PW2 described them as edible substances taken to supplement food deficiencies. There was nothing from PW1 suggestive that his description of food supplement was based on a criteria defined by the Authority or any authoritative scientific source. It was based on his personal knowledge. The use of the word “include” in the interpretation of “drugs” in Section 149 of Page 12 of 14 the Act means the list is not exhaustive and the Authority in furtherance of its mandate under Section 81 of the Act may determine a product or item which is not already covered to be a drug. There is also no controversy that the Act does not define or describe “nutritional supplements”. Based on the Authority’s mandate to provide and enforce standards for the sale of food, herbal medicinal products, cosmetics, drugs, medical devices and household chemical substances, it is my considered view that the determination of what a nutritional supplement or food supplement is ought to be based on its scientific or technical meaning as determined by the Authority. To my mind, “nutritional supplement” and “food supplement” are not legal terms and as such, appropriate scientific or technical evidence should have been led to assist the trial court in its evaluation of the evidence. The Respondent failed to adduce evidence of the Authority’s definition of nutritional supplement and food supplement based on which the trial judge could have evaluated the available evidence. The Respondent equally failed to tender any Report to show that the seized items or products were submitted to the Authority for examination and analysis and a determination was made that they were indeed nutritional supplements or food supplements which are considered drugs under the Act. From the impugned judgment, it seems the trial judge rather took upon himself the burden of proof and made reference to information in pharmacy, pharmacology and other areas whose sources he failed to disclose. The fact Page 13 of 14 that judges may through judicial interpretation fill in gaps in the law does not mean judges should turn themselves into experts in areas where it is clear that expert evidence or scientific reports are required to prove a fact in issue. The Respondent failed to prove that the items or products seized from the Appellant were food supplements and that they fell within the class of products mentioned in Section 114(1) and 118(1) of Act 851. The Appellant’s conviction cannot be supported having regard to the evidence on record. As a consequence, the appeal is allowed and the conviction and sentence on both counts is set aside. The Appellant is acquitted and discharged. SGD. WINNIE AMOATEY-OWUSU JUSTICE OF THE HIGH COURT APPELLANT ABSENT COUNSEL: 1. DANIEL KORANG ESQ. FOR THE APPELLANT ABSENT 2. MICHAEL BAAFI ESQ. (PSA) WITH COMFORT KWAKYE ANTWI FOR THE RESPONDENT Page 14 of 14