S v Badu (CC15/024/2024) [2025] GHAHC 204 (10 February 2025)

1|Page INTHESUPERIOR COURT OF JUDICATURE, HIGHCOURT OF JUSTICE COMMERCIAL DIVISION‘’A’’HELDATSUNYANI ON MONDAY THE10TH DAY OF FEBRUARY, 2025BEFORE HISLORDSHIP JUSTICEHARRY ACHEAMPONG- OPOKU ESQ. SUIT NO. CC15/024/2024 THEREPUBLIC VRS. NANA AGYEMANGBADU JUDGMENTON RULING OF SUBMISSIONOF NOCASE BY COUNSEL FOR ACCUSED/APPELLANT Itisprovided in section 174(1)ofcriminal procedureAct, Act 30of1960asfollows:- “At the close of the prosecution’s case or the evidence in support of the charge, if it appears to the court that a case is made out against the accused sufficiently to require him to make defence, the courtwill call uponthe Accused toopenhis defence”. 2|Page In view of this it has become an essential principle of our criminal justice that unless a prima facie case has been made against the Accused the court must not call on him to open his defence. Prima facie case means the accused has a case to answer and that if accused doesnotoffer any explanationhe will be convicted. Inourinstant appeal, afterthe close of the prosecution’scase the Appellant’scounsel’s filed a submission of no-case. The trial court after considering the submission and evidence led by the prosecution ruled that a prima facie case has been established against the Accused/Appellant he therefore in his ruling dated 29th February, 2024 ruled that prima facie case has been made against the accused/Appellant and therefore called on the accused/Appellant to openhis defence. However, the Accused/Appellant be dissatisfied with the said ruling on 15th March, 2024 filed Notice of Appeal against the said ruling by the trial court. The grounds of Appeal filed by the Accused/Appellant are; (a) That theruling was against the weight ofevidence. (b) Additionalgrounds ofappealshall be filed uponreceipt ofthe proceedings. However Accused/Appellant additional ground of appeal was filed on 8th July, 2024. This clearly shows that at the time the accused/Appellant filed his additional ground of appeal, he was out of time and ought to have sought the leave of court, before filing the additional 3|Page ground. In view of this I would ignore the additional ground of Appeal since it was filed withoutthe leave ofcourt. Therefore the only ground of appeal for me to consider as appellate court is ground (a) “ThatRuling wasagainst the weight ofevidence” Argumentsin respect oftheAppellant’sgroundsofappeal In arguing ground 1or (a) of his appeal, counsel for the Accused/Appellant argues that where an appellant raises this Omni bus ground of Appeal, the Appellate court has a duty to rehear the case and decide for itself whether or not the trial court judgement is supportedby the evidence onrecord. Counsel for the Accused/Appellant then refer to the case of Djin Vrs. Musah Bako (2007- 2008) JSC GLR 686 and quoted the principle of the law as follows, that is where an Appellant complaint that a judgement is against weight of evidence, he is implying that there were certain pieces of evidence on record which if applied in his favour could have changed the decision in his favour or certain pieces of evidence have been wrongful applied against him. Counsel for the Accused/Appellant further quoted the following authorities to buttress this point oflaw namely; Tuakwa Vrs. Bosom (2001-2002 SC GLR61Abbey Vrs.A (2010) SCGLR17 4|Page Brown VrsQuashiga Arye &Akakpo Vrs. Amina Iddrisu (2010) Counsel for the Accused/Appellant also avers that it is a settled law that when appeal is against weight of evidence on record the Appellate court is bound to consider conclusively the entire evidence on record before coming to conclusion on the matter. Counsel then humbly submitted that the trial court failed it duty to apply all the pieces of evidence laid before the court, before it came to conclusion that the prosecution has established a prima facie case against the Accused/Appellant. Counsel for the Accused/Appellant further submitted that appeal is by way of rehearing and therefore entreated the appellate court to apprise itself to the entire record of proceedings to determine whether the prosecution has established a prima facie case to enable the trial court to call on the Accused person to open defence. Furthermore according to the counsel for the Accused/Appellant the Accused was charged with the offence of; Prohibited sale of drugs contrary to section 111 (a) (i) (ii) and (b) of the public Health Act of 2012, Act 851. In view of the counsel for the Accused/Appellant that at the close of prosecution case it was clear that the prosecution failed to lead evidence to prove an essential element of the offence and also the evidence adduced by the prosecution witnesses was discredited during cross-examination by the counsel for the Accused that it became manifestly unreliable and that no reasonable court could safely convict to support 5|Page this assertion. Counsel cited the cases of; State Vrs. Annan (1965) GLR State Vrs. Ali Kasena (1962) 1GLR144. According to the counsel for the Accused/Appellant the essential element of the offence charged was that, when a Person Sells drug herbal medicinal product, Cosmetic, Medical devices or house hold chemical substance which has in it or on it a substance that may cause injury tothe healthofthe user whenthe article is used. According to the counsel the fact that the drugs were displayed at the shop of the Accused/Appellant did not amount to selling, according to the counsel selling is fundamentallycontractualin naturewhichevokesthe element ofavalid contract. And as a valid contract the basic element of offer and acceptance and provision of consideration. Counsel for the convict/Appellant avers that in our instance case no offer was made neither was there an acceptance and consideration. According to counsel none of the prosecution stated that, he or she went to the Accused shop to buy drugs, according to them all that they said was that, when they entered the Accused/Appellant all that they saw was expired drugsbeing displayed at Accused store. Hence according to the counsel for convict/Appellant mere displayed of the expired drug at the accused/Appellant shop did not amount to selling and to support this point counsel 6|Page cited the famous English case of Fisher Vrs. Bell (1961) QB 394 and sale of Goods Act, of 1962,Act 137. Finally counsel asserted that on the authority of Fisher Vrs. Bell and sale of GoodsAct, Act 137, the prosecution woefully failed to prove its case against the Accused and it was therefore wrong for trial court to dismiss his submission of no case to answer and calling on the Accused to open his case, since evidence led by the prosecution has not proved prima facie case against the Accused/Appellant onissue of additional ground of appeal as I havereiteratedearlier on, I wouldnot lookatit, since it was filed without the leaveofcourt. Argumentsoftheprosecutionin Response toAppellantssubmission Counsel for the Respondent in response in her written response also argues that appeal is by way of re-hearing, therefore where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of evidence, citing the cases of Asafoatse Lawer Kormor Djabahor Vrs. Tettehyum & Ors. Supreme Court, Civil Appeal NoJ4/1/2010 9/6/2010, held that in such circumstance the Appellate Court can only interfere withthe findings ofthetrial courtif; (a) The court hastakeninto account matters which were irrelevantinlaw. (b) The court excluded matterswhichwere critically necessaryfor consideration (c) The court has come to a conclusion which no court properly instructing itself would havereached. 7|Page (d)The court’s findings were notproperinferencesdrawnfromthe facts. Hence according to the counsel for the Respondent at the end of prosecution case in a criminal trial the prosecution must establish a prima facie case in supporting this assertion counsel cited the cases of Mali Vrs. The State (1965) GLR 710, Ali Kassena Vrs. The State (1962) GLR 144, Tsatsu Tsikata Vrs. The Republic (2003-2005) 2 GLR 294, Moshie Vrs. The Republic (1977) 1GLR 287 and therefore counsel avers that from the cases, she had cited supra the grounds that would necessitate a court to acquit or discharge accused is whenaprima facie was notestablished by the prosecution in the case. Counsel further referred to the case of Kwabena Amaning @Tagor & Anor. Vrs. The Republic (2009)2 MLRG 78 where Apau J.A. (as he then was)in stating what amount to prima facie, statedasfollows; “The paramount consideration in deciding whether prima facie case has been made or not is whether the prosecution has proved all the essential ingredients of the offence charged”. Counsel says that Accused/Appellant was charged with the offence of prohibited sale of drugs contrary to section 111 (a) (1) (ii) and (b) of (Act 851). According to counsel for Respondent section 111ofthePublic HealthAct, 2012(Act 851)provides as follows; “A person commits an offence if that person sells a drug, herbal Medicinal product, cosmetics, Medical device or Household Chemical substance which; 8|Page (a) Has in or on it a substance that may cause injury to the health of the user when the article is used (i) According to the directionson the labelaccompanying the article; or (ii) Forapurpose and byamethod of use that is tocustomaryor usual (b)Consists in whole or in part of a filthy, rotten, decomposed or diseased substance orof aforeignmatter likely to cause injury”. In view of this, according to counsel for the Respondent to prove the offence of prohibited sale ofDrugspreferred against theaccused/Appellant the prosecutionmust establish that; (1) Accused sold a drug, herbal medicinal product, Cosmetic Medical device or household chemicalsubstance. (2) The drug contained substance that maycause injury tothehealth oftheuser. According to the counsel for the Respondent the key ingredient in the offence charged the wordsells, andthat section149ofAct 851defines sellas follows; “Sell” or “Sale” includes sell or sale by wholesale or retail offer, advertise, keep, expose, display, transmit, consign, convey or deliver for sale or authorize, direct or allow a sale or prepareor possess for sale and barterorexchange supply or dispose ofto apersonwhether foraconsideration. “Selling” includes offering for sale, exposing for sale and having in possession for sale or distribution. 9|Page According to the counsel for the Respondent section 149 of Public Health Act, 2012 provides its ownmeaning ofoffering exposing display. In view of this there is no need to refer to general meaning of sell or refer to law of contract or sale of goods Act as resorted to by the counsel for the Appellant in order to arrive at the meaning of sell as envisaged under the law of contract. That Act 851 is a specific law on public health and over-ride the sale of Goods Act in matters relating to sell of drugs. And also the Acttakesprecedence ofcommonlaw in this instance common lawofcontract. In nutshell counsel for the Respondent avers that from the particulars of offence the Accused/Appellant had displayed these expired drugs on shelves of his shop for sale and some packed in boxes in his chemical shop. And fromAct 851 prosecution was to establish that Accused/Appellant did sell adrug in any of the ways stated under section 149and that same was harmful to human health, to prove this the prosecution called 3 witnesses, especially PW1 a senior Regulatory Officer FDA, who stated that the expired drugs that were been sold by convict/Appellant had been displayed at the shelves of the shop of the Accused/Appellant. According tocounsel for the Respondent PW1 in an answer to question asked by Appellant counsel in cross-examining PW1 it emerged that drugs that were seized were displayed on theshelves ofthe Accused/Appellant shop. 10|Page And furthermore the seize drugs were all expired and that they took inventory of the expired drugs and gave the seizure Notice in which note the name drugs, batch numbers quantities was given to the Accused/Appellant who acknowledge it by signing it. Counsel for the Respondent finally submitted that the prosecution from the evidence led and answers to questions asked during cross-examination indicated that, the prosecution succeeded in establishing prima facie case against the Accused/Appellant therefore, the trialjudgementwas right indismissing accused submission ofnocase toanswer. DETERMINATION OF THE APPEAL BY THE APPELLATE COURT The counsel for the Accused/Appellant has argued that the judgement of the trial court was against theweight ofthe evidence led at thetrial. It is a trite learning that appeal to this court is by way of re-hearing and the settled jurisprudence on the principle that an appeal is in the nature of a re-hearing, is that this appellate courthas adutytoexamine andscrutinize theentire record to determine whether the pieces of evidence both oral and documentary. Including exhibits, oral and written submissionsofcounsel onrecord supportthe decision ofthetrial court. In doing so the court as the Appellate court can draw its own inference from the established fact and could set aside the ruling of the trial court. See King Vrs. Gyan (2017- 2020)1 SC GLR912 and Koglex Limited (No. 2)Vrs. Field (2000)SC GLR 175. It must also be borne in mind that numerous decisions in support of the principle that an appellate 11|Page court should not interfere with findings of fact made by trial court and that the only occasion it would do so was if there was no evidence in support of the findings, or reasonable doubt of evidence weighed heavily against the findings or that inference from the findings were wrong see for example, Atadi Vs. Ladzekpo (1981) GLR 218, In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. Vrs. Kotey & Ors. (2003-2004) 1 SC GLR 420 @ 447 and In re-Yendi Skin Affairs; Yakubu II Vrs. Abdulai (No. 2) (1984-88) 2 GLR 239. Applying the legal principle established by these authorities that I have referred to, I think the trial court was right in dismissing the submission ofno case to answer made by counsel forthe Accused/Appellant. The fundamental issue for determination of this interlocutory appeal is whether or not the trial court was right in dismissing the Accused/Appellant motion for submission of no case toanswer. Inhis ruling thetrial judgestated asfollows; “The cases and submission made suggest that the court ought to consider the intentions of the party making the display of the products …...the court may conclude whether displaying the product amounted to an offer or an invitation to treat. In all situations court is urged to decipher the intention behind the act……….from the foregoing the court finds that distinguishing features of a display amounting to an offer to sell is the intention of the seller. There is sufficient evidence of display of expired products on 12|Page shelves as well as in boxes in the chemical shop. The main issue for the court to resolve, therefore is whether the display demonstrated an intention to sell? this court finds, under provision of section 11 of Act 29 that an accused sufficiently demonstrated an intention to sell the expired products to the general public which intention could have materialized into contract of saleagreement. The court, therefore holds that the prosecution has established the existence of all the elements of the offence laid before the court and a prima facie case has been established against the Accused the court shall offer him the opportunity to make a defence of the prosecution case”. The Accused/Appellant arguesthat this conclusionreached by thetrial judgewas wrong. The evidence on record is that the Accused/Appellant was charged with the offence of “Prohibited” sale of Drugs Contrary to section 111(a) (i) (ii) and (b) of public Health Act, 2012,Act851. The brief facts of the case was that the complainant herein are officials from the Regional Food and Drug Authority and live at Sunyani whilst the Accused person lives at Chiraa. On 28th March, 2022, the complainants embarked on an exercised to clamp down on activities of Licensed Chemical Sellers who are believe to be dealing in expired products. In the course of the exercise, the complainants visited the Accused person chemical shop at Chiraa where a search was conducted at his premises. The search revealed quantities of 13|Page various expired drugs which included zinc oxide, Malin Baby Cough, Malin junior cough, lucky herbalmixtureandkiss condomandothers. The Accused person was subsequently arrested and the expired products seized. The Accused person together with the seized expired drugs were handed over to Regional CID, Sunyani for further investigations. The Accused Person was re-arrested and during the investigation the Accused Person admitted that, he was aware of such expired drugs and that he had packed them yet to inform Food and Drug Authority for collection and necessary action. After investigations, he was charged and put before the Honourable Court. It is of importance to note that, when the accused was arraigned before the trial Circuit Courthe pleaded notguilty tothe said charge of“Prohibited sale of Drugs”. Under such circumstance it behooves on the prosecution to at least lead evidence to prove the essential elements of the offence charged against the Accused. If the prosecution succeeds then the court would then call upon the Accused to open his case, because at this stage of trial, the prosecution evidence is rebuttable and until the Accused is able to rebutt themhe would be found guilty ofthe offence. Hence the Accused would only be called to open his defence only if the prosecution at this stage of trial has been able to prove the essential elements of the offence against the Accused. 14|Page Infact inthe Canadiancase ofR Vrs.P (MB)(1994) 1SCRJ51 LamerCJ statedas follows; “Perhaps the single most important principle in criminal law is the right of the Accused not to be forced into assisting in his or her own prosecution this means, in effect, that an accused is under no obligation to respond until the state has succeeded in making out prima facie case against him orher. The question thenis what is ‘Prima facie case. Black law Dictionary 9th Edition defines prima facie – as sufficient to establish a fact or raise apresumptionunless disproveorrebutted. Italso defines prima facie case as; (i) The establishment oflegallyrequired rebuttable presumption. (ii) A party’s production of enough evidence to allow the fact trier to infer the fact at issue and rule inthe party’sfavour. In Ghana it is an essential principle of our criminal justice that unless a prima facie case has been made against the Accused, the courtmust not call onhim toopenhis defence, in other words prima facie case, is the threshold that the prosecution must reach, in order to call the accused toanswer, andifhe doesnot offer anyexplanation he would be convicted. In Tsatsu Tsikata Vrs. The Republic (2003-2004) SC GLR 1068. The Supreme Court stated thatthe scope ofduty ofthetrial judgewhen considering asubmission ofno case thus; 15|Page “It does appear to us that on a submission of no case the judge’s function is essentially to determine whether there is genuine case for the trial this enquiry has to focus on the threshold question whether the evidence presents sufficient disagreement to require submission for a full trial or whether it is one-sided that one party must prevail as a matter of law put another way the inquiring is whether there are any genuine factual issues that can properly be resolved only by a finder of fact because they may reasonably be resolved in favourof either party ”. Nowcoming toourinstant mattertheAccused/Appellant was charged withthe offence of; Prohibited sale ofDrugscontrary tosection 111(a)(1) (ii) and(b)ofpublic Health Act, 2012Act 851 The law readsas follows; “A person commits an offence if that person sells a drug, herbal medicinal product, cosmetic, medical devices orahousehold chemical substance which (a) Has in or on it a substance that may cause injury to the health of the user when the article is used”. (i) According to the directionson the labelaccompanying the article or (ii) Forapurpose and byamethod of use that is customary. 16|Page (b) Consists inwhole or is partof afithy rotten, decomposed or diseased substance orof foreignmatter likely to cause injury. Therefore for the prosecution to prove the essential ingredient of the offence of prohibited sale of drugs against the Accused then the prosecution must lead evidence to prove this essential ingredient thatis; (a) That the Accused sells or sold a drug, herbal medical product, cosmetic medical device orhousehold product (b) That by it label the said drug, herbal medical product, cosmetic or household chemicalsubstance hasexpired. (c) That as a result the use of such product is likely or may cause injury to the health of theuser. Hence if the prosecution is able to prove this essential ingredient in the said offence charged then it would be said that the prosecution has passed the judge, in other words the prosecution has reached a threshold in the case, that if the Accused is not called to give evidence in order to rebut the evidence so far led by the prosecution the Accused would be convicted, because at this stage it is said that the prosecution has been able to prove prima facie case against the Accused. However, apart from these ingredients enumerated above the prosecution must also prove that the Accused/Appellant sells or sold the said prohibit drugs however, it must be noted 17|Page that the word sells is not a term of art as used in the law, but has been given specific meaning by the law. Indeed section 149ofthelaw Act 851 definessell asfollows; ‘Sell’ or ‘Sale’ includes sell or sale by wholesale or retail, import offer, advertise, keep, expose, display, transmit, consign, convey or deliver for sale or authorize direct or allow a sale or prepare or possess for sale and barter or exchange, supply or whether for consideration or otherwise Selling includes offering for sale and having in possession for sale ordistribution. From the above meaning given by the Act displaying a product in a shelf would amount to sale orsell. Therefore the counsel for the Accused/Appellant argument that the display of the said expired product by the Accused/Appellant amounted to invitation to treat is not tenable and not applicable under thelaw. Perhaps the only thing that counsel for the Accused/Appellant can do in order to prove to the court that the prosecution has failed to make a prima facie case against the Accused/Appellant is to come under the Ali Kassena principle which was reiterated by Hayrom Benjamin J (as he then was) in the case of State Vrs. Annan & Ors. (1965) GLR 600 @ 603,thatis; 18|Page “It seems to me therefore that a submission of no case ought to be upheld in trials on indictment if the judge is of the view that the evidence adduced will not reasonably satisfy a jury and this I think will be the case first when the prosecution has not led evidence an essential element or ingredient in the offence charged and secondly where the evidence adduced in support of the prosecution has been so discredited as a result of cross-examination or is so contradictory or is so manifestly unreliable that no reasonable tribunal orjury could safely convict upon it”. This however, thecounsel for theAccused/Appellant failed woefully toprove. However, on the contrary the prosecution was able to prove the essential elements of the offence charged against the Accused and therefore was able to make prima facie case against theAccused/Appellant For example in course of given evidence PW1, Abena Ayisaa an officer from the Food and DrugsAuthoritystated asfollows; “……….wespotted one licensed chemical shop at7:40pm and operating. As usual we inspected that shop. We started inspecting the drugs on display for sale we realized mostof the drugs on shelveswere expired. So weseized those drugsand issued seizure notice to the Accused. We doubted the quality of the drug and gave reasons for their seizure………..” 19|Page In fact during the cross-examination of PW1 by the counsel for Accused, this is what ensued between them. Q. And youmet the Accused personin the shop. A. Yes, we met him the shop. Q. And you find out that the Accused had packed the expired drugsat the corner of his shop. A. No,the drugswe seized weredisplayed onthe shelves atthe shop. Q. I put it to you that when you went to the shop accused has boxes in which he had packed expire drugssomewhere in the shop. A. No, the drugs we seized were all pulled from the shelves of the shop and they were all expired. That was when we took inventory and gave the seizure notice in which note thename drugs, batchnumbersquantities and dateofexpiry. From the above, it was clear that the prosecution was able to prove the essential element of the offence charged against the Accused person, indeed, it was clear that accused had displayed the said expired drugs on the shelves of his shop, as defines by the law display amountstosale orsellofproduct. 20|Page Itisalso ofinterest tonotethat the counselfor theAccused could notdiscredit the prosecutionwitnesses during hiscross-examination ofthem. Indeed the record of proceedingsbear ample testimony tothis assertion. Fromthe aboveanalysisoflaw and facts I would say that theprosecution was able tomake prima facie case against the Accused at thetrialcourt. And thereforethe trial courtwas right indismissing thesubmissionat the trialcourt. Inview ofthis I would therefore dismiss this interlocutoryAppealand I would accordingly orderthe Accused/Appellant to openhis defence at thetrialCircuit Court. ………………………………. JUSTICEHARRY ACHEAMPONG-OPOKU (JUSTICEOF THE HIGHCOURT)