IN THE SUPERIOR COURT OF jUDICATURE
IN THE COURT OF APPEAL
ACCRA
CORAM: APALOO J.A (PRESIDING)
ACQUAYE J.A
ADUAMA OSEI J.A
CRIMINAL APPEAL SUIT NO. 112/17/20 10
16Th1 IUNE 2011

	

THE REPUBLIC	---- RESPONDENT
Criminal/ow - Use of property for Narcotic Offences - s. 10 (1) (b) Narcotic Drug (Control, Enforcement and Sanctions) Law 1990, PNDCL 236 - Submission of no case - ss. 173 & 174 Criminal Procedure Code, Act 30 - Whether prosecution had established prima facie case - s. 10 (1) (b) PNDCL 236 - s. 11 Evidence Act, !VRCD 323 - Trialudge's duty to call upon appellant to open defence —Whether trial judge denied appellant presumption of innocence.
JUDGMENT
APALOO, JA: The appellant was charged together with five others for various narcotic offences before the High Court, Fast Track Division Accra. The appellant in particular was charged with the offence of use of Property for Narcotic Offences contrary to section 10(1)(b) of the Narcotjc Drug (Control, Enforcement and Sanctions) Law 1990, PNDC Law 236.
The prosecution alleged that Joseph Kojo Dawson who was Managing Director of Dashment Company Ltd owners of a fishing vessel named MV Benjamin was contacted by certain "drug barons" to charter MV Benjamin, and according to the prosecution for the purpose of using it to convey some narcotic substances from the high seas into Ghana. The Drug barons were named as Sheriff Asem
Darke, Ande, Lee, Ande Yul Sing and Jil Bae. Sheriff Asem Darke entered into a rental agreement with the appellant to charter his fishing vessel MV Benjamin
 
on a barehoat charter basis in February 2006. Upon procuring the vessel, the "barons" engaged one Pak I3ok Sil to do some repair works on it and having completed the works, Pak I3ok Sil paid off some of the workers on the vessel hut retained Isaac Arhin, Philip Bruce Arbin, Cui Xian Li and Luo Yin Xing. The vessel which was docked at the Takoradi !labour under the care of Philip Arhin set sail to the high seas on 9", March, 2006. According to the prosecution Ande Yul Sing was Captain and Arnie was Chief Engineer. The (-Few was made up of Isaac Arhin, Philip Bruce Arhin and James Kingsley Inkoom. In the course of the
MV 13enjamin it is alleged got to the breakwaters of Tema Harbour with the 77 parcels of cocaine on 26/1, of April 2006 and on the same day at about 2.00 am, two canoes drew alongside the MV I3enjamin and collected 76 out of the 77 parcels of cocaine and left one parcel onboard the vessel. A canoe came for the Captain Ande Yul Sing and the Chief -Bngineer Ande and they were never seen again.
Meanwhile the Narcotic Control Board (NACOB) had received intelligence about the cocaine which was delivered to MV Benjamin. A team was organized including the Air Force and the Navy to track down MV Benjamin. The fact that the name of the Vessel Was changed contributed to the escape of the vessel to Tema.
On 27th April 2006, Naval Officers who had been trying to track down MV Henjamin noticed that an identical vessel with different name MV Made II was anchored at the break waters of the harbor, the security personnel including officers froinNAC013 went into the vessel and after searching it, they found one pm -:eel which contained 30 slabs of substances which were later confirmed by the Ghana Standard Hoard to be cocaine.
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Arising from these activities that the six persons were charged before the Fast Track Division of the high Court with ofiences under PNI)C Law 236. The six persons were Joseph Kojo Dawson 1St accused and appellant herein, Pak l3ok Si! 21111 accused, Isaac Arhin 31d accused, Philp 131-1.1ce Arhin 4"' Gui Xian IA 50, accused and lato Yin Xing 61i accused.
The charge against the appellant as endorsed in the charge sheet isa:follows;

	

USE OF PROPERTY FOR NARCOTIC OFFENCES; CONTRARY TO SECTION
10 (1) (b) OF THE NARCOTIC DRUGS (CONTROL, ENFORCEMENT ANt)
SANCTIONS) LAW, 1990 (PNDCL 236).
PARTICULARS OF OFFENCE
JOSEPI I KOJO I)AWSON, Husinessinan; On or about the 611, of February 2006 at 'I'enia ill Greater Accra Region indirectly without la'ful authority and with the intention of facilitating an activity for the purpose of promoting an enterprise relating to Narcotic Drugs, did allow one ASEM DARK' @ SIINRIFF to use your vessel MV I3ENJAM IN/ADNIW Ii to import 77 parcels each containing about 30 kilograms of cocaine into Ghana without a license issued by the Minister of lleahh."
The appellant pleaded not guilty to the count and trial commenced up to the end of the case for the prosecution when a submission of no case was made on behalf of all the accused persons. 'l'hie trial Court overruled the submissions except the one made for the 211(l accused. The trial subsequently continued and by its judgment dated 2511, July 2008 the remaining accused persons were Found guilty convicted and sentenced to a term of 25 years Iii prison ill esp U of the various charges preferred against them.
The appellant by his petition of appeal is appealing on the following grounds;
1. '1 hat the U ial judge urred in law in failing at the cnd of the case for tIn prosecution and upon a submission of no case to examine the case that
3

 
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1.	"That the trial judge erred in law in failing at the end of the case for the
prosecution and upon a submission of no case to examine the case that
the prosecution had brought in respect of the first accused before determining that the accused had a case to answer.
2.	That the trial judge erred in law in failing to apply the same criteria that he applied in relation to the second accused upon a submission of no case, which criteria would have even more definitely have necessitated
the acquittal of the first accused.
That the trial judge erred in law in failing to appreciate that on the totality of the evidence presented by the prosecution, there was no case
for the accused to answer.
4.	The trial judge erred in law in effectively denying theist accused the presumption of innocence which is a fundamental principle of criminal law that is guaranteed in Article 19 of the 1992 Constitution.
5.	The conviction was wrongful bearing in mind the totality of the
evidence led.
These grounds appeared as additional grounds of appeal; the original ground and these were all argued by Counsel for the appellant in her submissions filed in this Court. In her opening submissions Counsel argued additional grounds 2 uul 3 together. It is the submission of Counsel by grounds 2 and 3 together that the trial judge failed to satisfy himself, based on the evidence that there is a case for the appellant toi.answer. According to Counsel the trial judge simply dismissed the appellant submission of no case without considering the case the prosecution had put forward Lind without filly reason. Counsel was of the view that the failure of the trial judge to give reasons Pal ticularly when Counsel on both sides had presented at and referred to passages of evidence itself amounted to a failure to uphold the Id quired standards of judicial conduct and is sufficient basis for this appeal to
be allowed:Counsel cited Afotey yrs the Republic [1984-86] 1 G1,12 475 where Sowah

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I
 
"Iii the circumstances of this case the learned Judqe ought to have çjivcii (11110/i? careful C/tIC! judicious (IppraiSC!/ of (lie evidence than she appeared to have (/0/16 ........when cases are heavily contested she must he seen to have exercised her powers citici discretion judiciously
Again Ili Mainoo vt-s The Republic L1984-8612GLR 727 Francois JSC quoted a pronouncement of Lord Dunning before the law Society of England to the effict that;
"Give reasons Jar your decLcions;fln if you give no reasons, it will he cons! rued as a ju4jiilen t without reasons (/11(1(111 unreasonable otiL'."
(:miiìsei for the appellant went further to refer to the Fiiglisli case of Flannery vrs Ilalilax Estate Agencies Ltd. [2000] 1 WLR 378 where Henry 14 delivering the judgment went to great lengths to discuss the duty and oN igation to give reasons.
Indeed the ruling of the trial Judge ;ifier the submission of no case was this;
"In respect of tile fit-st accused person, I have carefully considered the charge against him in this case and the evidence led so for and! aill of the opinion that there is a prima facie case against him to warrant h/ui to open his defence. / accordingly, in tile exercise oft/ic jurisdiction coiiJcrted on inc under Section 174 of Act 30, (1960) cull upon the Jst accused pci somi to open his defence
There is 110 doubt at all that the trial judge was exercising the power (. onfei icd on him mi(ler both sections 173 and 174 of the Criminal  Pt ocedui e Code, Act
30.
'SI 73 11 at the close oJtheevidence in support of the charge, it appears to III("(out C that ci case is not math out against (hr accused siifju ient/y to require  hun to mate a c/efeiu c, the (ourt shall as to that pat 11(111(11 Lila!-Ye. acquit him."
 It Is our considered view that by the strict intci 1)1 etation of'S173 a trial jtidge is not requireti to give reasons for acquitting an accused person if a case is not made out agminst him at the close of the prosecutions case.
S

 
Again by the strict interpretation of section 174 of Act 30 there is no requirement for the trial judge to give reasons for calling on the accused to make his defence. We reproduce section 174 of Act 30.
"Section 174 At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficielitly to require the accused to make a defence, the Court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused o f the right of the accused to give evidence personally on oath or
to make a statement."

From the foregoing we are reluctant to accept the view that failure on the part of a trial judge to give reasons for overruling a submission of no case should constitute sufficient ground to set aside a conviction. We are however agreed that it would he desirable to state reasons for the exercise of the discretion one way or the other. In Tsatsu Isikata yrs The Republic [2003-2004] SC61/2 1068 when this same issue came up, i.e. failure of the trial Judge to assign reasons for her decision, the Supreme Court stated that, it encouraged the sound policy of articulating reasons for judicial decisions but added that it knew that lack of articulated reasons do not always lead to a miscarriage of justice. The Supreme Court went further to declare that;
"In the case before us, the ruling on the submission of no case though made without articulated reaso175 Was not without basis in law."
Upon reading the three cases relied upon by Counsel for the appellant for the failure of the trial judge to give reasons in the ruling, upon the submission of no case, we noted that the cases relied on i.e. Afotey Vrs The Republic (supra) Mainoo yrS. The Republic (supra) Flannery yrs Halifax Estate Agencies Ltd (supra) all deal with the failure of trial Judges to give reasons in final decisions to convict in the face of well argued addresses after a full hearing and not t the close of the prosecution's case. What happens after addresses leading to Alie linal judgment in the criminal trial has been catered for by section 177 of the Criminal Procedure Code. In the circumstances of this.appeal and upon considering these two grounds, we are unable to do
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more than borrow the words of the Supreme Court articulated in 'I'satsu Tsikata vus The Republic (supra) that;
"We livid that in this case, 1/ic failure ojthie trial judge to articulate lieu reasons for rejecting the submission o1 no case, rcgrettable as it is from the statidpoiiit of best judicial practice has occasioned no III isca IT/age ofJustice. We therefore cl/sm iss Lii is groun (I ojappeaL"
Indeed on the strength of this pronouncement we proceed to dismiss this ground of appeal. In arguing the other leg of the two pronged grounds of appeal, it is the contention üí Counsel for the appellant that the judge called upon the appellant to open his defence when the prosecution had not established a prima facie case against him. The charge against the appellant hy section 10 (1) h of the Narcotics Drugs (Control, hnforcejneiit and Sanctions) Act 1990,  PNI)Cl. 236 reads as reproduced herein;
10(1) "A person commits an offence if that person directly or indirectly, leaLc, in relation to or uses ci property within or outside the Republic
(2) With the intention of facilitating or assisting in the promotion, inanaqenien 1, establishment or carrying on an activity Which is an oJfence under any oJtlie sections  to 7."
In assessing the quality of the evidence led, we must first of all appreciate the ingredients  in the charge pi off ci ccl against the appellant. In our view the following will he suflic ient to establish the ingredients in the offt nce charged.
1 That the accused person directly or indirectly dealt in or allowed his Property to be used in or outside Ghana
2 That the propei ty was used with the intention to facilitate, or assist in the promotion, niaiiagcniunt or cstihlislniient of an activity relating to drugs
3. That.  the property was used to promote a narcotic enterprise.

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The he practice is and has always been that the prosecution has the duty to establish the ingredients of the crime charged one after the other in the course of the trial before the close of its case, and ultimately at the close of the prosecution's case. Thereafter the role of the trial judge continues as follows:
"Section 17:1 is concerned with summary thal where the judge decided both law and fact. It is for the judge in a summaty trial to weigh the evidence and then decide whether frau; the facts proved the guilt of the accused can be inferred. Evidence is said to be sufficient. when it is of such probative farce as to convince and if uncontradicted will justify a conviction."
•
See The State yrs All Eassena [196211G1,14145.
Our jurisprudence contains volumes of what the duties of the trial judge are in assessing whether or not the prosecution has made out a case for which the accused ought to be called to open his defence. A practice direction in this area, where a SUIMUSSiOn of no case to answer at the close of the prosecution's cise was delivered by Lord Parker CJ in 1962- which ow- Courts adopted in The State yrs Ali Kassena [supra). This is what Lord.Parker said
"Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following consideratiOnS.
A submission that there is no case to answer may properly be made awl upheld.	•.•
(a)	When there has been no evidence to prove an essential element in the alleged offence.
(b)	When the evidence adduced by the prosecution had been so discredited as a result of cross examination and is so manifestly unreliable that no reasonable tribunal could safely con viii on it.
Apart from Mese two situations a tribunal should not in general be called Oil to1each a decision as to conviction or acquittal until the Whole of the evidence which either side wishes to tender has been
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placed before it. If however a submission is made that there is no case to answer, the decision should depend not so niuch on whether the adjudication tribunal (iJcvmpelled to do so) would at that stage Convict or at quit but vii whet/icr 1/id? evidence is such that a reasonable tribunal might convict VII the evidence so far laid before it, there is a case to (uiswer.
1110111 what Parker (1 stated, the answer to a submission of no case to answer should (lepen(l not so miiuch on whether the court would at that stage convict or acquit but whether on the evidence so far laid before it, there is a case to atm sw er.
By the record what was the evidence against the appellant? According to Counsel for the appellant, the nature of the evidence Presented by the prosecution against the appellant should he viewed against the statute under which the appellant was charged. Counsel submitted that from the particulars of offence, the prosecution set out to prove that the appellant, at the time of entering into the contract with Attico Fisheries knew that the vessel was to he used by Aseni Darke @ Sheriff to transport cocaine into the country so as to promote an enterprise relating to narcotic drug. She referred to the lirosecution's opening statement of the facts of the case where it was alleged that 'some drug barons" contacted appellant etc. According to Counsel the prosecution implied that appellant knew the persons who contacted him to he drug barons and agreed and gave out his vessel knowing that the purpose for which the vessel was to he used was to Undertake  an activity to facilitate an enterprise relating to narcotic di ugs ( ounsi I was emphatic that when it came to evidence however, not one of the prosecution witnesses provided any testimony which, by any stretch of imagination, COUld amount to 1)1 '001 that appellant knew the persons who contacted hint to he drug barons and agreed and gave out his vessel knowing the purpose [or which the vessel was to he used.
There  is no doubt about the soundness of ( ounsel's i easoning however, thc oliset vations made by ( ouns I have tin ii i oots in the thai gc. sheet. Tile huge slice  should contain two elements namely a statement of thic olkrite
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alleged to have been committed together with particulars of the offence. See section 112 of Act 30. The statement must refer to the offence creating section of the statute that created it. In respect of the particulars of the offence, the section requires such particulars of the offence as may he necessary for giving reasonable information as to the nature of the charge. Justice A N E Amissah in his Criminal Procedure in Ghana at page 77 has this
 

 
"Drafting the part iculars of the offence charged involves following with precision the worditig aJ tlw section defining the crime and alleging that the accused did the act having the ingredients of the ()Thrice."
See lianson Mensah and Anor vs. COP 119631 2G1.11 536.
Accordingly, it is our view that the particulars of offence in the charge sheet should contain all the ingredients of the offence and in particular what ingredients the prosecution intends to establish and prove in any criminal trial. Some Jurists have described the ingredients of an offence to be the frame or the skeletal part of the body -and evidenCe as the flesh covering it. Upon close study and scrutiny of the charge •sheet we are satisfied that it was laid in accordance with law and practice of criminal law. We are not in any doubt that the law has made provision for challenging or attacking the charge sheet but in the case before us no •thallenge whatsoever has been levelled against the charge sheet. It is also notorious in criminal trials that the opening stiaement made by the proseetition in respect of the facts is not evidence but a statement made to introduce the trier of facts to the case before him. It may even flit ii out to be irrelevant:to the trial after reception of the evidence.
In order to assess whether on the totality of the evidence presented by the prosecution the accused indeed had a case to answer, in other words, was the prosecution . able to lead enough evidence to show that the appellant committed the Offence air which he was charged in terms of the ingredients. We shall proceed at this juncture to examine the evidence led by the prosecutton in the:Court below.
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There was evidence that Detective Inspector Charles Adaba PW1 3 took over from Inspector James Oppong ill 2006. He tendered Ml the handwritten statement of the appellant dated 5th May 2006. lie went oil board the MV Benjamin at 'l'eina liahour and discovered that the paint around
the vessel's name was fresh as compared to the paint oil parts of the vessel, lie proceeded to Takoradi Ghana Ports and I labours Authority where he found that MV Benjamin was formerly owned by a Korean hut was registered uniter the name Daslunent company Ltd with an official number 316915'1 and marked Al: 582 from 2011 April 2000. lie found out that the appellant was the Managing Director of Dashment Co Ltd and that lie was the one who signed Exhibit Cl a Charter Agreement with Sheriff Asein Dark'. This agreement gave Sherill the use of the vessel which brought the 77 parcels of cocaine into Ghana.
The Detective Inspector found also that it was Dasliment Company Ltd which applied for the vessel to enter the Takoradi Ilarhour. The same company paid all expenses incurred on the vessel for the period it docked at the llalmur. He stated that when the vessel was leaving port on 911, March 2006 the 3, 411,. 5111 and 611, accused persons were oil board. lie testified that conti ai y to appellant's assertion that lie had paid off all crew members he found that the Port Authority had no records that 3', 4" and 511, accused persons had been paid oil, lie found out too that the Port Authority required that crew members he registered with them and then their names taken off their register when they were laid oFf The Port Authority had the names of the 3ri, 411, and 511, accused persons as crew members of the MV Benjamin. This was an indication that they had not been disengaged by Dashitnent Company.
He informed the Court that MV Benjamin received 77 parcels of cocaine oil high seas and oil	of April, 76 out of 77 parcels were taken away by
fishermen in canoes under.thie supervision of the Captain and First Fngineer.
lie said one parcel was left behind ill	hatch of the vessel. A combined team
of NACON official and Naval Officers who were searching for the MV Henjaiiun
found her at the breakwaters and entered the vessel and oil it found one parcel of cocaine in the hatch. The parcel contained 30 slabs of cocaine each weigh i rig 1 kg.

11
-'	Ajh;,ciAL SERVU:
 
According to Inspector Adaba his investigations established that one Sheriff Asem Darke was one of the people behind the importation of the 77 parcels of cocaine into the country. Ile said on 21st December, 2005 Sheriff Asem Darke took a loan of 250 million cedis from Unique Trust Financial Services Ltd to buy marine fuel for the voyage to bring the 77 parcels of cocaine. Sheriff Asem Darke signed as General Manager of Atiko Fisheries Ltd on both the Charter
Agreement Exhibit C and the Loan Agreement Exhibit I.
•
The witness tendered also the charge statement of the appellant as Exhibit Al A. Ile tendered also the 25kg out of the parcel of cocaine found in the hatch of MV Benjamin.
Earlier Detective Cpl. Edward Yaw Asante had given evidence as PW I. Ile testified that he was a Police Officer attached to the Narcotic Control Board (NAC013). His evidence was that NAC013 received intelligence that the MV Benjamin was carrying cocaine from the high seas to Ghana. Ile and other officers entered the vessel at the breakwaters at Tema and found 130kg of cocaine, a narcotic drug in the hatch of the vessel. PW1 stated that the appellant was the Managing Director of Dashment Company Ltd and owners of MV13enjamin.
In all the prosecution called 13 witnesses and tendered about 80 exhibits to establish its case. For purposes of assessing the prosecution's evidence pursuant to the three ingredients in the charge sheet, we have produced in SU mmary form the evidence of PW I and PW13.
We must admit that Counsel for the appellant in her submissions to this Court took pains to challenge the testimony and attacked the credibility of the two witnesses. Her challenges were very detailed but the facts the two witnesses proferred by the nature of the evidence they gave remained intact. It is necessary to state that the (Vidence of the two witnesses and others as to the facts in issue were never discredited and we shall use these facts in issue as the basis for Mir assessment of the quality of the evidence. We are however guided by the dictum in Tsatsu Tsikata yrs The Republic (supra) as to the proper pOsition 1-0 be taken in an appeal where a submission of no case has been overruled. The Supreme Court held that the appellate court on an appeal
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that considers a submission of no case was to look at all the evidence and make a decision based on it. The Court added that;
"All appellate court Was not C! trier of/acts H! the (((Sc of all appeal an a submission aJno case. However, the appellate court fbi its awn Imuteci purpose, would have to consider the evidence at the trial court to the extent that it was nccessaiy to determine whether the requisite level of p11)0/ was presetit ill respect ojahl the essential ingredients IH the offence c/ice tqecl.
The emphasis Ili this clictum is the essential ingredients in the offence charged. The evidence under consideration at this juncture. no doubt points to the direction that the appellant directly or indirectly dealt Ili or allowed his l)m0Pe1tY to be used iii or outside Ghana.
As Counsel for the Republic put it, the critical issue to determine Ili this particular case is whether the appellant allowed his vessel to he used with the knowledge and/or intent that it would he used to deal in narcotics. The argument of the appellant is that the fact of signing tlit various documents is not enough indication that appellant knew the vessel would he used to carry cocaine. ['lieme is this other argument that A3 who signed the documents was at the time not engaged by Daslmnient Company Ltd.
It has been stated over and over again in criminal law that it is impossible to i cad tlic intention of a person Ii orn his Lice or features hut that the intention of a man call inferred from his actions Accordingly one could pi ovc the mm't. nimon of a person from events .he voluntarily initiates
There is evidence on,,, record that at all mnatem tal time the appellant still retained ownership of the vessel as borne out by the various payments he inadc in respect of the vessel It is the case of the prosecution that the idea of the Charter came up after the event to give the appearance that the vessel had hec ii hired to Sheriff and that appellant did not know anything about it The evidence of FWG was clear that appellant registered the vessel oil April 2000 and registered  A 3, A4 and AS as cm ew members. There  was evidence that MV Benjamin hcrthed at Takoradi Ilahotir oil 911, November, 2005 under
 
the agency of Dashment Company Ltd and set sail on 9th March 2006 to the high seas with Dashment Company Ltd still as its agents. Exhibits J, K, l„ M, 0, P and Q were receipts which showed payments for water, power, pilotage and other services rendered to the MV Benjamin by the Port Authorities. From the
above it will be reasonable to infer that as far as the Takoradi I labour Authority was concerned, Dashment Company Ltd was and remained the registered agents of the MV Benjamin. The evidence of PW6 . was very instructive on this point and we quote from the record to stress the point.
"Q	I am putting it. to you that Dashment was not the agent of the vessel.
A	My Lord, the port does not deal with owners of vessels. It deals with agents of vessels and as a matter of fact, if anybody wants to know the owner ola vessel, either he being the manager, operator or beneficial OWner, the person had to refer to the Maritime Authority. What the Port (1065 15 that the vessel is
represented by all agent and it is the agent that the Port knows and we deal for commercial putposes with the
agents of vessels. The owner can Get as agent but at that
time we look (It the person as the agent and not the owner."
It is the case of the prosecution further that .there was no evidence to suggest that Dashment Company was acting for Atico Fisheries Company. The Repubic is of the view that as at the close of the prosecution's case the available evidence was that Dashment Company Ltd was the registered agent for MV Benjamin. Counsel for the Republic had invited us to draw the proper and necessai y inference that the appellant who was the Managing Director of the Comp.my that owned the vessel and made all payments on the vessel right up to the time the vessel sailed to the high seas and brought back the parcels ol cocaine into thft. country, allowed the use of his property and use of the name of his company for the activity. According to Counsel the use of the vessel by the Company lends credence to the fact that the appellant as
14

 
? Managing Director of the Company had some knowledge about the purpose for which the vessel set sail.
Again Cmtnsel for the Republic has invited us to examine Exhibit C, the Charter Agreement. She is of the view that the document appears to be a cover ill). The evidence shows that Dawson Sm-. the father of the appellant Signed it for his son as boat owner.
There is evidence acu)rd]iig to Counsel that the vessel was chartered to Sheriff Aseiii l)ake, the charterer ill C  signed under the name Evans (:hiii-tvetey, who was a brother of Sheriff Asein flake. 1-Ic testified as.PWIO. lie denied knowledge of Exhibit (:1 which bore his name. The appellant clid not know the charterer as Evans Charwetey per the document, so how could he have permitted him to sign as such, and this document was supposedly executed in the presence of Lawyers. Such flaws and questionable conduct associated with the document made it more difficult to explain. Counsel for the Republic was of the view that the total evidence adduced was enough and it established that appellant must have known that his vessel would he used to
deal ill	In Nyarko & On vrs The State 119631 2GLR the Supreme
Court per MillsOdoi JSC said;
"Where tile 1OSCC1I Hon Jut/s ((1 eStuh/LVil i/ic esseii (jul eleirien ts oft/ic crime cliuiijed, a suh!nLsxu)ii OJ lid) case must succeed. It can then he said with a deqi cc oJ certainty that the prosecution has failed to mate out (1 p111110 Judd' C C15C
Counsel for the appellant in her submission stated that the only basis upon which the trial judge in this cast may have Concluded that the appellant had a case to answer was cii'cunistaiitial and Counsel proceeded to say that the trial Judge should have paid attention on to the law on circumstantial evidence. Counsel referred to Logan vi's The Republic (2007-2008] SCGLR 79 where the Supreme Cow t stated
"1 hese are inferences ct/Ic qedly drawn from uic uinctonHul evidence on / cc arc! And the question (lien is sp atinq as an appellate cowl
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whether in fact such inferences were drawn from facts that really existed in the evidence and whether these findings based on such inferences are supported by evidence on record	
For circumstantial evidence to support a conviction, it Must be inconsistent with the innocence of the accused. It must lead to irresistible conclusion not only that the crime charged has been:	• conmütted, but it was in fact committed by the persons charged in-. order to arrive at a definite conclusion."
 
See also the State vrs Anani Fiadjoe [1961] G1,12 Court asserted that;
 
"Presumptive or circumstantial evidence is quite Usual as it israre to prove an offence by evidence of eye-witness and inference from the facts may prove the guilt of the accused person.: A presumption from circumstantial evidence should be drawn against the appellants only when that presumption follows irresistiblY from the circumstances prywed in evidence; and in ot-der to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis other than guilt.- A conviction must not be based on
•
probabilities or mere suspicion."
The celebrated case of R yrs OnnfrejtV13 (1955) 1Q13 388 cannot be omitted when discussing circumstantial evidence. That case stated that
"It is often the best evidence. It is evidence of surrounding
„
circumstances which bY:Uhdesigned coincidence is capable of
proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial."
In our view,circuinStantial evidence was part of the evidence the prosecution presented in the trial. We have assessed the circumstantial evidence with the
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,
 
-
standards and yardstick dictated by the cases and we have come to the conclusion that the justice of the matter demanded that the necessary inferences he made because in our view the conduct of the appellant iii the course of the various transactions was incompatible with his innocence.
We have also considered the provisions of the Evidence Act, NRCD 323 and the evidence led in in Court. We are in no doubt that the prosecution kept within the bounds of Section ii of the Act. For the avoidance of doubt we reproduce the section herein;
"ii (2) in a criminal action, the burden of producinq evidence, when it is or; the prosecution as to a fact which is essential to quilt, requires the prosecution to produce suffIcient evidence so that oil	totality oft!; e evidence a reasonable mind could find the existence of the fact beyond reasonable doubt."
It is clear that the trial judge was right from the whole of evidence led by the prosecution and at the close of its case to call upon the appellant to open his defence. The inferences the prosecution invited us to make and draw in our view are legitimate inferences arising directly from the testimony of the prosecution witnesses. Having read the record together with submissions of 1)0th Counsel we are left in no doubt that the multiple overt events or acts associated with the vessel MV Benjamin before she set sail to the high seas and other events which occurred thereafter are very strong indications that Daslitnent Company Ltd as registered agents of MV Benjamin per its Managing Director allowed the use of its property and use of the name of the Company with the intention to assist man activity relating to a narcotic enterprise. We accordingly dismiss this ground of appeal as well.
A ground of appeal that "the trial judqe failed to apply the same criteria that he applied in relation to the 2 accused upon a submission of no case, which criteria would have even more definitely, have necessitated acquittal of the first
accused' presumes a lot in criminal trials. Even in situations where the accused persons are jointly charged with the same offences the reaction of the
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accused persons per their caution and charge statements may be different and be poles apart. The evidence against each accused person may be given by the same witness but with different emphasis. In this particular case the charge against 2" accused was laid as Count Two which count referred to Prohibited
business relating to narcotics. The particulars of offence gave ingredients associated with repairs of the MV Benjamin. Indeed the charge against the 2" ilCCUSed has no bearing, whatsoever with the charge against the appellant winch is under consideration in this appeal. We shall be bold enough to say that the ingredients to be proved by the prosecution against the second accused are not the same and cannot be the same hence Counsel was completely out of order when she filed this ground. We consider this ground to be without merit and dismiss it.
The ground Iii it the trial judge effectively .denied the -appellant the presumption of innocence, a fundamental principle Of criminal law is not borne out by the evidence on record. In ow- View the trial Judge can out Ins judicial functions effectively without any bias Nowhere in the record did we see or find that the Judge short-change the -appellant by denying him his
right to the presumption of innocence.	.
The original ground of appeal was the following;
"That the conviction and sentence of the 1" accused person to a total of Twenty-rout years- imprisonment was wrong in law. The learned trial judge's finding-that the .1" accused appellant knew, at the time of entering into the.charter Agreement for the vessel to be used to tow a diStTessed Vessel, that the real intent of the Charter was to employ the ;Same for transporting of narcotic drugs, cocaine, is•wrong in law. The learned trial Judge further finding that the one parcel of cocaine found on board the vessel was to be used to pay the 1" accused for the charter of the vessel is not supported by the evidence."
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Counsel for the appellant was of the strong view that the matters which the trial judge used as basis for finding the accused guilty were speculative and based merely oil
In his judgment the trial Judge was of the view that;
"The facts proved are that as against the accused the vessel MV Benjamin was chartered to Sheriff Asein Darke which went to the high seas to 1)11119 (lie cocaine. Further Sheriff did not Pto' /r the charter or the lure purchase but was allowed to rise the vessel which went and returned with the cocaine. Furthermore
in the vessel, out of the undisputed fact that seventy seven cartons were found in it, seventy-six were taken away at Tema leaving only one raises questions,"
We are of the firm view that the trial Judge's findings of fact at that stage were correctly made based oil evidence on record which were placed before him. It is also true that having taken away 76 cartons of cocaine and leaving only one carton raised many questions. A trial judge at this stage is allowed to make necessary and relevant inferences from the evidence before him. One piece of evidence before the Court was the fact that 110 pesewa or cent was paid for the charter even though the subject matter of the charter was in use. It was legitimate therefore for the trial judge to infer that possibly, the reason for leaving the carton on the vessel was for payment in kind for hiring it. In our view this inference by the trial Judge is not borne out by the evidence and riot supported by the evidence in the least. Indeed we find that conclusion to he speculative. Speculative asthe conclusion was, it (lid not alter the primary findings of fact made by the trial Judge in respect of the ingredients of the offence.
Counsel for the appellant drew our attention to the fact that Dashment Company Ltd was not oil but the person Joseph Kojo Dawson was. We do not hesitate to conclude that in line with the decision in Salomon vrs Salonwn (R8971 AC 22 the trial Judge was familiar with the principle of
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separate legal personality of a Company. A Company however operates and acts through its Directors and/or agents. The Managing Director who is under trial, no doubt has authority to act on behalf of the Company and indeed is the foremost and principal agent of the Company. Accordingly, any deed of the Company carried out by the Company cannot be said to have been done without the knowledge and consent of the Managing Director. The onus indeed is shifted onto the Managing Director of a Company to. rebut the presumption that acts of the Company were not his. Throughout the trial witnesses, i.e. PW1, PW2, PW3, PW13 were all agreed and gave testimony that, the appellant was the Managing Director of Dashment Company Ltd, owners of the MV Benjamin which brought the cocaine into the country.
There was further evidence by PW5 of the Ghana Maritime Authority who was the Shipping Superintendent and Registrar of Ships that the appellant was the one who registered MV Benjamin in April 2000. That, the crew were engaged by Dashment Company Ltd. The evidence of PW6, the Takoradi Ilabour Master in charge of the Ports and Harbours Authority was clear as to who had responsibility for the vessel. He tendered the Vessel : Movement Card of MV Benjamin as Exhibit II, which indicated that Dashment Company Ltd was the agent of MV Benjamin. The card was stamped by Dashment Company which paid all the debts raised by and on behalf of the vessel. Fresh water supplied to the vessel was paid by the Company as well as the final debt raised before it set sail to the high seas. Surely these payments and other payments cannot be said to have been done by the Company Without the knowledge, consent and approval of the Company's Managing Director, the appellant herein. Indeed
nowhere in the record Was there evidence that the Company, Dashment was
„
under trial. The charge sheet was explicit that no person other than the
appellant was the person under trial.
It is obvious in criminal:trials that at the end of the case for the prosecution, the Court may feet that the case is amply proved unless the defence then produces evidence setting up reasonable doubt, the prosecution will succeed. We have read the 'thilence of the appellant on record in which he denied
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knowledge of the crime. The trial Judge considered his defence in its entirety and this is what he said;
"The explanation of the accused person that he knew nothing about the voyage to me is not the answer to the charges and I do not accept the same given inferences I have drawn from the facts of this case and having taken all the circumstances into consideration. The explanation of the accused person also does not appear to he reasonably probable to raise doubts fOr his acquittal."
Before we consider the trial judge's conclusions as to the explanation offered by the appellant in the Court below we shall he guided by the Supreme Court in a statement that;
"Where the submission was rejected cirici the case went to trial it was then that the judge or jury as appropriate being the Trier of flicts would be called upon to determine whether or not the guilt of the accused had been proved beyond reasonable doubt.
See Tsatsu Tsikata vrs The Republic (supra).
A relevant holding of the Supreme Court is that whether or not the prosecution has proved its case heyond reasonable doubt is a question which must he left until the end of the whole case In State vrs Sowali and Essel [1961] GIR (Part 2) 743 the Court held that;
in a criminal case except in the instance of sanity and matters expressly thrown on the accused by statute, there is in general no presumption against an acnised person and an accused person is not bound to jive evidence. It is wrong therefore to presume the guilt of an accused mainly], om the fiicts proved by the prosecution. The case for the prosecution only provides prima fdcie evidence from which the quilt of the accused may he presumed and which therefore callsfor explanation by the accused. The proper direction is that if the defence answers the case for the prosecution then the jury should find the prisoner not guilty or if the defrnce raises
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a reasonable doubt in the mind of the jury of the case pr the prosecution, the prisoner is entitled to acquittal because there is doubt. The jury must he told they can return a verdict of guilty only when they are satisfied on consideration Of the case as a whole."
From the record we are convinced and are left in no doubt that the trial hike considered the defence raised by the appellant in every material detail .and came to the irrefutable conclusion that the defence was a sham. We Ithve closely and diligently studied the record and do not see any:reason to faultthe assessment of the evidence by the trial Judge. We are of the fur‘ther view that in the court below the prosecution proved its c;_ise beyond te;_.isomible doubt within the purview of Miller vs. Minister of Pensions 119471 1 Al It 372 at 373 where the House of Lords settled the definition Or proof beyond reasonable doubt and we find accordingly that the conviction and sentencing Of the appellant was	appropriate. For these reasonS we dismiss the anima and afrirm the decision of the lower Court.
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USE! (JUSTICE OF APPEAL-)
COUNSEL 
•	NANA OYE LITHuR (MRS) FOR THE APPELLANT
9 YVONNE ATAKORA 013110BISA (MRS) PSA FOR ATTORNEY-GENERAL
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