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May 3, 1976
HIGH COURT
GHANA
CORAM
JUDGMENT OF MENSA BOISON J.
This is an appeal against a disposal order of the District Court Grade I, Goaso, forfeiting two firearms to the State by virtue of the provisions of section 144 of the Criminal Procedure Code, 1960 (Act 30).
The brief facts on which the prosecution was founded were as follows: On the day in question two friends Kwame Budu and A.B., both males, each armed with a firearm went on a hunting expedition. On seeing a group of monkeys the two were attempting to shoot when pellets from Kwame Budu's firearm strayed injuring A.B.
Kwame Budu was using a gun belonging to his father, Kwame Donkor. The complainant A.B. was the son of Kwasi Amoah, the present appellant, and was using a gun of the appellant's on the hunting expedition. Kwame Budu was charged with possessing a firearm without authority, contrary to sections 6 and 22 (1) (a) of the Arms and Ammunition Act, 1962 (Act 118), and Kwasi Amoah and Kwame Donkor owners of the two firearms, respectively, were charged with parting with possession of arms without authority, contrary to sections 3 (1) and 11 of the Arms and Ammunition Decree, 1972 (N.R.C.D. 9). On each accused pleading guilty they were respectively convicted and sentenced to a fine of ¢400.00 or twelve months' imprisonment with hard labour in default. The trial court concluded by ordering "the two guns to be surrendered and forfeited to the State."
The original ground of appeal that N.R.C.D. 9 does not authorise forfeiture of the exhibits was plainly misconceived. Counsel however eventually came home on section 144 of Act 30, which provides for general disposal and restitution of property connected with a trial. Section 144 (1) and (5) of Act 30, are relevant and provide:
"144. (1) Notwithstanding anything in this Code or in any enactment, when any person is convicted of an offence the Court may make such order as in any case it thinks fit for the destruction or for the forfeiture and disposal of any article produced before it regarding [p.275] which any offence appears to have been committed, or which has been used for the commission of any offence . . .
(5) No order shall be made under this section in respect of any article unless the article is owned by the accused or is in his possession with the consent of the owner in such circumstances as to show that the owner was aware that an offence would be committed in respect thereof, or that it would be used for the commission of an offence. Any person claiming to be th
AI Generated Summary
Judge Mensa Boison heard an appeal by Kwasi Amoah challenging a District Court Grade I, Goaso, order forfeiting two firearms under section 144 of the Criminal Procedure Code, 1960 (Act 30). The case stemmed from a hunting trip involving A.B., Amoah’s son, and Kwame Budu, who used his father Kwame Donkor’s gun; pellets from Budu’s gun injured A.B. Budu pleaded guilty to unlawful possession under the Arms and Ammunition Act, 1962 (Act 118), and Amoah and Donkor pleaded guilty to parting with possession under the Arms and Ammunition Decree, 1972 (N.R.C.D. 9). The court accepted that section 144(1) authorizes forfeiture of articles either regarding which an offence occurred or that were used to commit an offence. However, invoking section 144(5) and the due-hearing principle reinforced by Aidoo v. Commissioner of Police, the court set aside the forfeiture as invalid because the owner was not heard, ordered both guns restored, and directed filing of a delivery certificate.