LAWALA v. THE REPUBLIC

JUDGMENT OF AMISSAH J.A.

Amissah J.A. delivered the judgment of the court. The appellant was convicted of the offence of attempted unlawful exportation of goods. The charge was brought under sections 18 (2) of the Criminal Code, 1960 (Act 29), and section 49 (1) (c) of the Customs and Excise Decree, 1972 (N.R.C.D. 114). Section 18 (2) of the Criminal Code is the provision which creates the offence of attempt to commit a crime. The crime in question in this particular case comes under section 49 (1) (c) of N.R.C.D. 114 which states:

"(1) If any person— . . .

(c) exports or is concerned in exporting any prohibited or restricted goods contrary to such prohibition or restriction . . .he shall be guilty of an offence . . .”

[p.362]

The particulars of the offence charged said that the goods the appellant had attempted to export were restricted goods. These restricted goods were itemised as cartons of cube sugar, bags of granulated sugar, cartons of Geisha, Omo, toilet rolls, Milo, Lux soap, Guardian soap, Key soap, Bournvita, Nescafe, margarine, sardines, cases of tobacco, bags of wheat flour, pieces of khaki drill, bags of rice, cases of milk and a number of coalpots.

The appellant pleaded not guilty to the charge. The evidence led against him was that on 20 November 1973, he arrived in a truck at 1.30 a.m. at the Honuta barrier on the border between Ghana and Togo and asked that the barrier be opened to enable him to proceed to Palime in Togo. At the barrier at the time were three border guards, a corporal and two men. They suspected that he had goods, which have now become popularly known as "foreign commodities" or "essential goods," on the lorry. The corporal explained to the appellant that the barrier was open only from 6 a.m. to 6 p.m. every day and that the appellant should therefore wait. In the morning the appellant's vehicle was searched and the goods mentioned earlier were found on board. The accused was then arrested together with Lasaki Adebayo, his mate and both were charged. As Adebayo was acquitted and discharged we make no further reference to him except where necessary.

The prosecution neither mentioned nor gave specific proof of any restrictions on the exportation of these goods. Their case, however, proceeded on the understanding that the exportation of these goods was restricted by law. It was also the contention of the prosecution that the facts they led in evidence showed that the accused had done all within his power towards the