REPUBLIC v. JAMES TOWN CIRCUIT COURT; EX PARTE MARKHAM

JUDGMENT OF CECILIA KORANTENG-ADDOW AG.J.

The applicant is an horologist, and carries on his business at Tema. On 7 April 1976, he was arraigned before the Circuit Court, James Town, on a charge of selling specified goods without licence contrary to the Commercial Houses and Supermarkets (Sale of Specified Goods) Decree, 1976 (S.M.C.D. 17). The particulars of offence read:

"For that you on 24 March 1976 at Tema in the Accra-Tema Circuit and within the jurisdiction of this court, did sell 1,824 pieces of assorted dry cell batteries without licence."

The case proceeded on trial, and the prosecution led evidence, and concluded their case. On a submission of no case, the presiding circuit judge ruled that there was no evidence of a sale but called upon the applicant to answer a charge of an attempt to sell. The relevant portion of his ruling reads;

"For as much as I sympathise with such a submission I will respectfully hold that the evidence so far adduced sufficiently establishes the ingredients of the offence of an attempt to sell. I will not elaborate on them and I will therefore call upon him to enter his defence."

The applicant has moved, by way of certiorari, to quash the ruling of the learned trial judge. The basis of the application is that there is error of law on the face of the record. It is argued by counsel for the applicant that under the Decree no offence of attempt was created and therefore no offence was committed by the applicant on the facts presented to the court. He argued further that the enactment of the Control of Sale of Specified Goods Decree, 1976 (S.M.C.D. 35), a few months after S.M.C.D. 17 reinforces his argument that at the time the applicant was charged no offence could have been committed.

In order to appreciate counsel's argument fully, I will recount the evidence which has been summarised in the ruling of the learned circuit judge. The purchasing officer of the Procurement Division of the State Fishing Corporation received three pro forma invoices from the applicant. Two were issued on 17 and 19 February 1976 respectively and the last was issued on 24 March 1976. These invoices were issued in respect of dry cell batteries which have been specified under Part I of the Schedule to S.M.C.D. 17. The prices quoted on the invoices issued in February were too high so the purchasing officer declined to buy them. In the third invoice prepared on 24 March, the price quoted was said to be within the controlled price so the purchas