Supreme Court · 6 Dec 1965 · Ghana
Introduction:
This is a landmark case on criminal liability in Ghana. It clarifies the distinction between mistake of fact and the mistake of law and further reinforces protections against wrongful conviction in drug-related offences.
Facts:
The appellants, members of a religious sect based in Princess Town in Ghana’s Western Region, were charged with cultivating, possessing, and smoking Indian hemp. They maintained that what they grew and used were sacred herbs, which they referred to as the “herbs of life.” For over four years, they had publicly used these herbs in worship, healing rituals, and even as food. According to them, the herb was revealed through spiritual inspiration and was central to their religious and moral teachings. At trial, the second appellant testified:
“I am a farmer. I live at Princess. My leaves are leaves of life. I smoke the leaves which give me wisdom, understanding and strength so that I don’t do after some other people live. I don’t steal, I don’t lead a bad life. I don’t give false evidence against others. I am able to conform to the Ten Commandments. When I smoke, I preach the Gospel to others so that they lead good lives. When I smoke the leaves, I don’t drink. In Genesis Chapter 2 verse 9 the leaves are referred to.”
Their practices, however, led to tension in the community. On Christmas Day, 1963, complaints were made to the local chief, prompting intervention. When the appellants demonstrated and offered the herb to the elders, suspicions arose that it was Indian hemp. The police were notified, and a chemist’s report later classified the herb as Indian hemp.
Although the appellants did not dispute the lab report’s admission, they challenged its accuracy and requested to cross-examine the chemist, who never appeared. Nonetheless, they consistently denied knowing the herb was Indian hemp, insisting on its spiritual value.
Holding:
The Supreme Court allowed the appeal and held that:
- The appellants’ belief that the herb was not Indian hemp was an honest mistake of fact, not a mistake of law.
- Under Section 29(1) of the Criminal Code, 1960 (Act 29), a person is not criminally liable for an act done under an honest mistake of fact.
- The prosecution failed to prove that the appellants possessed the herb with knowledge that it was Indian hemp, as required under the Pharmacy and Drugs Act, 1961 (Act 64).
Appellants were therefore acquitted and discharged.
Implications of the Decision:
This case clarifies the distinction between ignorance of law and ignorance of fact in criminal liability. It underscores that honest mistake of fact can be a complete defence, especially where a statutory offence (like unlawful possession of Indian hemp) requires knowledge of the nature of the item possessed.
Significant Quote:
“The possession must be possession with knowledge of the nature and quality of the article; awareness that what is possessed is ‘opium or Indian hemp’ or ‘residue from the smoking of opium or Indian hemp.’ Physical possession without that knowledge is no offence. Without that knowledge there is no legal possession which can support the charge. Therefore to succeed on such a charge, the prosecution must prove legal possession; that is, in addition to proving physical or constructive possession, they must go further to lead evidence which establishes that the defendant had the requisite knowledge, or evidence from which it will be reasonable to presume that the defendant proved to be in possession well knew, or ought to have known, that the article he possessed was ‘opium or Indian hemp’ or was ‘residue from smoking of opium or Indian hemp’.”
– Ollennu J.S.C., citing Amartey v. The State [1964] G.L.R. 256, S.C.
Commentary and Insight:
This case is an important reminder to the public that not every illegal act results in criminal liability if there is an honest and reasonable mistake of fact. Under Ghanaian law, especially Section 29(1) of the Criminal Code, people are not guilty of a crime if they genuinely and reasonably believed they were acting lawfully based on facts they misunderstood. In this case, the appellants thought they were using a spiritual herb, not a prohibited drug. The law protects such persons from punishment, provided the mistake is about facts, not the existence of the law itself.
Similarly, another possible case of the defence of mistake of fact is when A on a bus from Accra to Kumasi after alighting at the bus stop picked or took the travelling bag of B, with same or similar travelling bag under the mistaken but honest belief that it was his. That cannot found a successful charge of stealing even though A took and went away with the bag. For merely taking or being in possession of an item is not enough. There must also be proved the existence of the accompanying criminal intention.
The case therefore clarifies that mere possession is not enough to secure a conviction for drug offences – the prosecution must prove that the person knew they were in possession of an illegal substance. This protects innocent people from being wrongfully convicted due to ignorance of the nature of a substance in their possession.
From the above, it can be safely said that the criminal defence of mistake of fact is more successful and effective when the conviction for a particular criminal offence requires specific intent, as in the case of fraud or stealing. In other words, mistake of fact does not make an act criminal as criminal intention is negated
