OPUNI vs. THE STATE [1965]DLSC1842

Date	1965-02-26
Suit No.
Citation No.	[1965]DLSC1842

MILLS-ODOI JSC

ACOLATSE JSC

SIRIBOE J.S.C.

C. F. HAYFRON-BENJAMIN JNR. FOR THE APPELLANT.

K. A. SEKYI STATE ATTORNEY FOR THE RESPONDENT.

[1965]DLSC1842
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													<main id="main" class="content" style="min-height: 60rem" >OPUNI <o:p></o:p>vs. <o:p></o:p>THE STATE <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 82<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
26 FEBRUARY 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

C. F. HAYFRON-BENJAMIN, JNR. FOR THE APPELLANT.<o:p></o:p>

K. A. SEKYI, STATE ATTORNEY, FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

MILLS-ODOI, ACOLATSE AND SIRIBOE
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ACOLATSE J.S.C.<o:p></o:p>Acolatse
J.S.C. delivered the judgment of the court. This is an appeal against the
conviction of the appellant for murder before Apaloo J. (as he then was) on 7
January 1964, sitting with a jury in the Criminal Session of the High Court
held at Kumasi. The charge alleged against the appellant was that on 27
November 1961 at Seniagya in the Ashanti Region he murdered one Kwaku Boaitey.<o:p></o:p><o:p>&nbsp;</o:p>Before
dealing with the points of law raised by learned counsel for the appellant it
is necessary to relate the facts surrounding the death of the deceased. There
was no eye-witness to the murder. The case for the prosecution therefore
depended entirely on circumstantial evidence.<o:p></o:p><o:p>&nbsp;</o:p>The facts
are as follows: The appellant herein is a nephew of the deceased, the ex-Adumasahene
of Seniagya. He succeeded the deceased who was destooled as Adumasahene. He is
a storekeeper by occupation at Seniagya. The prosecution led evidence to
establish motive in that there had been litigation over cocoa farms since the
appellant succeeded the deceased. The litigation, which was pending in the High
Court at the time of the incident, was instituted by the deceased’s maternal
uncle, Kwasi Anyewuo, who claimed the farms in dispute. The deceased sided with
Anyewuo. As a result of the differences over the cocoa farms the matter went on
arbitration before the Effiduasehene on the complaint of the appellant who was
adjudged right. Anyewuo and the deceased however clung to the farm. The
deceased reported the appellant to the police when he plucked the cocoa. The
appellant considered the deceased a party to the litigation and he himself said
so in his statement (exhibit J) made on 28 November 1961. The prosecution,
therefore, regarded the dispute over the farms as a possible reason for the
killing.<o:p></o:p><o:p>&nbsp;</o:p>There is
also the evidence given by the second prosecution witness to show that the
appellant had the opportunity to commit the murder. The second prosecution
witness saw the appellant in clear moonlight at the first cockcrow in the early
morning of the day in question walking towards Apaaso and alleged that he was
carrying a gun, identified by him as a garden gun, exhibit K. The appellant, he
said, was wearing a pair of shorts with a bush shirt worn loosely over them.
They exchanged greetings and passed each other. Not long after the witness
passed the appellant at a distance of about 307 yards, he met the deceased
carrying a pot in a pan and he was, like the appellant, walking in the
direction of Apaaso. They spoke to each other and the deceased asked him to
inform Oppong, the fourth prosecution witness, to come up quickly. The deceased
was a palm wine tapper. After parting from the deceased, and not long after, he
heard the report of a gun from the direction of Apaaso which at that time he
thought was fired by a hunter at game. In due course, on his way to Seniagya,
he met the fourth prosecution witness and delivered the deceased’s message to
him. The witness knew both the appellant and the deceased before the day of the
incident. He is not related to them. The witness was not challenged upon his
evidence of meeting the appellant carrying a garden gun and of their greeting
each other on the road to Apaaso.<o:p></o:p><o:p>&nbsp;</o:p>The
prosecution referred to the following subsequent conduct of the appellant as
indicative of his guilt. When the appellant was charged by the police with the
offence he made a statement, exhibit H, in which he denied all knowledge of
ever owning or possessing a garden gun. The ninth prosecution witness, an uncle
of the appellant, testified for the prosecution that a garden gun and a
single-barrel gun which he inherited from his brother Kofi Darkwa were taken
from him by the family and handed over to the appellant who was given the stool
on the destoolment of Boaitey. This evidence, we observed, was not challenged
by the defence. Again we find in exhibit J, a caution statement of the
appellant, that he confessed to having a garden double-barrel gun with him at
Seniagya until 27 November 1961, when he went and hid the said gun in a cocoa
farm, his reason being that because of his litigation with the deceased over
the farms, he became frightened when he heard that the deceased was found dead
on the Apaaso road. His other reason for doing so was that people might suspect
him of being the one who killed the deceased.<o:p></o:p>