TEKPA ALIAS DZOMAKU vs. THE STATE [1966]DLCA1766

Date	1966-11-14
Suit No.
Citation No.	[1966]DLCA1766

OLLENNU JA

AZU CRABBE JA

LASSEY J.A.

S. A. X. TSEGAH FOR THE APPELLANT.

K. A. SEKYI SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1966]DLCA1766
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													<main id="main" class="content" style="min-height: 60rem" >TEKPA ALIAS DZOMAKU<o:p></o:p>vs. <o:p></o:p>THE STATE <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1966] GLR 743<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:
14 NOVEMBER
1966.<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">

S. A. X. TSEGAH FOR THE APPELLANT.<o:p></o:p>

K. A. SEKYI, SENIOR 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">

OLLENNU, AZU CRABBE AND LASSEY JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AZU CRABBE J.A.<o:p></o:p>Azu
Crabbe J.A. delivered the judgment of the court. In this case the appellant was
convicted on 2 February 1965, before Sowah J. sitting with a jury, of the
murder of one Yawo Gomashie.<o:p></o:p><o:p>&nbsp;</o:p>The case
for the prosecution was briefly as follows: On or about 28 June 1964, the
relatives of the deceased, Yawo Gomashie, observed that his behaviour was
becoming abnormal, and they thought that he was getting insane. Three days
after this illness had started the mother-in-law of the appellant visited the
house where the deceased lived with his relatives, and she told the relatives
that the appellant was a herbalist who cured insanity, and that if they took
the deceased to him, he (the appellant) would cure him. Following this advice,
four of the deceased’s relatives, later joined by one Joseph Gomashie (the
first prosecution witness), took the deceased to the appellant’s house where he
was admitted as a patient. Two other persons who lived in the house of the
appellant at the time were Agbodamegbe Kuba (the eighth prosecution witness)
and Sotiavi Amuzu (the twelfth prosecution witness). According to these
relatives, who gave evidence, the deceased walked with them to the appellant’s
house. They denied suggestions that they tied the deceased and carried him to
the appellant’s house. They said that they bargained with the appellant about
his fees and he agreed to charge £G50, and asked for a down payment of £G10.
Before they left the appellant’s house they noticed that the deceased had been
chained. The next morning when the relatives went to visit the deceased they
saw marks of beating on him, and when the first prosecution witness demanded an
explanation for the beating the appellant admitted that he had done it, because
the deceased had pulled down a shed. The shed was, however, found standing, but
the appellant explained that he had repaired it during the night. The first
prosecution witness warned the appellant not to beat the deceased any more.
Some few days later the father of the deceased went to visit him, and on
entering the appellant’s house he found that the gate of the fetish grove in
the house was open. He rushed in and there he found his son lying motionless;
he was apparently dead. He came out of the grove and went into the room of the
appellant and informed him of what he had seen. The appellant said that the
deceased was having epileptic fits, but he later admitted that he was dead. The
father of the deceased and other relatives who gave evidence said that the
deceased in his lifetime never suffered from epileptic fits. The two inmates of
the appellant’s household, the eighth and twelfth prosecution witnesses, both
testified that they witnessed the beatings that led to the death of the
deceased. In his evidence the eighth prosecution witness said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“One
morning I heard the cry of the deceased, he was being beaten, the beating
continued until I went to the toilet when I returned he was still beating him,
and I asked him why he should beat a human being like that. I saw that the
deceased was being beaten with a twisted wire taken from a lorry tyre. When I
questioned him, he got annoyed and gave me two strokes with the whip, that is
why I saw the whip. The marks are still on my back. Yaw Gomashie is dead. On
the eve of his death he was beaten. From my room I could hear the cry of the
deceased shouting ‘Why are you beating me like that.’ One morning the accused
told me that Yaw had died.”<o:p></o:p><o:p>&nbsp;</o:p>The
severity and extent of the injuries caused by these beatings are highlighted by
the evidence of the medical officer who performed the post-mortem examination
on the deceased. The doctor deposed as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“On my
examination I found the body to be an African male adult 45 years, a very
strong and athletic build, there were many many lacerated wounds and abrasions
of different sizes and lengths all over the body; both arms, hands. Both legs
and head were covered with wounds all about 50 or even more. The head was
moving left and right, completely free as the neck spine was broken and the
spinal cord cut off. On internal examination, I found a huge haemorrhage of the
vein within bleeding, on internal examination of chest the lungs were not
damaged or injured, but were congested with blood. Abdomen in general was normal.
On the neck examination, there was a fracture of the third cervical neck spine.
The cause of death was due to neck spinal fracture and brain haemorrhage.”<o:p></o:p>The
doctor continued:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:y</main>