MENA vs. THE REPUBLIC [1977]DLCA1362

Date	1977-07-19
Suit No.
Citation No.	[1977]DLCA1362

AZU CRABBE C.J

SOWAH JA

KINGSLEY-NYINAH J.A.

AGYEMANG-BEMPA FOR THE APPELLANT.

MRS. J. BAMFORD-ADDO PRINCIPAL STATE ATTORNEY FOR THE RESPONDENT.

[1977]DLCA1362
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													<main id="main" class="content" style="min-height: 60rem" >MENA <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977]1 GLR 287<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:
19 JULY 1976<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">

AGYEMANG-BEMPA FOR THE APPELLANT.<o:p></o:p>

MRS. J. BAMFORD-ADDO, PRINCIPAL 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">

AZU CRABBE C.J., SOWAH AND
KINGSLEY-NYINAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AZU CRABBE C.J.<o:p></o:p>Azu
Crabbe C. J. delivered the judgment of the court. The appellant was convicted
on 24 June 1969, at the High Court (Brong-Ahafo Criminal Session held at
Sunyani) before Baidoo J. and a jury for the murder of one Abenaa Konadu on 3
November 1967, at Bowohomoden farm cottage, near Senya village, in the
Brong-Ahafo Region, and was sentenced to death. The appellant’s appeal against
his conviction has now, after the lapse of almost seven years, come before this
court. In view of the conclusion it has come to in this appeal, this court
cannot but deplore the excessive delay in listing this appeal for hearing. It
is a classic illustration of the oft-quoted aphorism: “justice delayed is
justice denied.”<o:p></o:p>In this
appeal, counsel for the appellant addressed the court on two grounds of appeal,
namely:<o:p></o:p>(a) The
conviction was unreasonable having regard to the evidence.<o:p></o:p>(b) the
judge erred in law by failing in his statutory duty under section 271 of Act 30
to consider whether there was any evidence to be left with the jury and if not
to withdraw the case from the jury and direct them to enter a verdict of
acquittal.<o:p></o:p><o:p>&nbsp;</o:p>Before
dealing with the merit of the arguments of counsel in this appeal, it would be
convenient to deal with two important points of procedure which attracted the
attention of the court. First, it appears on the record that at the close of
the case for the prosecution the learned trial judge made the following notes:<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">“By
court: Mr. Takyi states he has no submission to make at this stage and that he
wants the accused to give evidence on oath. Ruling: In the absence of any
submission of no case, I call on the accused to enter into his defence.”<o:p></o:p><o:p>&nbsp;</o:p>With very
great respect, this court is of the opinion that the reason given by the
learned judge for calling upon the appellant to give evidence in his defence
was untenable, and it amounted to an abdication of his function under section
271 of the Criminal Procedure Code, 1960 (Act 30).<o:p></o:p><o:p>&nbsp;</o:p>The
functions of a trial judge at the conclusion of the prosecution’s case are
stated in section 271 of the Criminal Procedure Code, 1960 (Act 30), 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">“The
Judge may consider at the conclusion of the case for the prosecution whether
there is any case for submission to the jury, and if the Judge is of opinion
that there is no evidence that the accused has committed any offence of which
he could be lawfully convicted on the indictment upon which he is being tried,
the Judge shall forthwith direct the jury to enter a verdict of not guilty and
shall acquit the accused.”<o:p></o:p><o:p>&nbsp;</o:p>It is
thus a question of law for the trial judge whether or not “there is no
evidence” to establish that the accused has committed any offence known to our
law. The duty to decide this question is cast on the judge whether or not a
“submission of no case” is made to him by the defence, for as Abbot C.J. said
in R. v. Burdett (1820) 4 B. &amp; Ad. 95 at pp. 161-162: “No person is </main>