MAHAMA vs. THE REPUBLIC [1979]DLCA1085

Date	1979-03-05
Suit No.
Citation No.	[1979]DLCA1085

APALOO C.J.

FRANCOIS JA

EDUSEI J.A.

MENSAH ETSI FOR THE APPELLANT.

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

[1979]DLCA1085
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													<main id="main" class="content" style="min-height: 60rem" >MAHAMA <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>[COURT OF APPEAL] <o:p></o:p>[1978] GLR 100<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
5 MARCH 1979<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;
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MENSAH ETSI FOR THE APPELLANT.<o:p></o:p>

MRS. J. BAMFORD-ADDO, PRINCIPAL STATE ATTORNEY,
FOR THE REPUBLIC.<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;
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APALOO C.J., FRANCOIS AND EDUSEI JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO C.J.<o:p></o:p>Apaloo
C.J. delivered the judgment of the court. The only point of substance raised in
this appeal is one of law, namely, whether an incriminating statement made by
an accused through an interpreter is admissible in evidence if the interpreter
is not called as a witness. If such statement is inadmissible, what legal
consequence flows from its admission?<o:p></o:p><o:p>&nbsp;</o:p>The facts
of the case are quite simple. On 4 January 1976, there was, what can only be
described as a communal fight at a village called Nyoragu in the Northern
Region. Two antagonistic factions supported rival chiefs and the evidence shows
that the fight erupted because one side was alleged to have insulted the
reigning chief. Sticks, cutlasses and other offensive missiles were freely used
and a number of persons sustained injuries as a result. That a large number of
persons took part in this fight is shown by the fact that on that day, the
police took into custody 29 persons including four females.<o:p></o:p><o:p>&nbsp;</o:p>An
elderly man whose age Dr. Acquaye estimated as 60 years, sustained injury in
this fracas. He was called Issah Sulemana. According to the doctor, his skull
was fractured and this caused his death on 9 January, that is five days after
the incident. It was the Republic’s case, that the appellant caused his death
by hitting him on the head with a stick. He was accordingly charged with
manslaughter.<o:p></o:p><o:p>&nbsp;</o:p>The
prosecution called as a witness one Mama Ghapsie who said he was an eye-witness
of the incident. According to him, when the deceased arrived at the scene, he
“started to separate the fight and the accused hit him, with a piece of stick
on his head.” Another witness, one Fati Sule, also testified that the accused
hit the deceased with a stick. But she was not able to say what part of the
body was so hit.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>The appellant
for his part, admitted taking part in the fight. He said one Fuseini slashed
him at the back of his head with a cutlass and in retaliation, he threw a stick
at him. It missed him. The deceased, who was Fuseini’s father, in turn hit him
on his back with a stick. The appellant said he picked another stick from the
ground and struck his ribs with it. The deceased then left the scene. He denied
that he hit the head of the deceased with the stick. That it was the ribs
rather than the head that the accused struck, was corroborated slightly by the
testimony of Fati Sule, the prosecution’s second witness. She said in
cross-examination, “The deceased was in the vehicle and later complained of
pains in the ribs at the hospital.” But the doctor said, “I found nothing wrong
with the ribs.” Since the cause of death was injury to the head, whether it was
the head that the appellant struck with the stick or ribs was of some
importance. The evidence that it was the appellant who hit the deceased’s head
with a stick was given by only one witness. The prosecution accordingly sought
to tender in evidence through Police Sergeant Gyekye, a cautioned statement
alleged to have been made by the appellant to the police. The statement was
made by the appellant in Dagbani which the police did not understand. It wag
interpreted into English to the sergeant by one Alhaji Sulemana. According to
the police sergeant, after taking the statement, he “read it over to him in the
English language and it was interpreted to him in Dagbani.” The interpreter was
not available at the trial and was not called as a witness. When the police
sought to tender the statement in evidence, it was objected to by counsel for
the appellant on the ground that, “the statement does not reflect what the
accused told the police through the interpreter. The statement is inaccurate.”
The learned judge, Taylor J. overruled the objection and held that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
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