AFOTEY vs. THE REPUBLIC [1986]DLHC825

Date	1986-06-06
Suit No.
Citation No.	[1986]DLHC825

SOWAH C.J.

VON FLEISCHER FOR THE APPELLANT.

FORI-DWUMAH (MRS) FOR THE REPUBLIC.

[1986]DLHC825
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AFOTEY <o:p></o:p>

{HIGH COURT, ACCRA} <o:p></o:p>

&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 1984-86] 1 GLR 475<o:p></o:p>

DATE:
6 JUNE 1986<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

VON FLEISCHER FOR THE APPELLANT. <o:p></o:p>

FORI-DWUMAH (MRS) 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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SOWAH C.J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SOWAH C.J.<o:p></o:p>The facts
of the appeal are simple and straightforward. The appellant and the complainant
are a brother and a sister and live in their family house which has in it a
water tap from which the family draws water.<o:p></o:p><o:p>&nbsp;</o:p>On the
day in question, the appellant’s wife and another sister of his were drawing
water from the tap when the complainant went to fetch water. According to her
after her sister and the brother’s wife had drawn six buckets of water, she
connected a water hose to the tap to start drawing her share of water. Their
younger sister started insulting her then their brother, the appellant, came
out and started beating her up.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant’s version was that his two sisters were fighting over whose turn it
was to fetch water when he came out to separate them. Unfortunately the
complainant bit his finger and a fight ensued. Before he could report to the
police, she had preceded him and made a report.<o:p></o:p><o:p>&nbsp;</o:p>There are
two aspects of this case which are disturbing. First, before the magistrate had
heard the evidence the prosecution had disclosed a previous conviction of the
appellant for a similar offence. There is the following record in the
proceedings:<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: The prosecutor has explained to this court that the accused had been in
a similar case involving the same complainant and the accused was convicted and
sentenced to a bond to be of good behaviour for a period of six months and in default
one year’s imprisonment with hard labour on 31 July 1985 and also a fine of
¢1,000 was imposed on him.”<o:p></o:p><o:p>&nbsp;</o:p>The
disclosure of the previous record of the appellant is wrong in principle and
unacceptable. It was intended to prejudice the decision of the learned
magistrate and it appears that it had that effect.<o:p></o:p><o:p>&nbsp;</o:p>The issue
as to whether the assault was initiated by the appellant or the complainant was
hotly contested; the appellant maintaining that the complainant bit his finger
and he had to defend himself, while the complainant stated that she was
assaulted without just cause. Both sides adduced evidence. For the prosecution
there were the complainant and her husband; for the defence, were the
appellant, his sister and their father. There is no question of counting heads,
that is the number of witnesses called by each side but there was a vital
witness, that is the father of both the complainant and the appellant, whose
evidence should have been considered credited or discredited as the case may be
by the learned magistrate. All things being equal he should be a neutral
witness and unlikely to be biased.<o:p></o:p>