YENTEBISI vs. THE REPUBLIC [1987]DLCA815

Date	1987-11-03
Suit No.
Citation No.	[1987]DLCA815

ABBAN JA

OSEI-HWERE JA

AMPIAH J.A.

GBONEY FOR THE APPELLANT.

SAM BADDOO CHIEF STATE ATTORNEY FOR THE REPUBLIC.

[1987]DLCA815
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													<main id="main" class="content" style="min-height: 60rem" >YENTEBISI <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[COURT OF APPEAL, 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; [1987-88] 1 GLR 516<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 3
NOVEMBER 1987<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">

GBONEY FOR THE APPELLANT. <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">

ABBAN, OSEI-HWERE AND AMPIAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.A.<o:p></o:p>Abban
J.A. delivered the judgment of the court. The appellant was convicted of murder
on 25 October 1982 and sentenced to death by the High Court, Bolgatanga. It is
from that conviction that he appealed to this court on several grounds.<o:p></o:p><o:p>&nbsp;</o:p>The
substance of these grounds was that there was a misdirection on the part of the
trial judge in his summing up to the jury, in as much as the learned trial
judge failed to direct the jury adequately on the defence of provocation; and
that he also failed to leave the issue of provocation to the jury as an
alternative defence.<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel for the appellant submitted that the learned trial judge practically
withdrew the defence of provocation from the jury by impressing on them that
there was no evidence from the appellant to show that before the fatal injuries
were inflicted, the deceased did anything which could amount to provocation in
law so as to entitle the appellant to the benefit of manslaughter. For there
was evidence from the appellant that the appellant was attacked by the deceased
with an axe and it was after the appellant and the deceased had struggled for
some time, that the appellant overpowered the deceased. Learned counsel
therefore submitted that the misdirection had occasioned grave miscarriage of
justice and in the circumstances the conviction ought to be quashed.<o:p></o:p><o:p>&nbsp;</o:p>It was
readily conceded by the learned chief state attorney for the Republic that
there was a misdirection as complained of by learned counsel for the appellant,
because evidence of assault and fight was proffered by the appellant which, if
believed, could amount to provocation. The learned chief state attorney,
however, contended that the misdirection notwithstanding, the jury could still
convict the appellant since there was sufficient evidence on record to support
the conviction of murder; and so there was no substantial miscarriage of
justice and in the circumstances the conviction should not be disturbed.<o:p></o:p><o:p>&nbsp;</o:p>It is
obvious that the learned trial judge misdirected the jury on the evidence as to
provocation which the appellant gave at the trial. The appellant gave detailed
evidence to show how the deceased attempted to strike him with an axe, but the
appellant disarmed him and a fight ensued. It was during the fight that the
appellant said he inflicted the injuries. It was therefore a misdirection to
direct the jury that: “There is no evidence of anything which the deceased had
done shortly before he was killed which can be regarded as provocative.” Again
the appellant gave evidence to the effect that he never bore the deceased a
grudge, yet the learned trial judge in his summing up misdirected the jury on
that evidence to the contrary. However there was overwhelming evidence on
record showing that the appellant had an intention to kill the deceased and did
kill him. So that it can safely be said that despite the misdirection
complained of, if the jury had been properly and adequately directed they could
have returned the same verdict of murder.<o:p></o:p><o:p>&nbsp;</o:p>The way
and manner the injuries were inflicted and the extent of those injuries were
clear manifestation of the appellant’s intention to kill. The evidence of the
second prosecution witness could be referred to in support of this. She 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">“I saw it
happen. When the a</main>