KOFI ALIAS BUFFALO AND OTHERS vs. THE REPUBLIC [1988]DLCA772

Date	1988-03-31
Suit No.
Citation No.	[1988]DLCA772

ABBAN J.S.C

OSEI-HWERE JA

AMPIAH J.A.

J. O. AMUI FOR THE FIRST AND SECOND APPELLANTS.

BONNEY FOR THE THIRD APPELLANT.

MRS. C. ANSON PRINCIPAL STATE ATTORNEY FOR THE REPUBLIC

[1988]DLCA772
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													<main id="main" class="content" style="min-height: 60rem" >KOFI ALIAS BUFFALO AND OTHERS <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 1 GLR 520<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
31 MARCH 1988<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">

J. O. AMUI FOR THE FIRST AND SECOND APPELLANTS. <o:p></o:p>

BONNEY FOR THE THIRD APPELLANT. <o:p></o:p>

MRS. C. ANSON, 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;
padding:0in 0in 0in 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.A.<o:p></o:p>Osei-Hwere
J.A. delivered the judgment of the court. In the night of Tuesday 29 March
1983, Kofi Appah (may his soul be blessed) geared himself up for a fight. His pugnacious
temperament turned out, unfortunately, to be the harbinger of his doom and of
the ill-fate that has befallen the appellants. As he strolled the street of
Korle Wokon with his girl-friend, the fourth prosecution witness, he came upon
the second appellant who was engaged in a mere verbal altercation with the
first prosecution witness, a woman who sold cooked rice in front of the Royal
Cinema. He broke this idyll moment with his lover and interposed himself
between the quarrelling parties to separate them. According to the second
appellant he gave him a blow and he fell down. The stick of cigarette he was
holding got broken and he accused the second appellant of breaking it. He
removed the cap the second appellant was wearing and walked away with it.<o:p></o:p><o:p>&nbsp;</o:p>The
second appellant followed him to retrieve his cap which, like a policeman’s
cap, seemed inseparable but Kofi Appah rushed back to the first prosecution
witness and removed his shoes, his shirt—in fact all his articles of
dress—leaving only his underwear which he committed to her charge. In this
state of undress and now prepared to pose an “I am ready to fight” stance he
sallied forth and eventually engaged in a fight with the second appellant.
After this engagement he was allegedly led to his house by his girl-friend and
there they parted. He was on the street again not long after to re-engage in a
fight with the second appellant. The first and the third appellants arrived on
the scene and the first appellant is alleged to have headed Kofi Appah and queried
why he was fighting with his brother. Kofi Appah picked a stool and hit the
first appellant with it. He ran back to his house and, as narrated by one of
the prosecution witnesses, the sound of a cutlass being drawn on the floor of
the house was heard and someone shouted that a cutlass was being brought. This
announcement sent the people around running helter-skelter. He emerged from his
house and locked himself in a fight with the first appellant. This last fight
closed his life for he received a fatal wound near his right collar bone to
which he succumbed that same night.<o:p></o:p><o:p>&nbsp;</o:p>The
first, the second and the third appellants were charged with conspiracy to
murder and the first appellant with murder. They were arraigned before the
Criminal Assizes held in Accra on 5 December 1984, and on 25 February 1985 they
were found guilty of the offences charged and they were convicted and the death
sentence was passed on them. Aggrieved by their conviction they have brought
their appeal to this court upon their own home-brewed grounds of appeal which
in substance are to the effect that (a) the learned trial judge misdirected
himself in failing to withdraw the charge of conspiracy from the jury and (b)
that the verdict is unreasonable and cannot be supported having regard to the
evidence. Counsel argued other grounds of misdirection.<o:p></o:p><o:p>&nbsp;</o:p>The
prosecution called at the trial, as many as eleven witnesses and tendered only
the cautioned statement of the first appellant. That of the second appellant
was rejected and no attempt was made to tender any cautioned statement of the
third appellant. Instead, the police witness tried to circumvent this by
narrating what the third appellant told him after he had been cautioned. The
trial judge properly directed the jury to disregard that piece of evidence. The
prosecution evidence, so far as it touched the conspiracy count, is that the
second and the third appellants were present at the scene of the last encounter
between the deceased and the first appellant. Those the prosecution called as eye-witnesses
to this last fight were the eighth prosecution witness (Adelaide Naa Odamtten,
a kenkey seller) and the ninth prosecution witness (Dorcas Yalley), a young
school girl who was made to swear the oath after she had been examined on the
“voir dire” and passed the test.<o:p></o:p><o:p>&nbsp;</o:p>The
eighth prosecution witness said it was a straight fight between the first
appellant and the deceased and that she saw the head of the deceased u</main>