KAMBEY AND OTHERS vs. THE REPUBLIC [1989]DLCA615

Date	1989-12-13
Suit No.
Citation No.	[1989]DLCA615

LAMPTEY JA

ESSIEM JA

ADJABENG J.A.

A. ATUGUBAH (WITH HIM ANDOH) FOR THE APPELLANTS.

SAM BADOO CHIEF STATE ATTORNEY (WITH HIM MRS. ANSON CHIEF STATE ATTORNEY) FOR THE RESPONDENT.

[1989]DLCA615
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >KAMBEY 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>[1989-90] 1 GLR 213<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:
13
DECEMBER 1989<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">

A. ATUGUBAH (WITH HIM ANDOH) FOR THE APPELLANTS.<o:p></o:p>

SAM BADOO, CHIEF STATE ATTORNEY (WITH HIM MRS.
ANSON, CHIEF 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">

LAMPTEY, ESSIEM AND ADJABENG JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LAMPTEY J.A.<o:p></o:p>Lamptey
J. A. delivered the judgment of the court. On 16 April 1987 Pastor George
Adabire Israel Apasere of the Assemblies of God Church at Duusi in the Upper
East Region of Ghana engaged a number of men to mould blocks for him. Around
9.30 am of that day, Pastor Apasere heard an alarm while at work with these
men. He investigated the cause of the alarm and learnt that, “the Duusi chief
and his subjects had gone to harvest dawadawa fruits and some people armed with
bows and arrows had surrounded them and were shooting at them.” Pastor Apasere
immediately found a vehicle and caused it to be driven to the Bolgatanga Police
Station where he made a report of what he had heard. A detachment of policemen
was as a result of the report despatched to Yale village to stop the fighting
and restore and maintain peace. At the sight of the policemen the combatants
fled from the scene of battle. After the dust of battle had settled it was discovered
that this regrettable skirmish had resulted in the death of two persons. The
seven appellants before this court were charged on two counts of murder and
tried by a judge and jury at the criminal assizes holden at Bolgatanga. Each of
the seven appellants was convicted of the offence of murder and sentenced to
death according to the law. Each of the seven appellants is dissatisfied with
his conviction and sentence and appealed to this court on four original and
five additional grounds of appeal.<o:p></o:p><o:p>&nbsp;</o:p>The first
ground of appeal argued by the learned counsel for the appellants was stated as
follows: “the verdict is unreasonable and cannot be supported having regard to
the evidence.” In arguing this ground of appeal, learned counsel took the court
through the evidence of the first and second prosecution witnesses, the only
eyewitnesses of what took place on that fateful day. He sought to show that the
evidence of the first prosecution witness did not corroborate that of the
second prosecution witness on material issues. He contended that the evidence
given by the first and second prosecution witnesses considered together failed
to show and identify the person or persons who shot the fatal arrows at the two
deceased persons. He contended that the trial judge failed to direct the jury
properly on the facts and the law. He submitted that the judge had misdirected
the jury by non direction hence the jury returned a perverse verdict. In reply
the learned chief state attorney defended the verdict on the ground that on the
facts given in evidence before the lower court the seven appellants had planned
and executed a common enterprise which resulted in causing the death of the two
victims. In the special circumstances of this case he submitted that the
offence of murder was successfully proved by the prosecution and the verdict of
the jury ought not to be disturbed by this court. Learned chief state attorney
referred to and relied on the English criminal case of R. v. Grant (1954) 38
Cr. App. R. 107, C.C.A. which decided that:<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">“If
several persons embark on an enterprise to commit a felony and have also the
preconceived common intention to use violence of any degree, if necessary, for
the purpose of overcoming resistance, and death results from such violence, all
are guilty of murder even though the felony be one that does not in itself
involve violence, such as larceny.”<o:p></o:p><o:p>&nbsp;</o:p>In our
view to understand the proposition of law laid down above it is necessary to
look at and examine the facts of that case. The facts are that the appellants
had embarked on a plan to steal from a hotel at which one of the appellants had
been previously employed and to overcome by force any resistance on the part of
the night porter whom they knew to be employed there. In the course of
resistance offered by the night porter, he was struck several blows, knocked
senseless on the floor and gagged, and later died from the injuries he had
sustained. There can be no doubt that the facts reproduced above can be
distinguished from the facts of the case before the lower court. No useful
purpose would be served by drawing attention to these marked differences.
Suffice it to record that in the instant appeal there was no evidence to show
that the seven appellants together with the other women did set out to commit a
felony nor that they knew that they would be opposed by others. They had set
out to pluck and harvest dawadawa fruits and for that purpose were armed with
“pluckers.” There was no evidence from the first and second prosecution
witnesses that any of the seven appellants was armed with bows and arrows.
There was no evidence from them that any one of the seven appellants shot an
arrow or arrows at the deceased persons. The English criminal case relied upon
by the learned chief state attorney can clearly be distinguished from the
instant case and does not help this court in considering the present appeal.<o:p></o:p><o:p>&nbsp;</o:p>In this
court learned counsel for the appellants submitted that the verdict of the jury
in the lower cour</main>