<p class="mb-5" id="contentDlCitation" hidden>[1993]DLCA4906</p> <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" ><span style="font-size: 18px !important;"><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">DAGARTI<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">vs.<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">REPUBLIC<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><span style="font-size:10.0pt;line-height:115%;font-family:"Book Antiqua","serif"">[COURT OF APPEAL]<o:p></o:p></span></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" align="center" style="text-align:center;line-height:115%; border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in; mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:10.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">[1992 – 1993] 3 G B R 1002 – 1007 C.A DATE: 25 MARCH 1993<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">COUNSEL:<o:p></o:p></span></b></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">OFOSU QUARTEY FOR THE APPELLANT.<o:p></o:p></span></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" style="text-align:justify;line-height:115%;border:none; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">MRS ANSON, CHIEF STATE ATTORNEY (WITH HER MISS AMATE AND NEEQUAYE TETTEH) FOR THE RESPONDENT.<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">CORAM:<o:p></o:p></span></b></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" style="text-align:justify;line-height:115%;border:none; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">LAMPTEY JA, ADJABENG JA, FORSTER JA<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">LAMPTEY JA. <o:p></o:p></span></b></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">On 14 December 1984 the appellant, Kwame Dagarti alias Bukari was found guilty of the murder of Thomas Asika and convicted accordingly. The statutory sentence of death was passed on him. He appealed to this court against his conviction and sentence on several grounds. The facts which gave rise to the prosecution of the appellant may be briefly stated as follows: Both the appellant and deceased were convicts and inmates of Sunyani Central Prisons. They shared Cell No 4 Down. The appellant enjoyed the status of “supervisor” in Cell No 4 Down, a status that empowered him to give orders to the other prisoners and occupants in Cell No 4 Down. These other prisoners were obliged to obey his commands and orders. The deceased had been found “guilty” of stealing roasted corn flour, the property of the appellant. The punishment meted out to the deceased was that he should, for three consecutive days, go to a river to fetch drinking water for the use of the inmates of the cell. The deceased, in obedience to that order, fetched water for two days. On the third day he refused or was unwilling to go out to fetch water. On learning about this, the appellant ordered the deceased to go out and fetch water on pain of more serious punishment. The deceased persisted in his refusal. This resulted first, in exchange of insults between the appellant and the deceased. Next, the two of them resorted to exchange of slaps. The deceased was pushed down onto the bare cement floor and while he lay on the floor the appellant stamped on his chest with his feet about four times. At this stage, the appellant was restrained by the other inmates of the cell. The deceased was helped to his feet. He bled from the mouth. The cell had been locked for the night and the deceased was therefore not given immediate medical attention. In the morning, he was escorted to the prison infirmary where the nurse on duty gave him phensic tablets. Five days later, the condition of the deceased changed for the worse. He was rushed to the prison infirmary. He was examined by the prison doctor and admitted as an in-patient. The condition of the deceased steadily changed for the worse. After a further period of five days, he was transferred to the Sunyani Central Hospital. On the same day, the deceased, Thomas Asika, died. These were the circumstances which led to the trial and conviction of the appellant on a charge of murder.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">Before us, one ground of appeal that was argued with considerable force and persuasion was that the trial judge misdirected the jury on the difference between murder and manslaughter; that the misdirection resulted in the wrong verdict being returned against the appellant. It was submitted that if the jury had been properly directed on the essential ingredients of murder, the jury would, on the facts before the court, have returned a verdict of guilty of manslaughter. For the Republic, learned counsel submitted that the jury were properly directed on the law and on the facts and that they reached the right verdict.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">Were the jury properly directed? I agree with the submission that the jury were not properly and correctly directed on one of the essential ingredients of murder, namely on the issue of intent on the part of the appellant to cause the death of the deceased. It is necessary to consider whether there was sufficient evidence to show and establish that the appellant intended to the cause death of the deceased. There was evidence that the appellant stamped on the chest of the deceased about four times. The appellant denied that he did stamp on the chest of the deceased. The post-mortem report showed that the deceased sustained four broken ribs. The jury had no difficulty in rejecting the mere denial by the appellant that he did not stamp on the chest of the deceased.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The issue that arises for serious examination and consideration is whether the appellant stamping on the chest of the deceased as he lay on the floor intended to cause the death of the deceased. In my opinion, it was the duty of the trial judge to direct the jury on the evidence, beginning with the vomiting of blood by the deceased to the day he died, a period of ten days. The first matter on which the jury was not directed was that though there was undisputed evidence that the deceased started to vomit blood after the attack on him, he was denied any immediate medical attention on the evening of the assault. This was the case because the prisoners had been locked up for the night. The summing up was noticeably silent on this aspect of the case.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The evidence before the trial court was that it was the following morning, around 8.00 am that the deceased was sent to the prison infirmary for medical treatment. He was attended to by the prison nurse. The treatment consisted of phensic tablets. In my opinion, since the post-mortem report showed that the deceased had sustained four broken ribs, the trial judge was under a duty to direct the jury on the following matters: (1) the effect (if any) of the delay in giving the deceased medical treatment (2) the nature and type of treatment given him by the prison nurse (3) whether or not there was evidence of the type of injury as disclosed to the two doctors namely, the prison doctor and the doctor at the Sunyani Central Hospital (4) the failure to call the prison doctor and the doctor at the Sunyani Central Hospital to assist the court. I find that the trial judge failed and or omitted to direct the jury on the matters to which I have drawn attention. I have no doubt that if the trial judge had directed the jury on the evidence or the lack of evidence on these issues they may have reached a different verdict.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">In my opinion, it will be helpful to refer to some of the evidence to illustrate the view I have expressed. There was undisputed evidence that for a period of five days after the attack on the deceased by the appellant, the deceased was not shown to have received any treatment apart from an unspecified dosage of phensic tablets. This was what PW4, the prison nurse, told the court;<o:p></o:p></span></p><p class="MsoNormal" style="margin-left:.5in;text-align:justify;line-height:115%"><i><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">“On February 10, 1984 the deceased came to the clinic again with another prisoner. At that time, the prison doctor by name S P R Darku was on duty. He examined Thomas Asika and asked that he be admitted to the prison infirmary. We admitted the prisoner at the prison infirmary.”<o:p></o:p></span></i></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">PW4 was not asked to assist the court with evidence to show the treatment which Dr Darku prescribed for the deceased. More importantly, PW4 never testified that the deceased complained of having suffered four broken ribs or any injury. He did not tell the court that the deceased was treated for four broken ribs or for any particular injury while he wa</main>
