REPUBLIC vs. ZINITEGE [1993]DLCA855

Date	1993-04-08
Suit No.
Citation No.	[1993]DLCA855

KPEGAH JSC

AMUAH JA

BROBBEY JA

M K OYERE FOR THE APPELLANT.

OSAFO-SAMPONG CHIEF STATE ATTORNEY FOR THE REPUBLIC.

[1993]DLCA855
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">REPUBLIC<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">ZINITEGE<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1993-94] 1 GLR 1<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 8 APRIL
1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>M K OYERE FOR THE APPELLANT.<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">

OSAFO-SAMPONG, CHIEF STATE ATTORNEY, FOR THE REPUBLIC. <o:p></o:p>

KPEGAH JSC, AMUAH AND BROBBEY JJA<o:p></o:p>

</div>JUDGMENT OF BROBBEY JA.<o:p></o:p>The appellant was tried, convicted and sentenced for the offence
of murder. Aggrieved by the conviction and sentence, he appealed to this court.<o:p></o:p>Only one ground of appeal was filed on his behalf. It was that the
trial judge did not adequately consider the case of the appellant. In arguing
that ground, counsel for the appellant contended that the judge failed to
direct the jury adequately on the issue of self-defence and provocation.<o:p></o:p>The facts which gave rise to the charge were as follows: The
deceased was the nephew of the appellant.<o:p></o:p>Some time in or around December 1985 the appellant went to a
drinking bar. He bought some pito for himself. While drinking, a girl-friend of
his approached him. He bought her some of the pito which he had bought for
himself.<o:p></o:p>At the end of the drinking, he took the girl to the house of the
deceased where he decided to spend the night with her. Apparently the drink he
had taken got the better part of him and he over-slept, leaving the girl lying
by his side. When he woke up he could not immediately see the girl by his side.
He eventually located her lying elsewhere. She then complained to the appellant
that in the night someone had sexual intercourse with her. Thinking that that
person was the appellant, she did not resist. After the sexual act, she was
chagrined to discover that it was not after all the appellant who had come to
lie on her but his nephew, the deceased, who masqueraded as the appellant. When
the appellant later questioned the deceased about the allegations of the girl,
he denied everything.<o:p></o:p>On 24 December 1985 the appellant went to a drinking bar. The
deceased joined him later, with some friends of his. They bought and drank some
alcoholic drink there. While there, the deceased cast insinuations at the
appellant to the effect that “If God likes me and human beings do not like me I
care not.”<o:p></o:p>Nothing significant happened there. The appellant left. He later
returned to the bar. The deceased resumed the insinuating remarks, apparently
directed at the appellant. This time, the appellant reacted, and some confusion
ensued. The two were about to fight when both were stopped and driven out of
the bar.<o:p></o:p>The appellant was returning to his house when, according to him,
the deceased who was lurking in some shade on the way suddenly emerged. The
deceased held the shirt of the appellant and used a rubber cane on the
appellant which the appellant seized. The deceased then ran out of the scene,
picked a stick and hit the appellant with it. The stick broke into two pieces.
The deceased went back and picked another stick. He hit the appellant with it
again. The appellant seized that last stick and hit the deceased’s head with
it. That single hit turned out to be a fatal one. The deceased never recovered
from the injury sustained from that blow.<o:p></o:p>In arguing the appeal, counsel for the appellant submitted that
the appellant should have been acquitted on the ground of self-defence. The law
on self-defence is clearly set out in section 37 of the Criminal Code, 1960
(Act 29) and was amply explained in Lamptey alias Morocco v The Republic [1974]
1 GLR 165. The trial judge directed the jury on self-defence. As the Supreme
Court held in the recent case of Kuo-Den alias Sobti v The Republic [1989-90] 2
GLR 203, SC the test to be applied in an appeal like the instant one is not of
seeking to assess what another jury could have done if properly directed or if
it had heard a revised version of the evidence. The appellate Court, the court
held further, must assume a reasonable jury and must then consider whether such
a reasonable jury hearing the evidence could, it properly directed, have failed
to convict.<o:p></o:p>The evidence on which the trial judge directed the attention of
the jury showed that the deceased died of a single blow. From the medical
report, the blow must have been a rather severe one. Having regard to the
nature of that single blow which caused the death of the decease</main>