THE REPUBLIC vs. NANA OSEI KWADJO II [2008]DLSC6238

Date	2008-07-11
Suit No.	CRIMINAL APPEAL NO. 2/2000
Citation No.	[2008]DLSC6238

MRS. WOOD C.J. (PRESIDING)

KPEGAH J.S.C.

ATUGUBA J.S.C.

MISS AKUFFO J.S.C.

DR. DATE-BAH J.S.C

SAM WOODE FOR THE APPELLANT.

ERIC FRANCIS AMISON AGBOLOSU CHIEF STATE ATTORNEY

[2008]DLSC6238
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<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"><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><h2 align="center" style="margin:0in;margin-bottom:.0001pt;text-align:center;
line-height:115%">NANA OSEI KWADJO II<o:p></o:p></h2>[SUPREME
COURT, ACCRA]<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">

CRIMINAL
APPEAL NO. 2/2000&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 11TH JULY, 2008<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SAM WOODE 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">

ERIC
FRANCIS AMISON AGBOLOSU CHIEF STATE ATTORNEY<o:p></o:p>

</div>CORAM:
<o:p></o:p>MRS.
WOOD C.J. (PRESIDING), KPEGAH J.S.C., ATUGUBA J.S.C., MISS AKUFFO J.S.C., DR.
DATE-BAH J.S.C<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>KPEGAH,
J.S.C. <o:p></o:p>My Lords, I am not certain whether to
describe this judgment as a valedictory judgment or not. However, since there
may be a good possibility of it turning out to be so because I have to start
listening to my body and the advice of my doctors after my spinal surgery. I
have been advised that long hours of sitting is not advisable for a person who
has the type of surgery that I had, and since this job is mainly sedentary, I
have to start considering bowing out and find myself a more convenient way of
life in the future. I will therefore be candid and frank in my views on a
series of legal issues which I consider not only relevant to the appeal before
us but also very critical to the development of our jurisprudence in the area
of the protection of the fundamental rights of the individual as enshrined in
chapter Five of our Constitution, 1992. Some of the legal issues I have in mind
greatly informed my position in this case. And, since this might be the last
time I may be sitting with my colleagues and speak from this court; that is to
say, “EX-CHATHEDRA’, I cannot possibly suffer the judgment to be without my
D.N.A. I will therefore be examining some of the decisions of the court which I
have reservations about; especially those in which we have declined jurisdiction
on grounds which appear to me to be too technical, or to be a clear case of
misapprehension of the relevant law. The first of such cases is the case of: IN
RE PARLIAMENTARY ELECTIONS FOR WULENSI CONSTITUENCY; ZAKARIA v NYIMAKAN
[2003-2004] SCGLR 1. <o:p></o:p><o:p>&nbsp;</o:p>The issue in this case before the Supreme
Court was whether or not there is a right of appeal to the Supreme Court in
respect of an election petition in the High Court as to whether a person has
been validly elected as a member of Parliament. A person aggrieved by the
decision of the High Court has a right of appeal to the Court of Appeal but the
article which gives the right of appeal from the High Court to the Court of
Appeal is silent on whether there is a further right of appeal from the
decision of the Court of Appeal to the Supreme Court. In a 4:1 decision the
Supreme Court held that no such right of appeal exists. This, in my humble
view, is most regretable. <o:p></o:p>My reason for so saying will become
apparent when I come to discuss the case vis-à-vis our jurisdiction as the
final Court of the land. For the moment, however, I can say that I am in full
agreement with the dissenting views expressed by my learned and respected
Sister Sophia Akuffo JSC, and regret that it is not the majority decision. I
will now therefore focus on the case before us.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;I
have read the judgment about to be delivered by my learned and respected
brother Date–Bah, JSC. When I last discussed the case with him, he indicated
that he was still firm in his views that the appeal was without merit and
should be dismissed. I, on the other hand, reiterated my views, which I had
expressed at all our judgment conferences, in favour of allowing the appeal.
This is as it should be since it not only inures to the benefit of the law;
that is to say the development of our criminal jurisprudence. I have read the
record of proceedings several times and regret to say, with much respect to my
learned and respected brother that certain vital and relevant pieces of
evidence on record had escaped his usually keen and critical analysis. I must,
however, emphasise that his statement of the facts are basically correct and
borne out by the record.<o:p></o:p>&nbsp;But
whenever the need arises for me to review the evidence as a way of elucidating
my thought-process, I will do so. I must say immediately, without fear of
contradiction,that both on the available evidence and the applicable law, the
conviction of the Appellant is seriously and woefully flawed and cannot be
sustained.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;I am
firmly of the view that the appellant ought not to have been called upon to
enter his defence since he has no obligation to prove his innocence because the
burden of proof is on the prosecution throughout a criminal trial. This
time-honoured principle or rule of evidence has now been restated in section
15(1) of the Evidence Decree (1970) NRCD 323 as follows:— <o:p></o:p><o:p>&nbsp;</o:p>“Unless and until it is shifted the party
claiming that a person is guilty of a crime or wrong doing has the burden of
persuasion on that issu</main>