MATHEW KWAME SABBAH vs. THE REPUBLIC [2009]DLSC2714

Date	2009-07-29
Suit No.	CRIMINAL APPEAL NO. J3/2/07
Citation No.	[2009]DLSC2714

ATUGUBA JSC (PRESIDING)

ANSAH JSC

ADINYIRA (MRS) JSC

ANIN YEBOAH JSC

BAFFOE-BONNIE JSC

AHUMAH OCANSEY FOR THE APPELLANT.

THE ATTORNEY GENERAL FOR THE RESPONDENT.

[2009]DLSC2714
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													<main id="main" class="content" style="min-height: 60rem" >MATHEW KWAME SABBAH<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[SUPREME
COURT]<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. J3/2/07&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
29TH JULY, 2009.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AHUMAH
OCANSEY 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">

THE
ATTORNEY GENERAL FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

ATUGUBA
JSC (PRESIDING), ANSAH JSC, ADINYIRA (MRS) JSC, ANIN YEBOAH JSC, BAFFOE-BONNIE
JSC<o:p></o:p>

</div>J U D G M E N T<o:p></o:p>SOPHIA
ADINYIRA (MRS) JSC: <o:p></o:p>This
appeal is against the judgment of the Court of Appeal dated 20 January 2004
which affirmed the conviction and sentence of the appellant for murder. The
appellant was tried and convicted together with another person by an Accra High
Court upon a verdict of a Jury on 7 August 2001, on charges of conspiracy to
commit murder and murder. On appeal, the other person was acquitted and
discharged on both counts. The Court of Appeal acquitted the appellant on the
conspiracy charge but affirmed the conviction for murder. The appellant
accordingly appealed on the sole ground that:<o:p></o:p>“On the totality of the evidence the
trial judge misdirected the jury by non-direction on the defences of
provocation and justifiable harm available to the appellant, and the dismissal
of the same defences by the Appellate Court occasioned miscarriage of justice
to appellant” <o:p></o:p>The
case for the prosecution was that on 21 Jan 1993, the deceased Amegbor Amedorme
took John Narteh Amergbor (PW2) to Adornukedzi Island to inspect some palm
trees that PW2 wanted to buy to distil akpeteshie. They were accompanied by
Andrew Agormedah (PW3). They met the appellant who was fishing. PW3 said he
greeted the appellant but he did not respond. On their way back the deceased
was in the lead followed by PW2 and then PW3. According to PW2, the appellant
emerged from the back of a palm tree and slashed the neck of the deceased with
a cutlass and he staggered and fell. The appellant turned on him and he parried
the blow and was injured on the 2nd, 3rd, and 4th fingers. The appellant tried
to slash his stomach and once again he tried to block the cutlass and he had a
cut on his right forearm. PW2 and PW3 fled the scene leaving the deceased
behind. His evidence was corroborated by PW3.<o:p></o:p>The
case for the appellant was that the land belonged to his family and he was on
it to harvest palm fruits to sell to pay his school fees. His family and the
deceased’s family have been litigating over the land. When he saw the deceased
and two others he asked them their mission and the deceased who was holding a
cutlass slashed him on the wrist and left knee. He became furious so he started
brandishing the cutlass he was holding and it cut&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; PW2 on his arm and the neck of the
deceased. The deceased fell and the others then fled and he decided to make a
report to the police. He saw that the head of the deceased was almost off so he
cut it off as he did not want anyone to come for it in his absence.<o:p></o:p>Misdirection
on the law relating to Murder and Manslaughter <o:p></o:p>There
is no doubt that the deceased died of injuries which from the evidence of PW2
and PW3 were inflicted on him by the appellant. The appellant admitted both in
his statement to the police and in his evidence at the trial that he killed the
deceased. <o:p></o:p>Counsel
for the appellant made submissions that the evidence before the Court showed
that:<o:p></o:p>(i)
The appellant was attacked by the deceased<o:p></o:p>(ii)
He provoked the appellant to fight back in response <o:p></o:p>(iii)The
appellant had no intention to kill the deceased<o:p></o:p>(iv)
The deceased and PW2 and PW3 could have killed him but for&nbsp; his courageous counter-attack.<o:p></o:p>Counsel
therefore argued that the trial judge in her summing up ought to have directed
the jury to consider the defences of provocation or self defence which arose
from the defence.&nbsp; No submissions were
made on behalf of the Respondent by the Attorney-General’s Department although
they were served on several occasions.<o:p></o:p>We
agree with counsel on this point. It is trite law that “in a case like this
when a jury can return a verdict of not guilty on the grounds of justification,
a verdict of guilty of manslaughter or a verdict of murder, the judge should
carefully and clearly direct the jury on all these possible verdicts” per Afreh
J.A (as he then was) in the case of Quartey v. The Republic v. [1999-2000]2 GLR
201 at 211.<o:p></o:p>The
appellant’s defence clearly raised the alternative defences of provocation and
self defence. It was the duty of the trial judge to direct the jury that if
they believed that the deceased attacked the appellant and injured him on his
wrist and knee then they should consider the issue of provocation or self defence.
If however the jury did not believe the appellant or do not find the defence
reasonable probable then they should be directed that the defence put up ought
to fail.<o:p></o:p>The
summing up at the trial on these issues was highly inadequate.&nbsp; The trial judge did not touch on the issue of
provocation at all. After summarising the defence of the appellant she merely
added that:<o:p></o:p>“You are to find out if the 1st
accused used the requisite force in self-defence in the circumstances of this
instant case. You are also to find out if the injuries sustained by the 1st
accused were self inflicted or inflicted on him by the deceased. Please be
reminded that PW2 also sustained injuries which he said was inflicted on him by
the 1st accused (se</main>