THE REPUBLIC vs. ISSAKA DRAMANI AND 2 OTHERS [2010]DLCA3164

Date	2010-10-29
Suit No.	SUIT NO: H2/8/09
Citation No.	[2010]DLCA3164

MARIAMA OWUSU JA [PRESIDING]

FRANCIS G KORBIEH JA

IRENE C DANQUAH JA

[2010]DLCA3164
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>ISSAKA DRAMANI AND 2 OTHERS<o:p></o:p>[COURT OF APPEAL, KUMASI]<o:p></o:p>SUIT
NO: H2/8/09&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; &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:
29TH OCTOBER, 2010<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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COUNSEL:<o:p></o:p>

<o:p>&nbsp;</o:p>

<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>IRENE C DANQUAH JA<o:p></o:p>The
Appellants were convicted by the High Court, Kumasi on 5th June 2000
on the charge of conspiracy to commit crime of murder, contrary to Section 23
[1] and 46 of Act 29/60.&nbsp; The 1st
Appellant was additionally charged with a second count of murder contrary to
Section 46 of Act 29/60.&nbsp; All the three
[3] Appellants were found guilty on the first count and were sentenced to
death.&nbsp; The 1st Appellant was
further found guilty on the second count and sentenced to death.&nbsp; Whilst in prison, but before the appeal was
heard, the 3rd Appellant died.<o:p></o:p>The
brief facts gathered from the record are that; the Chief of the Moshie
Community in Kumasi died and it became necessary to choose a successor.&nbsp; There were two contestants who were Alhaji
Ibrahim Abdul Rahman Adam and one Alhaji Abubakar.&nbsp; Each contestant had his supporters.&nbsp; <o:p></o:p>The
Appellants were supporters of the latter contestant.&nbsp; The 3rd Appellant was alleged to
be the chief supporter of Alhaji Abubakar who together with his supporters
strongly opposed Alhaji Adam being made the successor to the deceased Moshie
Chief.<o:p></o:p>This
resulted in a civil suit which was determined in favour of Alhaji Adam.&nbsp; The appeal in the suit travelled up to the
Supreme Court which confirmed the decision of the High Court on 15th
December 1999.&nbsp; After the decision of the
Supreme Court, tension mounted between the two factions and on 24th
December 1999, after worship closed at the mosque the tension broke loose.&nbsp; The 3rd Appellant is alleged to
have issued instructions to the 1st and 2nd Appellant and
the other supporters in their camp to ensure that their earlier threats of
death of any supporter of Alhaji Adam were carried out.&nbsp; <o:p></o:p>The
1st and 2nd Appellants and others then started chasing
some of the supporters of Alhaji Adam whom in the course of running away left
their sandals behind.&nbsp; The 2nd
Appellant picked up one of such sandals which the deceased called Sadick
Ibrahim pleaded with 2nd Appellant to be given to him to give to the
owner whom he knew.&nbsp; The 3rd
Appellant who was at the scene identified the deceased as the son of Alhaji
Adam to the 1st and 2nd Appellants where upon the 2nd
Appellant pushed down the deceased and the 1st Appellant drew a
knife and stabbed him in the chest.&nbsp; Some
good Samaritans carried the victim to Okomfo Anokye Hospital where he died of
his wounds.<o:p></o:p>The
Appellants, dissatisfied with their conviction and sentence appealed on six
original grounds of appeal.&nbsp; They
subsequently filed eight Additional Grounds which were instead argued in this
appeal.&nbsp; It is pertinent to state at this
juncture that the Attorney for the State [Respondent] in his written submission
in response indicated that after a careful study of the case docket, he found
that the trial judge made fundamental errors in the summing up which went to
the root of the matter and which as a result led to a substantial miscarriage
of justice.&nbsp; As such the State cannot
defend the appeal.<o:p></o:p>The first error that the Attorney for the State
pointed out was that the alibi that was put across by the accused persons was
not examined by the trial Judge in his summing-up to enable the jury determine
if the alibi was true or not although the accused persons led evidence and
called witnesses on the issue of alibi.&nbsp;
He quoted paragraph 306 of page 136 of Justice S A Brobbey’s book
“Practice and Procedure in the trial Courts and Tribunals of Ghana” to
expatiate on the issue.<o:p></o:p>To
support the stance of the Attorney for the State, Counsel for the Appellant in
arguing Ground 6 of the additional grounds which reads; “the issue of
identification was not considered in the summing-up” submitted that the
identification of the accused persons as being responsible for the Commission
of the offence is one of the essential ingredients to be proved by the
prosecution in any criminal trial and in the instant case, all the accused persons
stated that they were in the house of Alhaji Amadu at the material time the
deceased was alleged to have been killed.&nbsp;
In effect, all the accused persons were relying on the defence of alibi
that they were not at the scene of the crime at the time the event took place
but were elsewhere.<o:p></o:p>It
is provided by Section 131 [3] of the Criminal and Other offences
(Procedure) Act, 1960 (Act 30) that; <o:p></o:p>“(3) where the accused puts forward a defence of
alibi without having given notice, the Court shall call on the accused to give
notice to the prosecution of the particulars mentioned in subsection (1)
forthwith or within the time allowed by the Court and after the notice has been
given shall, if the prosecution so desires adjourn the case.”<o:p></o:p>In
the instant case, the trial Court did not call upon the Appellants to give the
notice in pursuance of Section 131 [1] of the Act Supra even though each of the
Appellant had raised the defence of alibi in the statements they made to the
Police.&nbsp; However, from the record before
this Court, the Appellants maintained their defence of alibi through the cross
examination of the prosecution witnesses.&nbsp;
They maintained that same position not only in their testimonies und</main>