SIMON MENSAH AND YAW ACHEAMPONG vs. THE REPUBLIC [2010]DLCA5131

Date	2010-11-18
Suit No.	CRIMINAL APPEAL NO. H2/2/2010
Citation No.	[2010]DLCA5131

KUSI-APPIAH J.A. (PRESIDING)

KORBIEH. J.A.

HONYENUGA J.A

[2010]DLCA5131
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													<main id="main" class="content" style="min-height: 60rem" >SIMON MENSAH AND YAW ACHEAMPONG<o:p></o:p>(APPELLANTS)<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNoSpacing" align="center" style="margin-left:.5in;text-align:center;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CRIMINAL APPEAL NO.
H2/2/2010&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: &nbsp;18TH NOVEMBER, 2010<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KUSI-APPIAH J.A. (PRESIDING), KORBIEH.
J.A., HONYENUGA J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT<o:p></o:p>

</div>KUSI-APPIAH,
J.A.:&nbsp;
<o:p></o:p>I have had the privilege of a
preview of the learned decision rendered by my able brother Honyenuga,
J.A.&nbsp; I agree with him that the appeal be
dismissed.&nbsp; I however have a few issues
to highlight.&nbsp; The defence has sought to
make a heavy weather of the identity of the appellants to the effect that the
prosecution could not prove the identity of the appellant beyond reasonable
doubt as required by law.&nbsp; Counsel for
the appellants buttressed his contention by referring to the evidence of PW2
and PW3 and said there were conflicts in their evidence on the issue of wearing
of masks by the appellant.&nbsp; What counsel
referred to as conflicts really are not conflicts at all.&nbsp; What he pointed out in their evidence was no
more than that whereas one witness testified on a particular fact the other did
not.<o:p></o:p><o:p>&nbsp;</o:p>It must be pointed out that in
giving evidence, the parties talk only of major events they saw.&nbsp; Matters of minor details are spoken of by the
witness depending on their personal disposition to those events.<o:p></o:p><o:p>&nbsp;</o:p>For there to be conflict therefore,
the parties must be subjected to cross-examination to accept or deny the fact
sought to be impeached.&nbsp; If the first
witness is not cross-examined on a particular point, the point is deemed to
have been admitted by the party against whom it is led hence failure by the
next witness to testify on the same point will not be construed as a conflict
especially where this second witness was not given the chance to contradict or
admit same in cross-examination. <o:p></o:p><o:p>&nbsp;</o:p>Where it is intended to suggest that
the witness is not speaking the truth upon a particular point his attention
must first be directed to the fact by cross-examination, so that he may have an
opportunity of explanation.&nbsp; See Browne vrs. Dunn (1894) 6 R. 67.<o:p></o:p><o:p>&nbsp;</o:p>In the instant appeal, the record
indicates that the PW2 was extensively cross-examination on the issue of her
statement to police where she is said to have stated that the robbers were
wearing mask (impliedly that she could not identify them) which is contrary to
her evidence on oath.&nbsp; However, PW2
denied ever giving that information or statement to police as alleged.<o:p></o:p><o:p>&nbsp;</o:p>Next for conflicts to affect proof
of a case, they must be material.&nbsp; See
the case of R.T. Briscoe (Ghana) Ltd.
vrs. Boateng (1968) G.L.R. 9 at pages 11 and 12; where it was said that the
discrepancy or conflict must be of some importance.&nbsp; In this case, the so called conflicts did not
affect the credibility of the witnesses since they did not go to the root of
the matter.<o:p></o:p><o:p>&nbsp;</o:p>The eye-witness account as to how
the appellants and others armed with guns, cutlasses and concrete blocks,
clubs, etc. forced the door to victim’s room opened and entered to rob them on
that fateful 1st April, 2004 and the part played by each of them was
given by Abena Wiafewaa (PW1), Regina Kisewaa (PW2) and Nkansah Asante (PW3).<o:p></o:p><o:p>&nbsp;</o:p>Indeed, the PW2 and PW3 who already
knew the appellants were so emphatic and thorough in their identification of
these men (the appellants) that I am persuaded that the appellants were among
those who acting together robbed the PW2 and his household on that fateful
date.<o:p></o:p><o:p>&nbsp;</o:p>I am strengthened on this resolution
by the evidence on oath by the 2nd appellant when he admitted in his
testimony at page 59 of the record as follows:<o:p></o:p><o:p>&nbsp;</o:p>“I
know him (PW3) very well because when I
was apprentice carpenter, my master used to send me to his shop to buy things,
so when I became master on my own I also used to buy from his shop.”<o:p></o:p>