BERNARD NII OKAI TAGOE vs. THE REPUBLIC [2010]DLCA6663

Date	2010-06-03
Suit No.	CRIMINAL APPEAL NO.: 1/2002
Citation No.	[2010]DLCA6663

ASARE KORANG J.A. (PRESIDING)

MARFUL-SAU J.A.

W. H. K. ADDO J.A

MR. JOSEPH AMUI FOR APPELLANT

MR. GEORGE OFORI (SENIOR STATE ATTORNEY) FOR RESPONDENT

[2010]DLCA6663
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													<main id="main" class="content" style="min-height: 60rem" >BERNARD NII OKAI TAGOE<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></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;
padding:0in 0in 1.0pt 0in">

CRIMINAL APPEAL NO.: 1/2002&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: 3RD JUNE 2010<o:p></o:p>

MR.
GEORGE OFORI (SENIOR STATE ATTORNEY) FOR RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>ASARE
KORANG J.A. (PRESIDING), MARFUL-SAU J.A., W. H. K. ADDO J.A<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;
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<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>A. ASARE KORANG, J.A. <o:p></o:p>The
appellant was found guilty of the murder of one Nii Ardey Sackey by an Accra
High Court presided over by Mr. Justice B.T. Aryeetey sitting with a jury on
2nd February1990 and his sole ground of appeal to this court from the
conviction and sentence of death imposed on him his that the verdict is
unreasonable having regard to the evidence.&nbsp;
It must be noted this ground of appeal was filed on 13th February 1990,
a mere eleven days after the appellant had been convicted and sentenced.&nbsp; Subsequently the appellant filed two
additional grounds of appeal namely: <o:p></o:p>"(1) The jury was not properly
directed with regard to the disparity between the statement made by PWI to the
police and her evidence in court. <o:p></o:p>(2) The medical evidence is not
conclusive of the cause of death of the deceased." <o:p></o:p>Apparently
these additional grounds were filed well out of time and without the leave of
court as they were dated the 18th day of February 2002, twelve clear years
after the conviction and sentence of the appellant:&nbsp; Those grounds, therefore, do not merit any
consideration in this appeal.<o:p></o:p>The
facts given in evidence by the prosecution were based mainly on the eye witness
testimony of the fourth prosecution witness, Elizabeth Mawushie Commey, who
strangely at the trial appeared reluctant to testify in support of the case for
the prosecution claiming that she had forgotten about the incident that
resulted in the death of the deceased. <o:p></o:p>According
to the fourth prosecution witness (to be referred to herein as PW4), she was a
fishmonger who was working at the seashore with the appellant but because the
appellant was stealing from her, she stopped working with him and thereafter
engaged the deceased to work for her.&nbsp;
She further testified that on the day of the incident, the deceased
gathered some boxes in order to pack them.&nbsp;
While the deceased was performing that task, the appellant came there
and tried to fight with the deceased.&nbsp;
PW4 separated them and advised them not to fight.&nbsp; As the deceased was going away, the appellant
followed him.&nbsp; Later PW4 was informed
that the deceased and the appellant were fighting on top of a hill.&nbsp; She went there and asked the appellant why he
was still fighting with the deceased following her advice to them not to fight.
The appellant was said to have replied that if he did not kill the deceased,
then the deceased would kill him.&nbsp;
Describing the scene where the fight took place, PW4 said there were
canoes there and the deceased fell into one of the canoes.&nbsp; Then PW4 saw the appellant hitting the head
of the deceased on the canoe.&nbsp; As the
appellant resisted any attempt to separate him and the deceased, PW4 left the
scene.&nbsp; Two or three days after the fight
the deceased died.&nbsp; The medical doctor
called by the prosecution stated that the cause of death was due to bleeding in
or into the brain attributable to a trauma such as something hitting the head
in an accident or a knock on the head by a heavy object; or through disease
like hypertension where a blood vessel bursts in the brain such that there is
bleeding into the brain tissue. <o:p></o:p>The
appellant, who testified on oath, stated that on 7th February 1986, he was in a
canoe at the seashore waiting for the afternoon catch of fish to be brought in
by the fishermen when the deceased came there. The appellant narrated what on
previous occasions was happening between him and the deceased when a catch of
fish came in.&nbsp; He said with the arrival
of the catch, the deceased would place his basket between the appellant’s
basket and if some fish fell from a canoe, it would land in the deceased's
basket. Sometimes also the deceased would remove the appellant's basket and put
his basket in&nbsp; place of that of the
appellant.&nbsp; Later the customers of both
the deceased and the appellant decided that any time some fish went into the
deceased's basket, he and the appellant should share the proceeds.&nbsp; With this arrangement in place, the appellant
and the deceased shared the proceeds of the sale of any fish each of them
obtained. The appellant said on the day of the incident, he was with his
customer, one Odde in the afternoon, when a canoe came in.&nbsp; As the appellant rushed towards the canoe,
the deceased came there and the customer "warned" &nbsp;the appellant that it was through the deceased
that the appellant got to know the customer; therefore anytime fish was shared,
it should be given to the deceased to go and sell and share the proceeds with
the appellant.&nbsp; When the appellant heard
this new arrangement, he was apparently unhappy with it and hurled an insulting
epithet at the deceased, to wit: "Onye": (meaning, your mother).&nbsp; The appellant then asked the deceased whether
he knew how he (appellant) had been getting his goods or fish and how his
(appellant’s) basket got to the seashore.&nbsp;
The deceased retorted that he would meet the appellant at the hilltop
and followed up by throwing his basket at the appellant who also attempted to
throw back his basket at the deceased.&nbsp;
PW4, Mawushie, however came between them and uttered a word
"Poo" which was a word only used by the deceased and PW4. <o:p></o:p>Thereafter,
the appellant was asked by his customer to carry some boxes of fish into a
room.&nbsp; PW4 also asked the deceased to
carry her boxes into the same room. &nbsp;The
appellant saw a friend of the deceased called Asitola in room.&nbsp; It seemed that Asitola had got wind of the
fracas between the appellant and the deceased and he told the deceased to fight
the appellant because the appellant was not strong.&nbsp; Appellant was changing his dress when he
heard a voice behind him saying "hit him with it".&nbsp; The deceased hit the appellant with a metal
spoon used for frying and tore his dress.&nbsp;
The appellant removed his dress and gave it to the deceased to sew for
him.&nbsp; The deceased refused to accept the
dress.&nbsp; The appellant then drew nearer to
the deceased and the deceas</main>