KWASI GOGAH vs. THE REPUBLIC [2015]DLCA8405

Date	2015-10-28
Suit No.	SUIT NO: H2/11/2015
Citation No.	[2015]DLCA8405

ADJEI JA – PRESIDING

CECILIA H. SOWAH JA

HENRY KWOFIE JA

WIAFE DANKWA ESQ FOR THE APPELLANT – PRESENT

DAVID K. HODANU (SSA) FOR THE REPUBLIC

[2015]DLCA8405
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >KWASI GOGAH<o:p></o:p>(APPELLANT)<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, KOFORIDUA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT NO: H2/11/2015&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: 28TH OCT, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>WIAFE DANKWA ESQ FOR THE APPELLANT – PRESENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

DAVID K. HODANU (SSA)
FOR THE REPUBLIC<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;
padding:0cm 0cm 1.0pt 0cm">

ADJEI JA – PRESIDING,
CECILIA H. SOWAH JA, HENRY KWOFIE JA<o:p></o:p>

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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:0cm 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>ADJEJI,
J.A.<o:p></o:p>This appeal is against the judgment of the High
Court Ho delivered on 28th July, 2008. A charge of murder contrary
to Section 46 of the Criminal and other offences Act, 1960 (Act 29) was
preferred against the appellant herein. He was convicted for murder by the
Jurors and sentenced to suffer death by hanging by the Court. Appellant
dissatisfied with the conviction by the Court appealed to this Court to reverse
the conviction.<o:p></o:p>The Appellant filed the following grounds of
appeal:<o:p></o:p>“(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That
the evidence of PW2 which made up the falsehood and which the Court below
referred to in the summing up has occasioned a substantial miscarriage of
justice.<o:p></o:p>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That
the evidence of PW2 clearly shows that PW2 was not in the room and therefore
could not have testified on any material fact touching and concerning any event
that allegedly took place in the room therefore it has occasioned a substantial
miscarriage of justice.<o:p></o:p>(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That
none of the witnesses ever testified that he or she saw the appellant hitting
the victim with exhibit E”.<o:p></o:p>We shall address grounds (a) and (b) of the
grounds of appeal together as both issues seem to attack the credibility of
Rose Gogah who testified as PW2. Rose Gogah is the daughter of the appellant
and his deceased wife Rebecca Afedoh. PW1 in her evidence testified that she
was an eye witness to the assault on her mother by her father which resulted in
the death of the former. The facts of the case were that the deceased sought
refuge in her room to avoid the wrath of the appellant but the appellant went
through the room through the window and assaulted her. The appellant entered
the room where the deceased was and went with a piece of Odum stick with nails
fixed on it. According to PW2, she heard the shouts of her mother after her
father had entered the room where the mother had sought refuge. <o:p></o:p>The thrust of the appellants attack on the
credibility of PW2 was that she deposed to an affidavit in support of an
application for bail pending appeal in which PW2 deposed to that the evidence
she gave against her father was false.<o:p></o:p>The Lawyer for the appellant in his written
submission attacked the evidence proffered by PW2 against the appellant thus:<o:p></o:p>“An affidavit in support of the said application was sworn to by the
same PW2 and same has been annexed to the written submission for the
consideration of you Lordships.<o:p></o:p>My Lords, from the evidence-in-chief of PW2 and the affidavit sworn to
by PW2 it is clear from the record that the Appellant never inflicted any harm
or subjected the victim to any inhuman treatment because PW2’s
evidence-in-chief was full of falsehood. In one breath PW2 gave evidence that
the appellant unlawfully subjected the victim to beatings and even used an Odum
stick which has some nails fixed on it which was tendered as Exhibit ‘F’.<o:p></o:p>Conversely, in the affidavit in support of the motion on notice for
bail pending appeal, PW2 deposed that because of the hatred for her father, she
lied to the Court below based on the evidence of PW2 which was full of
falsehood”.<o:p></o:p>