MAXWELL APPAH AND TETTEH LARWEH vs. THE REPUBLIC [2016]DLHC8552

Date	2016-12-20
Suit No.	SUIT NO. H2/03/2014
Citation No.	[2016]DLHC8552

ADJEI J.A

SOWAH J.A

MENSAH J.A

[2016]DLHC8552
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													<main id="main" class="content" style="min-height: 60rem" >MAXWELL APPAH
AND TETTEH LARWEH<o:p></o:p>(APPELLANT)<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(REPSONDENT)<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO. H2/03/2014&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:
20TH DECEMBER, 2016<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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ADJEI
J.A, SOWAH J.A, MENSAH 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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</div>ADJEI,J.A:<o:p></o:p>I
had the privilege of reading the draft speech of my respected brethren Cecilia
Sowah JA and I agree with the conclusion she arrived at in her judgment in
appeal.<o:p></o:p>I
will like to express some few words on my own&nbsp;
to speak to some legal issues considered by the trial High Court Judge
which occasioned substantial miscarriage&nbsp;
of justice to the Appellant herein.<o:p></o:p>The
trial High Court Judge erroneously discussed the information relayed to some of
the witnesses in this case by the deceased while on admission as a dying
declaration and looking at the summing up, the legal effect of dying
declaration negatively impacted on the minds of the Jury to convict the
Appellant. Some of the witnesses including Andrews Larweh (PW2),Tetteh Abraham
(PW3) and Courage&nbsp; Kwadwo Aboagye (PW5),
the Medical Assistant who attended to the deceased at the Enyiresi Government Hospital
testified that the deceased told them after he had returned from the theatre
that he was pushed down from a moving vehicle by the driver’s mate. The cause
of the death of the deceased was given by the pathologist who did the autopsy
as multiple traumatic injuries that he sustained from a fall from a height. It
is not in doubt that the 1st Appellant was the driver’s mate on the
vehicle driven by the 2nd accused person on 2nd May,2010.
It is also not in dispute that while the deceased was at the back of the
vehicle, the 2nd accused person sped off. A taxi driver chased the 2nd
accused person and returned to inform them that the deceased was found on the
road in great pain as a result of which other persons rushed to the scene&nbsp; and found the deceased in that condition.
Apart from the deceased telling people that he was pushed from the vehicle by
the Appellant herein, there is no other evidence from any other person to that
effect. Sadly, the taxi driver who was a material witness&nbsp; was not called to testify and no reason was
assigned for his inability to give evidence.<o:p></o:p>The
evidence was that the 2nd accused person sped off with the vehicle
when the Appellant herein was at the passenger’s seat at the front. At what
point in time did the Appellant left the front seat to the back of the vehicle
to push the deceased from it?<o:p></o:p>The
fact that a person testifies that it was another person who caused harm to him
should not be admitted wholly without subjecting it to scrutiny. It will&nbsp; come under an admissible hearsay&nbsp; rule. Is it possible for the Appellant
to&nbsp; leave the front seat to the back of
the vehicle while the vehicle was speeding to push&nbsp; the deceased from the back of it? <o:p></o:p>There
was&nbsp; a gab&nbsp; which the trial High Court Judge&nbsp; should have addressed the jury on it but
failed. It&nbsp; amounts to a non-direction
which was&nbsp; material&nbsp; to the determination of the issue as to
whether&nbsp; it was possible&nbsp; or probable or reasonable probable for the
Appellant to have pushed the&nbsp; deceased
from the vehicle. The trial High Court Judge should have directed the jury on
that piece of evidence to return a verdict of non-guilty of murder if they disbelieved
the evidence&nbsp; but did not.<o:p></o:p>What
is the legal effect of the statement by the&nbsp;
deceased to the Medical Assistant (PW5) and the&nbsp; other persons who were&nbsp; present that it was the Appellant herein who&nbsp; pushed him from the vehicle and fell as a
result of that?<o:p></o:p>The
trial&nbsp; High Court&nbsp; Judge initially treated&nbsp; it under section 118 as one of the exceptions
to the hearsay rule. However, he veered off and discussed the hearsay as a
dying declaration. The trial High Court Judge in the summing up on the&nbsp; statement made by the deceased stated thus:<o:p></o:p>“In
this case, you are&nbsp; enquiring into the
death&nbsp; of the deceased. From the evidence
of the prosecution witness, especially PW2, PW3 and PW5, the deceased died
within hours after making the statement. He would&nbsp; have been a competent witness but for his
death. All the conditions for the admission of the dying declaration are
therefore present and the statement is to be admitted and used when you come to
consider the evidence. The law does&nbsp; not
require that such a dying declaration be corroborated, and this is within the
general principle that corroboration is not required in every case for a
judicial decision. The crucial thing here is whether you&nbsp; believe the evidence of PW2, Andrew Larweh,PW3
Tetteh Abraham and PW5, the Medical Assistant, the deceased before his&nbsp; death told them that it was the driver’s mate
who pushed him down from the vehicle”.<o:p></o:p>