TETTEH SAMADZI vs. THE REPUBLIC [2017]DLSC2089

Date	2017-04-06
Suit No.
Citation No.	[2017]DLSC2089

DOTSE JSC (PRESIDING ) YEBOAH JSC

GBADEGBE JSC

BENIN JSC

PWAMANG JSC

ALBERT ADAARE FOR THE APPELLANT/APPELLANT

ASIAMA SAMPONG (CHIEF STATE ATTORNEY) FOR THE RESPONDENT/ RESPONDENT

[2017]DLSC2089
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													<main id="main" class="content" style="min-height: 60rem" >TETTEH
SAMADZI<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[SUPREME 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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CIVIL APPEAL NO. J3/1/2016&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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: 6TH APRIL, 2017<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>ALBERT ADAARE FOR THE APPELLANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ASIAMA
SAMPONG (CHIEF STATE ATTORNEY) FOR THE RESPONDENT/ RESPONDENT<o:p></o:p>

</div>CORAM: <o:p></o:p>DOTSE JSC (PRESIDING
) YEBOAH JSC, GBADEGBE JSC, BENIN JSC AND PWAMANG JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGEMENT<o:p></o:p>

</div>PWAMANG, JSC:- <o:p></o:p>The
conviction complained about in this appeal was in respect of two robberies at
Pokuase and Ayawaso, a suburb of Pokuase, at dawn of 6th March,
2009. After a lengthy trial in which the prosecution called five witnesses and
all four accused persons testified and appellant herein called five witnesses,
the trial High Court, Accra on 5th December, 2013 wrote a one and
half-paged judgment convicting the appellant, A2 and A4 and sentencing them to
15 years with Hard Labour. A3 was acquitted and discharged for lack of
evidence. The ground for the convictions was that the accused persons were
identified by the victims of the robberies and that the identifications could
not be controverted. In his brief judgment the trial judge did not review the
evidence led at the trial but only narrated the facts as presented by the
prosecution when the accused persons were arraigned before him. Upon an appeal
the Court of Appeal in its judgment dated 18th June, 2015 stated,
and rightly so in our view, that though the trial court’s judgement was terse
it would review the evidence on record to determine if there was evidence which
if believed could justify the findings. The Court of Appeal held that upon a
review of the evidence led by the prosecution the findings of the trial judge on
the identification of appellant were justified. In respect of the defence of
alibi put up by the appellant, the court held that on the evidence on record
the trial court was right in preferring the evidence of the prosecution’s
witnesses to that of the appellant’s and dismissed the appeal in its entirety.
The appellant is aggrieved by the decision of the Court of Appeal and has
appelled to us as the final court mainly on the ground that the evidence led
does not support his conviction. Learned Chief State Attorney, K.
Asiama-Sampong, on behalf of the Respondent urged the court in his statement of
case to uphold the concurrent findings of the two lower courts and dismiss the
appeal unless there is evidence to establish that a blunder or error had been
caused resulting in a miscarriage of justice. He cited the case of Achoro v Akanfella [1996-97] SCGLR 209.<o:p></o:p>As
the Respondent has rightly argued, we are here dealing with an appeal against
concurrent findings though the court of first instance did not articulate any
reasons to justify its findings. In an appeal against concurrent findings the
second appellate court ought to be slow in reversing the findings unless it can
be shown that they are not supported by the evidence on record. See Kamil V Republic [2011] 1 SCGLR 300. In
Gregory V Tandoh [2010] SCGLR 971 this
court stated other grounds on which a second appellate court would be justified
in reversing conclusions by two lower courts as including; where the findings of
fact by the trial court can be seen from the record to be either perverse or
inconsistent with the totality of evidence led by the witnesses and the surrounding
circumstances of the case, and where the first appellate court had wrongly
applied a principle of law. In those instances the second appellate court must
feel free to interfere with the said findings of fact, in order to ensure that
absolute justice is done in the case.<o:p></o:p>As
an appeal is by way of rehearing and in order that the appellant would be given
a fair trial and adequate consideration of his defence in this final appeal, we
deem it helpful to set out in chronological order and side by side, the
respective cases of the prosecution and the defence as proved by the evidence.
This will facilitate a determination as to whether the findings and conclusions
of the courts below were well founded. But that is where there is a serious
problem with the manner of compilation of the Record of Appeal. The transcript
of the testimonies of the witnesses is not in the usual order in which
witnesses testify and that makes the whole record incoherent. A witness’s
testimony cannot be found at one particular part of the record but you have to
jump over several pages forward and backwards in search of it. There was no PW5
but the record makes reference to PW6 and the transcription of the evidence is
in bad English. The lawyer for the appellant too has been unhelpful in this
regard since some of the confusion in the record could have been rectified by
correction and re-arrangement. Furthermore, in his statement of case appellant’s
lawyer did not give sufficient guidance to the court as to where to find what
testimony that may support the case he was making. The record itself is
incomplete but that is a matter that will be addressed later in the judgment. Parties
who impeach judgments either through appeals or other means have a duty to
ensure that the record is orderly and easy to read since a confused record may
adversely affect their chances of success. Nonetheless, in order to discharge
our duty to do substantial justice in all cases, the court had to undertake a
winding journey through the record in order to discover the true facts in the
case. <o:p></o:p>PW1
and her husband PW2 testified in respect of the Pokuase robbery and stated that
they were robbed roughly between 3.00am and 3.30am on 6/3/2009. Their account
of the incident was that they were asleep when around that time the main door
to their self-contained apartment house was broken open by use of concrete blocks
and the noise woke them up. When they moved from their bedroom into the hall
they saw appellant who fired a shot from a gun he was holding and the husband fell
down out of shock. He got up and they ran to their kitchen in order to escape
through a door there that lead outside the house but the husband who was ahead
on reaching that door saw A2 holding a knife standing there. He ran back into
the house and entered a bath room, closed it and requested his wife who was
following him to keep watch in front of its door. The appellant got to her,
pointed the gun </main>