ERIC YAW ASANTE vs. THE REPUBLIC [2020]DLCA8808

Date	2020-04-30
Suit No.	SUIT NO H2/8/2019
Citation No.	[2020]DLCA8808

PAUL K. GYEASAYOR J. A. (PRESIDING)

AMMA A. GAIZIE J.A.

ERIC K. BAFFOUR J.A

[2020]DLCA8808
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													<main id="main" class="content" style="min-height: 60rem" >ERIC YAW ASANTE<o:p></o:p>(APPELLANT)<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT)<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;
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SUIT NO H2/8/2019&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
30TH APRIL, 2020<o:p></o:p>

</div>CORAM:<o:p></o:p>PAUL K. GYEASAYOR J. A. (PRESIDING), AMMA A. GAIZIE
J.A., ERIC K. BAFFOUR J.A<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="text-align:center;line-height:150%;
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solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>Kyei Baffour J.A:<o:p></o:p><o:p>&nbsp;</o:p>Underlying this appeal is a throw down of the gauntlet
to the court by the Appellant for us to have a second look at the summing up
and indeed the entirety of the evidence based on which the jurors returned a
verdict of guilty of murder and to apprise ourselves as to whether there was a
misdirection or non-direction in any form by which same has occasioned a
substantial miscarriage of justice to the Appellant. The Appellant was tried on
indictment for the charge of murder under section 46 of the Criminal Offences
Act, 1960, Act 29. The jurors returned a verdict of guilty of murder and was
accordingly convicted and sentenced to death by the court below. The facts
which are not in dispute are that the Appellant who was estranged from his wife,
Rosemond Asante had moved out of his matrimonial home at Oyarifa, returned to
the house on the 27th of January, 2013 in the company of a friend,
Emmanuel Adjeipong Danso, who testified as DW1. The Appellant parked his car
outside the house and entered the house whilst DW1 did not step out but waited
for him.<o:p></o:p><o:p>&nbsp;</o:p>At the time the Appellant entered his house he found
the deceased, Stephen Yaw Acheampong, and two of the friends of the deceased, Joseph
Ofori, Pw1 and Nicholas Arthur, Pw2 who were preparing fufu after having been granted permission by the wife of the
Appellant, Rosemond Asante, to take the keys of the house from Deborah Duodu,
Pw3. Upon seeing them in the house, Appellant is said to have first gone to
feed his dogs and came back to question them as to the reason for their
presence in the house. After hearing their explanation that they were there
because his wife had permitted them, he ordered them to leave the house. The
deceased is said to have locked the doors but the Appellant demanded the keys
to the house which the deceased refused to deliver to the Appellant by
insisting that the keys would be handed over to Pw3. <o:p></o:p><o:p>&nbsp;</o:p>This generated a struggle between the Appellant and
the deceased. To the prosecution, Appellant ran to his vehicle outside and took
an article under a seat of the vehicle and came back to the house to further
demand the keys. As the deceased proved unyielding, Appellant fired a gun at the
deceased leading to his death. Appellant’s version was to the effect that the
gun was in his pocket or at some point tucked to him and the deceased attempted
to retrieve it from him. That the deceased accidentally pressed the trigger leading
to his death as it had already been cocked whereupon &nbsp;&nbsp;Appellant
and DW1 drove to report the incident to the Police.<o:p></o:p>&nbsp;<o:p></o:p>Prosecution called five witnesses after which the
trial Judge found that a prima facie case had been made out and invited the
accused to open his defence. The accused testified and called his friend, Emmanuel
Danso as DW1. With the conviction and sentence of death imposed on the
Appellant by the court on the 31st of August, 2014 and being aggrieved
by such conviction has appealed to this court, having been granted leave for
extension of time to file Notice of Appeal. Three grounds stated in the Appellant’s
Notice of Appeal were:<o:p></o:p><o:p>&nbsp;</o:p><ol style="margin-top:0cm" start="1" type="a">
 <li class="MsoNormal" style="text-align:justify;line-height:150%;mso-list:l1 level1 lfo1">That the conviction and sentence of the Appellant
 is wrong in law having regard to the totality of the evidence on record.<o:p></o:p></li>
</ol><o:p>&nbsp;</o:p><ol style="margin-top:0cm" start="2" type="a">
 <li class="MsoNormal" style="text-align:justify;line-height:150%;mso-list:l1 level1 lfo1">That the failure of the trial Judge to appreciate
 that that Appellant (sic) defence was reasonably probable amounted to
 miscarriage of justice.<o:p></o:p></li>
</ol><o:p>&nbsp;</o:p><ol style="margin-top:0cm" start="3" type="a">
 <li class="MsoNormal" style="text-align:justify;line-height:150%;mso-list:l1 level1 lfo1">That the additional grounds of appeal shall be
 filed upon receipt of the record.<o:p></o:p></li>
</ol><o:p>&nbsp;</o:p>I now intend to take, ad seriatim, the grounds of appeal canvassed by the Appellant. The
ground (a) that the conviction and sentence of the Appellant was wrong in law
having regard to the totality of the evidence on record, is in effect an
invitation to the court to review the evidence on record as in the view of the Appellant
the verdict of the jurors cannot be supported having regard to the evidence on
record. Indeed by section 31 of the Courts Act, 1993, Act 459, one of the
grounds upon which a