YAW OBENG vs. THE REPUBLIC [2020]DLCA9353

Date	2020-05-29
Suit No.	CRIMINAL APPEAL NO.: H2/06/2019
Citation No.	[2020]DLCA9353

ANGELINA M. DOMAKYAAREH (MRS.) J A (PRESIDING)

ALEX B. POKU-ACHEAMPONG J A

SAMUEL K. A. ASIEDU J A

GOERGE KWAKU AGYEKUM FOR THE APPELLANT

YVONNE ADIMAH ADJARE SSA FOR THE RESPONDENT.

[2020]DLCA9353
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													<main id="main" class="content" style="min-height: 60rem" >YAW OBENG<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, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CRIMINAL APPEAL NO.: H2/06/2019&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; DATE: 29TH MAY, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>GOERGE KWAKU
AGYEKUM FOR THE APPELLANT<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">

YVONNE
ADIMAH ADJARE SSA FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:<o:p></o:p>ANGELINA M.
DOMAKYAAREH (MRS.) J A (PRESIDING), ALEX B. POKU-ACHEAMPONG J A, SAMUEL K. A.
ASIEDU 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="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">JUDGMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>DOMAKYAAREH (MRS), JA:<o:p></o:p>[1] This is a criminal appeal against the Summing
Up and in effect the judgment of the High Court, Kumasi dated 18th
December 2013. The Appellant herein was charged with the offence of Murder
contrary to Section 46 of the Criminal Act, 1960 (Act 29) in that on 19th
January, 2009 at Mankala village at Akwamu SGD. near Agogo in the
Ashanti Region of Ghana, he intentionally caused the death of Osmanu Umaru by
unlawful harm.<o:p></o:p>[2] The facts of the case are that the
deceased, Osmanu Umaru, was a Fulani herdsman who resided at Bebome near Agogo
while the Appellant was a farmer who lived at a cottage at Akwamu near Mankala
village in the same vicinity. On 19th January 2009, as aforesaid,
the deceased and his brother Abdulai Umaru took their cattle for grazing at a
village called Mankala near Agogo. At about 1:00 pm while still with the
cattle, Abdulai Umaru heard a gunshot. The deceased shouted in pain that
someone had killed him. Abdulai Umaru attempted to go to the aid of the
deceased but he saw the Appellant with a gun and he therefore run away to
Bebome village to inform his other brother. &nbsp;Though Abdulai Umaru did not know the name of
the Appellant he told the Police that he could identify him when he sees him.
Abdulai Umaru said prior to the incident, he had seen the Appellant weeding a
tomato farm and that the tomato farm is close to where the deceased was killed.
The body of the deceased was conveyed to Komfo Anokye Teaching Hospital where
an Autopsy Report revealed that the deceased died due to gunshot wounds. Six
pellets were removed from the body of the deceased. <o:p></o:p>[3] The Appellant upon committing the
offence went into hiding at Nsawam and resurfaced two years later. Upon a tip
off, he was arrested by the Police. &nbsp;On March
8th 2011, Abdulai Umaru identified the Appellant at the Agogo Police
Station as the one who shot and killed his brother, the deceased. The Appellant
was subsequently charged with the offence of Murder as aforesaid. The Appellant
was accordingly tried for the said offence of Murder and on 18th
December 2013 the Learned Trial Judge addressed the jury with his Summing Up.
The Learned Trial Judge concluded his Summing Up by telling the jury that they
were entitled to come back for further directions if necessary. He also
reminded them once again that their verdict must be unanimous. (See page 73 of
the Record of Appeal). <o:p></o:p>[4] The jurors then retired to consider
their verdict and after thirty-seven (37) minutes, they returned to the court
room. Upon enquiry by the Clerk whether they have arrived at their decision,
the Foreman of the jury answered in the affirmative. The Clerk enquired whether
they were unanimous. The Foreman answered in the negative. The Clerk then enquired
what the decision was. The Foreman replied that five were in favour of the Prosecution and two against. The Learned Trial Judge then said: - <o:p></o:p>“I will direct you
to go back for further deliberation” (See page 59 of the Record of Appeal).
<o:p></o:p>The jurors went back to deliberate
further and when they returned this is what transpired at page 61 of the record
of appeal.<o:p></o:p>“Clerk: &nbsp;are (sic) you now arrived at your decision?<o:p></o:p>Foreman: &nbsp;No. we are here for some clarifica</main>