KWASI GYAN vs. THE REPUBLIC [2021]DLCA10048

Date	2021-02-10
Suit No.	SUIT NO. H2/13/2017
Citation No.	[2021]DLCA10048

CECILIA SOWAH J.A. (PRESIDING)

ANTHONY OPPONG J.A.

ANGELINA MENSAH-HOMIAH J.A.

FRANK AGYEN ESQ. FOR THE APPELLANT

EMMANUEL KWESI OPARE WIREDU (SA) ESQ FOR THE RESPONDENT

[2021]DLCA10048
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													<main id="main" class="content" style="min-height: 60rem" >KWASI GYAN<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, KOFORIDUAH]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

SUIT NO. H2/13/2017&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 10TH FEBRUARY, 2021<o:p></o:p>

</div>COUNSEL:<o:p></o:p>FRANK
AGYEN ESQ. FOR THE APPELLANT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

EMMANUEL
KWESI OPARE WIREDU (SA) ESQ FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>CECILIA SOWAH J.A. (PRESIDING), ANTHONY
OPPONG J.A., ANGELINA MENSAH-HOMIAH J.A.<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;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>&nbsp;ANTHONY
OPPONG J.A.<o:p></o:p>&nbsp;The appellant was convicted of the murder
of one Kwaku Fokuo and accordingly, as required by law, he was sentenced to
death by the High Court, Koforidua on the 8th of July 1998. By an
application filed by the appellant, this Court extended the time within which
the appellant could file an appeal. Consequently, the appellant filed Notice of
Appeal pursuant to the leave of the Court and the said Notice of Appeal was subsequently
amended by leave of the Court and filed on 11th June 2020. By the Amended
Notice of Appeal, the appellant is praying the Court to set aside the
conviction and sentence. <o:p></o:p>&nbsp;The appeal is based on three main
grounds, namely:<o:p></o:p>(a)&nbsp;&nbsp;&nbsp;&nbsp;
That the trial judge erred on the
facts during the summing up to the jurors and this has occasioned substantial
miscarriage of justice;<o:p></o:p>(b)&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;That the evidence on record does not support
the conviction and sentence of the appellant and <o:p></o:p>(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
That the trial judge erred in law when
he failed to properly direct the jury on the offence of manslaughter and also
on the intent of the accused person.<o:p></o:p>&nbsp;Before considering the appeal in terms
of the grounds stated above, it will
not be out of place to state briefly the facts of the case as gleaned from the
record. <o:p></o:p>&nbsp;There was seemingly chieftaincy strife
at Pankese between the queen mother Nana Yaa Asantewah on one hand and the chief,
Nana Mireku Missah IV on the other hand. As would be expected, each of them had
supporters who saw the other as an enemy. As a consequence, the peace at
Pankese was deeply disturbed; there were indeed disturbances that threatened
life and property culminating in the death of the Akwamuhene of the area.<o:p></o:p>&nbsp;The deceased, Kwaku Fokuo, appears to
be supporter of one Nana Mireku Missah IV faction whilst the appellant appears
to belong to the queen mother faction. Of course, in this circumstance, there
was certainly bad blood between the two. Besides, from the account of the
appellant, Kwaku Fokuo befriended his (appellant’s) sister and he hated that
relationship and so the appellant warned her sister to stop that relationship
and when the sister would not bulge he kept on harassing her and even at one
time beat her up to persuade her to break the relationship with the deceased.
The deceased took strong exception to appellant’s attitude to the matter and
hated appellant the more. There was also one occasion where the deceased
molested the mother of appellant, according to appellant’s own unsworn
statement to the police found at page 1 of the Record of Appeal. These accounts
undoubtedly are pointers to causes that might have given grounds for appellant
and the deceased to hate each other to the core.<o:p></o:p>&nbsp;On the 23rd October 1994,
Kwaku Fokuo and his friend Kwabena Ansong had cause to go to Pankese from
Nkawkaw. They stayed overnight to attend the wake-keeping of Akwamuhene of
Pankese. At about 4.00 am on the next day, that is, on the 24th
October 1994, they had gone to buy cigarette from a kiosk when the appellant
came to hold them hostage, warning them not to step out of the kiosk where they
had sought refuge or risk being shot. Apparently, the appellant was wielding
his gun and ordered them not to move as he wanted them to be arrested and so
had asked one Osei and Boakye to fetch the police for the arrest to be
effected. Kwaku Fokuo, in defiance, did step out and was shot by the appellant
who was subsequently arrested on the 19th November 1994 by the
Dormaa Ahenkro Police where the run-away efforts of appellant got him to.
Appellant was subsequently indicted with the offence of murder, tried and the
jury returned a verdict of guilty and was accordingly convicted and sentenced
to death. Hence this appeal which is expressive of the appellant’s
dissatisfaction of the conviction and sentence.<o:p></o:p>