REPUBLIC vs. KAMBEY AND OTHERS []DLSC2308

Date
Suit No.
Citation No.	[]DLSC2308

ADADE AG CJ JSC

FRANCOIS JSC

OSEI-HWERE JSC

AIKINS JSC

EDWARD WIREDU JJSC

SAM BADDOO CHIEF STATE ATTORNEY FOR THE REPUBLIC.

E D ANDOH FOR THE RESPONDENTS

[]DLSC2308
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>KAMBEY
AND OTHERS<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p>[1991] 1
GLR 235<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:<o:p></o:p>SAM
BADDOO, CHIEF STATE ATTORNEY, FOR THE REPUBLIC.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

E D ANDOH
FOR THE RESPONDENTS<o:p></o:p>

ADADE AG
CJ, FRANCOIS, OSEI-HWERE, AIKINS AND EDWARD WIREDU JJSC<o:p></o:p>

</div>JUDGMENT
OF AIKINS JSC.<o:p></o:p>The main
ground of appeal urged on this court by the learned Chief State Attorney is
that the Court of Appeal erred in law in holding that the principles enunciated
in the cases of R v. Grant (1954) 38 Cr App R 107, CCA and R v. Antwi (1955) 1 WALR
29, WACA did not apply to the instant case.<o:p></o:p>The facts
in the instant case are that the seven accused persons and others in the early
hours of the morning of 17 April 1987 went to Yale village to harvest dawadawa
fruits which according to the complainants belonged to the Gbane chief. While
there, the first prosecution witness, Kutunkyei Teng, and four other persons
from Gbane arrived at the scene and attempted to collect the dawadawa fruits.
The first accused, the Duusi chief, who also claimed he was the legitimate
owner of the land containing the dawadawa trees, prevented them from doing so,
and as a result a fight ensued between the two factions. In the course of this
altercation the two deceased persons were said to have been shot at with an
arrow, but none of the prosecution witnesses was able to identify the persons
who fired the arrows.<o:p></o:p>The seven
accused persons were convicted of murder and sentenced to death. Dissatisfied
with their conviction, they appealed to the Court of Appeal which allowed the
appeal of each appellant and set aside the conviction and sentence of each of
them. It is against this acquittal that the Republic has appealed to this
court.<o:p></o:p>The
passage of the judgment that the learned Chief State Attorney is complaining of
with respect of R v. Grant (supra) is as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Learned
Chief State Attorney referred to and relied on the English criminal case of R
v. Grant (supra) at 107 which decided that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:1.0in;text-align:justify;mso-pagination:none;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">‘If several persons embark on an
enterprise to commit a felony and have also the preconceived common intention
to use violence of any degree, if necessary, for the purpose of overcoming
resistance, and death results from such violence, all are guilty of murder,
even though the felony be one that does not in itself involve violence, such as
larceny.’<o:p></o:p>In my
view to understand the proposition of law laid down above it is necessary to
look at and examine the facts of that case. The facts are that the appellants
had embarked on a plan to steal from a hotel at which one of the appellants had
been previously employed and to overcome by force any resistance on the part of
the night porter whom they knew to be employed there. In the course of
resistance offered by the night porter, he was struck several blows, knocked
senseless on the floor and gagged, and later died from the injuries he had
sustained. There can be no doubt that the facts reproduced above can be
distinguished from the facts of the case before the lower court. No useful
purpose would be served by drawing attention to these differences. Suffice it
to record that in the instant appeal, there was no evidence to show that the
seven appellants together with the other women did set out to commit a felony
nor that they knew that they would be opposed by others. They had set out to
pluck and harvest dawadawa fruits and for that purpose were armed with
‘pluckers.’ There was no evidence from the first and second prosecution
witnesses that any of the seven appellants was armed with bows and arrows.
There was no evidence from the first and second prosecution witnesses that any
one of the seven appellants shot an arrow or arrows at the deceased persons.
The English criminal case relied upon by the learned Chief State Attorney can
clearly be distinguished from the instant case and does not help this court in
considering the present appeal.”<o:p></o:p>The
principle of law enunciated in R v Grant (supra) requires that those who embark
on an enterprise to commit a felony must have a preconceived intention to use
violence of any degree if necessary, for the purpose of overcoming resistance.
Violence was actually used in overcoming the night porter when he offered
resistance, was struck several blows, knocked on the floor senseless and gagged
by the accused persons. He later died in consequence of the injuries sustained.<o:p></o:p>Two eye
witnesses, the first and second prosecution witnesses were called by the
prosecution to give evidence at the trial High Court, Bolgatanga. None of those
two could identify those who shot arrows at the deceased. They,</main>