COURT OF APPEAL
DATE: 27 NOVEMBER 1967
BEFORE: AZU CRABBE, APALOO AND LASSEY J.J.A.
NATURE OF PROCEEDINGS
APPEAL from a convict for murder in a trial by jury. The facts are sufficiently stated in the judgment of the court.
COUNSEL
Mills Lamptey for the appellant.
Kisseih, Senior State Attorney, for the respondent.
[p.648] of [1967] GLR 647
JUDGMENT OF AZU CRABBE J.A.
Azu Crabbe J.A. delivered the judgment of the court. This is an appeal from a conviction before Djabanor J. sitting with a jury at the criminal session holden at Sekondi on 20 July 1966. The appellant was charged with the murder of Kojo Duku on 21 January 1966 at Aboabo in the Western Region.
The brief facts of the case are that on Friday, 21 January 1966, the deceased left his village Ohiayeanisa for Aboabo at about 11. a. m. to see the appellant for accounts in respect of a cocoa farm. At Aboabo the deceased took the appellant to the house of the odikro of the village, and there he told the appellant that he had come to collect his share of the money from the proceeds of the farm. According to the odikro, the appellant said that the deceased was worrying him too much to pay this money and that he was not going to pay. A quarrel ensued, and as it was getting heated the odikro advised the deceased to leave. That was the last time anyone saw the deceased. Later when the relatives of the deceased realised that the deceased had not returned home from Aboabo they became alarmed. Two of them (the second and fifth prosecutionwitnesses) went to the odikro and reported to him that the deceased had not returned home. After all inquiries about the deceased had proved fruitless, the odikro caused a gong-gong to be beaten and he subsequently organised a search party. All the people in the village responded to the call except the appellant. The odikro noticed the appellant’s absence and therefore sent someone for him. When the appellant was brought before him he rebuked him and asked him to give his reasons for not showing any interest in the search for the deceased who had come to Aboabo with the sole purpose of demanding money from him. This rebuke took place in the presence of the people who had been summoned for the search party. In reply to the odikro, the appellant is alleged to have said, “Doku is dead some time now — why am I being expected to go in search of him?” The odikro therefore told the appellant that he knew something about the death of the deceased and he caused the arrest of the appellant. The deceased could not be traced that day. The search continued the next day, and the dead body of the deceased was eventually found. The impression formed by the people who were searching was that the dead body must have been dragged along through a cocoa farm and placed lying face upwards under a certain tree. There were blood stains on the route along which the dead body was dragged, and a knife and a mattock (a long hoe used for uprooting palm trees) were found lying in a pool of blood some distance from the dead body. The nature and extent of the injuries on the dead body were described
[p.649] of [1967] GLR 647
by the medical witness who performed the post -mortem examination as follows: “I found two linear wounds at the back of the head — one and a half inches long and one inch deep penetrating to the cranium. It was a full depth tissue wound. It is linear, i.e. by C cut rather than by a blunt instrument. Behind the left ear there was one v shaped wound, and also one half inch wound on the bone behind the ear. There was also a fracture of the left jaw bone. There was a deep penetrating wound half an inch long in front of the left ear — very deep. It must have been caused by a pointed instrument or the end of a cutlass, and it could have been caused by a pen knife (identified). The fracture to the jaw must have been caused by a blow and not caused by falling. I do not think that blow was caused by a fist. The iron long hoe (for uprooting palm tree) could have caused the blow. The deceased also had a broken nose—with considerable bruising of the surrounding tissue.”
In the opinion of the medical witness the deceased was beaten up and death was caused by multiple head injuries.
After the appellant had been arrested by the police he made a statement, exhibit C, in the presence of an independent witness. In this statement the appellant referred to his dispute with the deceased about the proceeds of the cocoa farm and their quarrel on that Friday when the deceased came to demand money from him. He then continued his statement as follows: “After the quarrel, I went to Apampa village leaving the deceased at Aboabo village. On my return journey, I met Kodjo Duku on the way. He was alone and was going to his village. He told me that he would by all means take the cocoa farm from me. I became annoyed and struck him at the back of the head with a long hoe I was holding. I gave him two blows with the hoe at the back of the head. He fell down and died on the spot. He sustained injury on the head. I dragged him to a spot and left him under a tree. I went to my home at Aboabo. Later a bearer came from his village Ohiayeanisa in search of him. I was later arrested by the members of Aboabo town committee. A report was then made to police.” At the trial the defence sought to have exhibit C rejected, but it was received by the trial judge, and this became part of the case for the prosecution. The statement which the appellant made to the odikro in which he said that the deceased was dead was confirmed by other witnesses, including the wife of the appellant.
[p.650] of [1967] GLR 647
In his sworn evidence at the trial the appellant again referred to his dispute with the deceased about the farm, but he denied that when he left the odikro’s house, after the quarrel he ever met the deceased again. He also denied that he went to the odikro’s house on Friday evening and said to him that the deceased was dead. He said that before he made the statement he was beaten up. The jury who heard the whole evidence took only four minutes to reach a unanimous verdict that the appellant was guilty of murder. The first ground of appeal alleges: “That the absence of any record of the learned judge’s summing-up to the jury was highly irregular as one could not tell whether the learned judge’s summing-up was therefore fair and accurate. This occasions a substantial miscarriage of justice.” The record of proceedings shows that after the addresses by counsel for both the prosecution and the defence the learned trial judge made the following notes: “I sum up to jury between 11.29 a.m. and 12 noon. Jury retired at 12 noon.” There can be no doubt therefore that the learned trial judge in fact complied with the requirements of the provisions of section 277 of the Criminal Procedure Code, 1960 (Act 30). Unfortunately, the trial judge’s notes of the summing-up have been omitted from the record of proceedings prepared for this appeal. Counsel for the Republic offered no explanation for this omission. But the evidence in this case is so clear and the guilt of the appellant is so patent that the jury would be acting contrary to their oaths if they had pronounced a verdict different from what they returned. We think that where on appeal from the verdict of a jury the trial judge’s summing-up notes cannot be traced, the appeal court itself will peruse the record of the evidence, and if satisfied that the evidence adduced supports the verdict, it will not interfere with a conviction. In our opinion the absence of any record of the learned judge’s summing-up to the jury has not occasioned any miscarriage of justice, let alone a substantial one. The other grounds of appeal argued were that: “(1) The verdict cannot be supported having regard to the evidence. (2) The court erred in accepting the police statement which was alleged to be the accused’s confession statement. (3) The conviction is wrong in that it was based entirely on the alleged confession statement which was challenged by the accused since there was no evidence to corroborate the alleged confession statement.”
We find no substance whatsoever in the arguments advanced in support of these grounds. In our opinion the verdict of the jury is
[p.651] of [1967] GLR 647
amply supported by the evidence, and there is no ground for which we can interfere with the conviction of the appellant. We therefore dismiss the appeal accordingly.
DECISION
Appeal dismissed.
S. Y. B. -B.
