NKOAH AND OTHERS vs. THE REPUBLIC [1997-1998] 2 GLR 746

CASES REFERRED TO

(1) R v Osbourne, R v Virtue [1973] QB 678; [1973]12 WLR 209; [1973]11 All ER 649; sub nom R v Osbourne; R v Virtue [1972] Cr App R 297, CA.

(2) R v Adebowale (1941) 7 WACA 142.

(3) State v Brobbey & Nipah [1962] 2 GLR 101, SC.

(4) R v Rudd (1948) TLR 240; 92 SJ 206; (1948) 32 Cr App R 138, CCA.

(5) R v Gunewardene [1951] 1 KB 600; [1951] 2 All ER 290; [1951] TLR 315; 35 Cr App R 8O0, CCA.

(6) R v Murray [1951] 1 KB 391; [1950] 2 All ER 925; 34 Cr App R 203, CCA.

(7) Ofori v The State [1963] 2 GLR 452, SC.

(8) Barkah v The State [1966] GLR 590, SC.

(9) Practice Note (State v Aholo) [19611] GLR (Pt II) 626, SC.

(10) Kanu v yR (1952) 14 WACA 30.

(11) State v Banful [1965] GLR 433, SC.

(12) RT Briscoe (Ghana) Ltd v Boateng [1968] GLR 9, CA.

(13) Ibrahim v R [1914] AC 599; 83 LJPC 185; 111 LT 20, PC.

(14) R v Sykes (1913) 8 Cr App R 233.

(15) Slatterie v Pooley (1840) 6 M & W 664; H & W 18; 10 LJU Ex8.

[p.749] of [1997-1998] 2 GLR 746

(16) R v Rhodes (1959) 44 Cr Appr R 23, CCA.

APPEAL against conviction for murder in a jury trial before the High Court, Sekondi. The facts are sufficiently stated in the judgment of Forster JA.

Dr Tackie Otoo (with him Haizel) for the appellant.

Miss Asare Korang (Chief State Attorney) for the Republic.

Forster JA. On 3 May 1995, the four appellants were arraigned before the High Court, Sekondi on an indictment charging them jointly with conspiracy to commit murder, contrary to sections 23 and 46 of the Criminal Code, 1960 (Act 29); and murder, contrary to section 46 of Act 29. The jury returned a verdict of guilty on both counts and they were accordingly sentenced to death. On 11 September 1995, the appellants filed a notice of appeal and subsequently, on 24 November 1994, filed additional grounds.

The facts of the case may be briefly stated. The appellants are all natives and residents of Sefwi Kwafokaa in the Sefwi Wiaso District of the Western Region. The first appellant was at the material time the krontihene of the town and, like the other appellants, also a farmer. The deceased Akosua Bombo was a six- year old girl and pupil of the local day nursery. Her uncle was the second appellant.

On 7 April 1992, Akosua Bombo returned from school as usual, but left for the grandmother’s house. She was not seen alive again. A search organised by the chief on that day failed to locate the whereabouts of the deceased. In the meantime, Kwame Opoku, who gave evidence at the trial as the first prosecution witness, had informed one Brefi that he saw the deceased in the company of the appellants and in rather suspicious circumstances in the bush. Eventually, however, the body of the deceased was found in a bush at the outskirts of the town. Her right and left upper limbs had been cut off at the shoulders; the right lower limb was detached at the knee and the left foot had also been detached at the ankle joint. All the mutilations were found by the medical officer who performed the postmortempost-mortem to be consistent with the use of a sharp object. The detached parts were all missing. Subsequent police investigations established the appellants as suspects in the case and they were accordingly indicted for the offences of conspiracy to murder and murder of Akosua Bombo.

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In this appeal the following issues were raised by Dr Tackie Otoo, counsel for the appellants:

“(1) That the trial judge erred in admitting exhibits C and D in evidence since there were conflicts between the second prosecution witness and the sixth prosecution witness as regards the taking of the statements.

(2) That the judge erred in his direction to the jury as regards the use of exhibits C and D against the other co-accused persons.

(3) That the conviction was not supported by the evidence.”

Arguing the ground that exhibits C and D were wrongly admitted in evidence, learned counsel contended that the evidence of the second prosecution witness, the independent witness, was so fraught with inconsistencies that the judge should have rejected his evidence on the ground that he could not have been present when the statements were taken. It must at this stage be pointed out that the witnesses who gave evidence for the prosecution in the mini-trial were put down as the first prosecution witness and second prosecution witness, whereas in the main trial the first prosecution witness and the second prosecution witness were different. The first prosecution witness at the mini trial was Detective Inspector Akagbo who recorded the statements of the appellants; and the second prosecution witness at the mini trial was Philip Krakue, who witnessed the statement. He was an overseer with the Ghana Private Road and Transport Union (GPRTU) at Sekondi. He testified that on 17 April 1992, he was invited by the first prosecution witness at the mini trial to witness statements he was going to take down from some accused persons. He said that he obliged and that all the statements were taken in his presence at the “district police station and at 2 pm” In cross-examination, when asked again about the date, he answered that it was 7 April 1992. In re-examination, the wit ness’s memory having been refreshed from exhibit C, he said “1I am now saying that the date is 17 April 1992 and the statement was taken that day.” The first prosecution witness at the mini trial gave evidence that the statement was taken in the presence of the second prosecution witness at the mini trial at 9 am at the Regional Police Headquarters.

It is these conflicts as to the place, date, and time the statements were taken that, in the view of counsel, impugned the credibility

[p.751] of [1997-1998] 2 GLR 746 of the second prosecution witness at the mini trial. I find no serious or material conflicts or inconsistencies that ought to have caused the trial judge to reject the exhibit C on the grounds that the second prosecution witness at the mini trial could not have been present to witness that statement and therefore the statement was not taken in the presence of an independent witness, as mandated by section 120 (2) of the Evidence Decree, 1975 (NRCD 323). I am not in the least persuaded by counsel’s submission. In the first place, as to the date the statements were taken, it must be noted that the witness was being tasked to remember such a minute detail as a date and the more so some four years after the statements were taken, ie [1992-1996]. The capacity for faultless recollection is almost invariably adversely affected by lapse of time between the incident and the time when recollection is engaged. Memory, it has been said, hinges on receny. And where recollection is required, the experience of rational intellect shows that it may fail, especially where the matter for which recollection is summoned to prove is so trivial that one could scarcely expect a ready, instant and faultless recall, and where the incident occurred a long time before the witness’s testimony. It is in recognition of this human infirmity that the law grants a dispensation from compliance with the requirement for direct evidence in favour of admission of hearsay evidence, where by reason of lapse of time it is not expected by rational minds that a prospective witness may have any recollection of the incident. And additionally, it is for the same reason that the law permits slumbering recollection to be revived by the practice of refreshing memory, lest testimony in the witness box becomes more of a test of memory than truthfulness of the witness. Thus in R v Osbourne [1973] Cr App R 297, CA, a woman testified that she could not remember having picked out anyone at an identification parade held some seven and a half months before the trial. A police officer in charge of that parade was allowed to testify that the woman had picked out the accused. The Court of Appeal held that the officer’s evidence did not contradict the woman’s evidence.

In my considered view, I do not think that it was even fair to the witness (the second prosecution witness at the. mini trial) to require him to be specific and faultless as to the date on which the statements were taken or hour of the clock when he witnessed the statements. It is equally less sigrnificant to contend that the

[p.752] of [1997-1998] 2 GLR 746 evidence of the first prosecution witness at the mini trial was in conflict with that of the second prosecution witness at the mini trial as to where the statements were taken. Having said that the statements were taken at the district police station, the witness, in re -examination, explained that he did not know the difference between the regional police station and the district police station. There was however evidence from the first prosecution witness at the mini trial and exhibits C and D that the statements were taken at the regional police station. I think that the trial judge and jury both found the second prosecution witness credible and nrightly disregarded these inconsistencies which had been bloated out of all proportions by counsel. They were of no material consequence in the case of the prosecution.

Counsel next submitted that the judge erred in his direction to the jury concerning the use of exhibits C and D against the other accused persons. Exhibits C and D were confession statements of the first and second appellants. In those statements, the authors incriminated the third and fourth appellants. The impugned instructions to the jury were as follows:

“You have heard the witnesses in this court. None of them had come here to say that they saw any or all the accused caused harm to Akosua Bombo. But we have on record as part of the evidence in this case exhibits C and D, the confession statements of the first and second accused. All the accused persons have denied the offences.Theyoffences. They gave evidence and denied everything . . . I direct you ftiurther that a confession statement is admissible against the confessor. If a man says that I have done a thing who are you to say he did not do it.”

And the judge concluded:

“The statements are equally admissible against all the accused persons since they are all being tried together. Generally, a confession made by one accused person is not regarded as evidence against another accused: see R v Adebowale (1941)

7 WACA 142 at 144.”

Miss Asare Korang, learned Chief State Attorney, reacting to the submission of counsel, found no misdirection in the instructions qiuoted above. In support of her view, she referred the court to Kenny ‘’S Outline of Criminal Law (17th ed), p 396 on the acts of conspirators The relevant passage reads:

[p.753] of [1997-1998] 2 GLR 746

“The range of admissible evidence is still further widened by the fact that each of the parties has by entry into agreement, adopted all his confederates as agents to assist him in carrying it out. Consequently, by the general doctrine as to principal and agent any act done subsequently for the purpose by any of them would be admissible as evidence against him, unless before it was done he had given notice that he withdraws from the conspiracy.”

(The emphasis is mine.) This common law principle has been applied and relied on by the courts of this country, and has lately become part of the statutory law of Ghana. The principle arising from the relationship of principal and agent is enacted in section 119 (e) of the Evidence Decree, 1 975 (NRCD 323). It makes the admissions of a conspirator admissible against his co-conspirator, if the statement was made: “while participating in a conspiracy to commit a crime or a civil wrong and in furtherance of that conspiracy.” An essential prerequisite for the application of the rule is the requirement that the acts or statements of a conspirator sought to bind his co-conspirators or criminal confederates, must have been done or uttered, as the case may be, in the course and in furtherance of the conspiracy, and not after the conspiracy has terminated.

In the instant case, the confession statements sought to be used against the non-confessors were made on 17 April 1992, when the conspiracy had terminated and the conspirators had been apprehended by the police. Exhibits C and D were not therefore admissible against the other co-accused persons. Thus, neither the instructions of the judge nor the submissions of the Chief State Attorney are in conformity with the application of the rule. The instructions of the judge were therefore a misapprehension of the law. Incidentally the case of R v Adebowale (supra) cited by the trial judge had no relevance to the issue. What was considered in that case was whether the corroboration rule also applied to the evidence of a co-accused. There was no issue as to the use of a confession of a conspirator against another conspirator jointly charged with him.

Quite apart from the misdirection’s as to the use of confessions among conspirators, the settled position of the law is that an extra -judicial statement made to the police by an accused person in which he incnriminates himself and a co- accused as to the offence

[p.754] of [1997-1998] 2 GLR 746 charged jointly against them binds only the confessor and not the non-confessing co-accused. And it does not matter that they have been charged with conspiracy. Of course, should the confessor implicate the other co-accused when giving evidence, then that is admissible evidence against the co-accused who may, at his election, cross-examine the accused-witness: see State v Brobbey & Nipah [1962] 2 GLR 101, SC; R v Rudd (1948) 32 Cr App R 138, CCA; and R v Gunewardene (1957)1 KB 600.

Counsel for the appellants finally submitted that the convictions could not be supported by the evidence. In the case of the first and second appellants their own admitted confessions, if believed by the jury, were sufficient evidence supporting their convictions. That issue was clearly submitted to the jury for their consideration as to what weight they might attach to the statements–exhibits C and D. In his said statement, the first appellant admitted that on that day he met the appellant and a Zambrama man in the firsit appellant’s kitchen and that it was the second appellant, Nkrumah, who called him as he was passing. And more:

“When I went I saw a young girl aged about four years also seated on the ground. Suspect Yaw Nkrumah told me that the Zambrama man requested him to find human parts for him;, that he promised to pay ¢4 million cedis to him and also offered a chainsaw machine. That I should not tell anybody for he would give me some of the money. I knew the child seated there. was his child,; as such I did not ask of its name. Moreover, once he warned me to keep it secret, I did not want to be inquisitive. All of a sudden the Zambrama man hit the back of the neck of the child with a piece of wood which was lying down; the child fell down. Suspect Yaw Nkrumah carried the child in his hands and rushed to the rubbish dump near the forest/bush. The Zambrama man followed and I also at the rear. Suspect Yaw Nkrumah descended into the valley behind the rubbish dump and lost into the bush. We all followed to a spot; I followed half-way and stopped at thec edge of the rubbish dump. Soon Suspect Yaw Nkrumah returned to where I stood without the Zambrama man. I asked him the whereabouts of the Zabmni-rama man, and he told me that he had left through the bush. I again asked him of the money promised us. Suspect Yaw Nkrumah told me that the Zambrama man told him that he would send the thing to

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French and bring the money on his return. He made me to understand that the Zambrama man would return on the third day to bring the money. All along I thought that the Zambra- ma man had carried the child away whole.”

In his statutory statement (exhibit L) made at the preliminary hearing, the first appellant said he was called by the second appellant at the back of his kitchen where the appellant saw two Zambrama men and a sack, which the second appellant said contained the child they had killed. He saw that the sack contained a human being. He was however asked by the Zambrama men to leave and he went away.

The statutory statement, it would seem, was so made as to leave out the fact that he was present when the deed was done and accompanied the second appellant and the Zambrama men to where they eventually parted from the appellant and took the body away. In their evidence in court, the first and second appellants denied ever having made exhibit C and D at all. Nor that they were present when the Zambrama man killed the deceased. The confession statement having been admitted in evidence, the question of whether they were made by the appellants and if so whether they were voluntarily made, were no longer in contention. It now became an issue for the jury to determine what weight, if any, they, as trierstiers of fact, attached to the statements: R v Murray [1951] 1 KB 391. In the instant case, by their unanimous verdict of guilt, the jury demonstrated their conviction that the con- fessions were credible, true and consistent. A conviction based on such evidence of confession cannot be disturbed by this court: see Ofori v The State [1963] 2 GLR 452, SC; Barkah v The State [1966] GLR 590, SC; Practice Note (State v Aholo) [1961] GLR (Part II) 626, SC; and Kanu v R (1952) 14 WACA 30.

In the case of the second appellant, his confession statement (exhibit D) amply justified his conviction. He met his own niece, the deceased, in the house of the first appellant who informed him that a Zambrama man had offered to buy a human being. According to him, the first appellant suggested that his niece Akosua Bombo, who was physically present in the room, was to be offered to the Zambrama man. The appellant, in his statement, said he was afraid. He was made an offer of ¢200,000 and ¢1 million. This bargaining was in progress when Akosua Bombo, whom the first appellant had sent for cigarettes came back and

[p.756] of [1997-1998] 2 GLR 746 brought them to him. He stated; “Before I left I knew the child would be murdered. I believe that the Zambrama man may use the child for ritual purposes.” Some time the same day, after a gong gong had published the disappearance of the girl, he went back to the first appellant to demand the promised ¢200,000 but he was asked to exercise patience. He said further that a search party was organised to find Akosua Bombo and that: “I went and joined the group, though I knew that the child was murdered, I assisted the people to search for her.”

If there was indeed a conspiracy, by his own conduct the second appellant had voluntarily joined the conspiracy at whose hands Akosua Bombo met her death. In my view, the jury were perfectly justified to convict the second appellant on his own confession.

Besides the statement in which the first appellant confessed to the crime, there was also the evidence of the first prosecution witness which incriminated him and the second and third appel lants. The first prosecution witness, Alex Kwame Opoku, lived at Kwafokaa, where the deceased was murdered. The following is the material extract from his testimony:

“I am a farmer. I know the accused persons. I know Abena Tawiah. I know her daughter called Akosua Bombo. She is dead. On 7 April 1992 I was at Kwafokaa returning from my farm when I went into the bush to ease myself. I saw Akosua Bombo (deceased) leading and she was followed by the accused persons. As the second accused was an uncle to Bombo I did not say anything. The next day I went to inspect my traps. I saw the fourth accused carrying a sack and the other accused persons were with him. I came home to inform one Brefi who is an uncle of Akosua Bombo. He asked somebody to accompany me to intercept fourth accused so as to inspect the sack. We did not see them so we returned home.”

This evidence, if believed, would show that the appellants were not purposelessly moving together. It was for a purpose and that purpose must have been something to do with the deceased, Akosua Bombo. First, on that 7 April 1992, and before the disappearance of the deceased had been noticed by the parents and others, all the appellants were found taking the girl some where and that was the day when she was not to be seen alive anymore. That was the day on which from 3 pm the third prosecution

[p.757] of [1997-1998] 2 GLR 746 witness, her mother, searched for her in vain. And that was the day when all the appellants responded to the call of their chief to organise and search for the then missing Akosua Bombo, a search by which they now proclaim their innocence. As the evidence established, the first and second appellants were self-confessed murderers. The incident happened at the house of the first appellant and in the presence of the second appellant. Just after the murder of the girl in the kitchen, these two appellants and the others were to be found together again walking through the bush;, but unlike the previous occasion, there was no living Akosua Bombo in the company of her elders. The fourth appellant was seen carrying a rather suspicious object in a sack. I think that from all the circumstances of the case, since these appellants were the persons last to have been seen with Akosua Bombo before her dismembered body was found in the bush, they must answer and be held accountable for the disappearance of the infant girl. As the post-mortem evidence revealed, parts of her upper and lower limbs were severed and missing. No triertier of fact can ignore the horrible conclusion that, and as was stated by the first appellant in exhibit C, the missing limbs were the “human parts” required by the Zambrama man.

Counsel for the appellants lay much store on what he considered to be matter that tended to destroy the credibility of the first prosecution witness. First, he contended that all that he told the third prosecution witness was that he knew where the deceased was. The first prosecution witness however, persisted in cross-examination that he told the third prosecution witness that he had seen the appellants with Bombo. Significantly, at no time during the cross-examination was the first prosecution witness confronted with his statement to the police to give the court the opportunity of knowing of any variance between his evidence and the contents of the statement. Again, counsel submitted that the first prosecution witness said he sent two other men who accompanied him to report to the third prosecution witness that they had failed to find Akosua Bombo. The third prosecution witness, indeed testified that one of those who accompanied the first prosecution witness came back to report. Apparently, the third prosecution witness was suspicious of the first prosecution witness and therefore caused his arrest by the Committee for the Defence of the Revolution (CDR) as he was returning from tapping his palm wine. Counsel had suggested to the witness in

[p.758] of [1997-1998] 2 GLR 746 cross-examination that if he had in truth seen the appellants with the deceased he would have disclosed this to the people; and that when the witness told the crowd that he would only talk to the police, the people threatened to beat him. It is this refusal or failure to disclose what he had perceived to the crowd that counsel would construe as indicative of the untruthfulness of the evidence of the first prosecution witness.

I am not in the least impressed by counsel’s submission. For, if indeed the mere indication that he reserved his statement for the police did provoke the wrath of the crowd, as counsel gleefully reminded the witness, then I think his reticence was quite reasona ble in the circumstances. For it would have been suicidal for the first prosecution witness to have brazenly accused not only the third appellant, a CDR member, but also the first appellant who was the occupant of the Kronti stool of the town. Indeed, silence in these circumstances, was golden! These matters which counsel canvassed as impeaching the credibility of the first prosecution witness are, in my judgment, too irrelevant.

In determining the merits of counsel’s submission that the con viction of the appellants was not supported by the evidence, I have sought much guidance from the relevant rule as stated in Halsburiy’s Laws of England (3rd ed), Vol 10, para 986 at pages 536-537, para 986. It reads:

“To establish that the verdict is unreasonable or cannot be supported having regard to the evidence, it is not sufficient merely to show that the evidence given at the trial only amounted to a weak case against the appellant, or that the judge of the court of trial had some doubt about the sufficiency of the case and has given a certificate on that ground, though that is the material factor in the case. If there was evidence to support the conviction it will not be quashed even though the members of the Court of Criminal Appeal themselves feel some doubt about it. The verdict must be such that no reasonable jury could properly find upon the evidence given. The Court of Criminal Appeal will not usurp the functions of the jury.”

The jurors were in court and heard the evidence of first prosecution witness and considered the confession statements made by the first and second appellants and the roles played by all the appellants in the commission of this atrocious murder. They

[p.759] of [1997-1998] 2 GLR 746 heard and considered the submissions of counsel. And they were better placed than this court to determine the credibility of all witnesses, including of course the appellants, and to evaluate the weight of the evidence. By their verdict, the jury rejected the appellants’ defence of innocence and preferred the evidence offered by the prosecution. And this court has no reason to question their judgment.

In the result, I will dismiss the appeal and affirm the conviction of all the appellants.

Benin JA. The accused persons (hereinafter referred to as the appellants) four in number, were all charged with two offences and arraigned before the High Court, Sekondi. The charges were: (a) conspiracy to commit murder, under sections 23 and 46 of the Criminal Code, 1960 (Act 29); and (b) murder, under section 46 of Act 29. They were alleged to have conspired to, and did murder one Akosua Bombo on or about 7 April, 1992 at Sefwi Kwafokaa. Indeed, it was said to be a case of ritual murder for the deceased’s body was dismembered and the parts thereof sold to a Zabrama man who has not been identified as of now. The prosecution called a number of witnesses whose testimonies were purely circumstan tial. A mini trial was also conducted to determine the admissibility or otherwise of what appeared to be the confession statements made to the police by the first and second appellants.

Following the court’s summing up, the jury returned a verdict of guilty against all the appellants on both charges. They were accordingly given a mandatory sentence of death. The detailed facts will be unfolded as and when I discuss the various grounds of appeal, which are:

“(i) That the learned trial judge erred in law when he admitted into evidence the caution statement of the first accused person.

(ii) That the learned trial judge erred in directing the jury to hold that the first, third and fourth accused persons were all guilty of murder.

(iii) That the learned trial judge erred in law when he directed the jury to believe the second accused person’s statement to the police as the truth.

(iv) The direction of the jury by the learned trial judge occasioned a substantial miscarnriage of justice”

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Additional grounds of appeal filed were these:

“(a) The facts given by the prosecution were not proved beyond reasonable doubt.

(b) The learned judge misdirected himself by not directing the jury on the very serious inconsistencies in the evidence of the first prosecution witness.

(c) The leaned trial judge misdirected himself by the non- direction of the jury on the very serious inconsistencies in the testimony of the second prosecutions witness.

(d) The learned trial judge wrongly admitted exhibits C and D, the alleged confession statements.”

I shall deal with these grounds of appeal by the order that they were argued.

Counsel for the appellants first argued additional grounds (c) and (d) together. He contended that the prosecution’s case was based solely on the so-called confession statements, namely exhibits C and D of the first and second appellants. He submitted that these two exhibits were wrongfully received by the court. The reason being that there were inconsistencies in the testimony of the police investigation officer who took down the statements and the independent person who witnessed the taking down of the statements, as regards (i) the place and (ii) the time the statements were taken.

The admissibility of a statement is one of law for the trial judge only to decide. And the issue as to whether the confession statement was voluntarily made or not is a question of fact for the trinal judge without the jury: see State v Banful [1965] GLR 433, SC. Hence, the holding of the mini trial in the absence of the jury was proper. The discrepancies, as mentioned earlier, were in relation to the venue and time the statements were taken. In respect of the venue, the investigator (Patrick Akagbo) said hec took the statements at his office at the Regional Criminal Investigation Department (CID), Sekondi on top of the hill. The independent witness, Philip Krakue, said he witnessed thec statements at the district police station in Sekondi, In cross-examination, this witness said he knew the regional headquarters of ththe police is on the hill top. Earlier, he had also said that even though he did not know the difference between the police regional headquarters and the district headquarters, yet he knew one is or top of the hill whilst the other is down the hill. So when he [p.761] of [1997-1998] 2 GLR 746 answered that the regional headquarters was on top of the hill, he knew the district headquarters was down the hill and that was where he witnessed the statement. Thus effectively there was this discrepancy as to the exact place the statements were taken.

Then as to the time, Inspector Akagbo said he took down the statements at 9 00 am. Philip Krakue said it was about 2 pm that Inspector Akagbo came and invited him to witness the statements. And under cross-examination this witness confirmed that the statements were taken at 2 pm. So that at the close of the mini trial] the prosecution’s version had these inconsistent positions. Inspector Akagbo said he took down the statements at his office alt the regional headquarters (on top of the hill) at 9 am; the independent witness Philip Krakue said he witnessed the statements at ththe district office of the police in Sekondi (down the hill) at 2 pm. It is these discrepancies and inconsistencies which counsel for thec appellants wants this court to rely upon in coming to thec conclusion that the statements were wrongfully admitted by thec trial judge.

The trial judge regrettably did not deal with those issues in detail but made only a passing reference to them in the reasons hec gave for admitting the statements in evidence (embodied in thec summing-up). This is what he wrote:

“The independent witness, Mr Philip Krakue, appeared to me to be a truthful witness. Although he made a few slips here and there, generally he was able to recollect what happened when the accused persons were introduced for the confession statements to betaken down in writing.”

The trial judge did not mention where Philip Krakue merely slipped, which he thus ignored as insignificant, which omission I consider unfortunate since the trial judge was fully aware of them. However, it is our duty here to find out what the “slips” were and decide whether they were truly insignificant or ought to have had a material bearing on a decision in favour of the appellants. By whatever name one calls them “slips” or “discrepancies” or “inconsistencies”, etc the important factor to consider is whether they are so material as to affect proof of the particular issue for which the evidence was tendered, or to affect the witness’s credibility. If it is considered material, then it is important for the court’s consideration. If not, the judge could ignore them;, but

[p.762] of [1997-1998] 2 GLR 746 whatever it is, the judge is duty bound to mention it and give reasons for accepting same as material or otherwise.

This court, in an earlier case, namely R T Briscoe (Ghana) Ltd v Boateng [1968] GLR 9 at 11, CA gave a useful guide when it said, per Lassey JA, that:

“. . . … a judge is not entitled to disbelieve a witness merely because in narrating his account of events which happened some time before he gave evidence in court, he slips here and there or because there are a few discrepancies between his story and that of another witness called to support him on the particular issue.”

The court then went on to state what the law on the point is and it remains valid. It said, again per Lassey JA at 11-12 of the report, that:

“The accepted principle of law on this matter is rather that where the discrepancies are really material and make the version of the witness on the point or points at issue highly improbable when viewed against the general background of the dispute, the Court of Appeal in hearing the appeal may say that the judge of the trial court erred in accepting and believing what such a witness has testified about.”

In this particular case the important legal considerations in so far as section 120 of the Evidence Decree, 1975 (NRCD 323) go are that:

(1) the accused made the statement voluntarily;

(2) that it was taken down in the presence of an independent witness;

(3) that the independent witness understood the language spoken by the accused;

(4) that the independent witness could read and understand the language in which the statement was made;

(5) that the independent witness in this case carefully read over and explained to the accused the contents of the statement before they made their marks thereon; and

(6) that the independent witness certified in writing on the statements that he had so read over and explained the contents to the accused who appeared perfectly to understand same before marking same.

[p.763] of [1997-1998] 2 GLR 746

Failure to comply strictly with any one of these will render the statement totally inadmissible.

From the record, the trial judge rightly concluded that these provisions were all complied with. Indeed, only one statement was taken from each of the first and second appellants on the same day, viz 19 April 1992. And also, only one statement of each of those accused was certified by Philip Krakue as having been taken down at the Sekondi Police Station. I think the discrepancies as to whether it was at the regional or district headquarters, and as to whether it was in the morning at 9 am or in the afternoon at 2 pm do not materially affect the substance of what took place. They were consistent in respect of all other important and material considerations, for instance as to whether the policeman, lInspector Akagbo, took down the statement before Krakue and that he witnessed the statement at all and that it involved the first and second appellants and on 17 April 1992. I do not even think they affect the credibility of the witnesses, once Philip Krakue in particular has no motive or incentive to lie against the first and second appellants who he had never met or known before. Indeed, if there was a real collusion between the police and the independent witness there would be evidence of some benefit or advantage to be derived from such a relationship. There was no such evidence. Moreover matters as to time spoken of at a much later date are not likely to be the same always but this by no means renders the testimony incredible. And with the conclusion that the discrepancies were immaterial to the particular evidence sought to be tendered, and when weighed against the background that they were freely given without threat etc or otherwise, then the trial judge was justified in admitting the statements namely exhibits C and D against the first and second appellants. Accordingly I dismiss these two grounds of appeal.

Next, counsel argued original ground (i) and additional grounds (a) and (b). On these, counsel submitted that the only basis of the prosecution’s case is exhibits C and D; therefore in their absence, there was no case for the jury to consider at all. The converse to this argument is that since exhibits C and D were properly admitted, then even in the absence of any other evidence the first and second appellants were rightly found guilty by the jury based on those statements only. The principle underlying this, as stated in Ibrahim v R [1914] AC 599 at 609, per Lord Summer, is that “what a person having knowledge about the matter in issue says of [p.764] of [1997-1998] 2 GLR 746 it is itself relevant to the issue as evidence against him.” It is thus to be taken as true evidence against the maker thereof. The point was made sufficiently clear in R v Sykes (1913) 8 Cr App R 233 that where the confession is unambiguous it is sufficient to warrant a conviction without corroboration. I will therefore reject these grounds of appeal too as the jury could find the first and second accused persons guilty based solely on exhibits C and D.

Also argued was the original ground (ii). In connection with this, counsel referred to a portion of the trial judge’s summing-up notes and said it was a misdirection. The relevant notes are these: “If you come to the conclusion on the facts that all the accused persons were present when the decision was taken to hand over Akosua Bombo to the Zabrama man, then they acted together to achieve a criminal aim. In that case they must be guilty of conspiracy to murder Akosua Bombo. If you also come to the conclusion that the accused persons were all present when the Zabrama man administered the fatal blow, then they must be guilty of murder as well.”

I think that the mere fact that a person is present when a crimce is committed does not make him a participant in the crime. But his presence could ground a charge of conspiracy or aiding and abetting, depending on the circumstances and other factors sur rounding the case. Here is a case where evidence was led that all the accused were seen together in the company of the deceased heading towards the bush. The deceased’s dead body was found inr the bush. So that if indeed the deceased was killed by the Zabram man in the presence of the appellants, then there could be noc complaint of a substantial miscarriage of justice for they could be convicted of aiding and abetting murder even if the charge ofi murder would not hold against them.

Next, counsel argued original ground (d). Strictly speaking, this was not a good ground for the particulars of the misdirectiorn complained of were not given. But we allowed counsel to state the misdirections and then argue and for that reason too we allowecd counsel for the respondent a date to reply. To begin with, counsecounsel for the appellants referred to a portion of the summing up notes and submitted it amounted to a misdirection occasioning substantial miscarrimage of ljustice. The relevant notes provide:

[p.765] of [1997-1998] 2 GLR 746

“The statements are equally admissible against all the accused persons since they are all being tried together. Generally, a confession made by one accused person is not regarded as evidence against another accused. If you therefore believe the statements of first and second accused persons in which the presence of the third and fourth accused persons is acknowledged in the kitchen, then the third and fourth accused persons are involved. The third and fourth accused persons are known to the first and second accused persons. They are familiar with the third and fourth accused persons. I do not think an error was made when the accused person mentioned them as being in the kitchen of the first accused person.”

The trial judge appeared to have confused himself as to the applicable law. In one breadth, he says the confession statements of the first and second accused were admissible against the other accused as well. In another breadth, he says such confession statements are not evidence against the other accused. In a state of contradiction, conflict or confusion over two inconsistent positions of law or fact, the resolution most favourable to the accused must be accepted by the appellate court. Be that as it may, having regard to the subsequent exposition of the facts by the trial judge, it seems to me his stand was that the jury could act on the exhibits C and D against the third and fourth accused also since no question of mistaken identity arose.

I think this is clearly wrong, with all due respect to the learned trial judge. The law is clear that a person’s own confession is receivable against him only, and the judge should warn the jury on this point: see R v Gunewardene [1951] 2 KB 600. If the judge fails to warn the jury on this, and the statement materially influences the verdict, the conviction may be quashed. Parke B in Slatterie v Pooley (1840) 6 M & W 664 said that “whatever a party says is evidence against himself . . . What a party himself admits to be true may be presumed to be so.” Indeed one person’s confession cannot even be used in favour of another accused; it thus stands to reason that it cannot be used against a co-accused. A statement by an accused to the police or to other persons—–except one in the presence or absence of a co-accused in the course and in pursuance of a joint criminal enterprise to which the co-accused was a party— -is not evidence against a co- accused unless he either

[p.766] of [1997-1998] 2 GLR 746 expressly or by implication adopts the statement and thereby makes it his own: see R v Rhodes (1960) 44 Cr App R 23. I agree that there was a clear misdirection to the jury as to the application of exhibits C and D against the third and fourth accused persons. Should their conviction be quashed on this ground? I believe we have to establish that this misdirection materially influenced the jury’s verdict. And to be able to achieve this, I think we ought to examine the record and the direction of the judge to find out whether there was no other evidence besides these exhibits, which must inevitably have resulted in the verdict of guilt against the other appellants. It is here that the evidence of the first prosecution witness, which counsel for the appellant’s referred to under this ground of appeal, must be examined.

The first prosecution witness (Alex Kwame Opoku) said that on 7 April 1992 he was in the bush when he saw all the appellants going towards the bush with the deceased in front. He said he did not tell them anything because he knew the second appellant to be the uncle of the deceased. The next day he went to the bush again and whilst there he saw the fourth appellant carrying a sack with the other appellants also with him. He came home and informed one Brefi an uncle of the deceased. The said Brefi sent him the first prosecution witness, and one other person to intercept the fourth appellant to find out what was contained in the sack. How ever, they did not find them so they returned home. He denied a suggestion under cross-examination that he had fabricated the story that he saw the appellants with the deceased. The second prosecution witness, Brefi, confirmed that first prosecution witness came and told him about the whereabouts of the deceased a day after she was reported missing. He confirmed that he detailed the first prosecution witness and one other person to go and look for her. The jury were directed to the evidence of the first prosecution witness in particular. I think, though circumstantial, the evidence of the first prosecution witness, if believed, could be acted upon to establish guilt. This was because the appellants went into the bush with the deceased and since then nobody saw her alive again. And on that very night when the gong gong was beaten none of them came forward to say he had seen the girl. The next day all the four were again seen in the bush this time without the deceased who was subsequently found dead and her body dismembered in the bush. This evidence leads decisively to the conclusion that the appellants did kill the girl in the bush. In my

[p.767] of [1997-1998] 2 GLR 746 view therefore, there was sufficient evidence, albeit circum- stantial, upon which a conviction could be founded hence there was no substantial miscarriage of justice as to entitle me to set aside the conviction of the third and fourth appellants. I thus confirm same.

Having said all that, I must place it on record that the second appellant, namely Clement Yaw Nkrumah, never appealed; see the petition filed on 11 September 1995 filed on behalf of the first, third and fourth appellants and the petition filed on 29 September 1995 filed on behalf of only the third appellant. And even the additional grounds of appeal filed as recent as 24 November 1997 named only the first, third and fourth accused persons as the appellants. But it was out of abundance of caution that the case of the second accused was also discussed herein and, as said, he too was rightly convicted. It was for these reasons agree the appeal be dismissed.

Aryeetey JA. I agree.

Appeal dismissed.

SA