• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL
  KUMASI - A.D 2017
  

GEORGE ACKON @ KWAKU BALLOR - (Appellant)

vs.

THE REPUBLIC - (Respondent)

JUDGMENT

---

1. This is an appeal by the appellant against his conviction and sentence for murder by the Kumasi High Court dated 23^rd July 2001.

 

FACTS OF THE CASE AS PRESENTED BY THE PROSECUTION AT THE TRIAL:

2. The Prosecution’s case was that on 23/5/98 about 10:00am, the deceased Emmanuel Ofori arrived at Obuasi Central Market from Kwapea. Shortly thereafter he decided to pay a visit to the accused person’s father, with whom he has been working lotto. On his way, he met the accused person and others, now at large, who snatched his ₵55,000. After a fruitless effort to get his money, back the deceased accompanied by a friend who is a witness in the case made a report at the Central Police Station, Obuasi where they met Sgt. G.N Amatus. After lodging the complaint, the deceased and his friend left the charge office and fortunately for them, they met the accused person on his way home. The deceased again demanded his money back whereupon the accused person dared the deceased to follow him if he was a man. The deceased and his friend followed. When they got to the premises of the accused person’s house, the accused person picked a bottle from a crate of beer bottles in front of his house, broke it and tried to stab the deceased. The deceased tried to run away. He however fell down whereupon the accused pounced on him and slashed his throat with the broken bottle and the deceased died instantly. The accused was subsequently arrested and sent to the Central Police Station Obuasi while the deceased was taken to the Komfo Anokye Teaching Hospital, Kumasi. A post mortem examination was made on the deceased by Dr. K. Adu Poku who concluded in his report that in his opinion, the death was due to a neck stab wound. The case was investigated and thereafter the accused was charged with murder to which he pleaded not guilty.

 

3. The accused put up an entirely different case at the trial. The salient portions will be quoted during the course of this judgment. Suffice it to say for now that he said on the day in question he was around Obuasi Central and went to a playing ground where the deceased and his people were playing a game of chance. He saw a boy crying because he had lost a game and all his money and did not have money to go back to his destination, Oda. He told the deceased Emmanuel Ofori @ Accra boy to give the boy ₵12,000 but the deceased refused. He said one Mustapha came around and upon he explaining the situation to him, Mustapha demanded the money from the deceased. The friends of the deceased handed over the money to Mustapha who in turn handed over the money to the boy and they left. He later in the day while he was sitting under a tree in his house the deceased and his friend came to confront him saying he was responsible for Mustapha collecting the money for the boy. A fight nearly ensued but they were separated. Then he went around the Obuasi Circuit Court where there was a magic show. There he saw the deceased and his brother Ofori with the deceased holding a kitchen knife and the deceased hooked him. In a fight that followed shortly thereafter, he used a bottle to slash the deceased.

 

4. The accused person was tried and convicted upon a verdict of the jury who found him guilty of murder on 23^rd July 2001. He was accordingly sentenced to death by hanging by Her Ladyship Justice Mariama Owusu J as she then was.

 

The accused person (hereinafter referred to as ‘appellant’) being aggrieved by the decision appealed against the said conviction and sentence on three grounds per his Notice of Appeal filed on 15/12/2014 pursuant to an order of this court dated 25/11/2014.

 

GROUNDS OF APPEAL:

1. The conviction cannot be supported having regard to the evidence on record.

2. The prosecution failed to discharge its burden of proving the charge of murder beyond reasonable doubt.

3. The conviction is a nullity since same was reached without a summing up.

 

Counsel for the appellant argued grounds 1 and 2 together and they will be considered together as such.

 

GROUNDS 1 AND 2:

1. The conviction cannot be supported having regard to the evidence on record.

2. The prosecution failed to discharge its burden of proving the charge of murder beyond reasonable doubt.

 

5. The gravamen of the appellant’s submission per his Counsel on these grounds is that it was the legal duty of the prosecution to adduce credible evidence to establish that indeed the appellant intentionally caused the death of Emmanuel Ofori by inflicting unlawful harm on him. He argued that no further evidence was adduced to corroborate PW1’s account of what happened at the scene of the offence in the face of vehement denial of the account by the appellant. Counsel submitted that moreover, there was sufficient evidence to show that the injury inflicted on the deceased by the appellant was not intentional and unprovoked for him to be found guilty of murder. Also, that the prosecution failed to prove that the appellant picked an empty bottle from a crate of bottles nearby, broke same and used it to cut the deceased’s neck as testified by PW1 emphasising that if this were to be the case then PW4 Detective Inspector Samuel Kwame Oduro would have found the other broken parts of the said bottle when he visited the scene of the crime. Counsel for the appellant submitted that the prosecution failed to prove beyond reasonable doubt that the appellant had the requisite intention to cause the death of the deceased. Counsel for the appellant also submitted that PW 1 gave evidence to the effect that the appellant had snatched his money whereupon he advised him that they should inform the appellant’s father and that when they did the father told them that he was “fed up with the accused person” Counsel said this piece of evidence suggested that even the appellant’s father knew about what the appellant did to the deceased that resulted in the report to the Police by the deceased. He said however the appellant’s father was not invited to give evidence especially so when the appellant in his evidence denied ever snatching any money from the deceased. He contended that the appellant’s father was therefore a vital witness who the prosecution failed to call.

 

6. Relying on Lord Denning in his popular case of MILLER VRS MINISTER OF PENSIONS, [1947] 2 ALL ER 372 Counsel for the respondent for his part submitted that the proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. Moreover, the prosecution called material witnesses to give their testimony and the prosecution witnesses corroborated one another’s evidence. Also, there was no need to call the appellant’s father as a witness since he was not present when the offence was committed. The appellant’s act of picking the bottle and slashing the neck of the deceased when he was down does not amount to self-defence. The appellant’s intention to kill could be inferred from the harm the appellant caused, how grievous and deep it was and the manner in which it was done.

 

7. The critical issue for the prosecution to secure a conviction for any criminal offence inclusive of murder is whether or not the prosecution is able to prove beyond reasonable doubt that the crime has been committed. This standard of proof in a criminal matter is provided for in Sections 11 (2) and (1) of the Evidence Act 1975 (NRCD 323).

 

Section 11(2) provides as follows: -

 

“Section 11—Burden of Producing Evidence Defined.

(2) In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt”

 

Section 13(1) also provides as follows: -

 

“Section 13—Proof of Crime.

(1) In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.”

 

Again, Article 19(2)(c) of the 1992 Constitution of Ghana provides as follows:

 

“2) A person charged with a criminal offence shall-

(c) be presumed to be innocent until he is proved or has pleaded guilty;”

 

8. Section 46 of the Criminal Offences Act (Act 29) of 1960 creates the offence of murder and section 47 provides for the definition of same as follows:

 

“47. Definition of murder

A person who intentionally causes the death of another person by an unlawful harm commits murder, unless the murder is reduced to manslaughter by reason of an extreme provocation, or any other matter of partial excuse, as is mentioned in section 52.”

 

From the above section, the elements of murder to be proven by the prosecution beyond reasonable doubt for the judge and jury to find an accused person guilty of murder are outlined as follows: that: -

a. A person is dead

b. The person died as a result of a harm caused to him/her

c. The harm was caused was unlawful.

d. The harm was intentionally caused.

e. The harm was caused by the accused person and no one else.

 

A person is dead:

It has already been established that there is someone who is dead and the person is the deceased herein, Emmanuel Ofori. This is confirmed by Exhibit A, the Post Mortem Report and this was not denied by the appellant.

 

The person died as a result of a harm caused to him/her:

It is established that Emmanuel Ofori died as a result of harm inflicted on him with a broken bottle.

The witnessed testified on oath to same and the accused also admitted same.

 

The harm was caused was unlawful:

 

Section 1 of Act 29 defines “harm” to mean “a bodily hurt, disease, or disorder whether permanent or temporary.” Section 76 of Act 29 provides for the definition of unlawful harm as follows:

 

“76. Definition of unlawful harm

 

Harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in Chapter One of this Part.”

 

Section 31 of Act 29 provides the grounds on which harm may be justified while Section 32 provides for the general limits of justifiable force or harm. These are reproduced herein below in extenso.

 

“Section 31—Grounds on which Force or Harm May be Justified.

Force may be justified in the cases and manner, subject to the conditions, hereinafter in this Chapter mentioned, on the ground of any of the following matters, namely—

(a) express authority given by an enactment; or

(b) authority to execute the lawful sentence or order of a Court; or

(c) the authority of an officer to keep the peace or of a Court to preserve order; or

(d) authority to arrest and detain for felony; or

(e) authority to arrest, detain, or search a person otherwise than for felony; or

(f) necessity for prevention of or defence against crime; or

(g) necessity for defence of property or possession or for overcoming the obstruction to the exercise of lawful rights; or

(h) necessity for preserving order on board a vessel; or

(i) authority to correct a child, servant, or other similar person, for misconduct; or

(j) the consent of the person against whom the force is used.

 

Section 32—General Limits of Justifiable Force or Harm.

 

Notwithstanding the existence of any matter of justification for force, force cannot be justified as having been used in pursuance of that matter—

(a) which is in excess of the limits hereinafter prescribed in the section of this Chapter relating to that matter; or

(b) which in any case extends beyond the amount and kind of force reasonably necessary for the purpose for which force is permitted to be used”

 

9. In the instant case, the testimony of all the four prosecution witnesses who testified in the matter indicated that an unlawful harm was caused to the deceased, Emmanuel Ofori because the harm was not justified by any of the circumstances enumerated under Sections 31 and 32 of Act 29. PW1 Kwabena Bandoh was the friend of the deceased who accompanied the deceased to the Police Station and an eye witness to the incident. PW2 G/Sgt. G. N. Amatus No. 23627 was the officer the deceased and PW1 met when the deceased and PW1 went to the Obuasi Central Police Station to lodge the complaint. PW3 is Dr. Solomon Edward Quayson is a Pathologist at Komfo Anokye Teaching Hospital who has worked with Dr. K. Adu Poku and knows his handwriting. He testified on behalf of Dr. Adu Poku who performed the post mortem examination on the deceased and who was out of the Jurisdiction in the United Kingdom. PW4 is Detective Inspector Samuel Kwame Oduro at Ashanti Bekwai who was the stationed at Obuasi Central Police Station in 1998 when the incident took place and he investigated the case.

 

PW1 in his evidence at page 4 of the Record of Appeal stated: “When the deceased fell down the accused used the broken bottle to slash the deceased’s throat and run away still holding the bottle”.

 

PW3, who tendered Exhibit A, which is the post mortem report signed by Dr. Adu Poku read same at page 12 of the Record of appeal that “the death of the deceased was due to severe neck stab wounds by deep gaping laceration with evicted uneven edges extending from the anterior base of the neck at the upper margins of the sternum to the left upper posterior triangle. Severing the left sternocleidomastoid muscle. The upper third of the trachea and the osofagos (sic). The report also says when the other parts of the body were examined they were normal and that the death was as a result of the neck stab wound.”

 

PW 4, who was the Detective Inspector stated at page 13 of the Record of Appeal, that upon the examination of the body, he “found out that there was a very big cut at the neck”. The appellant even in his own testimony admitted to the unlawful harm meted out to the deceased. This is found at page 21 of the Record of Appeal: “There was a bottle nearby. I grabbed one and used it to slash the deceased with”.

 

10. Causation is also relevant here, in other words, whether the neck stab wound could have caused the death of the deceased.

 

In SARIMBE ALIAS OLALA V. THE REPUBLIC (NO. 2) [1984-86] 2 GLR 17 at page 19, Apaloo CJ in determining the cause of death of seven-month old pregnant woman held as follows:

 

“The question is, was it shown positively that the injuries caused her death? If the evidence is susceptible to her death being caused by some other cause, then clearly the prosecution would have failed to prove that the appellant inflicted the harm that resulted in the deceased’s death.”

 

Also in the GENERAL PART OF CRIMINAL LAW- A GHANAIAN CASEBOOK. VOLUME 1 BY HENRIETTA J. A. N. MENSA- BONSU, she states at page 460 that causation entails ‘the existence of a link between the act of the accused person and the resultant event that is criminal in nature’.

 

At page 12 of the Record of Appeal, PW 3 in his evidence stated that: “the report also says when the other parts of the body were examined they were normal and that the death was as a result of the neck stab would”. This shows that there was no intervening event or circumstance which could be seen as the cause of death except the neck stab wound which caused the death of the deceased.

 

The prosecution thus proved sufficiently beyond reasonable doubt that there was an unlawful harm caused to the deceased which led to his death.

 

The harm was intentionally caused:

11. Section 11 of Act 29 provides for criminal intent and the types thereof. Section 11(1) of Act 29 provides as follows:

 

“11. Intent

(1) Where a person does an act for the purpose of causing or contributing to cause an event, that person intends to cause that event, within the meaning of this Act, although in fact, or in the belief of that person or both in fact and also in that belief, the act is unlikely to cause or to contribute to cause the event.”

 

This section connotes that a person intends the consequences of his actions. This is illustrated in the case of ODUPONG V. THE REPUBLIC [1992-93] 3 GBR 1028, per Brobbey JA (as he then was) as follows:

 

“…the jurors were justified in concluding that the appellant intended to kill the deceased when he fired the gun. Firstly, a gun is a lethal instrument which if fired at a person when loaded will most probably bring about the death of the person. The appellant knew it was loaded because it was he who loaded it. When he aimed and fired it, he must be deemed to have known for certain that the inevitable consequence of firing the gun at Asantewaah was to bring about her death.”

 

In the instant case, the appellant admitted that he slashed the throat of the deceased with a piece of broken bottle. PW 1 also stated that the appellant slashed the neck of the deceased with the broken bottle. It is worthy of note to state that broken glass no matter where it is used on any part of the human body is likely to draw blood and this shows that when used against the neck of a human being one of the inevitable consequences will be to kill the person. Hence, it can be concluded that when the appellant used the broken bottle to slash the neck of the deceased, the appellant intended to cause the deceased’s death since it was the inevitable consequence of his action.

 

The harm was caused by the accused person and no one else:

PW1 an eye witness testified that it was the appellant who slashed the neck of the deceased. The appellant himself admitted this fact in his testimony.

 

Therefore, from the evidence on record, the prosecution was able to prove all the five ingredients of murder beyond reasonable doubt in accordance with Sections 10, 11 and 13 of the Evidence Act 1975 (NRCD 323).

 

12. Another issue to consider is whether or not the appellant’s father was a material witness needed to be called by the prosecution during the trial.

 

The Supreme Court in the case of GILGAH & ATISO V. THE REPUBLIC [2010] SCGLR 870 at 887 held as follows:

 

“We have always held the view that in establishing the standard of proof required in a civil or criminal trial, it is not the quantity of witnesses that a party upon whom the burden of proof rests calls to testify that is important, but the quality of the witnesses called and whether at the end of the day the witnesses called by the party have succeeded in proving the ingredients required in a particular case. In other words, does the evidence led merit the standard of proof required in a particular case? If it does, then it will be a surplusage to call additional witnesses to repeat virtually the same point or seek to corroborate evidence that has already been corroborated.”

 

From the above decision, it can be seen that it is important that a party to a suit needs to call material witnesses in a matter in order to establish his/her claim or defence. A material witness is an indispensable witness without which a party’s claim fails. In other words, a material witness is someone who has adequate or sufficient information on the matter which would cause the court to tilt to one side.

 

13. Counsel for the appellant in the instant matter argued that the appellant’s father was a material witness which the prosecution needed to call to corroborate the evidence of PW1 that the appellant rather forcefully took the deceased’s money and not Mustapha since the evidence suggested that the appellant’s father knew about what the appellant did to the deceased that resulted in the report to the police by the deceased.

 

What is strange about this argument is that the offence tried in this case was murder and not stealing/snatching of money and the person charged with the offence was the appellant and not Mustapha. If the issue about the money was so important to the appellant, the appellant’s father could be called as a defence witness (DW). Also from the evidence of PW 4, the investigator, in his cross-examination by counsel for the accused this was what ensued at page 16 of the Record of Appeal.

Q. You know the accused’s father?

A. Yes I know him.

Q. Did you interrogate him in this case?

A. Yes I did.

Q. He told you that there was a fight between the accused and the deceased?

A. He said he was not present when the incident occurred.”

 

This means that during the investigation the father of the appellant was interrogated. He was however not called to testify during the trial because he was not present when the incident that resulted in the death of the deceased occurred. He had no direct knowledge of the incident and hence irrelevant in the resolution of the matter and the proof of the ingredients of murder in the instant matter. This is supported by the section 7(1) of the Evidence Act NRCD 323 which provides the essence of corroboration in a trial follows:

 

“7. Corroboration

(1) Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in a material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence.”

 

Thus the argument of the appellant is unfounded and cannot be supported in law since the appellant’s father is not a material witness necessary to be called during the trial.

 

14. It is also important to consider whether or not the defence proved sufficiently that the appellant acted in self defence when he slashed the neck of the deceased

 

The appellant’s version of what happened on that fateful day showed that he was relying on self-defence in stabbing the deceased. Hear his story at pages 20 to 21 of the Record of Appeal.

 

“Meanwhile I went around Obuasi Circuit Court where there was a magic show. Whilst there I saw the deceased and his brother Ofori, one was holding a Kitchen knife and the other a club. The deceased was the one holding the kitchen knife. When they go (sic) to where I was standing Ofori said No, the deceased, ‘there stands Ballor’ and the deceased ‘hooked me’. I snatched myself from the deceased and started running away as the deceased was shortly (sic) blow it than me. I run towards my house and still the deceased and Ofori were chasing me still holding the knife and the club. Where (sic) I got into my house the deceased and Ofori had catch up with me. They were standing in front of the veranda of my house; Ofori used the knife to slash my head and my shoulder witness shows a keloid formation to members of the jury and the court. So I clichéd (sic) Accra boy and the two of us fell down. When we fell down Ofori was hitting me with the stick or club. While struggling with the deceased on the ground the knife he was holding fell down. There was a bottle nearby. I grabbed one and used it to slash the deceased with. When I got up, Ofori on seeing me with the bottle run away. The deceased got up, picked a brick and was chasing me with same. …”

 

15. Self – defence is a plea of justification for the commission of an offence while provocation is a plea for the mitigation of sentence. When a trial court finds that the defence of self-defence has been established, the criminal is acquitted and discharged of all the charges levelled against him. Section 11(3) of the Evidence Act provides as follows:

“(3) In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt.”

 

This section places the evidential burden on the accused person in a criminal proceeding to adduce evidence to raise a reasonable doubt as to guilt and this usually occurs when the accused raises a defence to the offence charged and adduces sufficient evidence in support of that defence. Section 37 of Act 29 provides for self-defence as follows:

 

“37. Use of force for prevention of, or defence against, criminal offence

For the prevention of, or for personal defence, or the defence of any other person against a criminal offence, or for the suppression or dispersion of a riotous or an unlawful assembly, a person may justify the use of force or harm which is reasonably necessary extending in case of extreme necessity even to killing.”

 

The court in LAMPTEY ALIAS MOROCCO V. THE REPUBLIC [1974] 1 GLR 165 explained Section 37 of Act 29 in considering the defence of provocation alongside of self- defence. The court held in holding 2 as follows:

 

“The appellant should have been convicted of manslaughter because this was a case of loss of self-control through extreme provocation and not a case of self-defence. Section 37 of Act 29 drew a distinction between force or harm simpliciter and force or harm which was intended or likely to cause death. Force or harm which was not intended to or which was not likely in itself to cause death might be justified as lawful if such force or harm was reasonably necessary for the defence of a person from an imminent crime or to prevent such a crime. For such force or harm to be permissible there must be evidence of circumstances of extreme necessity. So that where a safe opportunity for retreat existed or where a murderous assailant had been disarmed or disabled, killing could not be justified. However, mere opportunity to escape or retreat or the fact of disarming or disabling such an assailant by itself could not in all cases make it impossible to justify a killing and such might be the case where to retreat or attempt to would immediately expose the victim to further danger to his life. There was no misdirection in the instant case because on the evidence, the fatal blow was given from a position behind the head of the deceased and the appellant’s account that he hit the deceased as the latter raised the cutlass to slash him was not borne out.”

 

16. Provocation is provided for in sections 53 and 54 of Act 29. The essence of provocation is that it allows for the mitigation of the charge of murder to manslaughter and provocation is established or sustained only when it is proven that the accused was deprived of the power of self –control as a result of the provocation when the act was committed. The evidence of both the appellant and PW1 the eye witness would be considered to determine if the defence of either provocation or self- defence can be sustained.

 

The testimony of PW1 at page 4 of the Record of Appeal as is follows: “Before then, the accused and the deceased were all talking in an angry mood which had drawn a large crowd around. When the deceased rushed onto the accused for his money, the accused picked a bottle and broke same. At this juncture the deceased attempted to back away from the accused. In the process the deceased fell down and the accused used the broken bottle to slash the deceased’s throat and run away still holding the bottle”.

 

The testimony of the appellant quoted earlier on is worth repeating as follows: “…; Ofori used the knife to slash my head and my shoulders. … So I clichéd Accra boy and the two of us fell down. When we fell down Ofori was hitting me with the stick or club. Whilst struggling with the deceased on the ground the knife he was holding fell down. There was a bottle of nearby. I grabbed one and used it to slash the deceased with. When I got up, Ofori on seeing me with the bottle run away.”

 

17. From the evidence of PW1, though the appellant and the deceased were angry, as at the time the appellant slashed the neck of the deceased, the deceased was handicapped and there was no apprehension of imminent danger to the appellant since the deceased had fallen. The appellant’s action could therefore not be justified as a lawful harm in the form of self- defence. From the evidence of the appellant, it was after the struggle when the deceased was defenseless that he slashed the deceased with the bottle hence, the act committed cannot be justified and the appellant cannot be said to have been deprived of self-control. If even there was an apprehension of danger for which the appellant would have acted in self- defence, the act should have been meted out against, Ofori who according to the appellant, was hitting him with the stick or club.

 

Thus from the analysis of the two versions of the events that led to the death of the deceased, the harm caused by the appellant cannot be justified by any of the defences of self- defence or provocation. The appellant did not and indeed could not adduce sufficient evidence to establish a reasonable doubt as to his guilt as required by Section 11 (3) of the Evidence Act, 1975 (NRCD 323).

 

Grounds 1 and 2 of the Grounds of Appeal have therefore not been made out and are consequently dismissed.

 

GROUND 3:

The conviction is a nullity since same was reached without a summing up.

18. Counsel for the appellant submitted that the trial judge failed to sum up to the Jury, the law and evidence as required by section 277 of Act 30 and that occasioned a miscarriage of justice. The requirement of summing up by the judge to the jury as provided by section 277 of the Criminal and Other Offences (Procedure) Act of 1960 has been held by case law to be mandatory as seen in the cases of Practice Note: STATE V. AMOAH [1961] GLR 195-196, BERKO V. THE REPUBLIC [1982-83] GLR 23 and REGINA V. OJOJO [1959] GLR 207. Counsel for the appellant misconstrued the Record of Appeal. This is what took place on 23^rd July, 2001 at page 48 of the Record of Appeal.

“Accused present.

Mr S. B. Donkor for the accused present.

 

Mr Otchere Antwi for Mr F. K. Mensah for the Republic present.

 

It is for summing up.

 

All members of the Jury present. They are all reminded of their oath.

 

SUMMING UP NOTES FROM 3:25p.m. to 3:55p.m.

Members of the Jury returned on 4:05p.m.

 

Have members of the Jury reached a verdict

 

FOREMAN: Wristbery Danse’s Otoo: Yes

 

ARE YOU UNANIMOUS YES

 

HOW SAY YOU: - GUILTY OF MURDER.” (Emphasis added)

 

Thus there was summing up which took about 30 minutes. Therefore, it is not correct for counsel for the appellant to submit that the conviction was reached without a summing up. The true position is that even though there was a summing up, the content of the summing up is not in the Record of Appeal and neither was it in the Record Book of the Court. By convention summing up notes are normally not written in the Record Book but rather written separately.

 

19. Counsel for the respondent on the other hand submitted that since it has been stated that there was summing up in the Record of Appeal which took about thirty minutes to be read it suffices that the trial judge gave a summing up. Furthermore, the appellant failed to utilise the thirty days within which to appeal which was spelt out to him by the trial court after sentencing but waited for thirteen years i. e. 23^rd July, 2001 to 15^th December, 2014 when he filed his Notice of Appeal pursuant to leave of the court. Counsel submitted that this long lapse of time on the part of the appellant was to his own detriment since during this period some of the records might be missing or damaged due to administrative and procedural lapses in keeping data and records.

 

20. The critical issue for us to consider at this point in time as a function of re-hearing this matter is Whether or not the absence of summing up notes in the record of appeal negates the conviction and sentence by the trial court. We are fortunate to be given direct and authoritative guidance on this matter in the unreported SUPREME COURT CRIMINAL APPEAL NO. J3/1/2015 dated 9^TH JULY, 2015 titled JOHN BONUAH @ ANNOR BLAY VRS. THE REPUBLIC. In this case, the Supreme Court dealt with among others, the non-availability of other relevant records in the Record of Appeal and their effect on the conviction of the accused. In this Supreme court case, the entire testimonial evidence of the nine prosecution witnesses as well as the appellant’s evidence could not be traced leaving the Supreme Court with what it termed only the non-essential segment. There being no available judicial precedent in Ghana on the matter as at that time, the Supreme court per Georgina Wood CJ took the opportunity to explore foreign statute and case law on the subject and established the legal principles that ought to guide this matter in our courts. The Supreme Court after reviewing the Laws of the United States of America and the Philippines which have statutory rules on how to handle lost or unavailable court records and the jurisprudence of countries without such statutory rules such as South Africa, Kenya and Nigeria, laid down the following guidelines at pages 12 to 13 of the judgment under reference: -

 

“An appellant is not automatically entitled to an acquittal upon the mere proof of lost or destroyed trial proceedings. The quantum or magnitude of the missing record – lost or destroyed – and its centrality to the resolution of the appeal is the first criterion that merits attention. Thus it is not every missing part of a trial record that would prejudice a merit-based determination of an appeal, but only that which is vital to its fair, just and conclusive determination. … The cardinal principle is that the law does not demand a hundred percent perfect record of proceedings, but such adequate record that can answer to the issues raised on appeal. Adequacy of the record test is therefore a question determinable on the facts, by reference to the grounds of appeal; weighed against the available record or alternatively the lost or destroyed record.”

 

The Supreme Court went on to direct that:

·         where it is neither feasible nor possible to reconstruct the missing record, the court should consider a re-trial, taking into account the availability of witnesses, the nature, seriousness or complexity of the offence and the time spent by the appellant in custody, if any.

·         In the event of the prosecution’s clear inability to secure witnesses, the ultimate order of conditional or unconditional discharge must inure to the benefit of an innocent appellant, i.e. one who was not complicit in the loss or destruction of the missing record. But that this extreme order must be made sparingly.

 

21. Pitting all these authoritative directives against the facts of the present appeal, it can clearly be seen that even though summing up is a requirement by statute law and no court has the power to exempt anybody from compliance with a statute, yet the absence of the content of the summing up in the record is not critical to the resolution of the appeal. This is because the testimony of all the witnesses and the Addresses of the respective counsel are in the record and as a function of re-hearing, this court can evaluate that and come to its own conclusion. In any event as already noted, the learned trial Judge did not fail to sum up the evidence and the law to the Jury. This case is quite different from the Supreme Court case cited supra because in that case the entire testimonial evidence of the nine prosecution witnesses as well as the appellant’s could not be traced.

 

22. With regards to the options of retrial or conditional or unconditional discharge, it is noted that the incident which culminated in the trial of the appellant for murder took place on 23^rd May, 1998, almost nineteen years ago. Thus the availability of the witnesses, the exhibits including the murder weapon and faded memories by the lapse of time renders the option of retrial not feasible. A conditional or unconditional discharge is also not feasible because as already noted the absence of the content of the summing up notes is not critical to the fair, just and conclusive determination of this appeal. Besides as noted by the Supreme Court in the case cited supra, an appellant loses the benefit of the presumption of innocence until proven guilty given to him by Article 19(2) (c) of the 1992 Constitution. This is because he has already been convicted by a court of competent jurisdiction and on appeal the burden is on him to show that the court which convicted him did so in error. The Supreme Court emphasised that “… the loss of the files and proceedings may deprive him of the ability to discharge that burden, but, it by no means follows that he must of necessity be treated as innocent and automatically acquitted. The interest of justice as a whole be considered.” (See page 12 of the Judgment).

 

This court is of the view that no substantial miscarriage of justice has been occasioned by the missing summing up record. Besides, this is a case in which the appellant himself confessed in open court that he was a bad person. This is what he said at page 48 of the Record of Appeal when the Jury returned a unanimous verdict of “GUILTY OF MURDER”: -

“Accused: I beg the court it was an accident. I have not been to police station before. The court should help me. I am a bad person.” (Emphasis added).

                                   

23. Again, Section 37 (1) of the Evidence Act, 1975 (NRCD323) gives us the rebuttable presumption that “it is presumed that official duty has been regularly performed”. This means that anybody tasked with an official duty will be presumed to have performed that duty regularly. This presumption is also known as omnia praesumuntur rite et solemniter esse acta denec probetur in contrarium (all things are presumed to have been done properly and with due formalities, until it be proved to the contrary). The court in the case of REPUBLIC V. JUDICIAL SECRETARY; EX PARTE TORTO (1979) GLR 444-457 considered this maxim in determining the validity of L.I 1168. The court as per Anin J.A as he then was held that where the maxim applies, the rule is that the evidential or provisional burden of displacing it rests on the party who alleges want of due compliance with the requisite formalities or non- performance of any statutory condition precedent. Such burden is not discharged by a bare assertion made in an argument; it must be established by relevant evidence.

 

As already stated, from the Record of Appeal at page 48, it was recorded that ‘summing up notes from 3:25 p.m. to 3:55 p.m.’ this implies that the learned trial judge carried out the summing up before the jury departed to consider and deliberate on the verdict. In the instant case, the appellant argues that the summing up was not carried out by the judge. This was an official duty which is presumed to have been regularly done from the record of appeal; hence the appellant should have proven that by relevant evidence and not by bare argument as made in the Written Submission.

 

Thus the fact that the summing up notes was missing from the record of appeal, in a situation whereby the appeal was recorded by the court in the year 2016 since the suit number as H2/07/2016 and due to the inadvertence and lapses in the record keeping of the administration of the court does not mean that the trial judge did not perform her official duty of summing up to the jury. The date of the conviction and sentence was 23^rd July 2001 and the date on which the Notice of Appeal was filed was 12th December 2014, a lapse of time of more than thirteen years. In this appeal, the absence of summing up notes in the record of appeal does not mean that there was a miscarriage of justice for which the entire conviction and sentence should be set aside. The third ground of appeal is accordingly dismissed.

 

24. All the grounds of appeal have failed. On the whole, there was no miscarriage of justice by the trial court hence the conviction and sentence meted out to the appellant were right in law. The appeal is therefore dismissed in its entirety.