SOSU & 2 OTHERS VRS REPUBLIC (H2/02/2018) [2023] GHACA 177 (23 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA, AD 2023 CORAM: ANTHONY OPPONG, JA (PRESIDING) JEROME NOBLE NKRUMAH, JA AFIA SERWAH ASARE-BOTWE (MRS.) JA SUIT NO. H2/02/2018 DATE: 23RD NOVEMBER, 2023 1. LUMORVI GBETI SOSU 2. ADEWALEY HOTOR SOSU 3. KOFI BRUCE ..... ..... 3RD ACCUSED/APPELLANT VS. THE REPUBLIC ..... ...... RESPONDENT JUDGMENT ANTHONY OPPONG JA: In this case, the appellant is the 3rd accused, Kofi Bruce aka Korkor. He was charged, tried by jury and convicted of murder. He is said to have pummeled furiously with his fists one Komlavi Mileba now deceased who had fallen down as a result of a blow delivered to the deceased by one of the other accused persons (A2) called Adewaley Hotor Sosu. According to the facts, the deceased was lying on the ground supine as a result of the blow he had suffered from A2 and it was while the deceased was lying on the ground motionless and perhaps dead that the appellant pummeled him furiously with further blows. It was as a result of this unfortunate ordeal meted out to Komlavi Mileba by A2 and the appellant that the former died. Undoubtedly, there was an altercation between Nyemedzinyao Mileba (PW1), a brother of the deceased, and A2 over a drum that PW1 had sent home after bringing it to the funeral grounds of the deceased chief of their village. In the course of the altercation, the deceased felt obliged to intervene. That intervention provoked A2 who thought PW1 and the deceased were joining forces to beat him. It is of utmost significance to observe that, according to A2 who felt threatened by PW1 and the deceased, he (A2) invoked the powers of his god by calling on the god to give him power to defend himself or to repel the ominous attack he perceived from the deceased and PW1. After calling his god and perhaps imbued with the required power, A2 delivered a blow to the deceased that sent the deceased down. The facts indicated further that while the deceased was lying supine on the ground as a result of that fateful blow delivered by A2, A3 inspired by A1 also pummeled furiously further blows on the deceased who never got up on his feet again but died. The question that has agitated my mind a great deal, having regard to the circumstances under which Komlavi died, is whether the appellant in pummeling the deceased with blows in that fighting mood had the specific intent to kill the deceased. In other words, did the prosecution prove beyond reasonable doubt the mens rea or the specific intent to kill the deceased to warrant a conviction of murder? I do not think the appellant could be said to have had that intention or consciousness to kill under the circumstances of this case. This is where I part company with my revered sister Asare Botwe (Mrs), JA who thinks otherwise. As long ago as 1862, Chief Baron Pollock in the case of Republic vs. Vamplaw (1862) 3 F. & F 520 stated the matter in a form which remains to this day good law. He said “the crimes of murder and manslaughter are in some instances very difficult of distinction. The distinction which seems most reasonable consists in the consciousness that the act done was one which was likely to cause death. No one however, could commit murder without that consciousness” In 1977, this Court per Amissah JA in the case of Sene & Anor vs. The Republic (1977) 1 GLR 434, C. A. had this to say of an important factor that distinguishes murder from manslaughter. He puts it thus: “The one important factor which distinguished a case of murder from manslaughter is the intention. The element of intent in a homicide resulting from a fight was determined by considering whether from the circumstances it could be said that the person who killed had intention to cause death as distinct from a mere intention to fight. Such an intention might be inferred from the instrument or weapon used in killing or the manner in which the harm resulted was inflicted ....” Before I proceed any further, I may want to look at the grounds of appeal and I do not intend to state them as they have been stated in the dissenting opinion of my most respected sister, Mrs. Asare Botwe, JA, except to say that the grounds can be subsumed under the general ground that the judgment of the trial court is unreasonable and cannot be supported having regard to the whole evidence on record. However, looking at the general ground of appeal as formulated by the appellant, the following commentary cannot be avoided. The judgment is against the weight of evidence is a very familiar ground of appeal in civil appeals. It is known as omnibus or general of appeal. It is the only ground of appeal which is general and vague and yet permitted under the law, that is, under Rule 8(6) of the Court of Appeal Rules, C. I.19 which is expressed thus: “no ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence”. It is trite that when such a ground of appeal is pleaded, the whole case is thrown up for re-hearing. In criminal cases however, one does not use the ground that the judgment is against the weight of evidence but rather the judgment is unreasonable and cannot be supported having regard to the evidence on record. In criminal appeals, such a ground of appeal that the judgment is unreasonable and cannot be supported having regard to the evidence on record also has the same effect of throwing up the whole case for re- hearing. Therefore, since the essence of the general ground of appeal in both civil and criminal appeals even though couched in different words, is to have the case subjected to re- hearing, where there is a mistake by an appellant who in a criminal appeal formulate the general ground in the words of what pertains in a civil appeal (just as it happened in this case) and I venture to say vice versa should that happen, the Court ought to be mindful of doing substantial justice and thus disregard the form and deal with the substance of the ground, however it is stated, provided the essence of having the case reheard is clear on the face of the formulation of the general omnibus ground. I am of the considered view that the need to delve into the substance at the expense of the form in the circumstance of a mixed up in stating grounds of appeal in a criminal case is the more imperative when dealing with an appellant whose right to life, happiness and freedom is adversely affected and stands condemned as a prisoner for life. This situation must excite the court’s inherent conscience to play down form and cling to substance. Now, proceeding under the understanding that the appellant is inviting the court to rehear his case in this appeal by the general omnibus ground of appeal, the Court is duty bound to consider misdirection, non-direction and misdirection by non-direction in order to come to the conclusion that the judgment of the trial court is reasonable or not. By misdirection, the court is to consider the facts of the case which were either misapplied or distorted by the trial court and correct same; whilst by non-direction, the Court is to consider all possible defences that were available to the appellant at the trial as well as any important evidence that the Court should have brought to the notice or attention of the jurors but failed to do; and by misdirection by non-direction the Court should consider the loopholes or weaknesses in the prosecution’s case which the Court should have brought to the notice of the jurors. (See the case of Agbodzavu v. The Republic (2013-2015) 2 GLR 260) Now according to Exhibit ‘H’ the medical report tendered in evidence not by the doctor who prepared and/or signed it but by the Police, the cause of the death of the deceased was given at page 206 of the Record of Appeal (ROA) thus: “CAUSE OF DEATH BASIC CAUSE Multiple Traumatic Injuries with rapture of the Spleen and the fracture of the base of the skull INTERMEDIATE CAUSE Internal hemorrhage and intraparenchymal hemorrhage of the brain DIRECT CAUSE HYPOVOLEMIC SHOCK In my opinion the cause of death was due to Hypovolemic shock by rapture of the spleen, an unnatural cause.” It may seem to me that the cause of death could well be skull injury which caused hemorrhage of the brain and/or the rapture of the spleen, the opinion of the doctor limiting the cause of death to only the rapture of the spleen notwithstanding. It behooved the trial judge to have instructed the jury on the possibility of the death being attributable to the brain hemorrhage, the medical doctor’s opinion notwithstanding. In the circumstances of this case the directions on the cause of death of the late Komlavi by the trial judge left much to be desired and it was unduly skewed against the appellant. Even though, the law allows a police investigator to tender medical report in evidence in a trial, in the circumstances of this case where the death of the victim could be attributable to the fracture of the base of the skull leading to hemorrhage of the brain or the rapture of the spleen leading to collection of as much as 3 liters of blood in the abdominal cavity or both, there is manifest weakness of the prosecution’s case as far as proof of what actually caused the death of Komlavi was concerned. The silence of the trial judge on this weakness in the prosecution’s case in his summing up to the jury worked injustice against the appellant. One does not need to be a doctor to know that a fracture of the skull resulting in brain hemorrhage is capable of causing death and the rapture of the spleen equally is capable of causing death and both situations can also cause death. In this case where the cause of death is not certain as to whether it was due to the fracture of the skull or the rapture of the spleen, it would have been quite imperative for the doctor who prepared and signed Exhibit ‘H’ and who could speak to it to have been called to the witness stand to be cross- examined on those matters. I think that this manifest weakness of the prosecution’s case should have been commented upon for the benefit of the jury as far as their role as trier of facts are concerned. I am of the view that if the issue as to the actual cause of death was clarified, it would have impacted on the jury in considering their verdict. I must state that the blow that was delivered by A2 to the deceased was capable of causing these two fatal injuries. The learned trial judge directed the jury otherwise. He instructed them that it is not possible and indeed not true that, that fateful one blow could kill the deceased. This inference from the facts of the case, in my view, constituted serious misdirection that occasioned miscarriage of justice to the appellant. The evidence showed that A2 called his god before he delivered that fateful and “god- assisted” deadly blow that sent the deceased down. That blow could have raptured the spleen of the deceased depending on which part of the deceased’s body the blow hit. In the course of falling down, the deceased could have hit his head against an object on the ground as he possibly fell down unconscious. There is no evidence that the deceased while lying down supine was conscious. If he were he could have fought back even while on the ground. He could have been dead while on the ground or he was on his way to death. The delivery of blows by the appellant on the deceased while the deceased was lying down supine could well have been blows delivered on a dead body or on almost a dead body. These deductions are borne out from the facts of this case. It cannot be argued that these inferences are far-fetched at all. In the circumstances I consider the instructions contained in the summing up by the learned trial judge as misdirection when he instructed the jury to the effect that one blow from A2 was not capable of killing the deceased. For emphasis, I may have to refer to the exact words of the trial judge to the jury. He said; “it would be impossible for a single blow to rapture the spleen and at the same time fracture the skull”. This direction was a clear case of misdirection, having regard to the facts of this case. And this sort of misdirection has occasioned substantial miscarriage of justice. The learned trial judge’s further direction that the evidence of A2 that he gave the deceased a single blow cannot be true is equally a case of misdirection. It is my considered view that the trial judge made wrong inferences and impressed it upon the jury and that occasioned miscarriage of justice to the appellant. The record bears it out that PW1 and the deceased on one hand and A2 and A3 on the other hand were engaged in a fight. In a fight where those involved would have just the intention to hurt each other for the sake of the fight, it is difficult to fix one fighter with the intent to kill from a blow where one dies as a result of a blow suffered. In a situation like what happened in this case where the specific intent to kill seems not too clear, the learned trial judge should have addressed the jury on the lesser offence of manslaughter. The gravamen of this judgment is that the failure of the trial judge to instruct the jury to consider the lesser offence of manslaughter, having regard to the peculiar circumstances of this case where it is doubtful whether the prosecution proved the ingredient of the specific intent to kill beyond reasonable doubt. It cannot be over emphasized that such misdirection by non-direction occasioned substantial miscarriage of justice as the unlearned jury were left with no option but to convict of murder. In this case, I can confidently state that the appellant could be said to have intentionally contributed and/or caused the death of Komlavi by harm inflicted through an unlawful fight in which the manner of the intrusion by the deceased in the altercation between PW1 and A2 infuriated A2 and A3 as to deprive them of their power of self-control. Even though it is not clear from the face of the record, one may not be far from right to surmise that the players in this unfortunate episode coming from a funeral of their chief would have taken some measure of alcohol. Be that as it might, the influence of alcohol could have played its role of contributing to the easy loss of self-control. In the light of this circumstance, there is a small window of defence that was opened to the appellant and the trial judge should have addressed the jury on a possible case of manslaughter rather than murder. It is therefore my considered view that if the learned trial judge had explained in detail what makes murder caused by unlawful fight or harm to be reduced to manslaughter, the verdict of the jury would have been probably different. Accordingly, in the peculiar circumstances of this case, I will allow the appeal and set aside the conviction for murder and substitute same with manslaughter and sentence him to 20 years. The sentence to run from day of conviction by the trial judge, that is, 25th April 2016. SGD ............................. JUSTICE ANTHONY OPPONG (JUSTICE OF THE COURT OF APPEAL) CONCURRING OPINION JEROME NOBLE-NKRUMAH JA: I have had the opportunity of reading the judgment of my Brother Anthony Oppong JA and that of my Sister Afia Asare-Botwe [Mrs] JA. I am swayed by the position of my brother. I will not burden you with the entire facts as my sister has adequately dealt with that. From the facts, the deceased was set upon first by A2 and then the Appellant who was A3 in the trial below and another. Even though the facts narrate that it was a blow from A2 which sent the deceased to the ground and then A3 is said to have set upon him on the ground, it is not too clear the state in which the deceased was when he hit the ground, for the trier of fact i.e. the Jury, to safely conclude that A2 caused the death of the deceased or the Appellant did, bearing in mind the charge of Murder. All said, death did occur. From the evidence on record, PW2 who was at the scene of the incident says he had sent home drums he had played at the funeral grounds. On his return to call the deceased, A2 tells him to stop what he was doing or else he will see. When he asked A2 what he will do, PW2 says a brother of A2, Papa Sosu hit the back of his head with a blow and he fell. It was when the deceased intervened and asked why he [PW2] had been hit, that the deceased was set upon by A2, Papa Sosu and Kofi Koror [Appellant]. PW2 goes on that they beat the diseased till he fell down. However, in cross- examination, this witness says it was a blow which sent the deceased to the ground. Q. you slapped A1 in the process and your brother, the deceased joined A. that is not correct Q. A2 slapped the deceased and he fell down A. it was a blow not a slap that sent deceased to the ground [Cross-examination of PW 2 22nd April 2013, page 53 ROA] While on the ground PW2 goes on that the Appellant, was hitting the deceased with blows repeatedly, adding further, that the deceased was lying unconscious on the ground. Prior to this evidence PW1 who is related to all the accused persons says upon hearing shouts of “don’t kill him he has a small child” he rushed to the scene only to see the deceased lying in a supine position on the ground. He says he heard people saying it was A2 and one Papa who beat him. He goes on that A1 was ordering A2, A3, and one Papa to beat the deceased to death and then A3 hit the deceased on the chest several times. Beyond these two pieces of evidence [from PW1 and PW2], I fail to see any effort by the prosecution at teasing out the mens rea sufficient to warrant a conviction of murder. Authorities on this subject state clearly that the essential ingredients of the offence of murder are the intent to cause death and the infliction of unlawful harm, whilst one essential ingredient of manslaughter is causing death by unlawful harm. Consequently, for a person to be convicted of murder, the prosecution ought to prove beyond a reasonable doubt, each of the essential ingredients. In a situation where the prosecution is only able to prove death was by unlawful harm, leaving out proof of intent to cause death, the charge of murder must fail. In such a situation, manslaughter ought to be considered, as that will be in tune with section 154(1) of the Criminal Procedure Code, Act 30 [see Serechi & Another v The State [1963] 2 GLR 531] Granted that a person is deemed to intend the natural and probable consequences of his action [Odupong v The Republic (1992 93) GBR1038, CA], I do not think, given the circumstances of this case- a funeral setting- the Appellant had the intention to kill. In any case what had led to this incident? A drum owner had decided to take his drum back home from a funeral. He returns to the funeral grounds. Ordinarily his act ought not to lead to events which ensued - an unlawful brawl, during which the participants are bereft of self-control, which leads to death. These events play out the particular circumstances of this case. Coupled with the foregoing, the Pathologist, whose work is exhibit H, was not called as witness. Even though the rules permit the admission of such reports in the absence of the maker [as ably demonstrated by my Sister], it is noted that right at outset when the prosecution put in this exhibit, there was an objection. The stage had then, been set for a challenge on the accuracy or otherwise of the report. It was therefore incumbent on the prosecution to make the Pathologist available to be cross-examined by the defence. This was not done. In the said exhibit H, reference is made to severe enema due to severe trauma, the question here is what are these conditions and what could have caused them?, rapture of the spleen, what could have caused that?, lungs were shocked, kidneys were shocked, what could have caused these conditions? Hypovolemic shock, what is that and how can a raptured spleen lead to that? Answers to all these questions, would have been provided by the pathologist. His presence would have narrowed the field, as it were, for the court to accurately direct the Jury on what to look out for. His absence, coupled with the fact of possible causes of death, his report presented to the court [and left unexplained to the court and Jury] and the fact of intention to kill, not being too clear from the evidence adduced, made it imperative for the Judge to direct the Jury on manslaughter. His non- direction on manslaughter virtually presented the Jury with only one small window and that was murder and no more. That is where the Jury found themselves. It is on this point that I agree with brother Anthony Oppong JA, that if the trial Judge had explained in detail what makes murder resulting from an unlawful brawl, manslaughter, the verdict of the Jury may have probably been different. On this score, I agree with his judgement that the conviction of the Appellant for murder be set aside and, in its place, Appellant be convicted for manslaughter and sentenced to a term 20 years, sentence to run from date of conviction in the court below. SGD ………………………….. JUSTICE JEROME NOBLE-NKRUMAH (JUSTICE OF THE COURT OF APPEAL) DISSENTING JUDGMENT AFIA SERWAH ASARE-BOTWE (MRS.) JA: This is an appeal from the Judgment of the High Court, Ho, dated the 25th day of April, 2016. At first glance, especially if one should study the Notice of Appeal (at page 193 of the Record of Appeal (ROA)) and the Amended Notice of Appeal at pages 194 to 195 of the ROA, one would be led to think that this appeal has been lodged by all three accused persons who were convicted by the High Court, Ho on the 25th of April, 2016. However, upon closer study, seeing as the written submission was filed only in respect of the 3rd Accused/Appellant, this Judgment will only deal with the law and the evidence relative to the 3rd Accused/Appellant who will in this Judgment, where the context so demands, be referred to as “the Appellant.” It is apparent to us that the other convicts’ appeals have been abandoned. FACTS The matters that have given rise to this appeal, on the facts and evidence put before the High Court, Ho, constituted by a Justice of the High Court and a seven-member jury, are that the complainant is a farmer and elder brother of the deceased, Komlavi Mileba. A1 is also a farmer. A2 is a mechanic and A3 is a Kente weaver. They all live at Klikor at a place called Task Corner. On 29/04/2008 there was a funeral at Klikor which they all attended. Complainant sent his drums to the funeral grounds. At a certain stage complainant decided to take his drums away but A1 objected. He however managed to take the drums away. Complainant returned later to the funeral grounds and was confronted by the accused persons as to why he took the drums away. A quarrel then ensued between them and the deceased Komlavi Mileba intervened to separate them. A2 was not pleased with the intervention of the deceased and gave him a blow and he fell. While on the ground A1 ordered A3 to assist A2 to beat deceased and that he (A1) was ready to pay for the consequences. A3 obliged and joined A2 to beat the deceased to death. A report was made to the police leading to the arrest of the accused persons. On 21/5/2008 post mortem examination was performed on the deceased by a Doctor at Police hospital, Accra who gave cause of death as multiple traumatic injuries with rapture of the spleen. After due investigations the accused persons were charged with the following offences; a) A1, Lumorvi Gbeti Sosu was charged with Abetment of Murder, contrary to sections 20(1) and 46 of the Criminal Offences Act, 1960. b) A2, Adewaley Hotor Sosu and A3, Kofi Bruce, were charged with Murder, contrary to section 46 of the Criminal Offences Act, 1960. The case was presented by the Prosecution calling four witnesses; 1. PW1 Nyemedzinyao Mileba 2. PW2 Agorsu Sosu; 3. PW3 Vinolia Ametepey and 4. PW4 D/Inspector I. Q Addo. Although the Pathologist, Dr. Josefa Jimenez Hernandez, was listed, he was not called to testify. His report was tendered in evidence by PW4, D/Inspector I. Q Addo. The exhibits put in evidence were; 1. Investigation cautioned statement A1 (Lumorvi Gbeti Sosu) dated 30th April, 2008 (Exhibit A); 2. Investigation cautioned statement of, A2 (Adewaley Hotor Sosu) dated 30th April, 2008 (Exhibit B); 3. Investigation cautioned statement of A3 (Kofi Bruce @ Korkor) dated 1st May, 2008 (Exhibit C); 4. Charged statement A1 (Lumorvi Gbeti Sosu) dated 30th March, 2009 (Exhibit D); 5. Charged statement of, A2 (Adewaley Hotor Sosu) dated 30th March, 2009 (Exhibit E); 6. Charged statement of A3 (Kofi Bruce @ Korkor) dated 30th March, 2009 (Exhibit F); 7. Photographs of the deceased (Exhibits G and G1); 8. Post Mortem Report dated 13/5/08 (Exhibit H); 9. Statutory Statement of A1 (Exhibit J); 10. Statutory Statement of A2 (Exhibit K); 11. Statutory Statement of A3 (Exhibit L), and; 12. The statement of DW1 (admitted as Exhibit M). After a hearing the witnesses and Judges’ summing up, the jury returned a verdict of guilty against all the accused persons. The Judge then proceeded to pronounce the Judgment of death by hanging on each of them. It is this Judgment that has been impugned by the lodging of this Appeal by all three convicts. An amended Notice of Appeal pursuant to leave granted on 26/11/21 was filed with the following grounds being canvassed; GROUNDS OF APPEAL 1. The conviction is against the weight of evidence. 2. That the prosecution failed to discharge its burden of proof that the 3rd Appellant caused the death of Kwablavi Mileba, having regard to the evidence on record. 3. That the Court erred when it held that 3rd Appellant was not able to prove his alibi. 4. That the Court erred in law when it held that Kwabla Milevi could not have died of a single blow from A2, having regard to the evidence on record. 5. That the failure of the prosecution to call the pathologist whose report was largely relied upon is fatal to its case. 6. The direction by the trial judge to the jury that the deceased could not have died from a single blow from A2, having regard to the pathologist’s report amounts to a misdirection by the Court. THE DUTY OF THIS COURT IN DETERMING THE INSTANT APPEAL: The duty of this court in regard to the instant appeal was clearly stated in the case of BAKANA LTD. v. OSEI [2014] 77 G. M. J 76 (CA). The court held that since an appeal is by way of rehearing, it is for the Appellate court to comprehensively review the whole case by analyzing the entire record of appeal, taking into account the testimonies and all documentary evidence adduced at the trial before arriving at a decision, so as to satisfy itself that on a preponderance of probabilities, the judgment of the trial judge is reasonably or amply supported by the evidence on record. See also NORTEY (NO.2) v. AFRICAN INSTITUTE OF JOURNALISM AND COMMUNICATION &OTHERS (NO.2) [2013-2014] 1 SCGLR 703 In the circumstances, the grounds of appeal will be assessed or evaluated in the light of the entire evidence before the Court and a determination made as to whether the appeal is meritorious or not. That said, however It must also not be lost on us that the case was heard by the court below composed of a Judge and Jury. Without being in the least condescending, it was the Judge to be a trier of law and the fact. In those circumstances, it is important to look closely at the summing up by the Judge and assess whether in directing the jury, any misapprehensions may have been occasioned thereby resulting in substantial miscarriage of justice. This Court will also assess the evidence as was adduced before the Court and make a determination as to whether the verdict of the jury was justifiable or would amount to a substantial miscarriage of justice. The grounds of appeal will accordingly be assessed in the light of the law and the evidence on record. The Appellant argues the appeal in the following order; • Ground 3, • Grounds 4 and 6 together, • Ground 5, • Ground 2 and then concludes with • Ground 1. This Judgment will accordingly deal with the grounds of appeal in the same order where appropriate. ON GROUND (3) • That the Court erred when it held that 3rd Appellant was not able to prove his alibi. ARGUMENT BY LAWYER FOR THE APPELLANTON GROUND 3 It is argued on behalf of the Appellant that the Court did not properly consider the defence of alibi. It is his case that from the evidence he led, the Appellant insisted that the deceased had been beaten and had fallen to the ground before he came to the scene after he had seen off his aunt, Dzapka Kuda. He also argues the case that from the report on the alibi filed, the police had found that A2, Adewaley Hotor Sosu, acted alone. ANSWER BY THE REPUBLIC/RESPONDENT The Republic/Respondent dealt with Grounds 2 and 3 together. The Republic/Respondent argues that the Court rightly concluded that the alibi was not proven. The Respondent refers to pages 26 and 27 of the ROA and the part of the investigative report of Chief Superintendent of Police, Emmanuel O. Odonkor and the finding made against the Appellant, as having been present at the scene and that the alibi being advanced being false. The Respondent also discusses the law on the identity of an accused person being either by direct testimony or circumstantial evidence. The Respondent states that there can be no better proof of his identity than the evidence of a witness who swears to have seen the accused committing the offence charged. The cases of DOGBE v. THE REPUBLIC1 and ADU BOAHENE v. THE REPUBLIC2 are cited with the latter further holding that the carrying out of an identification parade is pointless where the identifying witness has known the accused for some time prior to the commission of the crime. It is the case of the Respondent that having been known to the prosecution witnesses who were also resident in the same community, the accused persons could not have been victims of mistaken identity. THE LAW AND THE EVIDENCE ON ALIBI IN THIS CASE: Since this appeal is being argued by the Appellant who was A3 in the Court below, his plea of Alibi and the evidence he offered will be the focus of the discussion under this head. It is noted that A3 (the Appellant herein) put up the defence of Alibi in various forms. a) In his investigating cautioned statement dated 1st May, 2008(Exhibit C) he indicated; 1 [1975] 1 GLR 118 2 [1972] 1 GLR 70 CA “…. At about 6:30 pm, I went and saw my sister Dzapka Koeda half way and on my return to the funeral ground again I saw complainant Nyemedzinyao Mileba struggling with a seat. He pointed out his junior brother Kwabla now deceased lying on the ground and further stated that “see what Adewaley did to the brother…””3 b) In the Notice of Alibi filed on 9-7-12, the Appellant, therein designated as the 3rd accused person, Kofi Korkor Bruce @ Taller, indicated with regard to the place that he was at the time of the incident; “The 3rd accused person was at home tax corner house No. TA2E054. He was there with Dada Alor (mother), Seme Gabiewu (wife) and Bruce Agbenyegah (son).”4 (Emphases ours) It has been duly noted that the order of the accused persons in the Notice of Alibi was changed as between A1 and A2, (but not A3, the Appellant) but that does not affect the materiality of the content of the Notice and what the Police was to investigate and who by. To sum up, in the Notice of Alibi, filed by his own lawyer of record, the Appellant indicated that he was at home at the time of the incident. After having investigated the Alibi, the prosecution indicated that they were minded to continue with the trial. Further to paragraphs (a) and (b) immediately above, the Court notes that the Alibi, on the record, was proven by the Appellant actually putting forward the following case and calling the following witnesses; 3 Please see page 199ff of the ROA 4 Please see page 25 of the ROA (c) In leading the Police to investigate the Alibi, the Appellant indicated that “he left the funeral ground to see one Kudah Dzakpa off. Later the accused person [in reference to the Appellant] returned to the funeral ground again when the incident had already taken place……”, and; (d) When called upon to open his defence, he called DW1 Seme Gabienu who indicated that while at the funeral, she was looking for her husband and was told that he had followed his aunt to Dartekope. She states that the Appellant returned to the house around 6:30 pm.5 (e) The Appellant also called DW2, Dzakpa Kuda. She introduced another aspect of the Appellant having accompanied her to Dartekope to look for thatch and also having suggested that since it was rather late, the Appellant should spend the night with one other wife he had who lived near her place at Dartekope.6 (f) Finally, in his own testimony, the Appellant indicated that he escorted his aunt, Dzakpa Kuda to Dartekope “but did not enter her house” and also came after the altercation that resulted in the death of the deceased had concluded.7 In the case of KWEKU ATTAH vs. THE REPUBLIC (CRIMINAL APPEAL NO. J3/01/2018 dated 6th April, 2022 (Available on www.dennislawgh as [2022] DLSC 11670, the learned Professor H. J. A. N Mensa-Bonsu JSC delivering the decision of the Supreme Court, discussed what the requirements of the law are with regard to putting in the defence of alibi. She stated further; “It must be remembered that Alibi is a defence and so nothing stops an accused whose Alibi is not checked by the prosecution from calling such witnesses. In R v Val-Vannis (1957) 5 Please see page 110 of the ROA 6 Please see pages 122-123 of the ROA 7 Please see page 99 of the ROA. 2 WALR199, an appellant made application the court halfway through the trial that he intended to rely on the defence of alibi. The application was refused by the court. It was held that the accused was not thereby inhibited from calling witnesses himself. In the instant case, the prosecution had already closed its case without notice of the defence. Despite the failure of the appellant to comply with the requirements in section 131, the Judge in his Summing up specifically instructed the jury not to ignore the evidence of the accused. The jury still returned a verdict of guilty.” In the same manner, it is quite obvious that the defence of Alibi is like any other which needs to be proven by its proponent. The required evidence is to be put forward by the proponent or in this case, the particular person claiming to have been at absent from the place where the offence occurred at the time it occurred. This means that the proponent of the Defence of Alibi is stating that since he was not present at the scene of the crime, he could not have perpetrated it. Further, like any other defence put in by an accused person, the standard of proof is not as the high one of proof beyond reasonable doubt required of the prosecution, but one which is lower. The accused person within the framework of the law only has to produce evidence to raise reasonable doubt. In this case, certain matters are worth noting and being commented on, in the entire evidence regarding the defence of Alibi put forward by the Appellant. It is worth noting that there were the inconsistencies of the information given in the statement, notice of alibi, the evidence of DW1 and her statement, and DW2’s evidence In the first place, the Appellant stated in his investigating cautioned statement that at the time of the incident, he had gone to see his aunt, Dzapka Kuda off “half way” to Dartekope. Over time, when he did file his notice of Alibi, he stated that he was at home and that his witnesses were Dada Alor (mother), Seme Gabiewu (wife) and Bruce Agbenyegah (son). When he went to with the Police to investigate the Alibi, the report indicates “A3 Kofi Bruce alias Korkor took the investigator to his residence at Task Corner where statements were obtained from Dada Alor, Seme Gabiewu and Bruce Agbenyegah. This would be in consonance with Section 131(1) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) which states; “(1) Where an accused intends to put forward as a defence a plea of alibi, the accused shall give notice of the alibi to the prosecutor or counsel with particulars as to the time and place and of the witnesses by whom it is proposed to prove it…...” The problem though, in this case, is that when it was time to produce evidence to prove the Alibi, the Appellant rather called on his wife, DW1 and his aunt, DW2, who testified, contrary to the information in the Notice of Alibi and the investigation he had led, that he was rather seeing off DW2 to Dartekope. Those are not the only inconsistencies in the story put forward by the Appellant in his defence. The cross-examination of DW1 and DW2 reveal very material diversions which cannot be overlooked. For instance, when confronted with the inconsistencies in her testimony and Exhibit M, the statement she volunteered to the police on the 11th of March, 2013, five years after the fact, the only explanation she could give was that “it has been long”. The Judge in his summing up commented, rightly, in our view about the unreliability of such evidence. The same malaise would affect the testimonies of the Appellant himself and DW2. In his original statement on caution to the Police dated 1st May, 2008, Exhibit C, he himself indicated that he had gone to see DW2 off “half way” to Dartekope, only for them to spin a yarn about having gone all the way to Dartekope and looking for thatch. One can also not ignore the many inconsistencies in the evidence of the Appellant himself and DW1 and DW2. At a point he stated that he entered DW2’s house, at another point he said he did not. There also many inconsistencies and evasions about the time he left Task Corner, the time he left Dartekope, and the time he returned to Task Corner. The Judge extensively pointed these inconsistencies and evasions out to the jury at several parts of the summing up including pages 181 to 182 and 184 to 186 of the ROA. Obviously, these material inconsistencies cannot be overlooked, especially when no explanation is offered for them. The law is settled that a witness whose evidence on oath is contradictory to a previous statement made by him, whether sworn or unsworn, is not worthy of credit and his evidence cannot be regarded as being of any importance, unless he is able to give a reasonable explanation8: The inconsistencies in the evidence of the Appellant, when juxtaposed with the evidence of the Prosecution do not help matters for him. We are in agreement with the statement of the law and the authorities cited by lawyer for the Respondent that there can be no better proof of identity than the evidence of a witness who swears to have seen the accused committing the offence charged, especially in the circumstances of this case where all the accused persons and the witnesses on all sides were members of the same community and well-known to each other. In fact, in the case 8 GYABAAH v. THE REPUBLIC [1984-86] 2 GLR 461 of PW1, Agorsu Sosu John, he demonstrated the relationship he had with each of the accused persons and explained that A1 is his paternal uncle, A2’S mother is his sister (thereby making A2 his nephew) and A3 is his paternal aunt’s son (i.e. his cousin.)9 None of the prosecution witnesses, from the evidence on record, had his evidence so undermined as to be unreliable. In the circumstances, we hold, under this head, that the Court rightly held (as summed up by the Judge) that the Appellant was unable to prove his alibi. Ground 3 is accordingly dismissed as same is without merit. The next group of the grounds of appeal now follow. Even though grounds 4 and 6 were dealt with together by lawyer for the Appellant in his argument, it will be prudent, seeing as those grounds deal with the matter of causation in law and in fact, in the circumstances of this case, to add them to ground 2 and discuss them together. It would also be prudent to deal with the propriety or otherwise of the failure of the prosecution to call the pathologist to tender his report since that also deals with the issue of what actually caused the death of Kwabla Milevi. ON GROUNDS 2, 4, 5 AND 6 TOGETHER: • That the prosecution failed to discharge its burden of proof that the 3rd Appellant caused the death of Kwablavi Mileba, having regard to the evidence on record. • That the Court erred in law when it held that Kwabla Milevi could not have died of a single blow from A2, having regard to the evidence on record. 9 Please see page 47 of the ROA. • That the failure of the prosecution to call the pathologist whose report was largely relied upon is fatal to its case. • The direction by the trial judge to the jury that the deceased could not have died from a single blow from A2, having regard to the pathologist’s report amounts to a misdirection by the Court. The grounds of appeal under this head demand an assessment of the legal principles on causation in our criminal jurisprudence in the light of the evidence before the Court. In that regard, recourse will be heard to the legislation, case law and the evidence on the record. ON CAUSATION The basic question to be dealt with would be, in general, when one can be said to have caused an event, and further, whether, the Appellant this case has been proven beyond reasonable doubt, to have caused the death of the deceased, Kwablavi Mileba, having regard to the evidence on record. In this case, Section 13(3), (4) and (5) of the Criminal Offences Act, 1960(Act 29) would be relevant for our purposes. The said portions state; Section 13(3), (4) and (5); (3) Where an event is caused by the acts of several persons acting jointly or independently, each of those persons who intentionally or negligently contributed to cause the event has, for the purposes of this Act, and, subject to subsections (4) and (5) and to the provisions of this Part with respect to abetment, caused the event; but a matter of exemption, justification, extenuation, or aggravation which exists in the case of any one of those persons shall have effect in favour of that one person, whether it exists or not in the case of any of the other persons. (4) A person shall not be convicted of having intentionally or negligently caused an event if, irrespective of the act of that person and the acts of any of the persons acting jointly with that person, the event would not have happened but for the existence of a state of facts, or the intervention of any other event or of any other person, the probability of the existence or intervention of which other event or person the accused person did not take into consideration, and did not have a reason to take into consideration. (5) Subsection (4) does not apply where a person is charged with having caused an event by an omission to discharge a duty for averting the event. The learned Professor Henrietta J. A. N. Mensa-Bonsu in her book, The General Part of Criminal Law-A Ghanaian Casebook Volume 1, states on the matter of causation10; “WHAT DOES TO “CAUSE” MEAN? “To cause” means to bring about by one’s own act or endeavour…. Where multiple happenings occur resulting in one event, then it is the proximate occurrence that may be the determining factor…. The essence of “causing” then, is the existence of a link between the act of the accused person and the resultant event that is criminal in nature.” Citing the case of IMPRESS (WORCESTER) LTD. v. REES11 the learned author and now eminent jurist raised the pertinent question of what question a judge of fact ought to ask in determining the matter of what caused an event. In that case, the question that the law lords determined was to be asked was whether that intervening cause was so powerful 10 See page 460 11 [1971] 2 All ER 357 in nature that the conduct of the appellants was not the cause at all but was merely part of the surrounding circumstances.12 In this case, then, this Court ought to examine whether on the evidence, one can safely say, beyond reasonable doubt, that the Appellant, (A3 in the court below) caused the death of the late Kwabla Milevi. Other questions to be asked is whether the blow to the head by A2 was sufficient to cause the death of the late Kwabla Milevi to the exclusion of any other occurrence. It has been argued by lawyer for the Appellant that the “hefty blow” that A2 gave to the deceased was what caused the latter’s death. The Appellant insists that the evidence of PW1 and PW2 “was exaggerated to implicate the Appellant”. The Appellant takes exception to the part of the summing up by the Judge at pages 172 to 173 viz; "Quite clearly one blow could not have caused such extensive damage to the body of the deceased, that is the facture of the base of the skull, disruption of the brain vessels, rapture of the spleen and collection of as much as 3 liters of blood in the abdominal cavity. We all know that the spleen is within the liver in the thoracic (abdominal) cavity so it would be impossible for a single blow to rapture the spleen and at the same time facture the skull. In my view the evidence of A2 that he gave the deceased a single blow cannot be true". It is canvassed by the Appellant that the conclusion of the Judge in the summing up ought not to have been justifiably drawn without the pathologist being present and giving 12 See page 461 sworn testimony regarding what was found as being the cause of the death of the late Kwabla Milevi, whether it was a single blow to the head or some other. Citing section 121(6) of Act 30, and the well-known case of NYAMENEBA & ORS. v. THE STATE [1965] GLR 723 SC, counsel insists that the pathologist’s report which was accepted in evidence as Exhibit H, though tendered to prove the fact of the demise of the late Kwabla Milevi, ought to have been tendered by the pathologist to enable cross- examination on the matter of whether or not a single blow could have caused such extensive damage to the body of the deceased as to have caused his death. Relating the law to the evidence in this case, the following are noteworthy; a) In the first place, a critical look at the summing up would reveal that the Judge assessed the role played by each accused person in accordance with the evidence before the Court. The defence each of accused persons put up was also assessed.13 In the case of the Appellant, the relevant part of the summing up referable to him can be found at pages 177 to 190 of the ROA. As was rightly observed by the Judge in the summing up, the evidence of the Appellant was a total denial of the offence as he insisted that he was not present when the event occurred. The downside of such a defence is that, even though once the alibi fails, any other would be available, practically, there would be no alternative evidence offered by the proponent of the Alibi. After all, if the proponent of the Alibi insists that he was not at the scene when the altercation occurred, he could not practically put up another defence of extreme provocation or self-defence in the course of the trial. I am in agreement with the observation of the Judge at page 188 of the ROA in relation to A3 when he states; 13 Please see pages 155 to190 of the ROA. “This presumption can however be displaced by credible evidence, but because A3’s defence is a total denial of the offence he has no evidence to lead in rebuttal of this presumption. The presumption will in the circumstances operate against the perpetrator of the crime, not A3 who said he was not at the scene of the crime let alone participate in its commission.” The Judge assessed the evidence put up by the Appellant, all the while also taking care to state over and over again that the jury was not obliged to take his views or opinions on the facts. The Jury returned a guilty verdict against all the accused persons, the Appellant included. b) The evidence-in- chief adduced before the Court also showed, not only that the Appellant was at the scene, but was also the one who inflicted serious blows on the deceased. The evidence of PW1 cannot be overlooked. As he stated, he is related to the accused persons and could not tell lies against them.14 In part of PW1’s evidence at page 48 of the ROA, he states; “…... I did not know what came over A3. He hit the deceased with his fist several times. He also hit anyone who tried to prevent or stop him. While A3 was beating the deceased on the ground I intervened to stop him but he gave me a blow on my chest. All the people trying to stop A3 got blows from him everyone was afraid and stopped…..” In cross-examination, he was unmoved. 14 Page 50 of the ROA It is our considered opinion that there was sufficient evidence of A3 having been present and taken part in the altercation. This Court needs to further determine whether the blows inflicted by the Appellant resulted in the death of the deceased. c) The question of whether or not the Court properly accepted Exhibit H into evidence will now be discussed at this point. When the document was being offered in evidence, the following transpired by way of foundation, objection and the Ruing of the Court on the matter15; “…. There is was a medical examination of the body. I have the report which I wish to tender in evidence. By counsel for accused: - My Lord I object to the report because he is not the author of the report. Mr. Agbeko: It is for identification purpose only. Besides the investigators have always been able to tender the post mortem reports. BY COURT: - Even though the investigator is not the author of the post mortem report, he can tender it in evidence. Counsel for the accused person may cross examine to discredit or disprove it. In the circumstances the objection is over ruled. The post mortem report is admitted in evidence and marked “Exhibit H”” Of relevance to the determination of the propriety or otherwise of the tendering of Exhibit H are sections 121 (1), (2), (5) and (6) of Act 30 which are reproduced in extenso below; 121. (1) A document purporting to be an original report signed by a 15 Page 65 of the ROA Government medical practitioner, analyst, chemical examiner or geologist, or of an assayer or mineralogist recognised by a Minister for the purposes of this section notification published in the Gazette, on a substance or thing submitted for examination or analysis and report, may, if it is directed to the Court or is produced by a police officer whom it is directed or any other person acting on behalf of the police officer, be used as evidence of the facts staled in that document in an enquiry, trial, or any other proceeding under this Act. (2) A document purporting to be an original report signed by a qualified medical practitioner relating to the nature or extent of the injuries of a person certified to have been examined by the practitioner, may, if it is directed to the Court or is produced by a police officer to whom it is addressed or by a person acting on behalf of the police officer, be admitted as evidence of the facts stated in that report in a trial before a District Court. (5) The Court may presume that the signature to the document is genuine, and that the person signing it held the office the person professed to hold or was recognised as an assayer or mineralogist at the time when that person signed the document. (6) On receiving the report in evidence the Court shall, in the interests of justice, summon and examine the medical practitioner, analyst, chemical examiner, geologist, assayer or mineralogist, or a person gazetted in accordance with subsection (3), as a witness or cause evidence to be taken on commission under this Act as the case may require. (Emphases ours) Further, in the case of NYAMENEBA & ORS. v. THE STATE (cited supra), it was held that by section 121 (1) of the Criminal Procedure Code, 1960, a scientific report is prima facie evidence of the matters contained therein and not conclusive evidence. Accordingly, once the appellants had disputed the accuracy of the report, the prosecution should have called the chemist to be cross-examined. The Court held per Ollenu JSC at page 726 of the Report; “The proper interpretation of that section, having regard to the operative words "may . . . be used as evidence of the facts therein stated" is, that the contents of such a report or certificate are prima facie evidence, not conclusive evidence. Therefore, if a defendant against whom it is used as evidence challenges it, i.e. expresses intention to rebut it, the prosecution must make the person who gave that report available to be cross-examined by the defendant to lay foundation, if he could, for his evidence in rebuttal.” A holistic reading of the above-quoted portions of the legislation as well as the well- known case of Nyameneba, relative to medical or scientific reports clearly show that such reports may be tendered in evidence by the Police. In fact, section 121(6) shows that the report would have been received in evidence by the Court before it summons and examines the medical examiner or authors of such scientific reports …as the case may require. In the Nyameneba case, the Court held that where the authenticity of report is challenged, the Court could, as the justice of the case would require, summon the author. In this case, the objection raised was simply per the record relative to; “My Lord I object to the report because he is not the author of the report”. One must not confuse admissibility and weight to be given to the evidence put before the court. In this case, the objection raised did not go to the authenticity of the report and as such there was no legal requirement to summon the medical examiner. The document was rightly admitted subject to weight. The discussion under this head shall be concluded with a discussion of whether there was evidence that the Appellant could properly be said to have caused the death of Kwabla Millevi. It is without doubt that Kwabla Milevi is dead. It is also without doubt that the cause of death was not natural. The Post Mortem Report, Exhibit H, included the following findings; Mark of violence: Scratches on the face, abdomen and arms Facial edema Internal Examination When opened the dead body showed as follows: The skull showed fracture on the base, the brain showed intraparenchymal hemorrhage by disruption of the vessels and severe edema due to severe trauma, Abdominal cavity showed abundant blood about 3 liters due to rupture of the capsule and parenchymal of the spleen. Lungs were shocked Kidneys were shocked The rest of all the organs were pale CAUSE OF DEATH Basic Cause Multiple Traumatic Injuries with rupture of the spleen and the fracture of the base of the skull. Intermediate Cause Internal hemorrhage and intraparenchymal hemorrhage of the brain Direct Cause Hypovolemic shock In my opinion the Cause of Death was due to Hypovolemic Shock by rupture of the spleen, an unnatural cause. (Emphases mine) It has been argued by the Appellant that the deceased died from the blow to the head received from A2. It has further been argued that the fact that the Judge in his summing up indicated that the deceased could not be said to have died only from the blow to his head by A2 was a misdirection. There are no particulars of the alleged misdirection by the Court. In the case of THE REPUBLIC V, EMMANUEL SACKEY REV.) & 5 ORS. EX-PARTE: BANK OF GHANA [2021] DLCA10784, His Lordship Dennis D. Adjei delivering his concurring opinion discussed the issue of a failure to particularise an alleged misdirection. He stated; "Rule 8 of the Court of Appeal Rules, C. I. 1 9 provides for the contents of a notice of appeal duly filed within the time frame provided by Rule 9 of C.119. Rules 8 sub rules (4)-(7) of the Court of Appeal Rules provides thus: "(4) Where the grounds of appeal allege misdirection or error of law, particulars of the misdirection or error shall be clearly stated…. The ground (b) of the appeal provides that the trial Court misdirected itself on what constitutes contempt. I find the ground of appeal vague and at the same time non-compliant with rule 8 subrule (4) of the Court of Appeal Rules, C. I. 19, that is, where an appellant who alleges an error of law or misdirection fails to provide the particulars of the error or misdirection and ground (b) of the appeal is not maintainable in law, The ground of appeal does not inform the Court either in tabulated form or description in the particulars of the misdirection being alleged and same is struck out. Clearly, the ground of appeal on the alleged misdirection is improper. Further, and in the alternative, the alleged misdirection is misconceived if one takes a critical look at the law of causation as reproduced supra. As has been stated, section 13(3) of Act 29 clearly stipulates that where an event is caused by the acts of several persons acting jointly or independently, each of those persons who intentionally or negligently contributed to cause the event has, for the purposes of this Act, ....caused the event. This means, by an application of what was found by the Medical Examiner, who found that the deceased died from rupture of the spleen and the fracture of the base of the skull, neither of the accused who inflicted the injuries, whether to the spleen or to the skull can be absolved from having caused the death. In any case, is the Court expected to calculate the speed and velocity of each blow and make a determination as to which blow actually killed the deceased? Certainly not! From the tenure of the law, anyone who had anything to do with the beating of the deceased, Kwabla Mileva, which resulted in his death, caused to his death and shall accordingly be held to be equally responsible. To conclude under this head, I hold that grounds 2, 4, 5 and 6 of the Appeal are without merit and they are accordingly dismissed. ON GROUND ONE (1) PRELIMINARY POINT OF LAW: DRAFTING OF THE FIRST GROUND OF APPEAL The Court notes the drafting error in the first ground of appeal which is crafted thus; The conviction is against the weight of evidence. It is trite learning that this being a criminal matter, the standard of proof was “proof beyond reasonable doubt” and not “on a balance of probabilities”. Thus, to raise a complaint of the judgment having been “against the weight of the evidence” implies a lower standard of proof on a balance of probabilities. The Drafting with regard to the evidential standard ought properly to have been that the judgment was not, or could not be, supported by the evidence on record. Further, the error complained about which would found the appeal is to be specified other than just casting out a general erroneous and unsuitable statement that “the judgment is against the weight of evidence.” To buttress the position above, I would quote copiously from the decision of the Court of Appeal in the case of THE EXECUTIVE DIRECTOR, ECONOMIC AND ORGANISED CRIME OFFICE v. NICHOLAS ANAMO (Suit No, H1/7/2019 dated 13th February, 2020 reported on the online portal, dennislawgh as [2020] DLCA 8573. In the said decision, H/L Dennis Dominic Adjei JA presiding stated regarding drafting errors and their effect as follows; “Having said that, we further notice from our examination of the sole ground of appeal on which this appeal has been anchored, a clear violation of the mandatory rules of this court which renders the ground improper, inadmissible and therefore unarguable…….. There are a number of judicial pronouncements by the Supreme Court on the consequence of non-compliance with similar mandatory procedural provisions in Rules 6 (4) and (5) of C. I.16, the Supreme Court Rules which are in pari materia with Rules 8 (4), (5) and (6) of C. I.19. In the unreported judgment in Civil Appeal No/J4/2016 dated 13/4/2016 in the case FKA COMPANY LTD. VS. NII TACKIE AMOAH VI & ORS., the Supreme Court per Akamba JSC held inter alia on the issue of noncompliance as follows:- “It is important to stress that the adjudication process thrives upon law which defines the scope of its operation. It is trite to state for instance that, nobody has an inherent right of appeal. The appeal process is the creature of law. Any initiative within the context of the adjudication process must be guided by the appropriate relevant provision, be it substantive law or procedural law. As courts, if we fail to enforce compliance with the rules of court, we would by that lapse be enforcing the failure of the adjudication process which we have sworn by our judicial oaths to uphold”……… As this court is bound by its own rules, and by the decisions of the Supreme Court on questions of law as well as its own previous decisions in accordance with Articles 125(3) and 136(5) of the 1992 Constitution respectively, the sole ground of appeal set out by the Appellant is incompetent as it is inadmissible and it is hereby struck out. The result is that this appeal fails under circumstances which are self-induced. Having failed to set down a proper arguable ground of appeal, the Appellant elected to reformulate the impugned ground of appeal in its written submission as follows:- “The Ruling of the Trial Court was in error of law when the Trial Court defroze the account when a criminal appeal was pending”. Granted for the sake of argument that the Appellant had sought the leave of this court to file and argue the above ground pursuant to Rule 8(7) of C. I.19 (as amended), the new ground in itself is not in compliance with the mandatory requirement under Sub-rule (4) in the absence of specific particulars of error of the law on the part of the Trial Judge…… The appeal being fraught with substantial procedural errors was dead on arrival.” This Draft as it exists, unfortunately, would mean applying the wrong standard of proof to the instant criminal matter and further, there is such a dearth of information as to the error complained of and the miscarriage of justice occasioned thereby and same would be fatal. Please see also: • LAWRENCIA ADAMS v. COFEY INTERNATIONAL (CA) Civil Appeal No. H1/171/46 dated 23 /2/2017); • BOSOMPEM v. TETTEH KWAME (2011) SCGLR 397; • SUSAN BANDOH v. DR. MRS MAZWELL APPIAGYEI GYAMFI &ANOR (SC) Suit No. J4/16/2016; • OFOSU ADDO v. GRAPHIC COMMUNICATIONS GROUP LTD. [2011] 1 SCGLR 358; • SANDEMA-NAB v. ASANGALIA [1997-97] SCGLR 302; • ZAMRAMA v. SEGBEDZI [1991] GLR 226 CA. The first ground of appeal would accordingly be dismissed on the basis of the procedural error. In the alternative, having assessed the other grounds of appeal and the evidence led in proof of the charge of murder against the Appellant, it is clear that the conviction was proper. There is nothing on record depicting a substantial miscarriage of justice such as would justify a setting aside of the conviction The first ground of appeal would accordingly be dismissed on that score as well. I must state my disagreement with my brothers in sum on their conclusions. I am not oblivious of the import of the law to the effect that where the plea or defence of alibi fails, the court ought to consider any other defence as may be relevant in any trial. That said, however, it is my considered opinion that as far as the Appellant is concerned, no evidence of provocation was offered. Further, in the grounds of appeal under consideration, no argument was canvassed (even assuming that such evidence had existed, which it did not) to merit a pronouncement on whether there was justifiable force or harm against the deceased which resulted in his death. In this matter, the focus has been on alibi and causation in law and in fact. I conclude this Judgment by making a brief pronouncement on the sentence of death by hanging pronounced on the Appellant and those who stood accused with him ON SENTENCING In the relatively recent decision of the Supreme Court in the case of OBENG GYEBI v. THE REPUBLIC (CRIMINAL APPEAL NO. J3/02/2021) (Available online at www.dennislawgh as [2021|DLSC106910), His Lordship Kulendi JSC delivering the decision of the Supreme Court, stated with reference to situations where the law is amended to review the punishment regime in respect of particular crimes. The learned jurist concluded; "Consequently, having regard to the totality of the circumstances of the Appellant's conviction and sentence, and the statutory changes which mitigate the punishment for robbery, after the Appellant's conviction, we are of the opinion that the sentence of life imprisonment imposed by the trial court on the Appellant ought to be reduced. The Appeal against the sentence therefore succeeds. Consequently, his life sentences for each of the offences of which he was found guilty and made to run concurrently, are hereby set aside. We substitute a sentence of thirty (30) years from the date of conviction, to run concurrently for each of the offences of which he was found guilty In computing time to be served by the Appellant, we took into consideration the time served on remand during the trial of the case at the Trial Court. We are inclined to recommend that, for the avoidance of doubt, that whenever Parliament embarks on legislation that reduces or mitigates, a penalty, forfeiture or punishment by way of an amendment, to existing statutes, the administration of justice would be enhanced if express saving provisions are included to provide for the fate of persons already sentenced and still serving a punishment, penalty or forfeiture under the statute that has been amended or repealed. This is necessary to address the fate of those who may well have exhausted the appellate process and so cannot avail themselves of the rehearing jurisdiction of any Appellate Court in a bid to achieve a review of the sentence, penalty or punishment they may still be serving in spite of the introduction of new legislation that takes a less harsh view of the conduct for which they were punished or sentenced”. In this case, although the appellant's appeal has no complaint regarding the sentence, which in the circumstances is not unexpected as the penalty for murder was until the passage of the Criminal Offences (Amendment) Act 2023 (Act 1101) was mandatorily death, one cannot ignore the changes made to the statute as are relevant to the instant case. Act 1101 received Gazette notification on the 2nd of August, 2023. Section 1 of Act 1101 which amends section 46 of the Principal Enactment, Act 29, now makes murder punishable by life imprisonment. I therefore, on the basis of OBENG-GYEBI v. THE REPUBLIC (cited supra) substitute a sentence of life imprisonment for the death sentence imposed by the trial High Court. Save for that substitution, the appeal fails in its entirety. SGD .................................. JUSTICE AFIA SERWAH ASARE-BOTWE (JUSTICE OF THE COURT OF APPEAL) COUNSEL: EVAN DZIKUNU FOR APPELLANT ESI DENTAN YANKAH (SSA) FOR RESPONDENT 42