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JELR 84171 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]



Coussey, Ag. C.J. This is an appeal by the two accused, Yaw Ngoroh and Kwesi Gyan, from convictions for murder at the Supreme Court, Sekondi Assizes in July, 1951. One Counsel was assigned to defend both the accused. At the opening of the trial, Counsel said he wished to consider separate representation, as he was in doubt whether he could represent both the accused. The Court asked him to consider his position and that it depended upon whether he had obtained con1licting instructions from each accused and the Court adjourned to enable Counsel to consult the two accused. On the resumption of the hearing Counsel continued to appear for the two accused. This incident is referred to because of its bearing on one of the main grounds of appeal argued before us, and it will be referred to later.

Part of the case of the Crown is not in dispute. The deceased, Amadu, had been paying attentions to a young woman named Binto and had expressed a desire to marry her, which she had refused. The first appellant also had made overtures to the woman.

One day the deceased set off from the village of Kusokrom saying he was going to Samreboi. Some days later the two appellants and Binto and the deceased happened to meet one morning at a place in the bush between Kusokrom and Enchi, where the two appellants usually tapped palm wine, and the appellants persuaded Binto not to accompany the deceased to Samreboi as he had requested her to do. They returned with her to Kusokrom on her pretext to the deceased that she was going back to collect her clothes in order to join him. That evening the two appellants returned to the place in the bush where the deceased was still waiting.

As to the means by which the deceased met his death there is no direct evidence apart from the statements of the appellants to the police and to other witnesses, and the medical testimony upon which the Crown relied. The medical evidence is that death was the result of an oblique fracture at the back of the skull which could have been caused by a blow from a heavy sharp instrument. The death of the deceased was first learnt through the second appellant consulting a Mallam, Braima Wangara, who gave evidence, asking for medicine to lay the ghost of the deceased which the second appellant said was haunting him. The Mallam reported to the headman and the next day the second appellant took them and a police constable to a disused mine pit and brought out a hausa gown, later identified as that of the deceased, a kettle and human bones. In consequence of the second appellant's statements the first appellant was taken to the police station at Enchi where each appellant made statements endeavouring to exculpate himself and to place the actual killing on the other.

The trial Judge left the following questions to the Jury:- (1) If it is found that both accused attacked the deceased, they are both guilty of murder.

(2) If you do not find it proved that both did so, then you have to decide if either of the accused did attack him. If you find one did, the other is not responsible unless you find it proved beyond doubt that there was a previous arrangement to attack the deceased.

We consider this was a proper direction on all the evidence before the Court. A verdict of guilty was returned against both appellants.

The first ground of appeal, which was ably argued by Mr. Quist-Therson. Counsel for the first appellant, Yaw Ngoroh, is that the verdict was against the weight of the evidence and that both accused were taken to the spot by the police and compelled to make incriminating statements. He referred to R. v. Ajege and . Kigbo (1), where it was held that the accused were improperly taken to the locus in quo in the hope of obtaining an admission of their guilt and that the statements thereupon made were wrongly admitted in evidence. That case can be clearly distinguished. In this case, after the two appellants had, on separate occasions, made admissions of knowledge of the crime in which they accused one another, they accompanied the police to a spot where the first appellant offered to show, and did show, where a cutlass had been hidden under a fallen palm tree.

It is true the appellants then made admissions, but they were not taken to the spot by the police for that purpose, and there is nothing improper in a policeman taking a suspected person to a place to recover an instrument with which a crime is alleged to have been committed. It is unnecessary to pursue this ground of appeal further which is not supported by what we find actually occurred.

We are satisfied that there were correct and careful directions by the learned Judge to the jury as to the evidential value of the admissions of each defendant, both to the police and in the course of the trial.

The only other ground of any substance is that the first appellant's defence was embarrassed by one Counsel representing the two accused at the trial, who put up defences fundamentally opposed to each other. It is urged that when, as the case proceeded, Counsel found it difficult to represent both the accused, the Court should have stopped the trial in order that separate Counsel should be assigned to the accused.

This question was considered before this Court in Rex v. Onim Olade (2), when the Court observed:-

“The point as to the separate representation by Counsel of two accused persons is one of importance. We think that it is undesirable that the same Counsel should have the responsibility of defending both accused once it appears that the evidence of one of the accused may have the effect of incriminating the other. There should have been no difficulty in foreseeing this possibility in the present case, since the nature of the evidence which the second accused was likely to give was sufficiently apparent from the statement which he had already made to the police. But even where the matter arises unexpectedly in the course of a trial, we feel that the wise course is to adjourn the proceedings until a second Counsel can be t instructed.

“As we have already stated, we are of opinion that there are no grounds in this case which would justify any interference with the finding of the learned trial Judge”

We would add to this statement that however embarrassing may be the situation in which Counsel is placed in such circumstances it is his duty in a criminal case to conceal, as effectually as he can, that embarrassment from the jury and to continue with the defence consistently with his instructions and his duty to the Court.

The test, however, to apply in this case is whether having regard to the course the trial took, there has been any substantial miscarriage of justice. See the proviso to section 10, sub-section 1, of the West African Court of Appeal Ordinance, Cap. 5.

From the record it would appear that when the second accused in the course of his testimony-in-chief attacked the first accused by alleging that he struck the fatal blow, Counsel applied to the Court for leave to withdraw from the defence of the second accused and was permitted to do so. Thereupon, the second accused continued his statement and was cross-examined by Counsel for the Crown. The first accused, perhaps, considering that Counsel who had shortly before partly examined in chief the second accused, who had endeavoured to incriminate him, could not, at that stage, adequately cross-examine the second accused, then applied for leave to cross-examine the second accused him-self and did so, and Counsel applied for leave to withdraw from the defence of the first accused also. At the concluding stage of the trial, therefore, neither accused had the services of Counsel, but the first accused cross-examined at length. On principle and authority the first appellant could not revoke his Counsel's authority during the trial and conduct his own case when Counsel was already seised of the case R. v. Woodward (3) and R. v. Maybury (4). Although there is substance in this ground we are of opinion that no substantial miscarriage of justice has occurred to the first appellant and that the conviction is supported by the evidence. This Court exists to avoid miscarriages of justice and not to create them.

The appeal of the second appellant follows that of the first appellant. The same grounds have been argued, although partly in a different form, and all the arguments for the first appellant have been adopted for the second appellant, and we have considered the case of R. v. Kingston (5) and Rex v. Galor Hired and . Others (6) on the point as to non-representation by Counsel which have been cited by Mr. Lassey. But we have come to the same conclusion and are satisfied that the second appellant's conviction also is supported by the evidence and that there has been no substantial miscarriage of justice in his case.

The appeals are dismissed.

Appeals dismissed.

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