AWOTWE v. THE STATE

JUDGMENT OF AZU CRABBE J.A.

Azu Crabbe J.A. delivered the judgment of the court. The appellant in this case was convicted in the High Court, Sekondi on 22 November 1965, before Djabanor J., sitting with a jury, for the murder of one Ama Kessewah on 25 May 1965, at Tarkwa-Banso in the Western Region. Against this conviction the appellant has appealed to this court on three grounds. In the original notice of appeal filed by the appellant the only ground of appeal alleges that the trial court failed to consider accurately the defence of alibi. At the hearing of this appeal counsel for the appellant, Mr. Agbesi, was granted leave to argue the following additional grounds of appeal:

"(a) the taking of the jury's verdict was irregular and amounts to a substantial miscarriage of justice.

[p.368]

(b) that the verdict cannot be supported having regard to the evidence."

Having listened to the arguments of counsel in support of the original ground of appeal and the second of the additional grounds of appeal, we are of the opinion that there is no substance whatsoever in these two grounds, which must accordingly fail.

However, the first ground of the additional grounds, though not directed to the merits of the case, raises a fundamental question of great significance. After the conclusion of the summing-up, it is recorded by the learned trial judge that the jury retired at 11.15 a.m. and returned at 11.45 a.m., and the notes of the judge show the following recording:

"Court: Foreman says that they are not unanimous. They are divided five to two in favour of prosecution. I ask jurors to retire again at 11.48 a.m.

Jurors called back at 12.15 p.m. Foreman: Says that they are now unanimous and that they have found accused guilty of murder.

Court: Accused is informed that verdict is guilty of murder."

In arguing the first ground of the additional grounds which was directed against the procedure followed by the learned trial judge Mr. Agbesi, counsel for the appellant, placed great reliance on the decision in R. v. Antor (1958) 3 W.A.L.R. 430, C.A. and submitted that as far as the procedure adopted by the trial judge after the summing-up is concerned the present case is on all fours with the Antor case, and he invited this court to follow that case and allow the appeal. For the State, Mr. Gyeke-Dako submitted that in a trial for a capital offence, a majority, verdict is unacceptable to the court, because it is not a verdict which in law the court can accept and