ADJEI,J.A:
I had the privilege of reading the draft speech of my respected brethren Cecilia Sowah JA and I agree with the conclusion she arrived at in her judgment in appeal.
I will like to express some few words on my own to speak to some legal issues considered by the trial High Court Judge which occasioned substantial miscarriage of justice to the Appellant herein.
The trial High Court Judge erroneously discussed the information relayed to some of the witnesses in this case by the deceased while on admission as a dying declaration and looking at the summing up, the legal effect of dying declaration negatively impacted on the minds of the Jury to convict the Appellant. Some of the witnesses including Andrews Larweh (PW2),Tetteh Abraham (PW3) and Courage Kwadwo Aboagye (PW5), the Medical Assistant who attended to the deceased at the Enyiresi Government Hospital testified that the deceased told them after he had returned from the theatre that he was pushed down from a moving vehicle by the driver’s mate. The cause of the death of the deceased was given by the pathologist who did the autopsy as multiple traumatic injuries that he sustained from a fall from a height. It is not in doubt that the 1st Appellant was the driver’s mate on the vehicle driven by the 2nd accused person on 2nd May,2010. It is also not in dispute that while the deceased was at the back of the vehicle, the 2nd accused person sped off. A taxi driver chased the 2nd accused person and returned to inform them that the deceased was found on the road in great pain as a result of which other persons rushed to the scene and found the deceased in that condition. Apart from the deceased telling people that he was pushed from the vehicle by the Appellant herein, there is no other evidence from any other person to that effect. Sadly, the taxi driver who was a material witness was not called to testify and no reason was assigned for his inability to give evidence.
The evidence was that the 2nd accused person sped off with the vehicle when the Appellant herein was at the passenger’s seat at the front. At what point in time did the Appellant left the front seat to the back of the vehicle to push the deceased from it?
The fact that a person testifies that it was another person who caused harm to him should not be admitted wholly without subjecting it to scrutiny. It will come under an admissible hearsay rule. Is it possible for the Appellant to leave the front seat to the back of the vehicle while
