OTSIBAH v. THE REPUBLIC

Francois J.S.C. delivered the judgment of the court. The appellant appeals against his conviction for manslaughter and the sentence of ten years’ imprisonment with hard labour passed thereon by the High Court, Accra on 30 July 1985. Two grounds of appeal were filed in respect of his conviction:

(1) that the conviction cannot be supported having regard to the weight of evidence adduced before the court; and

(2) that the learned trial judge erred in law in not directing the jury to acquit and discharge the appellant.

It is a matter of regret that counsel's able arguments were not matched by similar industry to set out the actual areas of criticism of the verdict. However, having allowed counsel to argue on unrestricted terrain, we must set out what we gather were the areas of controversy upon which his attacks were launched. They may be summed up as follows:

(a) that the learned judge misdirected the jury by failing to direct them on the offence of manslaughter;

(b) that the prosecution failed to connect the appellant with the deceased's death in that the evidence did not sufficiently link the appellant with the harm the deceased sustained;

(c) that there was doubt whether there was a dead body, to warrant the appellant standing trial for murder, and

(d) that the medical evidence was at variance with the testimony of the prosecution witnesses.

As the last three grounds can be dealt with shortly, they will be taken in inverse order, but before doing so, a brief recapitulation of the facts is necessary.

It was 19 June 1983. The time was about 2.30 pm. Around Darkuman the air reverberated with shots fired by jubilating men in celebration of victory over a foiled coup. The appellant and his party had just arrived at the Darkuman Police Station and were active participants in this revelry; shooting in the air and even into the ceiling of the police charge office. A remand prisoner, naturally curious at the commotion, peeped through the window of the cell opening into the charge office. His curiousity quickly evanesced when he received the gruff warning that if he failed to remove his visage out of sight he would be shot. He had scarcely done so when a bullet raced through the cell window fatally wounding one of the remand prisoners there.

Eyewitnesses to the tragic event identified the appellant as the person who discharged that fatal shot. As a result, the appellant was charged with murder but was convicted of the lesser offence of manslaughter by the