Hassan Mahoi v S (CR APP 31 of 2005) [2008] SLCA 57 (22 May 2008)

CR. APP. 31/05 IN THE COURT OF AP} F . BETWEEN:- HASSAN MAHOI - APPELLANT AND THESTATE — - RESPONDENT | CORAM: HON.MR.JUSTICE JON KAMANDA S.A. HON.MRS. JUSTICE S.BASH-TAQI “JA. : HON.MR.JUSTICE S.A.ADEMOSU LA ADVOCATES D.G-THOMPSON FOR THE APPELLANT " ay IDGMENT DELIVERED TH) payor M S.A.ADEMOSU- LA. ; This is an Appeal by the Appellant against the judgment of the Hon.Mr.Justice R.A. Shuster before whom he was indicted forthe offences of ; @ 1 Causing grievous bodily harm with intent. Contrary to Section 18 of the @ : i inst the Person Act 1861 , 2 ots nen jatent, Contrary t0 Sections 18 of the offences against the . founding - Person Act 1861

And

3. Wounding. Contrary to Secti ect a él ion 20 of the Offences against the Person Act sh nthe 8 of November, 2005 the Appellant was convicted of the offence of Causing grievous bodily harm with intent and sentenced to 8 years imprisonment. ‘The Appellant being dissatisfied with the conviction on the 25% of November, 2005 filed aNotice of Appeal for leave to appeal against sentence and the Grounds of Appeal reads as follows. t That on the facts of the case the sentence was too severe. On the same date another ‘Notice of Appeal for leave to Appeal against conviction was filed on behalf of the Appellant. The Grounds stated are as follows:- 1, The Learned Trial Judge failed to consider the defence of alibi adequately or at all. 2, There was no evidence to support the verdict. 3, That the verdict is unreasonable ‘and cannot be supported having regard to the

Evidence

D.G-Thompson Esq., for the Appellant argued Ground 1 separately and Ground 2 and 3 together. In arguing Ground 1 he referred to the evidence of DWI and 2 who were the accused/appellant himself and his sister ‘Umar Safu Mahoi. ‘The evidence of DWI the appellant as far as relevant isto the effect that the complainant Mrs. Kadiatu Weston is ter sister-in-law. That on the material 87 15-4-03 at about 3 pam he saw one Joseph Beya and about 9 others coming owards nis shop aed with stones and is Mahoi was among them. By the Wa ‘Yusufu Maboi is the complainant's husband and he vas PLW.2, Appellant further told the COU hat the group was throwing stones St sad ue i ding to the Appellant he was stabbed with provision shop and damaged his drinks. According . : ve rescue. That she removed his under vest bottle by a boy. He said his sister came to his vers + pi took him tothe Police Staton. to sop the blood and from, there B0% taxi whic ; As - sleged incident the Appellant js recorded as saying under regards the time of the alle! ‘ross-examination as follows ee

j about three o'clock. I hay i \ | ° we a big clock in the shop. I did not look at the time. I was stab(sic) but I saw it at the clock (Q) It was three 0’ clock I saw it. o'clock. (A1) by the wall This is briefly the Appellant Testimony in the Lower Court.

Tuning to the testimony of DW2 - Umar Safu Mahoi. The witness told the court intr alia that the appellant was her brother and the complainant-Mrs. Weston was her sister-in-law. She remembered 15-4-03. She was at 2A Fanna Street Allen Town, something happened at about 3 0’clock. She was sitting when a group of people went towards her with stones and using abusive language. That the group threw stones inside the Appellant’s Bar. She said the Appellant told her not to run and the appellant went along the street and then went to the Police Station to make a report, From there Maribi Vamboy took a bottle and his ‘Appellant on the head with it That she went along the junction to help the Appellant by taking his vest to tie his head.

In cross-examination she said she was not aware of any other incident. She stayed with the Appellant for 12 years and the Appellant was the one who took care of her during the period.

\ She confessed that she could not tell the exact time ofthe alleged incident. Mr. Thompson referred to the evidence of P.W.1 and P.W.2 who were the complainant. Mrs. Kadiatu Weston and her husband Yusuf Mahoi respectively’ He submitted that the time ofthe incident alleged by them 35 {6 pam. or thereabout and in his opinion this evidence is substantiated by Exhibit"E” fsfeates that the alleged incident was at about 1745 brs and not 6pm. as canvassed bY Mr. Thompson. He submitted that the evidence before the Lower Court is not strong t© support the conviction and that it is unsafe to base the . the Appeal and quash the conviction. judgment on . He then invited the court to allow -

the other hand urged the court to dismiss the

Mr, Peacock for the Respondent? , appeal «tion. In Suppo of the submission Mr. Peacock referred

and uphold the convicliOP: © ages that the “Appellant was properly copiously to the evidence adduced whieh indies” identified and there is no question of mistake identity:

_ Trial JudBe said inter alia. ; In his judgment the Learn’ his sole defence, the defence of alibi. The

"The Defendant puts forward aS is «ne feria ‘hen it WAS said to have been

5c

defendant says that he was not at the 5

| committed on the 15" April, 2003 , 2003. As the prosecution is col that am sure of it, and the accused d has to prove his quilt so loes not have to ‘ prove he was elsewhere at the time. On the Contrary the Prosecuti . orth secution must disprove the alibi” Mr. a for the Respondent contended that the Trial Judge stated the principles of Jaw involv correctly. I agree with him. It is worthy to note that after quoting the law ively on issue of identificati A aa ly of naiie the Learned Trial Judge alluded quite rightly to very important and pertinent point thatthe case before him involved close relatives and that parties had known each other for many years. He did all he could to spot light the evidence which weighed more with him. [ will add that the evidence before the court disclosed that the complainant Kadiatu Weston is the Appellant's sister-in-law whilst her husband- Yusufu Mahoi is the brother of the Appellant by the same father. ‘These two people identified the Appellant. The Leamed trial Judge indeed said recognition may be move reliable than identification of a stranger. He also referred to the quality of the identification evidence adduced. He alluded to the fact that those who identified the Appellant were long standing relatives. Tagree with Mr. Peacock that the Learned Trial Judge came to the right conclusion that the prosecution had proved its case beyond reasonable doubt before he rejected the defence of alibi. It is my view that this matter was a straight issue of fact.

The law is settled that the Court of Appeal should be reluctant to interfere with the judgment of the Lower Court in a case in which every issue Was before the jury and in which the jury was properly directed. I derive support for this view in what Widgery LJ. said in Rv Sean Cooper (1969) 53 Cr. App: R.82. He stated inter alia. The court ms

‘ in seeil i itnesses, ifall recognize the advantage which jury has!” seeing and hearing the “ meen the material was before the jury and the summing up W2S mene . - ved

7 jury tri ja not lightly interfere. It is conceded tat nj was not jury tal he sneihe enuneis abled where the judge had the benefit of seeing by Learned Lord Justice is applicable in case «oo misdirection complained of by the Appellant. It and hearing the witnesses and there 5 no mi oe i i reluctant to <iffer from a trial, judge ona is trite aw that the Court of Appea! Is always Mas p 1s, It seems 10 me that crux of the matter finding of fact based on credibility of witnesse®- n

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hinges 0 the credibility of the witnesses, The learned trial j heard witnesses coupled with the fact that he padi - e had the opportunity of watching the demeanor the witnesses before him. The ascription of probative values to oral evidence i “

eminently the duty of the judge. The learned trial jud; i i anole - cetution I judge gave his reasons for accepting the evident PI ion. I am unable to see any justifiable grounds of complaint. In the circumstances I dismiss all the grounds of appeal as they are unmeritorious. I confirm the decision of the learned trial judge. As the complainant has lost one eye completely, I confirm the sentence. I cannot share the view that it is severe. The appeal fails and is dismissed accordingly. A. KL HON.MR.JUSTICE $.A.ADEMOSU ~J.A. age oe FS HONMISIUSICE S.BASH-TAQI-J.A. bgt ce ARS IITOSIN ESS