Kamara & 3 Others v S (CR APP 8 of 2010) [2012] SLCA 23 (29 November 2012)

m CR. APP. 8/2010 JN THE COI RT OF APPE AL OF SIERRA LEONE BETWEEN: MOHAMED SHERIFF KAMARA - APPELLANTS JOHN LITTLE KAMARA MORRIS ABDUL MOMOH EMMANUEL LAMIN BANGURA AND THE STATE - RESPONDENT CORAM: HON. MR. JUSTICE P.O. HAMILTON - J.S.C. HON. MR. JUSTICE E.E. ROBERTS - J.A HON. MRS. JUSTICE V.M. SOLOMON - J.A SOLICITORS C.F. EDWARDS ESQ. FOR THE APPELLANTS GERARD SOYEI ESQ. PRINCIPAL STATE COUNSEL FOR THE RESPONDENT JUDGMENT DELIVERED THIS Q f ^ & K Y OF / I J o t M t i i h o / Z : . , 2012 HAMILTON J.S.C. This is an appeal against the judgment of the High Court delivered by the Hon. Mr. Justice S.A. Ademosu J.A. on the 23r d May, 2008. The accused persons (hereinafter referred to as the Appellants) were charged on a six (6) count indictment o f Robbery with Aggravation, Wounding with Intent and Wounding. Counts 1 and 2 were Rubbery with Aggravation Contrary to Section 23(l)(a) o f the Larceny Act, 1916 as repealed and replaced by Section 2 o f Act No. 16 o f 1971, Counts 3 and 5 Wounding with Intent Contrary to Section 18 o f the Offences Against the Persons Act 1861 and Counts 4 and 6 Wounding contrary to Section 20 o f the Offences Against the Persons Act, 1861. 1 W • The appellants were found guilty on Counts 1, 2, 3 and 5 and not guilty on Counts 4 and 6. They were convicted and sentenced accordingly. It is against this conviction and sentence that the appellants have now appealed to the Court o f Appeal. The facts o f this case could be summarized as follows: On 6th May, 2007 Zainox Sesay closed the door o f his house and went to bed with his family. After about mid night his wife Koma Sesay woke him up saying that thieves have entered their house. There was light in the house but it was not bright and clear enough. There was moon light outside which penetrated into his room through the window. When he got up he saw four (4) people at the far end o f his bedroom standing wearing black overalls from neck to foot but their faces were not covered. He then asked his wife as to how they entered the house since the doors were closed. One o f them then replied you are asking how we came in we are here to kill you. He then rushed at the person who said these words and gripped him. He then realized it was the 4th Appellant as he was in front. They then struggled to the parlour and he then fell over some chairs. There were flashes o f light on his eyes and so tried to protect his eyes with his hands. There was a heavy blow on his head with a cutlass and blood started oozing from his head. Later his wife shouted that she has got hold o f him and he get up and discovered it was the 4th Appellant. Later he saw one o f them standing and so grabbed his feet drew them and he fell down. He then dragged him to the veranda from the parlour when his slippers fell off his feet. It was then he knew it belongs to the 1st appellant as he used to wear them since he has doubled toes. Whilst he was dragging him someone shouted on PWj to leave the 1s t Appellant. He was hit on the hand heavily resulting in PWi having a broken hand. He then leaned on the balusters bleeding heavily on his head. Later he heard his wife shouting that she has been hit with a cutlass. He then struggled to the parlour to see what help he can give to his wife. On his way to the parlour he was hit on the head with a cutlass and he fell to the ground. He then heard his wife called the names o f the four appellant s with whom he is familiar. The}1 all then rushed out o f the house leaving one hammer, a pick axe, an axe and a touch light. Later some people came to his help. He then instructed his wife to collect a plastic bag containing the sum o f Le5,000,000/00 million in his room but she returned telling him that it was 2 not there. He also lost a nokia phone valued Le350,000/00. Later he was taken to the hospital for treatment. It was against this background that the appellants were charged on a six (6) counts indictment as foilows:- Count 1 Statement of Offence: Robbery with Aggravation, contrary to Section 23(l)(a) o f the Larceny Act 1916 as repealed and replaced by Section 2 o f Act N o .l6 o f 1971. Particulars of Offcnce: Mohamed Sheriff Kamata, John Little Kamara, Morris Abdul Momoh and Emmanuel Lamin Bangura on 6th May, 2007 at Freetown in the Western Area o f Sierra Leone being armed v\ th a cutlass and an axe robbed Zainox Sesay o f the sum o f Five Million Leones, one Nokia Mobile Phone o f the value o f Le350s000/00, all property o f the said Zainox Sesay. Count 2 Stiit< jnent of Offcncc: Robbery with Aggravation, contrary to Section 23(l)(a) o f the Larceny Act, 1916 as repealed and replaed by Section 2 of Act No. 16, 1971. Particulars of Offence: Mohamed Sheriff Kamara, John Little Kamara, Morris Abdul Momoh and Emmauel Lamin Bangura on 6th May, 2007 at Freetown in the Western Area of Sierra Leone being armed with a cutlass and an axe robbed Kama Sesay o f one Nokia Mobile Phone, o f the value o f L ei00,000/00, properly o f the said Kama Sesay. 3 Count 3 -Statement of Offence: Particulars of Offcnce: Count 4 Statement of Offence: Particulars of Offence: Count 5 Statement j f 01‘ fencc: Particulars ol‘ Offence: Count 6 Statement of Offence: 2.® I Wounding with Intent, contrary to Section 18 o f the offences against the Persons Act, 1861. Mohamed Sheriff Kamara, John Little Kamara, Morris Abdul Momoh and Emmauel Lamin Bangura on 6th May, 2007 at Freetown in the Western Area o f Sierra Leone wounded Kama Sesay with intent to do her grievous bodily harm. Wounding with Intent, contrary to Section 18 o f the offences against the Persons Act, 1861 Mohamed Sheriff Kamara, John Little Kamara, Morris Abdul Momoh and Emmauel Lamin Bangura on 6th May, 2007 at Freetown in the Western Area o f Sierra Leone maliciously wounded Kama Sesay. Wounding with Intent, contrary to Section 18 o f the offences against the Persons Act, 1861. Mohamed Sheriff Kamara, John Little Kaniara, Morris Abdul Momoh and Emmauel Lamin Bangura on 6th May, 2007 at Freetown in the Western Area o f Sierra Leone wounded Zainox Sesay with intent to do him grievous bodily harm. Wounding with Intent, contrary to Section 18 o f the offences against the Persons Act, 1861. 4 2-0 V Particulars of Offence: Mohamed Sheriff Kamara, John Little Kamara, Morris Abdul Momoh and Emmauel Lamin Bangura on 6th May, 2007 at Freetown in the Western Area o f Sierra Leone maliciously wounded Zainox Sesay. The appellants were tried by a Judge and Jury and convicted on four (4) Counts out o f the six (6) Counts. They were convicted on counts 1,2, 3 and 5. The 1st, 2n d and 3r d Appellants were sentenced to 10 years imprisonment on Counts 1 and 2 and 5 years imprisonment on Counts 3 and 5. The 4t h Appellant was sentenced to 20 years imprisonment on Counts 1 and 2 and 5 years imprisonment on Counts 3 and 5. It is against this conviction and sentence that the Appellants have now appealed to the Court of Appeal on the following grounds; 1. That the Learned Trial Judge failed or did not consider at all the defence o f Alibi raised by the accused persons. 2. That the Learned Trial Judge erred in law in failing to address the issue o f identification raised by the Defence Counsel on behalf o f the accused persons. 3. That the Learned Trial Judge failed to consider or did not consider at all the defence o f the accused persons in their respective statements. 4. That the Judgment is against the weight o f the evidence. In considering the grounds o f appeal it is but right that grounds 1, 3 and 4 ought to be considered together as they touch and concern the defence o f the appellants, that is the defence o f Alibi and the general defence raised by the appellants in their respective statements. Counsel for the Appellants in his synopsis argued that the Learned Trial Judge reviewed the evidence o f the prosecution except that o f PW5 and PW6 and that o f DW1 and DW2 who were defence witnesses whose evidence were not reviewed in the summing up. He submitted that the 5 2*3 'r evidence o f DW1 raises the defence o f Alibi on behalf o f the 1s t and 2n d Appellants which ties up with the evidence o f DW1 which ought to have been disproved by the prosecution but which they failed to do. Counsel further submitted that the alibi raised by the 3r d Appellant was buttressed by the evidence o f DW2 which evidence the prosecution failed to cross check or investigate that the 3r d Appellant slept at “Hill Cot Road Car Wash”. On the defence o f the Appellants as contained in their statements, Counsel for Appellants submitted that the Learned Trial Judge did not review the defences but only mentioned them as Exhibits B, C and D, in the summing up without directing the jury on the defence. The Learned Trial Judge in commenting on Exh. A in his summing up to the jury said that 1s t Appellant admitted going to Complainant’s house but Counsel submitted that this is not so as the 1s t Appellant never admitted going to the Complainant’s house on the day o f the incident but that he has been a visitor earlier on in the Complainant’s house. In Exh. A lines 7 to 14 the 1s t Appellant said: "Q - You said you have been going to the Complainant’ s house before when last did you go to the Complainant’ s house? A - I t has taken about three years when I last go to the Complainant’ s house Counsel for the appellants finally submitted that the Learned Trial Judge never put forward fully the defence of the Appellants for a proper consideration by the jury. Counsel for the State/Respondent submitted that the Learned Trial Judge in his summing up did consider the alibi raised by the Appellants sufficiently for the benefit o f the jury. Counsel further submitted that the prosecution did lead evidence in rebuttal o f the alibi raised by the defence and stated that the statements o f the Appellants were mentioned by the Learned Trial Judge and the evidence o f PW1, PW2 and PW3 did disprove the alibi raised by the defence. On ground three (3) Learned Counsel for the State adopted the arguments and submissions relating to ground one (1) Counsel Submitted that the jury’s attention was expressly drawn to 6 Exhibits A, B, C and D which were the statements o f the Appellants and once the exhibits were mentioned in the summing-up the Learned Trial Judge did not omit the rebuttal o f the defence o f all the appellants. He submitted that the mentioning o f Exhibits A, B, C, and D to the jury that they should consider them in arriving at their decision was enough since there is no specific formula or wording in a sujnming-up provided the rules are not breached and the Learned Trial Judge in this case did not breached any rule. The Learned Trial Judge in the course o f his “Summing-up” at Page 59 lines 13 to 31 o f the records wrote: “ PW4 Abu Julius Kamara - on 7th May he obtained a statement from the 1st Accused. Exhibit A is the statement. Exhibit A makes interesting reading because the accused said amongst other things at page 3 lines 15 to 21. He attributed the allegations against him to a grudge against his guardian - Madam Yella Momoh. He admitted going to Complainants house and that he had been at peace with them. Exhibit B - John Little Kamara alias little made on 8/8/09 Exhibit C Morris Abdul Momoh dated 8/5/09. Exhibit D Emmanuel Lamin Bangura Exh. D dated 12/5/09. Exh. 3 Neneh Conteh - only Momoh she was able to recognize. Now agrees she did not mention the name o f the 2nd accused. PW5 Dr. Rashida Kamara DW1 John Kamara DW2 Alfred Thompson They are all about the age o f 25 years. I ask that you give them an opportunity to come. The main objective o f punishment is reformative. I am sure you will take into consideration the fa ct that they are all the first three o f them are school going children. You are a father. We are appealing to your conscience. Sentence as follow s: .............” The above quote was first cross checked with the hand written notes o f the Learned Trial Judge and found to be exactly the same as in the typed written record. Section 197(1) o f the Criminal Procedure Act 1965 (Act No. 32 o f 1965) provides: ‘When, in a trial by jury, the case on both sides is closed the Judge shall sum up the law) and evidence in the case The above quoted summing-up contained in page 59 lines 13 to 31 o f the records provided no guidance or proper direction to the jury nor was the evidence especially that o f PW5, PW6, DW1 and DW2 summed up by the Learned Trial Judge as is required by Section 197(1) o f the Criminal Procedure Act, 1965. In Fofana v. The State [1974-82] SLBALR 100 at 101 Beccles- Davies J.A. (as he then was and o f blessed memory) faced with this similar type o f summing-up on appeal in allowing the appeal said: “It is difficult to know how the trial judge put across such a badly presented c a se .......to the jury as his “summing-up (Notes on) ” ended abru ptly .....The ju ry were entitled to the assistance o f the Judge because o f the type o f evidence that was adduced in this case. Had they got it they might not have arrived at the verdict which they d id .........." see also Harrison v. Resinam 1967-68 ALR S.L. 119. In my humble opinion this portion o f the summing-up by the Learned Trial Judge as contained in page 57 lines 13 to 31 when properly read is difficult to be considered as a summing up and therefore amounts to a misdirection to the jury. Counsel for the Appellants did contend that the Learned Trial Judge failed to put the case for the defence adequately and sufficiently to the jury. The defence o f the appellants he said was an alibi. They claimed they were somewhere else at the time o f the incident, that is, “at Jesus is Coming International School (J1CIM) and Hill Cot Road Wash Car” which was buttressed by the evidence o f DW1 and DW2. The entire claim o f the Appellants is that they were somewhere else. It is a well known principle o f law that a Judge in his summing up is bound to put the case for the defence however weak or stupid it may be to the jury - see: R v. Dinnick (1909) 3 Cr. 2 - ° ^ App. R. 77. In R v. Kwabena Bio (1949) 11 WACA 46 at 50 the Learned Chief Justice Harragin in his judgment said: "It has been reiterated so often by this Court that defence however stupid must be considered by the trial judge for what it is worth It is trite law that it is the duty o f the trial judge to put specifically to the jury the essential and important aspect o f the defence however weak or stupid that defence may be. See: R v. Barima {1945) 2 WACA 49. It has been held in a long line o f cases that such an omission will be fatal. See: R v. Mills (1955) 25 Cr. App. R 138: R v. Murtaeh f!955) 39 Cr. Ayp. R. 72. The defence o f the Appellants being an alibi, the Learned Trial Judge should have explained to the jury what an alibi was and further directed them on the burden o f proof when such a defence is raised by the Appellants. In fact there can be no conviction unless the jury when properly directed rejects it. See: R v. Thomas Finch (1916) 12 Cr. App. R. 27. In my humble opinion the Learned Trial Judge should have treated the defence o f alibi put forward and further directed the jury on this point more adequately. The failure o f the Learned Trial Judge to do so did result in a miscarriage o f justice. In the result therefore grounds 1, 3 and 4 is upheld. As regards ground (two) 2 since grounds 1, 3 and 4 have been exhaustively dealt with, I do not think it necessary to consider ground two (2) in any detail. However, suffice it to say that the Learned Trial Judge omitted in his summing up to direct the jury fully on this aspect o f identification o f the Appellants. Considering the inconsistencies in the prosecution’s evidence % especially that o f PW3 who said that one o f the assailants was veiled. The Supreme Couit o f Nigeria in Archibons v . The State (2006) 14 NW LR 349 at 356 Mustavher J.S.C. said: “Whenever the case against an accused person depends wholly or substantially on the correctness o f the identification o f the accused which the defence alleges to be mistaken, the 9 Court must very closely examine and receive with great caution the evidence alleged before convicting the accused on the correctness o f the identification ” (Emphasis Mine). Considering the summing-up as it is contained in the records, it is my humble opinion that Section 58(2) o f the courts Act 1965 (Act No. 31 o f 1965) could not be safely applied in this case. In the result, the conviction o f the Appellants is therefore quashed and the appeal is allowed. The sentence is therefore set aside. HON. MR. JUSTICE P.O. HAMILTON J.S.C I AGREE: ..................................................................... HON. MRS. JUSTICE V.M. SOLOMON - J .A . REF: POH/HJ 10