S v Brima Daboh (CR APP 1 of 1979) [1979] SLSC 3 (1 November 1979)

crApp.0.1/79

Between: The State a Appellant Ana Bria Daboh 7 Respondent conaMs Hon, Mr. Justice B. Livesey Luke ~ J.5.C. AgsC.Je Hon, Mr. Justice C. A, Harding = J.S.C, Hon, Mr. Justice 0.B,R. TeJan = J.S.C Hon, Mrs.Justice A, Awinor-Renner ~ J.S.Ce Hom, Mr, Justice S. 7, Navo = J. Ae N,V, TeJan-Cole Esq. D.P.Ps with him Miss Tegan Jallch and J.M, Kamanda for Appellants A... Metzger Esq. with him Mrs. Hannah Ahmed for Respondent. : JUDGHENT DELIVERED THE 1ST DAY OF NOVEMBER,

LIVESEY LUKE, AG. C.Juz- ‘This 1s an appeal by the State against the decision of the Court of Appeal given on 19th December, 1978 setting aside the convic~ tioh of Brima Daboh (hereinafter referred to as the "Respondent") for Murder by the High Court, sitting at Sefadu on 15th July, 1975. It will be useful to set out a brief history of this cdse. “The respondent and the deceased were

7 oe 56 husband and wife, For sone months previously the ° respondent had suspected the deceased of being unfaithful and he had consequently demanded the return of his dowry, ‘The deceased refused to return the dowry, whereupon the respondent threatened on several occasions and took solemn oaths to kill the deceased. fecording to the evidence led by the prosecution at the trial, on the 16th October, 1974 fat Tankoro in the Kono District in broad daylight and in a public place the respondent hit the deceased on the head with an axes ‘The deceased fell to the ground bleeding profusely from the head and she died innediately afterwards as a result of the wounds : inflicted on her by the respondent, After a trial by a Judge (Thompson-Davis J) and a Jury lasting 9 days the Jury on 15th July 1975 returned a unanimous verdict of guilty of Murder and the Judge accordingly sentenced the respondent to death. The respondent appealed to the Court of Appeal on several grounds. Wnen the appeal first cane before the Court of Appeal on 19th October, 1978, Learned Counsel for the respondent (the appellant in thet Court) applied for and vas granted leave to amend the grounds of appea2 by substituting three grounds, formated in notice dated 18th October 1978, for the original grounds. At the outset of his argument, Learned Counsel for the respondent pointed out that the Records did not contain a record of the Sunning-up, whereupon the Court ordered that the Registrar of the Court of sects’

Appeal request the trial Judge to state in writing ° ‘Summing-Up and 1f he gave no direction to prepare a pees Gaa ee ed Cee eas ert setae an She Seperate we eee ee Ray meen eee eS ey eal a Li insanity," Moseve

b 6 & 58 Im his argunent Learned Counsel subaitted inter alia i that “there being no record of the sunming-up of this @ case the Court is not in a position to determine whether or not the Jury was properly guided in arriving at a verdict of guilty or on essential matters such as burden of proof, standard of proof, provocation, self defence and insanity." Learned Counsel conceded that failure to record the summing up was not necessarily fatal but that where the Court cannot be sure thot the Jury was properly directed and Af properly directed "they may not arrive at the sane verdict conviction should be quashed," It 1s relevant to point out that Learned Counsel for the respondent aid not argue the other two grounds i.e, grounds 1 & : 2, and must be taken to have abandoned then, Indeed, 4t 19 not surprising that he did not pursue them, because, in my opinion, they lacked any merit. In reply Counsel who appeared for the State before the Court of Appeal referred to the provision in the Criminal Procedure Act, 1965 (4.e. 5, 197(2) requiring the Trial Judge to prepare a statenent of his sunmingup and stated that it was regrettable that there was no record of the sunming-up and then referred to two decisions of the Court of Appeal dealing with the subject of non-availability of record or statement of sumning-up. The Court of Appeal delivered their considered Judgment on 19th December 1978 allowing the appeal and ordering that a verdict of not guilty be entered in favour of the respondent. The Court of Appeal based their decision on the absence of a record or [Secs fo000

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