Division: IN THE SUPREME COURT
Date: 20 NOVEMBER 1964
Before: OLLENNU, ACOLATSE AND SIRIBOE JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. This is an appeal against the conviction of the
appellant for murder by the High Court, Tamale. The unfortunate incident resulted from an altercation between the first prosecution witness and the appellant over the third prosecution witness, wife of the first prosecution witness, who some time before her marriage to the first prosecution witness (two months prior to the incident) had been a girl-friend of the appellant. The scene of the incident was the market at a village called Goa, and the day was a market day; a woman, the third prosecution witness, was in the market selling pito. The case for the prosecution is that the appellant went to the third prosecution witness in the market and requested her to sell him some pito but the third prosecution witness refused. The appellant was persisting in his request as the first prosecution witness arrived at the spot. The first prosecution witness had on a previous occasion been told by the third prosecution witness that the appellant was still making overtures to her, therefore when he met the appellant talking to his wife, he gently told him to leave the woman and go his way as he did not want trouble. The appellant insisted upon talking to the woman and said that by all means he would take her away from the first prosecution witness. The appellant at that time carried a cutlass in a sheath and an axe, both of which hung over his shoulders.
The appellant then left the spot but returned shortly thereafter accompanied by two other young men, each of whom also carried a cutlass and an axe. On his return to the place the appellant repeated what he had said earlier, namely, that he would by all means take the woman away from the first prosecution witness. While this was going on, the deceased, Nigari Konkomba, an old man of about the age of 70 years, came to the scene and advised the first prosecution witness to take his wife home in order to avoid trouble. Acting upon the advice the first prosecution witness told his wife to collect her things and go home. At that juncture the appellant rushed to the deceased and hit him on the head with an axe. The deceased fell down and when he tried to get up the appellant hit him on the head again with the axe and he fell back to the ground. The appellant thereafter drew his cutlass and slashed the deceased with it on his thigh. On seeing the deceased so assailed, the first prosecution witness rushed to lift him up, but one of the two young men accompanying the appellant struck him on his head with an axe which caused him to fall to the ground. Nigari Konkomba died on the spot.
The prosecution tendered a cautioned statement made by the appellant to the police. In it the appellant gave his version of the incident. According to him, the first prosecution witness met him in the market and picked a quarrel with him accusing him of flirting with his wife; the quarrel he said resulted in a fight between him and the first prosecution witness; he said that during the fight the first prosecution witness hit him on the head with a stick, that one Binamba Konkomba, the appellant’s brother, joined in the fight to aid him while other persons joined in aid of the first prosecution witness. He said that during the course of the fight he noticed the deceased coming to assist the first prosecution witness so he struck him with his cutlass. The evidence the appellant gave at his trial differed in material particulars from the statement he made to the police.
The case for the defence at the trial was that a quarrel arose in the market between the appellant and the first prosecution witness in consequence of a false accusation the first prosecution witness made against him as to flirting with his wife; that in the course of the quarrel, the first prosecution witness, the deceased and others attacked and beat him and his brother Mabrima with sticks, inflicting injuries upon them; and that each of them fell to the ground, whereupon their assailants ran away and left them. He denied hitting the deceased with an axe or cutting him with a cutlass or doing anything to the deceased which could cause his death.
The appeal was pursued on the following four out of the eight grounds of appeal filed:
“(1) that the learned trial judge failed entirely to direct the jury on the question of self-defence;
(2) that the learned trial judge failed to direct the jury on the question of provocation;
(3) that the learned trial judge erred in directing the jury that there was no question of justification for the harm inflicted on the deceased when the question being one of fact should have been left to the jury to decide;
(4) that the learned trial judge altogether failed to put the case for the defence adequately and fairly before the jury.”
Learned counsel for the appellant submitted in respect of grounds one and two, that although the appellant did not plead either self-defence or provocation, there was sufficient evidence before the court to support each of those defences. He submitted therefore that the trial judge failed in his duty in not directing the jury on any of these two important defences which were open to the appellant. He supported his submission by citing the case of Mensah v. The King.1 In support of ground three counsel submitted there was some evidence which, if believed, could be justification for harm as provided in our law, and therefore it was for the jury and not the judge to decide that question of fact. The submissions in support of ground four are a repetition of the argument advanced in support of grounds one and two.
In reply to the submission on grounds one and two, learned senior state attorney, while conceding that the summing-up is completely silent on self-defence or provocation, submitted that there is not sufficient evidence in respect of either of those two matters to warrant direction of the jury on them; and that in any event the evidence taken as a whole is such that even if the jury had been properly directed they would inevitably have arrived at the same verdict. He therefore invited the court to apply the proviso to section 15 of the Courts Act, 1960.2 As to the arguments advanced in support of ground three, the senior state attorney contended that there are no facts which in law can be considered as justification for harm,
therefore the trial judge was within his right to direct the jury as he did, that there was no justification for the harm inflicted upon the deceased. Finally, he submitted that the defence relied upon by the appellant at his trial, that is, his innocence of the crime and a complete denial that he was responsible for the harm which caused the death of the deceased, was fully and fairly put to the jury by the trial judge.
Before dealing with the submissions which counsel for the parties have made, we feel compelled to express regret at the sketchiness of the notes of the summing-up in an important case like this. They gave the impression that the case did not receive the serious attention it should have since quite a few important and relevant matters upon which the jury should have given careful direction were completely skipped.
The cardinal principle which must be borne in mind in a case of murder is, that in bringing a charge of murder, the prosecution take upon themselves the onus of proving inter alia: (1) that the harm which caused the death is unlawful, and (2) that the nature and circumstances of the killing are such that the homicide cannot be manslaughter. Therefore if there is evidence, either from the prosecution or the defence or both, of matters, whether or not the defence relies upon them, which in our law can amount to justification for the harm, then the trial judge should direct the jury on the law on the point and relate it to the evidence, to enable the jury to make up their minds whether they accept those facts. Similarly, if there is evidence coming either from the prosecution or the defence or both, which if believed would amount to provocation in law so as to reduce the homicide from murder to manslaughter, the trial judge is under a duty to address the jury on provocation. The principle was stated by the Privy Council in the Mensah
case3:
“. . . if on the whole of the evidence there arises a question whether or not the offence might be manslaughter only, on the ground of provocation as well as on any other ground, the Judge must put that question to the jury. . . . The reason for the rule is that on an indictment for murder it is open to a jury to find a verdict of either murder or manslaughter, but the onus is always on the prosecution to prove that the offence amounts to murder if that verdict is sought. If on the whole of the evidence there is nothing which could entitle a jury to return the lesser verdict the Judge is not bound to leave it to them to find murder or manslaughter. But if
there is any such evidence then whether the defence have relied on it or not the Judge must bring it to the attention of the jury, because if they accept it or are left in doubt about it the prosecution have not proved affirmatively a case of murder. “
In that case the defendant had maintained in the High Court as well as in the West African Court of Appeal that the death was caused accidentally by his gun going off during a fracas in which he was repelling an attempt by the deceased and others to invade his house and the houses of other villagers. There was evidence of an earlier fracas between the defendant and members of his village on the one hand, and the deceased, a Zambrama man, and members of his tribe, and that the defendant was stabbed in the course of that earlier fracas. The deceased and his group were smugglers trying to smuggle loads they were carrying across the border; and the case for the prosecution was that the defendant and his fellow villagers attacked the smugglers with guns and other implements with intent to rob them of their goods. In the course of the judgment in the Mensah case (supra) the Privy Council said4:
“If a man is struck or stabbed while defending himself or his property or while trying to apprehend a thief there can be no question but that it amounts to provocation of the most serious character. The jury accordingly ought to have been told to consider whether the accused received his wound while acting in defence of his property or whether he got it in consequence of an attempt by him to steal from or injure a man who had done him no harm. That would have enabled them to say whether there was provocation in fact.”
The position in the present case is similar in some respects to that in the Mensah case (supra). When the police arrested the appellant and his brother on the morning following the evening of the incident, they noticed that the appellant and his brother had injuries on them and therefore they took them to the hospital where they were examined and treated by the same doctor who held the post-mortem on the body of the deceased. The doctor gave evidence that he saw a contusion on the right side of the appellant’s head, and also large and extended contusions as well as abraisions on the appellant’s brother. These injuries, the doctor said, were consistent with heavy blows from a stick. The doctor also expressed the view that those injuries could have been caused by more than one blow. The doctor’s evidence therefore confirmed the allegation of the appellant that he and his brother were violently attacked. Apart from the evidence given
by the appellant there is no other hypothesis upon which the injuries found on the appellant and his brother can be explained.
If the appellant and his brother had been attacked in the manner and in the circumstances he described, both in his statement to the police and in his evidence, that could at least amount to provocation if not aggression which would compel a man to act in his self-defence. In those circumstances the trial judge ought to have directed the jury to consider whether or not there was justification for the harm under the provisions of section 31 of the Criminal Code, 1960,5 and within the limits set out by section 32 of Act 29, and in the alternative, whether or not there was provocation which could have reduced the crime to manslaughter by virtue of section 52, as defined in section 53 and within the limitations prescribed by section 54 of Act 29. Furthermore, there being evidence that a fight had taken place, and since death resulting from fighting may either be murder or manslaughter depending upon the circumstances of the case, the learned judge was under a duty to direct the jury on this issue and leave it to the jury to find
whether the peculiar circumstances of the fight in this case made the resulting homicide one of murder or manslaughter. There was therefore a clear misdirection as a result of non-direction in very material respects.
In the circumstances we have carefully examined the facts of the case to see whether it is one in which we can justifiably apply the proviso to section 15 of the Courts Act, 1960, on the ground that the misdirection has not occasioned any miscarriage of justice. In this respect we have directed our attention to sections 32 and 54 of Act 29 and the nature of the injuries inflicted upon the deceased as described by the doctor. We have come to the conclusion that this is not a proper case for the application of the said proviso. At the same time we are satisfied that from their verdict, the jury must have formed the opinion that the homicide was culpable, and that if they had been properly directed their verdict, most probably, would have been guilty of manslaughter. Therefore by virtue of the powers vested in the court by section 16 (2) of the Courts Act, 1960, we would, instead of allowing or dismissing the appeal, substitute a verdict of
guilty of manslaughter for the verdict of murder.
The conviction of murder and the consequential sentence of death are quashed, and there will be substituted a verdict of guilty of manslaughter. The appellant is sentenced to a term of ten years’ imprisonment with hard labour.
DECISION
Conviction of murder quashed.
Verdict of guilty of manslaughter substituted.
T. G. K.
