COURT OF APPEAL, ACCRA
Date: 6 APRIL 1973
AZU CRABBE CJ
CASES REFERRED TO
| (1) | R. v. | Cohen and Bateman (1909) 2 Cr.App.R. 197. |
| (2) | R. v. | Whybrow (1951) 95 S.J. 745; 35 Cr.App.R. 141, C.C.A |
| (3) | R. v. | Brown (1971) 55 Cr.App.R. 478, C.A. |
| (4) | R. v. | Bio (1945) 11 W.A.C.A. 46. |
| (5) | R. v. | Barimah (1945) 11 W.A.C.A. 49. |
| (6) | State | v. Nyavie and Ofori [1962] 1 G.L.R. 174, S.C. |
| (7) | R. v. | Ekpo (1938) 4 W.A.C.A. 110. |
NATURE OF PROCEEDINGS
APPEAL from the decision of the High Court, sitting with a jury convicting the appellant for murder. The facts are sufficiently stated in the judgment of the court.
COUNSEL
H. P. Swaniker (Afrifa with him) for the appellant.
S. E. Asamoah, Senior State Attorney, for the Republic.
JUDGMENT OF AZU CRABBE CJ
Azu Crabbe C.J. delivered the judgment of the court. The appellant was convicted at the Criminal Session held in the High Court, Koforidua, on 3 March 1972, before Quashie-Sam J. and a jury, of the murder of one Osei Kwadjo, and was sentenced to death. He has appealed to
[p.216] of [1974] 1 GLR 214
this court alleging various grounds of misdirection by the learned trial judge in his summing-up.
The appellant is the odikro of Asunafo village in the Akim Abuakwa Traditional Area. The deceased, who also lived at Asuboni in the Kwahu Traditional Area, farmed on land, which had, for four years previous, been the subject-matter of litigation between the appellant on the one hand, and the deceased and other Kwahu farmers on the other. On 26 January 1971, the sister, nephew and wife of the appellant were arrested by one of the labourers of the deceased on a part of the disputed land for allegedly stealing foodstuffs and were taken to the Asuboni Police Station and kept in custody until the next morning. At about 1 a.m. on 27 January 1971, the appellant led a hostile crowd of people to the police station and demanded the release of the three persons in custody. According to the constable in charge of the police station, Charles Kofi Denyoh, the followers of the appellant carried offensive weapons, such as cutlasses, daggers and cudgels. In fairness to the appellant, this witness said that he did not see the appellant carry anything at this time. The demand for the release of the three suspects was refused, and at about 7.15 a.m., when the appellant and his people were leaving the police station, Constable Charles Kofi Denyoh said he saw the appellant change into a smaller smock, studded with talismans, and he held in his hand a naked dagger. They left the police station, and as they marched towards the village of Asuboni, a gong-gong was continuously sounded. The deceased and his brother, Akwasi Osei alias Osei Koforidua, happened to be walking at this time along the street in the village of Asuboni. The circumstances leading to the death of the deceased were vividly described by Akwasi Osei alias Osei Koforidua in the following passage culled from his evidence:
“On 27 January 1971 in the morning I and Osei Kwadjo were going to a funeral at about 7.30 a.m. The funeral was in the same town Asuboni. We were going there together. Osei Kwadjo went to the lavatory—a public lavatory. I waited for him till he returned and we continued to the funeral. The town is of a lower and upper part. The lower part is towards Asunafo and the upper towards Nkawkaw. We were going from Asunafo part towards Nkawkaw part on a lorry road. As we were going, I saw people from the police station direction beating gong-gong. They were coming from the opposite direction towards us. Many were the accused and his followers. The accused was dressed in a smock with talismans and Hausa trousers. He wore a hat. I see the hat in court [marked Identification 1 witness identifies]. He was holding a dagger, two edged. Some of his people also had daggers. The gong-gong they were beating was the double type. We met them. We stood by or aside. The accused emerged from the people and said to my brother Osei Kwadjo, ‘Is that you? Today I have got you.’ My brother did not say anything. The accused stabbed my brother. My
[p.217] of [1974] 1 GLR 214
brother did not say anything. It was I who said, ‘Nana why?’ He did not reply, and did nothing. It was the accused’s brother Yaw Yeboah who said, ‘So what’ and he stabbed my hand. My brother and I started to run towards the police station to report. At that time the accused and Yeboah, his brother, were following us, chasing us. We came across Nana Atibiehene and Yaw Mireku and Boamah [Boamah and Mireku identified]. Yaw Mireku asked the accused, ‘Nana why do you want to kill somebody early morning like this on us here?’ The accused said, ‘What will you do’ and stabbed Mireku. Atibiehene gripped and held accused from behind. Yaw Yeboah was advancing towards Atibiehene so Atibiehene threw the accused against him. The accused fell but got up and ran away. At that time his people ran away with him. When Atibiehene threw the accused some of his people ran away but others looked on but ran away with the accused. At that time my brother had fallen behind a gutter and I was about to go to the police station. When the scuffle was happening between the Atibiehene and the accused we had stopped to watch. It was then that my brother fell down and I raised him. I found his intestines gushing out, so I tied him with a cloth and with the help of Yaw Mireku holding one side of him and I the other we took him to the police station. We made a report and my brother’s wife and a driver took him to hospital at Roman Hospital Nkawkaw while Mireku and I waited. We were given medical forms for the hospital which Mireku and I did. At the hospital the doctor told me my brother had died. Post mortem was held after I had identified him as my brother. When we were going to the funeral neither my brother nor I was armed. Atibiehene, Mireku and Boamah were not armed with anything either. There is trouble between me and the accused, also between the accused and my late brother but over the same matter. The land which Darko Mensah has bought and on which we are farming is the subject of a dispute with the accused in which we, my brothers and I, are participating.”
The evidence of this witness was substantially confirmed by the Chief of Atibie, Nana Kwaku Abra II, the second prosecution witness. Both these witnesses were put forward by the prosecution as persons who actually saw the killing of the deceased by the appellant.
The defence was one of mistaken identity. In brief, the appellant said that though he was present at the scene of the crime, he was not the perpetrator of the crime charged, and he called as witness one Yaw Boakye who confessed to have dealt a mortal blow to one of those who allegedly attacked the appellant and his followers in the street of Asuboni.
The crucial question in this case is whether Yaw Boakye gave evidence which showed the probability of a mistake by the prosecution witnesses. And the issue whether there was a mistake was one of fact
[p.218] of [1974] 1 GLR 214
for the jury. The main criticism against the summing-up is that the learned trial judge had not sufficiently instructed the jury on this issue of fact. The evidence of Yaw Boakye may be briefly stated. He admitted that he was present in the street of Asuboni when the followers of the Atibiehene clashed with the appellant and his followers. Yaw Boakye claimed to be one of the appellant’s followers, and this is his own version of the incidents that took place during the general fighting between the two factions:
“Someone stabbed me with a knife at my back during the fight four times. I have the scars. I turned and noticed someone going to stab me with a knife at my shoulder. When I saw this I dodged. It was a ‘Baffoe’ knife [jury say they know this type of knife]. When I dodged, the knife landed on right upper arm (this is the scar). [Witness shows scars at back and on upper arm]. I held the hand of the man who was holding that Baffoe knife, twisted it, the knife fell from his hand and I stepped on it. I took the knife from the ground and stabbed him: I think on his right side of the stomach. He fell. Someone hit my back with a stick and another my right shoulder with a stick. The knife fell from my hand and I even fell on the man I stabbed. I got up and dashed away through the crowd. The general fight was going on as all this was happening. They continued to come on us, beating us. I had not seen the person I stabbed before. I did not know him but can recognise him. When I dashed through the crowd, I managed to escape, through the bush to Asunafo.”
Yaw Boakye said that he took three days to travel through the bush to Asunafo village, having rested at the village of one Anane, who treated his wounds with herbs. On arriving at Asunafo village on the third day after the incident at Asuboni he heard that the appellant had been arrested and taken to Nkawkaw. Accompanied by one Mustapha and two others, he proceeded to the Nkawkaw Police Station, where they met Detective Sergeant Mudah Raji the fifth prosecution witness. Continuing his evidence, Yaw Boakye said:
“I told the fifth prosecution witness I was one of the followers of the accused. I told him exactly what I have told the court. When he asked me the question I told him no one had been killed there but that I remember I fought with a man who stabbed me with knife and that I captured the knife from him and stabbed him and he fell in my presence. The fifth prosecution witness did not record this from me. I told this story to the fifth prosecution witness about four days after the incident and I even showed him all the wounds on my body. The fifth prosecution witness did not allow Mustapha to say what he also wanted to say and drove us all away. Since then nobody has taken statement from me.”
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Mudah Raji categorically denied that either Yaw Boakye or Mustapha came to him at the Nkawkaw Police Station, let alone that he refused to take their statements.
On 22 January 1971, the appellant and four other persons including the second witness for the defence were brought before the Circuit Court, Koforidua, on various charges not immediately connected with the present murder charge and were granted bail, but, as Yaw Boakye could not provide a surety, he was kept in custody at the Koforidua Central Police Station, and he remained there until 24 January 1971. On 25 January 1971, however, someone stood surety for him, and he was released on bail. On 1 February 1971, whilst Yaw Boakye had temporarily gained his freedom, the appellant was charged with the murder of the deceased. Yaw Boakye enjoyed his temporary freedom until 15 March 1971, when he was remanded in custody for failing to appear before the circuit court on an adjourned date to answer the charges against him, and he was kept in the Koforidua Central Prisons. It is to be noted that from 1 February 1971, until during his subsequent incarceration, Yaw Boakye made no attempt whatsoever to accept the blame for the killing of the deceased, or to report the conduct of Mudah Raji, although, as a follower of the appellant, he must have known by this time that the appellant had been charged with the murder of the deceased.
Whilst in the Koforidua Central Prisons, Yaw Boakye made a request to see the person in charge of the investigation into the murder case against the appellant. According to him, he did not see the appellant in the prisons; he was, indeed, emphatic that the appellant had not been brought to the prisons when he was taken there. How then, and when, did Yaw Boakye know that the appellant had been charged with murder? The answer to this question can hardly be discovered from his evidence. He denied a suggestion that he and the appellant agreed in the prisons that exhibit E should be written. Exhibit E is dated 29 April 1971, and it contains facts, which, if believed, would exonerate the appellant completely of the offence of murder with which he was charged. Yaw Boakye was closely cross-examined with regard to exhibit E, and this is part of his evidence:
“If exhibit E does not say that I went to Nkawkaw to make a statement to Sergeant Raji, it is an omission by the person who wrote the letter for me because I told him I did go to Nkawkaw. I am illiterate and have never attended school. I did not know the deceased but I mentioned Osei Kwadjo in exhibit E because four days after the incident I went to Nkawkaw where Sergeant Raji asked me if I knew the person who killed Osei Kwadjo. That is how I got to know the name and I told Raji the fifth prosecution witness I did not know who stabbed Osei Kwadjo. If in exhibit E it is stated that I said I hit Osei Kwadjo with a knife, that is correct. I say so because Sergeant Raji at Nkawkaw asked me if I knew who killed Osei Kwadjo and I replied I did not but that
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during the fight I stabbed someone in such a way that I knew that person would not survive but he did not die in my presence, and that is why I told the fifth prosecution witness I did not know who killed him. When I told Raji that I did not know who killed Osei Kwadjo, I believed it was I who killed him.”
This court is not at all surprised that the jury, who saw the manner Yaw Boakye gave his evidence, showed by their verdict that they were not impressed that he was a witness of truth. The second and last witness for the defence, Mustapha Boateng, gave evidence, which, in the opinion of this court, did not advance the case for the defence any further.
In this appeal the only ground of appeal which has been argued with some force by Mr. Swaniker, counsel for the appellant, and which merits consideration by this court is the first ground of the additional grounds which alleges as follows:
“(1) The learned trial judge did not direct the jury adequately on the defence evidence and thus misdirected the jury by non-direction.
PARTICULARS
(a) The evidence of the first defence witness Yaw Boakye at pages 26—29 and his extensive cross-examination at pages 34—36 as well as exhibit E pages 51—52 to the effect that the appellant carried no weapon and that it was he Yaw Boakye who stabbed the deceased is evidence which if the jury believed would have entitled them to return a verdict of not guilty. Throughout his summing-up the learned judge neither referred to nor commented on this vital piece of evidence.
(b) The learned trial judge failed to direct the jury adequately on the evidence of the second defence witness either beyond telling the jury that ‘the defence version is an open engagement in a fight. Your duty is to decide which story you believe, clash or what.’ (page 45).”
In the opinion of this court, these criticisms of the summing-up are well taken. It is unfortunate that the learned trial judge did not sift and expound the defence a little more to the jury. But in concluding his summing-up the learned trial judge said:
“I must warn you that the trial is against the accused alone for murder and nobody else. He also faces only that offence and no other offence. If after weighing all the evidence you believe it was the accused who stabbed the deceased in the manner described by the prosecution witnesses as they merely looked on, then your duty is to find him guilty of murder. If you find that it is not the accused find him not guilty. If you cannot decide one way or the other you are in doubt and you must give accused the benefit of it and find him not guilty.”
[p.221] of [1974] 1 GLR 214
In this passage the learned trial judge made clear to the jury the simple issue of fact which they had to decide.
Section 26 of the new Courts Act, 1971 (Act 372), is the governing section relating to appeals before the superior courts, and subsection (12) of that section deals with matters that will justify the allowing of an appeal. Under this subsection the three main grounds upon which an appeal may be allowed are as follows:
(i) Where the verdict is unreasonable or not supportable on the evidence.
(ii) Where there has been a wrong decision “on any question of law or fact.”
(iii) Where “on any ground there was a miscarriage ofjustice.”
There is however, an important limitation in the proviso to subsection (12), and this reads:
“Provided that the said Court shall notwithstanding anything to the contrary in this subsection dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted upon that charge or indictment.”
It would appear that misdirection as to the law always involves a miscarriage of justice, whereas, in the case of misdirection as to the facts, it should be shown that a miscarriage of justice has in fact occurred. A non-direction on an important aspect of the defence is a misdirection, and consequently involves a question of law. And where misdirection is established on a point of law, the onus is on the Republic (the respondent) to show that there was in fact no substantial miscarriage of justice. In the celebrated case of R. v. Cohen and Bateman (1909) 2 Cr.App.R. 197, Channel J. said at pp. 207—208:
“There is such a miscarriage of justice not only where the Court comes to the conclusion that the verdict of guilty was wrong, but also when it is of opinion that the mistake of fact or omission on the part of the judge may reasonably be considered to have brought about that verdict, and when, on the whole facts and with a correct direction, the jury might fairly and reasonably have found the appellant not guilty. Then there has been not only a miscarriage of justice but a substantial one, because the appellant has lost the chance which was fairly open to him of being acquitted . . . If, however, the Court in such a case comes to the conclusion that, on the whole of the facts and with a correct direction, the only reasonable and proper verdict would be one of guilty, there is no miscarriage of justice, or at all events no substantial miscarriage of justice within the meaning of the proviso
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[corresponding to section 26 (12) of our Courts Act, 1971 (Act 372)], notwithstanding that the verdict actually given by the jury may have been due to some extent to such an error of the judge, not being a wrong decision on a point of law.”
In R. v. Whybrow (1951) 35 Cr.App.R. 141, C.C.A. it was held that the proviso applies where there had been a clear misdirection in law in the summing-up.
In determining whether or not there has been a miscarriage of justice or substantial wrong, the court must have to examine the whole of the record. And as was said in R. v. Whybrow (supra) at p. 152:
“In considering whether the proviso is to be applied in any particular case this Court must consider the whole of the circumstances of the case. We do not for an instant wish to put ourselves into the position of the jury. We take the verdict of the jury, which is one of Guilty and which means that the jury are satisfied that the prisoner did do a criminal act. We then have to see how far the case is affected by the wrong direction given by the presiding judge, and we must take the whole of the facts into account and regard the whole of the circumstance.”
In R. v. Brown (1971) 55 Cr.App.R. 478, C.A. the court said at p. 484:
“We approach the question whether or not it is our duty to apply the proviso here by considering whether the evidence was overwhelming and whether a jury properly directed in this case could have come to any other verdict other than that of Guilty.”
We respectfully agree with this approach. Far too often this court has been pressed with the argument based on the earlier cases of R. v. Bio (1945) 11 W.A.C.A. 46; R. v. Barimah (1945) 11 W.A.C.A. 49 and State v. Nyavie and Ofori [1962] 1 G.L.R. 174 at pp. 175—176, S.C., that failure of the trial judge to direct the jury adequately on the defence is fatal to conviction. With respect, we do not agree that this is necessarily so; each case must depend upon its own facts and special circumstances. But we wish to state quite clearly that this court will apply the proviso to section 26 (12) of the Courts Act, 1971, where (1) the evidence against the appellant is overwhelming, and (2) it (the court) is satisfied that on the whole of the facts and with a correct direction the only proper verdict would have been one of guilty.
Now, the evidence of Charles Kofi Denyoh, formerly a police officer at the Asuboni Police Station, was that before the appellant and his followers marched to the town of Asuboni he saw “a naked dagger” in the hand of the appellant. The other prosecution witnesses—Akwasi Osei alias Osei Koforidua, Nana Kwaku Abra II, Chief of Atibie, Yaw Mireku and Kofi Boamah—all described how the appellant stabbed the deceased to death. The appellant’s defence was that he did not do the killing. Whether or not the appellant was the killer was a matter for
[p.223] of [1974] 1 GLR 214
the jury, and the jury, by their verdict, had clearly shown that they disbelieved the appellant and his witnesses. Where there is evidence to support the verdict, and it is one which a reasonable jury could arrive at, it is not for us to interfere, even though we may feel that we might have come to an entirely different conclusion ourselves.
It has been contended that in telling the jury that the appellant faced only the offence of murder the learned trial judge had unconsciously withdrawn the issue of manslaughter from the jury, and that this misdirection had occasioned a miscarriage of justice. This argument can only be valid, if there is some evidence upon which the verdict of manslaughter can justifiably be grounded. In Archbold on Criminal Pleading, Evidence and Practice in Criminal Cases (36th ed.), p. 929, para. 2508, the law is summarized thus:
“When the question arises whether what would otherwise be murder may be reduced to manslaughter on the ground of provocation, if there is no sufficient material, even on a view of the evidence most favourable to the prisoner, for a reasonable jury to form the view that a reasonable person could be provoked to lose his self-control, it is the dutv of the judge as a matter of law to direct the jury that the evidence does not support a verdict of manslaughter. If, on the other hand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject to passion or loss of control as to be led to use the violence with fatal results; and (b) that the prisoner was, in fact, acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict. Holmes v. Director of Public Prosecutions [1946] A.C. 588; 31 Cr.App.R. 123. See also R. v. Clinton 12 Cr.App.R. 215; R. v. Robinson 16 Cr.App.R. 113; and section 3 of the Homicide Act, 1957 (ante, § 2499). In the latter event the judge must leave the question of manslaughter to the jury, even though counsel for the prisoner has not relied upon that defence. R. v. Prince 28 Cr.App.R. 60. Even where the substantial defence is that of self-defence, the summing-up should deal adequately with any other view of the facts which might reasonably arise out of the evidence and which would reduce the crime to manslaughter. The fact that defending counsel does not stress an alternative case does not relieve the judge from directing the jury to consider the alternative, if there is material to justify a direction that they should consider it: R. v. Hopper [1915] 2 K.B. 431; 11 Cr.App.R. 136; R. v. Ball, 18 Cr.App.R. 149; cf. R. v. Gorges 85 L.J.K.B. 1049; 11 Cr.App.R. 259; R. v. Hall 21 Cr.App.R. 48; Mancini v. Director of Public Prosecutions [1942] A.C. 1; 28 Cr.App.R. 65; Bullard v. R. [1957] A.C. 635; 42 Cr.App.R. 1, P.C.; R. v. Porritt [1961] 1 W.L.R. 1372; 45 Cr.App.R. 348.”
[p.224] of [1974] 1 GLR 214
Part of the case of the defence was that the appellant and his followers were attacked by the group to which the deceased belonged. This is the appellant’s description of the attack:
“As we were proceeding in the main road, we heard the beating of twin gong-gong in the lower part of the town. Looking ahead on the right I saw a gathering with the second prosecution witness. Directly in front of me I saw people. Apart from the second prosecution witness I noticed a lot of the people engaged with me in the land dispute. They were Opanin Akwasi Osei, the first prosecution witness, Opanin Kissi not in court, Odoi and others I cannot recollect now. They had cutlasses, sticks and knives all of them, except the second prosecution witness. I continued to go with my people. I thought that the beating of the gong-gong was to summon the people, for communal labour. As we got near the second prosecution witness said ‘Look Boateng stop. ’ I just turned to look at him and continued to go but he was coming towards me. Then I heard the second prosecution witness order ‘Beat them and whatever happened will be for Nkawkaw Police Station.’ As he said so, and before I could turn the second prosecution witness grabbed me. I struggled with him until the two of us were locked face to face. As this was going on the entire people had fallen on my people, beating them with sticks and there was a fierce fight. The second prosecution witness was aiming to put me down but he could not. I rather managed to and heavily floored him; this was the time my hat exhibit B fell. The fierce fight between my people and the second prosecution witness’s people was still going on. Meanwhile the people beat me with sticks but they got broken. In all about 30 people attacked us but they increased a lot during the fight. As I saw the size of the attackers increase like that and as my people were too young, I shouted for them to run away. I ran myself into the bush with my people.”
Yaw Boakye, who accepted responsibility for the killing, also gave this evidence:
“As we were proceeding towards the town we heard the sound of twin gong-gong in the town. As we went further, we saw a lot of people gathered ahead of us and others beside the road on our right side. Some of those on the road side were the second prosecution witness, Opanin Akwasi Osei, the first prosecution witness and some of the people engaged in litigation in land with the accused. As we reached the group the second prosecution witness shouted ‘Hei Boateng stop.’ The accused did not mind him but we turned to look at him. We continued to go. The second prosecution witness flung his cloth away and gripped the accused from behind. He shouted ‘Beat them, if anything happened it is only to Nkawkaw Police that it will go. ’ This was by the second prosecution witness. Those in his group rushed on us with sticks and cutlasses. The
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group ahead of us advanced towards us. The accused and the second prosecution witness were engaged in a struggle. The accused floored the second prosecution witness. The people rained their sticks and cutlasses on us. We broke a school fence and used the pieces and fought them with anything we could lay hands on. We captured some sticks from them and beat them, fighting fiercely with them. Someone stabbed me with a knife at my back during the fight four times. I have the scars. I turned and noticed some one going to stab me with a knife at my shoulder. When I saw this I dodged. It was a ‘Baffoe’ knife [jury say they know this type of knife]. When I dodged, the knife landed on my right upper arm. This is the scar. [Witness shows scars at back and on upper arm]. I held the hand of the man who was holding the Baffoe knife, twisted it, the knife fell from his hand and I stepped on it. I took the knife from the ground and stabbed him; I think on his right side of the stomach. He fell. Some one hit my back with a stick and another my right shoulder with a stick. The knife fell from my hand and I even fell on the man I stabbed. I got up and dashed away through the crowd. The general fight was going on as all this was happening. They continued to come on us, beating us. I had not seen the person I stabbed before. I did not know him but can recognise him. When I dashed through the crowd, I managed to escape, through the bush to Asunafo.”
The second defence witness, Mustapha Boateng, gave similar evidence in support of the defence case.
If the evidence of the defence is to be believed then, in the opinion of this court, the appellant must have suffered some provocation during the fight which resulted in the death of the deceased. But the issue is whether in the particular circumstances of this case it was incumbent on the learned trial judge to leave the issue of manslaughter to the jury. In the Nigerian case of R. v. Ekpo (1938) 4 W.A.C.A. 110 to which our attention has been drawn, the appellant was charged with murder, committed in the heat of a clan affray, after the appellant had been wounded. The deceased had also been wounded at the time and he had fallen. The appellant ran up to him and inflicted upon him a fatal wound with a matchet. The appellant was found guilty of murder, because the trial judge found that he did the act in revenge. On appeal, the West African Court of Appeal, in setting aside the conviction for murder by the judge, said at p. 110:
“Upon this point we feel bound to disagree with the trial Judge. The provocation consisted not merely of the arrow wound, but of the whole attack by the Edienes, of whom the deceased was one. To apply the real test, it is clear that upon the facts disclosed the deceased, if he had lived, could have been properly prosecuted in respect of the harm caused to the appellant. He was therefore one
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of those offering the provocation, and there is no doubt that the appellant committed the act whilst still in the heat of passion caused by this provocation.
For these reasons we think that the offence amounts to manslaughter only.”
In Ghana, the law as to manslaughter can be found in the provisions of sections 50, 51, 52, 53 and 54 of our Criminal Code, 1960 (Act 29). It is unnecessary to reproduce all these sections, but section 54, which, in the opinion of the court, is relevant to the issue to be determined reads as follows:
“(1) Notwithstanding proof on behalf of the accused person of any matter of extreme provocation, the crime shall not be thereby reduced to manslaughter if it appears—
(a) that he was not in fact deprived of the power of self-control by the provocation; or
(b) that he acted wholly or partly from a previous intention to cause death or harm or to engage in an unlawful fight, whether or not he would have acted on that purpose at the time or in the manner in which he did act but for the provocation; or
(c) that, after the provocation was given, and before he did the act which caused the harm, such a time elapsed or such circumstances occurred that an ordinary person might have recovered his self-control; or
(d) that he acted in a manner, in respect either of the instrument or means used or of the cruel or other manner in which it was used, in which no ordinary person would, under the circumstances, have been likely to act.
For the purposes of this subsection ‘an ordinary person’ means an ordinary person of the community to which the accused belongs.
(2) Where a person, in the course of a fight, uses any deadly or dangerous means against an adversary who has not used or commenced to use any deadly or dangerous means against him, if it appears that the accused person intended or prepared to use such means before he had received any such blow or hurt in the fight as might be a sufficient provocation to use means of that kind, he shall be presumed to have used the means from a previous intention to cause death, notwithstanding that, before the actual use of the means, he may have received any such blow or hurt in the fight as might amount to extreme provocation.”
The illustrations set out in the Criminal Code form part of the Code, and they are aids to its construction. An illustration of subsection (1) (b) of section 54 reads as follows:
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“A., who has long been seeking an occasion to fight in a deadly manner with B., is struck by B., and kills B. Here, if the jury think that A. put himself in B’s way for the purpose of taking any opportunity which might occur to fight with B., the crime of A. is not reduced to manslaughter by reason of the blow which he received from B.”
In the present case the evidence shows that long before the fight between the two rival parties took place, the appellant’s party had armed themselves with deadly weapons which they intended to use in the fight they anticipated with the other party. Again, though there is evidence that the appellant himself was prepared to use a deadly weapon against any adversary in the fight, there is no such evidence that the deceased was armed.
We think that, having regard to subsections (1) (b) and (2) of section 54 of our Criminal Code, the appellant cannot claim the benefit of any provocation he suffered during the fight, and consequently, we do not consider the learned trial judge’s failure to direct the jury on the issue of provocation fatal. We also think that R. v. Ekpo (supra) has no application to the facts of this case, for the Nigerian Criminal Code does not contain provisions similar or analogous to section 54 of the Criminal Code of Ghana: see Laws of Nigeria, (1923 Rev.), Criminal Code (Colony and Protectorate), Cap. 21, pp. 193—194.
The evidence that it was the appellant who killed the deceased was overwhelming, and the facts being what they are, this court is quite satisfied that no reasonable jury, if properly directed, could have failed to convict the appellant. Accordingly, the court is of the opinion that there was here no miscarriage of justice, and that the proviso to section 26 (12) ought to be applied. In the result, the appeal against conviction is dismissed.
DECISION
Appeal dismissed. S. O.
