COURT OF APPEAL, ACCRA
Date: 15 NOVEMBER 1973
ANNAN JA
CASES REFERRED TO
(1) R. v. Grunshie [1959] G.L.R. 125, C.A.
(2) Yeboah v. The State, Court of Appeal, 10 July 1967, unreported.
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NATURE OF PROCEEDINGS
APPEAL against the judgment of the High Court, Accra, that the appellant was guilty of a murder of the school watchman who was the initiator and aggressor of a fight during which the deceased was hit on the head and died. The facts are sufficiently stated in the judgment of the court.
COUNSEL
P. A. Adjetey for the appellant.
Asamoah, Senior State Attorney, for the Republic.
JUDGMENT OF ANNAN JA
Annan J.A. delivered the judgment of the court. The appellant was found guilty of the murder of a school watchman, Braimah Grumah, by a jury in the High Court, Accra, on 10 November 1972, and in his appeal to this court he raises seven grounds of misdirection in addition to the general ground that the verdict is unreasonable and cannot be supported having regard to the evidence. The prosecution’s case rested in the main on a statement made to the police by the appellant on the very day the incident occurred. In addition to the statement, exhibit A, the prosecution called the brother-in-law of the appellant, Emmanuel Lamptey, the first prosecution witness, and a watchman, Bukare Moshie, who lived near the scene. These witnesses, however, offered no direct evidence as to the circumstances in which the events leading to the death of Braimah Grumah had occurred and although Bukare Moshie described an occurrence which he said he had witnessed from a distance of 100 to 150 yards, it is reasonably safe to say that the main evidence relied on by the prosecution as to the commission of the offence of murder charged against the appellant, was the appellant’s own account given on the day of the incident.
In his evidence Bukare Moshie, the second witness for the prosecution, spoke of a fight between two people. Earlier he had heard shouts that some persons were fighting. In his own words this was what he said: “I rushed towards the scene. I saw a man on the ground and another man striking the one on the around with a stick about 100-150 yards away in a park. The man ran away. I was 100 yards away from them.” At the scene he saw Braimah Grumah lying down dead. He described Grumah as a thin tall old man. This witness was unable to identify either of the two combatants before one of them ran away and he could not say who was on the ground at the relevant time or who was hitting the other. The time was about 6.15 a.m.
The brother-in-law of the appellant, the first witness for the prosecution, Emmanuel Lamptey, gave an account of a conversation he had with the appellant in his own room at about the same time. According to this witness the appellant ran into his house and into his room at about 6.15 a.m. He was holding a cutlass and a club. The appellant told him that he had fought the watchman at the school and that he was sure the watchman had died. The accused’s version of the fight as
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told to this witness was that the watchman had hit him on the head with a club and that they had fought fiercely. This witness spoke of an old misunderstanding between the appellant and the deceased connected with the wife of the appellant.
Later that day the police visited the scene of the incident where they saw the body of Braimah Grumah in front of a school block in a flower bed. They put the age of the deceased at about 60 years and the doctor confirmed that the deceased was between 60 and 70 years old. On the body were wounds on the neck and the right hand, as well as a contusion on the left side of the forehead.
Later that day the appellant reported at the police station. A club, a cutlass and a sheath were later recovered by the police. The weapons were found in the room of Emmanuel Lamptey, the first prosecution witness, and the sheath was found hanging on the body of the deceased. When the appellant reported at the police station, what was described as a “little abrasion” was seen on his right finger. Two days later, upon examination by a doctor upon his complaint that he had been hit by an object on the head, the medical examination disclosed some injuries on two fingers. The doctor did not make any abnormal finding on the head and found nothing on him to show that he had been hit on the head with an object.
At the post mortem the doctor found abrasions on the left side of the face, over the right check bone, over the right shoulder and the right knee, as well as cuts on the left eyebrow and on the left side of the upper lip with loss of two teeth, with evidence of fresh bleeding from the gums in that area. The right clavicle or collar-bone was fractured. Internal examination disclosed a fracture at the base of the skull and associated with this fracture was haemorrhage of the base of the brain. The doctor’s opinion was that the external injuries could have been caused by a blunt instrument such as a stick or a club or a blow or impact on the head, and the internal injury at the base of the skull by a blow with club or a heavy fall on a stone or cement block. The deceased was hit more than once. In his opinion death was due to bleeding into the base of the brain as a result of the fracture at the base of the skull.
In his statements to the police the appellant gave a history of previous disagreement with the deceased. That was in 1968 and it was over the matter of the deceased having illicit relations with the appellant’s wife. The matter was gone into and settled. There was no further disagreement between the appellant and the deceased until 10 January 1972 when the appellant said he saw his wife in conversation with the deceased at the compound of a school at Sempe in Accra. The appellant did not take kindly to that and after some argument with his wife he warned her to desist from any illicit behaviour. According to the appellant after that incident the deceased, each time he saw him, abused him. He ignored these attacks. Five days after this fresh cause for disagreement, the appellant was returning from the toilet at some minutes after 6 a.m. when he met the deceased who renewed his verbal attacks
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on the appellant. There was an exchange of words about the deceased’s relationship with the appellant’s wife and the suspicions of the appellant in that regard. The verbal exchange led to blows. The appellant put the matter this way in exhibit E:
“At once the watchman hit me on the head with a club he was holding. I seized the club from him and the watchman stated that he was going to show me something. At once he pulled out a cutlass from its sheath and was going to cut my hand with it. In defence to that I raised the club I held to prevent him cutting my hand and in so doing the club hit his head and the cutlass fell down. I picked the cutlass and ran to the house of my brother-in-law.”
Two days later in another statement he said: “It was not my intention to kill the watchman but it happened during a fight between us.” The next statement of his version of the matter was made by the appellant at the preliminary hearing, and therein he gave this account:
“The deceased was then holding a club and when I refused to talk to him he hit my hand with it. We started fighting and he drew out a cutlass from a sheath and was going to cut me with it. I seized the cutlass and gave the deceased a very heavy blow. I hit him hard and he fell down.”
Finally, at the trial, the appellant in his evidence on oath, gave a vivid account of the previous state of disagreement occasioned by the deceased’s attitude to his wife and then narrated in greater detail the exchange of words which preceded the events which led to the death of the deceased. This is the account he gave:
“I had not completed my sentence when he raised the club and he hit me on the left side of my head. Grumah held my cloth and tried to twist it around me. I held the club, exhibit C. We struggled over the club, exhibit C. Grumah placed his foot on my left foot and he tried to push me down. I twisted the stick and it fell down. Grumah held the cloth towards my neck and I gave him a blow on the left side of his chest. Grumah put his hand into his gown by the side of his chest and pulled out exhibit D, a cutlass. At that time my cloth had fallen and got to my thighs. I moved to the side where the club was lying and picked it. I then realised that as he had told me I would fuck my mother’s arse that he was then serious. He raised the cutlass, and attempted to slash me with it. I raised the club to ward it off and in doing so the club hit his head. Grumah stretched the cutlass to stab me, I hit him with the club and the cutlass fell down. I collected the cutlass and the club and ran away.”
It is reasonably clear from the total evidence for the prosecution that none of their witnesses was in any position to give an account of the circumstances in which the exchange blows had started. The second
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witness, Bukare Moshie, saw the tail end of the incident. However in his account, one person was on the ground and the other was on top of him, both were fighting with the one on top striking the other who was on the ground. It was the one on top, however, who got up and ran away, leaving the other dead on the ground.
On this evidence the jury returned a verdict of guilty of murder against the appellant. It seems clear in the light of this evidence that that verdict was not a true reflection of the evidence and was manifestly unreasonable and not supported by the evidence. There was clear evidence of provocation offered to the appellant by the deceased by the blow which the latter struck him with the club and the subsequent struggle and fighting over the club. That was an unlawful assault and battery committed against the appellant by the deceased who was the aggressor. That unlawful assault and battery was of a very violent nature and was inflicted with a heavy instrument — the same instrument which was later used by the appellant on the deceased. Again apart from the violence of that unlawful attack on the appellant, there were words and other circumstances of insult accompanying that act. The deceased had made a rude exclamation about the mother of the appellant and one which a good many people may well find difficult to let pass. It seems reasonably clear that in the particular circumstances of this case the appellant was greatly provoked by the initial conduct of the deceased. The verdict of guilty of murder therefore cannot be supported.
Counsel for the appellant however has argued that the proper verdict on the evidence should have been one of acquittal and that if the jury had been carefully, clearly and adequately directed they would have returned that verdict. In the circumstances of this case a verdict of not guilty could only have been returned if the jury found that the appellant acted in self-defence or if they were left in reasonable doubt whether he so acted. This would mean that the prosecution had failed to discharge the onus on them to prove that any harm inflicted on the deceased by the appellant was unlawful.
Obviously there was before the jury evidence of self-defence, that is, justification for the harm, and the issue of self-defence was in fact left to the jury. The matters then which fall for consideration in this appeal in a nutshell are: first, whether the jury were properly and fully directed as to the law on justification in relation to the matter of self-defence and on the evidence relating to it; and secondly, whether if they were properly directed, the failure of the jury to acquit is unreasonable and contrary to the evidence.
With regard to the directions of the trial judge on self-defence, counsel submitted that the words used by the trial judge in this respect were not apt to convey to the jury a correct and clear statement of the law on the subject. With this submission we disagree. First of all the trial judge did read and explain section 37 of the Criminal Code, 1960 (Act 29), to the jury. Then he said:
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“To succeed on such a defence it must be quite apparent that no chance of escape was available to the accused. That to save himself grievous bodily injury he had to hit back. That his back was to the wall as it were and the question really was the deceased’s life against his. It is at this point of dire extremity where only one mode of escape avails that the law permits such serious injury to be inflicted on the assailant even to the point of killing; where there is room for manoeuvre and escape the defence does not lie.”
The language of the trial judge was cast, in places, in rather colourful terms and the matter perhaps could have been put by others in more simple and direct terms. Such language however has the sanction of authority (see Archbold, Criminal Pleading, Evidence and Practice (36th ed.), p. 923 and the cases quoted therein) and may not be lightly dismissed as an inaccurate representation of the law. It seems however that the position may well be put with great force that in the circumstances of today and particularly in the context of the general level of ability among jurors in this country, directions which seek to echo expressions of law beloved of judges and lawyers and having their origins in the hallowed past, ought not to be preferred to more direct and more simple expressions. Our rules of criminal law are contained in a Code and it is to the Code in the first place that references must be made in stating and explaining any specific rule of the criminal law. Two well-known cases on self-defence were cited by counsel in the course of argument. These are R. v. Grunshie [1959] G.L.R. 125, C.A. and Yeboah v. The State, Court of Appeal, 10 July 1967, unreported. The former case was considered in the latter and commented upon therein. In view of those comments which in effect doubted the authority in part of Grunshie’s case we do not think that the case need be cited anymore in reference to the rules of the Criminal Code, 1960 (Act 29), as to self-defence. We think Yeboah’s case does state these rules clearly. We however make a few pertinent observations.
Section 37 of our Code justifies force or harm “which is reasonably necessary” for the defence of a person against any crime. That is the general proposition of our criminal law as to self-defence, and that proposition draws a clear distinction between force or harm simpliciter and force or harm which is intended to cause death or which is likely to achieve that result. Force or harm which is not intended to or which is not likely in itself to cause death may be justified as lawful if such force or harm is reasonably necessary for the defence of a person from an imminent crime or to prevent such a crime. Thus if you aim a blow at my head with your fist I may strike your hand away or push your hand. Again if you aim at me with an instrument I may strike at you
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with an instrument to disable you or to stop your criminal attack on me. Where however force or harm is intended to or is likely in the circumstances to cause death, then for such force or harm to avoid the effect of the basic rule that all force or harm is unlawful, there must be evidence showing that this was done in circumstances of extreme necessity. Where there are no circumstances of extreme necessity, there cannot be made out any case that force or harm is justified on the ground of prevention of or defence against imminent criminal conduct.
The essence of self-defence is the right of a man to protect himself against any criminal attack on his person. A man has the right to the preservation of his whole person or any part thereof. Where that right is immediately invaded or threatened by criminal conduct he is entitled to repel the invasion or nullify the threat.
What amounts to extreme necessity in terms of section 37 of the Criminal Code has not been defined in the Code and this must have been on purpose, and no useful purpose would be served by attempting a definition. What may be done is to give instances of what may amount to extreme necessity, and care must be taken by the judge not to give the impression to a jury that circumstances of extreme necessity could only arise in the instances enumerated by him. Clearly if a man has his back to the wall in a fully or partially enclosed area facing an uplifted cutlass or heavy club coming down on his head that would be a matter of life or death for him. If he found himself in such a situation in an open space a person may retreat as far as he can go and then turn upon his assailant. However it cannot be the law that in every case, even in an open space, a victim of a murderous or other serious felonious attack must provide some evidence that he had retreated to some distance. What the law requires is evidence of circumstances of extreme necessity. So where there is a safe opportunity for retreat killing cannot be justified. So also where a murderous assailant has been disarmed or disabled in circumstances which show that he is then in no position immediately to resume his criminal purpose or act then killing cannot be justified. However mere opportunity to escape or retreat or the fact of disarming or disabling such an assailant by itself cannot in all cases make it impossible to justify a killing and such may be the position where to retreat or attempt to escape would immediately expose the victim to further danger to his life.
Applying these observations to the circumstances of the appellant, there is the evidence of the second witness for the prosecution of fighting between two persons on the ground with one on top striking the one on the ground. There is also the appellant’s own version that he was in fact engaged in a fight with the deceased before the fatal blow was struck. There is also the medical evidence that the loss of teeth of the deceased
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could have been caused by a blow with a human fist. Again the position of the fatal injury at the base of the skull does suggest that that blow was given from a position behind the head of the deceased. The appellant’s account that he hit the deceased as the latter had raised a cutlass to stab him does not appear to be borne out by the medical evidence. On his account it must have been that final blow which did the damage. We are satisfied that that blow was struck in the course of a fight with deadly weapons between two persons whose emotions had been aroused to fever pitch by an antecedent altercation about illicit conduct affecting the wife of one of them. Tempers must have been running high particularly on the part of the appellant since two women who were very close to him had been the butt of insulting remarks by the deceased, namely, his wife and mother.
We take the view that this was a case of loss of self-control through extreme provocation and not a case of self-defence. We find no instances of misdirection in the summing-up sufficiently grave to occasion a miscarriage of justice. We agree that the summing-up was in places perhaps not as lucid or as straightforward in presentation as would have been desirable. This however did not go to the root of the matter and taken as a whole we think the summing-up was fair and accurate. In the result we allow the appeal and quash the conviction for murder and set aside the sentence of death and in place of the conviction we convict the appellant of manslaughter.
The appellant is sentenced to three years’ imprisonment with hard labour commencing from the date of his conviction.
DECISION
Appeal allowed.
Conviction for manslaughter substituted.
S. E. K.
