ADAMU DAGARTI v. THE STATE [1966] GLR 195

Division: SUPREME COURT

Date: 21 FEBRUARY 1966

Before: SARKODEE-ADOO C.J., BRUCE-LYLE AND SIRIBOE

JJ.S.C.

CASES REFERRED TO

(1) R. v. Dinnick (1909) 3 Cr.App.R. 77; 74 J.P. 32; 26 T.L.R. 74, C.C.A.

(2) R. v. Bio (1945) 11 W.A.C.A. 46.

NATURE OF PROCEEDINGS

APPEAL against a conviction for murder entered at the Criminal Session, Tamale. The facts are fully set out in the judgment of the court.

COUNSEL

Quist for the appellant.

S. M. Boison, Principal State Attorney, for the respondent.

JUDGMENT OF BRUCE-LYLE J.S.C.

Bruce-Lyle J.S.C. delivered the judgment of the court. This is an appeal against a conviction for murder dated 5 November 1963 at the Criminal Session, Tamale. The case for the prosecution is that on 30 November 1962 the deceased Kojo Banda who was a lorry driver’s mate travelled on duty in his master’s lorry No. AF 1958 from Kumasi to Hamile in the Upper Region; apart from his master, there was a co-mate by name Dina Dagarti, the second

[p.196] of [1966] GLR 195 prosecution witness on the lorry. They arrived at Hamile at about 9 p.m. and the master Kwame Bonsu left his two mates on the lorry at the Hamile lorry park where other vehicles were parked and he went to a nearby house to sleep. Whilst the first prosecution witness and the deceased were sleeping in the body of the lorry, the appellant who carried articles of clothing went to the lorry and asked the deceased to allow him to sleep in the lorry; the appellant then climbed into the body of the lorry and lay near the deceased. The second prosecution witness woke up in the middle of the night and noticed that the appellant was lying behind the deceased but thought it was one of the mates of the other lorries who had come to sleep there and he therefore went off to sleep; a few moments later he was awakened by the shouts of the deceased and saw the deceased and the appellant struggling on the ground near the lorry; the second prosecution witness shouted for help and he then noticed that someone had flashed a torchlight and by the aid of that flash he noticed that the appellant was holding a cutlass and was cutting the deceased with it. The second prosecution witness then ran away to the house to call his master. In the meantime the third prosecution witness Kwabena Appiah, a driver of one of the lorries in the park who heard the deceased shout that he was being killed, rushed to the spot and saw the appellant on top of the deceased on the ground and that the appellant had cut the deceased in his stomach and his intestines had come out. The third prosecution witness asked the appellant to get off the deceased; the appellant got up and chased the third prosecution witness with the cutlass but the witness ran and hid in front of the lorry; the appellant then went to the third prosecution witness’s lorry which was behind the deceased’s lorry and with the cutlass struck the left front mudguard and also damaged the front head lamps. The appellant then started to chase anyone he could lay eyes on and ran towards a certain store and the third prosecution witness then went into his lorry and drove away towards Nandom. When the second prosecution witness returned to the lorry with his master they did not see the deceased and so they boarded their lorry and drove away towards Nandom; about 500 yards away from the scene of the incident, they saw the deceased standing on the lorry road and holding his intestines; the deceased told his master that “the man had killed him.” The second prosecution witness and his master put the deceased on the lorry and drove him to the police station where they made a report to the police.

The police took the deceased to Jirapa hospital at 6 a.m. on 3 November 1962, in a critical state and he died shortly afterwards. Before the deceased died he was able to tell the police briefly what had happened. [p.197] of [1966] GLR 195

The appellant, after cutting the deceased, ran into a nearby mosque and started shouting and threatening to cut anyone including the policemen who got near; the police tried to persuade him to surrender himself but to no avail. Escort Police Constable No. 1004, the eighth prosecution witness, later got to the scene and went to the entrance of the mosque and the appellant then threw a stone at him and asked him whether he had come to arrest him; the eighth prosecution witness turned back and hid himself when the appellant rushed out of the mosque and started chasing an old Moshie man; the eighth prosecution witness then chased the appellant when the appellant suddenly turned round and struck the eighth prosecution witness on his steel helmet but the eighth prosecution witness used his riot baton on the appellant and a struggle ensued and both of them fell to the ground. With the help of other policemen, the appellant was disarmed and was taken to the police station.

The medical officer, the first prosecution witness, in his evidence as to the injuries found on the deceased deposed as follows: “On inspection I found two transverse wounds in the upper abdomen approximately three inches in length and separated by a small bridge of skin. Through these wounds many loops of small intestines in the transverse colon were seen. There was a puncture wound on the right lower abdomen. There was another puncture wound on the right lower chest which penetrated through the diaphragm into the liver itself. There was an incised wound in the corner of the mouth on the right side which penetrated the mucosa. There was another wound across the lower region of the nose which penetrated through the right nostril. There was a laceration of the right forearm on the volar (niver) surface approximately two inches in length and there was a deep gash approximately three inches in length through the muscle. There were abrasions of the skin of the left shoulder and on the skin of the left knee. On inspection of the loops of the bowel there were two incised wounds of the ileum which were repaired and two or three punctured wounds which were also sutured. On the transverse column there were three more punctured wounds which were closed. There was an extra wound on the back of the right chest which was bleeding severely.”

In his opinion death was due “to shock and exsanguination.”

The appellant in his cautioned statement to the police after he had been charged said inter alia: “On Friday 2 November 1962 I left for Hamile. I arrived at Hamile in the night. At Hamile, I slept under a shed. Whilst I was sleeping I felt cold. In view of that I went to a nearby lorry to [p.198] of [1966] GLR 195 sleep. When I entered the lorry I saw two people sleeping in it. One of the people told me to go and sleep behind the Dagarti man, and I did so. When I was sleeping I found that the man I was sleeping with wanted to kill me. In view of that I took a knife which was with me and stabbed him. He fell from the lorry. I also came down from the lorry and stabbed him again. Afterwards I found that the knife had bent and I threw it away. I then saw a certain man sleeping nearby. I went to him and found a cutlass lying by his side. I got hold of the cutlass and the man woke up. He held the cutlass and I told him to leave it otherwise I will kill him; he left the cutlass for me. I went to the place where some lorries were parked and started striking the lorries with the cutlass. Afterwards I saw so many people coming to arrest me. I then ran to the mosque and hid myself. The people came to the mosque to arrest me but they could not do it. I was in the mosque until daybreak. I then came out from the mosque and saw the people. I started chasing one of them with the view to kill him. As I was chasing him I saw a policeman behind me. I turned to the policeman and in an attempt to use the cutlass on his head it hit the hat he was wearing. The policeman hit me with a stick he was holding. He then gripped me and both of us fell down; there and then some people rushed on me and arrested me to the police station and thence to Wa hospital. In fact I have done wrong for killing that man, but because of God you should forgive me.”

In his evidence-in-chief at the trial, the appellant put up the following defence:

“I am sick. Lomo put me in fetish at Ahafo Akyerensua. I know I am facing a charge of the murder of Kwadwo Banda. I travelled to Hamile towards the end of last year. I was at Briepie and during the night I dreamt that I was being wanted. A woman I was living with told me to stand outside for her to collect my belongings for me. I said if that be the case I would collect all my things and go away. I went and spent the night at P.W.D. and left for Techiman the next day. From Techiman I went to Ouagadougou. From there I came with one Alhaji to Gbelipie village. I was farming for him. I spent a week. I couldn’t sleep because I was dreaming. Alhaji was not home but I told his wife to allow me to go to my hometown, as I was being wanted by my people. One Mallam asked me to stay for three days. He promised to give me some writings to wash myself before going. I bathed with the medicine for three days. I went to bed and there was a cutlass I took to bed. I took it, I was cutting myself, I was being held.

[p.199] of [1966] GLR 195

I knocked my head against the door. I urinated. I saw all these things happening. The next morning Alhaji’s wife gave me two shillings. I boarded a lorry, sold my covercloth. From Wa I came to Hamile. There was a certain woman making a chop bar. When I got there were two women. I greeted them. I went and got some tea. I said my prayers, went back to the bar and sat by one Moshie man. He said he knew my hometown. I asked one driver, whether he knew Wasaw. He said they were travelling there and I said I would join them. When I went to bed I lay by the Moshie man. He was holding a knife. I heard something like my father calling me. I got up and saw someone standing by the lorry looking at me. He jumped into the lorry. I called the driver and he answered. He asked me where I was going and I said I am a Dagarti man. I was feeling cold and I wanted to go to my hometown. He asked me to lie at the back of one Dagarti man. I went and lay there. Five minutes later the driver’s stomach was swelling up. One person from another lorry came to the lorry. Two people were already sleeping there. The person whose stomach was swelling had his eyes getting big. This man jumped from the lorry. I wanted to die but I was not dying. Something told me that was the man who wanted to kill me. I got my knife and stabbed him. I wanted to cut his throat but I couldn’t cut it. I shouted but nobody came. Something told me to leave him and I threw away the knife. Someone flashed a torchlight and I left this man. I was then on him. I went and took the Moshie man’s knife and put it on the ground. I used it in breaking the head lamps of the vehicles. I struck a lamp which was hanging. The man I wanted to kill was going away. I gathered some earth and threw at him. The man came and took his lorry. One drove away, but the second man couldn’t spark his lorry. He went towards Nandom. He was coming back, I gathered stones and threw at him. I heard some noise and I rushed into the mosque. People were coming there, I didn’t know them and I was striking the floor with the cutlass I was holding. Towards the morning someone who was in black dress came in and threw a stone at me. I picked the stone and threw at him. At about 6.30 a.m. I came out. There were many people there. They were all Moslems. Two of them wore hats. The policemen put me on the ground. Someone held my leg. They took off my trousers. One of them said my hand was cut off. They asked a driver to take me to Wa. Nobody wanted to take me. Police came and took me to Wa hospital. My hand was stitched. I began to shout ‘Hey Hey.’ [p.200] of [1966] GLR 195

After two days I was sent to the police station and from there to the prison and then to Tamale. I saw all that happened at Hamile.”

Under cross-examination the appellant maintained that he knew what he was doing when he stabbed the deceased.

After a concise summing-up, the jury returned a unanimous verdict of guilty of murder and against this verdict the appellant has appealed to this court. Learned counsel for appellant has argued this appeal on the following grounds:

“(1) That the learned trial judge misdirected himself and the jury by non-direction on the defence of insane delusion.

(2) That the learned trial judge altogether failed to put the case for the defence adequately and fairly before the jury.”

In support of the first ground, learned counsel for the appellant has submitted that the evidence on record makes it abundantly clear that the accused was labouring under an insane delusion when he stabbed the deceased and since that evidence was unchallenged, it was obligatory on the part of the learned trial judge to direct the jury thereon and failure on the part of the learned trial judge to do so amounts in law to a misdirection by non-direction.

On the first leg of learned counsel’s submission that there is adequate evidence on record which is unchallenged that the appellant acted under an insane delusion, we are in complete agreement, and learned principal state attorney has rightly, in our view, conceded to this submission. There is no doubt whatsoever that in his statement to the police, exhibit B, and in his evidence-in-chief, the defence of insane delusion is apparent and there is also no doubt that this was in no way challenged and this therefore necessitates a close scrutiny of the summing-up of the learned trial judge to find out whether there is any direction to the jury on this defence which appears to us to be the sole defence relied upon at the trial. The only part of the summing-up where there is some attempt at directing the jury on insanity is as follows:

“Defence of insanity raised. Section 27 of Act 29 read and explained. Burden on defence to establish insanity within the meaning of section 27 of Act 29. Burden not as heavy as that on prosecution to prove its case. Consider accused’s evidence under cross-examination where he said he knew what he was doing was not good, and he knew his act on the deceased was painful. Jury alone to decide whether accused was insane.” Section 27 of the Criminal Code, 1960,1 referred to by the learned [p.201] of [1966] GLR 195 trial judge reads as follows:

“When a person is accused of crime, the special verdict provided for by the Criminal Procedure Code in the case of insanity shall only be applicable—

(a) if he was prevented, by reason of idiocy, imbecility, or any mental derangement or disease affecting the mind, from knowing the nature or consequences of the act in respect of which he is accused; or

(b) if he did the act in respect of which he is accused under the influence of an insane delusion of such a nature as to render him, in the opinion of the jury or of the Court, an unfit subject for punishment of any kind in respect of such act.”

It is clear that this section makes available two separate and distinct defences and no doubt the learned trial judge erroneously thought that the defence relied upon by the appellant fell within the first leg of the section. Apart from the portion of the summing-up quoted, supra, there is nowhere in the summing-up any direct or indirect direction on the defence of insane delusion and the application of the second leg, i.e. subsection (b) of section 27. It is a well-established principle of the criminal law and more especially, in capital offences, that the defence put up, however weak, should be adequately and fairly put to the jury and that failure on the part of the trial judge to do so will lead to a conviction being a quashed: see R. v. Dinnick2 and R. v. Bio.3 We think that in this particular case the failure of the learned trial judge to direct the jury on this sole defence of insane delusion amounts in law to a misdirection by non-direction which is fatal to the conviction and this ground should therefore succeed. We are also of the opinion that the above reasoning disposes of the other ground of appeal.

In view of the above considerations, it is our considered opinion that if the jury had been adequately directed on the defence of insane delusion, they might probably, on the evidence, have returned a verdict of guilty but insane. We would therefore allow the appeal set aside the verdict, conviction and sentence of death and substitute the special verdict.

DECISION

Appeal allowed.

Special verdict substituted.

S. K. T.