APPIANING v. THE REPUBLIC [1972] 1 GLR 123
COURT OF APPEAL
Date: 27 JANUARY 1971
BEFORE: SOWAH, ANIN AND ARCHER JJ.A.
CASES REFERRED TO
(1) Practice Note (State v. Amoh) [1961] G.L.R. (Part II) 637, S.C.
(2) Kwaku Mensah v. R. (1945) 11 W.A.C.A. 2; [1946] A.C. 83, P.C.
(3) (Mancini v. Director of Public Prosecutions [1942] A.C. 1; 58 T.L.R. 25; [1941] 3 All E.R. 272; 28
Cr.App.R. 65, H.L.
(4) Bullard v. R. [1957] A.C. 635; [1957] 3 W.L.R. 656; 42 Cr.App.R. 1; 121 J.P. 576, P.C.
(5) R. v. Porritt [1961] 1 W.L.R. 1372; [1961] 3 All E.R. 463; 125 J.P. 605; 45 Cr.App.R. 348, C.C.A.
(6) State v. Ayi Grunshie [1961] G.L.R. (Pt. II) 633, S.C.
(7) State v. Grumah, Supreme Court, 12 November 1965, unreported; digested in (1966) C.C. 35.
(8) R. v. Ojojo [1959] G.L.R. 207, C.A.
(9) Seidu Grumah v. The State [1963] 2 G.L.R. 423, S.C.
(10) Ofosu v. The State [1963] 2 G.L.R. 417, S.C.
(11) R. v. Hopper [1915] 2 K.B. 431; 48 L.J.K.B. 1371; 113 L.T. 381; 79 J.P. 335; 31 T.L.R. 360; 59
S.J. 478; 25 Cox C.C. 34; 11 Cr.App.R. 136, C.C.A.
(12) Tuberville v. Savage (1669) 1 Mod. 3; 86 E.R. 684.
(13) Mead and Belt’s Case (1823) 1 Lew. C.C. 184; 168 E.R. 1006.
(14) Stephen v. Myers (1830) 4 Car. & P. 349; 172 E.R. 735.
(15) Kofi Mensah v. R. (1952) 14 W.A.C.A. 174.
(16) State v. Yeboah, Court of Appeal, 10 July 1967, unreported.
[p.125] of [1972] 1 GLR 123
NATURE OF PROCEEDINGS
APPEAL against a conviction for murder by the Accra High Court. The facts are fully set out in the
judgment of Anin J.A.
COUNSEL
Kwaku Boateng for the appellant.
Mrs. J. A. Amankwa, Senior State Attorney, for the respondent.
JUDGMENT OF ANIN J.A.
Anin J.A. delivered the judgment of the court. On 26 June 1970 we allowed this appeal from a conviction for murder by the Accra High Court dated 5 February 1969; and substituted for the mandatory death sentence, a conviction for manslaughter and sentence to a term of ten years’ imprisonment with hard labour. We now give our reasons for our judgment.
The appellant herein stood trial on indictment charged with the offence of murder, contrary to section 46 of the Criminal Code, 1960 (Act 29). The particulars of offence were that he murdered No. 8767E/CPL Chin-Lowu Losso (corporal Losso, for short) on 25 January 1967 at Asikasu near Adeiso. The case for the prosecution was that on the day in question corporal Losso travelled to Asikasu to effect the arrest of the appellant, against whom a complaint of assault had been lodged at the Adeiso Police Station by one Felicia Ayorkor Annan, the first prosecution witness. According to the prosecution, when the first prosecution witness and corporal Losso arrived at Asikasu, they saw the appellant in the street near a carpenter’s shop. Corporal Losso then told the appellant to follow him to the police station. The appellant, however, asked corporal Losso to permit him to go home in order to get dressed up. When they got to the appellant’s house, he made straight for his room and shut
the door, leaving the first prosecution witness and corporal Losso standing behind the door. The first
prosecution witness and corporal Losso made fruitless attempts to persuade the appellant to open the door by knocking at the door. When the appellant failed to open the door, corporal Losso sent the first prosecution witness to go back to the police station and ask for more hands. During the first prosecution witness’s temporary absence, the appellant opened the door and corporal Losso entered the room. A struggle then ensued between the appellant and corporal Losso as a result of which the latter received an injury on the forehead and was seen by prosecution witnesses to be bleeding profusely. The struggle continued outside the room, i.e. into the yard of the house; and the appellant was seen holding a hammer in his hands, which was later taken away from him by one of the prosecution witnesses. With the aid of this witness, the appellant was overpowered and taken to Adeiso Police Station. Corporal Losso and the said witness, who were both injured, were later sent to Nsawam Hospital for treatment; but corporal Losso died of his skull injuries four days later. The medical officer, the ninth prosecution witness, who performed the postmortem examination on the
deceased corporal Losso, testified that his death was the result of a subdural heamatoma caused by a
fracture [p.126] of [1972] 1 GLR 123 of the skull on the forehead. In his opinion, the rounded part of a hammer could have caused the circumscribed fracture he observed on the skull of the deceased.
In his sworn testimony, the appellant recounted his involvement in a quarrel with the complainant, the first prosecution witness, at his place of work and how he had had to return home. He then took some alcohol, and reported the incident to members of her family .He returned home and was resting in the first of his two adjoining rooms when he heard persistent knocks at his door. The door was forced open by two men holding truncheons and they rushed inside, as he still rested in his camp-bed. He noticed the complainant, the first prosecution witness, standing at the entrance to his room. One of the two men who rushed inside his room ordered him to accompany them to the police station. He refused to accompany them; because he has explained that when he challenged them for their warrant for arrest and identity cards, they were unable to produce the same. The two men got hold of him with a view to forcing him out. He succeeded in pushing one of them who fell down into the adjoining room where he had dismantled a spraying machine. As he continued to struggle with the one, he saw the other man, whom he had pushed down, picking up an iron instrument. The latter tried to hit him (the appellant) with it; but he pushed the other man towards him and his colleague hit him with the said instrument. Both men rushed on him and overpowered him, and beat him with the truncheons. He shouted for help. Later he was conveyed in a lorry by the two men to the Adeiso Police Station together with a parcel of iron implements consisting of a shaft, screwdriver and a hammer which they collected from his second room. He denied having struggled with anybody outside his rooms. Under cross-examination, he admitted to a struggle having taken place inside his rooms; but explained that the only part played by him was to free himself. He did not notice what happened to the man he pushed down into the second room. In his fair and careful summing-up, the learned trial judge expounded to the jury the law of murder; the law relating to the burden of proof; and reviewed the salient parts of the evidence adduced by both the prosecution and the defence. He was at some pains to point out the various inconsistencies and contradictions in the evidence of the prosecution witnesses. Generally speaking, his summing-up was favourable—perhaps too favourable—to the accused. By returning a unanimous verdict of guilty of murder against the accused, the jury must be deemed to have rejected the appellant’s defence that the deceased corporal Losso was wounded accidentally and accepted the prosecution’s case that it was the appellant who deliberately inflicted the fatal blow on the deceased’s forehead and thereby caused his death.
Having regard to the evidence on record, it cannot be properly contended that the jury’s verdict was
unreasonable. To his credit, learned counsel for the appellant abandoned in midstream his ground of
appeal based on the unreasonableness of the verdict and concentrated on the following ground of appeal: [p.127] of [1972] 1 GLR 123 “That the trial judge misdirected the jury by non-direction as to the alternative defence of provocation which could reduce murder to manslaughter in the special circumstances of this case.” In the course of his summing-up to the jury, the learned judge referred to the circumstances in which murder might be reduced to manslaughter and explained to them the law as contained in sections 52, 53 and 54 of the Criminal Code, 1960 (Act 29). He then continued as follows: “But in this case the question of provocation reducing the offence to one of manslaughter cannot arise since the accused person’s defence is a total denial of the offence.” He likewise withdrew from the jury’s consideration the defence of justification, after referring them to sections 30, 31 and 37 of Act 29. His stated reason for so doing was that, “again this defence does not arise for the same reason as is given above, i.e. because the accused person’s defence is a total denial of the offence.”
We are of the opinion that the learned judge’s stated reasons for excluding the defence of provocation and justification from the consideration of the jury are, with respect, untenable. In the first place, it is a non sequitur that simply because an accused person’s defence is one of total denial of the offence, circumstances of either partial excuse (e.g., provocation) or absolute excuse (justification) cannot arise on the whole of the evidence.
In a trial before a jury, the judge is enjoined by section 277 of our Criminal Procedure Code, 1960 (Act 30), to “sum up the law and evidence in the case” when the case for both the prosecution and the defence is closed. He is clearly bound to put to the jury such issues of law and material pieces of evidence as appear from the whole case. See also Practice Note (State v. Amoh) in [1961] G.L.R. (Pt. II) 637-639, S.C. The fact that the accused person’s defence is a total denial of the offence cannot absolve the judge from, his mandatory duty. He must put to the jury such questions as appear to him properly to arise from the whole evidence even though counsel may not have raised the same point. In murder trials, it is incumbent on the judge to direct the jury’s attention to the whole evidence in relation to the question whether or not the offence might be manslaughter only on the ground of provocation or any other ground in cases where the evidence adduced warrants such a view to be taken. More particularly, the defence of provocation and indeed all other defences or matters of extenuation or of justification, must be put before the jury if there is supporting evidence. It matters not whether the defence in fact rely upon such defence or matters of extenuation or justification. The true legal position is as contained in the opinion of the Privy Council in the leading Gold Coast case of Kwaku Mensah v. R. (1945) 11 W.A.C.A. 2 at pp. 5-6, per Lord Goddard: “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. This was distinctly laid down in R. v. Hopper [p.128] of [1972] 1 GLR 123 [1915], 2 K.B. 431, a case in some respects resembling the present, more especially in that the line of defence adopted was that the killing was accidental and no attempt had been made at the trial to rely on provocation. This ruling was expressly approved by the House of Lords in Mancini v. R. [1942], A.C.1. 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.” The above-stated principle is also contained in the headnote to Mancini v. Director of Public Prosecutions [1942] A.C. 1, a decision of the House of Lords: “On the trial of a person charged with murder it is the duty of the judge in his summing-up to deal adequately with any view of the evidence given which might reduce the crime to manslaughter. The fact that the defending counsel may not have stressed the possibility of such an alternative case does not relieve the judge from directing the jury to consider it, if there is material which justifies such a direction, but the possibility of a verdict of manslaughter instead of murder arises only when the evidence is such as might satisfy the jury as the judges of fact that the elements are present which would so reduce the crime, or might induce a reasonable doubt whether this may be the right view.” In Bullard v. R. [1957] A.C. 635, a decision of the Privy Council, reference was again made to the above principles, and it was further held that, to deprive a man on trial for murder of the right to have the issue of manslaughter left to the jury, if there is any evidence on which such a verdict can be given, must of necessity constitute a grave miscarriage of justice. See also R. v. Porritt (1961) 45 Cr.App.R. 348 at p. 356, C.C.A. and the following local decisions of the former Supreme Court, all approving and following the above-stated rule: State v. Ayi Grunshie [1961] G.L.R. (Pt. II) 633, S.C.; State v. Grumah, Supreme Court, 12 November 1965, unreported; digested in (1966) C.C. 35; R. v. Ojojo [1959] G.L.R. 207 at p. 211, (a decision of the Court of Appeal); Seidu Grumah v. The State [1963] 2 G.L.R. 423, S.C. and Ofosu v. The State [1963] 2 G.L.R. 417, S.C.
It is pertinent to note in passing that as a matter of forensic experience, it is usually inadvisable and
impracticable for the defence counsel to maintain such mutually inconsistent defences as total denial or the [p.129] of [1972] 1 GLR 123 defence of alibi in the one hand, and a plea of provocation or justification on the other; since the one defence cancels or tends to cancel out the other, and the jury may on that score, be well inclined to disbelieve the whole defence. Thus in both R. v. Hopper [1915] 2 K.B. 431, C.C.A. and Kwaku Mensah v. R. (supra), the line of defence adopted was that the killing was accidental and no attempt was made at the trial to rely on provocation. Nevertheless, it was held by the appellate courts that 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 trial judge must put that question to the jury.
In the present case, since the prosecution’s case was accepted as truthful by the jury, then there was
clearly evidence of a violent struggle between the truncheon-carrying deceased and the appellant in the latter’s room and it continued in the yard, in the course of which the deceased sustained a fracture of the skull that proved fatal. It will be recalled that there was no eye-witness to the struggle inside the room apart from the appellant; but it is significant that when the deceased was first noticed by prosecution witnesses as he emerged from the room for the continuation of the struggle in the yard, he was bleeding profusely on the forehead. Even though the appellant was seen in the yard holding a hammer in his hands, there was no evidence that he actually used it on the deceased—not at any rate, in the yard of the house. Under section 52 of our Criminal Code, 1960 (Act 29), intentional homicide is reduced to manslaughter if, among other matters of extenuation, it is established that the accused person was deprived of the power of self-control by such extreme provocation given by the person killed as is mentioned in section 53. Among the matters which may amount to extreme provocation is an unlawful assault of such a kind as to be likely to deprive a person being of ordinary character and in the circumstances in which he was of the power of self-control. Then section 54 excludes the benefit of provocation, inter alia, where the accused
was not in fact deprived of the power of self-control and also where, after the provocation, such a time elapsed or such circumstances occurred that a person of ordinary character might have recovered his self-control. In the present case, the appellant admitted having struggled and pushed down one of two men who rushed on him in his room. The prosecution, however, contended that only one man (the deceased) struggled with the appellant inside the room. There was, however, evidence from the appellant, the only eye-witness of the struggle inside his room, of a violent assault committed on him by the deceased who allegedly beat him up with a truncheon. It will be recalled that the appellant resisted arrest inside the room because, according to him, the policemen could not produce either a warrant or identity cards when requested to do so. According to the appellant, the only part he played in the struggle was that he tried to free himself; in [p.130] of [1972] 1 GLR 123
other words, he was the victim of a savage and unprovoked assault and battery. Corporal Losso received the fatal forehead wound in the course of one continuing struggle in the appellant’s room at a time when the appellant was still smarting under a provocation just received.
That being so, the benefit of provocation cannot, on the uncontradicted facts of this case, be excluded on the ground either that the appellant was not in fact deprived of the power of self-control by the
provocation (see section 54 (1) (a) of Act 29); or that after the provocation was given, such a time elapsed or such circumstances occurred that a person of ordinary character might have recovered his self-control (see section 54 (1) (c)). Furthermore, in the absence of any clear evidence of the instrument or means used by the appellant to inflict the fatal injury on the deceased’s forehead, provocation cannot be ruled out on the further ground that the mode of resentment was either unreasonable or excessively cruel having regard to the likely behavior of an ordinary person of the community to which the appellant belongs (see section 54 (1) (d)). Learned counsel for the respondent properly conceded that there was evidence of extreme provocation by assault that might have been left to the jury. She, however, argued that the judge was right in excluding provocation; not because of his stated reason, which was unsupportable; but because the appellant acted
wholly or partly from a previous intention to cause death or harm. In support of her submission learned counsel referred us to two isolated pieces of evidence from two prosecution witnesses. The first passage came from the evidence of the first prosecution witness (Felicia Ayorkor Annan) who alleged that when the deceased corporal Losso knocked incessantly at the appellant’s door, the appellant told him that “if he wanted to die he should force the door open”. The second passage was culled from the evidence of the seventh prosecution witness (Kwadjo Carpenter), uncle of the first prosecution witness, who testified that when the appellant reported the first prosecution witness’s misconduct to the members of her family earlier on in the day in question, the appellant was in
an angry mood, and “he drew a pen-knife from his shorts; made a mark on the wall; and said that before sunset, he would kill the first prosecution witness. ”Learned counsel for the respondent submitted that these two passages clearly established a previous intention to kill on the part of the appellant and, therefore, excluded the benefit of provocation which might otherwise have availed him. In support of this submission, she relied on section 54 (1) (b) of Act 29 which states;
“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 — (b) that he acted wholly or partly from a previous intention to cause death or harm or to engage in an unlawful fight, whether
[p.131] of [1972] 1 GLR 123 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.” We are of the considered view that this submission is without merit and we reject it accordingly. In the first place, there was no evidence that prior to the struggle inside the room the appellant harboured any feeling of revenge against the deceased. In the second place, we are of the opinion that whether or not the said passage established unequivocally and conclusively evidence of pre-conceived intent to kill on the part of the appellant within the meaning and intendment of section 54 (1) (b), is a question of fact for the jury to decide after adequate direction by the trial judge. It must appear to the court of fact that the accused acted from a previous intention to cause death or harm or to engage in an unlawful fight before the benefit of provocation can be excluded. On a proper direction, it would then be open to the jury to
find as a fact whether the alleged passages established beyond any reasonable doubt, a previous intention to kill or cause harm or not. Before deciding this primary fact, the jury would doubtless have been invited to examine the context in which the words were spoken; to consider, for example, whether the words were spoken; to consider, for example, whether the first passage, on its true construction and seen in its proper context, was no more than a stern warning from a man in occupation of property to an unwanted guest or intruder; and to consider, in relation to the second passage, whether those words and action occurring in the course of a heated lovers’ quarrel and separated both in time and distance from the crucial events leading to the incident were not too remote or an unreliable guide to the intention motivating the fatal wound. Again, it was necessary for the learned judge to point out to the jury that even in civil law a mere gesture, however menacing, is not actionable if it appears at the time there is no intention to put the menance into immediate effect. Thus in Tuberville v. Savage (1669) 1 Mod. 3, it was held to be no assault where the defendant put his hand to his sword and said, “If it were not assize-time I would not take such language” from you. And it was held in Meade’s and Belt’s Case (1823) 1 Lew. C.C. 184, that threatening words alone do not amount to an assault. Again, Stephen v. Myers (1830) 4 Car. & P. 349 is authority for the proposition that a threat to inflict harm at some time in the future cannot amount to an assault, and that an apprehension of immediate personal violence is essential. It would therefore be seen that a careful direction on the facts relied upon to establish a preconceived intention to kill and the relevant law was required before the jury could make appropriate findings of the primary facts. We are fortified in the view we have taken of this matter by the illustration of section 54 (1) (b) of Act 29. If we may quote it in full: “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 [p.132] of [1972] 1 GLR 123 reduced to manslaughter by reason of the blow which he received from B.” (Our own italics.) By section 4 (c) of Act 29, the said illustration forms part of the Criminal Code and
may be used as an aid to its construction, even though it is not to be taken as limiting the generality of the main provision. It is clear from this illustration that what matters is the opinion of the jury of the relevant facts in issue. In the third place, it is at least open to doubt whether the jury would, after a proper direction, have inferred from the said passages a preconceived intention to kill. In the fourth place, it would have been open to the jury to find as a fact to what extent, if any, the
appellant’s intoxication had negatived any previous intention to kill. It will be recalled that the appellant drank some quantity of alcohol before reporting the first prosecution witness’s misconduct to her family. The learned judge’s failure to consider the issue of intoxication and its effect on the specific intent under discussion, amounted to a serious misdirection: See, for example, the case of Kofi Mensah v. R. (1945) 11 W.A.C.A. 2 at pp. 7-8, when there has been an omission to place before the jury for their consideration a matter of such grave importance that they were never led to consider whether in this respect the prosecution had discharged the onus which lay on them of proving murder as distinct from manslaughter, and it is impossible to say what verdict would have been returned had the case been left to the jury with a proper direction, then it is proper for the court to take the course followed by the Court of Criminal Appeal in Hopper’s case (supra) and substitute for the jury’s verdict one for the lesser offence. Accordingly, we allowed the appeal; altered the conviction to manslaughter and imposed on the appellant a sentence of ten years’ imprisonment with hard labour. It only now remains for us to state that in our opinion the learned judge was right in withdrawing the defence of justification from the jury not for the reason stated by him, which is, with the greatest respect, erroneous in law; but for the simple reason that there was not a scintilla of evidence in support of such a defence. As was held by this court in State v. Kwaku Yeboah, Criminal Appeal, 10 July 1967 at page 3 of the cyclostyled report, a plea of self-defence would not avail an accused person under our law, unless he could lead some evidence to show (1) that the harm which he caused to the deceased, resulting in the latter’s death, was reasonably necessary: (2) that he caused the harm in circumstances of extreme necessity, that is, that short of killing the deceased, there was no other means of saving his own life. It is sufficient if the accused believed on reasonable grounds, though mistaken in his belief, that his life was in danger. In the present case, there was a total lack of evidence in support of these ingredients of the plea of self-defence. In the result, the learned judge was right in withdrawing the plea of self-defence from the jury. [p.133] of [1972] 1 GLR 123 It was for the above reasons that we allowed the appeal and quashed the conviction for murder and substituted one of manslaughter and a sentence of ten year’s imprisonment with hard labour.
DECISION
Appeal allowed.
Verdict of guilty of manslaughter Submitted.
S. A.B
