GRUMAH v. THE STATE [1965] GLR 640

DIVISION: SUPREME COURT

DATE: 12 NOVEMBER 1965

BEFORE: OLLENNU, BRUCE-LYLE AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) R. v. Hopper [1915] 2 K.B. 431; 84 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.

[p.641] of [1965] GLR 640

(2) Mancini v. D.P.P. [1942] A.C. 1; 111 L.J.K.B. 84; 165 L.J. 353; 58 T.L.R. 25; [1941] 3 All E.R.

272; 28 Cr.App.R. 65, H.L.

(3) Kwaku Mensah v. R. (1945) 11 W.A.C.A. 2; [1946] A.C. 83; 115 L.J.P.C. 20; 174 L.T. 96; 62

T.L.R. 83, P.C.

NATURE OF PROCEEDINGS

APPEAL against conviction for murder entered on 17 September 1964, at the Criminal Session, Accra.

The facts are fully set out in the judgment of the court.

COUNSEL

M. A. Mettle for the appellant.

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

JUDGMENT OF BRUCE-LYLE J.S.C.

This is an appeal against a conviction for murder at the Criminal Session held at Accra and dated 17

September 1964. The case for the prosecution is that the appellant, Seidu Grumah, lived at Oworobong

No. 2 in the Kwahu area with the deceased and three other Grumahs and all of them worked there as farm labourers; they earned together a total amount of £G70 which they gave to the appellant on 23 November

1962, for safekeeping and to be returned to them when they were about to return to their hometown Fadon outside Ghana. The following day they approached the appellant for the return of the money but the appellant told them that he had given it to another person for safekeeping and that he would like to go with the deceased to collect same. On 25 November 1962, at 5.30 a.m. the appellant and the deceased set out to go and collect the money from this other man who, according to the appellant, lived in another village. It was agreed that if they did not see this man he would proceed to Accra with the deceased to borrow the money. On 29 November 1962, the appellant alone returned to Oworobong No. 2 and when he was questioned by Amadu Grumah, the second prosecution witness, and one other, the appellant answered that he had given the money to the deceased who had gone with it to buy fish and corn to sell at

Kumasi and that from Kumasi, the deceased would proceed to his hometown to buy goats and sheep and would return to Kumasi. When they were with the appellant, the second prosecution witness noticed that he had injuries on his mouth and on the forefinger of the left hand. The second prosecution witness also recognised a torchlight with the appellant which the deceased had taken with him when he set out with the appellant. The second prosecution witness was not satisfied with the appellant’s explanation as to the whereabouts of the deceased and reported the matter to the appellant’s landlord and the matter was subsequently reported to the

[p.642] of [1965] GLR 640 police. When the police arrived at the village, the appellant was nowhere to be found; his room was searched and a shirt was found which the second prosecution witness identified as a shirt belonging to the deceased which the deceased had in a bag which he took with him when he set out with the appellant.

In the morning of 29 November 1962, the day on which the appellant returned to his village without the deceased, one Opanin Kwadjo Anim, the Odikro of Apesika, the third prosecution witness set out to go to his farm and on reaching the Ohema-Abuow junction he saw a pool of fresh blood in the middle of a path; he examined the blood and thought someone had killed his sheep he had on his farm and so proceeded to his farm. On his return from the farm at about 5.30 p.m., he noticed that the bush near the pool of blood appeared disturbed and he therefore looked into the bush and there saw a decapitated body. The third prosecution witness then returned to his village Apesika and reported the matter to his elders and caused gong-gong to be beaten asking the inhabitants of the village to report of any missing person and he then reported the matter to the Mpraeso police. The police went to the scene and took away the body and a piece of torn shirt lying near it.

On 7 December 1962, the appellant was found in the bush by a search-party and was taken to the police station where he volunteered a statement on caution. On the strength of his statement, the police and some of the inhabitants of Apesika and the second prosecution witness, Amadu Grumah, conducted a search in the bush where a skull was found and near the skull were a pair of white shorts, a torn piece of a shirt and a face towel. These articles were identified by the second prosecution witness as belonging to the deceased and as the articles he took with him when he set out with the appellant on the fateful day. At

Atibie Hospital the second prosecution witness identified the skull as that of the deceased.

When the case was under investigation, the appellant made two statements on caution, dated 8 and 9

December 1962, respectively (exhibits G and J). In the first statement, exhibit G, the appellant admitted having left the village with the deceased and said that in the night and in the bush near the

Apesika-Ohema roads junction, they were attacked by certain men and that he sustained injuries during the attack but managed to run away and hid himself in the bush; that he was in the bush for some time and when he realised that the men had gone away he came out of the bush and saw the body of the deceased without the head; he did not see the head and he then left and proceeded to the village. He admitted in the statement that when he was questioned in their village as to the whereabouts of the deceased he said that the deceased had gone to Kumasi to

[p.643] of [1965] GLR 640 buy corn with the £G70. In his second statement, exhibit J, he admitted having killed the deceased and said that he did not know what made him do it and, to use his own words, “Satan came and started to do his work.” As to the injuries on himself, he explained as follows:

“When I found that Allasan Grumah had fallen and was weak at the spot he fell on the road I gave him my said cutlass with which I slashed him and said to him that I had now realised that I had done wrong to him and so he also should slash me in turn but Allasan shook his head and slashed me on my right thigh with the cutlass but before that he slashed my left finger as I sat by him before I said this. After the slash on my said thigh Allasan was unable to do any more slashes and the cutlass fell from his hand as he became unconscious.”

The post-mortem examination on the decapitated body revealed the following:

“The head had been decapitated. There were lacerations on the body on the left arm five circular areas of broken skin which I suspected was due to gunshot but I was unable to trace any gunshot. The height of the body was 5ft 10ins. from the foot to the shoulder. I estimated the age at between twenty and twenty-eight years. In my opinion death was caused by decapitation.”

The appellant was also sent for medical examination by the doctor who performed the post-mortem examination on the deceased and his findings were as follows:

“On Saturday 8 December 1962 Constable Yeboah requested me to examine Seidu Grumah, the suspect, who stated that he was cut with a cutlass on Wednesday, 28 November 1962 sustaining injuries to his fingers and right thigh. He thought he had been shot at. He stated that the cuts had not been treated. On examination there was a wound one inch long in the mouth situated between the two jaws; there was an external wound on the face by the cheek and it was caused by biting. The incised wound on his right thigh was two and a half inches long and one inch in width. No blood vessels veins or nerves were affected. A biopsy specimen was taken from the accused from the wound on his thigh. He gave his consent before I took the biopsy. [Written consent identified by the first prosecution witness.] The biopsy was sent to Korle-bu for examination and it was reported that wound was received not less than ten days prior to the biopsy.”

[p.644] of [1965] GLR 640

The appellant’s defence as to what happened in the bush near the Ohema-Apesika roads junction and as contained in his evidence on oath is as follows:

“When we got to the Ohema junction we found seven people and three of them were in front of us. One of them held a torchlight. They approached us. One of them slapped me. They cut me on my arm and four others advanced from the rear. Some got hold of my head and my right leg. They inflicted wounds on my thigh and my right hip. I managed to escape into the forest. I did not know this forest. After my escape I did not know what happened afterwards until I found myself in the police station.”

After a lengthy and exhaustive summing-up, the jury unanimously returned the verdict of guilty of murder and the appellant was convicted and sentenced accordingly.

Against this conviction the appellant has appealed to this court on the following grounds: “(1) That the verdict is unreasonable and cannot be supported having regard to the evidence.

(2) That the jury, having been misdirected, failed to give any or any sufficient weight to the serious conflicts in the evidence of the prosecution witnesses.

(3) That the learned trial judge was wrong in not leaving to the jury an alternative verdict.

(4) That on the facts the verdict of the jury was unreasonable and amounted to a substantial miscarriage of justice.”

Learned counsel for the appellant, in effect, argued grounds (1) and (4) together.

We find that the arguments of learned counsel in this appeal which merit any consideration are those in support of ground (3) “that the learned trial judge was wrong in not leaving to the jury an alternative verdict.” In support of this ground, learned counsel referred this court to the evidence of the twentieth prosecution witness, Johnson Osei, the independent person who witnessed the statement, exhibit J, made by the appellant on 9 December 1962, in which the appellant was alleged to have confessed to the killing of the deceased, and it is important to stress here that the appellant in his defence denied having made this statement.

This witness, in examination-in-chief, gave in brief detail what he heard the appellant say to the police inspector who took down the statement and this is what the witness said:

[p.645] of [1965] GLR 640

“The accused then made his statement. The accused told the inspector that he, the accused, and his brother another Grumah were struggling over some money; they were in the bush and both of them had got drunk and the accused killed the other brother. I do not remember anything else.”

Throughout exhibit J there is nothing to show that the appellant mentioned this struggle. Learned counsel further referred to the evidence of the medical officer, the first prosecution witness who examined the appellant and urged this court to accept the findings of this witness relating to the wounds on the appellant as being consistent with the appellant having struggled with the deceased. Learned counsel then directed this court to the summing-up of the learned trial judge and urged that there is nowhere in that summing-up any indication as to the learned trial judge having directed the jury on the evidence of the first and twentieth prosecution witnesses and that he did, in no uncertain terms, direct the jury that the defence of provocation, which would make available to the appellant the alternative verdict of manslaughter, was absent.

Learned principal state attorney, in our view, rightly conceded to the submission of the learned counsel for the appellant that the learned trial judge erred in excluding the alternative verdict of manslaughter from the consideration of the jury, but urged this court to apply the proviso to section 16 of the Courts

Act, 1960,1 that this exclusion has not occasioned any miscarriage of justice.

The learned trial judge, in his summing-up on the defence of Provocation and the alternative verdict of manslaughter, said:

“For the purposes of this trial it is not necessary for me to tell you in what circumstances murder can be reduced to manslaughter because that has not come out to the surface. I shall not also dwell on the question of provocation because that also has not been raised during the trial and I shall consider them as irrelevant.”

A summing-up on these lines can be considered adequate and as a good direction in law if there is a total absence of evidence on record either by the prosecution or by the defence to bring out the defence of provocation and the alternative verdict of manslaughter “to the surface,” but the position in this case is however different. In this case, there was evidence by the twentieth prosecution witness that what he heard the appellant tell the inspector who took down [p.646] of [1965] GLR 640 the appellant’s statement, exhibit J, was that there was a struggle over some money before the appellant killed the deceased; there was also evidence by the medical officer, the first prosecution witness, that there was a wound one inch long on the mouth situated between the two jaws and that there was an external wound on the face by the cheek and that it was caused by biting. These two pieces of evidence put together, and which came from the prosecution, show clearly that there was a struggle between the appellant and the deceased. Although the appellant did not put up the defence of a struggle between himself and the deceased and although the appellant gave different versions of how he came by the wounds, the fact still remains that there was some evidence of a struggle of some sort and the law requires that it is incumbent on the learned trial judge to direct the jury on this piece of evidence and also on the law relating to the defence of provocation and to leave it to the jury either to accept or reject the defence that the appellant might have killed the deceased during a struggle and at a time when he, the appellant, was extremely provoked. It is a settled rule of law that in a murder charge if from the evidence it appears that there may be a defence that might reduce the charge to manslaughter, it is the duty of the trial judge to direct the jury as to manslaughter even though such defence has not been put forward: see R. v.

Hopper2 and R. v. Mancini.3 This rule was followed by the Privy Council in the local case of Kwaku

Mensah v. R.4 In that case their Lordships said:

“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.”

Applying this rule to this case more particularly in view of the evidence of the first and twentieth prosecution witnesses it is apparent from that part of the summing-up referred to supra that the learned trial judge gravely erred by excluding from the jury the evidence of the defence of provocation and the alternative verdict of manslaughter.

[p.647] of [1965] GLR 640

Learned principal state attorney has strongly urged on us that the exclusion of this material defence and the alternative verdict has not occasioned any miscarriage of justice and that the verdict of guilty of murder should not be disturbed. We are unable to accept this submission and, in doing so, we are strengthened by the test that it is impossible for us to say what verdict would have been returned had the case been left to the jury with the proper direction.

For the above reasons we would allow the appeal and substitute for the jury’s verdict one of manslaughter. The appeal is therefore allowed and the verdict, conviction and sentence for murder are quashed and a verdict and conviction of manslaughter and a sentence of fifteen years’ imprisonment with hard labour are substituted.

DECISION

Appeal allowed.

A. K. F.