Division: IN THE SUPREME COURT
Date: 4 DECEMBER 1964
Before: MILLS-ODOI, ACOLATSE AND SIRIBOE JJSC
JUDGMENT OF MILLS–ODOI JSC
Mills-Odoi JSC delivered the judgment of the court. The appellant was convicted for the murder of his wife, Ekua Ntabeley, at the village of Aiyim in the Western Region, on 24 September 1963. The trial was before Bruce-Lyle J. (as he then was) sitting with a jury in the Criminal Session of the High Court at Sekondi on 17 September 1963. It was not denied by the appellant that he caused the death of the deceased; in view of the defence the appellant found himself in such a position that he could not in anyway dispute the facts constituting the charge preferred against him. His defence was that he killed the deceased under extreme provocation.
The appellant was the only eye-witness and after he had surrendered himself and was taken into custody by the police, he made a statement (exhibit B) showing the circumstances which led to the murder of his wife. The prosecution relied upon that statement in proving the charge. The statement contained the following facts: On 11 May 1963, the appellant received a letter from his elder brother, Agiri Fosu (the second prosecution witness), stating that his child was seriously ill and had been taken to a church known as “Twelve Apostles Mission,” at Nakaba Camp, Aiyim village, in order that prayers could be said for him. The letter also stated that the person in charge of the church (the third prosecution witness) had expressed a desire to see the appellant. On the strength of the letter, the appellant left Hemang village, where he was then living, and proceeded to Aiyim. A day after his arrival at the village, the appellant and the second prosecution witness went to Nakaba Camp and met the third prosecution witness, the deceased and her sick child in the church compound. The third prosecution witness told the appellant that the deceased rushed her child to the camp and when he tried to find out from her the reason why the child had taken ill suddenly, she confessed that she had committed adultery with one Kwame of Tarkwa, her old boyfriend. When asked by the appellant whether the report of the third prosecution witness was true, the deceased replied in the affirmative, and added that she committed the adultery when she paid a visit to her uncle, Kwamina Asafuah (the tenth prosecution witness) at Tarkwa, because the appellant was not maintaining her and her children. The appellant was taken by surprise by the confession of adultery. He denied vehemently the allegation made by the deceased that he was not maintaining her and the children. He told the third prosecution witness that he would report the deceased’s conduct to the tenth prosecution witness at Tarkwa.
On 13 May 1963, the appellant travelled to Tarkwa and made a report to the tenth prosecution witness who dismissed as false the statement made by the deceased that she had visited him. However, the tenth prosecution witness advised the appellant to return to Aiyim and that he would follow him the day after to have the matter settled. The appellant therefore travelled back to Aiyim the same day; but the tenth prosecution witness did not honour his promise. On 15 May at about 6 p.m., one Kwamena Badu (the fifth prosecution witness), another uncle of the deceased, sent for the appellant and offered him an amount of £G3 3s. as pacification fee for the adultery committed by the deceased, which amount the appellant refused to accept because the proper person to pay that fee, according to the appellant, was the adulterer, Kwame, and not the parents of the deceased. The appellant therefore left the premises of the tenth prosecution witness and went to his room at Nakaba Camp where he and the deceased were lodging. At this point it would be well to state the appellant’s exact words:
“Whilst in bed at about 12 midnight, I question my wife why she should commit adultery apart from the £G34 10s. that I have given to her. Her answer was that I could not maintain her that was why she committed the adultery and that her grandfather Badu was right to pay the adultery fee of £G3 3s. which I refused to accept. I became greatly annoyed of this, and picked a cutlass which was lying in the room and cut her twice on the head at the same place and she fell unconscious. I immediately informed my elder brother Agyiri Fosu (the second prosecution witness) of what I had done to my wife and asked him to go and report the matter to the police whilst I remained at Aiyim to be arrested by the police . . . I feel my wife has disgraced me by saying that I am unable to maintain her and the children because, apart from the £G34 10s. that I have given to her, one Kwadjo Duku of Aiyim has pledged his cocoa farm to me about three to four years now the proceeds from which I give to her for the maintenance of herself and the children. I get about ten loads every year from this cocoa farm.”
On 17 May 1963, a day after the incident, the appellant was charged with the murder of his wife and in a cautioned statement (exhibit E) he stated as follows:
“I inflicted wounds on my wife with a cutlass because she disgraced me by telling me that I was unable to maintain her and the children that was the reason why she committed an adultery with one Kwame whereas I had given her an amount of £G34 10s. to trade with.”
It is clear that the prosecution evidence, which was based on the appellant’s own statements, established a strong case of deliberate unprovoked murder. The explanation, which the appellant gave in statements to the police, as the reason for causing the death of the deceased, does not and cannot establish a defence of provocation known to our law to reduce the crime of murder to a lesser crime of manslaughter.
However, when the appellant gave evidence at the trial, he elaborated upon his earlier statements to the police. His defence was that the act was done at a time when he had lost his power of self-control as a result of the provocation caused by the deceased. He explained that at about 1 a.m. when he and the deceased were “sitting on a mat” he asked the latter why she gave the £G3 3s. to her uncle to be given to him and whether that was a proper step to take. The deceased replied that she had got a better man to marry. The appellant then said:
“I told her that if she did that it would be a disgrace to her. When I said that my wife gave me a slap on the face. There was no light in the room. My wife then spat on my face and hit me on the back with her hands. I stretched my arm and got back something which I thought was a piece of wood and I hit her twice on the head with it. My wife used many abusive words at me. She told me I was useless man and I had a big penis and that I was not a man.”
When cross-examined by the learned state attorney, the appellant said inter alia, as follows: “The spitting on my face and the beatings I left out it is true that these happened but what made me wound her was the disgrace that I had not maintained her and the children.”
The main issue or question of fact for the determination of the jury, which, as appears from the record of proceedings, was the very core of the appellant’s defence, was whether the appellant was extremely provoked by the acts of the deceased at the time when he caused the unlawful harm to her, in which case he would be adjudged guilty not of murder but of manslaughter. The learned judge devoted a considerable portion of a very careful summing-up to this question of fact and the jury returned a verdict of guilty of murder, indicating therefore, that they were satisfied that the appellant was not extremely provoked at the time of the incident. It is against this conviction that the appellant has appealed to this court and the only point raised in support of the appeal is that the learned judge erred in not directing the jury adequately on
the defence of provocation, the argument of learned counsel for the appellant being that if the learned judge had adequately directed the jury in this regard, they would have adjudged the appellant guilty not of murder but of manslaughter.
We would say, with respect to learned counsel for the appellant, that the learned judge dealt with this main issue exhaustively in his summing-up. After debating the evidence of the appellant on this matter, he proceeded with considerable care to deal with the question of provocation, the only issue for the determination of the jury, in a manner most favourable to the appellant. He drew the attention of the jury to the law relating to provocation, read and explained to them every relevant section of the Criminal Code, 1960,1 that could assist them in their deliberation. In the course of his summing-up, the learned judge directed the jury on this cardinal issue of provocation, in a manner which, in our opinion is unimpeachable. It reads as follows:
“ . . . the accused had mentioned certain facts not included in his statements to the police — enumerated the additions as follows:
(a) That when accused questioned deceased why she had given £G3 3s. to Badu to be given to him as adultery fee deceased abused him and slapped him on the face;
(b) and spat on his face;
(c) and she started beating him on his back with both her hands.
That accused said he then stretched his right hand and in the dark got hold of something which he thought was a stick and hit deceased on the head with it:
Directed the jury that if the evidence of accused is accepted by them as to what actually happened between him and his wife in the room then the defence of provocation was raised and that they had to apply the provisions of section 52 (a) of the Criminal Code by considering whether accused person could have been provoked to the extent as to lose his power of self-control—stressed to them that in considering the evidence of accused they should not forget to direct their minds to the accused’s circumstances in life and envirom-nent and to find out whether the facts given by him were such as likely to deprive him of his self-control—stressed further that they had to direct their minds to the circumstances of this particular case—told the jury that if they were satisfied that the accused’s line of defence was reasonable and that accused was reasonably deprived of his power of self control at the time when he struck the deceased with what he thought was a stick then their verdict should be one of guilty of manslaughter and on the other hand if they thought accused’s version is not reasonably probable then verdict should be one of guilty of murder.”
In spite of this direction the jury returned a verdict of guilty of murder which, as stated earlier in this judgment, shows that they rejected the appellant’s defence that he was extremely provoked at the time he caused the unlawful harm to the deceased. There is ample evidence on the record of proceedings on which they could act to arrive at that conclusion. In his statement, exhibit B, which the appellant made on the day of the incident, he did not mention that the deceased spat on his face, slapped him on the face and dealt him a blow on his back with both hands. A day after the incident, when he was charged with this very serious offence he told the detective sergeant, Obeng Dompreh (the sixteenth prosecution witness) that, “I inflicted wounds on my wife with a cutlass because she disgraced me by telling me that I was unable to maintain her and the children that was the reason why she committed adultery with one Kwame … At the trial, however, after hearing the prosecution evidence, the appellant amended his previous story and declared that the insulting words and the confession of adultery were immediately followed by a spit on his face, a slap on the face and a blow at his back, which story the jury rejected, not only as untrue but also as not being reasonably probable. Since the case of the appellant was rejected by the jury there remained before the trial court the story put forward by the prosecution and we therefore have to consider whether that case was such as would satisfy a reasonable jury, as judges of fact, that elements were present which would reduce the crime from murder to manslaughter. It is beyond doubt that the case put forward by the prosecution contained all the essential elements which are necessary to establish the crime
of murder. The explanation given by the appellant for striking the fatal blows with the cutlass was that the deceased made a confession of adultery with one Kwame of Tarkwa, because he did not maintain her and her children, which explanation cannot be accepted as establishing a defence of provocation known to our law. It has been held over and over again and the authorities are very clear on the law, that a confession of adultery by one spouse with another person, is not sufficient to amount to extreme provocation such that it will reduce a charge of murder to manslaughter: see R. v. Tekyi. 2 It is obvious, therefore, that there was no evidence on which the jury could have acted to reduce the crime of murder to manslaughter. For these reasons the appeal is dismissed.
DECISION
Appeal dismissed.
T. G. K.
