KONKOMBA v. THE STATE [1965] GLR 698

DIVISION: SUPREME COURT

DATE: 13 DECEMBER 1965

BEFORE: OLLENNU, AKAINYAH AND LASSEY JJ.S.C.

.CASES REFERRED TO

(1) R. v. Gidado of Bororo (1940) 6 W.A.C.A. 60.

[p.699] of [1965] GLR 698

(2) R. v. Akurugu Kusasi, W.A.C.A., Cyclostyled Judgments, May-June 1946, p. 29.

(3) R. v. Anima Kusasi, W.A.C.A., Cyclostyled Judgments, May-June 1946, p. 36.

(4) R. v. Donkor and Obeng, W.A.C.A., Cyclostyled Judgments, July 1947, p. 143.

(5) R. v. Essien (1938) 4 W.A.C.A. 112.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the Tamale High Court sitting with a jury, convicting the appellant of murder and sentencing him to death.

COUNSEL

Yaw Asare for the appellant.

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

JUDGMENT OF AKAINYAH J.S.C.

Akainyah J.S.C. delivered the judgment of the court. The appellant was convicted at the High Court,

Tamale, on 19 March 1964, for the murder of Yentsum Konkomba and sentenced to death. Against his conviction the appellant has appealed to this court upon a number of grounds including the following:

“(4) The learned trial judge admitted inadmissible evidence which influenced the jury’s mind and thereby caused a miscarriage of justice.

(5) The prosecution failed to produce material evidence.

(6) The prosecution failed to prove that cause of death was attributed to any acts of the appellant.”

The facts of the case given by the witnesses for the prosecution are rather conflicting therefore we have reproduced in extenso the evidence of the material witnesses. The first prosecution witness, Koya

Konkomba, testified as follows:

“On 20 December 1963 I was in the market at Wulesi selling pito. I knew Yentsum Konkomba. He was my brother. I saw him that day at Wulesi market. He is now dead. He came and bought 6d. worth of pito from me. After giving him the pito, one Jakpo held my hand. When Yentsum finished drinking his pito he was going to pay me 6d. but Jakpo prevented me from going to take the 6d. My brother said why, allow her to come for the money. Jakpo became annoyed and started abusing my brother. The accused came in all of a sudden, he held a stick and he hit the deceased on the right side of the head. I was standing behind the pot of pito. They were standing behind me about six yards away. I don’t know from which direction the accused came. Jakpo was on my left hand side

[p.700] of [1965] GLR 698 and the other person on the right. The accused was by the right side of Yentsum. Yentsum fell down when he was hit. He did not get up until one Jagri came and carried him to his house. There were so many people there. The people started fighting among themselves. The stick has got two mouths and is a bit long, about two feet long and about the thickness of my wrist. I did not see Yentsum again.”

Cross-examination by Mr. Amoatin: “My mother brews pito and I sell it. The incident happened in the afternoon. I was not the only pito seller in the market. There were many young men at the market. Most of them were drunk. I belong to the Charbe tribe. I know the Sanguli tribe. There was no fight between the Charbe tribe and the sanguli tribe before this incident. I wouldn’t know if there was a fight elsewhere. I cannot tell whether Jakpo was drunk. He bought pito from others. Yentsum was not drunk. He bought pito from others and bought 6d. from me. That was not my first time of selling pito at the market. At times there is a fight. This is so when they are going after girls.

Jakpo belongs to the Sanguli tribe. The accused belongs to the Pali tribe. You can marry from any tribe. I don’t know Madja Konkomba. I cannot tell whether the accused was friendly to Yentsum. The accused stayed among Charbe people.”

Re-examined:

“If there was a fight near where I was I could see.”

Foreman of the jury:

“When the fight started, I turned round and suddenly I saw the accused hit Yentsum with a stick.”

The second prosecution witness, Jakpo Konkomba (who was mentioned by the first witness) also said:

“On 20 December 1963, one Yentsum and I fought at the market. Yentsum is now dead. The first prosecution witness is Yentsum’s sister. When I went to the market I saw the first prosecution witness selling pito. Yentsum ordered 6d. worth of pito from the first prosecution witness and after giving the pito to him, the first prosecution witness was going back when I held her by the hands conversing with her about love.

Yentsum overheard what I was telling the first prosecution witness and told me to leave the first prosecution witness. I asked him why. I left the first prosecution witness and held Yentsum’s hand. Somebody then asked me to go home.”

[p.701] of [1965] GLR 698

Cross-examination by Mr. Amoatin:

“I drank a lot of pito that day.”

The third witness Fenya Konkomba also testified as follows:

“On 20 December 1963 I was arrested in the market. The second prosecution witness was also arrested at the market. We fought because of a girl. The first prosecution witness is the girl. Yentsum bought 6d. worth of pito from the first prosecution witness. After giving the pito to him she was going back to where she was selling. The second prosecution witness stopped her and started conversing with her. The first prosecution witness wanted to go and continue selling but the second prosecution witness held her by the hands not to go.

Yentsum seeing this came to the spot and asked the second prosecution witness why he held the first prosecution witness’s hand. The second prosecution witness became annoyed and they started exchanging words. I was standing about eight yards from them and then I went to them and we started exchanging blows.

I was a bit drunk. Yentsurn took part in the fight. He is now dead. I did not see a native stool at the market that day.”

In answer to a question by the foreman of the jury, this witness said: “I know the accused. I know him at

Wulesi. The accused was in the market that day. I did not see the accused take part in the fighting.”

The fifth witness Jagri Konkomba also testified thus:

“On 20 December 1963 I was at Wulesi selling tobacco in the market. While selling tobacco I heard some noise. I ran to the spot and went and saw Charbe people and Sanguli people fighting among themselves.

When I turned round I saw on my right hand side my younger brother the deceased lying down unconscious.

I took him to the C.P.P. chairman’s house and from there to Bimbilla Police Station where we handed him over to the police, then to Bimbilla Health Centre and to Yendi Hospital. I know the accused. I did not see him at the spot.” Cross-examination by Mr. Amoatin:

“There were stones at the spot where I picked up my brother.”

Re-examined:

“The stones I saw were very small ones.”

The sixth prosecution witness, general police constable Augustine

Arthur also said:

[p.702] of [1965] GLR 698

“On 21 December 1963 1 was at the charge office in the morning. I was detailed by Sergeant M. B. Quarshie to go to Wulesi and Kpanso village with the third prosecution witness, Tarko Konkomba and Tarachim on enquiries. They came and made a report to the police. I accompanied them and on reaching Wulesi I was taken to Kpanso village where Jakpo Konkomba and Moteem Konkomba were pointed out to me as those who had injured them. I arrested them and brought them to Wulesi. There I was taken to the house of the accused and Tarko Konkomba pointed him out to me as the one who hit the deceased Yentsum Konkomba with a native stool. The accused said they were all drinking when he saw the people fighting so he took the stool to hit someone but it accidentally hit the deceased. He said the Sanguli and Charbe people were fighting. I asked him to produce the stool and he said that it was left at the market place after the incident. I took him to the market place to look for the native stool but we couldn’t trace it. I took the arrested people to

Bimbilla Police Station with the accused and made a report.”

In answer to a cross-examination by the counsel for the appellant,

Constable Arthur said:

“At Wulesi I went with Tarko and Tratwum to contact the accused. I don’t speak Konkomba language. Tarko and Tratwum don’t speak English. They told me in the presence of the accused that the accused had hit the deceased. I asked the accused if it was true. I asked him through Tarko Konkomba. He speaks partial Twi.

The accused told me he hit the deceased with a stool at the market.”

In re-examination, Constable Arthur admitted that Tarko could speak Twi but not fluently.

Finally, Dr. Ebenezer Binder testified as follows:

“On 21 December 1963 I was at Yendi. I had a patient called Yentsum Konkomba on 21 December 1963 at about 7 p.m. alleged to have been beaten by some people at Bimbilla. I examined him but did not find any signs of external injury. No X-ray could be taken that day. I gave him treatment and asked him to see me the next day. He complained of pain on the right side of the head in the region of the temporal bone. I saw him again in the evening of 23 December 1963. He was in a state of restlessness and unconsciousness. He wasn’t able to respond to any questions. He died at about 11.25 a.m. on 24 December 1963. I informed the police about it and they

[p.703] of [1965] GLR 698 asked me to perform post-mortem examination. I performed post-mortem examination on 26 December 1963 in the presence of the fourth prosecution witness and inspector Edinkerah. I found a fracture of the right temporal bone about four-fifth of an inch long. On the inner surface of the skull I found an ante mortem clot of blood adjacent to the fracture. I also found some subdural haemorrhage. The fracture on the temporal bone went right through the bone. In my opinion the cause of death was cerebral haemorrhage. In my opinion we can trace this cerebral haemorrhage to the fracture of the temporal bone. From the external appearance the clot must have formed between two and three days. The injury could have been caused by a hard instrument, wood or iron. Not a sharp instrument. The skull was tough.”

Cross-examination by Mr. Amoatin: “A soft bone will react to the injury in a different way from a tough bone. If a person is hit with an object say a stick I would expect contusion after some time, but depending on the supply of blood vessels on that part of the body. Depending on the force of impact I would expect contusion on the part hit. If a person falls on a stone of a particular nature—a flat hard object—I would expect contrition. It is possible on a hard ground studded with stones. If the deceased had remained at the hospital the first night I could possibly have helped him. I opened up the skull and found the fracture. On 21 December 1963 he was unconscious. We have an

X-ray in Yendi.”

It is apparent on the face of the record of proceedings that at the close of the case for the prosecution, there was a sharp conflict between the evidence of the witnesses as to the weapon alleged to have been used by the accused. Since Koya Konkomba attempted to conceal the fact that there was a fight between the Charbe and Sanguli tribes and her story as to the two-pronged stick was negatived by the other witnesses, the weight of her evidence is negligible.

In his summing-up, the learned judge rather emphasized the fact that the first prosecution witness was the only eye-witness and directed the jury as follows:

“Two versions: (1) For the prosecution; that deceased was hit on the right temple with a stick or stool; (2)

For defence; that deceased fell on account of blow on his back by the accused. Decide which version to believe. Remember accused’s statement to the police. Whichever version you believe there is no dispute that deceased sustained injury through act of the

[p.704] of [1965] GLR 698 accused. No evidence of previous injury on deceased. Medical evidence — clot of blood was two days old.”

We are of the opinion that the learned judge erred by putting the case to the jury in the way he did. In our view he also misdirected the jury by telling them that in an answer to the sixth prosecution witness

(Constable Arthur) the appellant said he used a stool. Constable Arthur’s evidence was that when one

Tarko Konkomba made the allegation in Twi, he asked the appellant through the same man Tarko if the allegation was true and he is alleged to have replied in the Konkomba language in the affirmative. Other witnesses denied that aspect of the case and as Tarko Konkomba himself was not called as a witness to establish or confirm that the appellant did admit that he used a stool, the statement alleged to have been made by the appellant through Tarko is clearly inadmissible. In several of the decided cases, it has been held over and over again that failure on the part of the trial judge to appreciate the inadmissibility of evidence of alleged statements by the appellant, when such statements were not confirmed and established by the persons acting as interpreter was fatal to the conviction in that the learned trial judge misdirected himself in accepting such statements as having been proved. The court will quash the conviction unless it holds that the evidence so admitted could not reasonably affect the minds of the jury in arriving at their verdict and that they would or must have inevitably arrived at the same verdict if the evidence had not been admitted: R. v. Gidado of Bororo1; R. v. Akurugu Kusasi2 and R. v. Anima Kusasi.3

The proper procedure for recording statements amounting to confessions by persons accused of crimes was laid down in the case of R. v. Donkor and Obeng,4 as follows:

“There are also unsatisfactory aspects of the case for the Crown such as the strange behaviour of the police constable Ampartey. This constable alleges that when the first appellant was detained for questioning, he the appellant made to the constable what amounts to a complete confession. This confession was not reduced to writing in the usual manner but the constable states that he made a note of it in his notebook and he gave the substance of it in evidence.

The correct procedure in such a case would have been to have arrested, charged and cautioned, the appellant as soon as [p.705] of [1965] GLR 698 he had made his verbal confession and then formally recorded his statement in writing, signed and witnessed.

In this case not only was this procedure not followed but several days elapsed before the first appellant was arrested and charged with the inevitable result that when he did make his formal statement it differed materially from the verbal statement alleged to have been made to the constable.”

In this case not only was the procedure not followed but the so-called confession is alleged to have been made in a language not understood by the police constable with the result that when the appellant later made his statement (exhibit A) through an interpreter he made no mention of a stool or any other weapon.

In his statement to the police (exhibit A), the appellant said he saw people fighting in the market and that

Fenya Konkomba and others of the Charbe tribe were fighting with Modja Konkomba and others of the

Sanguli tribe. He made up his mind to help Fenya and the Tarko people and in an attempt to strike Modja

Konkomba he accidentally hit the right temple of Yentsum Konkomba—a Charbe man and he fell to the ground. In court the appellant testified as follows:

“I was sitting down somewhere relaxing under a tree. I heard some people shouting. I ran to the spot and saw

Charbe and Sanguli people fighting. I did see Yentsum at the place where they were fighting. I saw one

Modja Konkomba took a stick and he wanted to hit Yentsum. I wanted to prevent him from hitting Yentsum.

I raised up my hand to give Modja a blow. Modja dodged and suddenly the blow bit Yentsum. He did fall. I left the spot and I was walking towards my house. They were still fighting when I left. I did not see anybody sustain any injury. I have no trouble with Yentsum. He is not my friend, I am much older than him.”

In cross-examination by counsel for the prosecution the appellant said:

“I did not see the first prosecution witness at the market. I did not see the second prosecution witness.

Yentsum was also fighting. I did not take any stool to the market to sit on. Yentsum fell down. He fell face downwards. Modja was holding a stick—I am an old man. I am not strong. I struck downwards. Modja is taller than I. I was standing behind Modja. I wanted to hit him on the back. The blow hit Yentsum on his back. I saw the sixth prosecution witness at Wulesi. I know Modja was going to do a bad thing. I wanted to prevent him from doing it.”

[p.706] of [1965] GLR 698

As the witnesses for the prosecution admitted that there was a fight between the Charbe and the Sanguli people and that the deceased took part in the fight, the allegation by the accused against one Modja

Konkomba should have been investigated. In R. v. Essien,5 the court made the following observations:

“From the evidence it appears that the accused has throughout consistently told the same story, to the Chief of his town, to the Police and to the Magistrate at the preliminary inquiry. It is manifest that in an adequate investigation of the charge of murder against the accused the three survivors of the accused’s alleged assailants were not only material but essential witnesses. Yet not one of these three people was called by the

Crown. Nor is there any evidence that any steps were taken to find and call any of these people though the accused took the police to their mother’s house. It is the duty of the Crown to call all known material witnesses, whether in favour of the Crown case or not, and where, as in this case, the Crown had notice of the accused’s most material allegation against these three named people it was the clear duty of those responsible for the prosecution to call these three people if the accused’s allegation against them was to be contested. As it was, the court below rejected the sworn allegation of the accused without any of the people concerned being brought forward to deny it and to be subjected to cross examination by the accused . . .

So much for the evidence not called by the prosecution. When one examines the evidence which was called by the prosecution it appears to be quite insufficient to justify the conviction.”

After hearing the arguments of counsel for the appellant on the admission of inadmissible evidence, the misdirection of the jury by the learned judge and the insufficiency of the evidence as a whole, the learned principal state attorney conceded that the conviction for murder could not stand but submitted that the evidence supported a verdict of manslaughter.

In our view, the evidence as a whole did not reach the standard of proof required in a murder case. We agree with counsel for the prosecution that the conviction of murder cannot stand. If the jury had been properly directed the verdict might not have been one of guilty of murder.

In spite of the conflict of evidence, the appellant himself admitted that he was taking sides in an unlawful fight and in an attempt to strike one Modja Konkomba (a member of the opposing tribe) to

[p.707] of [1965] GLR 698 prevent the latter from causing harm to the deceased, he accidentally struck the deceased. We are of the opinion that the appellant cannot in such circumstances justify the harm which he caused to the deceased from which he died. We would therefore allow the appeal, quash the conviction and sentence of death passed upon the appellant and a conviction for the lesser offence of manslaughter and a sentence of five years’ imprisonment with hard labour is substituted.

DECISION

Appeal allowed.

Verdict of manslaughter substituted.

S. O.