KWAKU OFORI v. THE STATE [1963] 2 GLR 452

DIVISION: IN THE SUPREME COURT

DATE: 15TH NOVEMBER, 1963

BEFORE: SARKODEE-ADDO, ADUMUA-BOSSMAN AND BLAY JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL against a conviction for murder entered by Bannerman J., sitting with a jury, at the High Court, Kumasi. The facts are set out in the judgment of the Supreme Court.

COUNSEL

Armah for the appellant.

D. F. Annan, Senior State Attorney, for the respondent.

JUDGMENT OF BLAY J.S.C.

Blay J.S.C. delivered the judgment of the court. The appellant in this case was charged in the High Court, Ashanti Criminal Session, Kumasi, with the murder of one Afua Dopoh. He was found guilty by a jury and condemned to death by Bannerman J., and it is against this conviction and sentence that he has appealed to this court. Before this court, counsel for the appellant abandoned all the original grounds of appeal appearing in the appeal record, and with the leave of the court, three fresh ones were substituted, namely, “(a) That conviction was unreasonable and cannot be supported having regard to the evidence.

(b) That the trial judge erred in admitting inadmissible evidence. (c) That the conviction and sentence cannot stand having regard to all the circumstances of the case.”

The case against the appellant as appears on the record of proceedings in the High Court may briefly be stated as follows: That the deceased was married to the appellant with whom she had five children, three of whom were alive, the youngest being six months old; that after the birth of the last child, misunderstanding arose between the deceased and the appellant which resulted in the deceased refusing to continue the marriage with the appellant.

The appellant who was a member of the Roman Catholic community of the village, tried to get the elders of the church to resolve the difference between him and his wife, but the deceased refused to be reconciled and the

[p.454] of [1963] 2 GLR 452 marriage between the two was formally dissolved according to custom. Some time after the dissolution of the marriage, the appellant was seen by one Agnes Antwi, a niece of his, near her mother’s farm carrying his youngest child. The appellant there handed the child to the said Agnes Antwi with instructions that she should hold the child until the mother arrived to collect him. Agnes Antwi said she waited for a long time in the farm and as the child’s mother, the deceased, did not turn up, she left with her mother to return to the village, and that on the way to the village she met a crowd of people, mostly relatives of the deceased, and her mother joined them to go to the farm of the deceased. She, Agnes Antwi, proceeded to the village where on arrival she saw her uncle, the appellant, tied up and lying in the house of Kwaku Nsiah. How the appellant got to Kwaku Nsiah’s house was narrated by two witnesses, the third and fourth witnesses for the prosecution. They each deposed that on the 7th September, 1962, they saw the appellant coming from his house into the main street of the village. When he tried to cross the gutter or drain along the main street, he fell into it. He got up and again fell down. Thinking that the appellant was ill they ran up to him and helped to raise him from the gutter. They further narrated that the appellant then asked them to take him to the house of the Odikro as he, the appellant, had killed his wife in the bush. As the Odikro was not in the house when they got there, they took the appellant to the house of Kwaku Nsiah, the chairman of the Convention People’s Party in the village. They said that at Kwaku Nsiah’s house the appellant again confessed that he had killed his wife in the bush and that Kwaku Nsiah thereupon caused a gong-gong to be beaten and all the young men of the village who gathered round, were sent to the bush to look for the deceased. Subsequently the young men returned and reported that they had found the body of the deceased. Kwaku Nsiah also confirmed that the appellant confessed to him that he had killed his wife, in the presence of the third and fourth witnesses for the prosecution who had taken the appellant to his, Nsiah’s house. It was he Nsiah who had sent for the police who removed the body of the deceased and also arrested the appellant and took him to the Kumasi Police Station.

Sergeant Boateng, deposed that he and other policemen went to the village of Mpobi where he found the appellant lying unconscious in the house of Kwaku Nsiah. He instructed that the appellant be conveyed to the hospital, Kumasi, while he, the sergeant proceeded to the farm where the body of the deceased was lying. He had the body of the deceased removed and conveyed to the mortuary, Kumasi, for a post mortem examination. He further deposed that after the appellant had been discharged from hospital, a cautioned statement was obtained from him in which he admitted killing his wife. He also stated that after the appellant had been conveyed to the hospital, the appellant’s room was searched and a small, bottle of lysol was found on his bed.

The appellant in his statement to the police had said that after killing his wife he attempted to commit suicide by drinking lysol. The doctor who treated the appellant in the hospital deposed that he performed a

[p.455] of [1963] 2 GLR 452 stomach washout and found lysol in the stomach of the appellant. He said, “If prompt medical attention had not been given it would have ended fatally for the patient.”

The appellant in his evidence on oath in the High Court denied that he had confessed to the killing of the deceased. He admitted making a voluntary statement to the police after he had been discharged from hospital, but denied saying therein that he had killed the deceased. He ended his evidence-in-chief by saying: “It is not true I killed my wife and took lysol to kill myself.”

Before this court; learned counsel for the appellant has urged that the learned trial judge erred in admitting the statement of the appellant in evidence. We do not agree with that contention. In our view the statement was properly admitted after the learned trial judge had heard evidence in the absence of the jury and he had ruled upon that evidence whether the statement should be admitted or not. The appellant himself was permitted to give evidence at that stage of the proceedings and he deposed as follows in examination-in-chief: “I made the statement of my own free will which the sergeant wrote down, and not from questions and answers.” In cross-examination, he deposed as follows: “I was not beaten at the police station. Nobody promised me more food or anything.”

In the circumstances we find no substance in this ground of appeal. It is true that the only incriminating evidence against the appellant on the record is his own confession. It is however settled law that a free and voluntary confession of guilt by an accused person, whether under examination before magistrates or otherwise, if it is direct and positive, and is duly made and satisfactorily proved, is sufficient to warrant a conviction, without any corroborative evidence. See R. v. White.1 But see also Kanu v. R2 where Coussey J.A. delivering the judgment of the court seemed to have cast some doubt on this bare statement of the law. He said:

“It was submitted by learned Counsel for the Crown on the authority of Rex v. Ajayi Omokaro (1941) 7 W.A.C.A. 146, that a confession alone, properly proved is a sufficient ground in law for a conviction without further corroboration. According, however, to Wills on Circumstantial Evidence, 7th Edition, page 120, the cases in support of this doctrine are not decisive, as in all of them there appears to have been, outside the confession, some evidence, though slight, of confirmatory circumstances and the contrary view may now be accepted as settled law. Thus in Rex v. Sykes (1913) 8 Cr.App.R. 233, a case cited in the course of the argument, Ridley J., observed, ‘The case is undoubtedly peculiar, and requires consideration because it consists of two halves, neither of which would be sufficient alone to justify a conviction. It would have been unsatisfactory to convict on the evidence had it not been assisted by the confession, and probably it would have been unsatisfactory if the conviction rested on the confessions only, without the circumstances which make it probable that the confessions were

[p.456] of [1963] 2 GLR 452 true’, and further on the learned Judge suggests the tests to be applied to a man’s confession – Is there anything outside it to show it is true? Is it corroborated? Are the statements made in it of fact, true as far as they can be tested? Was the prisoner one who had the opportunity of committing the murder? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved?”

Also in the later case of Ndo alias Obot v. R3. Verity C.J. (Nigeria) delivering the judgment of the court said as follows:

“While it is true that the conviction of an accused person solely on his own subsequently retracted statement is to be viewed with extreme caution, in this case the signed statement made to one police witness and subsequently confirmed before a senior officer is supported by the evidence of a third police officer as to statements made by the accused immediately upon his arrest and the action of the accused in showing to that officer the matchet with which he alleged he had cut the deceased and the damage he then said had been done by the deceased in breaking into his house, as well as by the finding in the pocket of the deceased pieces of meat then alleged by the accused to have been stolen by the deceased from an iron pot in his kitchen shown also by the accused to the police corporal. This extremely circumstantial corroboration of the signed statement, the truth of the evidence regarding which the learned trial Judge accepted, provides in our view ample evidence upon which the Judge was justified in finding as a fact that the applicant killed the deceased in the circumstances set out in his statement.”

Now applying the tests in the above cases to the present case, we find as already stated above, that the learned trial judge properly admitted the statement of the appellant in evidence. The truth of the facts contained in the statement was proved by the finding of the body of the deceased at the place where the appellant alleged he had killed her with a cutlass; the presence of lysol in the stomach of the appellant as found by the doctor, which the appellant said he had taken in an attempt to kill himself after he had killed the deceased; the wounds found on the deceased as described by the doctor, which tally with the wounds the appellant stated he inflicted on the deceased; and, finally, the fact that the deceased was found in the farm with the six-month-old child of the deceased near the place where she was killed. These facts in our view provide extremely circumstantial corroboration of the appellant’s signed statement. The learned trial judge after hearing all the evidence, properly directed the jury on the facts and the law, including the appellant’s cautioned statement and the jury had no hesitation in returning a unanimous verdict of guilty. We are of the view that the conviction of the appellant was reasonable and supportable having regard to the evidence on record.

The appeal is therefore dismissed.

DECISION

Appeal dismissed.

K. T.