LARTI v. THE STATE [1965] GLR 305

DIVISION: SUPREME COURT

DATE: 30 APRIL 1965

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

NATURE OF PROCEEDINGS

APPEAL from a conviction for murder entered at the Criminal Session of the High Court held at Accra on 22 April 1964 in a jury trial.

COUNSEL

M. A. Mettle for the appellant.

K. Gyeke-Dako, Senior State Attorney (with him Mrs. J.A. Amankwa), for the respondent.

JUDGMENT OF BRUCE-LYLE J.S.C.

Bruce-Lyle J.S.C. delivered the judgment of the court. This is an appeal from a conviction for murder entered at the Criminal Session of the High Court held at Accra on 22 April 1964. The case for the prosecution is that the appellant and the deceased Kwadjo Asare lived in the same house in Abenabo village near Suhum. The deceased shared the same room with one Yaa Manko, the ninth prosecution witness and his brother’s wife, who is also the appellant’s cousin. On the evening of Friday 20 September

1964 the appellant visited the ninth prosecution witness and the deceased in their room, conversed with them for some time and when he was about to leave he insulted the deceased, saying that he was a beast and had no sense; when the ninth prosecution witness asked him for his reason for saying so, the appellant said nothing and went away and left the house. He later returned to the house when the ninth prosecution witness and the deceased had locked their door. The appellant then banged on the door and shouted saying that he had seen the deceased having sexual intercourse with the ninth prosecution witness and that if the deceased were a man he should come out for a fight. This went on for some time until the appellant’s mother Akua Mankosa, the tenth prosecution witness, came and advised the appellant to stop and to go to bed. The following day the tenth prosecution witness reported the matter to one Kwaku Asare the appellant’s uncle and the seventh prosecution witness, who held an arbitration at which the appellant attributed his behaviour the previous night to the effect of drink. As a result the appellant was asked to pacify the deceased with half a bottle of akpeteshie and the appellant did so.

On the following Sunday one Kofi Nketia, the eighth prosecution witness, who lived at Suhum visited the village and went to the appellant’s house where he met the appellant, one Kwasi Asare, the sixth prosecution witness, a boy aged seven years and a girl by name Abena. The eighth prosecution witness took some cassava with him with which the appellant prepared fufu and they all ate. Whilst they were eating, the deceased entered the house, having returned from his farm and the eighth prosecution witness invited him to join them but the deceased declined the offer and went and had his bath and came and sat outside, in front of his room, for some time before

[p.307] of [1965] GLR 305 he went into his room. The eighth prosecution witness then left the house with the appellant leaving the sixth prosecution witness and Abena in the house. The appellant later returned to the house. First, he entered his room, and then came out and went into the room of the deceased, and after a brief moment the sixth prosecution witness heard the deceased shouting in the room that he was being killed. The appellant then came out of the room and went straight to the Suhum police station and made a report to the police that he had killed his cousin Kwadjo Asare during a quarrel, and in the course of making the report he handed to the police a blood-stained cutlass. The police later went to the village and saw the deceased lying dead in a pool of blood in front of his bed with several cutlass wounds on the body and the intestines protruding. The post-mortem examination revealed no less than 24 cutlass wounds.

During the investigations the appellant volunteered a statement under caution, exhibit B, in which he gave his version of what happened on the previous Friday night and continued as follows:

“In the evening which was 21 September 1963 Kwaku Asare came to our cottage and held arbitration into the matter. He found me guilty for knocking the door when I saw that Kwadjo Asare and Yaa Manko were flirting. He asked me to provide half a bottle of Akpeteshie value 2s. which I did. I was not pleased at all.

Today 22 September 1963, at about 12 noon Kwadjo Asare was asleep on his bed when I entered the room and woke him up. He came out and stood in front of the door. I sat on the verandah rail and asked him whether he loved me or not. And if he loved me why he did not tell me anything about the 2s. debt I incurred the previous night because of his conduct. I was referring to the 2s. worth of akpeteshie taken from me.

Kwadjo Asare simply told me to get away from him with my foolishness. I also abused him that he was a stupid and a foolish man. I gave him a blow with my fist. At that time only Kwasi Asare and Abena who are both children were with us in the village in the compound playing. When I gave Kwadjo Asare a blow he returned it. I then took up my cutlass which I placed on the verandah nearby. Kwadjo Asare then turned round and ran towards his room. I ran after him and struck his back with the cutlass. He fell on his bed and I cut him again. He fell on the floor and I continued cutting him with the cutlass. His intestines came out and he could not struggle again and so I left him. The children were screaming. I then left the village towards

Suhum holding the cutlass when I met Kwaku Asare going towards our cottage. He asked me what happened. I did not reply but passed him and came to Suhum and surrendered myself to the

[p.308] of [1965] GLR 305 police and gave out the cutlass. I was annoyed with Kwadjo Asare because he always abused me that I was not a man, and that was why I killed him.”

When the appellant was charged and cautioned he volunteered a short statement in these words:

“The only thing I have to add to what I said yesterday 22 September 1963 is that I was annoyed with Kwadjo

Asare because he used to abuse me that I am weak sighted and also that he was more a man than myself which to my understanding meant that he was superior to me in everything. That was why I made up my mind to kill him.”

At the trial the appellant gave evidence on oath in which he gave a completely different version of what happened in the room of the deceased on the material and fateful Sunday. The appellant had this to say:

“I went back to our village. I saw an axe lying in the yard so I picked it up and took it to the ninth prosecution witness’s room to keep it there. At that time I was in cover cloth. When I was taking the axe to the room, I found the door half open. I opened the door entered the room and put the axe there. As soon as I did that I turned round to go out of the room. As soon as I took one pace forward, I felt that some one had held me by the back of my neck. I did not know at the time that there was any body in the room. The person who held my neck tied my cover cloth round my neck from behind. I did not know who this was, until I managed to remove the cover cloth from my neck, when I saw it was the deceased. That time I found that the deceased was in a serious mood. He gave me a blow and I too retaliated and it resulted in a fight between us.

At the time this was going on I felt he was stronger than I. I could not stand him. The deceased picked up a stick lying nearby with which he hit me and I also saw a cutlass lying near by which I picked up and struck him with it. When the deceased hit me with the stick he rushed into the room and I followed him there and struck him with the cutlass. The deceased died. I ran to the police station and made a report to the police at

Suhum.”

After an exhaustive summing-up by the learned trial judge the jury returned the verdict of guilty of murder and against this verdict the appellant has appealed to this court on the following grounds:

“(1) That the verdict was wrong in law.

(2) That the verdict cannot be supported having regard to the evidence. [p.309] of [1965] GLR 305

(3) That the learned trial judge did not sufficiently direct the jury on the law of self defence under extreme provocation.

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

Counsel for the appellant argued grounds (1) and (3) together and urged that the sixth prosecution witness’s evidence being unsworn and uncorroborated the learned trial judge erred in law in directing the jury that they were entitled to act upon it if they believed it even though he warned them that it was

“highly dangerous to convict upon such evidence.” In support of this contention learned counsel relied upon section 10 of the Oaths Act, 1960,1 and submitted that on the strength of this section the learned trial judge should have directed the jury to disregard altogether the evidence of the sixth prosecution witness. Learned counsel further contended that if the evidence of the sixth prosecution witness who is the only eye-witness, is disregarded there will be no evidence of any of the prosecution witnesses connecting the appellant with the offence save his statements to the police and also his evidence on oath and that so far as these were concerned there was sufficient evidence to support the defence of extreme provocation to warrant a verdict of guilty of manslaughter.

On the first leg of counsel’s submission that the learned trial judge should have directed the jury to disregard the evidence of the sixth prosecution witness, we are in complete agreement. Section 10 of the

Oaths Act, 1960, provides that, “No person shall be convicted or judgment given upon the uncorroborated evidence of a person who shall have given his evidence without oath or affirmation.” The learned trial judge in his summing-up on the evidence of the sixth prosecution witness had this to say:

“It seems to me, therefore, that as far as the immediate incident about the killing was concerned, the sixth prosecution witness’s evidence concerning it stands uncorroborated. You are, however entitled to act upon it, if you believe it, though it is my duty to warn you that it is highly dangerous to convict upon such evidence of a child of tender age, if not corroborated by some independent evidence.”

It is apparent from the record of proceedings that the sixth prosecution witness gave unsworn and uncorroborated evidence and we find that the evidence is of no weight in law and the learned trial judge therefore gravely erred in law in directing the jury as he did. If the evidence of the sixth prosecution witness is disregarded the jury would be left only with the statement of the appellant to the

[p.310] of [1965] GLR 305 police and his evidence on oath at the trial which, learned counsel submitted, clearly established a defence of extreme provocation. Extreme provocation as a defence to the offence of murder is contained in section

53 (a) of the Criminal Code, 19602 as follows:

“53(a) . . . an unlawful assault and battery committed upon the accused person by the other person, either in an unlawful fight or otherwise, which is of such a kind, either in respect of its violence or by reason of accompanying words, gestures, or other circumstances of insult or aggravation, as to be likely to deprive a person, being of ordinary character, and being in the circumstances in which the accused person was, of the power of self-control.”

In his statement, exhibit B, the appellant said that he entered the room of the deceased and woke him up, and then after they had exchanged words he, the appellant, was the first to deal the deceased a blow with his fist and the deceased retaliated. He continued his statement in these words, “I then took up my cutlass which I placed on the verandah nearby. Kwadjo Asare then turned round and ran towards his room. I ran after him and struck his back with the cutlass. He fell on his bed and I cut him again.” Examining this piece of evidence against the background of the definition of extreme provocation supra it is clear that at the material time when the appellant used the cutlass on the deceased there had been an assault and battery on him by the deceased thus rendering the defence of extreme provocation worthy of some consideration. But the appellant did not cut the deceased in one or two places only. He himself said that after cutting the deceased on the back when the deceased fell on his bed, he cut him again. For the number of wounds described by the medical officer, the first prosecution witness, and the serious nature of these wounds, we are of opinion that this is a case which falls within the provisions of section 54 (1) (d) of the

Criminal Code, 1960, which reads as follows:

“54. (1) 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- . . .

(d) that he acted in a manner, in respect either of the instrument or means used or of the cruel or other manner in which it was used, in which no ordinary person would, under the circumstances, have been likely to act.”

[p.311] of [1965] GLR 305

In his evidence on oath at the trial the appellant in his different version of what happened said that when he entered the room of the deceased and put down the axe, the deceased held him by the back of the neck and tied his (appellant’s) cover cloth, the deceased gave him a blow and he retaliated resulting in a fight; the deceased then picked up a stick lying nearby and hit him with it and he also saw a cutlass lying nearby and picked it up and struck the deceased with it. It is most significant that the appellant did not end his evidence at this stage but went on further to say that, “When the deceased hit me with the stick he rushed into the room and I followed him there and struck him with the cutlass.”

Here again it is apparent that from the circumstances under which the numerous wounds were inflicted on the deceased by the appellant and the serious nature of the wounds, section 54 (1) (d) of the Criminal

Code, 1960, is applicable. We are therefore satisfied that on the appellant’s statement to the police and on his evidence on oath at the trial the defence of extreme provocation which could reduce the offence to one of manslaughter was not available to him.

It is the further contention of counsel that the learned trial judge’s direction to the jury on this defence and on self-defence was wrong. The material part of the summing-up reads:

“Notice what he said, that he did not know that the deceased was in the room at the time he took the axe there. He also said that he realised that the deceased was serious and that he, the accused, could not stand him during the fight. The accused said that he chased the deceased into the room, because after being hit by the deceased with the stick, the deceased ran there. It was in that room the accused said he struck deceased with the cutlass and he died. The prosecution say there was no fight as stated, that the killing was unprovoked, and as such is pure murder. It is up to you to consider the evidence you have heard. If you accept what the accused has told you about what happened namely: that he was attacked, then the killing was in self-defence, and your verdict should be not guilty.

On the other hand, if you do not accept the evidence of the attack, then you should also consider the story about the fight. If you accept that there was a fight, and that the accused killed the deceased because he was extremely provoked at the time, having regard to some insulting words uttered against him, or that the deceased appeared stronger than he was, then your verdict should be not guilty of murder, but guilty of manslaughter.”

[p.312] of [1965] GLR 305

A careful examination of the summing-up reproduced supra shows that the passage emphasized amounts to a misdirection in law; but it is a misdirection which was most favourable to the appellant and that had the jury accepted that direction of the learned trial judge, it is most probable that the appellant would have been found not guilty of the offence with which he was charged, which verdict, in our opinion, would have occasioned a grave miscarriage of justice.

Counsel for the appellant next argued grounds (2) and (4) together and urged that the appellant’s statement to the police, exhibit B, and his evidence on oath at the trial, being conflicting versions, the jury ought to have accepted the version most favourable to the appellant. He further urged that at least the conflict gave rise to a doubt, the benefit of which was denied the appellant.

While conceding the fact that the appellant’s statement to the police and his evidence at the trial conflict, we are of the opinion that there is evidence by the appellant under cross-examination which lends support for the jury’s acceptance of the appellant’s statement to the police, exhibit B, as being the correct version of the incidents immediately preceding the killing.

In conclusion we find that the verdict is amply supported by the evidence on record. There is no substance in this appeal and it is hereby dismissed.

DECISION

Appeal dismissed.

E. A.- A.