OFOSU v. THE STATE [1963] 2 GLR 417

DIVISION: IN THE SUPREME COURT

DATE: 8TH NOVEMBER, 1963

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

CASES REFERRED TO

(1) Holmes v. D.P.P. [1946] A.C. 588; 62 T.L.R. 466; [1946] 2 All E.R. 124; 31 Cr.App.R.123, H.L.

(2) Bullard v. R. [1957] A.C. 635; [1957] 3 W .L.R. 656; 42 Cr.App.R. 1, P.C.

(3) R. v. Hall (1928) 140 L.T. 142; 28 Cox C.C. 567; 21 Cr.App.R. 48, C.C.A.

[p.418] of [1963] 2 GLR 417

(4) R. v. Porritt [1961] 1 W.L.R. 1372; [1961] 3 All E.R. 463; 45 Cr.App.R. 348, C.C.A.

(5) R. v. Semini [1949] 1 K.B. 405; [1949] 1 All E.R. 233; 33 Cr.App.R. 51, C.C.A.

(6) Kwaku Mensah v. R. [1946] A.C. 83; 174 L.T. 96; 62 T.L.R. 83, P.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

G. Ampaw for the appellant.

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

JUDGMENT OF MILLS-ODOI J.S.C.

The appellant was convicted on the 20th February, 1963, before Bannerman J. sitting with a jury at the Criminal Sessions of the High Court held at Kumasi for the murder of his own uncle.

The case for the prosecution was that the appellant and the deceased travelled to Nkawie in January 1957 and lived together, very happily, at the Agriculture Department bungalow for five years during which period the appellant cooked and rendered other domestic services for the deceased. In January 1962 the deceased’s wife, Agnes Kuntoh, joined him at Nkawie. Shortly afterwards one Mary Afua Agyepongmaah, a girl of about thirteen years of age, was brought to the bungalow as a maidservant for the deceased and the appellant started making love with her.

The deceased became aware of the amorous relationship between the appellant and the maidservant. He therefore called the appellant and one other nephew, Edward Apiedu, and warned them of the dangers of flirting with girls of tender age. In spite of the warning, the relationship between the appellant and the maidservant did not change. It became more intimate than before. As a result differences arose between the deceased and the appellant, differences attended by the common habit of the uncle not responding to greetings of the nephew, and the nephew refusing to render domestic services for the uncle and which culminated in the deceased treating the appellant with scornful abuses whenever the former became drunk. Such then was the unhappy state of affairs which existed between the appellant and his uncle up to the day the latter met his death by the murderous hands of the former.

On the 6th October, 1962, the deceased visited his relatives in Kumasi; he returned to Nkawie the same day and was seen drunk and unhappy. The appellant, was not at the bungalow at that time. The deceased then went, to the boy’s quarters where the appellant lived, entered the appellant’s room by breaking the door with an axe and threw outside his (appellant’s) personal effects. Not long afterwards the appellant arrived at the bungalow. He greeted the deceased, but there was no reply. He then went to his quarters and was later seen approaching the deceased with a cutlass.

[p.419] of [1963] 2 GLR 417

Edward Apiedu who lived together with the appellant at the boy’s quarters and who gave evidence for the prosecution at the trial said, “My uncle (the deceased) on seeing the accused coming with a cutlass went into his car and was trying to drive away when the accused person cut one of the tyres. The accused after that started breaking the windscreen. I went to take the cutlass from the accused. He flung it and I dodged. My friend Adu also attempted to take the cutlass from him, he flung it at Adu and he dodged. I found that the situation was hopeless so I went to the junction to get some people to help us.”

After causing damage to the windscreen the appellant cut the deceased on his forehead with the cutlass while the latter was taking shelter in the car. Forced by circumstances, the deceased quickly opened the door, jumped out of the car and started running away; but the appellant gave chase, and was able to catch up with the deceased whom he struck with the cutlass and he fell to the ground. The appellant then inflicted several wounds on the deceased who was later taken to the Kumasi Central Hospital the same day and died the next day. The medical officer who performed the post mortem examination described the condition of the deceased and the nature of the wounds, when he gave evidence at the trial, as follows:

“The body was that of a middle-aged African man fairly well built and rather heavily muscled. He had suffered quite recently many incised injuries the most of which were:

(1) a cut on the left side running from the angle of the mouth running backwards and downwards to a point two inches below the left car;

(2) a smaller cut on the left side of the forehead to the left of the left eye brow;

(3) a straight cut over the right side of the head measuring six inches in length.

There were also cuts on the left leg—

(1) a deep cut on the left thigh about six inches in length running down across the knee joint, it also cut the tendon and opened into the knee joint.

(2) There was another cut on the inside of the ankle about six inches in length running parallel to the surface of the foot.

(3) A further horizontal cut on the outside of the right leg about seven inches above the ankle. In terms of seriousness, the cut on the left side of the face had severed the muscles of the jaw and some of the deeper muscles on the side of the neck … In my opinion the cause of death was due to shock and cerebral cedema (swelling of the brain) due to multiple lacerations and fractured skull of an incised nature.” When the appellant was arrested he made a statement to the police on the 7th October, 1962, in which he said,

“Yesterday the 6th October, 1962, I went to Kumasi early in the morning and I returned in the afternoon. When I returned, I met Mr. Dickson in my room. Although I locked the door before I left with the key, I was surprised

[p.420] of [1963] 2 GLR 417 to find him in my room. I do not know where he got the duplicate key from. He scattered my articles in the room and came out with a cutlass. He challenged me to talk if I were a man. He never used the cutlass on me, but went towards his room and told me he was going for a gun and would shoot at me. I also took up a cutlass which is mine from my room and went to him. I met him seated at the steering wheel of his private car. I thought he was going for the alleged gun from the car. I first of all cut the front tyre, smashed the front windscreen with the cutlass and I attacked him on the steering and gave him a slash on the head. He came out of the car and was about to run when I gave him another slash and gave him the last slash on the knee when he fell on the grass. I saw him to be unconscious, then I became frightened and I dropped the cutlass, which I picked up later. This happened in the presence of Mrs. Mua Dickson, Adubafour, the agriculture messenger and Apia-Adu.” The appellant’s evidence at the trial was substantially the same as the statement which he voluntarily made to the police on the 7th October, 1962, and which showed the circumstances under which the deceased came by his death. He was, however, convicted for murder and learned counsel who appeared on his behalf has argued in this court two grounds of appeal which are contained in the additional grounds filed on the 5th October, 1963, and are as follows: “(1) The learned judge failed to address fully on the question of the benefit of doubt; (2) The learned judge failed to address the jury on the law of provocation.” We may for the purpose of convenience deal first with the second ground of appeal which raises a very important question of law and which calls for a careful examination of the evidence to find out what was the extent of the provocation as disclosed by the evidence which counsel for the appellant complained, the learned trial judge failed to leave to the jury for their consideration.

In a murder trial, “If there is no sufficient material, even on a view of the evidence most favourable to the accused, for a jury . . . to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces the death, it is the duty of the Judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter.” See Holmes v. D.P.P.1 On the other hand, Lord Tucker, in delivering the judgment of the Board of the Privy Council in the case of Bullard v. R.2 said,

“if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable

[p.421] of [1963] 2 GLR 417 doubt that the killing was unprovoked. See such cases as Rex v. Hopper [1915] 2 K.B. 431 at 435 and Kwaku Mensah v. The King [1946] A.C. 83 at 93.”

See also R. v. Hall3 and the recent case of R. v. Porritt.4 But the defence of provocation must be considered in relation with the facts and circumstances of the particular case, and in relation to the particular person setting up that defence, bearing in mind that the burden of proving absence of provocation remains throughout on the prosecution.

A critical examination of the evidence shows that the deceased was unarmed when the appellant inflicted the wounds on him. At the trial the appellant said,

“I was standing by the garage and so he said if I was a man I should wait for him, he was going to bring a gun. I got frightened and in that state of anger I took the cutlass by the side of the garage. I cut the tyre of the car to prevent him from going to fetch the gun, and if he decided to change the tyre, the time he finished his anger would have abated.” There was no reason why the appellant should get frightened and consider himself to be in immediate fear of death, much less to say he was extremely provoked because the deceased had told him, by word of mouth, that “he was going to bring a gun.” The appellant was aware at the material time that the deceased would have to travel a considerable distance from the bungalow to fetch the gun; that was the reason why he “cut the tyre of the car to prevent him from going to fetch the gun.” But he did not end there. In his fury, he broke the windscreen and succeeded in cutting the deceased on the forehead with the cutlass. The deceased ran out of the car and the appellant chased him and inflicted several injuries on him. He became unconscious and died the next day. It is an established principle of law that mere words of threat or gestures, however aggravated they may be, will not be sufficient evidence of provocation (known to our law) to reduce a crime of murder to manslaughter. In the case of R. v. Semini5 where the issue turned on whether there had been provocation enough to reduce the crime to manslaughter, Lord Goddard C.J. made this authoritative statement of principle: “No one doubts that blows and probably threatening gestures if near enough and serious enough to cause loss of self-control may justify and indeed require the killing to be regarded as manslaughter only.”

It is abundantly clear, therefore, that threatening gestures or other circumstances of insults do not by themselves constitute sufficient evidence of provocation unless they are accompanied by “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 … as to be likely to deprive a person, being of ordinary character, and being in the

[p.422] of [1963] 2 GLR 417 circumstances in which the accused was, of the power of self-control.” See section 53 (a) of the Criminal Code, 1960.6

In our opinion there was not sufficient material before the learned trial judge to enable him to form the view that in the circumstances of this particular case, there was any evidence of provocation fit to be left to the jury. In the case of Kwaku Mensah v. R.7 we find that: “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.” This language must be considered in the context of the facts in this particular case when it would seem true to say that the learned trial judge was not bound to leave the issue of manslaughter to the jury as no matter of extenuation whatsoever was proved or could be inferred in law on behalf of the appellant. We find ourselves utterly unable to discover any fact from which any inference of provocation could legally be drawn so as to reduce such intentional homicide to manslaughter. That the deceased by word of mouth abused or threatened the appellant could not amount to a matter of provocation as to reduce the offence of murder to manslaughter. It appears to us therefore that the learned trial judge was entitled, as he did, to withdraw the issue of provocation from the jury when he concluded his summing-up under the head “defence of provocation” as follows: “When was accused provoked?” And turning now to the complaint in ground 1, that the “learned trial judge failed to address [the jury] fully on the question of the benefit of doubt,” it is sufficient to say that the summing-up on the question of benefit of doubt was adequate and coherent and was rather more favourable to the appellant. The learned trial judge explained to the jury exhaustively the meaning of reasonable doubt, having already addressed them on the essential elements which the prosecution had to prove to substantiate the charge against the appellant. He then concluded the summing-up as follows:

“1. Unless satisfied beyond reasonable doubt that accused inflicted wounds which caused death must find the accused person not guilty.

2. If satisfied beyond reasonable doubt that the accused inflicted wounds on deceased not in self-defence and that the injuries were the cause of death but not satisfied that the intention was to cause death, guilty of manslaughter.

3. If satisfied beyond reasonable doubt that accused inflicted wounds on deceased which caused death under extreme provocation, guilty of manslaughter.

4. If satisfied on the whole of the evidence that accused inflicted wounds on the deceased, that wounds were cause of death and that intention was to cause death and that wounds not inflicted in self-defence — guilty of murder.”

This ground of appeal is without any substance whatsoever and therefore fails.

[p.423] of [1963] 2 GLR 417

In our view the evidence in this case was simple, straight-forward and overwhelmingly against the appellant. We are unable to detect anything in connection with the trial or the verdict that could avail to support the appeal and we therefore dismiss it.

DECISION

Appeal dismissed.

K. T.