Division: IN THE COURT OF APPEAL
Date: 5TH OCTOBER, 1959.
Before: VAN LARE J.A. AS C.J., GRANVILLE SHARP J.A. AND OLLENNU J.
Homicide—Provocation—”an ordinary person of the community to which the accused belongs”—Considerations to be examined in judicial summing-up.
HEADNOTES
Kofi Atta did not at any time deny that he had killed his wife, Adjoa Buor, at Mpobi in Ashanti on the 9th December, 1958. Indeed, very shortly after he had done so he told others whose company he sought that he had done so, and he led them to the place at which her mutilated body lay in the bush, where he had been farming with her earlier in the day.
The body had already been found by a witness, Kwabena Opong, who had gone to inform the police. He had met Kofi Atta on the way, and when passing him noticed that his clothing was very much blood-stained, and that he was carrying a blood-stained cutlass. This cutlass was later shown by Atta to those he was taking to the scene of the killing. It was recovered by him from the sand in the bank of a stream, where he had buried it with a covering of leaves.
When asked by one and another of the people why he had killed his wife he first said that it was because she would not cohabit with him. He added that she had struck him in the face. He did not say that she had tried to strike him with a cutlass. He said that he had been highly provoked.
Kofi Atta was said to have lived happily with his wife. In his statement to the police, after caution, he described the events leading up to her death at his hand. He said that as they were leaving the farm a quarrel started between them. She abused him. She admitted that she had resumed, and meant to continue, sexual relationship with her ex-husband. She slapped him on the face and continued to abuse him. He concluded his statement in these words “I then got annoyed with her, and cut her with a cutlass, and she died.”
When he came to give evidence at his trial he gave details of the abuse that had been hurled at him by the deceased. She had called him a fool and a useless man with no sense, and had continued in this strain. Then he said that she gave him slaps on the face (which he retaliated), and they fought. She took a cutlass, and threw it at him. He dodged. He seized the cutlass from the ground, and (as he said) “as a result of extreme provocation I started using it on her.” She fell down, and he went away. Later he said that the deceased gave him three or four slaps, and that she spat at him as well as throwing the cutlass. Then he said she did not throw the cutlass, but she struck at him with it, and lie snatched it out of her hand. It was his own cutlass, and she had picked it up from where it was lying while he was preparing to help her to carry the load from the farm.
He said that he was provoked because she struck at him with the cutlass, adding: “I knew that if she got another chance she would kill me.” He protested that he remembered giving her only one blow, and could not explain how she came to have eight wounds.
At Kofi Atta’s trial for murder, Murphy J. put the issue of provocation to the Assessors; one apparently considered that there was provocation, the other two (and the learned Judge) rejected it. Atta was accordingly convicted of murder. He appealed to the Court of Appeal (Criminal Appeal No. 75/1959).
ARGUMENTS OF COUNSEL
Andoh for appellant (Atta). The trial-judge misdirected himself by failing to consider the likelihood of a slap on the face being provocative within the meaning of sec. 251 of the Criminal Code.
Glasgow for respondent (Crown). Matters which amounted in fact to extreme provocation were found by the trial-judge not to be such.
JUDGMENT OF GRANVILLE SHARP J.A.
Granville Sharp J.A. delivered the judgment of the Court:
The only point raised in support of this appeal is that the learned Judge, who sat with assessors, misdirected himself as to the law relating to provocation, the argument of learned counsel for the appellant being that if the learned Judge had properly directed himself in this regard he would have adjudged the appellant guilty not of murder but of manslaughter.
(His lordships stated the facts, and proceeded:)
Thus the issue for the consideration of the assessors and the learned Judge-and the only issue – was whether the provocation alleged (that is to say, provocation as our law understands the term) was such as, in the circumstances, sufficed to reduce the appellant’s crime from murder to manslaughter.
[p.339] of [1959] GLR 337
In his summing up to the assessors on this issue the learned Judge appears to have proceeded with considerable care. He drew their attention to the law and read to them every section of the Criminal Code that could assist them in their deliberations, and he did not neglect to explain to them for the purposes of section 252(1)(d) that “‘an ordinary person” shall mean an ordinary person of the community to which the accused belongs.’ He then proceeded to deal with, and to comment upon, the evidence, and he left the matter to them with the following concluding direction:- “If the deceased only used words of abuse and slapped accused on the face, would this be sufficient provocation? You may think not. Alternatively, if you think that accused’s story is true and that deceased attacked him with a cutlass, would this be sufficient provocation?”
With very great respect to the learned Judge, we think that at this stage his summing-up became incomplete. We think that he should have put it more clearly that what they had to consider was whether the words of abuse and an accompanying slap on the face would, in their view, be likely to deprive the accused (as a person of ordinary character, and being in the circumstance in which he was) of the power of self-control. Such a direction necessarily involves the question whether the accused was a person of ordinary character. It involves also an examination of the circumstances in which he was (which words include a consideration of his general circumstances) and of the community to which he belonged. We felt that it was a mistake at this stage to leave the assessors with an incomplete understanding, of what it was that they had to consider, and at the same time to be little the idea of provocation in this connection with the words, “you may think not.”
One of the three assessors gave it as his opinion that the appellant had acted under provocation, as appears from the fact that he said the offence was manslaughter. The others said that it was murder.
In his judgment the learned Judge, after describing the quarrel between the appellant and his wife as “a trifling one”, dealt with the issue as to provocation. He had earlier in the judgment rejected the story of an attempt by the deceased to strike the appellant with a cutlass and for this he cannot be criticised. He dealt with what remained for consideration as follows:-
“I find that if there was provocation it went no further than words of abuse, an admission of infidelity and a slap on the face. In my view this provocation did not reduce the crime to manslaughter.”
[p.340] of [1959] GLR 337
We think, again with great respect, that this, as recorded, indicates that the learned Judge did not fully consider the question of provocation, because it appears that he made no finding upon it except in a hypothetical and academic sense.
It is in our view of the highest importance that the law in relation to provocation in this country should be regarded as dictating that a defence of provocation should be carefully considered in relation to the facts and circumstances of the particular case, and (this even more important perhaps) in relation to the particular person who is setting up that he or she was provoked.
In this view we are supported by the opinion of the West African Court of Appeal (Blackall P., Verity C.J. and Lewey J.A.) in the case of Rex v. Igiri (12 W.A.C.A. 377). In that case an appellant who had been convicted of the murder of his wife had at his trial set up a defence of provocation, based upon his assertion that his wife had taunted him with incompetence and then spat on his face. He had shot her. His evidence in defence was uncontradicted and the learned Judge said in summing-up:
“The accuse elected to make a statement on oath and stated that he killed his wife because she taunted him with incompetence and then insulted him by spitting on his face. This he considered a deadly insult. He said that he was so angry that he lost his control and shot her with a gun that happened to be there, loaded in preparation for a hunting expedition. I therefore find Okeiyi Igiri guilty of murder as charged.”
As to this, Blackall P., delivering the judgment of the Court, said inter alia:
“It is apparent from the non sequitur that the learned Judge did not direct himself as to whether there was evidence of such provocation as might reduce the crime to manslaughter. This he should have done. In jury cases there should be a direction as to manslaughter when the evidence is such as might satisfy the jury that elements are present which would reduce the crime to manslaughter or induce a reasonable doubt on this question (Mancini v. D.P.P.), and a Judge trying a case without a jury should likewise take into consideration any such evidence. The Judge should have considered the question of provocation, for words of provocation, coupled with such an act as spitting upon the appellant may (though they need not necessarily) have the effect of reducing the crime from murder to manslaughter (R. v. Mason). Whether the act of spitting would have this result depends upon the effect such
[p.341] of [1959] GLR 337
an act would be expected to have upon a reasonable man of the appellant’s station in life (Rex v. Adekanmi). In primitive communities where the subjection of women is accepted as natural and proper, such an insult from a wife arouses more passion than in more sophisticated societies.”
In the words of Lord Goddard, “The tests have to be applied to the ordinary West African villager” (Kwaku Mensah v. The King) (11 W.A.C.A. 2 at p.7,). Whether the appellant in the present case lives in a primitive community does not appear. He is an Ashanti villager who farms in the bush. He was sworn on the Cross, gave his evidence in Twi- one of the Akan tongues – and made his mark to a statement to the Police in Twi. At least it appears that he is an illiterate. This may or may not be important. What we think to be important is that it should appear that the question of provocation has been fully considered and that a dear finding should be given on the question whether the provocation was such as to be likely to cause the accused, being a person of ordinary character, in the circumstances in which he was, to lose his power of self-control.”
We think it necessary to state what we consider to be the true meaning of section 251(1) of the Criminal Code. In our view the section first of all defines those matters which in law amount to provocation. It then makes it clear that these matters do not necessarily excuse a killing so as to reduce it from murder to manslaughter.
In the case, for example, of words of insult accompanied by a slap (assault and battery) this does not become extreme provocation unless the words and assault and other circumstances of insult “are to be likely to deprive a person, being of ordinary character, and such as being in the circumstances in which the accused person was, of the power of self control.”
It is quite clear that the situation and character of the accused person must be taken fully into account in seeking to do justice in such cases, and in any summing-up or judgment it should manifestly appear that such an important factor as that to which we refer has in fact been given the weighty consideration which it deserves.
If the answer to the main question is “Yes” then the provisions of section 252(1)(d) must be considered. They are: –
“Notwithstanding proof on behalf of the accused person of such matter of extreme provocation as in the last preceding section is mentioned, his crime shall not be deemed to be there by reduced to manslaughter if it appears, either from the evidence given on his behalf or from evidence given on the part of the prosecution.
[p.342] of [1959] GLR 337
“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.”
Here again, the situation and character of the accused person must be fully considered in the light of the general attributes of the community to which he belongs, and even in a case such as the present, where the wounding which caused death was inflicted with a murderous weapon, the before-mentioned matters and the circumstances must appear to have been fully considered. In the present case the weapon lying nearest to hand was a cutlass. In the Okeiyi case it was a gun.
We feel that the learned Judge, having dismissed the possibility of extreme provocation on what we think was an inadequate direction both to the assessors and to himself, cannot have given full consideration to the question which arises under Section 252(1)(d) of the Ordinance. If he had found on full consideration a likelihood of the loss of proper of self-control in the appellant, he might well, after further full consideration, have found that in the circumstances of this case the number and nature of the wounds inflicted with the instrument nearest at hand were in themselves indicative of the extent to which power of self-control had departed from the appellant.
As to this we cannot conjecture, and we do not. Our view is that it does not appear that the relevant matters were considered, and that in such circumstances it would be unsafe to allow the conviction for murder to stand.
DECISION
We therefore quash the sentence of death, set aside the finding that the appellant is guilty of murder and substitute a finding of manslaughter; the appellant to serve a sentence of 20 years imprisonment with hard labour.
