THE STATE v. KWAKU BRENYAH [1961] 1 GLR 250
19 May 1961 · VAN LARE JSC · ≈ 3 min read
[1961] SLR (SC) 36Other citation styles and permanent link
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DIVISION: IN THE SUPREME COURT
DATE: 19TH MAY, 1961
Beyfore: VAN LARE, SARKODEE-ADOO AND AKIWUMI, JJ.S.C.
CASE REFERRED TO
R. v. Idiong and Umo (1950) 13 W.A.C.A. 30.
NATURE OF PROCEEDINGS
Appeal against a conviction for murder before Apaloo, J. sitting with the aid of assessors in the High Court, Kumasi, on the 14th November, 1960.
COUNSEL
H. B. Apatu-Plange for the appellant.
K. Dua Sakyi for the respondent (the State).
JUDGMENT OF VAN LARE, J.S.C.
Van Lare, J.S.C. delivered the judgment of the court. [His lordship referred to the facts and continued:] Although neither malice, grudge nor motive is a necessary ingredient to a charge of murder in this country so long as the evidence establishes an intentional killing by a sane person as in this case, the prosecution is nonetheless not debarred from leading evidence from which any of these matters could be inferred. The evidence of the quarrel and fight between the deceased and the appellant prior to the killing from which malice is inferrable in this case was that of the appellant’s wife, a witness for the prosecution; and this gave ground for the only legal point taken in this appeal. It was argued that because the appellant’s wife swore on the Bible when she gave evidence, the presumption was that she was a Christian wife and therefore not a compellable witness and the judge should not have allowed her to be called by the prosecution. This would have been a point of some importance as in law a wife, meaning a Christian wife, is not a compellable witness against her husband. But in the present case apart from the fact that the conviction does not rest on evidence of the [p.252] of [1961] 1 GLR 250 appellant’s wife, it is clear on the evidence that the witness concerned is a wife of a marriage contracted according to native custom, and she is therefore not a wife of a Christian marriage. “Husband” and “wife”, according to the Criminal Procedure Code, section 2 1(1) mean a “husband and wife of a Christian marriage,” which is also defined by the same section to mean “a marriage which is recognised by the law of the place where it is contracted as the voluntary union for life of one man and one woman to the exclusion of all others.” In view of the clear evidence of the witness herself that she is a wife of a marriage in accordance with native custom, the presumption that she is a Christian wife cannot arise, as marriage under native custom is not a union for life of one man and one woman to the exclusion of all others. In the case of R. v. Idiong and Umo 2(2) it was held that evidence of a wife is not admissible unless it is proved affirmatively that she is a wife of a non-monogamous marriage.
In conclusion we refer to section 123 of Cap. 10 which makes the witness complained of a compellable witness against her husband. We have no alternative but to dismiss the appeal.
DECISION
Appeal dismissed.
