TORTO v. THE REPUBLIC [1971] 1 GLR 342

DIVISION: IN THE COURT OF APPEAL

DATE: 26 MARCH 1971

BEFORE: APALOO, JIAGGE AND SOWAH JJ.A.

CASES REFERRED TO

(1) State v. Konkomba, Court of Appeal, I 1 December 1967, unreported; digested in (1968) C.C. 43.

(2) State v. Twum, Court of Appeal, 11 December 1967, unreported; digested in (1968) C.C. 44.

(3) State v. Ali Kassena [1962] 1 G.L.R. 144, S.C.

NATURE OF PROCEEDINGS

APPEAL against a conviction and sentence for manslaughter entered on 11 December 1970 by Koi Larbi J. S.C. (sitting as an additional judge in the High Court, Accra) sitting with the aid of a jury. The facts are fully set out in the judgment of the court.

COUNSEL

Heward-Mills for the appellant.

Mrs. Joyce Amankwah, Senior State Attorney, for the respondent.

JUDGMENT OF APALOO J.A.

Apaloo J.A. delivered the judgment of the court. On 11 December 1970, the appellant was convicted by Koi Larbi J.S.C., sitting with a jury, of the manslaughter of Joseph Benjamin Ofosu Koranteng and was sentenced to seven years’ imprisonment with hard labour. The facts on which the prosecution relied are simple. Although it is not possible to reconcile completely the testimony of the various witnesses, the gist of the case which the Republic made against the appellant was as follows: At some time after 10 p.m. on 28 February 1970 the deceased and his nephew Asae were having a meal in their room. They then heard somebody call out to the deceased by name. That person was obviously in a fighting mood and challenged the deceased to a fight. The deceased came out of the room and the person uttered threats to him. That person was the

[p.344] of [1971] 1 GLR 342 appellant who then held a bottle. He and the deceased apparently exchanged words but not blows. Shortly after this, the appellant left in the direction of a bar described as Ayee Moko Sane. At the time the appellant left for the bar, the deceased sat in a lane through which the appellant passed. The latter threw a beer bottle at the deceased. He followed this up with stones. This apparently infuriated the deceased who chased the appellant and eventually caught up with him. The deceased and the appellant then fought and it seems clear that the deceased who then had an army belt beat the appellant with it. The evidence suggests that as the appellant was unarmed and was having the worst of the fight, he ran into the yard of the bar and emerged shortly afterwards with a knife. The fight apparently resumed and the evidence shows that when the deceased again began striking him with the belt, the appellant for his part, stabbed the left part of the deceased’s chest with the knife. The deceased was rushed in a taxicab to the Military Hospital but succumbed to his injuries that very night.

The appellant disputed this version of the facts. His version, put shortly, was this: On the night in question, he was passing through a lane which had become slippery and muddy with rain when he tripped and nearly fell. Some by-standers, about five in number, jeered at him. This resulted in an altercation between them. This soon developed into a fight in which the five men beat him with army belts. As he was getting the worst of the fighting he escaped, but the people chased him and caught up with him at a distance of about 300 yards. They then resumed the assault on him. This attracted a crowd and some well-meaning by-standers advised his assailants to desist from beating him. His attackers took offence at this and began insulting the onlookers. In the course of this, he made good his escape. He denied that he stabbed any person with a knife that night.

After all but one of the prosecution witnesses gave evidence, the court moved to the scene of the crime and the court and jury were shown various places of significance to the case. When the prosecution’s case eventually closed, the learned trial judge was invited to exercise his powers under section 271 of the Criminal Procedure Code, 1960 (Act 30), and withdraw the case from the jury. The trial judge decided against that and held that “there is some evidence or material for the consideration of the jury.” The appellant then narrated his version of the story as above. Thereafter, the learned trial judge gave a careful direction to the jury on all aspects of the case. Indeed, counsel for the appellant told us frankly that the summing-up was most favourable to the appellant. Such indeed was it that the appellant made no complaint before us against the summing-up. But the jury took only eleven minutes to reach a unanimous verdict of guilty of manslaughter. The appellant contests that verdict by this appeal. The most serious ground of appeal urged before us was that the learned trial judge was wrong in not withdrawing the case from the jury. It was submitted that there was no nexus between the stabbing and the

[p.345] of [1971] 1 GLR 342 death of the deceased. It was urged that there was no evidence of the identity of the person allegedly stabbed by the appellant and that if such person was in fact the deceased, the cause of death was not proved. In any event, Mr. Heward-Mills contended that Kofi Debrah, the first witness for the prosecution, was, on the trial judge’s own showing, an unreliable witness and Akweison the second prosecution witness who witnessed the stabbing, was drunk and his evidence could not be relied upon. It must be conceded that Akweison who said he witnessed the stabbing admitted that he did not know the person who was stabbed by the appellant and there was therefore no direct evidence that the person whose stabbing Akweison witnessed was the deceased. But that he in fact was, seems to us established by circumstantial evidence of a very cogent kind. That there was an affray earlier that evening between the appellant and the deceased was sworn to both by Debrah, the first prosecution witness, and Asae, the third prosecution witness. That affray did not end in the lane was also testified to by these witnesses. These witnesses swore that the deceased pursued the appellant. The appellant himself admitted in a statement to the police that the persons he fought with earlier on caught up with him at a distance of 300 yards and resumed the assault on him. It is obvious that if more than one person in fact assaulted him, one such person must have been the deceased. But Akweison, who witnessed the stabbing, said only one person fought with the appellant and that person beat the appellant with an army belt. Asae, who said that the deceased was his uncle, admitted that the latter had an army belt. Indeed the deceased appears to have been a soldier. According to Akweison, it was the man who was beating the appellant with an army belt whom the latter stabbed on the left chest.

The evidence also disclosed the motivation for the deceased beating the appellant with a belt. That is, that the appellant threatened the deceased and thereafter threw a bottle at him which apparently missed him. He followed this up with stones. It is against this conduct that the deceased apparently retaliated. It is established that the person with an army belt was stabbed that evening and died shortly after being admitted to the Military Hospital. We think that the inference is irresistible that the person whom the appellant stabbed that evening was the deceased. Accordingly, we reject the argument that there was no nexus between the stabbing and the death of the deceased.

As we said, Mr. Heward-Mills also contended that if the deceased was in fact the person stabbed, it was not proved that this caused his death. True, there is no medical evidence that the deceased died from a stab wound. Although a post-mortem was held on the body of the deceased, the doctor who performed it had left the jurisdiction of the court at the date of the trial and the decision of this Court in State v. Konkomba, Court of Appeal, 11 December 1967, unreported; digested in (1968) C.C. 43, precluded the Republic from tendering his report in evidence. But that decision as well as State v. Twum, Court of Appeal, 11 December 1967, unreported; digested in (1968) C.C. 44, decides that though medical [p.346] of [1971] 1 GLR 342 evidence is desirable, it is not essential. It is sufficient if the evidence shows that the act of the accused caused or accelerated the death of the victim. We think the evidence led in this case clearly showed this. The deceased “was said to be in good health. Indeed he must have been to engage in that contest of strength with the appellant. He was then stabbed in the left part of his chest and was immediately rushed to hospital. He died shortly after admission. In our opinion, it is impossible to avoid the conclusion that the death of the deceased was caused by the injury which he suffered as a result of the stabbing. It is true, as Mr. Heward-Mills pointed out, that the learned trial judge made a note that Debrah did not impress him. But the trial judge did not say any more than this and it is not quite clear whether there was some defect in his demeanour which failed to impress the trial judge. But we think if the witness exhibited any conduct which denudes his evidence of credibility, this is a matter for the jury. True, Akweison said he had ten new pesewas worth of akpeteshie. If the consumption of that amount of liquor made him so drunk that he could neither recollect nor give an intelligent account of what he witnessed, that was again a matter on which the jury were the best judges. The learned trial judge was not able to find that the evidence of these two witnesses “was so discredited in cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it.” On the contrary the learned trial judge thought the evidence was that on which a reasonable jury could act. It is not suggested that any ingredient of the offence of manslaughter was not established. This case does not therefore come within the principles laid down in the oft-cited case of State v. Ali Kassena [1962] 1 G.L.R. 144, S.C. We think therefore, there was a prima facie case of manslaughter for submission to the jury and that the trial judge was right in so ruling.

Counsel for the appellant’s next submission was, that if contrary to his contention, there was a prima facie case against the appellant, then he was entitled to an acquittal on the ground that he inflicted the harm in necessary self-defence. His own version of the facts was rejected by the jury and their verdict shows that they believed the prosecution’s account of the incident. The question therefore is, on those facts which we have related, was the legal defence of self-defence made out? Such a defence is provided by section 37 of the Criminal Code, 1960 (Act 29), and it reads:

“For the prevention of, or for the defence of himself or any other person against any crime, or for the suppression or dispersion of a riotous or unlawful assembly, a person may justify any force or harm which is reasonably necessary extending in case of extreme necessity, even to killing.”

Here, there was a fight which was unlawful within the meaning of sections 38 and 39 of Act 29. It was provoked by the appellant himself. As he was getting the worst of it, he retreated, as it was his duty to do. He was not pursued by the deceased. Had he not returned, there might have been an end of the fight. But he returned with a lethal weapon and used this on the deceased on a resumption of the fight. It is impossible to say that

[p.347] of [1971] 1 GLR 342 the harm which ended the deceased’s life was inflicted in “extreme necessity.” It plainly was not. On this issue the learned trial judge directed the jury as follows:

“[B]ut according to the second prosecution witness and if you accept his evidence on this vital issue that the accused retreated to the yard for about two minutes and returned armed with a lethal weapon, a knife, and when the man started beating him, he stabbed him with the knife; and if the stabbed man turned out to be the deceased, then gentlemen of the jury, I direct you as a matter of law that in the circumstances as described by the second prosecution witness the accused cannot avail himself of the defence of homicide in self-defence.” We think that direction was right and indeed counsel for the appellant found no reason to quarrel with it. We accordingly reject the contention that the appellant was entitled to be acquitted on the ground of self-defence. It follows that no good ground exists for disturbing the verdict of the jury and the appeal against conviction therefore fails. We are only left with the sentence which was also the subject-matter of complaint. It was submitted that the sentence of seven years’ imprisonment with hard labour passed on the appellant was much too severe having regard to his age and the circumstances in which the offence was committed. We think there is some force in this complaint and indeed it was only this aspect of the case that gave us some anxiety. The appellant is a young man in his middle twenties. He has only just left school and this is the first time that he has gone wrong. We do not think that the public interest is advanced by familiarising young persons with prison life; certainly not for long periods. We bear in mind that the appellant behaved as an unruly ruffian on the day in question and we are not unmindful of the present upsurge of crimes involving violence in the country. But nevertheless, it seems to us wrong to keep this young and first offender in prison for as long as seven years. Taking into consideration his extreme youth and his hitherto unblemished character on one side and the gravity of the offence on the other, we think the ends of justice will be met if the sentence is reduced to four years. Accordingly, we allow the appeal against sentence. We quash the sentence of seven years’ imprisonment with hard labour passed on the appellant and substitute for it one of four years’ imprisonment with hard labour. Save as to that, the appeal is dismissed.

DECISION

Appeal against sentence allowed.

T. G. K.