COURT OF APPEAL
DATE: 10TH JULY 1967
BEFORE: OLLENNU, AZU CRABBE AND APALOO JJ.A.
CASES REFERRED TO
(1) Owens v. H.M. Advocate 1946 S.C. (J) 119 cited in R. v. Chisam (1963) 47 Cr.App.R. 130, C.C.A.
(2) R. v. Lobell [1957]1 Q.B. 547; [1957] 2 W.L.R. 524; [1957]1 All E.R. 734; 41 Cr.App.R. 100; 101
S.J. 268, C.C.A.
(3) Larti v. The State [1965] G.L.R. 305, S.C.
(4) R. v. Grunshie [1959] G.L.R. 125, C.A.
(5) R. v. Adamu (1944) 10 W.A.C.A. 161.
(6) R. v. Knock (1877)14 Cox C.C.1.
(7) R. v. Driscoll (1841) Car. & M. 214; 174 E.R. 477.
NATURE OF PROCEEDINGS
APPEAL against conviction and sentence of the appellant for murder in a trial by jury. The facts are
sufficiently stated in the judgment.
COUNSEL
D. O. Lamptey for the appellant.
E. V. A. Kisseih, Senior State Attorney for the respondent.
JUDGMENT OF AZU CRABBE J.A.
Azu Crabbe J.A. delivered the judgment of the court. The appellant in this case was convicted on 28 February 1966, before Archer J., sitting with a jury, of the murder of one Yaw Mensah on 23 October 1965, at Nkwanta village, in the Central Region of Ghana, and was sentenced to death. Against this conviction and sentence he has now appealed to this court. The appellant was the only eyewitness to the crime, and it would appear that the sole issue at the trial was whether the appellant killed the deceased in self-defence. No question of credibility arises in this appeal, and the only point is whether the inference to be drawn from the proved facts supports the plea of
self-defence according to the law of Ghana. Our law which is contained in section 37 of the Criminal Code, 1960 (Act 29), 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
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justify any force or harm which is reasonably necessary extending in case of extreme necessity, even to killing.”
We think that the use of force or harm in this section is subject to the limitation stated in section 32 of the Code which governs all sections relating to the grounds on which force or harm may be justified.
Section 32 provides as follows:
“Notwithstanding the existence of any matter of justification for force, force cannot be justified as having been used in pursuance of that matter –
(a) which is in excess of the limits hereinafter prescribed in the section of this Chapter relating to that matter; or
(b) which in any case extends beyond the amount and kind of force reasonably necessary for the purpose for which force is permitted to be used.”
The material facts as narrated by the appellant in his sworn testimony are as follows:
“On 22 October 1965 I was at Abuakwa Nkwanta. I went to Buabeng. I went to Buabeng with my wife and our daughter who was sick. I returned the same day. On the following day about 8 a.m. I visited my farm to inspect my traps. I went with a gun and a cutlass. The place I went was near Yaw Mensah’s farm. It is a place anybody can go. I went to Yaw Mensah to get palm-wine to drink. He did not give me the palm-wine.
He told me he would not give me the palm-wine. He said I was placarding that he had taken my divorced wife. I asked him who told him that. He said he was only telling me. He said he was not like me. If he tapped his palm-wine, he made good use of the proceeds. But that when I tapped palm-wine, I spent the proceeds on women. He was annoyed when he said this. I tried to explain to him that I had not been placarding his name. He said that if I had been divorced by my wife because I could not look after her, he was married to her and I had no right to placard his name. I replied that I was married to my divorced wife for a long time and if I had not looked after her well, she would not have stayed with me for a long time. When he said this I was annoyed. Yaw Mensah then said, `You are a fool, you are a beast, if you are sensible, you would not have acted like this’. He also said that I must get out of the place or he would slap me. I told him that he was stouter but in a fight stoutness did not matter and that if he wanted to fight me I would fight him. Immediately afterwards he slapped me and one of my
[p.516] of [1967] GLR 512
upper teeth in the right cheek fell down. I retaliated and we started to fight. We fought for a very long time and Yaw Mensah was in trouble and he took his cutlass nearby and I also went and took mine. I was shouting somebody must come. Nobody came and when I took my cutlass, I stood and invited the deceased to come. As he was advancing, I shouted the name of my fetish – `buammu’ – to save me. Yaw Mensah’s cutlass fell from his hand. And I slashed him with mine. He rushed on me and put me down and wanted to take my knife from me. I got up on my feet and slashed him again. He wanted to hold me again and I gave him another slash. He wanted to take the knife from me. When he had no longer strength to hold me I stopped. I left him there and went to my village. On the outskirts of the village I found the odikro, the third prosecution witness and the fourth prosecution witness. I proceeded to my house. I was told that I was wanted by the odikro. I went and put my gun and cutlass in my house and changed my cloth as I was going to the house of the odikro. At the odikro’s house, I was asked by the odikro what happened.” The odikro who gave evidence said that the appellant told him simply in the presence of another witness that he had killed the deceased because of his divorced wife, and produced the cutlass he had used in killing the deceased. In his statutory statement before the committing magistrate at the preliminary inquiry the appellant said that he was relying on the statement he made to the police, and added, “I killed Yaw Mensah in self-defence.”
The first ground argued by Mr. D. O. Lamptey in support of the appeal was that the learned judge’s direction appears to have thrown upon the defence the onus to establish the plea of self-defence or provocation. We pointed out to counsel that there was no justification for such criticism of the summing-up. Counsel did not therefore press the point, and we think that it was the proper course to take, since we do not find any merit whatsoever in this ground of appeal, which must fail. The next ground that counsel argued alleges misdirection on self-defence, and referred to the following passage in the summing-up notes, “His answer to the charge is that he acted in self-defence in preservation of his life and he is relying on section 37 of the Criminal Code which provides that a person may defend himself even to the point of killing.” Counsel submitted that apart from referring to section 37 of the Criminal Code, 1960 (Act 29), the trial judge did not address the jury on self-defence. We think that it was the duty of the learned trial judge to explain the provisions of section 37 to the jury, and that having failed to do this, he erred.
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But in our opinion the learned trial judge erred in favour of the appellant, because a plea of self-defence would not avail an accused person under our law, unless he could lead some evidence to show (1) that the harm which he caused to the deceased, resulting in the latter’s death, was reasonably necessary; and (2) that he caused the harm in circumstances of extreme necessity, that is, that short of killing the deceased, there was no other means of saving his own life. It is sufficient if the accused believed on reasonable grounds, though mistaken in his belief, that his life was in danger. We think that this is in accord with the view of the Lord Justice-General, Lord Normand, when he said in Owens v. H.M. Advocate 1946 S.C. (J.) 119, cited in R. v. Chisam (1963) 47 Cr.App.R. 130 at p.134,C.C.A.:
“self-defence is made out when it is established to the satisfaction of the jury that the panel believed that he
was in imminent danger and that he held that belief on reasonable grounds. Grounds for such belief may
exist though they are founded on a genuine mistake of fact.”
It would appear, therefore, that the direction contained in the passage quoted from the summing-up stated
the law too favorably to the appellant. Counsel for appellant however contended that the learned trial judge misdirected the jury by failing to direct them that if they were in doubt as to whether the appellant acted in self-defence they should acquit. Counsel relied on the English authority of R. v. Lobell [1957]1 Q.B. 547, C.C.A. where a conviction for murder was quashed due to the trial judge’s failure to direct the jury that the prisoner was entitled to acquittal, if on consideration of the whole evidence they were left in doubt whether the prisoner was
acting in necessary self-defence.
The learned trial judge’s direction in this case on self-defence is contained in the following passage of the
summing-up notes:
“Thirdly, if jurors feel that the accused killed the deceased in self-defence and he was justified in killing the
deceased, the law permits them to bring in a verdict of not guilty in which case the accused would be
acquitted and discharged. In considering the explanation of the accused, even if jurors do not believe that he acted in self-defence, they should consider whether it is reasonably probable that he acted in self-defence.
Jurors should consider the whole evidence adduced by the prosecution and the defence. Jury should bear
in mind that, although accused suffered no external injuries assuming there was a fight, it is possible for
two persons to fight with their fists and yet one would come out without injuries.”
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The directions in the last paragraph of the above passage were the judge’s last charge to the jury, and it is
clear that the learned trial judge’s direction in the opening sentence of the paragraph is incomplete, for he
should have gone further to tell the jury that if after considering the whole evidence they were left in
reasonable doubt whether or not the defence of self-defence had been made out they should acquit the
appellant. We think that this is a serious flaw in the summing-up, but that it occasioned no substantial
miscarriage of justice.
Counsel for the Republic, Mr. Kisseih, appears to have conceded the defect in the summing-up, but he submitted that the nature of the wounds as described by the medical witness is such as to negative self-defence. He cited Larti v. The State [1965] G.L.R. 305, S.C. where it was held that the nature of the
injury inflicted may displace a defence of self-defence or provocation.
In answer to this submission counsel for the appellant cited R. v. Grunshie [1959] G.L.R. 125, C.A. and
R. v. Adamu (1944)10 W.A.C.A. 161. In the first case it was held that in considering whether a killing is
justified by section 63 (4) of the Criminal Code, Cap. 9 (1951 Rev.), (now Criminal Code, 1960 (Act 29), s. 37), the question is whether the act done was in necessary self-defence, not whether the act went farther than was necessary in self-defence. Delivering the judgment of the court van Lare J.A. said at p.127: “It is our opinion that the question of revenge, or a consideration of the degree or quantum of force used, cannot arise where the facts (as in this case) come within the provisions, of section 63 (4) of the Criminal Code as to self-defence. Under those provisions there is no limit to the force or harm that may be used in necessary self-defence against murder, though under sub-sections (1), (2) and (3) of that section there is a limit in each case to the force that may be used, or harm inflicted, in self-defence in the instances enumerated.” The learned judge further said at the same page:
“In any case, the question that had to be decided was whether the act done was in necessary self-defence, and
not whether it went farther than was necessary in self-defence. Homicide is justifiable as soon as the act done is found to be in necessary self-defence. In the present case, it does appear to us that the learned Judge had no doubt that the act was in fact done in a case of extreme necessity, and in necessary self-defence.”With the greatest respect to the judges of that court, we do not think that it is quite right to say that the law imposes no limit on the
[p.519] of [1967] GLR 512
amount of force to be used in necessary self-defence against murder. Section 63 (4) of Cap. 9 itself provided that a person may justify “any necessary force or harm” for the protection of himself against murder. To justify the use of force or harm under that section, therefore, it must be shown that it was reasonably necessary in all the circumstances to use it. Further, a person can justify the killing of another in self-defence, only in the “case of extreme necessity.” So that where the person charged with killing his assailant could have avoided the act, say by easily escaping from his assailant, or could have reasonably repelled the attack without inflicting any serious harm, he cannot justify the killing of his assailant. These limitations on the use of force are to be found in section 57 of the Criminal Code, Cap. 9 (now Criminal Code, 1960 (Act 29), s. 32), and it would appear that the court in R. v. Grunshie (supra) did not direct its attention to this section. We however agree that once the facts come within the provisions of section 37 of the Criminal Code, 1960 (Act 29), the degree or quantum of force used is irrelevant if it is shown that the killing was in circumstances of extreme necessity.
As regards R. v. Adamu (supra) we would like to point out that this is a Nigerian case, and the observations in that case may refer to a peculiarity of the Nigerian temperament. But those observations are derogatory of the African race in general, and we do not think that they reflect the view of the majority of colonial judges from the metropolitan country, who served in this country. We hope that counsel practising before out courts will help to have this case completely “wiped off the slate,” to use Lord Dunedin’s metaphor.
In view of the submission of counsel for the Republic, it is necessary to look at the evidence much more closely. The medical evidence shows that the deceased was literally butchered to death: there were injuries all over his body, back and front, and according to the medical witness the wounds would have been inflicted from all directions. But the description which this witness gave of the wounds on the limbs of the deceased seems to us to be not without significance. He said:
“Injuries on the limbs – on the outer aspect of the upper half of the right arm was a deep incised wound of about two and a half inches long. There was a semi-circular shape incised wound about two inches in diameter on the radial half of the dosal surface of the right hand with the underlying tendons and bones exposed. Another very deep incised wound about four to five inches long was found on the palmar surface stretching from the natural aspect of the wrist to the tip of the right thumb. On the left forearm was a deep incised wound about two inches
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long. There was an extremely deep incised wound about six inches long stretching from above the wrist to the palm and cutting almost all the tendons on the left wrist. There was a similar deep wound about two inches long on the ulnar side of the left palm.”
In our opinion the descriptions of the wounds on the arms and hands of the deceased become more meaningful if that evidence is considered together with the appellant’s evidence of what happened immediately before he attacked the deceased. The appellant said that after he and the deceased had fought for a long time the deceased took his cutlass, and he also went and took his, and to quote his words “I stood and invited the deceased to come.” We do not think that a person who stands his ground and challenges his opponent to a deadly fight can reasonably be held to be a person who believes that his life was in imminent danger. According to the appellant as the deceased advanced towards him and he mentioned the name of his fetish the cutlass fell from the hand of the deceased. Then in the words of the appellant, “And I slashed him with mine.” He continued to slash him until the deceased became too weak to hold him and he stopped. This narrative by the appellant is not quite consistent with this portion of his evidence about the same incident: “When Yaw Mensah took his cutlass and I also took mine, Yaw Mensah ran after me and I shouted the name of my god and the cutlass fell from his hand. I turned myself to go away, then Yaw Mensah took his knife again. He raised his knife to cut me but I also raised mine and slashed him. He was coming again and I cut him. After the incident I went to the village and made up my mind to report the matter to the odikro.”
The following answers which the appellant gave to questions are also pertinent:
“Q. Is it not correct that the first blow you struck with your cutlass slashed Yaw Mensah’s head?
A. No.
Q. Where did your first blow hit?
A. When his cutlass fell and he bent down, I slashed him and the cutlass cut him at the back of his head.
Q. Were you behind him?
A. No. I was in front of him.
Q. When the blow hit him, he fell down and rolled on the ground?
A. He got up and attempted to come after me. He was standing holding his knife…
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Q. Did you run out of breath when Yaw Mensah chased you?
A. I ran out of breath.
Q. How far did you run?
A. From the witness box to the door on the south – about 36 to 40 feet. He chased me for that distance.
Q. Yesterday, you said you invited him to come?
A. As he was chasing me, I turned round and found that he was coming and so I asked him to come.
Q. How tired were you at that point?
A. I was tired. I had no stamina to run again.
Q. But you had sufficient stamina to raise a cutlass?
A. As Yaw Mensah raised his cutlass, I also raised mine.”
In his cautioned statement which he made to the police on 24 October 1965, the appellant referred to his
quarrel with the deceased and then said:
“This resulted into a fight between us when he took his cutlass and attempted to slash me with it. I mentioned
my juju’s name and the cutlass fell down from his hands. I took mine and slashed him. I returned to Nkwanta
village and informed Kwaku Bosompim, the odikro of the village in the presence of one Kwesi Antoh and Kwame Frimpong of it.”
The appellant did not tell the odikro, Kwaku Bosompim, that he had been threatened with a cutlass by the deceased. All that the odikro said the appellant told him was that he had killed the deceased with a cutlass. The reason which the appellant gave the odikro for killing the deceased was that the deceased had been flirting with his divorced wife.
On a close examination of the medical evidence in respect of the injuries on the hands and palms of the deceased it would appear that the deceased was killed when he was trying empty-handed to parry the cutlass onslaught on him. That this is what must have happened can be readily inferred from the evidence of the appellant himself who said that after the cutlass of the deceased had fallen from his hand he slashed the deceased with his own and continued this onslaught until the deceased became weak. This aspect of the matter he told the police the next day when the facts were clear in his mind. We have no doubt that if the deceased had chased him or tried to take the cutlass from him he would have said so at the first opportunity when he made his statement to the police. The first slash cut the deceased on the back of the head, and considering the evidence it seems that the appellant was not in imminent danger of losing his life. There might have been a fight between the deceased and the appellant, but if we may respectfully refer to the dictum of
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Lindley J. in R. v. Knock (1877)14 Cox C.C.1 at page 2:
“if a man attacks me, I am entitled to defend myself, and the difficulty arises in drawing the line between mere self-defence and fighting. The test is this: a man defending himself does not want to fight, and defends himself solely to avoid fighting. Then supposing a man attacks me and I defend myself, not intending or desiring to fight, but still fighting – in one sense – to defend myself, and I knock him down and thereby unintentionally kill him, that killing is accidental.”
We think that in this case it is more probable that the deceased was rather defending himself against the vicious attack made on him by the appellant. And granted that it was the deceased who first attacked him we think that if the assault had ceased when he retaliated, his conduct amounted to revenge and not defence. In R. v. Driscoll (1841) Car. & M.214, Coleridge J. summed up the law as follows at pp. 214-215:
“If one man strikes another a blow, that other has a right to defend himself, and to strike a blow in his defence, but he has no right to revenge himself: and if, when all the danger is past, he strikes a blow not necessary for his defence, he commits an assault and a battery. It is a common error to suppose, that one person has a right to strike another who has struck him, in order to revenge himself, and it very often influences people’s minds; and I have, therefore, thought it right to state what the law upon the subject really is.”
The police officer who was in charge of investigation said that when he visited the scene of crime he saw no instrument around. The evidence of the odikro and the other witness to whom the appellant confessed that he had killed the deceased provides the motive for the killing. The appellant’s own evidence seems to support this, for he said under cross-examination that he would not feel happy if he saw his ex-wife going with another man.
The appellant was the only witness to the crime and his defence was substantially self-defence. The evidence in support of this plea is that the deceased attacked the appellant with a cutlass, and that the only course open to the appellant to save his own life was to kill the deceased. The prosecution whose duty it was to negative this defence relied partly on the evidence of the appellant himself, his statement to the police, the medical witness and the evidence of two independent witness to whom the appellant had given his reason for killing the deceased. By their verdict the jury rejected the appellant’s plea of self-defence, after a summing-up on the law of self defence, which was entirely favourable to the appellant.
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We do not sit here to re-try cases on appeal, and where there was evidence on both sides and the verdict is one which a reasonable jury could arrive at, it is not for us to interfere, even though we may feel that we might ourselves have come to an entirely different conclusion. In the present case there was sufficient evidence upon which the jury could act, and the summing-up, except in one respect, was adequate and fair to the defence. In our opinion, therefore, there is no sufficientreason for interfering with the verdict of the jury and the appeal is accordingly dismissed.
DECISION
Appeal dismissed.
K. S. N.- D.
