KPILFA DAGARTI v. THE STATE [1961] GLR 159

DIVISION: IN THE SUPREME COURT

DATE: 17TH MARCH, 1961

BEFORE: VAN LARE, SARKODEE-ADOO AND AKIWUMI, JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL against conviction for murder, by Apaloo, J., sitting with assessors in the High Court, Kumasi, on the 13th December, 1960.

COUNSEL

B. K. Tamakloe for the appellant.

K. Dua Sakyi for the respondent (the State).

JUDGMENT OF SARKODEE-ADOO, J.S.C.

Sarkodoe-Adoo JSC. delivered the judgment of the court. [His lordship referred to the facts and continued:] The appellant’s cautioned statement (exhibit B) which he admitted making to the police is as follows: “I knew Kolokelo Dagarti. His father and my father are brothers. I know that he was dead. We stayed in the same house. I married one Webb Dagarti about three and half years ago at Zambor. My wife became pregnant and she was seduced by Kolokelo Dagarti. During my late wife’s delivery her condition became serious so I questioned her as to whether she had committed any offence against their shrine. I was alone with her. She told me that Kolokelo had seduced her and immediately after that confession she died. I did not inform my father or the family about that. After the funeral celebrations of my late wife I married another woman called Cheletobe Dagarti from Zambor. Kolokelo again seduced the second woman also. I have personally met them sleeping on one bed in Kolokelo’s room between three to fourntimes. They used to pass nights all through the night until morning. At one time my wife came to me to sleep. I attempted to have sexual connection with her but she refused, meaning in Dagarti custom that she had been seduced by another person. At dawn the woman after struggling and refusing connection ran to Kolokelo’s room. I chased her and with difficulty I brought her back to my room. In the morning Kolokelo told me frankly that he was going to take my wife from me. I did not inform my father or anybody in the house. My wife bolted away to her parents. I went to my wife’s father and informed him that my wife had refused to pass the night with me hence she had bolted away and that I had not driven her away. I did not inform my father-in-law that Kolokelo had seduced my wife. After that report to my father-in-law my wife had been visiting Kolokelo frequently. I became annoyed because he was the cause of my first wife’s death. One day I accompanied my father, Kolokelo and Manudu Dagarti to Nawonyle village and drank some pito. The following day during the evening in an angry mood I went to Kolokelo’s section and began to advise him to refrain from the ill treatment to me. Kolokelo became annoyed so we rushed at each other and as I had my native axe I struck him with it. I then ran away to the bush to hang my self. I therefore climbed a tree and fell down. It was sometime that I saw that I was in Jirapa hospital with injuries. My father informed me that I had killed Kolokelo. I was only discharged yesterday. Kolokelo had one wife with two children”. In his evidence at the trial he admitted ownership of the axe (exhibit A) which he carried with him to Chelle’s house, where they had the drinks. According to him, he just took it there as a walking stick. [p.161] of [1961] GLR 159

His evidence continued as follows:

“When I returned [meaning from Chelle’s house] there was a fight between me and deceased. The fight was about my wife. Kolokelo brought the fight about. I went to deceased to question him about his relations with my wife. Deceased then gave me a blow at my back with his hand. As soon as deceased gave me a blow I returned the blow by hitting him in turn with my axe exhibit A. If I had not done so he would have killed me. As I drew near deceased did not hesitate in giving me the blow. There was no struggle. As soon as I gave him the blow I ran and climbed a tree. I did so in order to kill myself. I later found myself at Jirapa hospital. I did not know how I got there. After my discharge I was taken to police station. I there saw Inspector Biney. I know P.W.6. Inspector asked me whether I know why I was taken to Jirapa hospital. I said I did not know. Inspector asked me whether I had any trouble with deceased. I told him deceased had had some dealings with my wife. I went to advise him to desist and the fight arose. Deceased chased my second wife about a year ago. I did not intend to kill my brother. I used the axe to free myself. Deceased was bigger and stronger than myself. I thought deceased was going to kill me because of the blows he gave me indiscriminately. Deceased gave me the blows twice. First blow was on left rib, second blow on right shoulder. Deceased was not holding anything.”

The salient feature of this case are as follows: There was no eye-witness of the incident but the appellant. The court was left with nothing but the appellant’s evidence. The weapon (exhibit A) is an ordinary instrument people in the North usually carry about. In the appellant’s cautioned statement and his evidence his acts complained of appear to have been committed in a heat of passion due to provocation. The evidence clearly shows the deceased, who has been described throughout the trial by the prosecution witnesses and the appellant as older, father and stronger, was the aggressor. On the evidence before the trial court, we are of the opinion that the learned trial judge erred in holding that the appellant was on the offensive and also failed to consider the question of provocation as indeed he observed in the course of his judgment as follows: “In this court the accused admitted striking the deceased with the axe. He also admitted that the deceased was unarmed, yet he says he did this in his own self defence. Accused himself provided in his statement to the police and in this court, the strongest possible motive for murder. I disbelieve the accused when he says the deceased gave him a blow. In my judgment all the circumstances suggest that the accused was absolutely on the offensive, and deceased may have warded off a blow in his own self-defence. If anybody needed to defend himself, it was to my mind, the deceased. He was unarmed and was absolutely defenceless. “I can find no evidence of provocation. Far from acting under any provocation, the evidence seems to me to suggest strongly that the accused acted from a previous purpose to do away with the deceased. That was why he invited him and his father to drinks and himself had drinks. I accept the evidence that the accused was not drunk and he only took opportunity to wreak vengeance on the deceased in a particularly cruel and savage way because he believed on absolutely flimsy grounds that the deceased had been in the habit of associating with his wives. The accused disappeared from the house after killing the deceased and as he himself confessed went to hang himself. I don’t see why he should seek to destroy his own life, if as he claims, he killed the deceased in necessary self-defence.

“I find it proved beyond any possibility of doubt that the accused intentionally caused the death of

Kolokelo by unlawful harm and have no hesitation whatsoever in finding him guilty of murder as charged and convict him.”

We agree with the contention of learned counsel for the appellant and the admission of learned Senior State Attorney that the learned trial judge failed to consider the question of provocation well raised on [p.162] of [1961] GLR 159 the evidence, and we think that had there been a proper direction the verdict would have been one of guilty of manslaughter and not of murder.

In the circumstances we quash the conviction for murder and substitute therefor a conviction for manslaughter and sentence the appellant to 7 years I.H.L.

DECISION

Save as indicated the appeal is dismissed.

Conviction for manslaughter substituted.