KLUVIA v. THE STATE [1965] GLR 715

DIVISION: SUPREME COURT

DATE: 6 DECEMBER 1965

BEFORE: OLLENNU, BRUCE-LYLE AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) R. v. Gyamfi [1960] G.L.R. 45, C.A.

(2) R. v. Ojojo [1959] G.L.R. 207, C.A.

(3) Lutterodt v. Commissioner of Police [1963] 2 G.L.R. 429, S. C.

(4) Nungu v. R. (1953) 14 W.A.C.A. 379. (4) Republic v. Aholo, Supreme Court, Cyclostyled Judgments, July-December 1961, p. 17.

(5) Republic v. Moshie, Supreme Court, Cyclostyled Judgments, July-December 1961, p. 52.

NATURE OF PROCEEDINGS

APPEAL from a conviction for murder at the Criminal Session of the High Court held on 27 August 1964 by Archer J. sitting with a jury. The facts are set out in the judgment of Siriboe J.S.C.

COUNSEL

Annancy for the appellant.

S. M. Boison, Principal State Attorney, for the respondent.

JUDGMENT OF SIRIBOE J.S.C.

Siriboe J.S.C. delivered the judgment of the court. At the Criminal Session held in Accra on 27 August

1964 by Archer J. sitting with a jury, the appellant was convicted of the offence of murdering his wife, one Ami Sovor, in the bush at Oworobong on 4 September 1963. It is against that conviction that the appellant has appealed to this court.

The facts relied upon by the prosecution are as follows: On the eventful day in question, the deceased, then about 28-30 weeks’ pregnant went to their farm. On the same day, both the second and third prosecution witnesses who apparently came from the same town as the appellant also went to their farms situated in that neighbourhood—about 100 yards and 300 yards respectively, from that of the appellant.

Whilst working there in the morning, the second prosecution witness heard somebody shouting “I am dying, I am dying, come to my aid.” On hearing this the second prosecution

[p.717] of [1965] GLR 715 witness in turn shouted for the third prosecution witness who went to him and both proceeded to the direction from where the alarm or shout was heard. On arrival there, they found the deceased lying in a pool of blood with fresh wounds on her. When questioned by the second prosecution witness about those wounds, the deceased whose condition at the time was so critical and helpless, as the evidence shows, replied “It was the husband,” referring to the appellant, who had “cut her with a cutlass.” Thereupon the two witnesses went after the appellant whom they met in his house, and when asked by the third prosecution witness why he had returned home, the appellant said “he went to the farm and killed his wife and came back home.” To a further question why he did that the appellant made no reply. He was then taken to the Krontihene of the place by the second and third prosecution witnesses and later the police were informed. Accompanied by the police and the two witnesses, the appellant went to a spot near the road where he pointed out a cutlass to them, possession of which the police took, and the appellant was escorted to Mpraeso Police Station.

The two witnesses also led the police to the spot in the farm where the deceased was lying. She was dead.

The fourth prosecution witness, a police photographer, then took a photograph of the deceased after which the body was removed to the Atibie hospital for post-mortem examination. A look at the medical officer’s evidence reveals the following:

“She was pregnant about 28 to 30 weeks. There were two deep cuts on the face on the left side from the angle of the mouth and the other just above the left ear—partially severing the upper jaw. On the right side from the angle of the eye there was deep cut through the eye to the front of skull exposing the brain. A cut on the right shoulder and the right mist out. There was a cut on the left hand across the fingers—she had grasped the instrument which touched her. The abdomen was opened by me and I opened the uterus and removed the foetus approximately 6 months in gestation. In my opinion the cause of death was due to the serious cut on the right side which had exposed the brains.”

He then concluded by saying that a very sharp instrument such as the cutlass exhibited at the trial would be sufficient to inflict the wounds described by him. In addition to the above were the two statements made by the appellant; the first to the police on caution in the presence of an independent witness, and the second to the committing magistrate both of which form part of the case for the prosecution.

[p.718] of [1965] GLR 715

In the statement to the police, the appellant spoke about their married life which he described as very cordial, then about how he queried the deceased the previous night for returning home late from the farm that day, and her refusal to pass the night with him on the same bed. Then also, he told how he followed the deceased, who had earlier taken the lead, to one of their farms carrying with her the food she had prepared for him and continued:

“When I was going I met her coming from the farm. I asked her to stop. When she stopped I instructed her to come home earlier as she was late on 3 September 1963 in returning to the house. When I queried her, she also told me that she has nobody to do the job for her in the house so she would not be in, in time. I also instructed her to take some of the corn to the corn mill and grind for me so that I find some two people to help me tomorrow 5 September 1963 in my farm to gather the head of my corn. She did not agree. At this juncture, I do not know what happened to me to kill her. I used my cutlass which I was carrying on her. I cut her five times. I first cut her on the forehead and she fell down. I cut her again on the head, the shoulder and two on the arm. There was nobody at the scene. After cutting her with the cutlass I left her in the farm and came home. When I was returning to the house I attended nature’s call on the way and hid the cutlass in the bush. Whilst I was in the house, one Atsu Ladzekpo [referring to the third prosecution witness] came to me and asked of the reason why I killed my wife. . . . I was arrested and sent to the Krontihene’s house. I was there when the police came to collect me. I have no trouble with my wife. I have never one day fought with my wife. She is now put in a family way for seven months ago.”

In the other statement to the committing magistrate, the appellant said, “It was not my intention to kill my wife. I did not know what happened to me to kill her.”

At the trial, however, which was some time in August 1964, almost a year after the incident, the defence put up was that when the appellant asked the deceased to return home early to prepare some corn flour for him:

“she was retreating, i.e. going backwards as I was speaking to her. She replied that she would not return home early. She thought I was going to beat her. She hit me with the cutlass which she was holding. I also retaliated by striking her with my cutlass. She held my sexual organ (penis) dragging it and so I hit her again.

After that I was arrested by the second and third prosecution witnesses in my house . . . I was asked why I hit

[p.719] of [1965] GLR 715 my wife with the cutlass but I made no reply. I am now giving the court the reason for hitting her with the cutlass — She hit me and held my penis so I also hit her.”

The appellant denied questions put to him by the learned state attorney suggesting that the deceased was retreating as stated by the appellant himself, because of the quarrel between them the previous night, and also because of the appellant’s refusal to eat the food prepared for him on the morning of 4 September

1963. Asked whether he sustained any injury when he alleged the deceased hit his shoulder with a cutlass, the appellant said no. He agreed that he never told the police in his statement anything about the deceased hitting him with a cutlass or holding his penis, as his evidence in court shows. His reason given at the trial for not making a reply to the third prosecution witness’s question why he killed the wife was that he was sad that morning.

With the case for the two sides so amply set out we shall now proceed to consider the same in the light of the arguments advanced for and against the conviction of the appellant. On behalf of the appellant it was contended learned counsel that the summing-up was insufficient on the question of intent, in that the direction given on it by the learned judge amounted to a mere reading of the relevant section of the

Criminal Code on the subject. This submission was based on the appellant’s statutory statement to the committing magistrate that it was not his intention to kill the wife. The case of R. v. Gyamfi,1 and that of

R. v. Ojojo,2 were cited in support of the above contention. The next ground argued was that in dealing with the appellant’s explanation given in his statement to the police and his evidence in court, the learned judge misdirected the jury by using the words “reasonably true” instead of saying “reasonably probable” which counsel argued is the correct expression, relying on the case of Lutterodt v. Commissioner of

Police.3

In answer to the foregoing grounds, learned principal state attorney conceded that the learned judge failed to direct the jury properly as to intent to cause death, but strongly submitted that the nature of the implement used and the seriousness of the injuries inflicted show intent to kill. In the circumstances there has not been a miscarriage of justice, since the jury, if properly directed, would have come to the same conclusion. The defence put up by the appellant, learned principal state attorney pointed out, was provocation and not self-defence. Here again he conceded that the learned

[p.720] of [1965] GLR 715 judge confused the two defences together, but contended, however, that in some places of the summing-up the learned judge drew a clear distinction between the two. As to the explanation being reasonably true, learned principal state attorney agreed that the learned judge should have said reasonably probable but his submission was that the misdirection did not occasion a miscarriage of justice.

In our opinion the facts and circumstances in this case are entirely different from those appearing in the two cases cited by counsel for appellant. In R. v. Gyamfi, the incident which resulted in the death of the deceased, was a stone alleged to have been thrown by the appellant who was one of many people (about

40), then engaged in a riot throwing stones. The Court of Appeal in their judgment delivered by

Granville-Sharpe J.A. held that4:

“[T]he learned judge failed to give adequate consideration to the distinction between manslaughter and murder when he found that intent to murder must be inferred from the facts and circumstances, and then proceeded to stress the absence of exonerative evidence . . .”

In R. v. Ojojos5 too, it was held that the learned trial judge misdirected the jury by telling them that the offence was murder pure and simple just because the appellant had confessed to the killing in his statement , whereas the contents of the statement clearly raised the alternative defences of provocation and self-defence.

In the instant case, nowhere does it appear in the summing-up nor has learned counsel for the appellant in the course of his arguments been able to point to us anything therein indicating that the learned trial judge withdrew from the consideration of the jury any other verdict apart from murder, as was done in the case of R. v. Ojojo (supra). Again, whereas in R . v. Gyamfi (supra) the object used in causing the injury from which death resulted was just one stone thrown at the deceased, in this case, the undisputed fact is that it was the appellants cutlass which was used, and that as many as five wounds were inflicted with it by him on the deceased (then pregnant). Surely a person who uses a cutlass on another in the manner described by the appellant himself resulting in injuries and death as testified to by the medical officer, must be presumed to have intended the natural and probable consequences of his act, i.e. death: see the case of

Nungu v. R.6

[p.721] of [1965] GLR 715

It is our considered view, therefore, that the learned judge having dealt with the question of intent by giving its definition to the jury as contained in section 11 (1) to (3) of the Criminal Code, 1960,7 with particular emphasis laid by him on the operative words in subsection (3) thus-”shall be presumed to have intended . . .” — cannot be said to have erred in his summing-up.

As to the criticism that there was confusion in the direction given on the defences of provocation and self-defence, we would observe that our examination of the summing-up does not wholly support that allegation. Not only did the learned judge fairly and fully put the defence case to the jury but in the course of this, he also drew a distinction between the two defences referred to. Warning the jury that there was nobody present at the scene apart from the appellant and the deceased (a very commendable direction, we think), the learned judge proceeded with his summing-up thus:

“The only person who can tell you what happened is the accused person. It is up to you to decide either to believe him, or disbelieve him . . . In the circumstances if you believe him, when he says that he was provoked, not merely but extremely provoked, in that case you are to bring a verdict of guilty of manslaughter. On the other hand, if you think that it is a last minute concocted story to excuse himself when he has reached a stage of despair and that his explanation cannot and would not be reasonably true, then of course you are to bring a verdict of guilty of murder.”

Following this he next dealt with the question of self-defence and left it to the jury to decide whether the appellant was justified in inflicting the wounds on the deceased in self-defence.

Having done all that, and the jury having returned a verdict of guilty of murder, the only and obvious conclusion they must have come to was that they wholly rejected the evidence of the appellant regarding the alleged attack on him with a cutlass and the holding of his penis by the deceased. It seems to us not an unreasonable conjecture to say that the jury must have rejected the story as being an afterthought, and accepted the statements which the appellant made, one to the police, the other to the committing magistrate. This the jury are entitled to do since there is no evidence which should discredit or throw doubt upon the accuracy of the contents of those two statements.

[p.722] of [1965] GLR 715

With regard to the expression “reasonably true” which counsel contended amounted to a misdirection, we regret to say that it does not so appear to us, for we find similar expression used by this court in its judgment in the case of Republic v. Aholo,8 where van Lare J.S.C. said, “The appellant’s story concerning the deceased’s supposed lover, Kofi, at the trial must have appeared strange and cannot be reasonably true as it does to us.”

In the sense that this expression was used in the instant case, it cannot be said that it was intended to convey to the jury and was so understood by them to mean anything but that if they thought the appellant’s explanation was not reasonably probable, then they should return a verdict of guilty of murder. Therefore, the fact that the words “reasonably probable” were not used in preference to those complained of, did not amount to a misdirection prejudicial to the appellant.

In the case of Republic v. Moshie,9 the court per Sarkodee-Adoo J.S.C. (as he then was) stated as follows:

“A summing-up is not intended to be an exhaustive verbal dissertation of the law applicable to the case, nor a lecture on it, nor to be like an extract from a treatise dealing fully and accurately with the law.” The court then proceeded to quote this passage:

“‘The Court of Appeal does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently ex-pressed, or whether other topics which might have been dealt with on other occasions should have been introduced. The Court sits to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice. Its work would become well-nigh impossible if it is to be supposed that regardless of their real merits or of their effect upon the result, objections are to be raised and argued at great length which were never suggested at the trial, and which are only the result of criticism directed to discover some possible ground for argument’. vide R. v. Stoddart 2 Cr.App.R. 217, 231, 246; R. v. Mason and Soper

1 Cr.App.R. 73, at p. 76; R. v. Buckland 4 Cr.App.R. 28, at p. 29; R. v. Harry Pope, 4 Cr.App.R. 123, at p.

127; R. v. Crippen, 5 Cr. App.R. 255, 267.”

We would point out that in this appeal no valid objections have been raised to warrant the verdict being interferred with, because

[p.723] of [1965] GLR 715 the evidence as a whole, is such that no reasonable jury could have arrived at any other conclusion but the verdict in this case.

We accordingly dismiss the appeal.

DECISION

Appeal dismissed.

A.K.F.