TEKPA ALIAS DZOMAKU v. THE STATE [1966] GLR 743

Division: COURT OF APPEAL

Date: 14 NOVEMBER 1966

Before: OLLENNU, AZU CRABBE AND LASSEY JJ.A.

NATURE OF PROCEEDINGS

APPEAL from a conviction for murder entered by Sowah J. sitting with a jury. The facts are sufficiently set out in the judgment of the court.

COUNSEL

S. A. X. Tsegah for the appellant.

K. A. Sekyi, Senior State Attorney, for the respondent.

JUDGMENT OF AZU CRABBE J.A.

Azu Crabbe J.A. delivered the judgment of the court. In this case the appellant was convicted on 2 February 1965, before Sowah J. sitting with a jury, of the murder of one Yawo Gomashie. The case for the prosecution was briefly as follows: On or about 28 June 1964, the relatives of the deceased, Yawo Gomashie, observed that his behaviour was becoming abnormal, and they thought that he was getting insane. Three days after this illness had started the mother-in-law of the appellant visited the house where the deceased lived with his relatives, and she told the relatives that the appellant was a herbalist who cured insanity, and that if they took the deceased to him, he (the appellant) would cure him. Following this advice, four of the deceased’s relatives, later joined by one Joseph Gomashie [p.745] of [1966] GLR 743

(the first prosecution witness), took the deceased to the appellant’s house where he was admitted as a patient. Two other persons who lived in the house of the appellant at the time were Agbodamegbe Kuba (the eighth prosecution witness) and Sotiavi Amuzu (the twelfth prosecution witness). According to these relatives, who gave evidence, the deceased walked with them to the appellant’s house. They denied suggestions that they tied the deceased and carried him to the appellant’s house. They said that they bargained with the appellant about his fees and he agreed to charge £G50, and asked for a down payment of £G10. Before they left the appellant’s house they noticed that the deceased had been chained. The next morning when the relatives went to visit the deceased they saw marks of beating on him, and when the first prosecution witness demanded an explanation for the beating the appellant admitted that he had done it, because the deceased had pulled down a shed. The shed was, however, found standing, but the appellant explained that he had repaired it during the night. The first prosecution witness warned the appellant not to beat the deceased any more. Some few days later the father of the deceased went to visit him, and on entering the appellant’s house he found that the gate of the fetish grove in the house was open. He rushed in and there he found his son lying motionless; he was apparently dead. He came out of the grove and went into the room of the appellant and informed him of what he had seen. The appellant said that the deceased was having epileptic fits, but he later admitted that he was dead. The father of the deceased and other relatives who gave evidence said that the deceased in his lifetime never suffered from epileptic fits. The two inmates of the appellant’s household, the eighth and twelfth prosecution witnesses, both testified that they witnessed the beatings that led to the death of the deceased. In his evidence the eighth prosecution witness said:

“One morning I heard the cry of the deceased, he was being beaten, the beating continued until I went to the toilet when I returned he was still beating him, and I asked him why he should beat a human being like that. I saw that the deceased was being beaten with a twisted wire taken from a lorry tyre. When I questioned him, he got annoyed and gave me two strokes with the whip, that is why I saw the whip. The marks are still on my back. Yaw Gomashie is dead. On the eve of his death he was beaten. From my room I could hear the cry of the deceased shouting ‘Why are you beating me like that.’ One morning the accused told me that Yaw had died.”

The severity and extent of the injuries caused by these beatings are highlighted by the evidence of the medical officer who performed the

[p.746] of [1966] GLR 743 post-mortem examination on the deceased. The doctor deposed as follows:

“On my examination I found the body to be an African male adult 45 years, a very strong and athletic build, there were many many lacerated wounds and abrasions of different sizes and lengths all over the body; both arms, hands. Both legs and head were covered with wounds all about 50 or even more. The head was moving left and right, completely free as the neck spine was broken and the spinal cord cut off. On internal examination, I found a huge haemorrhage of the vein within bleeding, on internal examination of chest the lungs were not damaged or injured, but were congested with blood. Abdomen in general was normal. On the neck examination, there was a fracture of the third cervical neck spine. The cause of death was due to neck spinal fracture and brain haemorrhage.”

The doctor continued:

“I have been a medical officer for ten years and I was in medical school for six years in all sixteen years. During these sixteen years I have never seen a man beaten so terribly to death, I say that the wounds and abrasions that I found were due to beating. The wounds were fresh.”

The doctor was quite certain that the wounds on the deceased could not have been caused by a fall. The appellant’s defence was a complete denial of the charge. He admitted however that the deceased died in his house, but denied categorically that he gave the deceased the beatings which resulted in the numerous injuries found on the dead body. He said that the deceased had some wounds on him at the time he was brought to his house, and that during the treatment the deceased had five epileptic fits, the fifth occasion being the day on which he died.

After a detailed and meticulous summing-up by the learned trial judge, the jury convicted the appellant of murder. Against this conviction the appellant has appealed to this court on several grounds. At the hearing of this appeal counsel for the appellant, Mr. Tsegah, argued only six out of the fourteen original grounds of appeal filed. He, however, applied for, and we granted him, leave to argue two additional grounds of appeal which he had filed on behalf of the appellant.

With all due respect to counsel for the appellant, we do not think that there is merit in his argument in support of any of the six grounds of appeal which he argued, and these must accordingly fail. The two additional grounds of appeal were stated in these terms:

[p.747] of [1966] GLR 743

(a) That the trial learned judge erred in law in failing to address the jury on the question of manslaughter. (b) The trial learned judge misdirected the jury on the question of the verdict. In arguing ground (a) counsel for the appellant referred to the passage in the summing-up in which the learned judge gave the following direction to the jury:

“On this issue the question of manslaughter does not arise from the nature of the defence. I will therefore not address you on it because there is no evidence on which I could ask you to consider the alternate verdict of manslaughter . . .”

He contended that there was on the whole case evidence and circumstances which made it incumbent upon the learned judge of the court below to direct the jury on the issue of manslaughter. He was, however, at pains to point to any specific item of the evidence on record which could have necessitated a direction on manslaughter.

The various kinds of homicide in the law of Ghana were recently classified by the Supreme Court in the case of Serechi v. The State1 where it was said:

“Homicide in our law is of four kinds; namely, (1) murder, which is homicide caused intentionally, as defined in section 47 of the Criminal Code, 1960, (2) manslaughter which would have been murder but for the existence of certain circumstances, as defined in section 52 of the Criminal Code, (3) manslaughter which is homicide caused simply by unlawful harm not intended to cause death, as defined in section 51 of the Criminal Code, and (4) manslaughter which is homicide by negligence which is of a nature of reckless disregard for human life, as defined in section 51 of the Criminal Code.

The essential elements of the offence of murder are intent to cause death, and infliction of unlawful harm. The one essential element of the offence of manslaughter simpliciter, is causing it by unlawful harm. Causing unlawful harm is part of the essential elements of the offence of murder.”

Where the prosecution proves that death was caused by unlawful harm, but fails to prove that there was an intent to cause death then the accused will only be guilty of manslaughter. The duty of the judge where the evidence is in this state was correctly stated in Serechi v. The State as follows2: “Therefore where the intent to cause death is not proved, it is the duty of the court to direct the jury that they should act

[p.748] of [1966] GLR 743 under the said section 154 (1) and return a verdict of guilty of manslaughter only if they find unlawful harm proved. And where the evidence is such that intent to kill might or might not be inferred, it is the duty of the judge to direct the jury that it was open to them to consider the alternative verdict of guilty of manslaughter. The duty of the judge in this regard is as obligatory as his duty to direct the jury to return a verdict of manslaughter where there is positive evidence of provocation which can bring the case within sections 52 and 53 of the Criminal Code, 1960, and to direct them to consider the alternative verdict of guilty of manslaughter only where there is some evidence which may amount to provocation as under sections 52 and 53 of the Criminal Code. Therefore a person charged with murder may be convicted not of murder, but of manslaughter which is homicide caused intentionally through extreme provocation or other extenuating circumstances, or of manslaughter simpliciter, i.e., homicide caused by unlawful harm not intended to cause death. But the obligation upon the judge to direct the jury in any such case can only arise if there is evidence upon which such direction could properly be given.”

In this appeal it has been seriously contended that the learned judge in the court below failed in his duty by withdrawing the issue of manslaughter. The function of an appellate court in a case like this was also considered recently by the Supreme Court in the earlier case of Seidu Grumah v. The State.3 In that case the court said4:

“The duty of the court in this appeal is to consider whether or not the learned trial judge was right in withdrawing the issue of provocation from the jury. In our view the proper test to apply is that stated by Viscount Simon in Holmes v. D.P.P. ([1946] A.C. 588 at p. 597, H.L.) as follows: ‘If there is no sufficient material, even on a view of the evidence most favourable to the accused, for a jury (which means a reasonable jury) to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces the death it is the duty of the judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter. If, on the other hand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject to passion or loss of control as to be led to use the

[p.749] of [1966] GLR 743 violence with fatal results, and (b) that the accused was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict.’

The main question then is: ‘was there sufficient material before the jury which would justify a direction on provocation?’ There is no onus on the appellant to establish a case of provocation; all that the appellant need do is to point to evidence on record which could induce a reasonable doubt.”

It was further said in that judgment that5:

“The evidence of the provocation which is relied on and which the jury had to consider must satisfy the requirements of the law, as stated in sections 52 and 53 of the Criminal Code, 1960.” As we have said earlier in this judgment counsel for the appellant was unable to point to any evidence on the record which could in any circumstances reduce the offence of murder to any kind of manslaughter in Ghanaian criminal law. We have ourselves considered the test adopted by the Supreme Court in Seidu Grumah v. The State (supra) and all the circumstances of this case, and we are unable to discover the slightest evidence, either in the case for the prosecution, or that of the defence that raises any issue of manslaughter. Ground (a) of the additional grounds of appeal therefore fails.

In arguing ground (b) of the additional grounds of appeal counsel referred to this last passage in the summing-up notes:

“Finally the law says that you must be unanimous in your verdict. Each of you should consider the case very carefully, make your mind up independently and then consult together with your colleagues—your verdict must be unanimous.”

Counsel submitted that the learned judge was wrong in directing the jury that they must be unanimous, and he relied on section 281 of the Criminal Procedure Code, 1960,6 which reads, “When the jury have considered their verdict, the foreman shall inform the Judge what is their verdict, or that they are not unanimous.” If we understood counsel’s argument aright, he seemed to be arguing that by telling the jury that they must be unanimous he was in fact telling them that they could not come out of the jury-room, unless they came to a unanimous conclusion. We think that this ground is really misconceived, because in a trial of an offence punishable by death in this country the verdict of the jury must be unanimous, and [p.750] of [1966] GLR 743 a majority verdict is of no moment. What the learned judge told the jury was in effect that each of them was entitled to come to an independent conclusion, but that, after conferring together, they were required to deliver a unanimous verdict, which was the only verdict acceptable to the court. We are unable to see how any exception can be taken to this form of direction: see Aidoo v. The State.7 It is provided in section 285 of the Criminal Procedure Code, 1960, that when the jury are unanimous in their opinion as to the guilt or innocence of the accused the judge shall give judgment in conformity with the opinion. Subsection (4) reads: “If the jury are not unanimous in their opinion, the Judge shall, after the lapse of such time as he thinks reasonable, discharge the jury.

Provided that a verdict of a majority of not less than five to two shall, in respect of an offence which is not punishable by death, be held, taken to be, and received by the Court as the verdict of the whole jury.” In Zuta Kwabena alias Kwadjo Donkor v. The State8 it was contended that the trial judge erred in directing the jury that the case being a murder case punishable by death, the only verdict the court would accept, one way or another, was a unanimous verdict. The court had no difficulty in rejecting this contention and said9:

“While we agree with counsel that the provisions of section 285 of the Criminal Procedure Code, 1960, prescribed the action which a trial judge should take upon a verdict returned by a jury, we do not agree with the view that a judge should not tell the jury, trying an offence carrying capital punishment, that under our law, it is only a unanimous verdict which can determine the trial of the case in that court of first instance. We think that the law that a non-unanimous verdict cannot determine the trial is a fact which the judge should bring to the notice of the jury . . .”

A judge always has the right to discharge the jury if protracted deliberation produces no unanimity, and unless it can be shown that the judge intimidated the jury by threats the verdict of the jury cannot be interfered with on appeal: see R. v. McKenna,10 see also Aidoo v. The State11 and Kwabena alias Kwadjo Donkor v. The

[p.751] of [1966] GLR 743

State12. In this appeal counsel has not alleged that the jury were, in the slightest degree, intimidated by the learned judge, and we therefore think that ground (b) must also fail.

In the result we dismiss this appeal.

DECISION

Appeal dismissed.

S. K. T.