BODUA ALIAS KWATA v. THE STATE [1966] GLR 51

Division: SUPREME COURT

Date: 24 JANUARY 1966

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

CASE REFERRED TO

Konkomba v. The State [1965] G.L.R. 698, S.C.

NATURE OF PROCEEDINGS

APPEAL from the conviction by the High Court of the appellant of the offence of unlawfully and intentionally causing harm. The facts are sufficiently set out in the judgment of the court.

COUNSEL

Offei for the appellant.

J. N. K. Taylor, Senior State Attorney, for the respondent.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The appellant was convicted at the Criminal Session of the High Court, of the offence of use of an offensive weapon. Particulars of the offence as set out in the bill of indictment are that he “unlawfully and intentionally caused harm to one Tetteh Bedu with an offensive weapon.” The trial was a jury trial.

Three main grounds were argued in support of the appeal.

These are:

“(1) The learned trial judge misdirected the jury by stating ‘If a rod was used, markings will be on the skin.’

(2) The learned trial judge failed to direct the jury adequately on the nature of the defence. (3) The learned trial judge failed to direct the jury adequately on conflicts and doubts in the prosecution’s story.”

[p.53] of [1966] GLR 51

The only eye witnesses to the incident were the complainant and the appellant. The complainant, the first prosecution witness, deposed that while sitting in his house at about 4.30 a.m. to 5 a.m., he saw two persons, the appellant and another person, going in the direction of a piece of land in respect of which he was litigating with one Asafoatse Opata. He said he did not recognise the people and so decided to follow them, and that when he overtook them on the land, one of them whom he recognised to be the appellant attacked and cut him several times with a cutlass, and the other person whom he recognised to be one Amanor Gbordjor, also hit him with the butt of a gun and he fell to the ground unconscious. He said that he later went to the police station to report the incident.

The police officer in charge of the case gave evidence that about one hour before the first prosecution witness arrived at the police station to make the report the appellant had reported to the police that he had felled some palm trees and had been tapping the same, but each time he went in the morning to collect the palm wine, he met his pots broken and the wine destroyed. At about 3 a.m. on the day in question he went to keep watch, and while doing so, he saw the first prosecution witness come there and with an iron rod, he broke two of the pots and spilt the wine therein. He therefore challenged the first prosecution witness, whereupon the first prosecution witness knocked him down with the piece of iron rod, and hit him a number of times with the iron rod. When he managed to get up, the first prosecution witness took to his heels, he the appellant then chased and caught him; a struggle ensued during which he the appellant struck the first prosecution witness with a small palm wine tapping cutlass, and dispossessed him of the iron rod. From the bush he had come straight to the police to make a report.

The police cautioned the appellant during the course of the investigations and the appellant thereupon made a statement to the police which was tendered in evidence as part of the prosecution’s case. The relevant portions of that statement will be referred to presently.

In consequence of the report made by the appellant, the police visited the spot and found two pots of palm wine freshly broken. They also noticed that the spot where the struggle took place is about 25 to 30 yards away from one of the broken pots. The police also went with the appellant to the house of the first prosecution witness to look for him, but could not find him; it was, as earlier stated, about an hour after the appellant had made his report to the police that the first prosecution witness turned up at the police station.

Arguing his first ground of appeal, learned counsel for the appellant contended that the question whether or not the appellant

[p.54] of [1966] GLR 51 was struck by the first prosecution witness with a piece of iron rod, was a question of fact which was in the province of the jury, and that by directing the jury that “if a rod was used, markings will be on the skin,” the trial judge in effect was deciding that issue for the jury, and thus usurped the functions of the jury.

Learned senior state attorney in answer submitted that by that statement the trial judge merely expressed an opinion; this he submitted a judge is entitled to do. The senior state attorney referred to the passage in the summing-up immediately following upon the passage complained of, where the learned judge said “If you believe that the story of the accused could be reasonably true that he used the knife in self-defence and that the use of the knife was reasonably necessary, then you are entitled to return a verdict of not guilty.” In this last passage, the senior state attorney submitted, it is shown that the learned judge definitely left to the jury the question of whether or not the first prosecution witness struck the appellant with the piece of iron rod.

We agree with the submission of learned senior state attorney that in a jury trial, the judge is entitled to express his opinion on the facts, as long as be makes it quite plain to the jury that in spite of the opinion which he so expresses, the decision on the issue of facts rests entirely with the jury. We also agree with him in the view that by telling the jury that if they accept the story of the appellant, they should find him not guilty, makes it quite clear that whatever might have been his personal views on the matter, the learned judge eventually left the matter to the jury to decide.

Now, since the decision on the facts depended upon the credibility and veracity of the first prosecution witness and the appellant, the fact that the appellant had no marks on his body after the incident is a question which the trial court could properly bring to the notice of the jury as affecting the credibility of the appellant. But the absence of marks on the appellant’s body is not conclusive evidence that he had not been struck with an iron rod, he might have been, and yet no marks may result. In Konkomba v. The State,1 a person who complained that he had been beaten on the head with a heavy stick was taken by the police to the hospital for treatment. The doctor, upon examination, found no external signs of injury so he sent the man away. The next day the man was brought back to the hospital in an unconscious state, his head still showing no outward signs of injury or violence. He died shortly after his admission into hospital. From a post-mortem examination the doctor discovered that the man had sustained a fractured skull, and blood had collected under the skin at the part [p.55] of [1966] GLR 51 of the head where he complained of the pains and some of the blood had flowed into the brain. This shows that absence of external injury is not conclusive proof that the appellant had not been beaten. Therefore the only comment which could properly be made on that piece of evidence is, that it could not be a ground for discrediting the appellant.

But since the case depends upon the oath of the first prosecution witness against the oath of the appellant, it is not just for the trial judge to point out to the jury matters which could be used to discredit the appellant without at the same time examining the evidence of the first prosecution witness and pointing out evidence which materially affects his own credibility. And there are quite a few pieces of evidence led by the prosecution themselves which prove the improbability of the evidence of the first prosecution witness that the appellant assaulted him when he had not even said a word to the appellant. Again, there are quite a few things which should discredit the first prosecution witness and to which the learned judge should have directed the attention of the jury. One such fact is the evidence given by the second prosecution witness that when one is in the house of the first prosecution witness one cannot see people outside; there is also the fantastic evidence given by the first prosecution witness that whenever he saw people passing whom he did not recognise, he usually followed them until he came to a point where he could recognise them before he turned back.

The error therefore with that part of the summing-up is not that the trial judge usurped the functions of the jury, the error rather consists in the summing-up being unbalanced against the appellant. We now pass on to ground (2) of the grounds of appeal. In the penultimate paragraph of his summing-up, the learned judge said:

“If you also think that the complainant broke the pots, hit the accused first with a rod and the accused retaliated with a knife—but that use of a knife was unreasonable in the circumstances—then you may return a verdict of guilty.” Learned counsel for the appellant submitted that this is a misdirection in law, because what the law requires to be reasonable in order to sustain a plea of self-defence is not the nature or kind of instrument or implement used but the extent of force used.

For the respondent, the senior state attorney submitted that there was no misdirection and that the nature of the implement used in self-defence is material for determining whether the plea of self-defence was made out. He further contended that the court is bound [p.56] of [1966] GLR 51 by section 16 of the Courts Act, 1960,2 to dismiss the appeal because even if the facts as related by the appellant were accepted in preference to those related by the first prosecution witness those facts proved that the appellant inflicted the wounds under provocation and not in self-defence. He submitted that provocation is no defence to criminal harm. This submission of the learned senior state attorney is based upon the following evidence given by the appellant in his evidence-in-chief:

“I went to the place one morning about 3 a.m. watching and I heard the pots being broken. I carried my tapping knife. I went alone. I was behind the tree and I saw someone hitting the pot. The person advanced to another pot. That was the second pot and so I shouted ‘Who are you?’ When I said so, the man rushed on me and gave me a blow with an iron rod. He hit me between the neck and the left shoulder and also my left ribs and the back of my left leg. I fell down and the man took to his heels. I got up and chased the man as I had bought the palm trees with money and I wanted profit. When I reached him I used my knife and cut him in his back.”

If that had been all the evidence on the subject, we would have no hesitation in agreeing with the contention of the senior state attorney, for as that evidence stands it leaves the impression that the appellant inflicted the wound upon the first prosecution witness after the first prosecution witness had struck him with the piece of iron rod and was trying to escape. If that is so, it would mean that the appellant acted in revenge, or rather upon extreme provocation. The defence of provocation does not exonerate him from crime; it is not a plea of absolution from guilt but a plea in mitigation of punishment. Thus it merely reduces a more serious crime to a less serious one for the purposes of punishment. Therefore as a rule it is only available in the case of homicide to reduce murder, i.e. homicide intentionally caused by means of unlawful harm, to manslaughter, to make the offence one punishable by a sentence other than a capital sentence.

Now, for a plea of self-defence and defence of property as provided in sections 30 and 31 of the Criminal Code, 1960,3 to succeed, it must be proved that the harm was inflicted at a time when the life or property of the accused was in imminent danger, i.e. at a time when the accused person or his property was being assailed. In other words the act of defence must have been committed simultaneously with the attack upon him or his property or just when such an attack

[p.57] of [1966] GLR 51 was imminent, for example to ward off a heavy blow aimed at his person or his property. Harm inflicted when the danger to life or property is over might be inflicted in vengeance, or to take a more favourable view, it might be inflicted in consequence of extreme provocation: see Archbold, Pleading, Practice and Evidence in Criminal Cases (35th ed.), pp. 1052-1053, paras. 2646-2647. Thus if the evidence the appellant gave in chief had stood unexplained, the submission of the learned senior state attorney would be a correct statement of the law. Fortunately for the appellant his evidence-in-chief quoted above is not all the evidence he gave on the matter. There are other important pieces of evidence from him which explain away and nullify the effect of his evidence-in-chief. There is first of all the caution statement he made to the police on the same day that the incident occurred and shortly thereafter. The relevant portion of it is as follows:

“Early this morning today 30 October 1964 at about 3 a.m. I went to the bush again which was just close to Sarweh town to watch. While I was hiding nearby at about 5 a.m. I saw Asafoatse Bedu coming with an iron bar in his hand. He came towards to one of the palm trees under which there was a palm wine pot and broke it. He went to the second and did the same thing. So I shouted at him and he took to his heels. I chased him and caught him. He hit me with the iron bar he was holding and I also hit or beat him with the cutlass I was holding and as a result he had some cuts on his body. He ran away after I had taken the iron bar from him. So I reported the matter to police. I went with the police to the place where the palm wine was being tapped and showed them the broken pots. He had broken twelve palm wine pots, valued eighteen shillings.” Again, when prosecuting counsel cross-examined the appellant on the incident, the explanation he elicited of the evidence-in-chief is as follows:

“At first I did not know that it was the first prosecution witness until after the struggle. As soon as I took the iron rod from him, the first prosecution witness ran away briskly from me. I slashed him at the time of struggling. I cannot tell how many times the first prosecution witness hit me with the iron rod. The first prosecution witness carried an iron rod. He had a cloth round his waist. When I fell down I got up and retaliated with my knife.”

These pieces of evidence taken together with the appellant’s evidence-in-chief put quite a different picture on the whole case. They show

[p.58] of [1966] GLR 51 that the appellant saw a man doing malicious damage to his property; that person turned out to be the complainant, the first prosecution witness; he tried to apprehend the offender and get to grips with him and a struggle ensued; in the course of the scuffle the first prosecution witness struck the appellant a number of times with a piece of iron rod which the first prosecution witness carried. While these assaults and batteries were being committed upon him, the appellant used his palm wine tapping knife and inflicted upon his assailant the harm, the subject-matter of the charge, and by that means, disarmed the first prosecution witness, and thus saved his own life. This evidence brings the case of the appellant well within sections 30 and 31 of the Criminal Code, 1960. The onus therefore shifted upon the prosecution to prove that this case comes within the exception in section 32 of the Act. Therefore the submission of learned senior state attorney that this is not a case of self-defence is untenable.

But learned senior state attorney submitted that even if this is a case of self-defence the direction which the learned judge gave to the jury was proper, namely, that if the jury thought that the first prosecution witness had damaged the pots, and also was the aggressor, and struck the appellant with the piece of iron rod, they should nevertheless find the appellant guilty if they thought that the use of knife was unreasonable in the circumstances. He submitted therefore that the jury, having convicted the appellant, showed that they were satisfied that the use of the knife in the circumstances was unreasonable. We agree with learned counsel for the appellant that the learned judge misdirected the jury when he told them that what they had to consider was the nature of the instrument used in the self-defence. Section 32 of the Criminal Code, 1960, which excepts certain acts from the plea of self-defence provided by sections 30 and 31 of the Act, is as follows: [His lordship here stated the provisions as set out in the headnote and continued:] The plain language of the section shows that what may take away the defence is the “amount and kind of force” used, and not the nature and kind of implement used. It cannot be otherwise, because if to ward off a heavy blow aimed at his head with a piece of iron bar, a man in possession of a two-edged dagger so wields the dagger gently so that it only inflicts a superficial wound on the arm of his assailant, his defence of self-defence must succeed, because although the dagger is a dangerous weapon, yet since only very little force was exerted in its use, it cannot be said that its use in the circumstance is unreasonable.

[p.59] of [1966] GLR 51

Another reason for this opinion is contained in section 70, the section under which the charge is laid. It says: “Whoever intentionally and unlawfully causes harm to any person by the use of any offensive weapon shall be guilty of first degree felony.” The offence is one which is only committed if the weapon used is offensive. To argue that what the court has to consider to determine whether or not section 32 takes away the defence of self-defence is the nature and kind of implement used, is to argue that a plea of self-defence is not available in a charge under that section, because without the weapon used being offensive no offence would be committed under that section.

Again, reference to section 54 (1) (d) of the Criminal Code, 1960, which excludes the benefit of provocation in a charge of murder, makes it quite clear that the use of the words “the amount and kind of force reasonably necessary” and the omission of any reference to nature and kind of implement used in inflicting the harm are deliberate; for we find the section saying:

“54. (1) Notwithstanding proof on behalf of the accused person of any matter of extreme provocation, the crime shall not be thereby reduced to manslaughter if it appears—. . .

(d) that he acted in a manner, in respect either of the instrument or means used or of the cruel or other manner in which it was used, in which no ordinary person would, under the circumstances, have been likely to act.”

We hold therefore that the learned judge misdirected the jury on the law as to the proper interpretation and application of section 32 of Act 29.

The question then arises, is this a case in which, the glaring misdirection notwithstanding, it will be just to dismiss the appeal in exercise of the powers vested in the court by section 16 of the Courts Act, 1960?4 In other words, if the jury had been properly directed would they inevitably have convicted, so that it will be unjust to allow the appeal? The answer is definitely no; rather, to dismiss this appeal is to perpetrate grave injustice. The reasons for this are as follows: no evidence was led to show the nature of the injuries inflicted upon the first prosecution witness, not only was no medical evidence, oral or documentary, led, but also no description of the injuries was given in evidence. Again the first prosecution witness was treated and sent home the very day that he was taken to hospital, and it did not appear that he had the need to be admitted

[p.60] of [1966] GLR 51 into hospital. Therefore there is not a tittle of evidence which the learned judge could have put to the jury and from which it might seem that the amount and kind of force used may be unreasonable in the circumstances of the case.

For the reasons given above, the appeal is allowed, the conviction of the appellant and the sentence passed upon him are quashed, and a verdict and judgment of acquittal entered. The appellant is acquitted and discharged.

DECISION

Appeal allowed.

S. K. T.