KOKOMBA v. THE STATE [1966] GLR 202

Division: SUPREME COURT

Date: 21 FEBRUARY 1966

Before: SARKODEE-ADOO C.J., BRUCE-LYLE AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) R. v. Wunuah (1958) 3 W.A.L.R. 303, C.A.

(2) State v. Nimoh [1960] G.L.R. 203, S.C.

NATURE OF PROCEEDINGS

APPEAL against a conviction of the appellant at the Criminal Session, Tamale, on 12 December 1963 for murder. The facts are set out in the judgment of the court.

COUNSEL

Hutchful for the appellant.

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

JUDGMENT OF BRUCE-LYLE J.S.C. Bruce-Lyle J.S.C. delivered the judgment of the court. This is an appeal against a conviction for murder dated 12 December 1963, at the Criminal Session, Tamale. The facts as put up by the prosecution are that the appellant who was the step-father of the deceased lived with the deceased and the deceased’s mother Tafah Kokomba, the first witness for the prosecution, in the same house at Kitare village in the Northern Region. On 1 March 1963, a market day, whilst the

[p.203] of [1966] GLR 202 first witness for the prosecution was in the yard of the house she noticed that the appellant and the deceased were fighting and that the fight started outside and continued into the yard; the first witness for the prosecution, being alone in the house, ran out to get someone to help her separate the fighters. On returning to the house she met the deceased coming out of the house; the deceased showed her a fresh stabwound at the base of his neck and told her “Mother, father has killed me.” He further intimated to the first prosecution witness that he was going to the police station to make a report; about 58 yards from the house, the deceased fell down and died on the spot. The police later got to the scene and arrested the appellant who, on being questioned, admitted having stabbed the deceased with a knife he was then holding and that he also had tied round his waist the sheath. The first prosecution witness deposed in her evidence that there was no trouble between the deceased and the appellant and there was no evidence by any of the prosecution witnesses from which motive for the act can be gleaned.

When the appellant was charged he volunteered a statement on caution in which he admitted killing the deceased and gave as his reasons for so doing the following:

“I remember yesterday 1 March 1963 was a market day. Round about 6 p.m. I was sitting in the house when I heard the deceased’s voice in angry tones. I asked him with whom was he quarrelling but he grabbed me and dashed me to the ground. I sustained abrasions on both knees as a result. I therefore ran inside my room and took my knife. I aimed it at his chest but he dodged the blow and it stabbed him in the neck. I did not intend to stab him in the neck.”

The-post mortem examination revealed the following:

“The body was that of an adult male of about 35 years old. It was practically smeared with blood particularly on the left side of the body. It was clotted on the skin surface and you can scrape it out. The blood was on the body before the person died. There was a big gaping incised wound, very clean cut on the left side of the neck running obliquely downwards and forwards close to the left ear. This wound was roughly about eight inches long and had encroached on the midline of the body. This wound was about four to five inches deep. This wound has cut across all the big blood vessels of the neck including the thrachae and oesophagus. The edges of this wound were evented. I could see the bones of the neck through the wound. There were no other marks of injury on the body. The cause of death is bleeding from these big vessels.” [p.204] of [1966] GLR 202

In his evidence-in-chief at the trial, the appellant gave a detailed account of what happened and said inter alia:

“On 1 March 1963 I was in my house. Round about sunset Boye entered the house shouting. I was sitting outside. When he got to me I asked him what was the matter and whether he had fought somebody at the market. He did not reply. I then asked him why he always liked to drink heavily. I told him I had been warning him as well as his mother to stop drinking. He was holding a stick the size of my wrist with a knot at the head. Exhibit B is mine. I was wearing exhibit B (1 and 2) around my waist. I always wear it. As soon as I said this Boye told me that he had warned me not to interfere in his matters. He immediately rushed on me and used the stick he was holding and struck my knee. I fell down. I got up and he rushed on me again with the stick. I also removed my knife and stabbed him. I stabbed him once. I saw him running towards the police station. I also followed him. He was bleeding and I became very sorry for what I had done. I was going to see whether the knife had gone in deep. I lost my temper in such a way that I didn’t know how I inflicted the wound. I did not say in my statement that I ran to my room and took my knife. Exhibit B (1) was the knife I used.”

The fact that the appellant often had the knife in its sheath round his waist was corroborated by most of the prosecution witnesses and the first prosecution witness in her evidence under cross-examination admitted that she told the police that the appellant wore the knife round his waist during the fight. The policeman, the fourth prosecution witness, also confirmed under cross-examination that when the appellant was arrested “the belt with the sheath was tied round his waist.” There was abundant evidence by the prosecution witnesses of the drinking habits of the deceased and also by the first prosecution witness, the mother of the deceased, that the deceased used to carry a cudgel with him when going to the market. The policeman who charged the appellant admitted in an answer to a question by the foreman of the jury that the appellant had some abrasions on the knee. All these pieces of evidence by the prosecution strongly supported the defence as put up by the appellant at the trial.

After a brief summing-up, the jury returned the unanimous verdict of guilty of murder and against this verdict the appellant appealed to this court. Learned counsel for the appellant has argued this appeal on the following grounds:

“(1) That the statement on caution of the appellant was wrongly admitted by the learned trial judge. [p.205] of [1966] GLR 202

(2) There was no evidence upon which the jury could imply intent to cause harm from the evidence before the court.

(3) That the learned trial judge did not adequately put the defence of self-defence and provocation to the jury.”

We do consider that of the grounds of appeal the only one which merits any consideration is the third ground. In support of the first part of this ground, learned counsel for the appellant submitted that there was ample evidence by the appellant in support of the defence of self-defence and that the summing-up on that defence was not adequate enough. Learned principal state attorney, on the other hand, contended that the summing-up on self-defence was fair and that to make section 37 of the Criminal Code, 1960,1 applicable, circumstances of extreme necessity to kill another should be evident and submitted that there was no evidence of facts which could be construed as amounting to extreme necessity to justify the appellant killing the deceased. And in support of this submission, he referred to the evidence of the appellant that the appellant did not at any time during the attack on him by the deceased feel that his life was in danger.

Section 37 of 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 justify any force or harm which is reasonably necessary extending in case of extreme necessity, even to killing.”

There is no doubt that apart from the evidence of the appellant there was no other evidence as to how the fight started and how it ended but there is nowhere in the evidence of the appellant the fact that he at any time during the fight felt that his life was in danger. He said, “I lost my temper in such a way that I didn’t know how I inflicted the wound” and this is a sure indication of the fact that the appellant did not at the trial rely on this defence. We do agree that even though the appellant did not rely on this defence, the learned trial judge was in duty bound, on the evidence, to sum up on this defence. We have examined the summing-up of the learned trial judge and we do agree with the learned principal state attorney that it was fair and adequate on self-defence. In support of the second part of the ground that the summing-up of the learned trial judge on the defence of provocation was not

[p.206] of [1966] GLR 202 adequate, learned counsel for the appellant referred to the relevant portions of the summing-up and submitted that the direction to the jury was wrong in law and relied upon the authority of R. v. Wunuah.2 From the evidence of the appellant at the trial and from his statement to the police both of which were unchallenged, there is no dispute that the deceased was the aggressor and throughout, the defence was that the act was done at a time when the appellant had lost his power of self-control as a result of the attack upon him by the deceased and, to use the appellant’s own words, “I lost my temper in such a way that I didn’t know how I inflicted the wound.” Upon such a defence the learned trial judge directed the jury in the following words:

“Provocation is some act or series of acts done by the deceased to the accused which would cause in any reasonable person and actually causes in the accused a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind. The test to be applied is whether the provocation was sufficient to deprive a reasonable man of his self-control, not whether it was sufficient to deprive of his self-control, the particular person charged. The instrument with which the killing was effected must be taken into consideration. If with a deadly weapon, the provocation must be great indeed to reduce the offence to one of manslaughter; if with a weapon or other means not likely or intended to produce death, a less degree of provocation will be sufficient; in fact the mode of resentment must bear a reasonable proportion to the provocation to reduce the offence to manslaughter.”

We consider this line of direction on the defence of provocation to reduce a charge of murder to manslaughter wrong. Section 52 (a) of the Criminal Code, 1960, reads:

“A person who intentionally causes the death of another person by unlawful harm shall be guilty only of manslaughter, and not of murder or attempt to murder, if—

(a) he was deprived of the power of self-control by such extreme provocation given by the other person as is mentioned in succeeding sections”; and for the purposes of this case the relevant portion of the succeeding section in section 53 (a) which also reads:

[p.207] of [1966] GLR 202

“(a) an unlawful assault and battery committed upon the accused person by the other person, either in an unlawful fight or otherwise, which is of such a kind, either in respect of its violence or by reason of accompanying words, gestures, or other circumstances of insult or aggravation, as to be likely to deprive a person, being of ordinary character, and being in the circumstances in which the accused person was, of the power of self-control”; and the proper direction of these sections has been held to be “whether the provocation was one likely to deprive or did deprive the appellant of his power of self-control, not simply whether it in fact did so”: see R. v. Wunnah3 and State v. Nimoh.4 Throughout the authorities on sections 52 (a) and 53 (a) the provocation required to reduce a murder charge to manslaughter is not the provocation which would deprive a reasonable man of his power of self-control but that which is likely to deprive or did deprive the appellant of his power of self-control and we therefore find that the learned trial judge gravely erred in directing the jury that the “test to be applied is whether the provocation was sufficient to deprive a reasonable man of his self-control, not whether it was sufficient to deprive of his self-control, the particular person charged.” We agree with the learned principal state attorney when he conceded to the submission of learned counsel for the appellant on this aspect of the summing-up. In the circumstances it is not for us to conjecture what the verdict of the jury might have been if they had had the proper direction on the defence of provocation and for this reason, this appeal should succeed on this ground.

We would therefore allow the appeal, set aside the verdict, conviction and sentence of death and substitute a verdict of manslaughter and a sentence of five years’ imprisonment with hard labour.

DECISION

Appeal allowed.

Conviction for manslaughter substituted.

G. N.