LODONU vs. THE REPUBLIC [1973] 2 GLR 355

CASES REFERRED TO

(1) R. v. Lobell [1957] 1 Q.B. 547; [1957] 2 W.L.R. 524; 101 S.J. 268; [1957] 1 All E.R. 734; 41 Cr.App.R. 100, C.C.A.

[p.356] of [1973] 2 GLR 355

(2) R. v. Hunt [1968] 2 Q.B. 433; [1968] 3 W.L.R. 231; [1968] 2 All E.R. 1056; 52 Cr.App.R. 580, C.A.

(3) Surujpaul v. R. [1958] 1 W.L.R. 1050; 102 S.J. 757; [1958] 3 All E.R. 300; 42 Cr.App.R. 266, P.C. (4) R. v. Warner (1966) 50 Cr.App.R. 291, C.C.A.

(5) R. v. Andrews -Weatherfoil Ltd. [1972] 1 W.L.R. 118; [1972] 1 All E.R. 65; 70 L.G.R. 105; 56 Cr.App.R. 31, C.A.

(6) R. v. Smith (1966) 51 Cr.App.R. 22; 111 S.J. 52, C.A.

NATURE OF PROCEEDINGS

APPEAL from the decision of the High Court sitting with a jury convicting the appellant for manslaughter. The facts are sufficiently stated in the judgment.

COUNSEL

Appellant in person.

Asamoah, Senior State Attorney, for the Republic.

JUDGMENT OF ANNAN J.A.

The appellant and four others were charged with manslaughter. At the close of the case for the prosecution the trial judge ruled that there was no evidence against the second and the third accused persons and he directed the jury to return a formal verdict of not guilty. The appellant, the fifth accused, and two others (the first and fourth) were accordingly called upon. All of them gave evidence. Their evidence in the main was the same and the gist of their defence was that the deceased had attacked the first and the fourth accused persons in the bush with a cutlass in the course of a search for the deceased and these two persons had struck back in self-defence. The appellant who was also a member of the search party had come on the scene later and had gone to the aid of his friends. It was the contention of all the three accused persons at the trial that whatever injuries were inflicted on the deceased were in self-defence. On this aspect of the defence there was substantial unanimity in the evidence of the three accused persons.

By their verdict the jury found two of the accused persons not guilty of manslaughter or of any other offence. They, however, found the appellant guilty of manslaughter.

The complaint of the appellant against that verdict is based on three grounds of appeal:

(a) The conviction cannot be supported having regard to the evidence adduced before the court.

(b) The learned High Court judge failed to direct adequately or at all the defence of the appellant to the jury.

(c) The learned High Court judge failed to put the appellant’s defence to the jury and therefore did not consider whether the appellant’s defence was reasonably probable.”

With regard to the first ground of appeal perhaps the real gravamen of the complaint of the appellant is not so much that his conviction cannot be supported having regard to the evidence adduced before the court

[p.357] of [1973] 2 GLR 355 but that his conviction ought not to stand having regard to the evidence accepted and presumably acted upon by the jury in the case of the other two accused persons and upon which they were found not guilty by the jury and acquitted and discharged by the judge.

The prosecution called ten witnesses. None of them was present in the bush when the fatal injuries were inflicted on the deceased and none of them witnessed any attack of any kind on the deceased. The prosecution also tendered in evidence the dying declaration of the deceased. In it he gave a graphic account of the cause of his injuries and the events which led to that state of affairs. The three accused persons also gave their respective accounts of the events of that day. It is clear from the record that the only evidence of the cause of death of the deceased, and the circumstances immediately surrounding that act, was given for the prosecution by the deceased in his dying declaration and for the defence by the three accused persons.

The witnesses for the prosecution may be divided into three groups: firstly the police witnesses, the first, eight, ninth and tenth prosecution witnesses; the neighbours and townsfolk of the accused persons, the second, third, forth, fifth and seventh prosecution witnesses, and the medical officer, the sixth prosecution witness. The prosecution also had documentary evidence in the form of the dying declaration of the deceased and the statements the accused persons made to the police.

The story of the prosecution unfolded with the evidence of the villagers and of that group the second prosecution witness set the chronological order of events. He said he was returning home from his farm along a bush road on 27 August 1968, when he noticed the “suspicious” behaviour of a certain person. The man crossed into the bush. The second prosecution witness questioned him twice. He got no reply. The second prosecution witness became afraid and he crossed to the motor road. The second prosecution witness continued: “Immediately I crossed the lorry road this strange person also crossed the road. He rushed towards me with a cutlass about to slash at me. I raised an alarm. This person ran ahead of me.” The second prosecution witness subsequently reported the incident to his chief, the fifth prosecution witness, and consequently gong-gong was beaten to summon the villagers. On the orders of the chief vigil was kept for the strange man. That night nothing happened and the villagers later dispersed.

The next day in the morning, one of the villagers, the fourth prosecution witness, was at home when a stranger from the bush turned up at his cottage. The fourth prosecution witness did not know the stranger. The stranger tried to speak to the fourth prosecution witness; he could not understand him. While they were there the rest of the villagers came. They had been sent by the chief to continue their search for the stranger. Among the search party were the appellant and the four other persons who stood trial with him. The second prosecution witness was also present. He identified the stranger as the person he had encountered the previous day in the bush. That stranger was the deceased. In the course

[p.358] of [1973] 2 GLR 355 of the questioning of the deceased, and immediately upon the arrival of the chief, he suddenly, and for no reason apparent to the others, stood up, drew a dagger from a sheath, muttered some words, and then ran into the bush from whence he had earlier emerged. The crowd, or rather some of them, gave chase. Among them were the appellant and the first and fourth accused persons who were acquitted at the trial. The second prosecution witness did not follow the chase. The third prosecution witness did. He and his group of people lost sight of the deceased in the bush and they gave up the chase and returned to the village. The fourth prosecution witness did not join the chase. The fifth prosecution witness, the chief, stayed behind. The seventh prosecution witness, another villager who was present, joined the chase. The account of the seventh prosecution witness is the only oral evidence for the prosecution which came nearest to describing the full story of the chase and the terrible event which terminated it. The seventh prosecution witness said that:

“We sent for Sosu, the fifth prosecution witness, who is the headman of the village. Sosu came. As soon as Sosu came the strange man stood up drew a dagger and ran into the bush with the dagger. At this time Amekudzi, the second prosecution witness, was present. Amekudzi identified the stranger as the man who came there the previous night. As the stranger ran we felt we should not allow him to go. We formed two paths one on the left and the other on the right following after the stranger. When we were following the stranger we had cutlasses with us. The first and second accused Clemence Adogli went together by one path.

We overheard some one raising an alarm shouting: Someone should come to my aid, I am being killed’. This was in Ewe language. When we ran in the direction of the shout and cry I saw the first and the fourth accused with blood on them. I saw the blood on them. I saw the stranger whom we were chasing also sitting down in the bush.”

The seventh prosecution witness said the stranger as well as the first and fourth accused had sustained injuries. The third and the fifth accused went to make a report to the police. The seventh prosecution witness did not himself witness the event which had led to the injuries sustained by these three persons. So much then for the evidence of the villagers.

The police witnesses, the first, eighth, ninth and tenth prosecution witnesses, confirmed the state of injury of the deceased and the first and fourth accused persons. They also tendered the dying declaration of the deceased and the statements of the accused persons. The medical officer, the sixth prosecution witness, described in great detail the wounds on the deceased. There were no less than eight deep lacerations of a very grave kind on the deceased, which affected the left heel, dissecting the left Achilles tendon and arteries; the right calf and heels, disjoining the main Achilles tendon in pieces with the lowest one virtually amputating the right foot and dissecting arteries and veins, and another that affected the left forearm near the wrist cutting through the left fore bone and severing

[p.359] of [1973] 2 GLR 355 the ulna artery and several tendons. The first accused also sustained a neck injury which the doctor described as severe enough to kill though not necessarily fatal while the fourth accused sustained three incised slight wounds of the thumb and the index and the ring fingers and two fairly superficial incised wounds of the right elbow region. Turning now to the eye-witness accounts of the scene in the bush the deceased had this to say in his dying declaration:

“I am a charcoal dealer, resident at Sodome Helu. The people of Sodome Helu did not like me. Yesterday 27 August 1968 in the morning I left Sodome Helu going to Hohoe. I arrived at Dzenana cottage at about 6 p.m. when the people of the cottage accused me to be a thief. The inhabitants of the cottage wanted to attack me when I ran into bush where I passed the night. Today, Wednesday 28 August 1968, in the afternoon some people whom I do not know came and attacked me. They chased me in the bush when one of them wanted to shoot me with double barrel gun which I seized from him, when he misfired. I cannot identify the person who fired the gun. I was later attacked and wounded by the people of the cottage with cutlasses. They cut both my legs, later my arm and the left shoulder blade. I also by defending myself wounded some of the people especially the man who fired the gun.”

It is very clear from this account that the deceased unequivocally cast the members of the search party in the role of aggressors and himself in the role of victim. That was the version of the deceased and on that version he was the victim of a brutal unprovoked and unjustifiable attack by a bunch of suspicious villagers who had hunted him down to earth in the bush and had then proceeded to cut him down with cutlasses.

The accounts of the three accused persons, including the appellant were in one essential respect completely at variance with that of the deceased. They on their part reversed the roles and cast the deceased in the role of attacker and themselves as defendants. This stand they first took in their statements to the police and later in their testimony to the jury. The appellant, the fifth accused, put it this way:

“Whilst I was going not long thereafter I heard a shout. I ran towards the direction of the shout. At a point I saw Sylvester Yao (fourth accused) and Alphonse Adee (first accused) struggling with the man whom we were chasing. The distance between us and them was about ten yards. I saw Alphonse Adee falling down. I had then neared them. I also saw Sylvester falling. At that time I saw the man turn to Alphonse Adee and as he held the dagger I knew he was about to stab him . . . I threw my cutlass between the feet of the stranger as a stick is thrown or as the police throw a truncheon; the stranger fell down.”

The fourth accused also put it this way:

[p.360] of [1973] 2 GLR 355

“I then heard a shout saying, ‘This is the man; he has killed me. Come to my aid.’ The voice was not far from me so I headed for that direction running. When the man saw me he advanced towards me. What I saw was Alphonse Adee the first accused on the ground with the man bent over him as if he was about to slaughter him. As soon as he saw me he slashed me with a cutlass. I sustained two cuts on my elbow. At this juncture I found that he was going to kill my brother and myself. I couldn’t go for a stick to defend myself so I also used the cutlass I had on me in self-defence. Whilst we were brandishing cutlasses against each other I fell.

He raised his cutlass to stab me in the abdomen. I could only hold the cutlass which was my only resource . .

. While we were shouting I saw some of our people coming. Lambert (the fifth accused) and Gidi Thadeus were then approaching. The strange man drew a knife intending to stab the first accused, Alphonse, who was then on the ground. At this juncture the fifth accused threw his cutlass against the strange man. He fell down.”

The first accused’s version is the most material for the defence because on the accounts of the appellant and the fourth accused, the first accused was already engaged in combat with the deceased when they arrived on the scene and consequently it is his evidence which has to be looked at to ascertain the immediate events leading to the commencement of the fight. He said:

“I passed by a certain path, I heard something rushing in the bush about six yards away from me. All of a sudden the stranger drew a knife and slashed my neck and also my collar-bone. He also wounded my hand on the wrist . . . As I was bleeding profusely I felt dizzy and fell down. The stranger then wanted to kill me by stabbing me in the stomach. I therefore held his wrist and shouted out for Sylvester to come to my aid. As the stranger wanted to kill both of us Lambert also came to our aid.”

Then later in cross-examination: “It was he who attacked me first. When I was going and he saw me he rushed and slashed me. I also slashed in defence.” On all four versions there is no dispute that the deceased, the first accused and fourth accused were engaged in deadly combat with deadly weapons.

The main issue which the jury were called upon to decide was whether the deceased or the accused persons were the aggressors. Clearly the role of the appellant was a subsidiary role and his liability would depend substantially on the liability of the two principal parties, the first and the fourth accused persons, and this for the reason that both of these accused persons had stated in no uncertain terms that the fight had started before the appellant arrived on the scene. Again the only direct evidence for the prosecution which identified any personal act on the part of the appellant

[p.361] of [1973] 2 GLR 355 was his own police statement in which he said that he had thrown a cutlass once at the feet of the deceased which felled him. That part of his statement found substantial support in his evidence and that of the first and fourth accused.

The jury after consideration of all these versions of the matter put before them returned a verdict whereby they found the first and fourth accused persons not guilty of manslaughter or of any other offence. It seems clear that upon this verdict the jury must either have rejected the account of the deceased and accepted those of the two accused persons or at least found themselves in doubt about which version to accept. In either case the verdict must mean either that the jury were satisfied that the injuries which were admittedly inflicted on the deceased by the two accused persons were in self-defence or at least that their evidence left the jury in reasonable doubt whether they acted in self-defence or not.

Clearly in either case the accused persons were entitled as of right to an acquittal: see R. v. Lobell (1957) 41 Cr.App.R. 100, C.C.A.

If that was the view of the matter taken by the jury then one is at a loss to appreciate the stand they took in respect of the appellant in the light of the evidence which they had presumably accepted and upon which their acquittal of the other two accused persons must have been based. Put at its highest the case for the prosecution could have been that all three of them were acting in concert with a common purpose, that is, that they were all in it together. In that case any act of one in the course of that concert and in execution of the common purpose was the act of them all and conversely a defence arising upon the act of one was open to the others.

If on the other hand the appellant was not in concert with the other two but had come upon a fight to the finish which he had in no way initiated then if he went to the assistance of one or more of the combatants, his fate should depend on the fate of those others. If then those others were found to have acted in self-defence then in going to their aid he also would have done so not admittedly in defence of himself but certainly in the defence of the others, or in the language of the relevant statutory provision, section 37 of the Criminal Code, 1960 (Act 29), for the prevention of or for the defence of himself or any other person against any crime.

It seems clear to us that the liability of the appellant for whatever he did was ineluctably bound with the liability of the other two accused persons. If there was no liability in the other two then there could be none in him. The jury however acquitted his companions and convicted him. The verdicts in the case of those two are manifestly inconsistent with the verdict in respect of the appellant. What then ought this court to do?

The position with respect to inconsistent verdicts has been set out in a number of decisions of the Court of Criminal Appeal of England and we now consider some of these authorities.

[p.362] of [1973] 2 GLR 355

In R. v. Hunt (1968) 52 Cr.App.R. 580, C.A. it was held that the burden was on the appellant who alleges that a jury had returned a verdict which is repugnant to or inconsistent with another verdict returned by them to establish that the two verdicts should not stand together either because no reasonable jury would have returned them or because it would be unsafe to allow them stand.

In Surujpaul v. R. (1958) 42 Cr.App.R. 266, P.C., the appellant was jointly charged and tried together with four persons on a charge of murder. All the four other persons were found not guilty both as accessories before the fact and as principals but the appellant was found guilty as an accessory before the fact to murder. It was held that as on an examination of the evidence there was no distinction with regard to the evidence relating to the commission of the substantive offence as between the appellant and the other accused persons which could justify the verdict the conviction must be quashed. Per Lord Tucker at p. 274:

“Whatever may have actuated the jury in coming to these inconsistent verdicts, their Lordships are satisfied on an examination of the evidence that there was no distinction with regard to the evidence relating to the commission of the substantive offence as between the appellant and the other accused which could justify the result arrived at.”

In R. v. Warner (1966) 50 Cr.App.R. 291, C.C.A. the appellant was tried at the same sessions first on an indictment for taking and driving away a motor vehicle on which he was convicted and shortly afterwards on another indictment for driving the same vehicle when disqualified on which he was acquitted. At each trial, apart from formal evidence to prove disqualification at the second trial, the evidence for the prosecution was the same and rested on identification by a police officer of the appellant as the driver. At each trial the appellant was unrepresented. It was held that in view of the inconsistency of the verdicts the conviction must be quashed. Per Veale J. at p. 294:

“It is clear that a very curious state of affairs exists. The two offences of taking and driving away a motor car and driving a motor vehicle whilst disqualified from holding a driving licence were, we are told, according to the usual practice of Inner London Sessions, charged in separate indictments, although it was not disputed that, apart from formal evidence of disqualification, the evidence for the prosecution on each charge was in substance exactly the same . . .

This court is therefore faced with the position that within a fortnight, two juries, each after a very short deliberation indeed, have returned a verdict of Guilty and a verdict of Not Guilty on substantially the same evidence for the prosecution . . . There are, therefore, these two inconsistent verdicts and at neither trial was the accused, represented by counsel . . . In all the circumstances this court has

[p.363] of [1973] 2 GLR 355 come to the conclusion that the verdict of guilty cannot be allowed to stand, and the appellant’s conviction for taking and driving away the motor car must be quashed.”

In R. v. Andrews-Weatherfoil Ltd. [1972] 1 All E.R. 65, C.A. the court said at p. 71: “If the inconsistency shows that the single jury was confused or self contradictory its conclusions are unsatisfactory or unsafe and neither verdict is reliable.” Again in R. v. Smith (1966) 51 Cr.App.R. 22, C.A. Edmund Davies L.J. had this to say at pp. 27-28.

“We are concerned more with the question whether the jury’s verdict could be allowed to stand. The case presented to the jury and persisted in throughout, so that really no other case was left for their consideration, was that the appellant, Callaghan and McKenzie were right in it up ‘to their criminal necks.’ The jury acquitted Callaghan and McKenzie. They must have done so on the basis that they could not attach credence or a sufficient degree of credence to the evidence which the police had given about their most damning admission . . . The case for the Crown was that these three men were in the plot together. The other two men were acquitted by the jury, therefore should the conviction of the appellant stand?”

The court decided that it should not and they quashed the conviction.

In our view where two or more accused persons are tried on the same charge and the evidence adduced before the court with regard to all the accused persons is substantially the same the conviction of some and the acquittal of others of the accused persons would be an inconsistent result unless it be shown that the apparent inconsistency in the result of the trial is attributable to some significant difference either as to matter of fact or law which affects some and not the others of the accused persons. Where there are no such matters of difference the results are inconsistent and cannot stand together. Where a person convicted in such circumstances appeals against his conviction the proper decision we think is that the conviction is unreasonable or that it cannot stand having regard to the evidence which the court or jury had, or must be taken to have accepted.

In the result we allow the appeal, quash the conviction and set aside the sentence. The appellant is acquitted and discharged.

DECISION Appeal allowed.

S. O.