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J U D G M E N T
WOOD, (MRS) CJ:-
Brief Facts
On the 21st of
January, 2009, we affirmed the
decision of the Court of Appeal
which substituted the
appellant’s murder conviction
for manslaughter. Furthermore,
we enhanced the sentence of 15
years imposed on him to 21 years
with hard labour and reserved
our reasons. We now assign our
reasons for those decisions that
we took.
The appellant appeared at the
jury trial in the High Court
Tamale, as the 1st Accused, was
convicted with one other person
for the murder of one Debora
Biggor and sentenced to death,
for conspiracy to murder and
murder. On appeal, the Court of
Appeal substituted his
conviction of murder with
manslaughter and imposed a
sentence of 15 years with hard
labour. It is from this decision
of the Court of Appeal that the
Appellant, has appealed to this
court against both conviction
and sentence on the following
original and additional grounds,
four in all.
GROUNDS OF APPEAL
The Court of Appeal erred by
convicting the Appellant for
manslaughter when there is no
evidence that he was responsible
for the death of Debora Bigoor.
The Court of Appeal erred by not
acquitting and discharging the
Accused person (appellant
herein) when the evidence on
record is that he mutilated the
corpse of Debora Bigoor which
act cannot constitute
manslaughter.
Sentence is excessive in view of
the offence
The sentence did not take effect
from the date of offence.
The deceased, who the appellant
alleges was pregnant, visited
the appellant, a Principal
Medical Assistant in his
bungalow at the Nakpanduri
Health Centre on the 22nd
of December 2000 complaining of
abdominal bleeding. According to
him, in order to stop the
bleeding, he injected her with
ergometrin and oxytocin and
asked that she rest in his room
until she felt better to go
home.
The evidence however also
reveals that the other person
with whom the accused was
charged with the two offences,
and who was alleged to have
invited the deceased out on that
fateful night, which allegation
he vehemently denied, rather
found the Debora’s corpse on the
bed of the 1st
accused covered with a blanket.
Alarmed at this discovery, and
as a result of the close
relationship between the two of
them, he hired a motor bike and
chased the appellant to Gambaga
whereupon on being informed of
his discovery, the Appellant
promised to take care of the
mess. The Appellant however did
not report the case to the
Police as promised, which
compelled the 2nd
accused to report to the chief’s
palace leading to his arrest by
the police.
The incontrovertible facts
reveal further that, the
appellant who administered
dangerous drugs to Debora
Bigoor, who was later discovered
dead, undertook the grisly task
of dismembering the dead body
into pieces, crushing the skull
and disposing of all these
parts, together with the
internal organs, namely the
liver, heart, spleen, lungs,
uterus, intestines and the brain
in such a manner that those
vital internal organs could not
be retrieved to aid pathological
tests in determining the exact
cause of death.
Also undisputed is the fact that
it was the Appellant who led the
police to retrieve the dissected
flesh from his manhole into
which he had dumped those body
parts, one hundred and fifty
pieces in all, and the bones
also from another pit he led
them to.
On a critical examination of the
record, we find that the
appellate court dealt fairly
with the appellant by examining
the evidence with the greatest
care and detail, the trial
judge’s summing up and the
verdict which was returned,
namely the verdict of murder.
Their Lordship’s returned a
verdict of manslaughter in
substitution, concluding that
Debora’s death was not
intentionally caused. The
learned justices rightly in our
view identified the pivotal
issue in this case. Their
Lordships reasoned that:
“On (sic) thorny issue in this
case undoubtedly relates to the
cause of death. Certainly the
medical report is not helpful
because while the prosecution
contended that the cause of
death was the skinning and
crashing of the deceased’s
skull, the accused persons
contended by their statements to
the police and their testimonies
in court that death had already
taken place at the time when A1
carried out his brutal exercise
of crushing the body. What then
caused the death? The only
evidence available came from the
1st Accused who
stated that he injected the
deceased with some Class A drugs
which belongs to the category of
dangerous drugs in the medical
classification of drugs. If the
story of the accused persons is
anything to go by one would say
that the cause of death has not
been found by the medical
officer who conducted the
autopsy. The result was that the
jury was left with the duty of
inferring the cause of death
from their perception and
evaluation of the totality of
the evidence.”
The Court of Appeal also relied
on the English case of The
Queen v Sharmpal Singh (1962) AC
188 PC to assist in
resolving the issue of the cause
of death. The Court thought that
there were some similarities
between the two cases and
relying on the holding
substituted the verdict of
manslaughter with murder. This
is what the court said:
“In our effort to find solution
(sic) to the issues in this
case, my sister on my right
brought the English case of The
Queen v Sharmpal Singh (1962) AC
188 PC. In that case the accused
a Kenyan was accused of
murdering his wife. The medical
evidence indicated that sexual
intercourse had taken place just
before death which was due to
asphyxia caused by pressure on
the chest applied simultaneously
with pressure on the neck and
the throat” The facts of the
case were that the accused
killed his wife while he was
having sexual intercourse with
her and there was an indicated
(sic) that he used some degree
of force in the process. After
the death of the wife, the
accused conceived a place of
deception in order to make it
appear that the wife had been
attacked and robbed while on her
way to the toilet which was
outside the flat. He took the
dead body out to the courtyard
stabbed it in places with a
knife and faked other signs of
robbery. The prosecution
naturally relied upon that as
evidence of a crime which the
prisoner was desperately anxious
to conceal; the defence
submitted that it was equally
consistent with panic seizing
the prisoner when he found his
wife had died accidentally. In
the instant case the 1st
accused story was that because
of fear that he might be lynched
by the relatives of the
deceased, he decided to cut and
did cut the body into parts and
concealed them obviously with
intent to conceal the death. He
also stated that he told a lie
that the body had been buried in
the farm of one Azumah. This
similarity in the instant case
and that Queen v Singh [supra]
depicts the common behaviour of
human beings. The medical
witnesses were unable to say how
severe and prolonged such
pressure would have had to have
been in either place to cause
death. The accused person’s
conviction of murder was
reversed by the Court of Appeal
of East Africa and insists (sic)
place a conviction of
manslaughter was substituted.
The Crown appealed against the
decision of the Court of Appeal
of East Africa to the Privy
Council in England which
dismissed the appeal on the
ground that:
Held: the inability
of the medical evidence to speak
with precision about the degree
of force used together with
other circumstances, opened up
both manslaughter and accident
as alternative possibilities
requiring consideration and it
was the duty of the trial judge
to deal with such alternatives
if they emerged from the
evidence as fit for
consideration not withstanding
that they were not put forward
by the defence”
After a review of this not so
well known English case, the
appellate court concluded as
follows:
“In the instant case the 1st
accused’s story was that because
of fear that he might be lynched
by the relatives of the deceased
he decided to cut the body into
parts and concealed them
obviously to with intent to
conceal the death. He also
stated that he told a lie that
the body had been buried in the
farm of one Azumah.”
We are in complete agreement
with the decision of the court.
On a critical examination of the
evidence of the prosecution and
the defence there is no doubt
that the evidence leading to the
death of Debora was clearly
circumstantial. Also, two
possible verdicts were open to
the court and the learned
justices are to be commended for
examining these two alternative
possibilities carefully.
From the evidence led, it is not
disputed that the Appellant
caused the death of the
deceased.
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The accused admits that he
injected the deceased with
two class “A” drugs. He also
admitted that these are very
potent and dangerous drugs
and when given an overdose,
could kill.
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The Appellant further admits
that he chopped up the body
of the deceased and flushed
it down a septic tank.
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The internal organs which
were essential to
ascertaining the actual
cause of death of the
deceased could not be found
and were never retrieved.
The clear legal principle
established in the case of
R v. Onufrejczyk [1955] 1
Q.B. 388 is that in a
trial for murder, the fact of
death can be proved by
circumstantial evidence provided
that the jury were warned that
the evidence must lead to one
conclusion only, and the cause
of death may be proved by such
circumstances as render the
commission of the crime certain
and leave no degree of doubt,
even though there is no body or
trace of the body or any direct
evidence as to the manner of
death of the victim.
Clearly, the principle
discernible in this case applies
with equal force to charges of
manslaughter. In a trial for
manslaughter, the fact of death
is provable by circumstantial
evidence, the only caveat being
that the evidence must
irresistibly lead to only that
one conclusion. The death may be
proved by such circumstantial
evidence even though there is no
trace of the body or as happened
in this instant case vital
organs needed to help establish
the specific cause of death
cannot be traced. Provided the
circumstantial evidence leaves
no room for doubt and does
safely lead to that one
conclusion, a guilty person
ought not to be set free on the
sole ground that the exact cause
of death has not been
established by medical experts.
The plain evidence that I shall
recount coupled with the
inconsistent account of the
statements given by the accused
person of what happened on the
fateful day to the police, the
initial lies he told as to where
the deceased had been buried,
justifies a return of the
manslaughter verdict.
The evidence led in this case
was purely circumstantial
evidence which led to one
reasonable conclusion only- that
the deceased died at the hands
of the Appellant. His whole
conduct must therefore be taken
into account and questions posed
as to why he would dismember the
body and conceal the vital parts
needed to prove the exact cause
of death. His whole conduct is
particularly relevant in
establishing the main fact in
issue.
The overwhelming evidence is
that the appellant mutilated the
corpse and cleverly disposed of
the body parts. Why did he? The
appellant claims that he
dismembered the corpse for fear
that he would be lynched by the
deceased’s family. That reason
does not sound plausible. But
could the accused not have gone
to the police station to report
and ask for protection?
If he were indeed truly
terrified of the deceased’s
family, why did he have to use
that gruesomely laborious and
time-consuming process to
dispose of the corpse, why did
he not conceal the mortal
remains by simply burying it, so
he could save himself from being
found out and lynched as he
would want us to believe?
Equally importantly, if he were
not responsible for the cause of
death, why did he deliberately
completely destroy all traces of
the internal organs, vital body
parts which could have aided
pathological examination, the
clue to uncovering the cause of
death? Certainly, it could only
be because the appellant, having
practised as a medical assistant
for over 27 years with his
average medical knowledge knew
that with those vital organs,
the exact cause of death could
easily have been determined and
therefore the took steps to
obliterate all traces of his
involvement in the death of the
young lady.
All these circumstances could
lead to no other conclusion than
that the accused was responsible
for the death of the deceased.
He injected the deceased with
dangerous class “A” drugs, the
body was discovered in his bed,
in his room, in his house and he
dismembered the body and
disposed of it to avoid
detection. All of this
circumstantial evidence is
consistent with guilt.
In KUO-DEN ALIAS SOBTI AND
OTHERS v. THE REPUBLIC [1989-90]
GLR 203 Aikins JSC
delivering the judgment of the
Court held that
“Failure to prove the cause of
death was not necessarily fatal
to conviction where, as in the
instant case, there was
sufficient evidence aliunde.”
The court of Appeal, rightly in
our view, in substituted the
conviction of the lesser offence
of manslaughter and we are not
minded to disturb these correct
findings.
APPEAL AGAINST SENTENCE
Article 14 (6) of the 1992
Constitution provides that:
“Where a person is convicted and
sentenced to a term of
imprisonment for an offence, any
period he has spent in lawful
custody in respect of that
offence before the completion of
his trial shall be taken into
account in imposing the term of
imprisonment.”
These clear constitutional
provisions enjoin judges, when
passing sentence, to take any
period spent in lawful custody
before the conclusion of the
trial into account. A legitimate
question which might arise in
any given case and which does
indeed arise for consideration
in this instant appeal is how do
we arrive at the conclusion that
this constitutional mandate has
been complied with? We believe
this is discernible from the
record. We would not attempt to
lay down any hard and fast rules
as to the form, manner or
language in which the compliance
should be stated, but the fact
of compliance must either
explicitly or implicitly be
clear on the face of the record.
Admittedly, the more explicitly
the court expresses the position
that it has taken into account
the said period, the better it
is for everyone as it places the
question beyond every
controversy and leaves no room
for doubt. Nonetheless, we think
that any reference to the period
spent in custody before the
conclusion of the trial in
manner that suggests that it
weighed on the judge’s mind
before deciding on the sentence
should be sufficient.
In this instant case, this is
what the court said regarding
sentence:
“Counsel for 1st
accused: I plead for leniency.
My lords may consider his age of
64 years. I pray that my lords
be lenient and impose 5 years
term.
By court: We impose a custodial
sentence of fifteen years IHL
from date of conviction by the
trial court.”
The record speaks for itself.
Neither the appellant nor the
court made the slightest
reference whatsoever to the
period the appellant had spent
in custody before the trial was
concluded. We also find no
reference to the constitutional
provision under reference or
words, express or implied to the
effect that it weighed on the
minds of their Lordships. The
only just conclusion in the
circumstances of this case is
that the learned justices failed
to take Article 14 (6) into
account before settling on the
term of 15 (fifteen) years
imprisonment.
The rule that appeals are by way
of rehearing is not limited to
substantive appeals only, but
the sentences passed, provided
an appeal lies therefrom. We
have taken into account the
period of 1 (one year) 3 (three)
months (25th December
2000 – 26th March
2001) he spent in custody before
conviction by the trial court.
But we have also taken into
account all the circumstances
surrounding this case including
the appellant’s own confession
of the barbaric manner in which
he disposed of the dead body.
Certainly, he should have used
the experiences he has garnered
over the years as a medical
attendant much more productively
and certainly more profitably
for the good people he was
supposed to serve than in the
manner that he did in respect of
Debora and in the grotesque and
totally uncustomary manner in
which he gruesomely disposed of
her corpse. We did not find any
mitigating circumstances
justifying a sentence lower than
that which we imposed.
G.T. WOOD (MRS)
(CHIEF JUSTICE)
I agree
S. A. BROBBEY
(JUSTICE OF THE SUPREME COURT)
I agree
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
I agree
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
I agree
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
SIR DENNIS ADJEI FOR THE
APPELLANT
MATTHEW AMPONSAH (CHIEF STATE
ATTORNEY) FOR THE RESPONDENT.
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