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J U D G M E N T
SOPHIA ADINYIRA (MRS) JSC:
This appeal is against the
judgment of the Court of Appeal
dated 20 January 2004 which
affirmed the conviction and
sentence of the appellant for
murder. The appellant was tried
and convicted together with
another person by an Accra High
Court upon a verdict of a Jury
on 7 August 2001, on charges of
conspiracy to commit murder and
murder. On appeal, the other
person was acquitted and
discharged on both counts. The
Court of Appeal acquitted the
appellant on the conspiracy
charge but affirmed the
conviction for murder. The
appellant accordingly appealed
on the sole ground that:
“On the totality of the evidence
the trial judge misdirected the
jury by non-direction on the
defences of provocation and
justifiable harm available to
the appellant, and the dismissal
of the same defences by the
Appellate Court occasioned
miscarriage of justice to
appellant”
The case for the prosecution was
that on 21 Jan 1993, the
deceased Amegbor Amedorme took
John Narteh Amergbor (PW2) to
Adornukedzi Island to inspect
some palm trees that PW2 wanted
to buy to distil akpeteshie.
They were accompanied by Andrew
Agormedah (PW3). They met the
appellant who was fishing. PW3
said he greeted the appellant
but he did not respond. On their
way back the deceased was in the
lead followed by PW2 and then
PW3. According to PW2, the
appellant emerged from the back
of a palm tree and slashed the
neck of the deceased with a
cutlass and he staggered and
fell. The appellant turned on
him and he parried the blow and
was injured on the 2nd,
3rd, and 4th
fingers. The appellant tried to
slash his stomach and once again
he tried to block the cutlass
and he had a cut on his right
forearm. PW2 and PW3 fled the
scene leaving the deceased
behind. His evidence was
corroborated by PW3.
The case for the appellant was
that the land belonged to his
family and he was on it to
harvest palm fruits to sell to
pay his school fees. His family
and the deceased’s family have
been litigating over the land.
When he saw the deceased and two
others he asked them their
mission and the deceased who was
holding a cutlass slashed him on
the wrist and left knee. He
became furious so he started
brandishing the cutlass he was
holding and it cut PW2 on
his arm and the neck of the
deceased. The deceased fell and
the others then fled and he
decided to make a report to the
police. He saw that the head of
the deceased was almost off so
he cut it off as he did not want
anyone to come for it in his
absence.
Misdirection on the law relating
to Murder and Manslaughter
There is no doubt that the
deceased died of injuries which
from the evidence of PW2 and PW3
were inflicted on him by the
appellant. The appellant
admitted both in his statement
to the police and in his
evidence at the trial that he
killed the deceased.
Counsel for the appellant made
submissions that the evidence
before the Court showed that:
(i) The appellant was attacked
by the deceased
(ii) He provoked the appellant
to fight back in response
(iii)The appellant had no
intention to kill the deceased
(iv)
The deceased and PW2 and PW3
could have killed him but for
his courageous counter-attack.
Counsel therefore argued that
the trial judge in her summing
up ought to have directed the
jury to consider the defences of
provocation or self defence
which arose from the defence.
No
submissions were made on behalf
of the Respondent by the
Attorney-General’s Department
although they were served on
several occasions.
We agree with counsel on this
point. It is trite law that “in
a case like this when a jury can
return a verdict of not guilty
on the grounds of justification,
a verdict of guilty of
manslaughter or a verdict of
murder, the judge should
carefully and clearly direct the
jury on all these possible
verdicts” per Afreh J.A (as he
then was) in the case of
Quartey v. The Republic v.
[1999-2000]2 GLR 201 at 211.
The appellant’s defence clearly
raised the alternative defences
of provocation and self defence.
It was the duty of the trial
judge to direct the jury that if
they believed that the deceased
attacked the appellant and
injured him on his wrist and
knee then they should consider
the issue of provocation or self
defence. If however the jury did
not believe the appellant or do
not find the defence reasonable
probable then they should be
directed that the defence put up
ought to fail.
The summing up at the trial on
these issues was highly
inadequate. The trial judge did
not touch on the issue of
provocation at all. After
summarising the defence of the
appellant she merely added that:
“You are to find out if the 1st
accused used the requisite force
in self-defence in the
circumstances of this instant
case. You are also to find out
if the injuries sustained by the
1st accused were self
inflicted or inflicted on him by
the deceased. Please be reminded
that PW2 also sustained injuries
which he said was inflicted on
him by the 1st
accused (section 31, 32 and 37
read out and explained.)”
This casual way of dealing with
a very complex legal term of
self defence and the provisions
on circumstances where the use
of harm could be justistified
was clearly a dereliction of the
duty of a judge in a trial by
jury. Although ‘a summing-up is
not intended to be an exhaustive
verbal dissertation of the law
applicable to the case, nor a
lecture on it, nor to be like an
extract from a treatise dealing
fully and accurately with the
law,’
there is no particular rigid
formula to be followed in a
summing up, what matters is the
substance. Since questions of
law are for the judge to decide,
it was essential that she
explain any defence relied on by
the appellant or is open to the
appellant to the jury. At least
there should have been a summary
of how she explained the
sections on self defence in the
Criminal Code to the jury
On appeal to the Court of Appeal
the learned justices held that
the direction to the jury on
self defence was inadequate.
They were however of the view
that this failure to direct the
jury sufficiently on the issue
of self defence did not occasion
any miscarriage of justice.
In considering this appeal the
test to be applied then ‘is not
that of seeking to assess what
another jury would have done if
properly directed or if it had
heard a revised version of the
evidence. The appellate court
must assume a reasonable jury
and must then consider whether
such a reasonable jury hearing
the evidence could if properly
directed have failed to convict’
per Aikins JSC in Kuo-Den
alias Sobti v. The Republic
[1989-90] 2GLR 203 at 213. See
also The Republic v. Zinitege
[1993-94] GLR 213.
On the evidence it was clear
that the multiple injuries the
appellant inflicted on the
deceased caused his death. The
findings of the autopsy
performed on the body were
tendered in evidence at the
trial as Exhibit A by the
Specialist Pathologist PW4. His
evidence was as follows:
“The decapitated body of a black
male including the head showing
the following lesions
(injuries). Incisional wound on
the left side of the jaw through
the angle of the mouth with
partial amputation of the right
ear, 3 deep incisional wounds 4
to5 inches each on the left side
of the upper neck, laceration
with dislocation of the left
hand at the wrist and laceration
7 inches long the left shoulder.
My autopsy diagnose of cause of
death was haemorrhage shock
secondary to bleeding from
decapitation and multiple
wounds”
In his statement to the police,
the appellant said he was
standing behind a palm tree
looking for ripe palm fruits to
harvest when he saw the
deceased, PW2 and PW3 coming
towards him and he asked who
they were. He said the deceased
who was holding a cutlass and
leading them asked him what he
was doing. He immediately cut
him on the left hand wrist and
left knee. The other two pounced
on him so he brandished his
sharp cutlass and it struck
PW2’s hand. The two prosecution
witnesses ran away leaving the
deceased behind. According to
the appellant:
“(The deceased) He wanted to cut
me again and I dodged it and I
also threw my cutlass and it cut
his hand. After cutting the hand
he took to his heels and I
followed him and gave him
another cut on his neck and he
fell down. I saw that the head
was about to remove. I left it
and went home and put the
cutlass under my bed. After that
I remembered that his head was
about to remove so I went back
and finally removed the head and
brought it home …..and buried it
in a hole which I dug with the
same cutlass.”
At the trial the appellant’s
account was that:
“When I asked of their mission
in the farm Amegbor who was in
possession of a cutlass slashed
me in the left wrist.
After he slashed me in the
wrist, he slashed me on the left
knee. Since I was wearing hoses
the cut did not cut through my
knee as it did to my wrist.
After this, I became furious. I
asked them if they had come to
kill me. Then Tetteh Andrews and
the other person of whom I now
remember his name Johnny
attempted to pounce on me.
During that time I was also
concerned about my dear life and
so I started to brandish the
cutlass here and there, when I
brandish the cutlass it cut
Johnny's
hand, Tetteh Andrews rushed on
me as well as Amegbor. As I was
brandishing the cutlass it cut
the neck of Amegbor and he fell
down. When the two assailants
saw that Amegbor had fallen down
they took to their heels. I
realized that the head of
Amegbor was almost cut off so I
decided to cut off the head
completely and took it as I was
going to report the matter to
the police and I did not want
anyone to come for the head."
These two accounts are not the
same. In his statement to the
police though the deceased
appeared to be the aggressor,
the fray ended after he received
a cut on the left hand from the
appellant and turned to flee
from the scene like the two
other prosecution witnesses. It
was then that the appellant
chased the deceased and gave him
the blow on his neck which
almost decapacitated him. In
such a situation can the plea of
self defence avail the
appellant?
In his evidence in court he said
all three pounced on him and in
the process of brandishing the
cutlass apparently to ward of
the combined attack that the
deceased sustained a cut on the
neck and fell down and the other
two took to their heels. His
evidence in court clearly raises
the defences of either self
defence or provocation.
SELF-DEFENCE
The use of force or harm in
section 37 of Act 29 was subject
to the limitation stated in
section 32 thereof which
governed all sections relating
to the grounds on which force or
harm might be justified.
Sections 32 and 37 of the
Criminal Code, 1960 (Act 29),
provide as follows:
"32. Notwithstanding the
existence of any matter of
justification for force, force
cannot be justified as having
been used in pursuance of that
matter -
(a) which is in excess of the
limits hereinafter prescribed in
the section of this Chapter
relating to that matter; or
(b) which in any case extends
beyond the amount and kind of
force reasonably necessary for
the purpose for which force is
permitted to be used."
"37. 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."
It is our duty to consider
whether the harm used by the
appellant to defend himself was
reasonably necessary in the
circumstances. It is trite law
that whenever the defence of
self- defence is put up the harm
used in defending oneself must
have been reasonably necessary
in the circumstance. See the
cases of Yeboah v. State
[1967] GLR 513, Republic v.
Zinitege [1993-94] 1GLR 1.
The appellant claimed he was
attacked by the deceased and
there was evidence that he was
taken to the hospital and the
medical report confirmed there
were lacerations on the left
hand beyond the wrist and
abrasions on the left knee.
Though the cutlass identified by
him as what was used by the
deceased had no bloodstains on
it. Looking at his evidence the
impression the appellant gave at
the trial was that he struck the
deceased only one blow on the
neck which almost decapacitated
him. In contrast we have the
evidence of PW2 and PW3 which
showed that after the deceased
has fallen down and they fled
the appellant more or less
chased them but they escaped and
according to PW2 the appellant
went back and inflicted more
cutlass wounds on the deceased
who was still on the ground.
The autopsy or post mortem
report as well as the evidence
of the Specialist Pathologist
indicate that the appellant
inflicted multiple wounds on the
left shoulder, left side of
upper neck, and left side of jaw
through angle of mouth with
partial amputation of right ear
of the deceased. These injuries
in our opinion are consistent
with the evidence of PW2 that
the appellant slashed the
deceased several times after the
initial attack. These injuries
were inflicted on the deceased
at a time when obviously the
appellant’s life was no longer
in danger with his main
assailant on the ground and the
other two had fled in a canoe.
It is therefore our considered
opinion that the harm inflicted
on the deceased could not be
said to be reasonable in the
circumstances. The plea of
self-defence accordingly fails.
PROVOCATION
On the plea of provocation the
trial judge totally failed to
direct the jury though at least
the appellant’s evidence that
the deceased was the first to
attack him raises such a defence
which under Section 52 of the
Criminal Code would reduce the
offence of murder to
manslaughter. Section 52
provides in relevant portions as
follows:
“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; or
(b) he was justified in causing
some harm to the other person,
and, in causing harm in excess
of the harm which he was
justified in causing, he acted
from such terror of immediate
death or grievous harm as in
fact deprived him for the time
being of the power of
self-control.”
Section 53 explains further what
is considered as matters which
amount to extreme provocation.
The relevant portions are:
Section 53 —Matters which Amount
to Provocation.
“The following matters may
amount to extreme provocation to
one person to cause the death of
another person namely—
(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;
(b) the assumption by the other
person, at the commencement of
an unlawful fight, of an
attitude manifesting an
intention of instantly attacking
the accused person with deadly
or dangerous means or in a
deadly manner.”
What we have to consider here
is whether the attack by the
deceased and the other two on
the appellant were such as to
deprive him of the power of self
control. The appellant in his
evidence said after the deceased
has injured him on his wrist and
knee, he became furious and
asked whether they had come to
kill him. The others joined in
the fray and he therefore
brandished the cutlass which
caused the injuries on PW2 and
the deceased.
Granted that the appellant was
provoked by the unwarranted
attack on him by the deceased
and the two others we are
however of the view that the
manner in which he reacted by
inflicting several wounds on the
deceased to the extent of
decapitation was too cruel in a
manner that no ordinary person
in the circumstances would have
acted. This is a situation
where the benefit of provocation
can be excluded under Section 54
(1) (d). The section provides
that:
“54—Cases in which Benefits of
Provocation is excluded.
(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 on 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.”
Consequently the defence of
provocation also fails. From the
foregoing it is the opinion of
the Court that on the evidence,
the misdirection of non
direction of the jury on the
defences of self-defence and
provocation occasioned no
miscarriage of justice. The
verdict of murder by the jury
was therefore correct.
Accordingly the appeal fails and
is accordingly dismissed.
The conviction and sentence of
the court below are hereby
affirmed.
S.O.A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
I agree: ATUGUBA,
J.S.C.
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
I also agree: ANSAH, J.S.C.
J. ANSAH
JUSTICE OF THE SUPREME COURT
I also agree: ANIN YEBOAH,
J.S.C.
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
I also agree: BAFFOE-BONNIE,
J.S.C.
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL:
AHUMAH OCANSEY FOR THE
APPELLANT.
THE ATTORNEY GENERAL FOR THE
RESPONDENT.
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