pg 106
Appeal Court, 9th June,
1941.
Appeal from conviction
by Supreme Court.
Murder-Unsworn evidence of
2 infants of 3/4 and 4
years respectively-
Section 17 (3) of Cap.
206-Corroboration required and
nature of corroboration
necessary-will of witness
corroborating may render it
insufficient--Other
corroboration.
'
Held: .Jury properly directed,
ample corroboration and appeal
dismissed.
There is no need to set out the
facts. Case cited:-
Rex v. Manser
(25 Cr. App. Rep. 18).
A. Ridehalgh
for Crown.
Akufo
Addo
for Appellant.
The following joint judgment was
delivered:-
KINGDON, C. J., NIGERIA"
PETRIDES, C; J., GOLD COAST
AND GRAHAM PAUL, C. J., SIERRA
LEONE.
The appellant was, charged in
the Supreme Court' at Accra with
the murder of a woman Kpata
Yivanyo. He was found guilty by
a jury and condemned to death.
He has appealed to this Court
against his conviction.
A number of grounds of appeal
have been filed but none of
.them has any substance except
-(a),
,(d)
and
(g)
which are as follows: -
(a)
That the two main witnesses in
the case are infants aged about
three years and five years
respectively who 'gave evidence
without oath being administered
to them. Their evidence as
appeared on record was not
corroborated in any particular
by the other adult witnesses.
The evidence of the younger of
the infants who appeared to be
an eye witness to the deed was
not corroborated by any witness.
(d)
That apart from the evidence of
the two infants there is no
evidence on record in support of
the charge.
(g)
That the condemned prisoner
should have been discharged on
the evidence on record.
pg 107
Essentially all these grounds
involve one and the same
question, namely, whether there
is on record 'sufficient
corroboration of the evidence-of
the two infants Adjo Adjoba and
Novihiawo Afi who are the
daughters of the murdered woman
aged respectively about three or
four years of age and about five
years of age, their evidence
being taken unsworn under
section 17
(3) of Cap. 206 as they appeared
to the trial .judge to be of
immature age and w
understand ,that they must speak
the truth.
There is definite medical
evidence that the death of Kpota
Yivanyo was due to strangulation
and there is no doubt that the
evidence of the two 'children is
sufficient to establish that it
was the appellant who strangled
her and the only question in the
appeal is whether there is
corroboration of their evidence
within the meaning ,?f the
proviso to section 17
(3) of Cap. 206 which is as
follows: -
" And provided further that no
person shall be convicted " or
judgment given upon the
uncorroborated evidence of a "
person who shall have given his
evidence without oath or "
affirmation."
It is also clear on the
authority of Rex v. Yanser (25
Cr. App.
Rep.
18) that the evidence of one
child does not supply the
requisite corroboration of the
evidence of the other.
In his notes of his summing-up
to the jury the trial Judge said
in regard to the evidence of the
two chilt1ren:-
"I explained to the jury that
they ,must not convict on such "
evidence unless it ,was
corroborated in some material
particular .. "
'1'here can be no 'doubt that
there is on record evidence
which,
if ,believed, would amount to
ample corroboration of the
stories of the two' children.
The murdered woman lived with
the appellant as his mistress.
Her dead body was found at the
back of his house. SofaI' as the
evidence for the prosecution
goes the appellant was the last
person to see the murdered woman
alive. The evidence shows that
there were signs-swelling on the. neck and blood oozing from
her nostrils -that the woman had not' died from natural
causes, and yet she was buried
at dead or night without any
report having been made to the
Chief or to the Police. There
is also the evidence of Kwasi
Dator an uncle of the murdered
woman who questioned the
appellant
after the burial as to the death
of his niece. He says " Accused
" told me deceased had gone to a
village to claim a debt, and
that " the following day
she was found dead with her neck
broken. " He said blood was
coming out of her nostrils and
mouth,. and " her shoulder was
bruised. He said a cloth she had
on and his was missing. I said 'Do you
suggest she has been " murdered
'? He said 'Yes'. I said 'Have
~'ou found out
pg
108
who murdered her?' He said'
No.' I said' Then I accuse you "
of killing my niece, for you
have made no endeavour to find
out " who killed her'. Accused
made no reply. I made a report
to " the Chief. As a result
accused was arrested ". The body
of the murdered woman was then
exhumed and examined by a doctor
and the proceedings started
against the appellant.
If that evidence of Kwasi Bator
is believed it is clear that it
is enough corroboration of the
evidence of the children. It was
suggested, however, on behalf of
the appellant that the evidence
of Kwasi Bator should not be
accepted as he was actuated by
ill-will towards the appellant
in giving his evidence. Whether
that. evidence should be
believed or not was of course a
question for the jury and the
trial Judge in leaving the
question of the credibility of
this and another witness (also
an uncle of the murdered woman)
Anku Nukpe to the jury said :-"
The evidence of these two "
witnesses should be treated with
caution as there was undoubted "
ill-feeling on their 'part
against accused because of his
having " taken deceased, who was
their niece, away from her
husband. " without their
consent, and without paying
pacification". That was a very
clear warning to the jury that
these witnesses might have been
committing perjury on account of
their ill-will towards" the
appellant.
It may also be noted, as the
trial Judge in his summing-up
noted, that" the injuries!
described by the doctor are such
as coul,d" be caused by
injuries inflicted in the way
the first young witness " says
they were". That is certainly
corroboration of the story of
the first young witness in a
material particular though of
itself it does not necessarily
conned the appellant with the
crime of inflicting the
injuries.
Upon the whole matter we are
satisfied that there was, in the
circumstances of this case as
disclosed by the evidence, ample
evidence to corroborate the
evidence of the two children,
and we are therefore unable to
find that the jury had not
before them evidence on which
they could rightly find the
appellant guilty, as they did.
The appeal is therefore
dismissed.
