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GHANA BAR REPORT 1993 -94 VOL 2

Singin v Republic

COURT OF APPEAL

ESSIEM, ADJABENG, LUTTERODT JJA

30 JULY 1992

 they examined the body of the deceased and found some small holes in the “ribs and chest” of the deceased. They caused the body to be buried. But about three months later the body was exhumed to enable a post mortem examination to be conducted thereon. After the completion of the investigations, the appellant was charged with murder.

At the trial even though the appellant's statement to the police was objected to, the court admitted it after the trial judge had satisfied himself in a mini trial that the statement had been made voluntarily in the presence of an independent witness. The appellant, however, in his evidence at the trial denied ever saying in his said statement that he had shot the deceased. After the summing-up to the jury, the jury returned a verdict of guilty of murder. The appellant appealed to this court on the ground that the verdict is unreasonable and so ought to be set aside. Additional grounds of appeal were also filed. The only grounds argued are grounds 5 and 7 of the additional grounds of appeal. These state as follows:

“5. That the learned trial judge misdirected the jury in rejecting totally outright the medical report which was tendered in evidence by the prosecution and which was totally against them thereby creating a reasonable doubt in their case.

7. That the learned trial judge erred in law in holding that the statement of the accused made to the police was admissible.”

Counsel for the appellant argued ground 7 first. She submitted that since the appellant said at the beginning of his trial and in his evidence during the mini trial that he could speak only Komba or Konkomba language, the trial judge was wrong in basing his admission of the appellant's statement to the police on the evidence that the appellant made his statement in Dagbani. Counsel argued therefore that the appellant's confession statement to the police should have been rejected by the trial judge for this reason.

There seems to be no merit in counsel's argument as there was overwhelming evidence before the judge at the mini-trial for the determination of the question as to whether or not the appellant spoke to the independent witness in Dagbani. This independent witness emphasised in his evidence that the appellant spoke to him in Dagbani. The witness, Majid Mustapha, said as follows:

“The accused gave his statement in Dagbani. The statement was taken down in writing by the police investigator. I understand both English and Dagbani languages. After the statement had been written in English I read it over to the accused in the Dagbani language. The accused understood the Dagbani language. The accused understood the statement I read to him in Dagbani and he thumbprinted the statement. After that I made a certificate to that effect.”

 Significantly the witness was not challenged under cross-examination on his evidence that the appellant spoke to him in Dagbani. In my view the trial judge was right in the way he dealt with the issue. In his ruling at the end of the mini-trial he said inter alia as follows:

“The issue is whether or not the accused spoke Dagbani and he understood it. PWs 1 and 2 said he did speak Dagbani. Accused on the other hand said he did not speak or understand Dagbani. It is an issue of fact to be determined by this court.  In my view I find PWs 1 and 2 to be credible witnesses. I believe their testimony in its entirety. Accused has done little beyond asserting that he did not understand Dagbani. It would have been difficult for him to know that PW1 spoke to PW2 in Dagbani. Accused also spoke Dagbani and the statement was read over to him in Dagbani.”

In my view, once the trial judge's finding is supported by the evidence on the record this court cannot interfere as the trial judge resolved the issue of fact involved. Moreover the evidence shows clearly that the law as to the taking of confession statements has been complied with. See Mahama v The Republic [1980] GLR 100, holding (1) at p 101. It is my view therefore that the trial judge was right in admitting in evidence the appellant's statement made to the police. The appellant's ground 7 of the additional grounds of appeal accordingly fails.

In respect of ground 5 of the additional grounds of appeal argued it was contended on behalf of the appellant that the trial judge misdirected the jury on the medical report and that the misdirection resulted in a substantial miscarriage of justice.

A close look at the summing-up however does not seem to reveal any misdirection of the jury by the trial judge as contended. From my study of the judge's summing-up it seems to me that the learned judge directed the jury on all the relevant aspects of the post mortem or medical report, exhibit A.

For example the judge drew the attention of the jury to the evidence contained in exhibit A that the deceased, Issah Mahama, was dead and asked them to consider this evidence together with other pieces of evidence in deciding whether Issah Mahama was indeed dead as claimed by the prosecution.

The trial judge also pointed out to the jury that in law the cause of death was not conclusively established by exhibit A, as the body of the deceased had decomposed before being exhumed for the post mortem examination. The judge, however, referred the jury to the evidence of PW3, the police investigator, who said he saw small holes in the left and right ribs or the chest of the body of the deceased when he examined it. The judge directed the jury to consider this evidence and to decide what the cause of death was. The jury no doubt would have considered the evidence of PW3 and the appellant's own admission in his statement to the police that he had shot the deceased and came to the conclusion that the appellant caused the death of the deceased.

It seems to me that there is nothing wrong with the judge's summing-up as regards the post mortem report. I find no merit therefore in ground 5 of the appellant's additional grounds of appeal.

In the statement of the appellant, exhibit B, which I have said was rightly admitted in evidence, appellant gave an account of what happened on the fateful 16 August 1986.

According to the appellant, at about dawn that day, he was returning from a hunting expedition when he met the deceased who was carrying a sheep on a bicycle. He said when he challenged the deceased, the latter said that he had bought the sheep. The appellant who, obviously was not satisfied with this answer, continued as follows:

“I asked him why he should go about buying animals in the night and that he should accompany me back to where he bought it. He came down from the bicycle and attempted to run away and I shot him with a cap gun which I was holding.”

The trial judge, in his summing-up, rightly directed the jury that if they believed the appellant's story as stated above then they should decide whether the deceased “is indeed a thief or not”. And that “if he is a thief then the accused could arrest him without a warrant”.

As is provided in section 12(2) of the Criminal Procedure Code 1960 (Act 30) as amended by the Criminal Procedure Code (Amendment) Decree 1973 (NRCD 235):

“A private person may arrest without warrant any person whom he reasonably suspects of having committed any offence mentioned in subsection (1), provided that an offence of that nature has been committed.”

One of the offences mentioned in subsection 1 of section 12 is stealing. And from the appellant's evidence under cross-examination by the jury, it came out that there had been stealing of sheep in the area. Also the evidence of the police investigator, PW3, shows that the sheep which the deceased was carrying on the bicycle when he was challenged by the appellant might have been stolen. For, according to PW3's evidence under cross-examination, this sheep was not claimed by the deceased's relatives, Dagombas, even though they did claim the bicycle as belonging to the deceased. The sheep was claimed by the appellant's people, Konkombas, and PW3 said he was satisfied with their claim. In these circumstances was the appellant not entitled to arrest the deceased whom he suspected of having stolen the sheep, especially when he tried to run away when asked to go with the appellant to show where he had purchased the sheep?

Section 36 of the Criminal Code 1960 (Act 29) provides as follows:

“36. Whoever by law may with or without warrant or other legal process, arrest and detain another person may, if the other person, having notice or believing that he is lawfully arrested, avoids arrest by resistance or flight or escapes or endeavours to escape from custody, use any force which is necessary for his arrest, detention, or recapture, and may, if the arrest is made in respect of a felony, kill him, if he cannot by any means otherwise be arrested, detained, or retaken.”

No doubt, the learned trial judge rightly, in my view, recognised the right of the appellant to use the necessary force to arrest the deceased, if the jury thought that he was a thief. It seems to me, however, that the judge's directions on this issue were inadequate, unsatisfactory and, to some extent, confusing.

To illustrate, the judge in his summing-up directed the jury that if they decided that the deceased was a thief then according to section 36 of Act 29, quoted above, the killing of the deceased was justified. The judge then went on to direct that if they, the jury, thought that there was a way other than killing open to the appellant in arresting the deceased and the appellant did not use that other way, then the killing was not justified, and that the act would amount to murder. I think that the judge omitted something very important here. And that is a direction to the jury to go on to consider whether the force used in the attempt to arrest the deceased, that is, by shooting him was an excessive use of the force legally granted under section 36 supra, or whether the appellant's intention was merely to kill the deceased.

If after directing them thus the jury should find that the appellant only used excessive or unreasonable force in his attempt to arrest the deceased, then obviously this would negative an intention to kill and reduce the offence from murder to manslaughter. As was held by this court in Otsibah v Republic [1984-86] 2 GLR 394, CA, holding 3,

“(3) The trial judge had always a duty to direct the jury on manslaughter where on the evidence upon a murder charge, there appeared a defence that might reduce the charge to manslaughter even though such defence had not been put forward. And where there was evidence to sustain the verdict of murder or manslaughter, the issue would become a question of fact for the jury to decide. To leave out entirely a direction on the alternative verdict of manslaughter, could only be justified if there was a total absence of evidence on record to support such a verdict. In the instant case, even though the trial judge had devoted some time to explain to the jury the meaning of intent as an essential ingredient in murder, he had failed to discuss the alternatives that a lack of that particular intent could present.”

I think that in the present case before us the trial judge did not do enough to direct the jury on the alternative verdict of manslaughter in the circumstances of this case where section 36 supra seems to give a person in the shoes of the appellant the right even to kill where a person who has committed a felony tries to run away.

Moreover, some aspects of the summing-up were not only confusing but also misleading: For example, towards the end of the summing-up, the judge directed the jury that the appellant was not able to prove that the deceased was a thief when the evidence referred to earlier from PW3 leaves no doubt that the sheep found with the deceased had been stolen from the appellant's people, the Konkombas.

It seems to me that if the judge had directed the jury properly and adequately on the matters I have referred to they might have returned a verdict of guilty of manslaughter. The judge's misdirection it seems to me occasioned a substantial miscarriage of justice. The verdict of guilty of murder in the circumstances ought not to stand. I think that that verdict ought to be substituted by a verdict of guilty of manslaughter. I would accordingly allow the appeal, set aside the verdict of guilty of murder and substitute therefor that of manslaughter.

ESSIEM JA. I agree.

LUTTERODT JA. I also agree.

Appeal allowed. Verdict of murder substituted with verdict of manslaughter.

Kizito Beyuo, Legal Practitioner.

Damages - Quantum - Fatal accidents - Loss of dependency – Award to compensate for pecuniary loss to dependants, not as solatium.

Damages – Assessment – Appeals from – Appellate court entitled to substitute its award where basis of award not specified.

The plaintiffs, parents of a 13-year old pupil of a Middle School, Form 2, instituted an action for damages for the negligence of the defendants resulting in the death of the pupil in a motor accident. The 1st defendant was the owner and driver of the vehicle insured at the time by the 2nd defendant. It was found as a fact that the deceased was a brilliant pupil with a bright future. The trial judge gave judgment for the plaintiffs and awarded them a global sum of ¢600,000. The plaintiffs appealed against the award on the grounds that the award was woefully inadequate.

Held: (1) The award of damages was at the discretion of the trial judge. Once the basis of the award had been shown, unless the basis is wrong, an appellate court would have no justification for interfering with the award. In the instant case even though the learned trial judge made certain findings upon which he made his award, it was not clear how he arrived at the bulk figure. Even though he did not accept wholly the claim for funeral expenses, he did not specify how much he accepted. Besides he did not accept wholly the extent of services rendered by the deceased to his parents and grandmother but also omitted to quantify how much each dependant had lost, for which he made the global award. In the circumstances the appellate court would substitute its award.

(2) It had long been settled that damages were not awarded as a solatium for the bereaved but as compensation for the pecuniary loss suffered by the dependants of the deceased. If no pecuniary loss was proved, the defendant was entitled to succeed.

(3) It was not necessary that pecuniary advantage should actually have been derived from the deceased before his death. Damages were to be calculated with reference to a reasonable expectation of pecuniary benefit. Blake v Midland Rly (1852) 18 QB 93, Mallett v McMonagle [1969] 2 WLR 767 HL, Barnett v Cohen [1921] 2 KB 461, Taff Vale Rly Co v Jenkins [1913] AC 1 cited.

Cases referred to:

Barnet v Cohen [1921] 2 KB 461, 90 LJKB 1307, [1921] All ER Rep 528, 125 LT 733, 37 TLR 629, 19 LGR 623, 13 Digest (Repl) 173.

Blake v Midland Rly (1852) 18 Q B 93, 21 LJQB 233, 18 LTOS 330, 16 Jur 562, 17 Digest (Reissue) 216.

Mallett v McMonagle [1969] 2 WLR 767, [1970] AC 166, [1969] 2 All ER 178, 113 Sol Jo 207, [1969] 1 Lloyd’s Rep 127, [1969] NI at 105, HL.

Taff Vale Rly Co v Jenkins [1913] AC 1, 82 LJKB 49, 107 LT 564, 29 TLR 19, 57 SJ 27.

APPEAL against the award of damages in the High Court.

Cab-Addae for the appellants.

AMPIAH JA. The plaintiffs in this action were the parents of Master Tawiah Anaman who was killed in a motor accident. The plaintiffs, as administrator and administratrix respectively of the estate of the deceased, took action against the defendants for damages for negligence resulting in the death of their son.

The 1st defendant was the owner-driver of vehicle No GN 3588 which was involved in the accident, and which had been insured at the time by the 2nd defendant.

At the end of the trial, the learned trial judge gave judgment for the plaintiffs and awarded them a total of six hundred thousand cedis with costs of sixty thousand cedis against the defendants.

The defendants did not appeal against the judgment. The plaintiffs however have appealed against the judgment on the damages awarded.

Counsel for the plaintiffs contended that “having regard to the overwhelming evidence as to the loss suffered by the appellants, as a result of the death of Master Tawiah Anaman, and the excellent performance of the deceased at school, the damages of ¢600,000 awarded the appellants were woefully inadequate”.

The plaintiffs (hereinafter referred to as ‘the appellants’) did not claim any special damages. They however claimed for (i) loss of service to them and the grandmother, (ii) loss of prospective income and (iii) burial and funeral expenses.

The learned trial judge found that the deceased rendered some services to his parents and also acted as a house help to his aged grandmother. He however did not accept wholly the amount for services rendered; he did not state how much of the services he accepted and how much he would award the parents and the grandmother for the loss of such services. The learned trial judge also accepted that some funeral expenses were incurred but not to the extent claimed.

As stated earlier the damages claimed by the plaintiffs were general although specific amounts were mentioned in both the statement of claim and the evidence, for certain items. The learned trial judge awarded a bulk sum of ¢600,000 as damages. This, appellants regard as woefully inadequate.

The award of damages is at the discretion of the trial judge. Once a basis has been shown as to how the damages have been arrived at, unless the basis is wrong, an appellate court would have no justification for interfering with the award. In the instant case even though the learned trial judge made certain findings upon which he made his award, it is not clear how he arrived at the bulk figure.

Section 16(1) of the Civil Liability Act 1963 (Act 176) provides:

“Where the death of a person is caused by the fault of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased.”

Section 18 of the Act provides that:

“The damages under section 16 of the Act shall be -

(a) the total of such amounts (if any) as the court considers proportionate to the loss resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought...”

Sub-section 5 of section 18 of the Act provides further that:

“(5) In addition, damages may be awarded in respect of expenses actually incurred by the deceased before his death and in respect of funeral and other expenses incurred by the dependants or the personal representative by reason of the wrongful act.”

The burial and funeral expenses claimed were ¢30,000. Even though the judge did not accept wholly the amount, he did not say how much of this he accepted. I would award the plaintiffs ¢29,000 for burial and funeral expenses.

The late Tawiah Anaman was a 13-year old Form 2 pupil of the AME Zion Middle School, Aboom, Cape Coast. The evidence shows that he was a brilliant pupil with a bright future. The judge found that he rendered services to his parents and grandmother who were all dependants. The judge did not however accept wholly the extent of the said service; he did not quantify how much each of the dependants had lost by the death of the deceased, though in the end he awarded a lump sum.

It has, however, for long been settled that damages are not awarded as a solatium for the bereaved but as compensation for the pecuniary loss suffered by the dependants of the deceased as a consequence of his death. See Blake v Midland Rly [1852] 18 Q B 93; Mallett v McMonagle [1969] 2 WLR 767, HL. If no pecuniary loss is proved, therefore, the defendant is entitled to succeed - Barnet v Cohen [1921] 2 KB 461; but it is not necessary that pecuniary advantage should actually have been derived from the deceased before his death. Damages are to be calculated in reference to a reasonable expectation of pecuniary benefit. So, in Taff Vale Rly Co v Jenkins [1913)] AC 1 where the deceased was an intelligent girl of 16 who had almost completed her apprenticeship as a dress maker, a jury's verdict in favour of the respondent was sustained notwithstanding that she had not as yet earned anything and had so far conferred upon them no actual pecuniary benefit. Contrast, Barnett v Cohen (supra), where the claim failed because the deceased was just 4 years old.

In the instant case actual pecuniary benefit was proved. Thus, given a life purchase of 12 years and taking an average loss of ¢1,500 a month, I would award the father ¢216,000. Taking an average loss of ¢4,000 a month to the mother, I would award her ¢576,000.

The grandmother died in 1985. The 2nd plaintiff spent on her in lieu of the deceased's services, for only 2 years. I would award the estate ¢9,600.

In conclusion, I would allow the appeal and vary the damages awarded by substituting ¢830,600 total damages.

ADJABENG JA. I agree.

LUTTERODT JA. I also agree.

Appeal allowed.

Justin Amenuvor, Legal practitioner.