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Criminal law and procedure –
Murder – Self-defence – Bad
blood between appellant and
deceased – Deceased attacking
appellant thrice – Deceased
aggressor in ensuing fight –
Appellant delivering severe blow
killing deceased – Whether
appellant entitled to defence of
self-defence – Criminal Code
1960 (Act 29) s 37.
Criminal law and procedure –
Murder – Provocation – Bad blood
between appellant and deceased –
Deceased seducing appellant’s
girlfriend and casting
insinuations at appellant -
Deceased attacking appellant
thrice and dying in ensuing
fight as aggressor – Whether
defence of provocation available
– Criminal Code 1960 (Act 29) s
52 and 53.
After drinking some pito with
his girl friend the appellant
retired to bed drunk with her
and discovered next morning that
the deceased, his nephew, had
slept with his girlfriend, she
believing in the dark that it
was the appellant. Sometime
later the appellant met the
deceased in the pito bar where
the deceased cast insinuations
at the appellant to the effect
that: “If God likes me and human
beings do not like me I care
not”. At their subsequent
meeting at the pito bar the
deceased repeated the
insinuation. This time the
appellant reacted and they were
about to fight when they were
separated and sent out of the
bar. The appellant was returning
home when, according to him, the
deceased who was lurking in the
shade suddenly emerged, held the
appellant and used a rubber
strip to hit the appellant. The
appellant seized the rubber. The
deceased then picked a stick and
hit the appellant breaking the
stick into two. He picked
another stick and hit the
appellant with it again. The
appellant seized the stick and
hit the deceased on the head
with it. That blow turned out to
be fatal. The deceased never
recovered from the injury
sustained. The appellant was
convicted of murder and he
appealed to the Court of Appeal.
His counsel submitted that the
judge omitted to direct the jury
on self-defence and provocation.
Held:
(1) whenever self-defence
was put up, the harm used in
defence must have been
reasonably necessary in the
circumstances. From the facts
the deceased died from a single
but severe blow. The force
exerted by the appellant in
delivering that blow must have
been so severe that it could not
properly have justified the
defence of self-defence. In the
light of the severity of the
blow the harm inflicted by the
appellant could not be said to
have been reasonable in the
circumstances. The jury was
consequently justified in not
acquitting the appellant on the
defence of self-defence.
Yeboah v State [1967] GLR
513, Lamptey alias Morocco v
Republic [1974] I GLR 165
cited.
(2) The insinuations by the
deceased took place some time
prior to the day of the incident
and could properly be described
as remote but their relevance
lay in the fact that they
revealed a back-ground of bad
blood between the deceased and
the appellant. On the facts, the
deceased made three attacks on
the appellant in such
circumstances as was reasonable
to expect any person, on the
spur of the moment, to fend off
the last blow as the appellant
did with the stick that the
deceased had used. The three
successive attacks must have led
the appellant so to lose his
self-control as to resort to the
one and only move that turned
out unfortunately to be fatal.
That temporary loss of
self-control was the essence of
the defence of provocation put
up by the appellant. There was
hardly any cooling off. The
deceased was the aggressor; his
own belligerent conduct brought
about the incident that resulted
in his death. The defence of
provocation should avail the
appellant and the jury ought to
have returned a verdict of
manslaughter as provided in
sections 52 and 53 of the
Criminal Code 1960 (Act 29). The
appeal would be allowed and the
conviction of manslaughter would
be substituted. Lamptey alias
Morocco v Republic [1974] 1
GLR 165, Kuo-Den alias Sobti
v Republic [1989-90] 2 GLR
203, Melfa v Republic
[1974] 1 GLR 174, CA cited.
Cases referred to:
Kou-Den alias Sobti v Republic
[1989-90] 2 GLR 203, CA.
Lamptey alias Morocco v Republic
[1974] 1 GLR 165, CA.
Melfah v Republic
[1974] 1 GLR 174, CA.
Yeboah v State
[1967] GLR 513, CA.
APPEAL against the conviction
and sentence of the appellant
for murder in the High Court.
M K Oyere
for the appellant
Osafo Sampong,
Chief State Attorney, for the
Republic.
BROBBEY JA.
The appellant was tried,
convicted and sentenced for the
offence of murder. Aggrieved by
the conviction and sentence, he
appealed to this court.
Only one ground of appeal was
filed on his behalf; it was that
the trial judge did not
adequately consider the case of
the appellant.
In arguing that ground, counsel
for the appellant contended that
the judge failed to direct the
jury adequately on the issue of
self-defence and provocation.
The facts which gave rise to the
charge were as follows: The
deceased was the nephew of the
appellant. Some time in or
around December in 1985, he went
to a drinking bar. Appellant
bought some pito for himself.
While drinking, his girlfriend
approached him. He bought her
too some of the pito. At the end
of the drinking session, he took
the girl to the house of the
deceased where he decided to
spend the night with her.
Apparently the drink he had got
the better of him and he
over-slept, leaving the girl
lying by his side. When he woke
up he could not immediately see
the girl by his side. He
eventually located her lying
elsewhere. She then complained
to the appellant that in the
night someone had sexual
intercourse with her. Thinking
that that person was the
appellant, she did not resist.
After the sexual act, she was
chagrined to discover that it
was, after all, not the
appellant who had come to lie on
her but his nephew, the
deceased, who masqueraded as the
appellant.
When the appellant later
questioned the deceased about
the allegations of the girl, he
denied everything.
On 24 December 1985, the
appellant went to a drinking
bar. Deceased joined him later,
with some friends of his. They
bought and drank some alcoholic
drinks there. While there, the
deceased cast insinuations at
the appellant to the effect
that: “If God likes me and human
beings do not like me I care
not”.
Nothing significant happened
there. Appellant left. He later
returned to the bar. Deceased
resumed the insinuating remarks,
apparently directed at the
appellant. This time, the
appellant reacted, and some
confusion ensued. The two were
about to fight when both were
stopped and driven out of the
bar.
Appellant was returning to his
house when, according to him,
the deceased who was lurking in
some shade on the way suddenly
emerged. Deceased held the shirt
of the appellant and used a
rubber strip on the appellant
which the appellant seized.
Deceased then ran from the
scene, picked a stick and hit
the appellant with it. The stick
broke into two pieces. Deceased
went back and picked another
stick. He hit the appellant with
it again. Appellant seized that
stick and hit the deceased on
the head with it. That single
blow turned out to be fatal.
Deceased never recovered from
the injury sustained from that
blow.
In arguing the appeal, counsel
for the appellant submitted that
the appellant should have been
acquitted on the ground of
self-defence.
The law on self-defence is
clearly set out in section 37 of
the Criminal Code 1960 (Act 29)
and was amply explained in
Lamptey alias Morocco v Republic
[1974] 1 GLR 165.
The trial judge directed the
jury on self-defence. As the
Supreme Court held in the recent
case of Kuo-Den alias Sobti v
Republic [1989-90] 2 GLR
203, the test to be applied in
an appeal like the instant one
is not one of seeking to assess
what another jury could have
done if properly directed or if
it had heard a revised version
of the evidence. The appellate
court, the case held further,
must assume the role of a
reasonable jury and must then
consider whether such a
reasonable jury hearing the
evidence, could, if properly
directed have failed to convict.
The evidence on which the trial
judge directed the attention of
the jury showed that the
deceased died of a single blow.
From the medical report, the
blow must have been a rather
severe one. Having regard to the
nature of that single blow which
caused the death of the
deceased, the force exerted by
the appellant in delivering that
blow must have been so severe
that it could not properly have
justified the defence of
self-defence which counsel for
appellant canvassed in this
court. That aspect of the law is
well settled.
Whenever the defence of
self-defence is put up the harm
used in defending oneself must
have been reasonably necessary
in the circumstances. See
Yeboah v State [1967] GLR
513, CA. In the light of the
severity of the blow in the
instant case, the harm inflicted
by the appellant could not be
said to have been reasonable in
the circumstances. The jury was
consequently justified in not
acquitting the appellant on the
defence of self-defence.
Like self-defence, our law on
provocation has been well
settled in many decided cases
and no useful purpose will be
served in recounting the
explanations here. The essence
of the defence of provocation is
that on the facts the deceased
must have put up such behaviour
towards the appellant as would
cause any reasonable person, and
in actual fact cause the
appellant, to suddenly and
temporarily lose his self
control, and to render the
appellant so subject to passion
as to cause him momentarily not
to be in control or be master of
his own mind: See Lamptey
alias Morocco v Republic,
supra.
What are the facts of the
instant case? Firstly there was
the antecedent issue of
insinuations. This took place
some time prior to the day of
the incident and could properly
be described as remote. Its
relevance lies in the fact that
it revealed the background of
the development of bad blood
between the parties.
On the fateful day, however, the
appellant was first hit with a
rubber strip. He wrestled it
from the deceased. Secondly the
deceased hit the appellant with
a stick which broke into two.
Then the deceased took a stick
with which he hit the appellant
for the third time. That last
stick was the one which the
appellant grabbed from the
deceased and hit him on the
head. In the face of the three
consecutive attacks on the
appellant, it is reasonable to
expect any person in the
position of the appellant to
have used the very instrument
with which he had been attacked
to fend off the attack. It is
significant to point out that it
was the self-same instrument the
deceased used on the appellant
which the appellant, on the spur
of the moment and indeed in the
course of the attacks on him,
used back on the deceased.
The facts of this case are
similar to those in Lamptey
alias Morocco v
Republic, supra. In that
case there was the initial
behaviour of the deceased which
the court found to have amounted
to insults to the wife and
mother of the appellant. The
deceased was the first to give
the appellant a blow. That led
to a fight between him and the
appellant. In the course of the
fight the deceased was hit with
a stick which resulted in his
death. It was held that since in
those circumstances, the initial
conduct of the deceased greatly
provoked the appellant to resort
to the action he took the
verdict of murder was improper
and not borne out by the
evidence.
In the instant case, the three
successive attacks must have led
the appellant so to lose his
self-control as to resort to the
one and only move he took which
turned out unfortunately to be
fatal. That temporary loss of
self-control was the essence of
the defence of provocation.
There was hardly any significant
time lapse for any issue of a
cooling off period to be raised
in this case.
The facts show clearly that the
deceased was the aggressor and
his own belligerent conduct
brought about the incident which
resulted in his death, just as
it happened in Melfa v
Republic [1974] 1 GLR 174,
CA.
It must be pointed out that the
circumstances constituting or
giving rise to the defence of
provocation which were narrated
by the appellant were not
controverted because in
actual fact, there was no eye
witness to the incident. All the
prosecution witnesses went to
the scene after the deceased had
been hit. They could not
consequently have challenged the
versions of the appellant
relating to the insinuations,
the use of the rubber strip,
alleged hitting of appellant
with the stick which broke and
the third assault with the last
stick, all of which took place
prior to the period they went to
the scene. This is particularly
the case where none of them
claimed to have based their
testimonies on what they learned
even from the deceased before he
died.
In the circumstances of the
case, I am the opinion that the
defence of provocation should
have availed the appellant for
the jury to have returned a
conviction of manslaughter as
provided in sections 52 and 53
of the Criminal Code 1960 (Act
29).
I would accordingly allow the
appeal, substitute a conviction
of manslaughter for that of
murder.
KPEGAH JSC.
I agree.
AMUAH JA.
I also agree.
Appeal allowed; conviction for
manslaughter substituted for
murder.
Justin Amenuvor, Legal
Practitioner. |
