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R. v. KONKOMBA & ANOR.


  • appeal
  • 1959-09-28
  • COURT OF APPEAL
  • GLR 318-320
  • Print

VAN LARE J.A. AS C.J., GRANVILLE SHARP J.A. AND OLLENNU J.


Summary

Homicide?-Provocation?-Assault of accused's child to be provocative must be in the view or presence of the accused?-Time for recovery of self-control.

Headnotes

On the night of the 16th December, 1958, Tordo Konkomba went out hunting with Kwabina Basare. At about midnight Basare returned to the village and reported to its Chief and elders that he had shot Tordo Konkomba in the bush during the hunting. Thereupon the Chief sent Basare, accompanied by his (the Chief's) son, to report to the Police at Saboba. Meanwhile the Chief, together with Tordo's father (Jegeligban Konkomba) and other inhabitants of the village, rushed to the bush. There they found Tordo with gunshot wounds in the waist, wailing in agony. He died while he was being conveyed to the village, and his dead body was taken to the house of his father Jegeligban.At about 3.30 p.m. on the 17th December, Basare and the Chief's son arrived back in the village, accompanied by a General Police Corporal and an Escort Policeman. Immediately they arrived Jegeligban struck Basare with a cutlass on the neck, and Basare fell to the ground. Someone seized the cutlass from Jegeligban, who then took a piece of stick, and struck Basare's head twice with it. At the same time Jegeligban's brother Mape Konkomba also struck Basare on the head or neck with an axe. Basare, who was similarly assaulted by a number of other people, died then and there. The cause of death was subsequently ascertained to be damage to the brain and to the spinal cord. [p.319]Jegeligban Konkomba and his brother Mape Konkomba were charged with murder. On being charged each made a cautioned statement to the police - Jegeligban said:"Kwame Basare did not come to tell me what he had done to my son. I therefore calculated his action to be a deliberate one as he Basare took my son as an ordinary animal in the bush ... When I saw Kwabena Basare I grew annoyed. I took my cutlass and gave him a cut on the neck and he fell to the ground. A boy by name Waja snatched the cutlass from me who later gave it to a Police Constable present. As my cutlass has been taken from me I seized a piece of stick from the ground and repeated two strokes on Basare's head whilst he was lying on the ground.Mape Konkomba said: --"I was present when Jegeligban Konkomba gave a cutlass cut to the Basare man on the neck. He gave a second blow to the Basare with a long stick. The Basare man fell to the ground and blood coming from the wound made by Jegeligban. Whilst the Basare man was on the ground I gave him a blow with a cudgel on his ribs. I cannot remember either left or right. Basare died from those wounds received from us."Both men were convicted of murder before Murphy J. sitting at Tamale, and both appealed to the Court of Appeal. The only ground argued was, "The learned judge erred in law in not considering the effect of provocation."Criminal Appeal No. 56/1959.

Judgement

(His lordship stated the facts and proceeded:-)

It was submitted by counsel on behalf of the appellants that having regard to the community to which the appellants belong, seeing respectively their son and nephew wailing in agony amounted to extreme provocation under section 251 of the Criminal Code. The [p.320] only part of that section which falls to be considered upon the facts of this case is sub-sec.4, which reads:

"251. The following matters may amount to extreme provocation to one person to cause the death of another person, namely-

4) A violent assault and battery committed in the view or presence of the accused person upon his or her wife, husband, child, or parent, or upon any other person being in the presence and in the care or charge of the accused person."

This sub-section, which may avail to reduce from murder to manslaughter a homicide committed by a parent or a person in loco parentis upon an assailant of his child or ward, can apply only where the assault and battery were committed "in the view or presence of" the parent accused of the homicide. There is no evidence that the appellants (or either of them) witnessed the act of the shooting of Tordo Konkomba, or were anywhere within the precincts where Tordo was shot, so that they could have seen it done. Seeing the unfortunate Tordo in agony some time after he had been shot cannot relate back to the moment of shooting.

In any case, the incident as related by the appellants themselves expressly shows that the act of killing Basare took place a long time after the shooting. The appellants therefore, could not in law have been still deprived of the power of self-control by provocation; indeed, on their own showing they acted wholly from the preconceived purpose of causing the death of Kwabena Basare, in order to avenge the death of Tordo Konkomba. In the circumstances, then, even if the shooting-the "violent assault or battery" upon Tordo - had been inflicted in the view or presence of the appellants, the provisions of sec.252, sub-sec. I (a), (b) and (c) would apply, and the crime would not be deemed to be thereby reduced to manslaughter.

Decision

<P>It was for the reasons given above that we dismissed the appeal.</P>&nbsp;

Plaintiff / Appellant

Tando

Defendant / Respondent

Glasgow

Referals

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