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THE STATE v. AMPOMAH


  • appeal
  • 1960-11-23
  • SUPREME COURT
  • GLR 262-265
  • Print

GRANVILLE SHARP, SARKODEE-ADOO AND AKIWUMI JJ.S.C.


Summary

Criminal law?-Murder?-Conviction for manslaughter?-Self-defence?-Misdirection?-Criminal Code Cap. 9 ss. 63, 250 and 251.

Headnotes

The appellant was tried for murder before Ollennu, J. and convicted of manslaughter. In his judgment the trial judge said he accepted the evidence of prosecution witness that appellant was involved in a quarrel with some Moshie men who were beating him. He wrested a stick from one and struck him with it. The judge, however, then went on to say that he rejected the appellant's evidence that he was being severely beaten by six men on the ground that he had received no apparent injury. [p.263]

Judgement

APPEAL against a conviction for manslaughter by Ollennu J. sitting with assessors at Tamale Assizes on September 10, 1960. The facts sufficiently appear in the judgment.

JUDGMENT OF SARKODEE-ADOO J.S.C.

Sarkodee-Adoo, J.S.C., delivered the judgment of the court: This is an appeal from a conviction of manslaughter before Ollennu J., sitting with assessors at the Assizes holden at Tamale on the 10th day of September, 1960. The appellant was charged with the murder of one Sulemanu Moshie at Bolgatanga in Northern Ghana. Each of the assessors expressed an opinion of not guilty of murder but guilty of manslaughter. The learned trial judge agreed with the opinions so expressed and found the appellant not guilty of murder but guilty of manslaughter and convicted him accordingly and sentenced him to five years' imprisonment with hard labour.

The appellant by his counsel argued the appeal on two grounds, namely:?-

?"1. Verdict is unreasonable and cannot be supported having regard to the evidence.

2. The trial judge was wrong in law in holding that the appellant was guilty of manslaughter."

The facts are not seriously in dispute and it is sufficient to say that the deceased, a Moshie man, and two of three other Moshie men got into a dispute with the appellant resulting in a fight, in the course of which the appellant used a pounding stick, Exhibit "A", and struck the deceased with it.

The learned trial judge in the course of his judgment said:

"Of the witnesses who have given evidence before this court I am perfectly satisfied that, with the exception of Asare, P.W.3, each of them is a witness whose veracity is beyond reproach. I accept the evidence given by all those witnesses for the prosecution, and I also accept the evidence as contained in the deposition of the witnesses whose appearance have been dispensed with."

"From the whole of the facts which I have accepted I have arrived at the conclusion without reasonable doubt that the deceased Sulemanu Moshie died as a result of harm, that that harm is unlawful, and that that harm was inflicted by the defendant deliberately with intent to cause his death.

"Having, however, directed my attention to sections 250 and 251 or the Criminal Code Cap. 9, 1 have come to the conclusion upon the evidence even of the prosecution itself that the homicide in this case is manslaughter only and not murder.

"I have given careful consideration to the evidence led by the defendant on his behalf and the two defences implied in that evidence, [p.264] namely: that he had nothing whatsoever to do with cause of the death of Sulemanu Moshie, and in the alternative, that if the court should find that the said Sulemanu Moshie died at his hands, then the harm which he the defendant inflicted to cause that death, was harm inflicted in self-defence under section 63 (4) of the Criminal Code, Cap. 9. I must say at once that I do not believe the evidence given by the defendant that six Moshie men surrounded him beating him with heavy sticks from all sides and did so very severely. That story to me as absolutely improbable as it is fantastic. It is incredible that six people would beat the defendant in the way he described and yet he did not sustain severe injuries as would necessitate his admission into hospital. I therefore not only reject the evidence as untrue but I also reject it as not being reasonably probable."

The importance of the evidence of Sophia Cofie and Asana Anyeba as contained in their depositions accepted by the learned trial judge cannot be over-emphasised and is as follows:

"P.W.8: ?- Sophia Cofie, S.O.B. and states in English. I am a school girl at Bolga Middle Girls' School. I am in Form 2. On the 11 - 4 - 60, 1 boarded a passenger lorry at Bolga lorry park in company of another girl, Asana Anyeba. It was accused's lorry I boarded. When accused moved the lorry he met certain men, accused asked the men to remove their things and let him pass. They removed them leaving an umbrella. We passed and were going when a certain girl's box fell down. Accused stopped to take the box. A certain man came and told the accused that he had broken his umbrella. Accused asked for the price. The man insisted on his umbrella but not money. Accused told him that he could not get an umbrella for him that night. The man whom I learnt was a Moshie held accused and slapped him. One of them ran and brought a stick. I asked accused to let us go to the school. When the driver sparked his lorry one of the Moshie men started to beat the lorry with a stick. Accused got annoyed and came down. Somebody shouted that he was going to call police. All the Moshie men ran away. When the men came back the Moshie men came back again and the one who was fighting with accused said he would beat him with a stick. Accused ran away and he followed him. The Moshie man hit him with the stick. Accused got annoyed and got the stick from him and hit him with it. I do not know which part the stick hit the Moshie man. The Moshie man fell down. I saw the stick. Id. one is like it" Cross-examination by Sackey!

?"Accused stopped about 60 yards away. There were lots of people in the place. It was dark. There was no light around. I did not see the accused hit the Moshie man but I believe that he did because they were fighting and he fell down. There were other Moshie men there too. They were four altogether. The other Moshie were trying to beat accused too. Two were already beating him?"

?"P. W.9: ?- Asana Anyeba. S.O.C. and states in English. I am a school girl attending Bolga Middle Girls' School. I am in Form 2 I know accused. On the 11- 4 - 60, P.W.8. and I were in a certain lorry. It was night. We were then going to school. Our lorry passed [p.265] through an umbrella. The umbrella was for some Moshie people. As soon as we passed one of our boxes fell down. Some people shouted for our driver to stop. He stopped. The owner of the umbrella rushed to him saying that the driver had spoilt their umbrella. Our driver said he was sorry but the Moshie people did not allow it. They asked our driver to buy new one for them. The driver asked for the cost but the Moshie people asked for a new umbrella. He was taking us to school then one of them hit our driver. He got annoyed and stopped. They started to quarrel with him. As they were quarrelling one of them fell down and I did not know what happened. They were beating our driver well. Our driver went and reported to the police. The Moshie people were having sticks. Later on police contacted me and I gave a statement."

On the whole of the evidence the appeal is centred on the question of law as to whether it is a case of manslaughter under and by virtue of sections 250 and 251 of the Criminal Code (Cap. 9) or a case of extreme necessity and of necessary self-defence under the provision of subsection (4) of section 63 of the Criminal Code (Cap. 9).

In our opinion the learned trial judge misdirected himself on the facts which provide material for self-defence, and drew inferences which seem to us to conflict or are inconsistent with evidence which he unreservedly accepted.

A person assaulted is entitled to strike back, even to death, if in self-defence as provided by subsection (4) of section 63 of the Criminal Code (Cap. 9).

In the result, the appeal is allowed and the conviction quashed. The appellant is acquitted and discharged.

Decision

Appeal allowed.

Plaintiff / Appellant

Sackey

Defendant / Respondent

Amissah

Referals

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