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THE STATE v. KWAKU BRENYAH


  • appeal
  • 1961-05-19
  • SUPREME COURT
  • 1 GLR 250-252
  • Print

VAN LARE, SARKODEE-ADOO AND AKIWUMI, JJ.S.C.


Summary

Criminal law?-Practice and procedure?-Compellability of witnesses?-Accused married according to customary law?-Whether wife of accused competent and compellable witness?-Criminal Procedure Code, Cap. 10 (1951 rev.) s.123.

Headnotes

At the trial of the appellant for murder, his counsel submitted that P.W.1., the wife of the appellant, was not a competent or compellable witness for the prosecution. This submission was overruled by the court which held that since P.W.1 gave evidence that she was married to the appellant in accordance with customary law, the matter was covered by section 123 of the Criminal Procedure Code, Cap. 10 (1951 Rev.) which provides:"123. Where a person charged with an offence is married to another person by a marriage other than a Christian marriage such last-named person shall be a competent and compellable witness on behalf either of the prosecution or the defence: Provided that no party to such a marriage shall be compellable to disclose any communication made to him or her during the marriage by the other party.?"The wife's evidence was therefore admitted, and concerned a quarrel and fight between the appellant and deceased which took place prior to the killing and from which malice could be inferred. [p.251]The appellant admitted killing the deceased but added he was drunk at the time. The trial judge found that he was not drunk and that he had stabbed the deceased deliberately. The appellant appealed to the Supreme Court on a question of law, and it was argued on his behalf that:(1) The evidence of P.W.1 was wrongly admitted because it was not proved affirmatively that she was the wife of a polygamous marriage;(2) the learned trial judge erred in law in merely presuming that P.W.1 was a wife of a non-Christian marriage; and (3) the fact that both P.W.1 and the appellant were sworn on the Bible weakened the presumption and this important fact should not be left to presumption.

Judgement

Appeal against a conviction for murder before Apaloo, J. sitting with the aid of assessors in the High Court, Kumasi, on the 14th November, 1960.

JUDGMENT OF VAN LARE, J.S.C.

Van Lare, J.S.C. delivered the judgment of the court. [His lordship referred to the facts and continued:] Although neither malice, grudge nor motive is a necessary ingredient to a charge of murder in this country so long as the evidence establishes an intentional killing by a sane person as in this case, the prosecution is nonetheless not debarred from leading evidence from which any of these matters could be inferred. The evidence of the quarrel and fight between the deceased and the appellant prior to the killing from which malice is inferrable in this case was that of the appellant?'s wife, a witness for the prosecution; and this gave ground for the only legal point taken in this appeal.

It was argued that because the appellant?'s wife swore on the Bible when she gave evidence, the presumption was that she was a Christian wife and therefore not a compellable witness and the judge should not have allowed her to be called by the prosecution. This would have been a point of some importance as in law a wife, meaning a Christian wife, is not a compellable witness against her husband. But in the present case apart from the fact that the conviction does not rest on evidence of the [p.252] appellant's wife, it is clear on the evidence that the witness concerned is a wife of a marriage contracted according to native custom, and she is therefore not a wife of a Christian marriage. "Husband" and "wife", according to the Criminal Procedure Code, section 21 mean a "husband and wife of a Christian marriage,?" which is also defined by the same section to mean ?"a marriage which is recognised by the law of the place where it is contracted as the voluntary union for life of one man and one woman to the exclusion of all others."

In view of the clear evidence of the witness herself that she is a wife of a marriage in accordance with native custom, the presumption that she is a Christian wife cannot arise, as marriage under native custom is not a union for life of one man and one woman to the exclusion of all others. In the case of R. v. Idiong and Umo2 it was held that evidence of a wife is not admissible unless it is proved affirmatively that she is a wife of a non-monogamous marriage.

In conclusion we refer to section 123 of Cap. 10 which makes the witness complained of a compellable witness against her husband. We have no alternative but to dismiss the appeal.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

H. B. Apatu-Plange

Defendant / Respondent

K. Dua Sakyi

Referals

R. v. Idiong and Umo (1950) 13 W.A.C.A. 30.

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