Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ on line 101 THE STATE v. TENE DAGARTI | GhanaLegal - Resources for the legal brains


  • appeal
  • 1961-05-12
  • GLR 224-227
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Criminal law?-Murder?-Justification in use of force?-Provocation?-Intent?-Objective test?-Voluntarily causing grievous bodily harm resulting in death?-Criminal Code, Cap. 9, (1951 Rev.), ss. 13, 61(1) and 251(4).


The deceased, one Cherri (or Chelle) Dagarti had fired a gun at his wife, the aunt of the appellant, and injured her so seriously that she died from her wounds [p.225] the following day. The report of the gun shots attracted many villagers to the spot. Upon seeing the woman lying on the ground and the deceased running away still carrying the gun, the villagers gave chase. They caught the deceased and were disarming him and tying him up when the appellant arrived on the scene. The appellant saw his aunt?'s pitiable condition, and realising that it had been caused by the deceased, he, the appellant, gave the deceased a heavy blow to the side of his chest with his cudgel. Death was almost instantaneous.At his trial on a charge of murder, it was held, and in the view of the Supreme Court rightly so, that the defence of justification in the use of force resulting even in death, in the arrest, detention or recapture of a felon within the provisions of section 61(1) of the Criminal Code, Cap. 9 (1951 Rev.) was not open to the appellant, for at the time the appellant struck the deceased, the deceased was already safe in the custody of the villagers and the evidence did not point to any escape or attempts to escape from that custody.On appeal the main argument put forward by the appellant?'s counsel was that absence of intent to kill reduced the offence to manslaughter.


APPEAL against conviction for murder by Apaloo, J., sitting with the aid of assessors at the High Court, Tamale, on the 13th December, 1960 (unreported.)


Van Lare J.S.C. delivered the judgment of the court. [His lordship referred to the facts and continued:] The prisoner has appealed to this court against his conviction and the substance of the arguments addressed before us was whether there was an intent to kill in support of the conviction for murder, the main point alleged being that the act of the prisoner can in the circumstances amount to manslaughter only. An attempt was made to introduce the question of provocation which we dismissed in the absence of what our law regards as extenuating circumstances and matters which [p.226] in law amount to such provocation as to reduce murder to manslaughter. Our attention was attracted by section 251(4) of Cap. 91, whereby the law regards.

"a violent assault and battery committed in 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"

as a matter which may amount to an extreme provocation to reduce the offence of murder to manslaughter. As we were satisfied that the violent assault and battery was not committed by the deceased upon one belonging to the class of persons named in the section, and further that as the assault and battery in question was not committed in the presence of the prisoner the section would not avail him to reduce his offence to one of manslaughter.

It was also strongly submitted that on the case as a whole it cannot be safely concluded that by his act the prisoner had a murderous intent or intentionally caused the death of the deceased, although it cannot be denied that he caused the death of the deceased. Such argument leads to a consideration of the provisions of the law relating to intent.

The question put forward was that, as in this case the prisoner was filled not necessarily with intent to revenge death but with intent to cause grievous bodily harm only, although death ensued, was it murder or manslaughter? We are of opinion that on the authorities the answer to the question is that it is murder and not manslaughter. The test is an objective one, and not a subjective one; that is, what a reasonable man would contemplate as the probable result of his acts, and not what the prisoner in fact contemplated as the probable result. The point is what would a reasonable man contemplate to be probable result if he struck a person on the side of the chest with a cudgel. This question of intent is well thrashed out in the recent case of Director of Public Prosecutions v. Smith2 and it has been held that in relation to the reasonable man,

"In judging of intent, however, it really denotes an ordinary man capable of reasoning who is responsible and accountable for his actions and this would be the sense in which it would be understood by a jury."3 Earlier the following appears which we quote with respectful approval:

"The unlawful and voluntary act must clearly be aimed at some one in order to eliminate cases of negligence or of careless or dangerous driving. Once, however, the jury are satisfied as to that, it matters not what the accused in fact contemplated as the probable result, or whether he ever contemplated at all, provided he was in law responsible and accountable for his actions, i.e. was a man capable of forming an intent, not insane within the M?'Naghten Rules and not suffering from diminished responsibility. On the assumption that he is so accountable for his actions, the sole question is whether the unlawful and voluntary act was of such a kind that grievous bodily harm was the natural and probable result. The only test available for this is what the ordinary, responsible man would, in all the circumstances of the case, have contemplated as the natural and probable results. That, indeed, has always been the law . . ."4


The court in D.P.P. v. Smith quoted with approval what Lord Goddard said in the case of R. V. Ward.

"The test must be applied to all alike, and the only measure that can be brought to bear in these matters is what a reasonable man would contemplate or would not contemplate. If the act is one about which the jury can find that a reasonable man would say `It would never occur to me that death would result or grievous bodily harm would result', then the jury can find him guilty of manslaughter. If, however, the jury come to the conclusion that any reasonable person (that is to say, a person who cannot set up a plea of insanity) must have known that what he was doing would cause at lest grievous bodily harm, and if the child died of that grievous bodily harm, then a verdict of murder is justified and what was done does amount to murder in law."5

There is no dispute in the case before us that the prisoner unlawfully and voluntarily caused grievous bodily harm which resulted in the death of the deceased in the circumstances described. Our criminal law being codified puts the provisions relating to intent in a nutshell, and these can be ascertained from section 13 of Cap. 9, (now section 11 of the Criminal Code, 1960, Act 29,) subsections (1) and (2) of which provide as follows:

"(1) If a person does an act for the purpose of thereby causing or contributing to cause an event, he intends to cause that event, within the meaning of this Code, although either in fact or in his belief, or both in fact and also in his belief the act is unlikely to cause or to contribute to cause the event.

"(2) If a person does an act voluntarily, believing that it will probably cause or contribute to cause an event, he intends to cause that event, within the meaning of this Code, although he does not do the act for the purpose of causing or of contributing to cause the event."

The courts can do justice according to law only, and we cannot and must not allow ourselves to be influenced by feelings of compassion which may lead us to consider the substitution of a verdict of murder for manslaughter in order to evade the death sentence even if we felt that this may not be an appropriate case in which the death sentence should be carried out. That power resides elsewhere untrammelled by the rules of law, and does not reside in this court. We have no power to substitute a sentence of imprisonment for death upon a valid conviction for murder. As we could see no legal justification for reducing the conviction in this case from murder to one of manslaughter, and for the reasons indicated in this judgment we are unable to concede to learned counsel?'s plea for mitigation and therefore dismiss the appeal.


<P>Appeal dismissed.</P>

Plaintiff / Appellant

B.K. Tamakloe

Defendant / Respondent

K. Dua Sakyi


(1) Director of Public Prosecutions v. Smith [1961] A.C. 290; [1960] 3 W.L.R. 546; [1960] 3 All E.R. 161, H.L.

(2) R.v. Ward [1956] 1 Q.B 351; [1956] 2 W.L.R. 423; [1956] 1 All E.R. 565.

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