THE STATE vs. KWAKU BRENYAH [1961]DLSC1363

Date	1961-05-19
Suit No.
Citation No.	[1961]DLSC1363

VAN LARE JSC

SARKODEE-ADOO JSC

AKIWUMI JSC

H. B. APATU-PLANGE FOR THE APPELLANT

K. DUA SAKYI FOR THE RESPONDENT (THE STATE).

[1961]DLSC1363
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&nbsp;vs.

&nbsp;[SUPREME COURT]

[1961] 1 GLR 250

DATE: 19TH MAY, 1961.

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COUNSEL:&nbsp;&nbsp;

H.
B. APATU-PLANGE FOR THE APPELLANT.

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

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&nbsp;

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 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 2 1(1) 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.”

<a name="_gjdgxs"></a>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 Umo 2(2) 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.