THE STATE vs. KWAKU NKYI [1962]DLHC1727

Date	1962-03-29
Suit No.
Citation No.	[1962]DLHC1727

APALOO J.

A.K. GIKUNOO FOR THE PROSECUTION.

ACCUSED IN PERSON.

[1962]DLHC1727
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">THE STATE <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">KWAKU NKYI <o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1962] 1 GLR 197<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 29TH MARCH, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

A.K.
GIKUNOO FOR THE PROSECUTION.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

APALOO, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
APALOO J.<o:p></o:p>In this case, there is a comfortable area of agreement between the
case of the prosecution and defence. The accused was at the material time a
student nurse at the Central Hospital, Kumasi. He was described by Mr. Doku
(P.W.6) as a good student and well behaved. Working in the same hospital, was
Adongo Frafra who was employed there as a labourer. It seems from the evidence
that he knew the accused well and they both appear to get on well together.
Adongo Frafra also had in town a cousin by name Akwaba Frafra.<o:p></o:p><o:p>&nbsp;</o:p>It is established by the evidence that about one week before the
12th December, 1960, Akwaba’s two-year old son by name Asamprana was taken ill.
It is said he had a cough and temperature. Accordingly, Akwaba asked Adongo
whether he could get some one in the hospital to come round and have a look at
the boy. Adongo got in touch with the accused. I am satisfied that the accused
agreed to go to Akwaba’s house and treat the child. Both the accused and Adongo
went to Akwaba’s house reaching there about 3 p.m. on the 12th December, 1960.
I find the accused took with him a syringe and a drug which turned out to be
arsenic. After being told the nature and the history of the illness, accused
injected each side of the child’s buttocks with the said drug. I accept the
evidence that the accused was asked what fee he would charge for his services.
He said one pound. This was promised to be sent to him the next day. Both the
accused and Adongo then left Akwaba’s house.<o:p></o:p><o:p>&nbsp;</o:p>As soon as they left, the child’s sickness took a turn for the
worse. He screamed seriously, began to tremble and there was foam in his mouth.
Akwaba quickly handed the child to his mother Alufuah and went out to fetch
back the accused. Before he returned, the child died in his mother’s arms. The
dead body was rushed to hospital in a taxi. At 1 p.m. the following day, Dr.
Joshin, the pathologist, performed a post mortem examination on the dead child.
As he was unable to arrive at a conclusion as to the cause of death he incised
the two sides of the child’s buttocks which were injected and forwarded these
to the government chemist together with the stomach, liver, kidneys and a piece
of brain. On the basis of the chemist’s report, Dr. Joshin expressed as his
opinion that Asamprana’s death was due to acute arsenic poisoning.<o:p></o:p><o:p>&nbsp;</o:p>The prosecution’s case if I understand it aright is that
Asamprana’s death was caused by harm, which harm resulted from the accused’s
negligence. The negligence consisted in the fact that the accused who is not a
qualified medical man took it upon himself to treat a sick child. In doing so, he
used a dangerous drug without skill with the result that the patient died.
Although I feel no doubt that the accused mistook arsenic for mepacrine due to
their similarity in colour, had he been more skilful than he in fact is, he
could have distinguished between the two. In my opinion, his voluntary
assumption of the treatment of Asamprana without necessary skill, as he well
knew, is itself evidence of negligence.<o:p></o:p><o:p>&nbsp;</o:p>In the cases of R. v. Awonu1(1) and R. v. Mensah2(2) it was
decided that the law of negligence in this country was more widely defined than
in the case of England and Nigeria and that section 14 (1) of the Criminal
Code3(3) appeared to have codified the law relating to civil negligence then in
England. It was accordingly held that cases like Andrews v. D.P.P.4(4) R. v.
Bateman5(5) and Akerele v. The King6(6) which laid down the degree of
negligence which would suffice to establish manslaughter by negligence, were
inapplicable in this country. These cases establish that in order to found
criminal liability based on negligence, the negligence must be gross and must
pass beyond a mere matter of carelessness and show such disregard for life and
safety as to amount to a crime against the State. The position therefore was
that from the point of view of an accused person the law of criminal negligence
in England was more liberal than the law then in this country. These cases of
Awonu and Mensah to which I have referred were decided in 1946 and 1948
respectively. In 1950, the law of manslaughter by negligence in this country
was made more conformable to the law of England by a proviso that the
negligence t</main>