THE STATE vs. TSIBA [1962]DLSC1729

Date	1962-10-26
Suit No.
Citation No.	[1962]DLSC1729

VAN LARE JSC

OLLENNU JSC

AKUFO-ADDO J.S.C.

ABBAN FOR THE APPELLANT.

HEWLETT FOR THE RESPONDENT (THE STATE).

[1962]DLSC1729
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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">TSIBA <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1962] 2 GLR 109<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"> 26TH OCTOBER, 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">

ABBAN
FOR THE APPELLANT.<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">

VAN LARE, OLLENNU AND
AKUFO-ADDO, JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
AKUFO-ADDO J.S.C.<o:p></o:p>Akufo-Addo J.S.C delivered the judgment of the court. The
appellant was charged on a bill of indictment before Scott, J., sitting in the
High Court at Cape Coast with the manslaughter of one Kofi Sowah on the 15th
December, 1961, contrary to section 51 of the Criminal Code, 1960.1(1)<o:p></o:p><o:p>&nbsp;</o:p>Although the particulars of the offence appearing on the
indictment, following the form provided in section 201 of the Criminal
Procedure Code, 1960,2(2) contained no allegation of negligence (and it is
doubtful whether such an allegation is not essential), it is quite clear from
the proceedings that the prosecution’s case was that the said Kofi Sowah died
as a direct result of the personal negligence of the appellant. Evidence of the
circumstances in which the killing occurred was provided by the appellant’s own
statement made to the police and his evidence in court, and also by the
testimony of two witnesses for the prosecution who were in the company of the
deceased when the latter was killed.<o:p></o:p><o:p>&nbsp;</o:p>Briefly stated the appellant’s story was that on the night of the
14th December, 1961, he went, armed with a double-barrelled gun, from his
village Twirdua to the Broniso Forest (which appears to be another name for
Afofosu Forest referred to in the indictment) to hunt for game. He was in the
forest until about one or two o’clock in the morning of the 15th December,
1961, when not being successful in killing any game, he decided to return home.
On the journey homeward and whilst still in the forest, he saw a reddish light
on the ground, which according to him looked like the reflecting eyes of an
animal. He dimmed the light of his hunting-lamp twice, flashed the lamp once in
an effort to satisfy himself as to the nature of the object from which or
emanated the light, and in the same effort he whistled four times to attract
the attention of any human beings who might happen to be about, but heard
nothing. Apparently if there was any human being about he should have whistled
back. The object was still there and he shot at it. To his dismay be heard the
agonising cry of a human being who had obviously been hit by the pellets from
his gun. He was frightened and ran away. He later reported the incident to some
relatives and the police. The appellant’s statement was tendered by the
prosecution.<o:p></o:p><o:p>&nbsp;</o:p>The evidence of the two prosecution witnesses Amoatey and Ba, who
had also gone in the company of the deceased to the same forest for hunting on
that same night of the 14th December, 1961, was that after their several
parambulations in the forest they met at an agreed spot, lit a fire by which
they cooked themselves a meal, and then lay themselves on the ground to rest
their limbs. According to Ba, they put out the fire, and according to Amoatey
they stood their hunting-lamp by their side. The evidence shows that the light
which the appellant saw must have been that of the hunting-lamp and not the
light from the fire on which Amoatey, Ba and the deceased had prepared their
meal. The colour of the light of the hunting-lamp was reddish as is the colour
of the reflecting eyes of some animals, according to one of the witnesses for
the prosecution. This was the case for the prosecution which the appellant was
called upon to answer.<o:p></o:p><o:p>&nbsp;</o:p>It is not clear from the evidence what acts of omission on the
part of the appellant the prosecution relied on to establish negligence, but in
this court learned counsel for the State on being asked by the court what the
appellant should have done which he did not do in the circumstances, submitted
that the appellant should have shouted before he fired his gun, because he
should have known that this forest was a resort which hunters from the
neighbouring villages frequented at night. Learned counsel went on to submit
that since hunters travelled about ten miles from the neighbouring village to
hunt in this forest, the appellant should have known that it was the common
practice for night hunters to rest themselves on the ground, and went on
further to invite us to hold that such a practice was one that could reasonably
be expected of hunters who resorted to the forest at night.<o:p></o:p>