KONKOMBA vs. THE REPUBLIC [1967]DLCA1511

Date	1967-12-11
Suit No.
Citation No.	[1967]DLCA1511

AZU CRABBE JA

APALOO JA

LASSEY J.A.

AMOAH FOR THE APPELLANT.

KISSEIH SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1967]DLCA1511
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													<main id="main" class="content" style="min-height: 60rem" >KONKOMBA <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 717<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
11 DECEMBER
1967.<o:p></o:p>

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

AMOAH 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 windowtext 1.5pt;
padding:0in 0in 0in 0in">

AZU CRABBE, APALOO AND LASSEY JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>Apaloo
J.A. delivered the judgment of the court. On 24 May 1966 the appellant was
convicted of the murder of his brother, Maketi Konkomba, by Sowah J. sitting
with a jury at the High Court, Ho, and was sentenced to death.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant and the deceased were brothers of the full-blood and lived together
at Kakraka village in the Volta Region. The evidence does not disclose any
previous history of ill-will between these two brothers and the events of 28
October 1965, which culminated in the deceased’s death, can only be explained
on the footing that the appellant had more drink than be could reasonably
manage.<o:p></o:p><o:p>&nbsp;</o:p>The only
eyewitness of the incident was the eight year old son of the deceased by name
Ntise. According to him, the deceased was sitting on a stool close to his house
when the appellant joined him. The deceased remained seated on the stool when
the appellant, who stood by, engaged in conversation with him. There was
nothing in the conversation to suggest that the brothers were quarrelling. The
appellant however drew a knife from his pocket and stabbed the deceased in the
stomach. The deceased then staggered to his house a few paces away. He there
collapsed and died. His intestines protruded from the stab wound and he bled
profusely. Ntise was emphatic that the deceased did not touch the appellant or
did any violence of any sort to him. A few days after this, the appellant made
a statement to the police in which he admitted stabbing the deceased with a
knife but claimed that he used it only to frighten the deceased when it
accidentally struck his chest.<o:p></o:p><o:p>&nbsp;</o:p>According
to the appellant, the reasons why he wanted to frighten the deceased off, was
that while they were both exchanging words, the deceased picked a piece of
firewood and struck his neck. This made him fall and the latter repeated this
assault. The appellant said, while he lay on the ground, the deceased bit the
right part of his belly. When put upon his trial, the appellant in the main,
told the same story with some slight improvements. The appellant said, in addition
to striking him in the neck, the deceased also hit his stomach with the
firewood and thereafter held his throat and began to strangle him. This time,
the appellant said, he took out a knife to stab the deceased by the arm and
thereby release himself from his hold, but the knife accidentally stabbed him
in the abdomen. According to the appellant, before this encounter, both he and
the deceased had been drinking pito, a potent local gin, and the altercation
arose because the deceased warned him away from his house.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant’s version of the incident raised very squarely, the defences of
provocation and self-defence. The learned trial judge was very much alive to
these defences and gave to the jury direction on them. The judge advised the
jury to acquit the appellant altogether if they felt satisfied hat he inflicted
the injury on the deceased at a time he considered himself in mortal danger and
that was the only means of saving his life but to convict him of the lesser
offence of manslaughter if, though not in danger of his life, he stabbed the
deceased at a time he was provoked by the injuries inflicted on him by the
deceased. The jury rejected both defences and returned a verdict of murder.
This implies that the jury considered Ntise’s evidence to be the truth. Having
duly recorded the verdict of the jury, the learned trial judge proceeded to
convict the appellant and having done so, passed on him the only sentence
prescribed by law. It is against this that this appeal has been brought.<o:p></o:p>The
summing-up was attacked on a variety of grounds and in particular, it was urged
that intent to murder was neither directly nor inferentially proved and that
the learned judge was wrong in not directing the jury on the question of intent
to murder. We cannot accept this argument. Intent is normally a matter of
inference deducible from proved facts. Where, as is admitted, the appellant
used a sharp knife in stabbing a particularly vulnerable part of a man’s body,
namely, the stomach, from which death ensues, we cannot see what other
intention he can have had save to end life. It was next contended that the
question of provocation was so inadequately considered in the summing-up, t</main>