YEBOAH vs. THE STATE [1967]DLCA1550

Date	1967-07-10
Suit No.
Citation No.	[1967]DLCA1550

OLLENNU JA

AZU CRABBE JA

APALOO J.A.

D. O. LAMPTEY FOR THE APPELLANT.

E. V. A. KISSEIH SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1967]DLCA1550
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													<main id="main" class="content" style="min-height: 60rem" >YEBOAH<o:p></o:p>&nbsp;vs. <o:p></o:p>THE STATE <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 512<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:
10TH JULY 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">

D. O. LAMPTEY FOR THE APPELLANT.<o:p></o:p>

E. V. A. KISSEIH, SENIOR STATE ATTORNEY FOR THE
RESPONDENT.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF AZU CRABBE J.A.<o:p></o:p>Azu
Crabbe J.A. delivered the judgment of the court. The appellant in this case was
convicted on 28 February 1966, before Archer J., sitting with a jury, of the
murder of one Yaw Mensah on 23 October 1965, at Nkwanta village, in the Central
Region of Ghana, and was sentenced to death. Against this conviction and
sentence he has now appealed to this court.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant was the only eyewitness to the crime, and it would appear that the
sole issue at the trial was whether the appellant killed the deceased in
self-defence. No question of credibility arises in this appeal, and the only
point is whether the inference to be drawn from the proved facts supports the
plea of self-defence according to the law of Ghana. Our law which is contained
in section 37 of the Criminal Code, 1960 (Act 29), reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“For the
prevention of, or for the defence of himself or any other person against any
crime, or for the suppression or dispersion of a riotous or unlawful assembly,
a person may justify any force or harm which is reasonably necessary extending
in case of extreme necessity, even to killing.”<o:p></o:p><o:p>&nbsp;</o:p>We think
that the use of force or harm in this section is subject to the limitation
stated in section 32 of the Code which governs all sections relating to the
grounds on which force or harm may be justified. Section 32 provides as
follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Notwithstanding
the existence of any matter of justification for force, force cannot be
justified as having been used in pursuance of that matter – <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a) Which
is in excess of the limits hereinafter prescribed in the section of this
Chapter relating to that matter; or <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b) Which
in any case extends beyond the amount and kind of force reasonably necessary
for the purpose for which force is permitted to be used.”<o:p></o:p><o:p>&nbsp;</o:p>The
material facts as narrated by the appellant in his sworn testimony are as
follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“On 22
October 1965 I was at Abuakwa Nkwanta. I went to Buabeng. I went to Buabeng
with my wife and our daughter who was sick. I returned the same day. On the
following day about 8 a.m. I visited my farm to inspect my traps. I went with a
gun and a cutlass. The place I went was near Yaw Mensah’s farm. It is a place
anybody can go. I went to Yaw Mensah to get palm-wine to drink. He did not give
me the palm-wine. He told me he would not give me the palm-wine. He said I was
placarding that he had taken my divorced wife. I asked him who told him that.
He said he was only telling me. He said he was not like me. If he tapped his
palm-wine, he made good use of the proceeds. But that when I tapped palm-wine,
I spent the proceeds on women. He was annoyed when he said this. I tried to
explain to him that I had not been placarding his name. He said that if I had
been divorced by my wife because I could not look after her, he was married to
her and I had no right to placard his name. I replied that I was married to my
divorced wife for a long time and if I had not looked after her well, she would
not have stayed with me for a long time. When he said this I was annoyed. Yaw
Mensah then said, `You are a fool, you are a beast, if you are sensible, you
would not have acted like this’. He also said that I must get out of the place
or he would slap me. I told him that he was stouter but in a fight stoutness
did not matter and that if he wanted to fight me I would fight him. Immediately
afterwards he slapped me and one of my upper teeth in the right cheek fell
down</main>