AGYEMANG vs. THE REPUBLIC (NO. 2) [1974]DLCA2251

Date	1974-12-20
Suit No.
Citation No.	[1974]DLCA2251

AMISSAH JA

SOWAH JA

ANIN J.A.

AGYEMAN PREMPEH FOR THE APPELLANT.

S.E. ASAMOAH SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1974]DLCA2251
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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:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">AGYEMANG <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:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">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:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">THE REPUBLIC (NO. 2) <o:p></o:p>[COURT OF APPEAL,
ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1974] 2 GLR 398<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:
20 DECEMBER 1974.<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">

AGYEMAN
PREMPEH FOR THE APPELLANT.<o:p></o:p>

S.E.
ASAMOAH, 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">

AMISSAH, SOWAH AND ANIN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>Amissah
J.A. he delivered the judgment of the court. We allowed this appeal on 17
October 1974 reserving our reasons. We now give them.<o:p></o:p>The
appellant, Edward Osei Agyemang, an education officer, was convicted by
Anterkyi J. of ordinary assault and sentenced to twelve months’ imprisonment
with hard labour. Anterkyi J. did not himself try the case. At the time of
conviction and sentence he had not seen or heard the accused. But he proceeded
as he was entitled to do under the powers given to judges of the High Court by
the Courts Act, 1971 (Act 372), to revise decisions of magistrates. Those
powers exercisable after the submission of the monthly returns of the magistrate
showing the number of cases dealt with by him during the previous month and the
manner of disposal, are indeed very wide. Their full extent will appear
presently. In the case before us, the appellant was tried by the district
magistrate at Goaso in the Brong-Ahafo Region. He was acquitted. The magistrate
wrote a long judgment reviewing the whole evidence and giving his reasons for
acquittal. He had accepted the story that the appellant applied physical force
to the complainant but in circumstances in which he found the force applied
justified.<o:p></o:p><o:p>&nbsp;</o:p>What were
those circumstances? Until the day before the trial, both the complainant and
the accused lived with their families in the same house in Kukuom in
Brong-Ahafo. The complainant is a produce clerk to the State Cocoa Marketing
Board; the accused as said earlier is an education officer. It would appear
from the evidence that the conflict which eventually led to the act complained
of originated not from the men themselves but from their womenfolk. As usual in
such cases each side presents a different version of the facts alleging
provocative acts on the part of the other under conditions of enviable
self-restraint. That the situation was difficult there can be no doubt; that
insults and provocations were traded from time to time between the two families
seems to be equally clear. The facts were such that the learned senior state
attorney before us gave as his opinion that in a case of this nature the
magistrate should have used his powers of reconciliation of parties to effect a
settlement between them.<o:p></o:p><o:p>&nbsp;</o:p>Be that
as it may, the view of the facts accepted by the magistrate concerning the
incident, the subject-matter of the charge was, that on the day in question
there was a quarrel between the accused and the complainant. The magistrate
would not make a finding on who brought this about, in view, as he said, “of
their antecedent hostilities.” That at one point in the course of the quarrel,
the complainant “grazed the mouth and nose of the accused with his (complainant’s)
hand.” That both had been abusive to each other. That after his nose had been
grazed, the accused being justifiably infuriated eventually rushed on the
complainant and dealt the latter a blow amidst insults from him. The learned
magistrate, however, took the view that this blow in the circumstances did not
amount to criminal assault because section 31 of the Criminal Code, 1960 (Act
29), provided that:<o:p></o:p>“Force
may be justified in the cases and manner, and subject to the conditions,
hereinafter in this Chapter mentioned, on the ground of any of the following
matters, namely-... (f) necessity for prevention of or defence against crime;<o:p></o:p>It
appears to us, as indeed it must have appeared to the revising judge, that
putting an end to a verbal altercation by the use of force cannot by any
stretch of the imagination be considered as one of the circumstances in which
force may be justified on the ground of need to prevent crime. As the quarrel
had not taken place in a public place or at a public meeting the offence of
conduct conducive to a breach of the peace was hardly sustainable. In the
absence of that we are at a loss to find what criminal offence the magistrate
thought the appellant had a right through the justifiable use of force to
prevent. Besides, where the person who seeks to justify the use o</main>