KUSASI vs. THE REPUBLIC [1976]DLCA400

Date	1976-02-17
Suit No.
Citation No.	[1976]DLCA400

APALOO J.A

ARCHER J.A

FRANCOIS J. A.

NANA AKUFO-ADDO FOR THE APPELLANT.

D. K. AFREH CHIEF STATE ATTORNEY FOR THE REPUBLIC.

[1976]DLCA400
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													<main id="main" class="content" style="min-height: 60rem" >KUSASI <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 1 GLR 335<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
17 FEBRUARY 1976.<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">

NANA AKUFO-ADDO FOR THE APPELLANT.<o:p></o:p>

D. K. AFREH, CHIEF STATE ATTORNEY, FOR THE
REPUBLIC.<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">

APALOO, ARCHER AND FRANCOIS JJ. A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.A.<o:p></o:p>Archer
J.A. delivered the judgment of the court. This is an appeal from the conviction
of the appellant by the High Court sitting at Tamale on a charge of murder.<o:p></o:p>The facts
briefly are that the appellant, who lived with his children and his own mother,
the victim of the murder, returned one evening from the market where on his own
admission he had tasted some pito, the local brew in that area. According to
the prosecution’s story narrated by the appellant’s own uncle and one of the
appellant’s children, he started beating the children for refusing to eat more
soup although the children explained that they were satisfied. The appellant’s
mother, naturally distressed by the crying of the children, advised them to run
away. Infuriated by this grandmotherly admonition, the appellant attacked his
mother by giving her a blow as a result of which she fell down and broke her
neck. The uncle further testified that the appellant attacked him when he
attempted to rush to the rescue of the deceased. He said further that the
appellant stamped on the stomach of the deceased. This uncle saw the deceased
fall and in his own words: “She fell backwards on the neck; the neck got
broken.” The version of the eleven year old child of the appellant was that
after the deceased had fallen down, his father stamped on her neck. The
detective sergeant who went to the scene immediately after the incident
testified that when he examined the body, the deceased’s neck was swollen. The
medical evidence adduced by the prosecution established that death was due to
the broken neck which could have resulted from either a fall or a blow or a
stroke, i.e. a sudden attack of illness.<o:p></o:p><o:p>&nbsp;</o:p>In his
examination-in-chief the appellant’s uncle revealed that before the incident
the appellant was not normal because he was mad and his father had sent him to
the asylum on several occasions. In cross-examination, the uncle stressed that
the madness occurred whenever the appellant took alcohol and as a result his
attitude towards his children was hostile. Earlier the doctor, the first
prosecution witness, in cross-examination had said: “When one takes alcohol in
a greater quantity one losses control of the body and of what one does. The
normal person and a person who has suffered mentally both behave strongly when
they drink alcohol heavily.” Here is a clear indication that the defence was
introducing issues of the effect of alcohol on both sane and insane persons.
The eleven year old child in his examination-in-chief did not refer to his
father’s alleged madness but in cross-examination he was questioned about this
madness and he confirmed the uncle’s earlier evidence. The younger child, aged
about eight years, did not give evidence-in-chief but was offered by the
prosecution for cross-examination. In reply to a question by defence counsel he
said, “I know what madness is and I know my father is mad. It is when the
madness comes on that he does not treat us kindly.” The detective sergeant who
investigated the offence was also cross-examined on the sanity of the appellant
and he replied:<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">“In my
investigation I got to know that the accused had been having some mental
troubles. I had this information from the family. I took steps to have the
accused examined by a doctor but he was not examined. I went to the Accra
Mental Hospital for his records but there was no trace of his having been
there.”<o:p></o:p><o:p>&nbsp;</o:p>From the
above extracts, it is clear that the defence was contemplating putting forward
the plea of insanity.<o:p></o:p>In his
police statement and in his oral testimony at the trial, the appellant denied
the charge. In his police statement he said:<o:p></o:p>“On 27
November 1972, I visited the Pulimakon market during the afternoon where I
drank some pito. I returned to the house at about 8 p.m. My two children later
brought me some food which I ate.<o:p></o:p>When I
was eating, I heard the deceased talking loudly in h</main>