BERKO vs. THE REPUBLIC [1982]DLCA2101

Date	1982-11-23
Suit No.
Citation No.	[1982]DLCA2101

FRANCOIS JA

MENSA BOISON JA

EDWARD WIREDU J. A.

MR. ADAMAFIO FOR THE APPELLANT.

MRS. BAMFORD ADDO CHIEF STATE ATTORNEY FOR THE REPUBLIC.

[1982]DLCA2101
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													<main id="main" class="content" style="min-height: 60rem" >BERKO <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1982-83] GLR 23<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:
23 NOVEMBER,
1982<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">

MR. ADAMAFIO FOR THE APPELLANT. <o:p></o:p>

MRS. BAMFORD ADDO, 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">

FRANCOIS, MENSA BOISON AND EDWARD
WIREDU JJ. A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF MENSA BOISON J.A.<o:p></o:p>Mensa
Boison J.A. delivered the judgment of the court. The appellant, Simon Adjei
Berko, appeals against his conviction on 3 April 1981 for the manslaughter of
Kwame Avodzivi before Amua-Sekyi J: at the High Court, Kumasi. He was sentenced
to two years’ imprisonment with hard labour. The point for decision is within a
small compass, but it is necessary to set out the facts of the case in view of
the form of learned counsel’s arguments.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant was a serving soldier in the Ghana Army when on 10 July 1979 he
arrived home at his village, Krofofrom near Ashanti Juaben on leave. He was to
lodge with his brother, K. Oppong, but the appellant had got himself settled in
already before Oppong with the family returned from farm in the evening.<o:p></o:p><o:p>&nbsp;</o:p>On the
previous day an incident in which Oppong’s wife, Helen Nyarko, the first
prosecution witness, was the victim of an attempted rape had been adjudged by
the odikro (chief) of the village, resulting in an award of ¢40 pacification to
Oppong as the husband. What had occurred was that on the day preceding the
adjudication, the first prosecution witness had gone to farm, and at the end of
the day’s work was digging up some yams for the house when the deceased, Kwame,
turned up at the place. Seeing the first prosecution witness in some
difficulty, Kwame offered and attempted to dig the yam for her; at the same
time proposing love to the first prosecution witness.<o:p></o:p>Within a
few minutes attempt, however, Kwame gave up the digging. So the first prosecution
witness resumed the digging herself; but to her utter surprise Kwame brusquely
seized her by the waist, and forcibly tried to strip her clothing off, with the
obvious intent to have sexual connection with her. Despite her struggle and
pleading that she was already heavy with a six-month old pregnancy by the
husband, she was obliged to promise Kwame to wait till the next day, before she
could free herself; Kwame warning her, on pain of his killing her, not to tell
the husband.<o:p></o:p><o:p>&nbsp;</o:p>Next day,
in the evening, Kwame called at the first prosecution witness’ house, while she
was in the kitchen cooking, and presented her with ¢10. The first prosecution
witness promptly handed the money to a brother of the husband, Kweku Donkor,
with a report of the indecent assault on her by Kwame the previous day in the
bush. Thus it was that on the complaint by Oppong to the chief that evening,
the deceased was adjudged “guilty” with a penalty of ¢40 as pacification.<o:p></o:p><o:p>&nbsp;</o:p>The next
day was when the appellant arrived home, and before night fall he had been told
of the incident. He took exception to the odikro treating a case of attempted
rape as a civil offence, and instantly went to see the odikro to inquire of the
matter further. Apparently not satisfied with what was termed a “settlement” by
the chief, the appellant sent for the deceased on the purported authority of
the odikro. The deceased, accompanied by two relations, came at about 7 p.m.
but was met outside by the appellant who led the deceased and his two relations
to the appellant’s house instead. One of the men with the deceased, Kobla
Agbanyo, gave evidence as the fourth prosecution witness.<o:p></o:p><o:p>&nbsp;</o:p>At the
house, the appellant, Berko, wanted to know from Kwame’s own mouth as to his
attack on the first prosecution witness. But Kwame apparently denied attempting
to have sexual connection with the first prosecution witness; or threatening
her with harm. Thereupon the appellant told the deceased that he was taking him
(the deceased) to the police to lay a complaint.<o:p></o:p>