KALIBU AND ANOTHER vs. THE REPUBLIC [1987]DLCA770

Date	1987-12-16
Suit No.
Citation No.	[1987]DLCA770

ABBAN JA

OSEI-HWERE JA

AMPIAH J.A.

J. O. AMUI FOR THE APPELLANTS.

SAM BADDOO CHIEF STATE ATTORNEY FOR THE REPUBLIC.

[1987]DLCA770
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													<main id="main" class="content" style="min-height: 60rem" >KALIBU AND ANOTHER <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 2 GLR 208<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
16 DECEMBER 1987<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">

J. O. AMUI FOR THE APPELLANTS. <o:p></o:p>

SAM BADDOO, 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">

ABBAN, OSEI-HWERE AND AMPIAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMPIAH J.A.<o:p></o:p>This is
an appeal from the conviction and sentence by his Lordship Okai J. sitting at
Tamale on 8 April 1981.<o:p></o:p>The
appellants, Bugmor Kalibu and Bayeman Baba alias Bundani, were two of three
persons, charged with the murder of one Mualy Lag at Nabuli village on 26
February 1978. They had pleaded not guilty to the charge and after the trial
they had been found guilty of murder by the jury and the trial judge had
sentenced them to death accordingly. The other accused person had been found
guilty of manslaughter and had been sentenced to a term of four years’
imprisonment hard labour.<o:p></o:p><o:p>&nbsp;</o:p>The main
issue raised in this appeal is whether or not on the facts and evidence
adduced, the accused (herein after referred to as the appellants) could
properly have been convicted of murder. Counsel for the appellants contends
that since the death of the deceased had resulted from an affray, it was wrong
for the jury to have brought in a verdict of murder against the appellants,
especially where on the same facts and evidence the other accused person had
been convicted only of manslaughter. Counsel does not dispute that there was a
fight which was unlawful, but submits that if the jury had been properly directed,
they would have brought in a verdict of manslaughter.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the respondent would agree with a conviction for manslaughter if the
incident which resulted in the death of the deceased had not been provoked by
the appellants. But since, according to him, it was the conduct of the
appellants which had provoked the fight, the appellants could not avail
themselves of the defence of provocation.<o:p></o:p><o:p>&nbsp;</o:p>For a
proper appreciation of the issue raised, it is necessary to state briefly the
facts in this case. On 26 February 1978 the appellants in the company of others
had visited the Nabuli market. It was a market day. At the market a fight had
ensued between the appellants and their group on one side and the deceased and
his group on the other side. Many of the people who were engaged in this fight
including the appellants got injured in the fight; the deceased succumbed to
his injuries and died. It would appear that the police had initially charged
all those engaged in the fighting with some offence but had later changed their
minds and charged the appellants together with the other accused person alone
for the murder of Mualu Lag. During the trial evidence was led as to a previous
incident where the first appellant had been involved with one Masaban, the wife
of one Dawuni, a brother of the deceased. Although the first appellant had
admitted having had an affair with the said woman, he said the matter had long
been settled, i.e. about five years before the present incident, and that the
fight had nothing to do with the previous incident. The prosecution witnesses,
particularly the first, second, third and fifth prosecution witnesses who
happened to be the brothers or relations of the deceased, had insisted that it
was this previous incident which had sparked off the fight. The cause for the
fight had not been made any way clearer by the evidence that the parties
engaged in the fight had belonged to two different clans, namely the Bimbis and
the Kombas. This has prompted the submission by counsel for the appellants that
the fight was a “clan” affray. There is no dispute therefore that there was a
fight which resulted in the death of the deceased.<o:p></o:p>An
“affray” has been defined as “a skirmish of fighting between two or more
persons.” Section 38 of the Criminal Code, 1960 (Act 29) provides:<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">“38. No
force used in an unlawful fight can be justified under any provisions of this
Code; and every fight is an unlawful fight in which a person engages, or which
he maintains, otherwise than solely in pursuance of some of the matters of
justification specified in this Chapter.”<o:p></o:p><o:p>&nbsp;</o:p>