ZINITEGE vs. REPUBLIC [1993]DLCA4900

Date	1993-04-08
Suit No.	[1992-93] 2 G B R 920 – 924
Citation No.	[1993]DLCA4900

KPEGAH JSC

AMUAH JA

BROBBEY JA

M K OYERE FOR THE APPELLANT

OSAFO SAMPONG CHIEF STATE ATTORNEY FOR THE REPUBLIC.

[1993]DLCA4900
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													<main id="main" class="content" style="min-height: 60rem" >ZINITEGE<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; vs.<o:p></o:p>REPUBLIC<o:p></o:p>[COURT
OF APPEAL]<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">

[1992-93] 2 G B R 920 – 924&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;DATE: 8TH APRIL 1993<o:p></o:p>

OSAFO
SAMPONG, 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 1.0pt 0in">

KPEGAH
JSC, AMUAH JA, BROBBEY JA<o:p></o:p>

</div>BROBBEY JA. <o:p></o:p>The
appellant was tried, convicted and sentenced for the offence of murder.
Aggrieved by the conviction and sentence, he appealed to this court.<o:p></o:p>Only
one ground of appeal was filed on his behalf; it was that the trial judge did
not adequately consider the case of the appellant.<o:p></o:p>In
arguing that ground, counsel for the appellant contended that the judge failed
to direct the jury adequately on the issue of self-defence and provocation.<o:p></o:p>The
facts which gave rise to the charge were as follows: The deceased was the
nephew of the appellant. Some time in or around December in 1985, he went to a
drinking bar. Appellant bought some pito for himself. While drinking, his
girlfriend approached him. He bought her too some of the pito. At the end of
the drinking session, he took the girl to the house of the deceased where he
decided to spend the night with her. Apparently the drink he had got the better
of him and he over-slept, leaving the girl lying by his side. When he woke up
he could not immediately see the girl by his side. He eventually located her
lying elsewhere. She then complained to the appellant that in the night someone
had sexual intercourse with her. Thinking that that person was the appellant,
she did not resist. After the sexual act, she was chagrined to discover that it
was, after all, not the appellant who had come to lie on her but his nephew,
the deceased, who masqueraded as the appellant.<o:p></o:p><o:p>&nbsp;</o:p>When
the appellant later questioned the deceased about the allegations of the girl,
he denied everything.<o:p></o:p>On
24 December 1985, the appellant went to a drinking bar. Deceased joined him
later, with some friends of his. They bought and drank some alcoholic drinks
there. While there, the deceased cast insinuations at the appellant to the
effect that: “If God likes me and human beings do not like me I care not”.<o:p></o:p>Nothing
significant happened there. Appellant left. He later returned to the bar.
Deceased resumed the insinuating remarks, apparently directed at the appellant.
This time, the appellant reacted, and some confusion ensued. The two were about
to fight when both were stopped and driven out of the bar.<o:p></o:p>Appellant
was returning to his house when, according to him, the deceased who was lurking
in some shade on the way suddenly emerged. Deceased held the shirt of the
appellant and used a rubber strip on the appellant which the appellant seized.
Deceased then ran from the scene, picked a stick and hit the appellant with it.
The stick broke into two pieces. Deceased went back and picked another stick.
He hit the appellant with it again. Appellant seized that stick and hit the
deceased on the head with it. That single blow turned out to be fatal. Deceased
never recovered from the injury sustained from that blow.<o:p></o:p>In
arguing the appeal, counsel for the appellant submitted that the appellant
should have been acquitted on the ground of self-defence.<o:p></o:p>The
law on self-defence is clearly set out in section 37 of the Criminal Code 1960
(Act 29) and was amply explained in Lamptey alias Morocco v Republic [1974] 1
GLR 165.<o:p></o:p>The
trial judge directed the jury on self-defence. As the Supreme Court held in the
recent case of Kuo-Den alias Sobti v Republic [1989-90] 2 GLR 203, the test to
be applied in an appeal like the instant one is not one of seeking to assess
what another jury could have done if properly directed or if it had heard a
revised version of the evidence. The appellate court, the case held further,
must assume the role of a reasonable jury and must then consider whether such a
reasonable jury hearing the evidence, could, if properly directed have failed
to convict.<o:p></o:p>The
evidence on which the trial judge directed the attention of the jury showed
that the deceased died of a single blow. From the medical report, the blow must
have been a rather severe one. Having regard to the nature of that single blow
which caused the death of the deceased, the force exerted by the appellant in
delivering that blow must have been so severe that it could not properly have
justified the defence of self-defence which counsel for appellant canvassed in
this court. That aspect of the law is well settled.<o:p></o:p>Whenever
the defence of self-defence is put up the harm used in defending oneself must
have been reasonably necessary in the circumstances. See Yeboah v State [1967]
GLR 513, CA. In the light of the severity of the blow in the instant case, the
harm inflicted by the appellant could not be said to have been reasonable in
the circumstances. The jury was consequently justified in not acquitting the
appellant on the defence of self-defence.<o:p></o:p>Like
self-defence, our law on provocation has been well settled in many decided
cases and no useful purpose will be served in recounting the explanations here.
The essence of the defence of provocation is that on the facts the deceased
must have put up such behaviour towards the appellant as would cause any
reasonable person, and in actual fact cause the appellant, to suddenly and
temporarily lose his self control, and to render the appellant so subject to
passion as to caus</main>