AGYEMANG vs. THE REPUBLIC [1993]DLCA528

Date	1993-12-09
Suit No.
Citation No.	[1993]DLCA528

LAMPTEY JA

ADJABENG JA

LUTTERODT JA

AMOAH FOR THE APPELLANT.

MRS ANSON CHIEF STATE ATTORNEY (WITH HER MISS VALERIE AMATE STATE ATTORNEY AND NERQUAYE TETTEH ASSISTANT STATE ATTORNEY) FOR THE REPUBLIC.

[1993]DLCA528
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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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">THE REPUBLIC<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1995-96] 1 GLR 118<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 9
DECEMBER 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AMOAH FOR THE APPELLANT.<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">

MRS ANSON, CHIEF STATE
ATTORNEY (WITH HER MISS VALERIE AMATE, STATE ATTORNEY, AND NERQUAYE TETTEH,
ASSISTANT STATE ATTORNEY) FOR THE REPUBLIC. <o:p></o:p>

LAMPTEY, ADJABENG AND
LUTTERODT JJA<o:p></o:p>

</div>JUDGMENT OF LUTTERODT JA.<o:p></o:p>Akosua Tawiah is one of the three wives of the accused, a 58
year-old farmer and akpeteshie distiller who lived at Wenchi Nkenah. They have
nine children. The deceased, Yaw Yeboah, was an ex-policeman who came to reside
in this village when he was dismissed from the service.<o:p></o:p>In 1984 the accused suspected that his wife was flirting with the
deceased. This brought about a strain in their relationship and the wife
threatened to divorce him. The couple however continued to live together as man
and wife while the families and the chief made various attempts to salvage the
marriage.<o:p></o:p>On 26 October 1985 the accused attended a funeral at Droboso and
so did the wife and the deceased. According to the accused, he watched in anger
as his wife danced with the deceased to the tune of adowa, and the former used
her handkerchief to wipe the latter’s face.<o:p></o:p>At 6.30 pm when the two disappeared from the funeral grounds his
suspicions were aroused. From his own account, he took in some drink, grabbed a
cutlass and headed straight for the deceased’s house. According to him, as he
stood behind the deceased’s door, he heard the voice of his wife. But when
silence broke out thereafter he suspected they must be engaged in sex. When the
deceased therefore subsequently came out to relax, he dealt him one deadly blow
with the cutlass. The latter fell in agony and died later.<o:p></o:p>Naturally, he was arrested and tried. He was found guilty and
convicted for the offence of murder contrary to section 46 of the Criminal
Code, 1960 (Act 29). It is against this conviction that he has brought this
appeal and seeks for a reversal of the verdict on the grounds stated in the
additional grounds of appeal filed on 6 November 1992 and 9 November 1992.<o:p></o:p>It was argued in respect of ground (1) of the additional grounds
of appeal filed on 9 November 1992 that the judge was wrong in law when he
directed the jury that it was the duty of the appellant to prove provocation.
The proper direction he contended is that it was the duty of the prosecution at
all times to prove the absence of provocation.<o:p></o:p>It seems to me that this criticism is unjustified. Provocation
being a matter of defence, the duty of proving same, in my view, lies on the
accused. As far back as 1953 the West African Court of Appeal has laid down
this principle. I refer to Atta v R (1953) 14 WACA 323 at 324 where the court
stated as follows:<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">“An act of adultery committed in the view of an accused person
with or by his wife is one of the matters which section 234 of the Criminal
Code expressly provides may amount to extreme provocation, but the onus of
proving that such provocation deprived him of the power of self-control so as
to reduce the offence to manslaughter is upon an accused person: section 233
(1) of the same Ordinance.”<o:p></o:p>Note: the Ordinance referred to is the Criminal Code, Cap 9 (1951
Rev). Section 233 (1) of Cap 9 is now section 52 (a) of Act 29 whilst section
234(3) of Cap 9 is now section 53 of Act 29.<o:p></o:p>It was further submitted in respect of this ground that it was yet
another error on the part of the judge to have directed the jury to use the
objective test, the standard of a reasonable man, rather than the subjective
test when they came to deal with the issue of whether or not the appellant was
in fact provoked. The contention is that this direction led the jury into
considering the standard of a reasonable man thereby resulting in a miscarriage
of justice.<o:p></o:p>It seems to me that the matter of extrem</main>