JELR 81151 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1942 8 WACA 167-169
Core Terms Beta
severe blow
advantage of hearing
basis of the defence case
case of rex v
course of the doctor
date of the killing
discretion of the trial judge
facts of the case
facts of the present case
gold coast
good reason
great deal of blood
great point of the fact
hostile witness
judge of facts
judge of the facts
moment of the fact
only persons
only substantial question
own acts
part of the woman
progress of the trial
single box
sufficient provocation
supreme court of the gold coast of the murder
trial court

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE. The appellant in this case was convicted in the Supreme Court of the Gold Coast of the murder of a woman, Afua Nsiah, who was living with him as his concubine. Against that conviction he has appealed to this Court. Shortly the facts of the case are that the appellant, suspecting faithlessness on the part of the woman, quarrelled with her. She cooked no food for him on the 8th May, and during the ensuing night he killed her with an axe.

The only persons present when the woman was killed were the woman herself and the appellant. Certain witnesses gave evidence as to the relations existing between the appellant and the woman prior to the date of the killing and as to the statements and conduct of the appellant subsequent to the killing. The accused who was defended by counsel made no statement at the trial, nor did he call any witnesses for the defence. His counsel adopted the statement made by the accused to the police as the basis of the defence case. This statement had been put in evidence by the prosecution.

The Court below accepted the appellant’s version of how the killing took place. It is that after he and the woman had quarrelled all night, he being very hungry, the quarrel reached its climax when the woman took a billet of firewood and hit the appellant on the neck; he at once seized a felling axe lying in the room and struck her two blows with it, thereby killing her. The doctor who treated the appellant in hospital confirmed that he was suffering from severe blow in the neck which could not have been self-inflicted. The doctor stated “The blow was so severe that it caused difficulty in phonation”, and again “ The accused was in danger of life. It was a murderous blow.”

Upon these facts the only substantial question before the Court below was whether on the evidence the correct verdict was murder or manslaughter. The case was tried by a Judge and assessors; after the Judge had summed up to the assessors they each expressed the opinion that the accused was guilty of murder, and the Judge, holding that the provocation did not suffice to reduce the charge to manslaughter, convicted the accused of murder.

We feel bound to confess that, so far as we are able to form an opinion without having had the advantage of hearing and seeing the witnesses, the facts are such as would have justified the if Court below in finding that the provocation was such as to reduce if the crime to manslaughter. The case of Rex v. Stedman (Fost 292) was referred to by the Judge in the Court below in his summing up to the assessors. That case is thus described at page 385 of Volume 1 of Russell on Crime (9th Edition)

“There being an affray in the street, S., a soldier, ran hastily “towards the combatants. A woman seeing him run in that manner, “cried out, You will not murder the man, will you? S. replied, “What is that to do with you, you bitch? The woman thereupon “gave him a box on the ear, and S. struck her on the breast with the “pommel of his sword. The woman then fled; and S., pursuing her, “stabbed her in the back. Holt, C.J., thought that this was murder, “a single box on the ear from a woman not being a sufficient provocation “to kill in such a manner, after s. had given her a blow in return for “the box on the ear; and it was proposed to have the matter found “specially. But it afterwards appearing, in the progress of the trial, “that the woman struck the soldier in the face with an iron patten, “and drew a great deal of blood, the killing was held to be no more “than manslaughter, as the smart of the man’s wound, and the effusion “of blood, might possibly have kept his indignation boiling to the “moment of the fact.” The facts of the present case appear to us to be even more favourable to the appellant, than were the facts to Stedman in his case more especially having regard to (a) the appellant’s hunger,

b) the persistence of the quarrel, (c) the indignation that would naturally be aroused by his concubine daring to raise her hand against him at all, and (d) the severe nature of the blow she dealt him.

But one case cannot really be judged by reference to another; every case must rest upon its own acts, an in every case it is for the judge of the facts at the trial-whether that judge of facts be a jury, or assessors, or, as in this case, a Judge assisted by assessors-having the advantage of seeing and hearing the witnesses to decide the question of whether, on the facts, the provocation is such as to reduce the crime to manslaughter. Provided there is evidence upon which the trial Court could find murder and provided that there is no substantial misdirection, it is not for us to interfere, even though we may feel, as we do in this case, that we might have come to a different conclusion ourselves.

There is one other matter which should be mentioned. Counsel for the appellant made a great point of the fact that in the course of the doctor’s evidence the Court permitted the prosecution to treat him as a hostile witness, without giving any reason, and without, as counsel contended, any good reason appearing from the record. As to this it is sufficient to say that the question of allowing a witness to be treated as hostile is one entirely in the discretion of the trial judge, and it does not appear that the appellant suffered any disadvantage from the permission given. There is nothing in this point.

The appeal is dismissed.