KWAKU MENSAH V. THE KING

POLICY AND PRACTICE LAW REPORTS, 2PLR

Search

Search

–

KWAKU MENSAH

V.

THE KING

THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

DELIVERED THE 11TH OCTOBER, 1945

PRIVY COUNCIL APPEAL NO. 7 OF 1945

2PLR/1945/11 (WACA)

–

OTHER CITATION(S)

2PLR/1945/11 (WACA)

(1945) XI WACA PP. 2 – 8

(1945) P.C. 7

LEX (1945) – XI WACA 2 – 8

–

BEFORE THEIR LORDSHIPS:

LORD PORTER

LORD GODDARD

SIR JOHN BEAUMONT

–

BETWEEN:

KWAKU MENSAH – Appellant

AND

THE KING – Respondent

–

ORIGINATING COURT(S)

THE WEST AFRICAN COURT OF APPEAL

–

ISSUE(S) FROM THE CAUSE(S) OF ACTION

CRIMINAL LAW AND PROCEDURE – MURDER AND MANSLAUGHTER:- Duty on prosecution in a trial by jury thereto – Duty of court where provocation is disclosed but not raised by defence – Relevant considerations before a conviction for murder can be substituted by manslaughter

CRIMINAL LAW AND PROCEDURE – MANSLAUGHTER:- Defence of provocation – Where would justify substitution of a conviction for murder with manslaughter – Duty of court thereto 

–

CASE SUMMARY

ORIGINATING FACTS

The West African Court of Appeal dismissed the Appellant’s appeal against his conviction for the murder of one Abudu Zabrama. In the course of a fracas between the deceased along with his tribesmen and those of the appellants, the Appellant was stabbed, receiving a wound course four inches long on his hip, and according to his evidence it was inflicted by the deceased. The deceased and co-tribesmen, being outnumbered, fled while the appellant and his group pursued calling “thief, thief”. The deceased, who was being chased by the Appellant among others, ran into a house, with some of the villagers, still calling out ”thief” on their heels. When the deceased ran out of the house hoping to escape to safety, the Appellant fired a gun and killed him.

–

DECISION(S) APPEALED AGAINST  

The trial Judge in the course of his summing up directed the jury that there were three possible verdicts that they could return, murder, manslaughter and acquittal, and that in his opinion no verdict of manslaughter could be entered unless the jury accepted the Appellant’s own account as to how he shot the deceased. He further directed them that if they did accept that account the Appellant would be guilty, at least, of manslaughter as pointing a gun at the deceased as he was running away was an unlawful act. The jury found the Appellant guilty of murder, but the other nine accused were found by them guilty only of manslaughter.

On appeal, the West African Court of Appeal dismissed the appeal of the present Appellant, holding that though in their opinion there was a misdirection in saying that on the Appellant’s own evidence he was at least guilty of manslaughter, a matter with which their Lordships deal hereafter, the jury must have rejected his evidence as was shown by their returning a verdict of murder. With regard to the remaining accused they quashed the conviction on the ground that the jury should have been directed that in their case the only possible verdicts were murder or acquittal. The case of these other nine accused was not part of this appeal.

–

DECISION(S) OF THE JUDICIAL COMMITTEE, PRIVY COUNCIL

Held (Appeal allowed):-

1.     That the West African Court of Appeal is constituted and has its powers conferred by various Orders in Council now consolidated in the West African Court of Appeal Orders, 1928-1935, being No. 11 of 1935. By sect. 2 the expression “Judge” includes any person for the time being performing the duties of such office.

2.     That pointing a gun at a person is an assault unless done in protection of person or property. If it is pointed at a person without legal excuse, and there was none here as the dead man was running away, it is an unlawful act.

3.     That the Court is unable to agree with the argument that because the jury found co-accused persons guilty only of manslaughter that can affect the verdict of murder against the principal offender.

4.     That if on the whole evidence, there arises a question whether or not the offence might be manslaughter only, on the ground of provocation as well as on any other ground, the Judge must put that question to the jury.

5.     That on an indictment for murder, it is open to a jury to find a verdict of either murder or manslaughter, but the onus is always on the prosecution to prove that the offence amounts to murder if that verdict is sought. If on the whole of the evidence, there is nothing which could entitle a jury to return the lesser verdict the Judge is not bound to leave it to them to find murder or manslaughter.

6.     That where there is any evidence of provocation, whether the defence have relied on it or not the Judge must bring it to the attention of the jury, because if they accept it or are left in doubt about it, the prosecution have not proved affirmatively a case of murder.

7.     That if a man is struck or stabbed while defending himself or his property or while trying to apprehend a thief there can be no question but that it amounts to provocation of the most serious character. The jury accordingly ought to have been told to consider whether the accused received his wound while acting in defence of his property or whether he got it in consequence of an attempt by him to steal from or injure a man who had done him no harm. That would have enabled them to say whether there was provocation in fact.

8.     That the question whether in the circumstances the provocation was such as to deprive an ordinary person of self-control and whether sufficient time had elapsed to enable control to be regained are questions for the jury. Here though there is no evidence how long after the stabbing the shooting took place, it seems clear it was all in the course of one continuing fracas. The tests have to be applied to the ordinary West African villager and it is on just such questions as these that the knowledge and common sense of a local jury are invaluable.

9.     That this Appeal should be allowed and the verdict of guilty of murder and the sentence of death passed on the Appellant should be set aside: that the case should be remitted to the West African Court of Appeal with directions to them to substitute for the verdict found by the jury a verdict of guilty of manslaughter and to pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that offence.

–

DOWNLOAD PREMIUM PDF COPY (N2,000)

READ MORE

JUDGMENTS BY AREAS OF PRACTICE

JUDGMENTS BY PRACTICE/PROCEDURE ISSUES