30 October 2007

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TITLE 30 October 2007

CITATION Alhassan Vrs Republic (21 of 1994) [2007] GHACA 21 (30 October 2007)

PARTIES Alhassan Vrs Republic (21 of 1994) [2007] GHACA 21

JUDGES "[\"Akoto-Bamfo, JA\",\"Abban, JA\",\"Apaloo, JA\"]"

DATE DELIVERED 30 October 2007

CASE COURT Court of Appeal

IN THE COURT OF APPEAL

(CRIMINAL DIVISION)

ACCRA-GHANA

____________________________________________

CORAM: AKOTO-BAMFO (MRS) JA. (PRESIDING)

ABBAN (MRS) JA.

APALOO JA

CRIMINAL APPEAL
NO. 21 / 94

30TH OCTOBER, 2007

KWASI ALHASSAN ? APPELLANT

VRS.

THE REPUBLIC ? RESPONDENT

______________________________________________________________

ABBAN (MRS) J.A: This appeal emanates from a judgment of the High Court Sekondi, dated 16th March 1993.
The appellant who was arraigned before the said High court, charged with the offence of murder, was found
guilty and sentenced to death.

He appealed against his conviction and sentence and filed four grounds of appeal namely.

1. The conviction for murder is unreasonable and cannot be supported having regard to the evidence adduced
at the trial.

2. The conviction of the Appellant on the indictment of murder occasioned a substantial miscarriage of
justice, since the prosecution failed to prove the essential elements of the offence against the appellant.

3. That since the conviction of the Appellant cannot stand; the death penalty imposed on the appellant by the
High Court judge is untenable and ought to be set aside.

4. That in case the Court of Appeal arrives at a conclusion that the appellant should have been convicted for
a lesser offence such as manslaughter, on the basis of such extenuating factors as excessive use of force by
the appellant in self-defence and provocation on the part of the deceased, a lenient sentence ought to be
imposed on the appellant as a very young offender at the time in 1993.

The facts which led to the conviction and sentence are as follows:

On the night of 24th October, 1989, at Apremdo, Takoradi, the appellant engaged in three fights with the
deceased (Kwasi Ofori). During the first two fights the inmates of their house separated them, and each went into
his room. However they both came out as third time to fight once more and it was during this third fight that the
deceased was stabbed in the back and in the chest with a knife by the appellant resulting in the deceased?s death
whilst being conveyed to the hospital.

It was as a result of this, that the appellant was charged with one count of murder, trial and convicted by a seven-
member jury at a Sekondi High Court presided over by his Lordship A. A. Benin J. as he then was.
Being dissatisfied with his conviction and sentence, the appellant who was convicted and sentenced on the 19th
day of March 1993, waited until 12th October 1993 before seeking leave of the Court to file his notice of appeal.

Strangely it was not until 21/2/2006 that the Court of appeal differently constituted gave him leave to file his
notice of appeal and written submission of case. This was done the following day i.e. 22/2/2006.

It is the argument of Counsel for the appellant that the prosecution failed to prove the charge of murder against
the appellant, and therefore the conviction and sentence is unreasonable having regard to the evidence before the
trial Court. In saying this, he submitted that the offence of murder as defined in S.4% of the Criminal Code,
1960(Act 29) states thus:

?whoever intentionally causes the death of another person by any unlawful harm is guilty of murder, unless his
crime is reduced to man-slaughter by reason of such provocation or other matter of partial excuse, as mentioned
in S.52.?

To circumvent the definition of murder, S52 of Act 29, provides that:

?A person who intentionally causes the death of another person by unlawful harm shall be guilty of
manslaughter, and not murder, or attempt to murder if-

1. he was deprived of the power of self-control by such extreme provocation given by the other person as is
mentioned in succeeding sections: or

2. he was justified in causing some harm to the other person

His argument was that in a murder trial the prosecution was enjoined by the provisions of the Evidence Decree
S.13 (1) to prove the constituents of the crime beyond reasonable doubt. Therefore in this particular instance it
was incumbent on them to prove the following:

1. That Kojo Ofori is dead.

2. That he died as a result of unlawful harm.

3. That the unlawful harm was caused by the appellant.

4. That the harm was caused intentionally.

5. That there was no matter of justification or partial excuse to reduce the offence of murder to manslaughter.

In proving their case, the Prosecution called 5 witnesses:

P.W. 1 - Esi Amanuah Wilson

P.W. 2 - Mary Ofori

P.W. 3 - John Ocran

P.W. 4 - Joseph Ocran

P.W. 5 - No. 23062 D/Sgt. Peter Beyeden

The Counsel argued the 1st two grounds of appeal together submitting that the conviction and sentence of
appellant cannot be supported or is unreasonable having regard to the evidence adduced at the High Court. It is
his contention that the prosecution could not prove that the harm that led to Kojo Ofori?s death was unlawful or
that he appellant intentionally caused the death Kojo Ofori. For there was at the time, a matter of absolute
justification of self-defence or partial excuse of extreme provocation by the deceased which reduced the offence
of manslaughter. He argued that the appellant therefore should have been convicted of the offence of
manslaughter instead of murder considering his tender age as at the time of the offence, the fact that he was a
young offender, the threats issued to him by the deceased, the initiation of all 3 fights by the deceased on 24th
October 1989 the fact that deceased was older, bigger in sizes and stronger than the appellant.

Counsel for appellant submits that P.W. 1 ? Esi Amanuah Wilson?s answers in cross-examination dealt a big
blow t the Prosecution?s ease, as she told the Court that the deceased was heavier than the appellant; She could
also not tell the Court who started the fight that resulted in the death of Kojo Ofori.

In my opinion I do not see how the candid admission of the P.W. 1 that she did not know who had started the
fight could dent the prosecution?s case in any way. She admits that she was in her room when she heard the
deceased and appellant fighting. She and other inmates came out and advised them to stop fighting, but the two
fighters ignored them. They fought two or three times and each time ?we came out and advised them but they
ignored us, so we told them we would ignore them if they fought again?.

She went to the bathroom and on her way back to her room she heard deceased crying ?he has killed me, he has
killed me, he has stabbed me with a knife?. She saw deceased bleeding and she helped take deceased to hospital,
but he died on the way.

This evidence was corroborate din material by S. 2,3 and 4 except for the fact that she did not see the deceased
being stabbed. P.W. 5 tendered the post-mortem report which indicated that the deceased died as a result of stab
wounds. In the absence of any evidence showing that the deceased committed suicide or consented to being
stabbed to death, I do not see how someone stabbing another person to death could be said not to have inflicted
harm.

The issue is whether the harm caused was unlawful.

S.76 of Act 29 defines unlawful harm as:

S.37 of the code which deals with use of force for prevention of or defence against crime states that for the
preventions of or for the defence of himself or any other person against crime or for the suppression or
dispersion of a notorious or unlawful assembly a person may justify any force or harm which is reasonably
necessary extending in case of extreme necessity even to killing?

The defence put up by the appellant is that the deceased who was bigger than him fought him, and to defend
himself he stabbed him, and that the deceased provoked him into fighting him by making certain statements to
which he did not take kindly to.

The classic pronouncement on the law of self-defence is that of the Privy Council in Palmer v. R (1971) AC814,
approved in R V. Mclnnes 55 Cr-App. R 551.

Lord Morris delivering the judgment of the Court said:

?it is both good law and good sense that a man who is attacked may defend himself. It is both good law and
common sense that he may do, but may only do, that is reasonably necessary. But everything will depend upon
the particular facts and circumstances of these, a jury can decide. It may in some cases be only sensible and
dearly possible to take some simple avoiding action. Some attacks may be serious and dangerous, but others may
not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation
which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts
someone in immediate peril, then immediate defensive action may be necessary?
In examining the words the deceased uttered

?that the (deceased) had been to secondary school, but appellant had not? could this be considered as sufficient
provocation to result in a fight? Or the statement that? I normally behave like an angry man whenever I come
from football practice, do not respond to any question, and that Ansah is not to move with me anymore?

All this is the appellant saying that he overhead deceased telling one Ansah these things as the two walked along
a path together.

On coming home, he confronted the deceased and asked the latter why he and Ansah were gossiping about him.
In answer, deceased stopped him and hit him resulting in fight. The inmates of the house separated them, but
they kept on exchanging insults to the extent that there was another fighting. Once more they were separated.
The appellant went to his father?s room, but later the father ? Johnson Alahassa, asked appellant who slept in a
Mr. Marrison?s room to go to bed appellant therefore came out and according to him deceased rushed on him
and gave him a heavy, blow to his head hitting his head against a wall. He became so provoked that he entered
Mr. Morrison?s room, picked an akapi knife which was lying on a table in the room, hid the knife in his right
palm, and came out of the room and when the deceased started beating him, he ?started throwing blows and the
knife touched the deceased twice and deceased creamed that ?I have stabbed him and he fell down?.

The above excerpt is from the confession statement of the appellant which forms part of the prosecution?s case.

There is no evidence that when he, appellant alleges that he went into the room to pick the knife, the deceased
chased him into the room. What prevented him from locking the door when he entered the room?

This clearly shows that there was an intervening period during which he could have cooled down. It also shows
that during the 1st two fights the knife was not on the appellant. It was because he was getting the worst of the
fight that is why he went into Mr. Morrision?s room, picked the knife intending to stab the deceased and indeed
he went ahead and stabbed him resulting in death. If this is not premeditated murder, then what is it?
In view of the English authority cited supra can we say that this is reasonable force used in self-defence? The
answer is in the negative, if at the time of the fighting, the knife was in his hand and he had inadvertently stabbed
the deceased, then the English decision might have availed him, as it is, his statements rather corroborate the
evidence of P.W. 5, 2,3 and 4 who stated that it was during the 3rd fight that they heard the deceased say that ?he
has stabbed me, he has stabbed me, he has killed me.?

As at the time the offence was committed the appellant was 18 years old and was not a juvenile, considering that
the age of maturing in Ghana has been pegged at 18 years, hence he was tried as an adult. He cannot therefore
use his age as a mitigating factor to influence the verdict one way or the other.

The appeal against conviction and sentence is hereby dismissed and the decision the court below is affirmed.

(SGD) H. ABBAN (MRS)

JUSTICE OF APPEAL

AKOTO-BAMFO (MRS) JA: I agree.

? V. AKOTO-BAMFO (MRS)
JUSTICE OF APPEAL

APALOO JA. I also agree.

? R. K. APALOO

JUSTICE OF APPEAL