KONTOR v.

THE REPUBLIC
[1987-88] 1 GLR 324

Division: COURT OF APPEAL, ACCRA.

Date: 30 JUNE 1987
Before: ABBAN, WUAKU AND AMUA-SEKYI JJ.A.

Criminal law and procedure—Jury trial—Misdirection—Accused charged with murder—Absence of

intention to kill—Failure to direct jury as to verdict of manslaughter—Appellate court to substitute
proper verdict under Act 372, s. 26 (12)—Courts Act, 1971 (Act 372), s. 26 (12).

HEADNOTES
The appellant and the deceased, who were cousins, lived in the same house. There was a quarrel between
them and during the fight which ensued the appellant stabbed the deceased and he died from the injury
sustained. On the evidence, when the appellant realised the deceased had sustained grievous injury he
uttered words of remorse. The appellant was convicted of murder and sentenced to death by the High
Court, Sekondi. On appeal to the Court of Appeal against his conviction and sentence, the Court of
Appeal found that the deceased who was older and bigger than the appellant had been the aggressor, and
that there had been no intent to kill on the part of the appellant. The court also found that the trial judge
did not adequately draw the attention of the jury to the distinction between murder and manslaughter, and
Held, allowing the appeal: the trial judge should have made it clear in his summing up that if the jury
found that the intent to kill was absent then they should in the circumstances consider a verdict of
manslaughter. On the

[p.325] of [1987-88] 1 GLR 324

evidence, the appellant was justified in using force but he exceeded the limit imposed by law.
Consequently, if the jury had been properly directed, they would have found the appellant guilty of
manslaughter and not of murder. The appellate court would therefore substitute the proper verdict under
section 26 (12) of the Courts Act, 1971 (Act 372). Torto v. The Republic [1971] 1 G.L.R. 342, C.A. and
Lamptey alias Morocco v. The Republic [1974] 1 G.L.R. 165, C.A. cited.

CASES REFERRED TO
(1) Lamptey alias Morocco v. The Republic [1974] 1 G.L.R. 165, C.A..
(2) Torto v. The Republic [1971] 1 G.L.R. 342, C.A.

NATURE OF PROCEEDINGS
APPEAL against the conviction for murder and sentence to death by the High Court, Sekondi. The facts
are sufficiently set out in the judgment.

COUNSEL
J. O. Amui for the appellant.
Sam Baddoo, Chief State Attorney (with him Mrs. Anson, Chief State Attorney) for the Republic.

JUDGMENT OF ABBAN J.A.

The appellant was convicted of murder and sentenced to death by the High Court, Sekondi on 8 July
1985.
The brief facts of the case were that the deceased and the appellant were cousins living in the same house.
There had been a quarrel between them. The basis of the quarrel was that the appellant had ejected certain
tenants from a house which ejectment the deceased considered not justified.
However, the immediate cause of the fight was that the appellant had been, so to speak, talking about the
deceased in his (deceased’s) absence. This, the deceased never approved of and a quarrel ensued between
them. The quarrel then turned into a fight.
It was clear from the evidence that during the fight, the appellant stabbed the deceased and it was from the
injury received from this one stab that, according to the medical evidence, the deceased died.
The evidence of the vital witnesses for the prosecution—especially the second prosecution
witness—established without doubt that the appellant, when he realised that the deceased had sustained
grievous injury, uttered words of remorse. We refer to the evidence of the second prosecution witness
where he said:
“A quarrel again ensued between the accused and the deceased. I was at that time in the kitchen trying to
light a lantern. I then heard the deceased shout ‘Kwame, you have injured me’ . . . People came to the scene
with lanterns including the accused

[p.326] of [1987-88] 1 GLR 324

person who said ‘Kofi, you have made me do serious (or grave) wrong.’”

That the deceased was older and bigger than the appellant was established by the evidence of Kwame
Nsowah, the first prosecution witness. It seems there was no intention on the part of the appellant to kill.
A portion of the appellant’s evidence showed that just before the fight, the appellant and the deceased had
sat together and eaten together; and that during the fight the deceased seemed to have been more
aggressive.
We refer to the evidence of the appellant when he said in chief: “That was at about 9.00 a.m. on 26
December 1983. When we were separated we stopped quarrelling. Siawa, the second prosecution witness,
prepared food and Kofi Japah and I ate . . .” Then he went on:
“During the quarrelling, Siawa, the second prosecution witness, stood between us but Kofi Japah, the
deceased, suddenly pushed Siawa aside and attacked me and we continued to fight. We all fought until we
fell into a pit nearby.”

It was therefore difficult to glean an intention to kill from the pieces of evidence that were put before the
court. We therefore agree with both counsel that the intent to kill on the part of the appellant was
completely absent.
The summing up was on the whole fair, but we do not think it adequately drew the attention of the jury to
the important distinction between murder and manslaughter. The learned trial judge should have directed
the jury that in the case of murder there should be proof of an intention to kill whilst in the case of
manslaughter such an intent is absent. He directed them on the question of provocation, but that is beside
the point. He ought to have made it clear in his summing up that if they found that the intent to kill was
absent, then they should in the circumstances consider a verdict of manslaughter.
In our opinion, the evidence on record shows that the appellant was justified in using force but he
exceeded the limit imposed by law. We are therefore satisfied that if the jury had been properly directed
they would have found the appellant guilty of manslaughter and not of murder.
This appellate court is therefore entitled to substitute the proper verdict under section 26 (12) of the
Courts Act, 1971 (Act 372). We are also fortified in our view by the case of Lamptey alias Morocco v.
The Republic [1974] 1 G.L.R. 165, C.A.. See also Torto v. The Republic [1971] 1 G.L.R. 342, C.A.
In the circumstances, we allow the appeal and set aside the conviction of murder and substitute that of
manslaughter. The appellant who, at the time of the incident was 21 years old, has been in custody

[p.327] of [1987-88] 1 GLR 324

since the date of his arrest, and that was on or about 27 December 1983. In order words, he has been in
prison for nearly three and a half years. He was sentenced to death on 8 July 1985. We therefore sentence
him to a term of three years’ imprisonment with hard labour with effect from 8 July 1985.
We take this opportunity to express our gratitude and appreciation to Mr. J. O. Amui for taking up this
appeal on behalf of the appellant at a very short notice on the direction of this court. Indeed, we assigned
him this brief only yesterday. But he has handled the case very ably. We are also grateful to the learned
Chief State Attorney for his great assistance.

DECISION
Appeal allowed.
M.C.N.-N