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MAAWOLE KONKOMBA
V.
THE QUEEN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
19TH DAY OF DECEMBER, 1952
APPEAL NO. 62/52
2PLR/1952/56 (WACA)
OTHER CITATION(S)
2PLR/1952/56 (WACA)
(1952) XIV WACA PP. 236-237
LEX (1952) – XIV WACA 236-237
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
WILSON, C.J., GOLD COAST
COUSSEY, J.A.
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BETWEEN:
MAAWOLE KONKOMBA – Appellant
AND
THE QUEEN – Respondent
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ORIGINATING COURT(S)
Appeal by convicted person:
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REPRESENTATION
Koi Larbi — for Appellant
G. V. C. Young, Crown Counsel — for the Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Murder – Where accused had killed the deceased under the belief that deceased was responsible for illness of accused’s sibling and death of another sibling too – Plea of provocation based on belief in witchcraft – Whether available as defence
RELIGION AND LAW:- Belief in witchcraft that a person was killing one’s siblings thereby – Murder arising from failure of person suspected of witchcraft to relieve an ailing sibling – Death arising from injury afflicted because of such failure – Plea of as basis for plea of provocation – How treated by Court
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CASE SUMMARY
The deceased was called by appellant’s father to see a son who was sick. The evidence showed that appellant believed deceased had killed one of his brothers by witchcraft and was responsible for the illness of the other, whom he was in the process of killing, and asked deceased to relieve the patient, and that on his saying he had no medicine for relief, appellant struck him on the head with an axe, and he died. There was no note of the summing-up. Appellant was convicted of murder.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal):
A defence of witchcraft as grave provocation is available only where the accused himself has been put in fear of immediate danger to his own life.
Per curiam: A note of the summing-up should always be made and supplied.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
The appellant in this case was convicted of the murder, on or about 1st June, 1952, of a man named Bayiri Konkomba.
Shortly put the facts are that on or about the 1st June, 1952, the deceased was called by appellant’s father to see one of his sons who was sick.
The appellant suspected that the deceased had previously killed one of his (appellant’s) brothers by witchcraft, and he also suspected that the deceased was responsible for the illness of the other. When the deceased arrived in answer to the summons I have referred to, the appellant called upon him to relieve his brother from his illness, and when the deceased denied that he had any medicine to relieve the brother, the appellant struck him a blow on the head with an axe which resulted in his death.
The appellant has never denied striking the blow with an axe, but he gave two different accounts of the circumstances leading up to the killing.
In a statement he made after he was charged and cautioned, he alleged that the deceased had provoked him by denying that he had medicine to relieve the suffering of his brother, and also alleged that the sick brother had said the deceased was killing him, and that after the death of his other brother, a “juju” man had made a similar accusation. According to his first statement these circumstances, culminating in the deceased’s denial that he could help the sick brother, so provoked the appellant that he picked up an axe and struck the deceased two blows on the head with it.
When he gave his evidence on oath at his trial, the appellant said, to quote him:-
“Deceased is a witch. He killed one of my brothers: the elder. He then attacked my next brother with juju. The second brother died.”
He went on to say that the deceased had a cutlass and a stick and that the deceased took the cutlass to hit him, and that it was only then that he struck the blows with the axe.
He did not mention the attack with the cutlass in the statement he made immediately after his arrest, and the only” other eye-witness, appellant’s father, whose deposition was admitted in evidence at the trial, said nothing suggesting that the deceased had attempted to attack the appellant with a cutlass or any other weapon, and the appellant, who was given an opportunity of asking his father questions by way of cross-examination, did not suggest to him that a cutlass had been used by the deceased.
All three assessors expressed the opinion that the appellant was guilty of murder, and two of them stated that they did not believe the story that the deceased had attempted to attack the appellant with a cutlass. The learned trial Judge also made a finding rejecting the story that the appellant killed the deceased while he was trying to defend himself from attack.
Learned counsel for the appellant has stated that he was considerably embarrassed in arguing this appeal by reason of the fact that there is no note in the record of the learned trial Judge’s summing-up. We consider the omission most unfortunate and trust that in future one will be made and supplied.
The second story put forward by the appellant having been rejected by the assessors and by the trial Judge, there is nothing in the record which would justify this Court in interfering with the conviction.
In our view, there was ample evidence to justify the conclusions arrived at by the assessors and the learned trial Judge.
In murder cases a defence founded on witchcraft has always been rejected except in cases where the accused himself has been put in such fear of immediate danger to his own life that the defence of grave provocation has been held proved.
We have no doubt, however, that the appellant honestly believed when he struck the fatal blows that he was striking a man who had already killed one of his brothers by witchcraft and was in the process of killing another, but that is no defence in law although it is a matter which the Executi.ve will, no doubt, consider when the case comes before it for consideration.
In all the circumstances, therefore, this appeal is dismissed.
Appeal dismissed.
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