–
REX
V.
ABONTENDOMHENE ASARE APIETU AND OTHERS
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
15TH DAY OF FEBRUARY, 1945
2PLR/1945/21 (WACA)
OTHER CITATION(S)
2PLR/1945/21 (WACA)
(1945) XI WACA PP. 24 – 30
LEX (1945) – XI WACA PP. 24 – 30
BEFORE THEIR LORDSHIPS:
HARRAGIN, C.J., GOLD COAST
DOORLY, J.
M’CARTHY, J.
–
BETWEEN:
REX — Appellant
AND
1. ABONTENDOMHENE ASARE APIETU,
2. KWASI PIPIM,
3. KWAME KAGYA,
4. KWAKU AMOAKO ATTA,
5. OPOKU AFWENEE,
6. KWADJO AMOAKO,
7. AARON EUGENE BOAKYE ALIAS YAW BOAKYE,
8. OWUSU AKYEM TENTENG — Appellants
–
ORIGINATING COURT(S)
APPEAL FROM SUPREME COURT, GOLD COAST
–
REPRESENTATION
N. A. Ollennu with Akufo Addo — for 1st, 2nd, 3rd, and 5th Appellants
Frans Dove with J. Sarkodee Adoo — for 4th and 7th Appellants
A. G. Heward-Mills — for 6th and 8th Appellants
J. S. Manyo Plange — for Respondent
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE — MURDER:- Unlawful killing for ritual purposes — Trial Judge’s record of summing-up attacked as incorrect in various particulars — Application to call shorthand writer and Chief Registrar as witnesses — Permission to Appellants to file affidavits and additional grounds of Appeal — Unusual latitude given to Appellants unlikely as precedent to be followed in future — Non-direction — Duty of a Judge to record anything whatsoever, taking place on a visit to locus in quo and having any bearing on the case— Misdirection— Production of corpus delicti is a vital matter only where evidence is purely circumstantial
CUSTOMARY LAW AND PROCEDURE:- Unlawful criminal act committed to advance customary law practices — Evidence that act was conducted largely with disregard to applicable to custom — How treated
RELIGION AND LAW:- Traditional ceremony — One requiring human sacrifice — Criminal proceedings arising therefrom — How treated
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing all the appeal of all the Appellants):
1. That the present procedure whereby the Judge sets out his summing-up in extenso after the close of the case is the best that can be devised and conforms with the provisions of rules 45 and 46 of the Rules of Court made under the authority of the West African Court of Appeal Orders in Council 1928-35 Consolidated.
2. That there was ample evidence if believed by the jury upon which they could convict all the Appellants.
3. That a Judge in his summing-up need not and cannot deal with every small item of evidence which has been given and to succeed on Appeal it is necessary for the Appellants to show that the Judge has failed to direct the jury on some material portion of the evidence or has incorrectly represented some material piece of evidence which was given in the case.
4. That where a Court visits the locus in quo and anything whatsoever takes place which would have a bearing on the case, it is the duty of the Judge to record the incident. The correct procedure would have been either on the spot or on the return to Court for these witnesses to have been recalled with the object of stating something to this effect: “I yesterday attended with the Court the spot where I have sworn the murder was committed, and I pointed out to the jury where I was standing at the time, and also where the Appellants were sitting or standing”.
5. That it was argued that the Judge had failed to point out to the jury that as they were circumcised they were outcast and would not have been allowed to participate in any act pertaining to the consecration of the stool, as for instance providing or procuring blood to besmear the stool for a deceased Omanhene. While it is true that the Judge might have put this point more clearly to the jury, but he did call their attention to the fact that these Appellants were circumcised and that as circumcised persons they were not allowed to go to the Stool house or to its precincts according to native custom, and it is a matter of small importance that he failed to add that according to native custom they could not participate in the sacrifice.
6. That there was evidence that as the Ahenfie was desecrated by the death of the Omanhene there was a relaxation of the taboo against circumcised persons having access to this part of the Ahenfie, but the evidence on which the Crown relied did not go so far as to show that at this time circumcised persons could take part in any matter connected with the stools. It might here be pointed out that even the Crown did not accept that everything in relation to the sacrifice was carried out in accordance with native custom. One of the Odikros, for instance, when giving evidence with regard to custom, asserted that before a stool could be blackened he himself by native custom should have been present, whereas when he attended for the performance of the blackening of the stool, he was told that the ceremony had already been completed.
7. That the whole case for the prosecution, if believed, conclusively establishes the fact that custom had not been followed in many material particulars and that the actual killing of the person whose blood was to be used for the purpose of blackening the stool was not part of the ceremony, which consisted only of the blackening of the stool and not connected with the procuring of blood. The jury believed that so many irregularities in custom had taken place with regard to the blackening of the stool and so they might with equal ease have believed that yet another custom had been broken in that a circumcised person was permitted to take part in the killing since the whole ceremony was being carried out with scant regard to ancient custom.
8. That the production of the corpus delicti is only a vital matter where the evidence is purely circumstantial and in this case there were eye-witnesses of the actual murder.
9. The photograph, coat and trousers, tracings of the skull, etc., were admissible as those exhibits were put in in an attempt to show that the bones produced were those of the deceased and they were certainly relevant to that issue, and in any event it is difficult to see how their admission could have in any way prejudiced the Appellants in this case.
Appeals of all the Appellants dismissed.
–
–
MAIN JUDGMENT
The following judgment of the Court was delivered by HARRAGIN, C.J., GOLD COAST:-
In this case the eight Appellants are appealing against their convictions for murder by a Judge sitting with a special jury.
At the outset of the Appeal it was contended on behalf of the Appellants supported by an affidavit that the record of the summing-up of the trial Judge was incorrect in various particulars and an application was made to call a shorthand writer who had been present during the Judge’s summing-up and who, at the request of the Judge, had attempted to record the summing-up in shorthand. The Court permitted this witness to be called and also the Chief Registrar who produced a sealed envelope in which were found the shorthand notes, together with the transcript of those notes, the Judge’s notes and a note by the trial Judge on the outside of the envelope to the effect that he had found the transcript so inaccurate as to be of little use.
The shorthand writer in his evidence stated that he had become muddled during the taking of the shorthand note owing to the length of the summing-up (3½ hours), the rapidity of the Judge’s delivery and his own ignorance of the subject on which he was being asked to take a note, he never having attended the hearing of the case save for a few minutes when sent with a message to the Registrar. It is not without interest that in the affidavit (W.A.C.A. (A)) the only omissions from the summing-up of which complaint is made appear in neither the Judge’s record nor the transcript of the shorthand writer. It is to be regretted that qualified shorthand writers are not available, but the present procedure whereby the Judge sets out his summing-up in extenso after the close of the case is the best that can be devised and conforms with the provisions of rules 45 and 46 of the Rules of Court made under the authority of the West African Court of Appeal Orders in Council 1928-35 Consolidated.
We have, however, carefully perused the official record of the summing-up and the shorthand writer’s transcript and find that they differ little in any material particular. In this particular case we are satisfied that the summing-up on the record is an accurate statement of the Judge’s direction to the jury.
“1. The grounds of Appeal as filed by the Appellants were numerous, wide and vague, and we must again point out that grounds of Appeal must set out clearly the particular error with regard to which the Appellants complain both for the information of the Court and the Respondent. Failure to observe this elementary rule may well cause serious injustice should the Court be constrained to strike out the grounds of Appeal for vagueness. As an example of the evil about which we comment, reference need only be made to grounds 1 (a) and (b) as they appear on page 1 of the Record, namely:-
”1. The learned trial Judge misdirected the jury on the whole case. In particular, be misdirected them on the following points:-
(a) By failing to bring to their notice points which told in favour of the Appellants.
(b) By failing to put to the jury entirely or adequately the case made for the defence.”
However, in the interest of justice the Court granted an adjournment and permitted the Appellants to file affidavits and additional grounds of Appeal setting out more particularly the necessary detail. These additional grounds of Appeal, together with various affidavits, continued to be filed at regular intervals during the hearing of the Appeal which lasted over a week, the last ground of Appeal being filed on the last day of the hearing after the Respondent had replied to Appellants’ arguments. Particular attention is called to this unusual latitude which has been given to the Appellants in this Appeal. It is a precedent unlikely to be followed by this Court in future.
An affidavit (W.A.C.A. (B)) was filed by Mr. Ollennu in which he alleged that the learned trial Judge incorrectly recorded a passage in the evidence of defence witness No. 6. As there is no particular reference in the summing-up to this statement, the Appellants could have been in no way prejudiced as presumably the jury heard the witness themselves and the Judge’s note, even if wrongly recorded, could in no way influence their verdict.
We will make no mention of many of the grounds of Appeal argued in this case as they are either incorrect statements of fact or statements of the arguments put forward by the Appellants. There are, however, certain aspects of the case upon which it is necessary for us to comment.
On the general ground of Appeal that the verdict is unreasonable having regard to the evidence, we may say at once that there was ample evidence if believed by the jury upon which they could convict all the Appellants, and we will only deal with the material points I of law raised in the course of this Appeal.
It is well recognised that a Judge in his summing-up need not and cannot deal with every small item of evidence which has been given and to succeed on Appeal it is necessary for the Appellants to show that the Judge has failed to direct the jury on some material portion of the evidence or has incorrectly represented some material piece of evidence which was given in the case. Thus, where exception is taken to the summing-up in that the Judge failed to direct the jury with regard to the ignorance of the names of the various courtyards of the Ahenfie, etc., by the witness Karikari, this omission could not in our opinion in any way have prejudiced the Appellants as the jury must have noticed Karikari’s ignorance on that particular subject and must have given it the consideration it deserved.
A point of more substance was taken with regard to the learned trial Judge’s omission to point out to the jury the length of time which elapsed between the incident about which Karikari was speaking and his report to the Police. In fact it was five months. It would have been better had this been done, but we have no doubt that the point was in fact ever present in the minds of the jury and the excuse for the delay, namely, fear on the part of the witnesses for the Crown was self-evident throughout the whole case.
Another ground of complaint was that the trial Judge, when dealing with the evidence of custom, failed to point out to the jury that owing to the official position of the witnesses for the defence they were more trustworthy than those called by the prosecution. There was no actual evidence with regard to trustworthiness, but it can be inferred from the relative positions in the State held by the witnesses. It must be remembered that this case was tried before a local jury who were in a far better position to gauge the importance of those positions than the Judge himself, and we are not at all sure that, had reference been made by the Judge to this point, he would not have been obliged to point out the obvious fact that the higher in position the witness might be the more interested might he be in averting the stigma that the conviction of the accused would bring on the State. This point therefore would have assisted the Appellants not at all.
Another point made on behalf of some of the Appellants was that the trial Judge failed to direct the jury to consider whether it is natural for a person in the state such as they described Akyea Mensah to be in to be able to sit down as the witnesses allege he did. No evidence was adduced on this point nor was the doctor cross-examined upon it. It would therefore in our opinion have been most undesirable for the Judge to draw upon his imagination when directing the jury.
One of the most cogent points taken in this Appeal is based on the non-direction of the jury with regard to the possibility or impossibility of the two eye-witnesses Botwe and Fosu seeing the eight accused persons from the position the witnesses took up at the end of the corridor as shown by them at their visit to the locus in quo. The very fact that the jury had in fact visited the locus in quo and that the witnesses pointed out where they stood and where the accused were alleged to be standing or sitting is a sufficient answer to this criticism. It is unbelievable to us that, had it been impossible for the witnesses to see from the position in which they placed themselves, the jury would not have returned to the Court and stated that they wished to hear no more of the case and acquitted the Appellants or even that the Appellants themselves would not have called the strongest evidence to support this suggestion which does not seem to have been pressed in any way strongly before the jury.
In this connection we must point out that where a Court visits the locus in quo and anything whatsoever takes place which would have a bearing on the case, it is the duty of the Judge to record the incident. In this case we are informed that, when the Court visited the spot, the witnesses pointed out the places where they alleged in these evidence that they had been standing and also where they alleged the Appellants had been. In our view the correct procedure would have been either on the spot or on the return to Court for these witnesses to have been recalled with the object of stating something to this effect:
“I yesterday attended with the Court the spot where I have sworn the murder was committed, and I pointed out to the jury where I was standing at the time, and also where the Appellants were sitting or standing”.
The trial Judge merely recorded in his notes the fact of the visit to the locus in quo, and referred in his summing-up only to the placing of some stools by Botwe and Fosu in the positions in which they had previously stated in evidence that they had found them at the time of the alleged assault on the deceased. The omission with which we are dealing could in no way have prejudiced the Appellants, and we have not the slightest doubt that had there been any substance in the complaint Counsel for the Appellants would have requested the recall of those witnesses themselves for the purpose of cross-examination. In any event as the jury examined the spot themselves they were in just as good a position as anyone else in the world to judge as to the visibility.
Much play was made of the omission of the learned trial Judge to point out that there was no evidence that the Omanhene had ever handed over the stool to be blackened. It is correct that there was no direct evidence on this point, but in the circumstances of this case we do not think that it was incumbent on the prosecution to prove this fact, and if the defence set great store by the fact that there was no evidence given to the above-mentioned effect it was always open to them to call evidence and to prove that this had not been done, and in any event we are satisfied that it was a point of little real significance.
On behalf of the 4th and 7th accused it was argued that the Judge had failed to point out to the jury that as they were circumcised they were outcast and would not have been allowed to participate in any act pertaining to the consecration of the stool, as for instance providing or procuring blood to besmear the stool for a deceased Omanhene. It is true that the Judge might have put this point more clearly to the jury, but he did call their attention to the fact that these Appellants were circumcised and that as circumcised persons they were not allowed to go to the Stool house or to its precincts according to native custom, and we think it a matter of small importance that he failed to add that according to native custom they could not participate in the sacrifice. There was evidence that as the Ahenfie was desecrated by the death of the Omanhene there was a relaxation of the taboo against circumcised persons having access to this part of the Ahenfie, but the evidence on which the Crown relied did not go so far as to show that at this time circumcised persons could take part in any matter connected with the stools. It might here be pointed out that even the Crown did not accept that everything in relation to the sacrifice was carried out in accordance with native custom. One of the Odikros, for instance, when giving evidence with regard to custom, asserted that before a stool could be blackened he himself by native custom should have been present, whereas when he attended for the performance of the blackening of the stool, he was told that the ceremony had already been completed.
Indeed the whole case for the prosecution, if believed, conclusively establishes the fact that custom had not been followed in many material particulars. It was also argued on behalf of the Crown that the actual killing of the person whose blood was to be used for the purpose of blackening the stool was not part of the ceremony, which consisted only of the blackening of the stool and not connected with the procuring of blood. Upon this point it is not necessary to express any opinion except to say that as the jury apparently believed that so many irregularities in custom had taken place with regard to the blackening of the stool they might with equal ease have believed that yet another custom had been broken in that a circumcised person was permitted to take part in the killing. In other words, that the whole ceremony was being carried out with scant regard to ancient custom.
Misdirection is also claimed in that the learned Judge suggested an excuse for the conflicting statements made by the Chief of Aflasa and did not point out to the jury that the Coroner who held the preliminary investigation at which the witness made a statement inconsistent with that in the present case understood the language of the aforementioned Chief of Afiasa. In the first place there is no evidence that the Coroner does in fact know that particular language nor is it of the slightest importance. The Judge in his summing-up emphasizes the fact that the conflicting statements were made and all that he attempts to do is to express his own view as to a possible reason why the Afiasa Chief might have made the mistake.
Another ground of appeal taken on behalf of the Appellants was to the effect that whereas the learned Judge summed up at length on the case for the prosecution he dealt with the defence in a cursory manner. This is not, strictly speaking, correct, for when dealing with the case for the prosecution he frequently pointed out where it was in disagreement with the evidence for the defence, though it is true that whereas the main defence of the Appellants was an alibi, the learned Judge disposes of this defence in two paragraphs.
It should be noted, however, that he does not criticise this defence in anyway whatsoever as he well might have done, but points out at the end of his summing-up so that it would be one of the last matters before the jury that the Appellants had all put forward alibis supported by witnesses that the jury had heard those witnesses and that if they believed them or even if their evidence raised a reasonable doubt in the minds of the jury they should acquit the accused. It should also be noted that the learned Judge offered to read over the evidence of any of the witnesses to the jury should they so desire, which offer was declined. We are not of the opinion that any useful purpose would have been served by repeating to the jury the evidence which they had just heard and on which presumably the Judge had no desire to comment.
The learned trial Judge also directed the jury that the strength of the alibi with regard to each of the Appellants should be considered separately and that if in the case of any of the Appellants the alibi was established that Appellant was entitled to be acquitted.
Another point argued by the Appellants was that inasmuch as the Crown had failed to prove that the bones found on the bank of the river were in fact the bones of Akyea Mensah, the Appellants were entitled to be acquitted. Even if the evidence for the Crown was not conclusive on this point, having regard to the fact that the confession of the 2nd Appellant was only evidence against himself, we are not of the opinion that the Appellants were entitled to an acquittal on that ground. The authorities show conclusively that the production of the corpus delicti is only a vital matter where the evidence is purely circumstantial and in this case there were eye-witnesses of the actual murder.
The Appellants even suggested that the photograph, coat and trousers, tracings of the skull, etc., were inadmissible and that the bones themselves should have been produced in evidence. It must be realised that these exhibits were put in in an attempt to show that the bones produced were those of the deceased and in our view they were certainly relevant to that issue, and in any event it is difficult to see how their admission could have in any way prejudiced the Appellants in this case.
One of the last points taken by the Appellants was that the learned Judge failed to direct the jury with regard to the evidence of Mr. Levack. The facts are that Mr. Levack gave certain evidence with regard to incidents which he alleged happened on the 27th of February and which could only have been relevant to this case if those incidents had in fact happened on the 27th of February. He was subsequently recalled and he stated that he had made a mistake in the date and that the incidents to which he referred in his evidence took place on the 5th of March. It must therefore have become immediately apparent to the meanest intelligence that his evidence could assist the Court in no way whatsoever with regard to the murder which the Crown allege took place on the 27th of February. The trial Judge did not mention this specifically to the jury, but it is a matter so obvious that in our view it was unnecessary and in no way prejudicial to the Appellants.
For the above-mentioned reasons the appeals of all the Appellants are dismissed.
–