OWUSU JULIET NANA AKUA ANTWIWAA -10965307

DONKOR V THE REPUBLIC

Facts: Appellant was accosted by the deceased on her farm who accused
him of stealing. According to him, the deceased abused and insulted him
and went to the extent of hitting him with a palm branch the size of his
wrist. There, he claims to have been provoked which led to him attacking
her with his cutlass, slashing her to death and hiding her body under
some leaves. The trial judge per the evidence convicted the appellant of
murder, leading to the appellant appealing the conviction.
Procedural history: The case commenced at the High Court with further
appeal proceeding to the Court of Appeal.
Issue: The issue in contention was whether a person who inflicts such
grievous injuries upon another can plead justification for his savage
killing on grounds that he did not intend to unlawfully cause the victim’s
death.
Holding: The Court, in dismissing the appeal held that defense of
provocation was not available to the appellant as his reactionary act of
violence to ward off defendant’s battery on him was in far excess to what
a reasonable man would do.
Reasoning: The Court was of the reasoning that the kind of force applied
by the appellant with the aim of reacting towards the deceased’s
purported battery against him was in this instance was too excessive to
be regarded as being justified. Therefore, the conviction of the High
Court had to be affirmed.
Comments: The Court was right in affirming the murder conviction, as it
is impossible to justify slashing a person with such excessive force to the
extent of death based on the justification of provocation.

KEKEY V. THE REPUBLIC

FACTS: : The accused, a blind man, suspecting that his wife was
entertaining an unknown man in her room for illicit sexual purposes,
stabbed her to death because she impeded his effort to know the
paramour and facilitated his escape. The blind man was charged with
murder.
PROCEDURE: The case began at the Criminal Session in Ho and
proceeded to the court of Appeal.
ISSUE: Whether provocation can be established on the evidence of
allegation of adultery.
HOLDING:Held dismissed the Appeal on the ground that the evidence
provided by the appellant did not show any issue of provocation
stipulated under Section 53© of Act 29 but rather it showed that he
intended to kill her because of his uncontrollable jealousy.
REASONING:The appellant reasonably suspecting his wife of having
committed adultery with the unknown man could not in law have
amounted to such extreme provocation as would reduce the offense to
manslaughter.
COMMENT:The Court gave a fair and reasonable judgment because
actions based on suspicion are most at times false.

R . v. Ekpo [1938] 4 WACA 110

Facts: There was a fight between the Ediene clan of which the deceased
was a member and the Minya clan, of which the appellant was a member.
The Ediene were the actual aggressors in the fight. In the fight the
appellant was wounded above the eye by an arrow, the deceased was
also wounded by a machete and fell. After the deceased had fallen
the the appellant ran up to him and inflicted upon him a fatal wound
with a machet.

Procedural History: The case was brought before the West African
Court of Appeal from the High Court at Ikot Ekpene.

Issue: The question before the Court was whether the homicide was
murder or should be reduced to manslaughter under section 318 of the
Criminal Code.

Holding: The Court held that the homicide should be reduced to

manslaughter on account of the provocation under section 318 of the
Criminal Code.
Reasoning: The West African Court of Appeal disagreed with the trial
judge’s reasoning that it was a murder on the ground that deceased
himself offered no provocation to the accused personally. The court
reasoned that the provocation consisted not merely of the arrow wound
but of the whole attack by the Edienes of whom the deceased was one.
They applied the test by which the accused if he lived, could have been
properly prosecuted for the harm caused to the appellant and was
therefore one of those offering the provocation. Furthermore, it was
determined that the appellant committed the act whilst still in the heat of
passion caused by the provocation of the fight.

Comments: The decision of the Court was appropriate in light of all the
circumstances which led up to the act of the appellant.

R v. Lesbini
Facts: The appellant entered a shooting gallery known as “Fairyland” to
practice his shooting. The keeper of the place made a comment to him
about his race that infuriated him and he rebuked her. She told him that
it was a joke and that it was her way of talking to customers. After, the
appellant acted unbothered and proceeded to select a revolver. He
pointed it at her and shot causing her injury and death.
Procedure: The case began at Central Criminal Court and travelled to
the Court of Criminal Appeal.
Issue: Whether homicide which would otherwise be murder is
manslaughter by reason of provocation.
Holding: It was decided that the defence of provocation could not be
granted and that the prisoner was liable for murder.
Reasoning: There was no real evidence of insanity. Also, the act was not
too grievous as to result in control of the mind of a reasonable person.
Comment: I believe the judges applied the principles very well and the
position of the law was not weakened.

R V. FRAFRA
FACTS:The appellant, Tinga Frafra argued that his wife had given him a
potion rendering him sexually impotent. And that he also found his wife
engaged in a sexual intercourse with the second witness for prosecution
and his wife prevented him from confronting the second witness,
therefore he killed the wife. Frafra was convicted of murder. Evidence
was provided by a mental specialist, Dr. Cudjoe that Frafra was suffering
from insanity.
PROCEDURE:The case began in the High Court and was appealed to the
Court of Appeal.
ISSUE:Whether insane delusion can be established as a defense on behalf
of Frafra.
HOLDING:The Court allowed the appeal and quashed the sentence of
death verdict by the jury and substituted it with a verdict of Guilty but
insane.
REASONING:Section 52 (2) of the criminal code, 1960 (Act 29), provides
the criteria for insanity under this case and thus the appellant cannot be
subject to punishment of any kind under the influence of insane delusion.
COMMENT:Even though the Section 52 of Act 29 provides the criteria for
insanity, the instance in this case does not give reasonable evidence to be
charged under insanity.

THE STATE V. AYI GRUNSHIE

Facts: The deceased went hunting with the first witness, Nimoh. He
heard some noises in the bushes and approached it. He later gave out a
scream of pain and the witness upon arrival, found out that the deceased
had been shot and was at the point of death. The witness claimed that
after he heard the gunshot, he saw someone run from the area where the
deceased lied. The appellant claimed that some pellets of the deceased’s
gun hit him and in an attempt to defend himself from the deceased who
was approaching him aggressively with a knife, he killed him.
Procedure: The decision of the High Court was appealed at the Supreme
Court.
Issue: Whether the assault made the accused act from such horror of
immediate death of grievous harm.
Holding: The appeal was allowed and the sentence of murder was
reduced to manslaughter.
Reasoning: The court was of the view that, at that moment, the
defendant acted in the horror of immediate death or harm to his person.
Comment: The decision of the court to reduce the severity of the
punishment was very reasonable.

LARTI V THE STATE

Facts: The appellant was convicted of murder for inflicting 24 cutlass

wounds on the deceased whiles putting up the defense of extreme
provocation. The only witness to the killing was a six-year old boy who
gave unsworn evidence at the trial. The appellants appealed against the
conviction.
Procedural history: The case began from the Criminal session of the
Accra High Court, proceeded to the Court of Appeal and finally to the
Supreme Court.
Issue: The issues contended were whether the jury could act upon
unsworn evidence, whether retaliatory acts reasonably commensurate
with degree of provocation and whether the jury if properly dictated
would have returned with the same verdict.
Holding: The Court, in dismissing the appeal, held the unsworn evidence
to have no weight in law, the defense of extreme provocation was not
available to him as per Section 54 of the Criminal Offences Act, 1960, Act
29, the appellant cruelly murdered the deceased and though judge’s
direction amounted to a misdirection of law, to have found the appellant
not guilty would be a grave miscarriage of injustice.
Reasoning: The reasoning of the court was that the unsworn evidence
contravened the Oaths Act 1960, the appellant’s actions were so
excessive that it was not possible to make the defense of extreme
provocation available to him per Section 54 of the Criminal Offences Act,
and that though the judge’s direction was a misdirection of law, finding
the appellant not guilty would have been an even greater miscarriage of
justice, hence dismissing the appeal.
Comments: The judge produced a reasonable judgement as it
corroborated with the available statutes regarding this case.

Sabbah v. The Republic

Facts: The appellant in this case had caused the death of
one Amegbor Amedorme. The deceased and the two witnesses had gone
to the farm to inspect some palm trees and distil akpeteshiewhich the
second witness intended to buy. The appellant followed them and
slaughtered the deceased, cut off his head and buried it close to his
house. He also chopped on the fingers of one of the witnesses.
Procedure: This case began in the Accra High Court. There was an
appeal of the decision at the Court of Appeal and a final appeal at the
Supreme Court of Ghana.
Issue Whether the attack by the deceased and the other two on the
appellant were such to deprive him of the power of self control.
Holding: The courts refused the defence of provocation by the
defendant.
Reasoning: The continuous slashing of the deceased was against Section
54(1)(d) of the Criminal Code,1960(Act 29)
:Comment: The offence was too grievous for the appellant to bring
the defence of provocation.

ZINITEGE V. THE REPUBLIC

Facts: The accused who was taunted by his nephew after sleeping with
his wife got into an altercation with him after he denied the allegation of
sleeping with the girlfriend of the accused. Later that same day, the
deceased attacked the accused with a stick, thereby hitting him
repeatedly. The accused got hold of the stick and used it to hit the
accused on the head. Thereby leading to the death of the deceased. The
accused was charged with murder and sentenced. He therefore appealed
his conviction.
Procedure: The High Court found the appellant guilty and charged him
of murder under section 46 of Act 29. He appealed his conviction at the
Court of Appeal.
Issues: Whether or not the defendant plea of self defence will issue.
Holding: Self defence as a matter under consideration will hold only
after the issue at hand has been looked at attentively. In the instant case,
the three successive attacks must have led the appellant so to lose his
self-control as to resort to the one and only move he took which turned
out unfortunately to be fatal. That temporary loss of self-control was the
essence of the defence of provocation. There was hardly any significant
time lapse for any issue of a cooling off period to be raised in this case.
Reasoning: The court was right in considering self defenceunder
provocation because from the fact of the case the accused is the victim in
this case therefore the turning of the decision from murder to
manslaughter since it was a partial defense.

Comment: Self defence will be looked at under Section 52 and 53 of Act

29 if the facts matches the case at hand. If the defendant had to defend
himself as the only way to fend off the attacker.

R V. KONKOMBA & ANOR

FACTS: Tordo Konkomba, (the son of the

accused), JegeligbanKonkomba was accidentally shot
by Kwabina Basare when they went hunting. Basare went to report to
the Police and on his arrival on the next day, Konkomba attacked him
with a cutlass and stick and his brother Mape Konkomba also
struck Basare on the head twice which led to his
death. Jegeligban Konkomba and Mape Konkomba were charged with
murder.
PROCEDURE:The case was first held in the High Court at Tamale and
later appealed to the Court of Appeal.
ISSUE:Whether the appellants act which is the assault on Basare be said
to have amounted to extreme provocation.
HOLDING:The Court held dismissing the Appeal on the grounds that the
appellants could not in law have been deprived of the power of self
control by provocation. They acted wholly from the preconceived
purpose of causing the death of Basare in order to avenge the death
of Tordo Konkomba.
REASONING:The incident as related by the appellants shows that the act
of killing Basare took place a long time after the shooting. This is
contrary to Section 251, sub-section 4 of the Criminal Code.
COMMENT:The judgment of the Court was reasonable and fair because
the incident could not have been said to amount to extreme provocation.

APPIANING V THE REPUBLIC. 1st case

Facts: The appellant is charged and convicted for the murder of a police
corporal who tried to arrest him for assaulting a woman. The appellant’s
defense was that after arguing with the woman, he went to have an
alcoholic drink and rested in his room where the deceased and another
man came and ordered him to come with them to the police station,
without producing any warrant or identity card. A struggle eventually
ensues where one of the two men, with the aim of hitting the appellant
with an iron instrument hits the deceased in the head, resulting in his
death, in effect denying to have committed the murder. The trial judge
convicted the appellant and held that the defenses of provocation and
justification could not be available to the appellant as he had denied
committing the offence. The appellant appealed against the conviction.
Procedural history: The case began at the Accra High Court with
further appeal continuing to the Court of Appeal.
Issue: The issue in contention was whether the defense of provocation
could be available to the appellant which could reduce the sentence from
murder to manslaughter.
Holding: The Court, in upholding the appeal, held that denying the
offence charged does not mean partial excuse or absolute excuse cannot
arise in the whole of the evidence, and therefore substituted the murder
conviction for manslaughter with ten years hard labor.
Reasoning: The Court was if the view that per Section 277 of the
Criminal and Other Offences Act, 1960, Act 30, the judge was enjoined to
sum up the law and evidence of the case, and denial of the offence does
not absolve the judge of his duty.
Comments: The Court’s decision was reasonable as per statute, the
judge was clothed with the powers to grant such a defense for the
appellant.
 ODURO V THE STATE
Facts: The deceased who was the wife of the appellant owed him some
money. The couple lived in different villages so the appellant visited the
deceased to take his money. She pleaded for time to pay back and the
appellant angrily stabbed her three times resulting in death. He
contended that they had been having some misunderstandings prior to
that day and that fuelled his anger.

Procedure: The case was tried in the Kumasi Criminal Session and was
appealed in the Court of Appeal of Ghana.

Issue: Whether abusive or insulting words alone constitute provocation.

Holding: The appeal was dismissed and the charge of murder was
upheld.

Reasoning: The disagreements between them and the fact that she owed
him was not enough reason to result in provocation.

Comment: The decision of the court was satisfactory.

ATTA V R
Facts: The appellant found his wife and brother having sexual
intercourse with each other. Instead of killing them immediately upon
meeting them, he rather takes his time and sinisterly kills his wife with a
cutlass. He then proceeds to change the weapon with a gun and shoots
his brother. The trial court convicts him of murder and he appeals.

Procedural history: The case began at the High Court with further
appeal at the Court of Appeal and then finally, the West African Court of
Appeal.
Issue: The main issue in contention here is whether the plaintiff was
entitled to the defense of extreme provocation per Section 54 (1)(b) of
Act 29.

Holding: The Court, in dismissing the appeal, held that per the
circumstances under which e committed the act, he could not be deemed
to have lost his self-control.

Reasoning. The Court was of the reasoning that the actions of the
appellant did not occur immediately after witnessing the sexual
intercourse, rather it occurred after a substantial period of time. This
means that the appellant purposely planned and intended to commit the
murder, making the defense of extreme provocation unavailable to him.

Comments: The judgement given by the court was a reasonable one

given the fact that had the murder occurred immediately after seeing
them, he could have justified his actions, but to take that lomg shows that
he clearly intended to commit the murders.

R V. TEKYI
Facts: The appellant Yaw Tekyi killed his wife after he caught her of
committing adultery. He was charged with murder and convicted.
Procedure: The issue was brought to the High Court where the
appellant was convicted of murder charge. The appeal was upheld in the
West African Court of Appeal.
Issue: Whether or not the appellant plea of provocation will hold.
Holding: An act of adultery committed in the view of the “accused
person with or by his wife or her husband,” In the present case the
appellant killed his wife upon finding her in circumstances which
according to his case pointed very strongly to her having just committed
adultery. His counsel asks us to hold that such circumstances come
within the words “in the view, of “in the sub-section quoted and so
reduce the crime from murder to manslaughter. We see no reason to give
the words” in the view of” any other meaning than their natural and
ordinary meaning.’ If the Legislature had intended something different, it
would have been quite easy to say so; and we do not subscribe to
counsel’s submission.

Reasoning: An act of provocation pertaining to sexual offences

(adultery) deals with the circumstances one finds himself and how he or
she reacts to the situation at hand. Lapse of time is also a factor as
reasonable time would not hold in the defense of provocation. The court
found him guilty and dismissed the appeal.

Comments: Provocation is really dicey as it embodies certain principles

and without it an issue in court will not hold because it has been
enshrined in the Criminal Code. Sexual offences do not tend to differ as in
order to prove provocation constituent elements must be looked at.

KALIBU AND ANOTHER V . THE REPUBLIC [1987-88] 2 GLR 208

Facts:Many of the members of two groups from two different clans, A.

and O., who engaged in an unlawful fight got injured. Initially the police
charged all of them with some offence. But following the death of one Lag
from from his injuries, the police dropped the charges against all the
others except the appellants and one other person who were then
charged with murder. At their trial, relations of Lag who were also
involved in the fight claimed in their testimony for the prosecution that
an illicit relationship between K. and the\wife of a brother of L. had been
the cause of the fight. But the appellants who had pleaded not guilty to
the murder charge denied that claim and asserted that that matter had
been settled about five years before the unlawful fight. The appellants
were convicted of murder and sentenced to death but N. was found
guilty of manslaughter. On appeal by the appellants on the ground that if
the jury had been properly directed they would have brought in a verdict
of manslaughter, the court found that there was no sufficient evidence as
to who or what had caused the fight, and also that the trial judge had
ignored the fact that the prosecution witnesses were partisan and there
were conflicts in their evidence.
Procedural History: This case was an appeal to the Court of Appeal
from the decision of the High Court, Tamale.

Issue: Whether or not on the facts and evidence adduced, the appellants
could properly convicted of murder.

Held, allowing the appeal: The conviction of murder was set aside and
the verdict of manslaughter substituted for each of the appellants.

Reasoning: Since there had been fighting among the groups in which
various instruments had been used and both the appellants and the
deceased had suffered injuries, it could be said that there had been
provocation to the appellants under section 56 of the Criminal Code,
1960 (Act 29). Since the evidence as to who had provoked the fight
remained in doubt, it could not be said that the incident with the
deceased’s brother’s wife five years before had created a previous
intention to cause death or harm or engage in an unlawful fight to deny
the appellants the defence of provocation under section 54 of Act 29.
Besides, the appellants as ordinary persons of the community to which
they belonged could be said to have been extremely provoked. Since the
jury would have returned a verdict of manslaughter if they had been
properly directed, a verdict of manslaughter would be substituted for the
conviction for murder.

Comment: The Court of Appeal was right to take into account that
ordinary members of the appellants’ community would have been
provoked by the fight which took place between the two different clans
as it was the unlawful fight as a whole which constituted the provocation
of the appellants.

AGYEMAN V THE REPUBLIC

Facts Akosua Tawiah is one of the three wives of the accused, a 58-year-
old farmer and akpeteshie distiller who lived at WenchiNkenah. The
accused suspected her wife of cheating with the deceased a policeman
who was also living in the village. The accused attended a funeral
at Droboso and so did the wife and the deceased. The deceased danced
with the wife of the accused to the tune of Adowa and immediately, after
the funeral both the accused and the deceased were nowhere to be
found. The accused enraged by the sudden disappearance took a cutlass
and went to the deceased house. The accused claimed that he heard his
wife’s voice in the room while he was standing outside. He waited for the
deceased to come out and then he struck him with the cutlass. The
deceased fell in agony and died later.

Procedure The case was first trialed at the High Court where He was
found guilty and convicted for the offence of murder contrary to section
46 of the Criminal Code, 1960 (Act 29). He appealed his conviction and
claimed the appellate court dismissed his appeal and upheld the decision
the Trial Court.

Issues 1. Whether or not the Judge erred in law when he directed the
jury that it was the duty of the appellant to prove provocation.

2. Whether or not by expressing an opinion that the prosecution had

established their case, the trial judge prejudiced the mind of the jury.

3. Whether or not the trial judge misdirected the jury by not directing
them that their verdict should have been unanimous

Holding 1. Since under section 52 of the Criminal Code, 1960 (Act 29)
provocation was a defence, the duty of proving same lay on the accused.
Accordingly, the trial judge’s direction to the jury that it was the duty of
the appellant to prove provocation was proper.

2. Since section 53 (1) © of Act 29 required that for an act of adultery

of a spouse to constitute extreme provocation, the accused had to
have seen his spouse and another engaged in the actual act of
adultery, no test, whether subjective or objective, applied.
 3. Under section 287(2) of the Criminal Procedure Code, 1960 (Act 30),
a judge was entitled if he thought so to express his opinion on the
evidence led at the trial and in non-controversial factual matters it
would not be entirely wrong for him to express his opinion on what
was or had been proved.

Reasoning The accused even though from the facts of the case can be
deduced that he was upset and provoked but the onus was on him to
check if it was really his wife that was in the deceased room, and this has
been stipulated in Section 53 of Act 29 and he should have exercised
restraint once he decided to stay outside which could not have made him
criminally liable at the time. He should have gone and check whether it
was the wife or not because that was what the law required.

Comment

The case in question hammers on the fact that restraint is really

important when it comes to provocation pertaining to sexual offences
once you’ve not chanced upon your wife committing adultery as stated in
Section 53 of Act 29. The accused if he had exercised restraint would
have been totally different.

STATE v. KONKOMBA

Facts: The case wanted to answer the question whether intoxication can
be under a factor which could lead to a person being provoked. The court
was of the view that turning to the issue of provocation even though the
learned trial judge in his summing-up drew the jury’s attention to the
law and read to them every section of the Criminal Code that could assist
them in their deliberations, he did not explain clearly that what they had
to consider was whether in their view the accused, in view of the alleged
assault and battery complained of, would be likely to be deprived of the
power of self-control. The appellant is advanced in age and of
the Konkomba tribe in the Northern Region and such a direction would
necessarily involve an examination of the community to which he
belonged. The court was of the view that intoxication does not fall under
the category of matters which can amount to provocation.

THE STATE V. KWADJO FORI

Facts: The appellant suspected his wife, the deceased, of adultery. On the
fatal day, when his wife and her mother were going to the farm, the
appellant suddenly appeared, armed with a cutlass and attacked his wife,
who died the same day from the injuries sustained.

Procedure: The judgement of the High Court, Kumasi was challenged in

the Supreme Court.

Issue: Whether the suspicion of adultery could amount to provocation.

Holding: The appeal was dismissed and the appellant was charged with
murder

Reasoning: The mere suspicion of adultery could not result

in provocation.

Comment: This was a very reasonable decision by the court.

BOAKYE V. THE REPUBLIC

FACTS:There had been a fight between the appellant and a group of
boys, including the deceased. And that after the appellant and the
deceased had been separated and the deceased and his friends were
walking away from the scene of the fight, the appellant went to his house
which was close and picked a knife, chased the boys and stabbed the
deceased in his chest resulting in his death. The appellant was then
charged with murder.
PROCEDURE:The case was first held in the Ashanti Regional Public
Tribunal and was appealed to the Court of Appeal and later on appealed
to the Supreme Court.
ISSUE:Whether defenses of provocation and self-defense are available to
the appellant.
HOLDING:Held dismissed the Appeal on grounds that the evidence
provided was enough to charge the appellant of murder and that his
action could not therefore constitute self-defense under Section 31 nor
provocation under Section 52 of the criminal code, 1960(Act 29).
REASONING:The appellant had reasonable time to cool down when the
fight was separated, hence the evidence showed that the appellant
intended to cause either death or grievous bodily harm to the deceased.
And also the stabbing of the deceased which is an unlawful harm was
established as mens rea within the terms of sections 11 and 47 of Act 29.
COMMENT:The judgment of the Court was reasonable pertaining to the
fact that the appellant had reasonable time to cool down.

R V BEDDER. Case 1
Facts: The appellant killed a prostitute. He was sexually impotent. He
had tried several times to have sexual intercourse with her and failed.
The prostitute taunted him with his failure and tried to get away from his
grasp. In the course of her attempts to do so, she slapped him in the face,
punched him in the stomach and kicked him in the groin. Whereupon he
took a knife out of his pocket and stabbed her twice causing her death.

Procedure: The defendant was convicted of murder the trial court and
he appealed his conviction.

Issue: Whether or not the defendant plea of provocation will stand

Holding: The test of reasonability is purely subjective no account could

be taken of the characteristics of the defendant.

Reasoning: The defendant test of reasonability will not hold because of

its subjectiveness. The test of provocation will fail because even though
the woman taunted him, the onus lies on him to exercise restraint.

Comments: The decision of the appellate court is one which should not
be overlooked because of its comprehensive approach used in
determining the test of reasonability.
 R V DUFFY
Facts: The appellant who was living with the husband claimed to had
been subjected to brutal treatment by him. On the night of the offence,
there had been quarrels and blows had been struck. The appellant had
wished to take their child away and the husband had prevented her. The
appellant left the room for a short while and changed her clothes, and
eventually, when her husband was in bed, she returned with a hatchet
and a hammer, with both of which she struck him. The husband died
instantly and the wife was convicted.
Procedure: The case was brought to the Manchester Assizes whereby
the appellant was charged with murder. The appellant appealed the
conviction at the criminal court of appeal.
Issue: Whether or not the appellant plea of not guilty by means of
provocation would stand.
Holding: The court held that Provocation is some act, or series of acts,
done by the dead man to the accused which would cause in any
reasonable person, and actually causes in the accused, a sudden and
temporary loss of self-control, rendering the accused so subject to
passion as to make him or her for the moment not master of his mind.
The first of them is whether there was what is sometimes called time for
cooling, that is, for passion to cool and for reason to regain dominion
over the mind. That is why most acts of provocation are cases of sudden
quarrels, sudden blows inflicted with an implement already in the hand,
perhaps being used, or being picked up, where there has been no time
for reflection. Secondly, in considering whether provocation has or has
not been made out, you must consider the retaliation in provocation—
that is to say, whether the mode of resentment bears some proper and
reasonable relationship to the sort of provocation that has been given.
Reasoning: Provocation as stated by Lord Goddard should be an
immediate act resulting from an argument or an altercation but when
there is an ample time it will not hold.
Comment: Provocation as we know it in our Ghanaian legislation
reflects what is embedded in English law. Provocation touches on how
sudden we react to event and if there is a delay then the chance of an
action being overturned from murder to manslaughter will be very slim.

R. V THORNTON [1992] 1 All ER 306

Facts: There was a history of domestic violence and assaults by the

husband on the appellant and in May 1989 he committed a serious
assault on her which led to charges being laid. In June the appellant told
a woman with whom she worked that she was going to kill her husband.
Later that month the appellant and the husband had a series of rows
over the husband’s drinking. After one such row, during which the
husband called the appellant a whore, the appellant went to the kitchen
to calm down. While in the kitchen she looked for something to provide
protection in case she was attacked and picked up a carving knife,
sharpened it and went back to where the husband was lying on a sofa
and asked him to come to bed. The husband refused and said that he
would kill her when she was asleep. She replied that she would kill him
before he ever got the chance to kill her. He then suggested sarcastically
that she should go ahead. The appellant brought the knife down slowly
towards the deceased as he lay on the sofa. She thought he would ward it
off and did not mean to kill or harm him, her object being only to frighten
him. The knife entered his stomach, killing him. At the scene of the crime
the appellant told a police officer that she wanted to kill her husband and
that she had sharpened the knife to kill him because of what he had done
to her. In a later statement to the police she said that his death was
accidental and that she did not mean to kill him. She was charged with
murder.

Procedural History: The case came from the High Court to the Court of
Appeal

Issue: The main issue was whether or not the jury at the trial court had
been misdirected with regard to provocation.
Holding: The appeal was dismissed as the trial judge had not
misdirected the jury. The conviction of murder by the trial judge was
maintained.

Reasoning: In order to reduce a charge of murder to manslaughter on

the ground of provocation it had to be shown that the provocative
conduct relied on had suddenly and temporarily deprived the accused of
self-control. Provocative acts in the course of domestic violence over a
period of time which did not cause sudden and temporary loss of self-
control did not amount to provocation in law, but might be used as the
background in which the accused’s reaction to provocation is to be
judged. On the appellant’s own statements and evidence, her action in
stabbing the accused had not been the result of sudden loss of control
induced by the defendant’s statements.

Comments: The element of sudden temporary loss of self-control is

fundamental in the determination of the existence of provocation. Since
there was no evidence of any words or conduct on the part of the
deceased which caused such sudden loss of self control the court was
right in its determination.

Kuo-Den Alias Sobti and Others v. The Republic [1989-90] 2 GLR

203. Case 1

Facts:

One Nuhu (the deceased) left his village in the morning to graze his
cattle. When the cattle came back in the evening without him, his brother
reported the incident to his village chief who informed him that
some Dagartis had chased a Fulani man in the bush. On
hearing this,Nuhu’s brother went to see the Dagartichief at Sugo, a village
in Northern Ghana, who confirmed the story of the chase and invited the
three appellants whom he had learnt had earlier that day chased the
Fulani man. The appellants confirmed the story but indicated that the
Fulani man had ran away with his cattle. Not satisfied with that
account, Nuhu’sbrother reported the matter to the police who arrested
the first and second appellants but could not trace the third appellant.
When the police interrogated them separately the first appellant said
they had received information that Nuhu had tried to steal the third
appellant’s cattle which were being grazed and so together with one S
and another, they went to the bush to invite N to Sugo, their village, but
he rather drew a knife on seeing them and so they all started to throw
stones at him. However, the third appellant hit Nuhu with a club and he
fell and died. The second appellant confirmed the first appellant’s
account of the chase and the throwing of stones but, stated that the third
appellant had used Nuhu’s knife to kill him. Both the first and second
appellants also said they subsequently dug a grave and
buried Nuhu. Nuhu’s body was subsequently exhumed from the bush
where he was killed. On examination, the body was found to have a cut
on the forehead and another big cut on the chest. The doctor who
performed the autopsy gave stab wound as the cause of the death. The
third appellant was apprehended eight months after the incident and he
also in his statement to the police confirmed the story that they had all
chased and thrown stones at the deceased but he alleged that Nuhu died
when he was hit on the forehead by a stone thrown by the first appellant.
At trial, all the appellants were found guilty by the unanimous verdict of
the jury.

Procedural History: The case began at the High Court, Bolgatanga from
which it came before the Court of Appeal and the Supreme Court.

Issues: Whether the jury had been misdirected by the trial judge when
they were not told that they could consider the action of Nuhu in
allegedly trying to steal the third appellant’s cattle in the circumstances
of the case constituted provocation as to reduce the offence to
manslaughter.

Held, dismissing the appeal: On the facts, there was not sufficient
material evidence to enable the trial judge to form the view that in the
circumstances of the case, there was evidence of provocation fit to be left
to the jury.
Reasoning: It was evident from the list of matters that could amount to
provocation under s.53 of Act 29 that stealing had never been a matter
which the law envisaged could constitute provocation.

Comments: It is necessary that in considering the reaction of the

appellants within the context of what reasonable ordinary members of
the community were expected to do, this consideration was balanced
with the Criminal law of Ghana to ensure the maintenance of certain
standards of self-control across board

.
APPIANING V THE REPUBLIC. Case 2

Facts The appellant brought an action to overturn his conviction from

murder to manslaughter. The appellant struggled with the police officer
who wanted to bring him to the police station for questioning. He ended
up killing the deceased “Corporal Lasso” after striking him with a
hammer. According to the autopsy report, the policeman died from his
wounds. The appellant was arrested and charged with murder under
Section 46 of Act 29.

Procedure

The case was first trialed at the Accra High where the accused was
charged with murder under Section 46 of Act 29. The appellant appealed
the conviction of the high court, and the case was allowed by the Court of
Appeal.

Issues

1. Whether or not the defense of provocation will hold.

2. Whether or not the appellant was the victim of an unprovoked

assault by the deceased.
 3. Whether or not there was evidence of pre-conceived intention to kill
within the meaning of Act 29, s. 54 (1) (b) was a question of fact for
the jury after adequate direction by the trial judge.

4. Whether or not the trial judge erred in omitting the effect of

intoxication and the role it played in the accused effecting the
murder of the Corporal.

Holdings
1. The fact that an accused persons defence is one of total denial of the
offence charged does not mean that the circumstances of either
partial excuses(provocation) or absolute excuse (justification)
cannot arise on the whole of the evidence.

2. The evidence showed that the appellant was the victim of an

unprovoked assault and that the deceased received the fatal wound
during one continuing struggle. The defence of provocation could
not therefore be excluded by reason of lapse of time, unreasonable
mode of resentment or that the appellant was not deprived of the
power of self- control as provided by Act 29, s. 54 (a), (c) and (d).

3. Whether or not there was evidence of pre-conceived intention to kill

within the meaning of Act 29, s. 54 (1) (b) was a question of fact for
the jury after adequate direction by the trial judge. It was only after a
proper direction on the facts and the relevant law that the jury could
make the appropriate finding of fact, but this the trial judge failed to
give.

4. The trial judge’s failure to consider the issue of intoxication and its
effect on the appellant’s intention to kill amounted to a serious
misdirection.

Reasoning
For the plea of self-defense to work, certain criteria have to be met as
stipulated in the case of State v. Kweku Yeboah. Even though the plea of
self defense was quashed, the officer didn’t act reasonable thereby
leading to an altercation between the accused and the deceased and
various individuals who joined. Thereby the appeal for manslaughter
succeeding.

Comment

An officer effecting an arrest shouldn’t use excess force but rather what
has been stipulated in the Criminal Code. The accused even though acted
wrongly by killing the Officer, he was provoked as the act of the officer
was contrary to what has been entrenched in law.

R. V BEDDER [1954] 2 All ER 801

Facts: The appellant, who was sexually impotent, attempted to have

sexual intercourse with a prostitute who jeered at him and hit him and
kicked him. He then stabbed her and killed her. He was indicted for
murder and pleaded provocation. At his trial he was convicted of
murder.

Procedural History: He appealed to the Criminal Court of Appeal and

his appeal being dismissed he appealed to the House of Lords.

Issue: Whether or not in taking into consideration the effect of an

alleged provocation on the mind of a reasonable man it was necessary to
consider the physical peculiarities of the accused.

Held, dismissing the appeal: The test to be applied in determining

whether there had been provocation sufficient to reduce the homicide
from murder to manslaughter was that of the effect of the alleged
provocation on the mind of a reasonable man; and in applying this test
the hypothetical reasonable man did not have to be invested notionally
with the physical peculiarities of the accused.

Reasoning: It was the court’s determination that the reasonable person,

is the person to be considered when the effect of any acts, words, or
conduct might have to justify the response there to, so that an unusually
excite or pugnacious individual, or a drunken one or a man who is
sexually impotent is not entitled to rely on provocation which would not
have led the ordinary person to have acted in the way in which it was in
fact carried out. There may be infirmity of mind and instability of
character, but if it does not amount to insanity, it is no defense.

Comments: The decision of the court was right in this case. All persons
must always be encouraged to retain their power of self-control. It is no
answer to say that one was extremely angered or offended as a result of
certain personal deficiencies which left one offended at any slight
friction with others. This would leave too much room for an inconsistent
application of the law on provocation. The reasonable person test was
thus appropriately applied.

R V. CHIMA
FACTS:Appellant gave birth to twin female children and killed them
within an hour because it was considered an abomination to have twins
in her town. She was later charged with murder.
PROCEDURE:The case bagan in the High Court of Enugu and was
appealed to the West African Court of Appeal.
ISSUE:Whether the Appellant can be charged with two murders whether
in one or separate counts.
HOLDING:The Court held allowing the Appeal and quashing the
conviction and sentence of the appellant.
REASONING:“The provisions of sections 151 to 180 of the Criminal
Procedure Ordinance, CAP 20, shall apply mutatis mutandis to Counts of
an information save that no other charge shall be joined with a charge
punishable with death and not More than one charge punishable with
death shall be charged in the same information”.
COMMENT:The decision of the Appeal Court was scrupulous.
 KUO-DEN ALIAS SOBTI AND OTHERS v. THE REPUBLIC
Facts: N, a Fulani shepherd, left his village in the morning to graze his
cattle. When the cattle came back in the evening without him, his brother
reported the incident to his village chief who informed him that
some Dagartis had chased a Fulani man in the bush. On hearing this, N.’s
brother went to see the Dagartichief at Sugo, a village in Northern Ghana,
who confirmed the story of the chase and invited the three appellants
whom he had learnt had earlier that day chased the Fulani man. The
appellants confirmed the story but indicated that the Fulani man had ran
away with his cattle. It was later confirmed that they had killed him.

Procedure: The case started at the Bolgatanga High Court where the
appellants were charged with murder. They appealed and the case was
brought before the court of Appeal.

Issues
1. Whether or not the majority of the jurors had a deeper and greater
significance and that if the jurors had been properly directed their
verdict would have been different

2. Whether or not evidence on the real cause of death was not given by
the doctor who conducted the post-mortem but by the investigating
police officer

3. Whether or not the trial judge had misdirected the jury by “not
telling them that they could find the action of N.

Holdings:
1. The test to be followed was not that of seeking to assess what
another jury could have done if properly directed or if it had heard a
revised version of the evidence. The appellate court must assume a
reasonable jury and must then consider whether such a reasonable
 jury hearing the evidence could if properly directed have failed to
convict.

2. Failure to prove the cause of death was not necessarily fatal to

conviction where, as in the instant case, there was sufficient
evidence aliunde. On the facts, there was no doubt that N. was dead
and that there was a cut on his forehead and another cut on the
chest.

3. Whether or not It was evident from the list of matters that could
amount to provocation under section 53 of the Criminal Code, 1960
(Act 29) that stealing had never been a matter which the law
envisaged could amount to provocation.
Reasoning: Stealing is not regarded under acts which could be under
Provocation. Since it has not been classified under Section 53 of the
Criminal Code 1960 because the law has not seen it as acts which could
be ruled under Provocation.
Comments: Stealing has never been an issue which has been under
deliberations when it comes to matter relating to Provocation.