KWAKU MENSAH Vs. KING

JUDGEMENT

(1.) Their Lordships now give their reasons for the humble advice which they have tendered to His Majesty that this appeal should be allowed and a verdict of manslaughter substituted for that of murder. The appeal was brought by special leave against a judgment of the West African Court of appeal dismissing the appellant's appeal against his conviction for the murder of one Abudv Zabrama before Lane J. and a special jury on 15 May 1943. It appears that in the early morning of 27 November 1942, the deceased man with some of others of his tribe, the Zabrama, arrived at the village of Kajakron, where the appellant lived, carrying bundles of cloth which they were intending to smuggle into French territory. According to the witnesses for the prosecution they reached the village when it was light, either just before or just after daybreak, while according to the defence they arrived in the dark when the villagers were asleep. An alarm was given by someone, and there were cries of "thief" and a fight ensued. The theory of the prosecution was that the villagers attacked the Zabrama with the object of stealing the goods they were carrying. On the other hand, the case for the defence was that the incident started because the tribesmen, or some of them including the deceased, entered the compound of the appellant and tried to break into his home. However the fracas started there seems to be no doubt that in the course of the fight the appellant was stabbed, receiving a wound some four inches long on his hip, and according to his evidence it was inflicted by the deceased. The Zabrama, being outnumbered, made off to the Mohammedan part of the village, the Zongo. The deceased, who was being chased by the appellant among others, entered a house and was followed by some of the villagers, still calling out "thief." The deceased ran out of the house and as he was running away the appellant fired a gun and killed him.

(2.) The appellant and nine others of the villagers were charged with murder, the appellant as a principal in the first degree and the others as abettors. The sole defence set up at the trial on the part of the appellant was that he presented the gun with the object of frightening the decased and inducing him to surrender. The learned Judge in the course of his summing up directed the jury that there were three possible verdicts that they could return, murder, manslaughter and acquittal, and that in his opinion no verdict of manslaughter could be entered unless the jury accepted the appellant's own account as to how he shot the deceased. He further directed them that if they did accept that account the appellant would be guilty at least of manslaughter as pointing a gun at the deceased as he was running away was an unlawful act. The jury found the appellant guilty of murder, but the other nine accused were found by them guilty only of manslaughter. On appeal, the West African Court of appeal dismissed the appeal of the present appellant, holding that though in their opinion there was a misdirection in saying that on the, appellant's own evidence he was at least guilty of manslaughter, a matter with which their Lordships deal hereafter, the jury must have rejected his evidence as was shown by their returning a verdict of murder. With regard to the remaining accused they quashed the conviction on the ground that the jury should have been directed that in their case the only possible verdicts were murder or acquittal. The case of these other nine accused is of course not before their Lordships.

(3.) The first submission on behalf of the appellant was that the Court which heard the appeal was not properly constituted in that Mr. Quashie-Idun, who sat as an acting Judge, had not been properly appointed in accordance with law. The West African Court of appeal is constituted and has its powers conferred by various Orders in Council now consolidated in the West African Court of Appeal Orders, 1928-1935, being No. 11 [XI] of 1935. By S. 2 the expression "Judge" includes any person for the time being performing the duties of such office. By S. 5 reme Courts of the Gold Coast and Nigeria and such other colonies to which the Order is applied, and by S. 9 there must be at least three Judges to form a Court. The Supreme Court of the Gold Coast is constituted by Ordinance 7 [VII] of 1935, which provides for the appointment of a Chief Justice and as many puisne Judges as the Governor may from time to time appoint by letters patent. By S. 9 it is provided that in case of temporary illness or absence of any Judge it shall be lawful for the Governor in his discretion to appoint a fit and proper person to fill the office of such Judge until he shall resume the duties thereof. Now, it appears that the Chief Justice of the Gold Coast had appointed Monday, 16 August 1943, for the hearing of this appeal before a Court of appeal consisting of himself, Fuad and Martindale JJ. but the latter fell ill at the end of the previous week. No other Judge was available to form a Court for various reasons, and so to prevent the expense and inconvenience of a long adjournment, the case was put off till 17 August, and in the meantime the Governor appointed Mr. Quashie-Idun, a District Magistrate, to be an acting Judge of the Supreme Court, the date of his appointment, as appears from the Gazette, being 17 August. On that day therefore he became an acting Judge of the Supreme Court of the Gold Coast.