KWABENA YEBOAH V. THE QUEEN

 Coussey, J.A. This appeal is brought against the conviction of the appellant for the murder of one Kwame Appiah at the Ashanti Criminal Assizes before a Judge sitting with three assessors on the 22nd December, 1953.

Some time prior to the incident that will be referred to, Nana Kwesi Ayensu, Chief of Wamfi, was also Krontihene of Dormaa, but he had been deposed from the latter position and Nana Yeboah of Wamanefo, a neighbouring village, claimed to have been elected Krontihene in his stead.

On the 11th October, 1952, Nana Yeboah, the new Krontihene, with from 100 to 150 Wamanefo supporters, one of whom was the deceased man, Kwame Appiah, entered Wamfi village in the morning. According to the second, third and fourth prosecution witnesses, all Wamanefo men, it was a peaceful mission to greet and thank the supporters of the new Krontihene resident in Wamfi.

According to the police witnesses, however, these men were armed with cutlasses or machetes and sticks. It appears from the evidence that the real purpose of their appearance at Wamfiwas to instal the new Krontihene there and to forcibly overcome any resistance by the Wamfis to their plan. The Chief of Wamfi and his men turned out to oppose them. A riot ensued in the course of which shots were fired and some men were killed and some wounded.

The prosecution witnesses maintain that the accused and others came out of the Ahenfie, the official residence of the Wamfi Chief, that the accused detached himself from others of his party, and passing through a side lane, took up a position of advantage near the Wamanefo people and there deliberately fired at, and killed the deceased at close range.

The appellant's defence was that he did not fire the shot at all and that throughout the disturbance he was seated in his house with other members of his household. This was rejected by the trial Judge. There is evidence, which ,he believed, that the fatal shot was fired by the accused.

This Court, however, intimated early in the argument of learned counsel for “the appellant, that having regard to the ample evidence on the record regarding the confused and difficult conditions prevailing at the time, as to which the Wamanefo witnesses appeared deliberately reticent and untruthful, the appellant in the belief that the Wamfis might be overwhelmed may well have lost his self- control and used a weapon in excess of the kind reasonably necessary to repel ;an attack upon his chief and himself by the Wamanefos including the deceased who were the aggressors and that the evidence, although unsatisfactory to support a conviction for murder, would have justified the trial Court in finding the appellant guilty of manslaughter.

But the appellant’s counsel has made several submissions to claim the appellant’s acquittal of any charge. Taking those submissions in their logical order, it is submitted that the information charging the appellant with murder was not properly preferred in that he was committed with other persons for trial for misdemeanours and not for murder, that there was insufficient evidence at the preliminary enquiry to support an information for murder and that the appellant was thereby prejudiced.

Arising out of the evidence at the preliminary investigation in the case, three separate information for murder were filed against three distinct persons in respect of three deaths. One of those persons was the appellant. It is clear to us that the information against his was founded on evidence sufficiently disclosed in the preliminary investigation to found the charge as provided for by section. 192A of the Criminal Procedure Code (Cap. 10).

Although the course adopted in this case may be unusual, it was one open to the prosecution and we do not think that the appellant was in fact prejudiced thereby.

After arraignment and plea the trial of the appellant was adjourned from one Criminal Assizes to the next Criminal Assizes. In ordering the adjournment, the Court did not record the cause thereof. This omission it is submitted is such a non-compliance with sections 199 and 240 of the Criminal Procedure Code (Cap. 10) as to render the trial a nullity in that the Court lacked jurisdiction at the next Assizes to try the appellant.

It is only section 240 which provides for the recording of the reasons thus:-

If, from the absence of witnesses or any other reasonable cause to be recorded in the proceedings, the Court considers it necessary or advisable to postpone the commencement of or to adjourn any trial, the Court may from time to time postpone or adjourn.”

This omission did not, in our opinion, affect the jurisdiction of the Court by which the appellant was tried nor vitiate the trial.

If adjournments for no recorded reasons had unduly protracted the trial or prejudiced the appellant in presenting his defence the Court would, no doubt, have taken those matters into consideration. No material factor operating against the appellant as a result of the failure of the Court to record its reason has been suggested to this Court and we are satisfied that it has not caused a failure of justice.

It is further submitted that all material matters affecting the issue of guilt or non-guilt of the appellant were not brought by the prosecution to the knowledge of the Court. In particular it is said that one Kwasi Tuah had, to the knowledge of the prosecutor, confessed in writing to the murder with which the appellant was charged and that it was the duty of the prosecution to give this confession in evidence and to call Kwasi Tuah as a witness.

It is also said that some witnesses at the preliminary investigation, whose names appear as witnesses for the prosecution endorsed on the information and whose evidence conflicted with other prosecution witnesses, were called by the prosecution at the trial or offered for cross-examination by the defence.

As to the first point, it is undoubtedly the duty of a prosecutor, s far as is reasonable and possible, to call all witnesses who are present at the omissions of a crime and who can give material information, the only legitimate ate object being not to secure a conviction, but to see to it that justice be done. But a prosecutor is relieved from calling such witness if he has a reasonable belief that the witness would not speak the truth and that his statement is untrue. Here, the Director of Public Prosecutions has explained that Kwasi Tuah's was a. voluntary confession to all the three killings which confession did not accord with the other facts known and proved, that the motive for the so-called confession would appear to have been a desire to exculpate the appellant, that it was untrue and that it was later retracted by Tuah. He states also that counsel for the appellant was aware of the so-called confession.

Accepting this statement of the Public Prosecutor, as we do, in our opinion there was no obligation on the Prosecutor in these circumstances to offer Kwasi Tuah as a witness nor to tender his statement in evidence.

As to the second point, evidence at the preliminary investigation related to the killing of three persons. Twenty-two witnesses gave evidence before the committing Magistrate, some testifying to one incident and some to another, each incident being isolated from the others in the general fracas.

The names of all twenty-two witnesses appeared at the back of each of the three information. In the case of the appellant only those witnesses who could give evidence relevant to the charge against him were called by the prosecution, From the standpoint of the prosecution no purpose would have been served by offering the evidence of the remaining witnesses on the back of the information and who would testify in one or other of the other charges of murder to be separately tried against persons other than the appellant.

In these circumstances it does not appear to us that in strictness it was necessary to call those witnesses although the prosecution might have offered them for the appellant to cross-examine but omitted to do so. On the other hand the defendant was represented at the trial by counsel and it does not appear from the record that he applied to cross-examine any of the witnesses referred to or to have Kwasi Tuah called or his statement adduced in evidence.

In our opinion no inference adverse to the prosecution is to be drawn from the hove. For the reasons given earlier in this judgment we think that the offence amounts to manslaughter only. A verdict of guilty of manslaughter is therefore substituted for the verdict of guilty of murder and in substitution of the sentence of death passed at the trial the appellant is sentenced to eight years’ imprisonment hard labour.

Verdict of manslaughter substituted.