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JELR 81181 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]




In this case the appellant was charged with another man, named Emmanuel Kodjo, in the Supreme Court at Accra with murder contra section 221 of the Criminal Code. The particulars given being:- “Emmanuel Kodjo and Joseph Afolabi Lagos on the “24th day of November, 1940, at Wli Ahoe Todzi Road in “the Ho District in the Eastern Province murdered Haruna “Moshie.” The trial was held with a jury and resulted in the acquittal of Emmanuel Kodjo and the conviction of the appellant. It is against that conviction that the present appeal is brought.

Shortly the facts relied upon by the prosecution were that the appellant was engaged in smuggling cigarette from French Togoland; that Emmanuel Kodjo and another man named Nicholas Kwaku were engaged to carry the smuggled cigarettes; that the three of them had reached WIi Ahoe in the Ho District with the two carriers each carrying a load of smuggled cigarettes when they fell in with a patrol of the Preventive Service, consisting of the deceased man Haruna Moshie and Corporal Adjebi Kanjarga; that they attacked the two preventive men and the appellant killed Haruna Moshie, whilst Adjebi Kanjarga was seriously wounded. Nicholas Kwaku was not charged along with the appellant and Emmanuel Kodjo but was called by the Crown as a witness for the prosecution. Both the appellant and Emmanuel Kodjo gave evidence at their trial.

The evidence of Nicholas Kwaku was that it was the appellant who killed Haruna Moshie, and Emmanuel Kodjo said the same. The appellant’s story was that he was not present with the other two when the fracas with the preventive men took place, having gone by another road and arrived at his destination (the house of one Amedu Lagos at Fodome) in the afternoon before the murder took place.

In these circumstances we think that the learned trial Judge was right to treat both Nicholas Kwaku and Emmanuel Kodjo as accomplices and to instruct the jury that corroboration of their story must be looked for. He put to the jury five matters which might be treated as corroboration, viz:-

(a) The appellant’s silence on a particular occasion, (b) a point “stressed by the Crown that second accused would “be very unlikely to allow goods which had cost a “considerable amount of money to a man in his position, “and promised a considerable profit if safely brought to “their destination, to be carried by two carriers, one of “whom was previously unknown to him, and the other “only slightly known to him without his accompanying “them “ (c) the allegation of the Crown that the appellant’s alibi was false,

(d) a desire on the part of the appellant to avoid publicity when he reached Fodome,

(e) the sedulous way in which he is alleged to have spread the story of his carriers having killed the police man, it being suggested that he did this to prepare his defence, if arrested.

Of these by far the most important is (a) and it forms the subject of the only ground of appeal with which we shall find it necessary to deal.

In summing up to the jury the learned trial Judge said this: -

“It is alleged by the Crown that when 2nd accused was taken to “the spots where the knife and rifle were found, and to the place “where the body of the police man was found, and 1st accused said

“the knife was that used by 2nd accused and that the rifle was that “thrown away by 2nd accused, 2nd accused said nothing in reply, “although asked if he had anything to say. This was before his formal “arrest, and provides some corroboration of the story of the 1st Lagos “accused”-

The ground of appeal in regard to this is as follows: “Misdirection- “1.-As TO CORROBORATION-

“The learned trial Judge told the Jury that the fact that the “2nd accused did not deny the allegations made against him by the 1st “accused when the police took them to the locus in quo was some “corroboration (p. 72). The trial Judge did not tell the Jury, however, “that 2nd accused was silent all through the journey (p. 34) although “he had previously told several persons that he had not accompanied “the carriers and that he was only told of the murder by 1st accused “at Fodome. (Vide Amadu Lagos p. 17) (Tafo Lagos pp. 21, 22) and “that 2nd accused made his statement to the police (immediately after “their return from the locus in quo)”.

It is necessary to set out in detail the evidence given as to the incident in question. Sergeant Kankam of the Criminal Investigation Department at Koforidua gave the following evidence in regard to it:-

“On the 8th December, 1940, I received information that first “accused wanted to tell me something. I told Constable Kuma “to warn first accused that he need not tell me anything. Constable “Kuma told him this in Ewe language. In consequence of what first “accused told me, I chartered a lorry, and took both first and second “accused to Gbi Wegbe. Constable Kuma and Amegashie also went “with us. The lorry was No. A.C. 1440 and was driven by Kwami “Asare (identified by witness). When we got to Wegbe village, first “accused asked the driver to stop the lorry. The first accused “took us to a certain cocoa farm. All of us including second “accused followed first accused to the farm. Near to a banana plant, “first accused pointed out a knife in a sheath. It was hidden in the “banana plant. It appeared to have been actually placed there. “see it how in Court. It is No.5 for identification. Second accused “was present when this was done. I took possession of No.5 for “identification. First accused, in the presence and hearing of second “accused, said it belonged to second accused, and was the knife with “which second accused had killed the Preventive Officer. First accused “also said he had taken the knife from first accused, and used it on “Corporal Adjebi Kanjarga. This was said in Ewe language and “interpreted to me by Constable Kuma. I asked Corporal Kuma to “ask second accused whether the statement made by first accused was “correct or not. Constable Kuma did so, but second accused did not “reply. First accused then asked us to follow him to the Aho-Wli- Todji Road. We all went in the lorry. First accused took us to a “certain bush road. He said it was in that direction second accused “had thrown a rifle which he had taken from the deceased constable. “Second accused was present, and heard what first accused said. First “accused went a few yards into the bush, and pointed out to us a “broken rifle. Second accused saw the rifle. I asked Constable Kuma

“to ask second accused in Ewe if it was true that he (the second “accused) threw the rifle there. Constable Kuma did so but second “accused made no reply. I took possession of the rifle. I see it now “in Court. It is No.4 for identification. Second accused did not say “anything throughout the whole journey. I took the rifle and showed “it to the Collector in charge of the Preventive Station at Darfu. I “later handed Nos. 4 and 5 for identification to Constable Kuma. “Later on the 8th December, 1940, I instructed Constable Kuma to “charge first and second accused with the offence of murder.” and in cross-examination-

“Second accused was cautioned by Constable Kuma just before his “statement was taken. It was taken after the visit to the places where “the knife and rifle were found. The place where the rifle was found “was about twelve miles from the cocoa farm where the knife was “found.”

It may be noted parenthetically that those parts of Sergeant Kankam’s evidence which consist of what Constable Kuma interpreted to him are not admissible but there is ample evidence to the said effect by the two witnesses Kwame Asare and Kuma both of whom understood the language spoken. This point is therefore in this case only of academic importance.

Kwame Asare the lorry driver gave the following evidence:- “I drove Sergeant Kankam and Constable Kuma and another “policeman, and the first and second accused from Hohoe to Fodome “and Obi Wegbe. We stopped at Obi Wegbe. First accused led us into “the bush. We found a knife there. It was shown to us by first accused. “The knife. was in a sheath. It was found hidden in a banana plant. “see the knife and sheath now in Court. It is No.5 for identification. “First accused went straight to the place where it was found. First “accused said the knife belonged to second accused. He said this in “Ewe. Second accused heard what was said. Constable Kuma asked “second accused if what first accused said was true. Second accused “made no reply. Constable Kuma said to first and second accused, “Is this the knife by which you killed the man? ' First accused said “Yes.’ Second accused made no reply. First accused said second “accused took the knife and killed the man. Second accused could hear “first accused say that. Constable Kuma asked second accused if it was “true. Second accused made no reply. First accused said that after “second accused had killed the man, first accused took the knife from “him and struck the other man. Constable Kuma asked first accused “where the gun was. We then went near Wli in the lorry. We got “out, and first accused led us up a path. First accused showed us a “place where he said second accused had thrown the rifle. First accused “found the rifle. Second accused could hear what first accused said. “Constable Kuma asked second accused if what first accused said was “true. Second accused made no reply. It was a broken rifle. It is No.4 “for identification which I now see “, and in cross-examination- “Constable Kuma said to second accused Why don’t you want to “make a reply? “

Police Constable Kuma stated: - “On the 7th December, 1940, we proceeded to Wegbe for enquiries, “Also to Alavanyo and Fodome Helu. We took the first and second “accused in charge and brought them to Hohoe Police Station for “enquiries. On the 8th December, 1940, first accused approached me, “and said he wanted to see Sergeant Kankam. I took him to Sergeant “Kankam. He said he wanted to tell us something. I told him he “was not charged, and it was not necessary for him to say anything, “but if he desired to say anything we would hear him. I spoke to him “in Ewe. Sergeant Kankam does not understand Ewe, so I interpreted “what was said to Sergeant Kankam in English. First accused said “he would take us to the place where second accused had hidden the “knife, and where he had thrown away the rifle. Second accused was “present when this was said. We got a lorry and driver. It was the “lorry of Kwami Asare. The two accused, and Sergeant Kankam, “Constable Amegashie and myself went in the lorry. We did not know “where we were going when we left Hohoe. First accused was to take “us to the place. At Wegbe first accused told the driver to stop. We “got down and first accused led us along a bush path about four miles “from the road. We came to a cocoa farm belonging to one Johnson “Ameko. There was a group of banana plants, and first accused pointed “out to us a knife in a sheath hidden amongst them. First accused “led us the way to the farm and the banana plants. All the occupants “of the lorry including the driver followed. First accused went straight “to the place where he found the knife. The knife appeared to have “been actually hidden in the place where we found it. We were all “present when first accused pointed out the knife to us. First accused “said, 'This is the knife used by Joseph Afolabi Lagos in killing the “policeman. He said this in Ewe. I interpreted this into English “ to Sergeant Kankam. I said to second accused in Ewe, ‘Emman “says you used this knife in killing the policeman, what have you to “say?’ Second accused made no reply. First accused said that he “also used the same knife in wounding the second policeman. I took “possession of the knife. I had it in my custody until I produced it in “the Court below. It is No.5 for identification. (Tendered, put in, “and marked Exhibit ‘ D’.) We all left the farm, and boarded the “lorry again. First accused led us to Aho, which is about thirteen or “fourteen miles from the farm we had just visited. We all came down “off the lorry, and first accused took us along a bush path. It was “about half a mile from the town. We walked about eight or nine “yards from the road. First accused led us. We came to a big tree. “First accused said to me, The second accused stood here when he “ threw the rifle into the bush. Second accused heard him say this. “It was said in Ewe. Second accused made no remark. First accused “showed us the direction in which the rifle had been thrown. We found “the rifle about three yards from the tree. First accused went straight “to the place. The rifle appeared to have been thrown to the place “where we found it. First accused said, It is the rifle Afolabi Lagos “took from the policeman whom he killed. The butt of the rifle was “missing. I said in Ewe to second accused, ‘Emman says that you “threw the rifle into the bush, have you any thing to say to that? “Second accused said nothing at all. I took possession of the rifle. I “see it now in Court. It is No.4 for identification. I have had it in

“my custody until I produced it in the Court below. (Tendered, put “in, and marked Exhibit ‘E.’) It is a rifle used by Preventive “Constables. We all came back to the lorry, and returned to Hohoe. “Second accused never said anything at all throughout all the journey. “The gun is Nod 9322. When we got to Hohoe, I received instructions “to charge each of the accused with the murder of Haruna Moshie, and “with causing wounds to Corporal Kanjarga. This was on the 8th “December, 1940. I read the charges to them in Ewe. I told them in “Ewe that they need not say anything in answer to the charge, but “that if they did it would be taken down in writing and might be used “in evidence. I cautioned them separately. First accused volunteered “a statement. Second accused was present when first accused gave his “statement. He heard the statement first accused made. * * * “Second accused also said he wished to give a statement. “cautioned him. I have already said what my caution was. I made no “ promise to induce him to make it, nor did I make any threats of “violence, He made his statement in Ewe, and I took it down in “writing.”

In his statement, Exhibit “F” , the first accused said:- “To-day I took police to Wegbe-Fodome bush path and I pointed “out the knife in the banana grove to the police who took possession of “same. From there I took the police to Aho-WIi Todji road where I “pointed out the rifle to them in the bush and they took possession of “that also. We again proceeded to the spot and I pointed out where “the deceased and the wounded policeman laid to the police. We then “returned to Hohoe and my statement obtained.” But in his evidence at the trial he stated:- “On the 8th December, 1940, I had no talk with Constable Kuma. “He was not telling the truth when Constable Kuma said that I asked “him to take me to Sergeant Kankam as I had something I wanted to “say to him. Exhibit ‘D’ was shown to me at Hohoe Police Station. “I had seen it before with second accused. Second accused had it when “we went to Palime. I do not remember going with the police to a “certain place in a lorry driven by one Kwame Asare. The police put “ me on a lorry to Dafo. Constable Kuma, two escort policemen, “Constable Amegashie went with me. I do not know who the driver “of the lorry was. When we got to Dafo I was taken off the lorry, “ and beaten severely. Constable Kuma said I should speak the truth. “I was then put on the lorry, and taken back to Hohoe. I did not “ make any statement to the police. They told -me that if I did not “ want to make a statement they would not force me. I heard the state- “ment which has been read in Court. It was not I who made that “statement”, and in cross-examination:- “I first saw Exhibit ‘E’ in a lorry when we were taken by the “police to Dafo. I saw the gun in tae lorry when we were being taken “to Dafo. I did not see Exhibit ‘D’ on the lorry when we were being ; “taken to Dafo. Kwame Asare ‘ may have been’ the driver of the “lorry. I don’t know why we were taken to Dafo, We did not stop “on the road to Dafo. What Sergeant Kankam, Constable Kuma and

*Page 129 “Kwame Asare have said is untrue. I did not hear second accused say “in the Court below that we were taken to the farm where the knife “and sheath were found. I was never asked anything about the gun. “I did not tell the police that anybody threw the gun into the bush. “I have not told anybody anything about the case since I was arrested.

“I did not tell the police it was second accused who threw the gun “into the bush.” In his statement Exhibit “H” the appellant said:- “To-day police took myself and Emman to a bush path between “Wegbe and Fodome where Emman handed over the knife to police. “This he kept in a banana grove. From there (Emman) we came to “Fodome Aho. Plice asked Emman to take (us) them to where the “rifle had been kept. He took us all and the police to the road on Wli “Todji Aho road and pointed the rifle which had been broken to police.” And in his evidence at the trial:- “I was taken to Hohoe. I look at Exhibit ‘D’. It does not belong “to me. I first saw it when first accused took the police and me to a “banana grove, and pointed it out to them, and said it was min. “First accused led us there. I told the police that the knife did not “belong to me. They began to beat me and shout out Shut up! Shut “up! First accused again asked the police to follow him. We went “on the lorry from Fodome to a town. When we got on the road there “first accused asked the police to stop the lorry. We descended from “the lorry and took a bush path. First accused led us. He told the “police I had thrown a gun into the bush there. I said I had never “taken that path before. The police again flogged me, and told me to “shut up! The police found a gun. It is the gun I now see in “Court. It is Exhibit ‘E.’ It was brought out of the bush by “Constable Kuma. I never threw Exhibit ‘E ‘ into the bush, I have “never been in that place, before the police took me there .Later on “I made a statement to the police “, and in cross-examination:- “I was present at Hohoe when the police asked first accused about “ a certain gun.

“The police asked first accused about the gun, not both of us. I “ was not asked anything about it, I do not know what gun the police “were asking about. First accused did not say at Hohoe Police Station “that I had thrown the gun away. and he would take them to the “place where I had done this.” As to all this evidence four questions arise. They are:- (1) Was the action of the police in taking the appellant to Fodome and Obi Wegbe and putting questions to him there proper? (2) Was the evidence as to what happened on that occasion properly admitted?

(3) Can the alleged silence of the appellant on that occasion amount to corroboration of the evidence of Nicholas Kwaku and Emmanuel Kodjo

(4) Was the jury properly directed upon this evidence and upon the question of whether or not it would amount to corroboration?

As to (1). The practice of taking an accused person to the locus in quo and there putting questions to him was considered by this Court in two cases which came before it in 1935 and the Court made some severe criticism. In the case of Rex v. Ajege and Kigbo (2 W,A.C.A. 353) Yates, Acting C.J. of the Gold Coast in delivering the judgment of the Court said:-

“Moreover the prisoner Ajege subsequent to his arrest upon a charge “of murder, was taken to the lucus in quo by the Chief and the District “Officer in the hopes of obtaining an admission from him-this was “entirely wrong and contrary to every principle of British justice “, and in the case of. Re x. v. Bodom and Others (2 W.A.C,A. 390) Yates, Acting C.J., Gold Coast in delivering the judgment of the Court said:-

“During the course of the trial it transpired that after the “prisoners had been arrested by the police, they were cautioned and “taken to the locus in for the purpose of obtaining admissions from “them-that admissions were made and were given in evidence against “the accused. This course of action by the police which is contrary to “every principle of British justice cannot be too strongly deprecated. “Their plain duty after making the arrest, was to take the accused to “the Police Station and detain them there until the trial, and it is “little short of scandalous that prisoners should be taking to the scene “of a crime in order that evidence should be obtained against them- “this evidence is clearly inadmissible”.

The present case is rather different from the two from which the above quotations are taken. In a sense the police were on the horns of a dilemma when the first accused (according to the evidence of Police Constable Kuma) volunteered to take them “to the place where second accused had hidden the knife, and where “he had thrown away the rifle.” If they took the appellant with them they were laying themselves open to the kind of criticism leveled at them in the 1935 cases; if they left him behind he would certainly have a reasonable complaint that he was not given an opportunity to see and hear what the first accused did and said on the spot and of refuting there and then any accusation made against him. In view of this we consider that, in the present case, the police action in taking the appellant along with them is not open to criticism. If he had already been charged, the putting to him of the questions which were put, would have been contrary to the spirit, if not the letter, of No.8 of the “Judges Rules” (See Archbold, 30th Edition page 399). But he had not at the time been charged, nor apparently did the police make up their minds to charge him until after the return of the expedition.

Nevertheless the principle that nothing should be said or done at the locus in quo for the purpose of obtaining an admission held good, and if the evidence of Kwame Asare “Constable Kuma said “to second accused ‘Why don’t you want to make a reply?” is true we regard that as improper pressure on the part of the constable, Counsel for the appellant asked us to hold that all the evidence as to this incident was inadmissible as against the and appellant, but we do not agree and the answer which we give to question (2) is that, in our opinion, the evidence was properly admitted.

As to question (3) we hold that the silence of the appellant might amount to corroboration, and that the question of whether or not it did, was one to be left to the jury under proper direction. And that brings us to question (4): Was the jury properly directed? Now although it is recognised that in certain circumstances, silence when a reply might be expected, can be construed as an admission (Rex v. Feingenba L.R. 1919 K.B. 1431), it is also recognised that such cases must be treated with the utmost caution, and where the prosecution rely upon silence as corroborative evidence, the jury must be fully and accurately directed on the matter. They must be instructed that the mete facts that a statement incriminating him is made in a person’ presence and that he does not deny it are not of themselves sufficient to damnify him. The rule of law is stated by Lord Atkinson in Rex v. Christie (L.R. 1914 A.C. p. 645 at p. 554);-

“The rule of law undoubtedly is that a statement made “in the presence of an accused person, even upon an occasion “which should be expected reasonably to call for some “explanation or denial from him, is not evidence against him “of the fact stated save so far as he accepts the statement, “so as to make it, in effect, his own. If he accepts the statement in part only, then to that extent alone does it become “his statement. He may accept the statement by word or “conduct, action, or demeanour, and it is the function of the “jury which tries the case to determine whether his words, “action, conduct, or demeanour at the time when a statement “was made amounts to an acceptance of it in whole or in “part,”

In the present case the jury should have been instructed in regard to this incident that the first thing they must do is to decide whether or not it took place at all, the first accused having denied it, but in view of the appellant’s evidence, they would presumably have no doubt that it did. Then they must decide whether they will accept the prosecution version of the appellant’s silence or his own version of denial. Assuming that they accepted the prosecution story that the appellant said nothing when asked both in regard to the knife and the rifle, It was essential that they should then be instructed that the question they had to consider was whether by his silence the appellant was accepting the first accused’s allegations as true. If he was, his silence could be treated as corroboration; if he was not, it was no corroboration. The learned trial Judge failed to give the jury this all-important directions. He very properly reminded them that the appellant denied silence, but on the question of corroboration the only reference is when he set out the Crown case already quoted “Second accused said nothing in reply though asked if he had “anything to say. This was before his formal arrest, and provides “some corroboration of the story of first accused.” The jury must almost certainly have been left with the impression that the mere fact of the appellant’s silence provided the necessary corroboration. This, as has already been pointed out, is an erroneous conception of the law, and the Judge’s failure to direct the jury adequately and correctly upon this point amounts, in our opinion, to misdirection upon a vital point.

There are certain aspects of the case which definitely suggest that by his silence the appellant was not intending to accept the first accused’s statements as true. For instance the evidence that he kept silent throughout the journey might be taken to indicate that his silence was due to an obstinate determination to take no part in the proceedings and had no other significance. This is a point which should have been put to the jury and left for their consideration. We are quite unable to say that if the jury had been correctly directed upon this question of corroboration by silence, they would inevitably have come to the same conclusion as they did; on the contrary we think their verdict might well have been different upon a proper direction. The appeal is therefore allowed, the conviction and sentence are quashed, and it is directed that a judgment and verdict of acquittal be entered. The Appellant is discharged.

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