AIDOO v. THE STATE

JUDGMENT OF OLLENNU J.S.C

Ollennu J. delivered the judgment of the court. The appellant who was convicted of the offence of murder by Djabanor J. in the High Court, Kumasi, upon the verdict of a jury, appealed against his conviction on the following grounds:

"1. The judge erred in law in failing to direct the jury as to the admission by Ampoful the independent witness that the accused told the police when the accused's statement was being taken that there had been a struggle in the farm.

2. The judge misdirected the jury in failing to direct them that unanimity did not mean that a juror should abandon his firm belief in the truth of the defence.

3. The judge failed adequately to put the case of the defence.

4. The judge erred in law when he failed to direct the jury that the accused's account of what transpired at the farm was unique and uncontradicted.

5. The non-direction of the judge as to the medical evidence of Dr. Selby as to provocation, indicated by the severity and number of wounds inflicted by the accused is fatal, and has thereby occasioned a miscarriage of justice.

6. Other grounds of appeal particulars of which will be given when the record of proceedings is available."

The crime was committed on the 15th February, 1962. There was no eye-witness and the case for the prosecution depended upon (1) a report made shortly after the incident by the appellant himself to the first prosecution witness, a sister-in-law of the deceased, and also to the police when he was charged and cautioned, and (2) circumstantial evidence.

[p.86]

The facts established by the evidence are as follows: the victim of the crime, one Akosua Krah, was a wife to the appellant by customary law and had been married to him for about three years before her death. About three months before the murder, the appellant complained to the second prosecution witness, a brother to the deceased, that his wife, the said deceased, had persistently refused him sexual intercourse. When called and questioned about this, the deceased, Akosua Krah, explained that she was in an advanced state of pregnancy, and therefore had no strength for the regular daily sexual exercise demanded by her husband, the appellant. Accepting the explanation of the deceased as reasonable, for he could himself see the woman's physical condition, the witness then advised the appellant to sympathise with the deceased and not insist upon having sexual connection with her daily, which advice, the appellant