R. v. KONKOMBA & ANOR.

(His lordship stated the facts and proceeded:-)

It was submitted by counsel on behalf of the appellants that having regard to the community to which the appellants belong, seeing respectively their son and nephew wailing in agony amounted to extreme provocation under section 251 of the Criminal Code. The [p.320] only part of that section which falls to be considered upon the facts of this case is sub-sec.4, which reads:

"251. The following matters may amount to extreme provocation to one person to cause the death of another person, namely-

1. A violent assault and battery committed in the view or presence of the accused person upon his or her wife, husband, child, or parent, or upon any other person being in the presence and in the care or charge of the accused person."

This sub-section, which may avail to reduce from murder to manslaughter a homicide committed by a parent or a person in loco parentis upon an assailant of his child or ward, can apply only where the assault and battery were committed "in the view or presence of" the parent accused of the homicide. There is no evidence that the appellants (or either of them) witnessed the act of the shooting of Tordo Konkomba, or were anywhere within the precincts where Tordo was shot, so that they could have seen it done. Seeing the unfortunate Tordo in agony some time after he had been shot cannot relate back to the moment of shooting.

In any case, the incident as related by the appellants themselves expressly shows that the act of killing Basare took place a long time after the shooting. The appellants therefore, could not in law have been still deprived of the power of self-control by provocation; indeed, on their own showing they acted wholly from the preconceived purpose of causing the death of Kwabena Basare, in order to avenge the death of Tordo Konkomba. In the circumstances, then, even if the shooting-the "violent assault or battery" upon Tordo - had been inflicted in the view or presence of the appellants, the provisions of sec.252, sub-sec. I (a), (b) and (c) would apply, and the crime would not be deemed to be thereby reduced to manslaughter.

DECISION

It was for the reasons given above that we dismissed the appeal.