DENNISLAW [1945]DLWACA1125

2 WACA 11

KWAKU MENSAH
[APPELLANT]

vs.

THE KING

[RESPONDENT]

FROM

THE WEST AFRICAN COURT OF APPEAL.

REASONS FOR REPORT OF THE LORDS OF THE JUDICIAL COMMITTEE

Privy Council Appeal No. 7 of 1945.

Present at the Hearing:

CORAM:

LORD PORTER, LORD GODDARD, SIR JOHN BEAUMONT

[Delivered by LORD GODDARD]

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 Abudu Zabrama before Lane, J., and a special jury on 15th May,
1943. It appears that in the early morning of 27th November, 1942, the deceased
man with some 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, whi1e 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.

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 deceased 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 tha.t 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.

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 of 1935. By sect. 2
 the expression "Judge" includes any person for the time being performing the
duties of such office. By sect. 5the Judges of the Court are the Judges of the
Supreme Courts of the flold Coast and Nigeria and such other colonies to
which the Order is applied, .and by sect. 9 there must he at least 3 Judges to
form a Court. The Supreme Court of the Gold Coast is constituted by Ordinance
No. 7 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 sect. 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 (¾ld Coast had
.appointed Monday, 16th August, 1943, for the hearing oi this appeal before a
Court of Appeal consisting of himself, Fuad and Martindale, J J., 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 17th 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 17th August. On that day therefore he became an acting Judge of the
Supreme Court of the Gold Coast.

In their Lordships' opinion he was a person for the time being performing the
duties of such office, and it was unnecessary that he should first have acted
as a Judge
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