ODURO v.

THE STATE
[1967] GLR 36

Division: COURT OF APPEAL

Date: 3 FEBRUARY 1967
Before: OLLENNU, AZU CRABBE AND LASSEY JJ.A.

Criminal law and procedure—Defence—Provocation—Ingredients—Whether abusive or insulting words

alone constitute provocation—Criminal Code, 1960 (Act 29), ss. 53 and 54.

Criminal law and procedure—Jury trial—Directions—Reasonable doubt—Whether form of direction

more important than its substance.

HEADNOTES
During an altercation between one O. and his wife, she allegedly abused him and slapped him on the face.
O. then stabbed her to death with a knife. Following a conviction for murder, O. appealed on the grounds
that (1) the trial judge wrongly directed the jury on the law of provocation in that his direction only dealt
with the slap on the face and it did not deal with the accompanying abuse and (2) even if O.’s story did
not convince the jury as to its truth, they might nevertheless consider whether it was reasonably probable
in the particular circumstances.
Held, dismissing the appeal:
(1) abusive or insulting words alone could never constitute sufficient provocation as to reduce the
crime of murder to manslaughter. R. v. Atta [1959] G.L.R. 337, C.A. applied.
(2) It was not the form in which the direction was given to the jury with respect to reasonable doubt
that mattered, rather it was whether the summing-up in substance was sufficient. R. v. Abisa
Grunshie (1955) 1 W.A.L.R. 36, W.A.C.A. explained.

CASES REFERRED TO
(1) R. v. Atta [1959] G.L.R. 337, C.A.
(2) R. v. Wunuah (1957) 3 W.A.L.R. 303, C.A.
(3) R. v. Abisa Grunshie (1955) 1 W.A.L.R. 36, W.A.C.A.
(4) Mensah v. R. (1945) 11 W.A.C.A. 2; [1946] A.C. 83; 174 L.T. 96; 62 T.L.R. 83, P.C.
(5) State v. Afenuvor [1961] 1 G.L.R. (Pt. II) 655, S.C.

NATURE OF PROCEEDINGS
APPEAL from a conviction of murder at the Kumasi Criminal Session. The facts are fully set out in the
judgment of Lassey J.A.

COUNSEL
T. K. Agbesi (with him Akiwumi) for the appellant.
K. A. Sekyi, Senior State Attorney, for the respondent.

JUDGMENT OF LASSEY J.A.

Lassey J.A. delivered the judgment of the court. The appellant was on 12 November 1965 convicted at
the Kumasi Criminal Session of

[p.37] of [1967] GLR 36

the murder of Akosua Kraa, his wife. He has appealed to this court on the substantial ground of
misdirection by non-direction, contending that the learned trial judge had wrongly directed the jury upon
the law of provocation by failing to tell them the effect which the insulting words of abuse alleged to have
been uttered by the deceased and accompanying the slap which she gave the appellant was likely to have
had on the appellant, and that had they been rightly directed, they might have found him guilty, not of
murder, but of manslaughter only.
The case itself concerns one of the near-domestic disputes which often happen between husband and
wife’ who live in the rural or farming areas in this country; the relevant facts so far as they bear on the
question of provocation may be briefly stated. On or about 18 July 1965 the appellant, who was the
deceased’s husband and residing at another village, proceeded to see the deceased at Jachic village where
she also lived. There the appellant demanded from her payment of a sum of money which he said he had
saved with the deceased. The deceased did not dispute liability for the debt but pleaded for time to find
the amount to give to the appellant, as she was not in funds at that time. The appellant appeared not to
have been favourably disposed to granting the deceased’s request for extension of time within which to
find the money which the appellant demanded. The deceased further appealed to the appellant to exercise
more patience as she had planned to go and raiser a loan with which to pay the debt. It was said the
appellant became annoyed at this, and while the deceased was about to leave the house, apparently to go
and find the money which the appellant wanted, she was suddenly set upon by the appellant who stabbed
her to death with a knife which he had with him and which was hidden in a sheath. According to
eyewitnesses’ account, the appellant unsheathed the knife from its cover and struck the deceased with it
three times. The deceased died at the hospital shortly afterwards.
The appellant did not deny killing the deceased, but said he did so because he was provoked as a result of
abuse and a slap which she gave him on the face. He explained that on account of some misunderstanding
which arose between him and the deceased previously, the deceased had intimated that she would no
longer wish to be married to him. Consequently, the appellant said he went to the house of the deceased in
Jachie village on the day of the incident in order to demand from her a refund of a total sum of about
£G59 10s. and in the ensuing altercation between them over payment of the debt the deceased slapped
him on the face after abusing him. It was in those circumstances that the appellant pleaded that he had
been provoked to such an extent by the deceased that his crime should be

[p.38] of [1967] GLR 36

reduced from murder to manslaughter, and the question is whether the learned trial judge sufficiently
directed the jury upon this issue as the law demanded.
On the issue of provocation raised on the evidence by the appellant, the learned trial judge after reading
and explaining to the jury the provisions of section 53 of the Criminal Code, 1960 (Act 29), which deals
with matters relating to provocation in our law, told the jury:
 “You have to consider also whether there was extreme provocation, and here you will be guided by section
53. When the accused was slapped was it with such violence that he was deprived of his self-control? This
means that did the slap, annoy him to lose his senses or so infuriates him that he took the knife and stabbed
the deceased? If you believe his story that he was deprived of his self-control and he, inflicted harm on the
deceased, then reduce the crime from murder to manslaughter. Extreme provocation: it must have gone
beyond the limits of human endurance. You have seen the demonstrations of the accused. You have to
consider the accused’s story. You have to consider all the demonstrations he made to you in court. That is if
you believe the accused’s story taking into account his evidence and demonstrations then you can reduce the
murder to manslaughter.”

After dealing with some other aspects of the evidence relating to the essential ingredients which constitute
the offence of murder,, the trial judge concluded his summing-up to the jury on the issue of provocation
as follows:
“If in considering the case you find there is evidence of extreme provocation and you believe the accused’s
version of extreme of provocation then you can find him guilty of manslaughter if having considered the case
of the prosecution and the, defence and you cannot believe the accused’s story of extreme provocation and
there is some doubt in your mind about this you can return a verdict of manslaughter.”

The crux of the present appeal is that the learned trial judge in; his summing-up failed to adequately direct
the jury on the whole aspect of the facts which the appellant alleged constituted extreme provocation. It
has been submitted that throughout his summing-up the trial judge omitted to tell the effect which the
insulting words or abuse, as distinct from the blow or slap on the face, would have had on a person of
ordinary character like the appellant living in the village community where the alleged incident had
occurred. Learned counsel for the appellant complained that as the appellant was also provoked as a result
of the insulting words used against him by his

[p.39] of [1967] GLR 36

wife, it was incumbent upon the trial judge to direct the jury’s mind to the evidence relating to this aspect
of the appellant’s defence. Counsel argued strenuously that if the learned trial judge had so fully and
properly directed the jury, it is difficult to predict what the verdict of the jury might have been on the
particular facts of the case, and that having failed to do so the jury were denied any opportunity of
considering this aspect of the matters which constitute provocation under our law, and that in the net
result a substantial miscarriage of justice had been caused due to the misdirection by non-direction on the
part of the learned trial judge.
Under section 53 (a) of the Criminal Code, 1960, the matter of provocation may be either:
(i) assault and battery which is violent by itself, or
(ii) assault and battery which though not violent by itself, is rendered violent by reason of either
accompanying words or gestures, or accompanying circumstances of insult or aggravation.
It follows that abusive or insulting words by themselves alone however violent can never be matters of
provocation. Applying provisions under our law similar to section 53 (a) of Act 29 it was decided in the
case of B. v. Atta [1959] G.L.R. 337, C.A. that words of abuse and an accompanying slap on the face
would I likely to arise more passion in or deprive of his self-control a husband living in a primitive
community, like the appellant in this case, than in more sophisticated societies. In that case the husband,
Kofi Atta, killed his wife with a cutlass because she had slapped him on the face and continued to abuse
him. At the trial, the judge found that if there was any provocation at all it went no further than words of
abuse, an admission of infidelity and a slap in the face by the deceased, and the man point taken and
argued on appeal was that the learned trial judge, who sat on that case with assessors, misdirected himself
as to the law relating to provocation, the argument of counsel for the appellant being that the learned trial
judge failed to consider the likelihood of a slap in the face being provocative within the meaning of the
particular section of the Criminal Code. Here in this appeal it is submitted that the learned trial judge
failed to direct the jury to consider the likelihood of the insulting words uttered by the deceased to the
appellant accompanying the assault being provocative within the meaning of section 53 (a) of the
Criminal Code, 1960.
It is clearly stated in the Atta case (supra) that under our law words of provocation coupled with such an
act as spitting on or slapping the face of a man by his wife may have the effect of reducing the crime of
murder to manslaughter, but whether using words of abuse or insult not accompanied by any act of
slapping or spitting

[p.40] of [1967] GLR 36

would also have this result has not been clearly established; however the court in the Atta case went
further to say that that would depend upon the effect which such abuse or insulting words would be
expected to have upon a husband, having regard to his ordinary character and station in life.
It would appear from the tenor of counsel’s argument that the crux of this appeal is whether insulting
words or abuse alone can ever constitute sufficient provocation under section 53 (a) of the Criminal Code,
1960, so as to reduce what would otherwise be murder to manslaughter. Counsel’s general submission
here is that insulting words or abuse by themselves alone can amount to extreme provocation, and there
would be a serious misdirection if the trial judge failed to direct the jury sufficiently on the effect of the
evidence relating to such insulting words or abuse.
Having regard to the principle of the law as stated in the case of R. v. Atta (supra) it seems to us that the
correct view of the law is that as a general rule abusive or insulting words alone can never constitute
sufficient provocation as to reduce the crime of murder to manslaughter. As stated in section 53 of the
Criminal Code, 1960, the abusive or insulting words must accompany assault and battery and it is the
combined-effect of the two which may be sufficient provocation. It therefore follows that where insulting
words or abuse accompanying an assault are relied on in extenuation, the duty rests on the judge to
consider whether they are of a violent provocative character, and if he is satisfied that they can reasonably
be so regarded, to direct the jury accordingly, and it is for the jury to decide on the particular facts
whether the provocative conduct relied upon was such as would provoke the accused as an ordinary
person living in his community.
It is quite true that in dealing with what the appellant stated in his evidence as constituting the extreme
provocation he suffered, the trial judge alluded only to the evidence about the slap or assault the appellant
alleged the deceased gave him on the face prior to the killing, but failed or omitted to refer also to the
accompanying insulting words or abuse alleged to have been uttered by the deceased about the appellant.
It is this omission in the summing-up that the appellant is complaining about.
For a proper understanding of the acts which the appellant relied on as constituting matters of extreme
provocation it may be necessary to reproduce portions of his evidence which he gave at the trial in so far
as they bear on the issue of provocation. In his evidence in-chief the appellant stated, inter alia, as
follows:

[p.41] of [1967] GLR 36

“After four months of marriage we quarrelled, because she did not prepare food for me on the day I went to
funeral. She called me a fool. I then slapped her. She then said she would no longer be my wife. Immediately
I got out of the house the deceased came and -got hold of my cloth around my chest. She then slapped me in
 the face. I became infuriated and I used the knife, I had in my hand on her. The deceased screamed while I
was stabbing her When the deceased slapped me in the face something flashed in my eyes. I became
mentally confused and found myself in the police station. When I was going to the police station I knew I
was going to the police station. I became annoyed after being confused in the mind. I then stabbed the
deceased.”

In his answer to questions put to him in cross-examination the appellant further explained that he to Id the
deceased that if she no longer wished to be his wife she should let him have the money which he had
saved with her or part of the cocoa farm which they had jointly made, but instead the deceased abused
him by calling him a truant, useless man and a fool, and also said that her ex-husband was a better man
than he, the appellant, or words to that effect. The appellant said in answer to a question: “I became
confused when she called me names and slapped my face. This provoked me.”
It would appear from what the appellant said in his evidence at the trial that what prompted him to use the
knife on the deceased was the injury done to his sense of honour by means of the physical. assaults on his
face, and not so much the effect which the words of a vile character, alleged to have been uttered by her.
But looking at the summing-up and the whole of the evidence which the jury heard it is obvious that the
jury did consider whether or not the slap on the face and the use of words of vile nature by the deceased
were likely to have deprived a person of ordinary character like the appellant of his self-control. The
judge might not have considered that the use of words of a violent nature by a wife on a husband like the
appellant in his station in life in, a village community might be calculated to deprive a person of ordinary
character like the appellant of his self-control even more than would an act of physical violence, and so
omitted to direct the jury thereon. Furthermore, there was no corroboration at the trial to support the
appellant’s statement that his wife abused him. In his answer to a question asked him by the jury the
appellant himself said: “I became so enraged with the slap that I took out the knife and stabbed the
deceased.”
In a summing-up the facts may not be fully stated, or they may be incorrectly stated, without a
misdirection occurring on any

[p.42] of [1967] GLR 36

question of law. For an omission of a judge to direct the jury on a piece of evidence relating to an issue to
amount to a fatal misdirection it must be shown that if he had properly directed them they might probably
have come to a different conclusion. But the objection to an omission by the judge to direct does not
necessarily succeed, especially when there is sufficient evidence before the jury relating to the particular
issue which the judge failed to call the jury’s attention to and its effect in law. On the particular facts of
this case, and having regard to the nature of the evidence led to establish the matter of provocation:, there
is no question of any misstatement of the evidence relating to the acts which it is submitted constituted the
provocation. In our opinion the omission of the trial judge to call the jury’s attention to the evidence
about the insulting or abusive words alleged to have been uttered angrily by the deceased against the
appellant and the likely effect the use of those taunting words might have had upon the appellant could
not have occasioned a miscarriage of justice, the jury having heard all the evidence about the alleged
abuse by the deceased in the appellant’s version of what had happened before he struck- the deceased.
Moreover, references were made to the effect of the insulting words alleged to have been used in the
address of counsel for the appellant. The verdict they returned clearly showed that they did not accept the
appellant’s story that he suffered extreme provocation either as a result of the use of the insulting words
or the physical assault by the deceased prior to the act of killing. Without dwelling on any particular
passage in the summing-up or scanning its language closely, we think that the real issue was left fairly to
the jury and that they were in no way misled when after their deliberation they returned a verdict of
murder, and it is impossible to say that there was no evidence to justify that finding.
It was not denied that the appellant caused the death of the deceased by striking her three times with the
knife which he took time to uncover from the sheath in which it was hidden; the postmortem examination
showed the severe and multiple wounds from which the deceased died, and the eyewitnesses, the second
prosecution witness, Yaa Nimo and the fourth prosecution witness, Kwame Frempong, who saw the
appellant stab the deceased, described how the appellant bent on top of the deceased, held her throat and
stabbed her with the knife. This evidence taken together with the findings of the doctor who examined the
knife wounds on the deceased’s body only shows that the one who inflicted the fatal wound must have
carefully planned and intended the killing, and there can be no doubt that it was purely an intentional
homicide.
It was plain that the evidence given by the appellant was regarded by the jury as unsatisfactory, and even
if he had suffered any extreme

[p.43] of [1967] GLR 36

provocation as a result of the slap in the face accompanied by the use of the insulting words, the fact that
he took some time to carefully unsheath the knife from its cover before striking the deceased with it three
times shows that his temper must have cooled down and that at the time he struck the deceased with the
knife he could not have acted under any sudden loss of blood or temper. In our opinion the learned trial
judge summarised the evidence in a way most favourable to the appellant when at one point in the
summing-up he said to the jury: “You can give any latitude you like to the accused’s story and consider
his case by finding out whether it is justified for the accused to inflict harm to the woman.” Throughout
the summing-up over and over again the learned trial judge directed the jury to considerations which were
favourable to the appellant and emphasised again and again to the jury the matters which may amount to
provocation within section 53 of the Criminal Code, 1960, and cases in which the benefit of provocation
may be excluded under section 54 of the Criminal Code, 1960, which reads as follows:
“54. (1) Notwithstanding proof on behalf of the accused person of any matter of extreme provocation,
the crime shall not be thereby reduced to manslaughter if it appears—
(a) that he was not in fact deprived of the power of self-control by the provocation; or
(b) that he acted wholly or partly from a previous intention to cause death or harm or to
engage in an unlawful fight, whether or not he would have acted on that purpose at the
time or in the manner in which he did act but for the provocation; or
(c) that, after the provocation was given, and before he did the act which caused the harm,
such a time elapsed or such circumstances occurred that an ordinary person might have
recovered his self-control; or
(d) that he acted in a manner, in respect either of the instrument or means used or of the
cruel or other manner in which it was used, in which no ordinary person would, under
the circumstances, have been likely to act.
For the purposes of this subsection ‘an ordinary person’ means an ordinary person of the
community to which the, accused belongs.
(2) Where a person, in the course of a fight, uses any deadly or dangerous means against an
adversary who has not used

[p.44] of [1967] GLR 36

or commenced to use any deadly or dangerous means against him, if it appears that the accused
person intended or prepared to use such means before he had received any such blow or hurt in
the fight as might be a sufficient provocation to use means of that kind, he shall be presumed
to have used the means from a previous intention to cause death, notwithstanding that, before
 the actual use of the means, he may have received any such blow or hurt in the fight as might
amount; to extreme provocation.”

In our view, it cannot be said that the trial judge did not properly direct the jury as to the law of
provocation; he might not have given a model direction covering all the evidence led to establish the
nature of provocation relied upon by the appellant, but having regard to the simplicity of this type of case,
and to the knowledge and commonsense of a jury, though the direction omitted to refer to the legal effect
of the insulting words, looking at the whole of the section quoted above, together with the judge’s
direction to the jury to give any latitude they liked to the accused’s story, it is impossible to say on the
evidence as a whole that the misdirection by non-direction prejudiced the prisoner.
A further point which was taken on behalf of the appellant was that in his direction to the jury the learned
trial judge failed to explain to them the cardinal point of importance that even if the appellant’s story did
not convince them as to its truth, they might consider whether it was reasonably probable in the particular
circumstances.
What in effect learned counsel for the appellant is complaining about is that the trial judge’s direction on
this issue was not fully or sufficiently stated to the jury, because the trial judge omitted to remind them
that regardless of whether the defence of provocation put up by the appellant was true or not, it might, in
the view of the jury, if they had been properly directed, be reasonably true or probable. He contended that
if the jury, properly directed, took the view that the appellant’s version of what took place short of
believing it might be reasonably probable or true, then the prosecution must be regarded as having failed
to discharge the onus upon it of proving the guilt of the appellant beyond reasonable doubt. Counsel
relied on the following cases in support of his contention: R. v. Wunuah (1957) 3 W.A.L.R. 303, C.A. R.
v. Abisa Grunshie (1955) 1 W.A.L.R. 36; W.A. C.A. and Mensah v. R. (1945) 11 W.A.C.A. 2 at p. 7,
P.C.
It seems to us after a careful study of the trial judge’s summing-up as a whole that the contention of
counsel against the summing-up is, in point of fact, not quite accurate because the learned trial judge in
passage after passage of the summing-up reminded the jury that it was the duty of the prosecution to
prove the case against the appellant

[p.45] of [1967] GLR 36

beyond reasonable doubt; he also gave the necessary direction as to the standard of proof in respect of the
appellant’s case which was one of provocation. At the beginning the trial judge told the jury:
“I warn you that it is not for the accused t o prove his innocence. It is for the prosecution to prove the guilt of
the accused person beyond reasonable doubt. Any burden of proof on the accused in respect of provocation
is not as strong as that on the prosecution. [After reviewing the evidence of the appellant in some detail he
continued:] You can give any latitude you like to the accused’s story and consider his case by finding out
whether it is justified for the accused to inflict harm to the woman Now you have to decide four things:
(1) If you believe the story of the prosecution that the deceased was killed by the accused intentionally,
and that the case has been proved beyond reasonable doubt the only verdict you can bring is that the
accused is guilty of murder.
(2) If in considering the case you find there is evidence of extreme provocation and you believe the
accused’s version of extreme provocation then you can find him guilty of manslaughter.
(3) If having considered the case of the prosecution and defence and you cannot believe the accused’s
story of extreme provocation, and there is some doubt in your minds about this you can return a
verdict of guilty of manslaughter.
(4) If you are in doubt that the prosecution has not proved its case beyond reasonable doubt that means
you are not certain that he killed the woman or that the woman did not die of wounds inflicted by the
 accused, then you have to give the benefit of the doubt to the accused and find him not guilty.”

(The emphasis is mine.)

In the present appeal the complaint is made that nowhere from the first to last in the summing-up was
there reference to the point that even if the appellant’s story was not true it might reasonably be true or
probable. So far as the wording of the summing-up is concerned, that it is true, but we find from the four
portions of the summing-up which are referred to that the learned judge repeated and stressed his
directions as to what the jury should do if they entertained any reasonable doubt about the appellant’s
case and also as to the burden of proof. But it is stressed here in the submission of counsel for the
appellant that the direction to the jury on the issue of reasonable doubt could not have been perfectly
appropriate because they had not been coupled with the classic phrase or words “even short of believing
the appellant’s story it might be reasonably true or probable.”

[p.46] of [1967] GLR 36

In our view the celebrated case of R. v. Abisa Grunshie (supra) and the allied local cases cited in this
appeal by counsel for the appellant did not lay it down that if a particular form of direction on this issue is
not used then the direction is defective. On the contrary, those cases only stress the cardinal importance in
directing the jury’s attention to the salient points in the case as a whole where they entertain any
reasonable doubt. The court would wish to reiterate here what has been stressed so often in several cases,
that what matters is not the form in which the direction on this issue is contained to the jury’ but rather
that the summing-up should sufficiently indicate to the jury that if upon a review of all the evidence in the
case they are left in reasonable doubt, even if the explanation; of the appellant that he had been provoked
is not accepted, the appellant was entitled to be acquitted of murder and the offence’ reduced to
manslaughter: see State v. Afenuvor [1961] 1 G.L.R. (Pt. II) 655, S.C. Having regard to the simple
formula or manner in which the issue about reasonable doubt was explained to the jury, we do not feel
that any valid criticism can be levelled against it, or that the substance of the summing-up did not present
to the jury the issue about provocation in a form compatible with our law. The conviction of murder was
therefore right, and, the appeal must be dismissed.

DECISION
Appeal dismissed.
T. G. K.