1980 TLR 6

6 TANZANIA LAW REPORTS (1980] TLR JOHN NY AM HAN GA BISARE v. REPUBLIC (NYAL~LI, C.J.) JOHN NYAMHANGA BISARE V. REPUBLIC [COURT OF APPEAL OF TANZANIA AT MWANZA (NYALAU, C.J.) Mwakasendo and Makame, JJ.A.)] CRIMINAL APPEAL 29 OF 1979 Criminal Law - Murder - Plea of self-defence - use· of excessive force - Accused honestly and reasona6ly ·believed he was defending himself - Whether coviction of murder or manslaughter. Criminal Law - Murder - Plea of self-defence - Use of excessive force - Accused honestly and reasonably believed he was defending himself - Test of honest and reasonable belief - subjective. Evidence - Onus of proof - Excessive and lethal use of force - Onus rests throughout on the· prosecution. Police Force Ordinance - Application to peoples' militia. The appellant, a member of the peoples' militia, was convicted of the offence of murder. The appellant and another person were assigned to trap and arrest a policeman who had solicited for a bribe. After re- ceiving the bribe the deceased and another policeman were ordered by theappellant, who was armed with a semi-automatic rifle, to put their hands up. The deceased, instead of obeying the order, with his hands in his pockets, advanced towards the appellant who, after the first warning shot, then shot the deceased causing his death. • , : , The trial judge charged the assessors that if in their opinion the shooting was deliberate then they should find the appellant guilty of murder; but if the shooting was accidental then they should find the appellant not guilty ·and advise his acquittal. On appeal it was argued for the appellant that the trial judge erred in law in not considedng the defence • of self-defence which, if accepted, might have reduced the appellant's conviction from murder to qne of manslaughter if excessive force was used. It was further argued that the trial judge should have held on the evidence, that the appellant was in the circumstances of the case justified in apprehending a danger to his life necessitating the shooting of the deceased. Held: (i) where an accused person honestly and reasonably saw himself as defending himself, but used exessive force, the issue is manslaughter or acquittal not murder or manslaughter or acquittal [The principle in McKay and Howe followed] ; (ii) in determining whether the accused had honest and reasonable belief that he was defending himself he is to be judged not on the facts as they were but on the facts as he reasonably believed them to be [The principle in Rose (1884) 15 Cox C.C. 54:(), fo,Ilowed] ; (iii) although the appellant was entitled to ·..use ~ force in excercise of his undoubted right of self-defence he used more force than was reasonably necessary in the circumstances; (iv) if.the prosecution have to get a murder conviction they must prove that the accused was not acting in self-defence or if they were to get a conviction of manslaughter, prove that the accused, though acting in self-defence, exceeded the limits of self-defence by using excessive force; (v) the provisions of s.29 of the Police Force Ordinance applies to armed members of the peoples militia whenever they are engaged in police duties. Conviction of murder reduced to one of manslaughter. Cases referred to: (I) McKay (1957) V.R. 560. (2) Howe (1960) Crim. L.R. 468. (3) Bufalo (1958) V.R. 363. (4) Haley (1959-) W.N. (N.S.W.) 550 (5) Colin Chi~am 47 Cr. App. R. 130. (6) Biggio [1920] I K.B. 213. (7) . Weston (1879) 14 Cox C.C. 346. C.A. JOHN NYAMHANGA BISARE v. REPUBLIC (NYALALI, C.J.J 7 (8) Symondson (1896) 60 J.P. 645. (9) The State v. Marshall 208 N.C. 127, 179 N.E. 427. (10) John v. The Queen (1966) 10 W.I.R. 402. (11) Reg. v. Hamilton (1967) 11 W.I.R. 309. (12) Palmer v. The Queen [1971] A.C. 814. (13) R.v. McLnnes [1971] 3 All E.R. 295. (14) R.v. Hassin (1963) Crim. L.R. 853. (15) Packer v. Packer (1954). (16) Nyali Ltd. v. .Attorney General [1955] 1 All E.R. 646. (17) _Manani [1935] A.C.462. Rugarabamu for the appellant. Loomu-Ojare for the respondent. December I, 1979. MWAKASENDO, J.A., read the following considered judgment of the Court The appellant, a member of the Peoples' Militia, was convicted by the High Court of Tanzania sitting at Musoma of the murder of one P.C. RASHID! OMARI MTALIKA, a member of the Police Force. The appellant, on 10th August, 1976, together with P.W.7 MBELWA ATHUMANI MBELWA, a court clerk and also a member of the Peoples' Militia, acting on instructions from their Commanding Officer one Lt. MAKORI (P.W.3) proceeded to Kawawa Street near the shop of a local dukawalaone MWITA SAA SITA and took positions outside the shop so that they could observe any one entering and leaving the shop wi- thout themselves being seen. They were instructed to observe particularly if P.C. George Kitanda and any other officer accompanying him entered the shop. The object of this exercise, as we are told, was to trap and arrest P.C. George Kitanda and any other officer.accompanying him for soliciting and receiving a bribe from MWITASAA SITA. In the evening of the same dayP.C. GeorgeKitanda and the deceased were seen entering the shop of MWITA SAA SITA and after a short time were observed leaving the shop walking away, in the direction of Furaha Hotel. However, before the two suspects had gone far from the steps leading[ to the shop the appellant appeared running behind them. He had apparently been in the shop when the two suspects visited it. The appellant then ran in front of the two suspects and ordered them to put their qands up. He was armed with a semi-autoprntic.rifle. After this; events appear to have moveQ exce- edingly fast. P.W.7, P.W.13 and the appellant give differing versions of the events which led to the death of P.C. RASHID! OMARI MTALIKA. To these accounts we will now tum. MBELWA ATHUMANI MBELWA (P.W.7) in what appears to be a fairly and evenly balanced account of the events preceding the shooting of the deceased by the appellant seems to suggest that the appellant shot the deceased because he was apprehensive that the deceased who was advancing towards him would grab the gun he was holding and. shoot him. Presumably that would explain the appellant's "odd" behaviour of moving backward.a as the deceased was advancing towards him. MBELWA's evidence in so far as it relates to the shootins is as follows:- • Before I heard the gun shot I saw P.C. George standingbehindthe deceased. The deceased was moving'towards the accused with both his hands in his coal pockets. He continued mov?ng even after the first gun shot. After hearing the gun shot I blew my whistle again. When I arrived at the place where the men were, I ordered P.C. George to sit dQwn and put up his hands. He obeyed but as he took out his hands from his pockets, some -money droppfd from his pockets, it was the left pocket. Then I heard_ a second gun shot, the decea:sed was about four paces from the accused. The accused was going backwards the two of them appeared to be moving-in the same direction, the deceased towards the accused. The deceased's hands were still in his pockets. The deceased was dressed in Field Force trousers and police boots. In cross-examination MBEL WA gives what in his opinion must have prompted the appellant to shoot the deceased when he did. He says·:- When I heard the first gun shot, I was about 20 paces from the accused and the deceased. About three minutes later I heard the second shot. The deceased was advancing towards the accused. I cannot tel1 with what motive as he had his hands in his pockets, but as he had not stopped as directed, he might have intended to take the gun from the accused. 8 TANZANIA LAW REPORTS [1980) TLI P.C. GEORGE PETER KITANDA (P.W.13) also described the events leading to the deceased's deat: in some detail. His account runs as follows:- Along Kawawa Street as we were passing near the shop of Stephen Mwita Saa Sita, Saa Sita called the deceased and asked him to come into his shop. The deceased went into the shop, I climbed up and remained on the verandah. Then I heard the deceased say "Kwa heri" - good bye and that he would see him the following day. I did not hear any other piece of conversation apart from the partiqg words good-bye. I never myself went into the shop. The deceased then came out Jrter bidding goodbye to Saa Sita. While the deceased was in the shop nobody else entered. Before the deceased reached up to where I was, I saw someone run out of the shop. This man came to us and rounding us he faced us. He ordered us to raise our hands up, in other words he gave the order 'hands up'. I immediately thereafter heard a gun shot. When this man faced us I knew and recognised him to be John the accused. I knew him before this. The accused came from behind me. When the accused shouted 'hands up' he was very near to us. Both of us were facing the accused. After hearing the first gun shot I raised my hands up and soon thereafter another shot rang out. The deceased did not put up his hands. They were in the pockets of his coat. The second gun shot went off while my hands were still up. After the second shot, with his hands still in his pockets, I saw the deceased leap and fall down. The deceased was about five or six paces from the accused. The deceased fell on his face. I kept my hands up. Then the accused ordered me to sit down but with my hands up and that I should not move. He was pointing the gun at me. I obeyed as directed. Then I saw Mwita Saa Sita standing at the door of his shop. We may at this point remark in passing that we find it completely inexplicable why the prosecution did not deem it fit and their duty to call Stephen Mwita Saa Sita to give evidence at the trial. As he appears to be the prime mover of the events that resulted in the death of the deceased it is our view that a number of matters arising in this case that are now left to the imagination would have been clarified if Mwita Saa Sita had been called to give evidence. Be that as it may, P.C. George in answer to questions put to him in cross-examination elaborated some of the points he had made in his examination-in-chief:- While I was sitting on the verandah on the steps I did not hear what Saa Sita and the deceased were talking. They must have been talking in low tones. I heard the deceased bid Saa Sita goodbye. The accused ordered me to sit down after killing the deceased/ The second gun shot went off soon after the first. I do not know why the deceased did not obey the order to put his hands up. The deceased had his hands in his pockets all the time. And then we turn to the appellant's version of the events leading to the deceased's death. His account runs as follows:- I remember on 18/8/76 we were detailed to perform some duties. This involved the arrest of policemen who were suspected of planning to receive a bribe. At about 12 noon, my colleague in the Militia namely Mbelwa Athumani, and I as well as Lt. Makori and Sgt. Twaha proceeded to the shop owned by one Stephen Mwita Saa Sita. The two of us, i.e., Mbelwa and myself were introduced to Mwitra Saa Sita. We were told that Mwita Saa Sita is the shopkeeper who was scheduled to give a bribe. We were also introduced to him to be the people who will effect the arrests. Mwita told us that the currency notes involved had been noted down. He told us that the two policemenwerescheduledto·arriveathisshop at 5p.m. Wethenparted. On 19th we were directed by Lt. Makori to proceed with the assignment given to us the previous aay. That day at 4 p.m., we went and took our positions near the scene. My colleague Mbelwa ppsitioned himself at a drift near the RTC shop. I positioned myself inside the shop. I hid myself behind a refrigerator. At 6.30 C.A. JOHN NYAMHANGA BISARE v. REPUBLIC (NYALALI, C.J.) 9 p.m., two policemen entered the shop. Mwita Saa Sita told them that they had done well to arrive because he was about to close his shop. He told them that he would give them the money right away, all he wanted them to do was to help him so that this matter ended. At that point a customer entered who asked tq. buy a paper bag. ~e was told that they were not in stock. The customer asked for any kind of paper to wrap his things. This was given to him. Mwita Saa Sita then continued to say that as a person belonging to their age group of young people he expected assistance from them. If not he would blame them for he was giving out a lot of money. P.C. George then told him not to worry. Mwita Saa Sita then took out four one hundred currency notes and gave them to George who received the money with his right hand. His colleague was on his left just behind him. Then George said goodbye to the shopkeeper. They both turned to go out. Then I dashed from my hiding place to follow them. By the time I caught up with them they were in the middle of the road. I ordered them to put their hands up and sit down. They all turned upon me and started coming towards me. I ordered them to sit down. They did not, but continued coming towards me. I then fired one warning shot. Then George sat down. But the deceased came to me and attempted to take away the gun from me. I was at the time holding t:he gun at 45° position. The deceased hit the gun upwards while holding it, but I pulled it downwards. As I did so, a bullet came out and hit the deceased. At the time I did not know where the deceased had been hit. •Then I saw Cop1. Jackson with a lot of other policemen. George was at the time sitting down. At the place where the deceased had fallen down I saw currency notes. Copl. Jackson told me to •remain as I was until the OCD was called. On that day Copl. Fabian was our section commander. He had told me that he would be staying at Kilimambogo Hotel with Jackson. Mr. Rugarabamu, learned counsel for the appellant, in a brief and forceful argument urg~d us to hold that the learned trial judge erred in law in not charging the assessors and presumably addressing his own mind to one other possible defence to the charge of murder that the appellant could avail himself - that is self-defence, which if accepted by the trial tribunal might well have reduced the appellant's offence from murder to one of manslaughter if excessive force was used. Mr. Rugarabamu further submitted in this connection that the learned trial judge had a duty in law to consider if the evidence adduced by the appellant when considered in the light of the evidence given by MBELWA, was such as could entitle the Court to hold that the appellant was in the circumstances of the case justified in apprehending a danger to his life necessitating the shooting of the deceased. With respect, we think there is some validity and substance in this criticism. The learned trial judge ended his charge to the assessors in these words:- Gentlemen Assessors in these circumstances you may think it safe to consider only the evidence of Athumani Mbelwa and P.C. 9eorge Kitanda. If you accept the evi- dence of these witnesses that the deceased was shot while he was four to five paces from the accused so that there could not have been any struggle for the gun and the deceased knocking it out of the accused's possession, then you will find that the shooting of the deceased was deliberate and that his killing...amounted to murder. You will then find the accused guilty as charged and advise hls conviction. On the other hand, if you accept the defence version as narrated bytheaccused that the gun went off accidentally as the deceased tried to take it away from him, you will find the accused not guilty and advise his acquittal. This direction is impeccable in so far as it relates to the defence of accident. However, the issues dis- closed by the evidence on record were not as simple and straightforward as that. This was not, in our view, a case of either. accident or murder with no half-way house defences available for the appellant's benefit. We think on a proper view of the evidence on record it was open to the appellant and incumbent upon the trial Court to determine if the appellant had any reasonable grounds for supposing or believing his life to be in danger thus necessitating his killing of the de~eased. In this regard it seems to us on the authorities that the expression ..reasonable grounds for believing" means no more than that an accused person must introduce some evidence or fact from which the Court can conclude that his belief was honestly formed. 10 TANZANIA LAW REPORTS [1980] TLR With that said, we are still left to consider whether on the authorities as there are it is open to a Court to convict an accused person for manslaughter where the charge is murder and the accused has put forward a defence of self-defence or is the Court of trial left with only two courses open to it, either to convict for murder if not satisfied that he was acting in self-defence or to acquit him if so satisfied. Professor Norval Morris in an illuminating article published in (1960) Crim. L.R .. 468 discusses the questions under consi- deration with reference to Australian, Canadian and English authorities and concludes that where a person in the exercise of his right to self-defence uses excessive force he is liable to be convicted of manslaughter • and not murder. Professor Norval Morris states the problem that confronts us in these wofds: Defined rights to protect himself by the use of force are accorded to one whose life or bodily safety is illegally threatened; otherwise, force may lawfully be used lo prevent the commission of a violent or atrocious crime and probably of any felony, to arrest the felon, to protect the bodily safety of third persons, and to protect property. All these various rights are classified and described with some precision in the extensive case law of the common law of crime; but the criminal liability of one who exceeds the limits of justification or excuse and in doing so kills has until recently been largely ignored. Is he a murderer? Or is he guilty of only manslaugh- ter? The answer to these questions is - on the Australian authority - that 'if the occasion warrants action in self-defence or for the prevention of felony or the appre- hension of the felon but the person taking action acts beyond the necessity of the occasion and kills the offender the crime is manslaughter - not murder. See the judgement of Lowe J. in McKay (1957) V.R. 560 at 561. The case of McKay to which Professor Norval Morris refers in the passage set out supra was.tried before Mr. Justice Barry of the Victoria Supreme Court. McKay worked on his father's poultry farm. For some time there had been persistent thefts of poultry from the farm, evidence being given that in the preceding three years one thousand chickens had been stolen. McKay had diligently tried to prevent these thefts and once captu1.·ed1. a chicken thief who, upon trial, was convicted and fined £10. Early one morning McKay was, in his own view, fortunate enough to discover a thief on the premises. McKay got his rifle, sneaked up on the thief,rested the rifle on the top strang of a wire fence, and fired five times, killing the thief. McKay told the police that he intended only to wound the intruder and offered the legally fascinating proposition that "I consider I am entitled to wound a man who was stealing fowls on my property, especially when we have notices up 'Trespassers Prosecuted'. These facts are to be found at page 469 of Professor Norval Morris' article Mr. Justice Barry in directing the jury told them that excessive force used in protecting property, or preventing a felony, or arresting a felon, or a combination of these rights, should lead to a conviction of manslaughter and not murder. His charge to the jury was accepted on appeal to the Victoria Court of Criminal Appeal and special leave to appeal was refused by the High Court of Australia. An~ther ~ustralian case in which the prin_ciple discussed by Professor Norval Morris has been held to be vahd law 1s the case of Howe. Howe killed one Millard, who according to Howe, had made a homo- se~ual _attack on him. Howe said that he had pulled himself free from such an attack when they were sta- ndmg m front of Howe's car, which was parked in a secluded spot, and that he then ran back to the car and upon opening the door saw protruding from under the front seat the butt of a loaded rifle which he had put there but ?ad ~orgotten. He took the rifle and shot Millard, who was then standing about eight or .nine yards away with his back to Howe. Howe gave evidence that he believed that the attack on him had been of a sodomitical character, that Millard was somewhat stronger than himself and that he doubted that he could keep him off ~ith his hands, and that he fired intending to stop further attacks and not thinking at all whether he was hkely to kill Millard. He said it did not occur to him to get into the car and drive off. T~e trial judge, Mr. Justice Ross of the South Australian Supreme Court, directed the jury that upon this e~1de~ce they could find manslaughter instead of murder on the ground of provocation but he gave no other ~irect10n about manslaughter. On the issue of self-defence, apart from provocation, he told the jury that if tl:!e force used was excessive then the evidence afforded no defence at all. On appeal from a conviction o~ murder_, the High ~o~rt of Australia and the South Australian Court of Criminal Appeal were of the view t~at it was the tnal Judge's duty to direct the jury that if they believed Howe's story, but regarded /the defensive force he had used as excessive, they should conyict him of manslaughter - See (1960) Crim. L:R. 468 at 569 and 570 and (1958) S.A. S.R. 95; 32 A.L.J.R. 213 and See Professor Colin Howard's article .. Two Problems in Excessive Defence" (1968) 84 L.Q.R. 343. C.A. tOHN NYAMHANGA. BISARE v. REPUBLIC (NYALALI, C.J.) 11 Oi1;on C.J. in his judgement at pp. 460- 461 stated that the law on the subject was as follows: Had he used no more force than was proportionate to the danger in which he stood, or reasonably supposed he stood, although he ther~by caused the death of his assa- ilant he wouldnothavebeen guiltyeither ofmurder orm~,nslaughter. But assuming that he was not entitled to a complete defence to a charge of murder, for the reason only that the force or violence which he used against his assaillant or apprehended assaillant went beyond what was needed for his protection or with the circumstances could cause him reasonably to believe to be necessary for his protection, of what crime does he stand guilty? ls the consequences of the failure of his plea of self-defence on that ground that he is guilty of murder or does it operate to reduce the homicide to manslaughter? There is no clear and definite judicial decision providing an an- swer to this question but it seems reasonable in principle to regard such a homicide as reduced to manslaughter, and that view has the support of not a few judicial sta- tement to be found in the reports. Menzies J's view of the law was stated at p.477 as follows:- I have reached the conclusion that the law is that it is manslaughter and not murder if the accused would have been entitled to acquittal on the ground of self-defence except for the fact that in honestly defending himself he used greater force than was reasonably necessary for his protection and in doing so killed his assailant. The doctrine in Howe has been accepted and followed in other Australian cases - See the Bufalo and Haley cases reported at (1958) V.R. 363 and (1959) W.N. (N.S.W.) 550, respectively. The decision in Howe is of course not new. There is, as Professor Norval Morris says, a wealth of supporting case law in England (Soe- Colin Chisamn, 41 Cr. App. R. 130, Biggin [1920] 1 K.B. 213; Weston (1879) 14 Cox C.C 346, Symo- ndson (1896) 60 J.P. 645; Canada; the United States of America (See The State v. Marshall. 208 N.C. 127, 179 N.E.427); Trinidad andTobago(SeeJohnson v. TheQueen(l966) IOW.I.R. 402); andJamaica (SeeReg. v. Hamilton (1967) 11 \V-.1.R. 309). Although there are extensive English authorities on this subject which were referred to and considered in the four Australian cas'es, three recent cases decided by the Privy Council (See Palmer v. The Queen [1971] A.C. 814 on appeal from the Court of Appeal of Jamaica) and the Court of Appearof England, Criminal Division (See R.v. Macinnes [1971] 3 ALL E.R. 295; and R.v. Hassin (1963) Crim. L. R. 853) show that the English Courts do not accept these old English authorities as laying down any doctrine or principle of the Jcind enunciated in Howe. While we have the greatest respect for the decisions of the two English tribunals we are not in the present case persuaded that the reasons given by the Privy Council and Court of Appeal of England, Criminal Division, for rejecting the doctrine in Howe that is on the ground of its "novelty at. the present time" (See R.v. Hassin) or on the ground of it being "refinements of self-defence" - See Palmer v. The Queen, can be a profound reason for rejecting a doctrine which is a sound principle of justice and good sense supported by abundant persuasive authorities in other common law jurisdictions. Lord Denning, Master of the Rolls, in his characteristic style has warned us of the danger to the development of the law if judges refuse to adopt a new legal principle on account of its novelty. What is the ar_gument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we nevei:: d~ anything which .has never bee~/ done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on: and that~will be bad (or both. See Packer v. Packer (1954) p. 15 at 22. In 19,55 in Nyali Ltd. v. Attorney General [1955] 1 ALL E.R. 646 p. 653 Lord Denning again warned judges especially those in ex-British African colonies of the danger of transplanting principles of the CommoP Law to foreign lands irrespective of their utility to those lands. We can but benefit immensely if we heed his forthright warning: This wise provision should, I think, be liberally construed. It is ~ recognition that the common law cannot be applied in a foreign land without consid.erable qualification. Just as with the English Oak, so with the English Common Law. You cannot tra- nsplant it to the African continent and expect it to retain the tough ·character which it has in England. It will flourish indeed but it needs careful tending. So with the 12 TANZANIA LAW REPORTS [1980] TLR comm.on law. It has many principles of manifest justice and good sense which can be applied with advantage to peoples of every race and colour all the world over: but it has also many refinements, subtleties and technicalities which are not suited for othet folk. These off-shoots must be cut away. In these far off lands the people must have a law which they understand and which they<will respect. The common law cannot fulfil this role except with considerable qualifications. The task of making these qualifications is entrusted to the judges of these lands. It is a great task. I trust that they will not fail therein. One of the problems that the Australian courts had to grapple with in the four cases montioned above was how to distinguish the decision of the House of Lords in the case of Mancini [1935) A.C. 462. Mr. Justice Menzies of the Australian High Court faced the problem squarely and resolved it by saying:- The trial judge (in Mancini) did not direct the jury that the use of excessive force in the course of self-defence would warrant or require a verdict of manslaughter and it is now said that the fact that this was not treated as an omission shows that such a direction was not necessary. I cannot accept this contention. The judgment of the Lord Chancellor was based upon the assumption that the jury rejected the priso- ner's story that he was attacked with a knife and that this rejection left nothing beyond the possibility of an attack with hand or fist. It was not argued for the prisoner that he killed with his knife in defending himself against such an attack; what was argued and what was rejected was that such an attack could amount to provo- cation for the killing. It would, I think, be quite unsafe to regard Mancini's case in the way for which the Crown contended. The House of Lords was not dealing in any way with the problem that arises here. Professor Norval Morris thinks that if the facts in Mancini were to recur and if the rule enunciated in Howe and McKay is good law, it will be open to the defence counsel ta argue that:- Even if the accused was not justified on the grounds of self-defence (because he used a knife when the jury believed his assailants were not armed at all) and even if the accused's crime could not be reduced to manslaughter on the grounds of provocation (because the means he used were disproportionate to the provocation) yet he should be convicted only of manslaughter because he honestly and reasonably believed he was defending himself, even though he used disproportionate means in doing so. (ibid p. 472). It should, however, be borne in mind that the principle enunciated in McKay and Howe is limited to cases where the accused bears no malice towards the person killed in self-defence. English law has always recognised this as the operative principle. In Hawkins (P.C. 8th ed. 79) we find the following statement of the operative principle:- There must be no malice coloured under pretence of necessity; for wherever a person who kills another acts in tr~ upon malice and takes occasion from the appearance of necessity to execute his own private revenge, he is guilty of murder. For the principle to operate in favour of a party charged with murder, the party must in the words of Foster in his Discourses of Homicide p. 289 (see (1958) Crim. L.R. 583 at 590) be: . . . entirely innocent, he bath gone no farther than nature leadeth, no further than duty, founded on the great law of self-preservation, will carry the wisest and the best men. To summarise, it is clear from the foregoing discussion of the principle in McKay and Howe that Ausra- lian courts have applied the principle laid down in these cases to s~lf-defence, the defence of others and the ~fence of property. The principle has also been applied to excessive and lethal force used in preventing JOHN NYAMHANGA BISARE v. REPUBLIC (NYALALI, C.J.) 13 C.A. orime or arresting criminals. On the principle of McKay and Howe it seems clear to us that where an accused person honestly and reasonably saw himself as defending himself, the issue is manslaughter or acquittal, not murder or manslaughter or acquittal. The accused is judged not on the facts as they were but on the facts as he reasonably believed them to be - See Rose (1884) 15 Cox C.C. 540. On whom, then, lies the onus and burden of proof irt cases of excessive and lethal use of force. It seems to us well established on the authorities that the onus and burden of proof as in all criminal prosecutions lies on the prosecution to establish their case beyond reasonable doubt. If the prosecution has to get a murder conviction it is incumbent upon it to prove that the accused was not acting in self-defence dr if It was to get a conviction of manslaughter, prove that the accused, though acting in self-defence, exceeded the limits of self-defence as regards the means of force he used. Is the principle in McKay and Howe good law which is applicable to Tanzania Mainland? We think the principle enunciated in McKay and Howe is in the words of Lord Denning a principle of manifest justice and good sense which in our considered view should apply to Tanzania Mainland. It is, we feel, good law because, as Professor Norval Morris has suggested, it accords with our society's sense of justice. For as Group Captain J.T. Lowe has appropriately remarked: It is hardly worth remarking that to convict a man of murder, who did not possess the heart bent on mischief - mala mens ... regardless of social duty would be a melancholy state of affairs. See article by Captain J.T. Lowe - Murder and the Reasonable Man (1958) Crim.L.R. 453 at p. 460. Professor Norval Morris expresses the same idea in these words:- Finally, it is a mistake to assume that the existence of such a qualified defence will always favour accused persons. It may have the contrary effect. It may well be less of a 'Gangster's Charter' than a wise technique whereby wrongdoers, who would otherwise liave been acquitted, are convicted of manslaughter, and 1hus may help to affi:m in the criminal law that reverence for life which is the fundamental requirement of a civilised community. (ibid p. 477). Before reverting to a further discussion of the submissions canvassed in this court on the appellant's behalf by Mr. Rugarabamu we wish to deal briefly with the reasons why we think the principle in McKay and Howe is part of the law of crime of Tanzania Mainland. Any discussion about this matter must, however, start with a consideration of the relevant provisions of our Penal Code, Cap. 16. A glance at our Penal Code discloses that ss. 18 and 19 of the said Code are the appropriate and relevant provisions for the purpose of our present inquiry. S. 18 of the Penal Code provides:- 18. Subject to any express provisions in this Code or any other law in operation in Tanganyika criminal responsiblity for the u.se of force in the defence of person or property shall be determined according to the principles of English law. And s. 19 reads:- 19. Where any person is charged with a criminal offence arising out of the arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary or the degree of force used was reasonable for the apprehension of such person, have regard to the gravity of the offence which had been, or was being, com- mitted by such person and the circumstances in which such offence had been, or was being, committed by such person. This Court is of course aware that by the new amendment introduced by the Legislature to s. 4 of the Penal Code we are now to be guided by the principles of natural justice in interpreting the provisions of the Code. However, since this Court is not aware of any principles of natural justice which are concerned with rules of legal interpretation we think the intendment of Parliament in introducing the new amendment in s.4. of the Penal Code was no more than to underscore the need of our Courts to be free to adopt well recognised principles of the English Common Law to fit our own peculiar local environment. We 14 TANZANIA LAW REPORTS [1980] TLR Chacha slashed his wife with a panga several times and that she died on the spot. The attack was severe and blood-chilling, involving, inter alia, the virtual severance of the throat and the cutting of the carotid arteries and tht: jugular veins. The trial Court rejected the appellant's plea that the admitted killing was not with malice aforethought. The app~llant was accordingly condemned to death. The spouses had been living in a house of which P.W.2 Ziada Mohamed was the caretaker and the· killing took place in the spouses' bedroom around midnight when P.W.2 was the only other person inside the house. She testified to opening the door for the couple and to the appellant's enquiring after the other male tenants in the house. She told him that no other male was in the house. In fact there was oqly Felix, the son of the landlord, sleeping in a smaller back house. According to P.W.2, after the spouses had entered their room she only heard them conversing, and in their own language which she was unable to understand: from the tone of their voices they did not appear to be quarrelling. Later the witness was awakened by he appellant who told her "Mama mimi natoka". It is then that she went to the spouses' room and discovered the dead body of the deceased after she had failed to locate the appellant anywhere on the premises. In his unsworn statement the appellant did not deny killing the deceased. He said, however, that the fatal assault followed a quarrel between him and the deceased. After they had entered their room he' asked the deceased to cook the meat he had purchased earlier in the day, lest it went bad. She saiq she would not cook it because she was angry with him, and added that she had other men who were better than he was. Let the appellant now take up his own story:- I slapped her. She got out of the house and returned with a panga, saying she was going to kill me. She swore saying that if she does not do so, she had better go and . sleep with her father. Sf-'! was angry. I held her and took the panga from her. I was then angry and plus the pombe we had taken, cut her up. I saw her fall down, dead. I dropped the panga and left. I stayed out at a certain place and at 5 a.m. went to the police to surrender myself. That is all. What emerged from the appellant's version therefore were defences of Provocation and Drunkenness. The learned trial Judge also considered self-defence and rejected it, quite rightly in our view. Mr. Butambala, learned Counsel, appeared before us to advocate for the appellant. He argued that the trial Court erred in finding that there was no quarrel between the deceased and the appellant as asserted by the appellant, and that therefore there was no provocation. Mr. Mcrora, learned State Attorney, supported the finding of the trial Court. The only person who could possibly tell whether or not the couple quarralled in their room was P.W.2, that is apart from the appellant. On a careful reading of P.W.2's evidence we are respectfully inclined to agree with M r.Butam bala that there is no clearly convincing evidence showing that the possibility of a quarrel, some quarrel, preceding the killing, can necessarily be excluded. There are in fact some indications, if we are to go by the language employed by the witness, as we must, that P.W.2's eyes yielded to the weight of sleep between her opening the door for the couple and the appellant leaving the house. We say this because the witness said the appellant woke her up to announce to her that he was going out. One cannof say she was awakened unless she had been sleeping. The learned trial Judge must have understood the witness to mean this also, that was why he said the witness had fallen back to sleep, not merely that she had gone back to bed. That being the case, we find it difficult to assert as did the learned trial Judge, that the spouses had not been quarreling. There is no evidence as to the tone and course of the verbal exchange and so we cannot say for sure that it would necessarly have been such that would necessarly have jolted P.W.2 from her sleep. Having said that however, we still have to consider whether there was provocation such as would rob a reasonable man ·of his power of self-control and make him do what the appellant did in the circumstances. We rely on the appellant's own version on this and assume in his favour that he has told the truth as to what took place. He was annoyed by the deceased's remarks that was why he slapped her. That was enough answer to the deceased's words. Besides, he should also have taken into account that both his wife and himself had pumped themselves with an alcoholic drink for some hours so he should have expected some drunken reactions from her. She went out and returned with a panga and threatened to kill him. Even if one argues that the threat also annoyed the appellant, the annoyance should have ended the moment he disarmed her. There was also certainly no legitimate self-defence because there was at that stage nothing for the appellant to defend himself from. The defence suggested, in effect, that in determining whether or not there was provocation due regard should be paid to the fact that the appella~t was drunk. We agree that the appellant had been drinking and C.A. JOHN NYAMHANGA BISARE v. REPUBLIC (NYALALI, C.J.) 15 UUlt in all probability he was not particularly sooer. We do not, however, agree that he was so utterly and lblolutely drunk as to be unable to form the specific intent of killing or causing grievous bodily harm. The &ppcllaht demonstrated a clear re-collection of events that night, some of which· were also testified to by p, W.2 and P. W.5. He related how P.W.5 Police Constable Nicholaus left the pombe shop at 8 p.rn. leaving them there, which P.W.5 also said. He remembers his preceding remark about their having to drink their II.at and his convincing explanation about it. He·remembers getting home and asking P.W.2 to open the fqor forthem, his enquiring after his male co-tenants and his conversation with P.W.2 on that; and he gives f clear sequence of events thereafter up to the time he left the house after killing the deceased. We ar<;not, fonvinced that.he was so inebriated as not to be able to form the necessary malice aforethought. The learned trla.1 .I udge correctly directed himself on this aspect of the issue of intoxication and we respectifully agree with him. He also ably dealt with the second limb of.that defence-that account should be taken of the appellant'~ (Jrunken condition in determining whether there was provocation .. The learned judge aptly quoted the case nr ,Justo Odima v. R.• ( 1941,) 8 E.A.C.A 29 [C.A.] in which it was· quite rightly observed that was ..a propo iltion that would lead to dreadful results." This Court has recently dealt with the matter and held that , , .an accused person who pleads provocation under the influence of alcohol must stand in the shoes of iill ordinary person of the community to which the accused belongs and must thus he judged by the standard M such ordinary person .... " Alphonce Philibert "· R. Criminal Appeal No. 27 of 1979 (unreported). In his judgement the learned trial Judge looked for factors establishing the appellant's malice afore- thought. He found that the appellant's conduct that evening \\as inconsistent with absence of malice afore- I hought. This included his enquiring after the male co-tenants to make sure the coast was clear, as well as the nature of the attack and the behaviour immediately after the killing: to which we would respectfully add I he appellant's covering the deceased's dead body with clothes. The killing came four days after the nppcllant was made to return the deceased's Savings Pass Book and promise to return the Shs. 200.1- he had fordhly relieved the deceased of. lt was not unreasonable to opine that the money dispute provided the ,notivc. We now wish to turn to Mr. Butamhala's last complaint, that the gentlemen assessors who assisted the karncd Judge were not persons of the appellant's community and so the learned Judge denied himself the necessary assistance. Mr. Butambala referred us to the case of Ym·an v. l!ganda [1970] F.A.L.R. 405 (C.A.). In the present case the appellant is a member of the Kuria tribe .in Musoma Region and so was the deceased. Mr. Butambala argued that assessors from the appellant's home district, conversant with the K uria customs and habits. should have sat with the learned Judge. We are unable to accept Mr. Butambala's argument and these are our reasons:-- 1. We wish to state quite categorically that, in our view, members of a Tanzanian's community are fellow Tanranians, and not one's tribesmen. The average Tanza- nian would understand how another Tanzanian would reasonably react in a particular situation. There would he the odd situation '-" hich would call for special knowledge of a particular cultural norm but such situations would neces- sarilly be few and far between. ln the present case the main defence was pro- vocation allegedly because the deceased had refused to cook and had uttered some words amounting to confessing to adulterous behaviour. The reasonable reaction would not be peculiarly K uria in the circumstances. 2. Increased physical mobility and heightened national awareness are now shrinking distances and lowering parochial barriers in Tanzania. It would not be in keeping with the spirit of the day to go along with Mr. Butambala, quite apart from the practical difficulties and great expense that woµld be involved in getting tribesmen from one corner of Tanzania to another to sit as assessor~. Imagine getting tribesmen from the extreme Southern end of Tanzania to sit as assessors in Bukoba where an accused person from the Makua tribe is on a charge. 3. In this particular case the appellant had lived in Bukoba for at least fifteen years. If you like, he had therefore been exposed to another tribal culture for long enough to react like a Bukoba man. The gentlemen assessors were evidently people from that area and so the appellant was among his pears. 4. In any event, at the beginning of the hearing, on 15th October, 1979 Mr. Rweyemamu, learned Defence Counsel, said that he \\·ould raise the defem,e of provocation and was prepared to proceed\\ ithout the. aid of assessors from the K uria tribe. 16 TANZANIA LAW REPORTS [1980] TLR ·by the.judgement and decree of the trial Court and hence this appeal to this Court. The appeal was co- nducted by Mr. Ngalo, learned advocate from a firm of M/S D'Souza, NgaJo & Company, advocates, of Arusha. The respondent who was duly served with notice of the appeal did not appear but wrote to this Court requesting permission of the Court for one C.J. Rengia to appear on the respondent's behalf under a power of attorney, or in the alternative the Court to proceed with the Rearing of the appeal in the absence of the respondent. The respondent's request to be represented· by a person holding a power of attorney cannot be entertained by virtue of r. 28 of the Tanzania Court of Appeal Rules, 1979, which provides 1111dor sub-rule 2 for apBearance of authorised attorneys only where the party concerned is not rbsidept .in the Uni- ted Republic. fn the present case the party concerned, that is the respondent, is resident in the United Republic and cannot therefore be represented by an attorney. While on tihis point, it is apparent that the said C.J. Rengia appeared on behalf of the'respondent at the trial in the High Court, apparently in the exercise of a power of attorney. It is also apparent that in the course of the trial the respondent herself appeared to give evidence on her behalf, after an objection by the advocate for the appellant was over-ruled by the learned trial judge. l am not aware of any provision of law permitting the conduct of a case by a person holding the power of attorney where the party concerned is also present in court. The learned trial judge, undoubtedly, was wrong to permit the said C.J. Rengia to appear in the case. I am also aware that this particular person has made various appearances in various other cases in tAe :rnbordinate courts at Moshi and the High Court at Arusha. He appears to be presenting himself to the public as an advocate. [t is, therefore, not out of place to point out to the courts below of the need to put to a stop to the unlawful activities of this person, should occasion to do so arise. To come back to tne facts of the case, it is evident from the proceedings in the High Court that the following primary facts are not in dispute 'between the parties: that the appellant is a brother-in-law of the respondent, who got married to the appellant's brother, who later died on the 6th November. 1970: that the respondent is the second wife of the deceased who was also survived by his first wife and a number of children; that the deceased husband of the respondent died intestate and left behind various properties and business in Moshi and Arusha; that the respondent was resident in Moshi whereas the first wife of the deceased was resident in Arusha at the time of the death of the deceased; that after the death of the deceased a me~ting of clan members was held on the 16th November. 1970. to discuss the estate of the de- ceased and related matters, with the result that D.W.3, that is. Jackson Moiro, was appointed to look aftor the deceased's estate as well as the children and wives of the deceased as required under the customary law of the parties concerned. Furthermore. there is no dispute that neither D.W.3 nor any one else took out any letters of Admini- stration of the deceased's estate: and that the respondent and her co-wife refused to be inherited by D. W.3; that a second clan meeting was thereafter called to consider the problem concerning the deceased's estate; that the problem was not finally resolved hut the appellant went to live with the respondent at Moshi; that subsequently the respondent wrote a letter tendered at the trial as Exhibit DI to the appellant in which she made a number of allegations agaimt him and required him to vacate the house in which she was living at Moshi; that the appellant in reply to Exhibit DI wrote a letter to the respondent and which was tendered at the trial as ;Exhibit P2 in which he made various allegations against the respondent. Both the letters by the respon9ent and that by the appellant were copied to the_ Area Commissioner, Moshi District. the Cha- irman of TANU. Moshi District. the Ward Secretary of Hsi South and a Ten-cell leader of the locality concerned. ft is apparent from the proceedings in the High Court that the respondents· case is that certain words used by the appellant in the letter tendered at the trial as Exhibit P2 were defamatory. On the other hand, the defence case of the appellant is a denial of the respo:ndenfs case and, in the alternative, is to the effect that the words complained of were written by the appellant on an occasion protected by a qualified privilege. The trial court framed the following issues for consideration and decision: (1) Whether the words complained of are capabl~ of any actionable or libellous meaning: (2) Whether the words, if so capable. were written falsely and maliciously: (3) Whether the words were written on an occasion of qualified privilege: and (4) To what relief, if any, are the parties entitled on the claim and on the counter-claim? As already mentioned the trial court gave judgment for the respondent. Seven grounds of appeal were submitted to this Court by the appellant but in arguing the appeal Mr. Ngalo, learned ao@vocate, dealt with the- appeal on four general grounds. Firstly. that the words complained of were not capable of having a defamatory meaning: secondly. that there was no evidence of publication r..A. JOHN NYAMHANGA BISARE v. REPUBLIC (NYALALI, C.J:) 17 or the alle~ed defamatorv words; thirdly, that in the _altern~tive, ~he w_orcis complained of were m:iclP- on ID occasion of qualified privilege without any malice on the part of the appellan~ and fourthly, that! many oase the damages awarded to the respondent were manifestly excessive. In the course of his arguments and in the light of responses and queries raised by members of this Court; Mr. Ngalo conceded that the words complained of, if false, are defamatory to the respondent. Learneq advocate, however, submitt~d that the words were made by the appellant on an occasion of qualified pri• vflege, in that the appellant, in writing the letter dated 10th March, 1974, (Exhibit P2) was exercising a mora1 and social duty in so far as he was replying to the matters raised by the respondent's letter dated 4th March, 1975, (Exhibit DI). i In Exhibit DI the respondent had raised matters concerning the estate of the deceased brother of the lpTJellant which had been a subject of discussions at meetings of clan members of the deceased. The r.es- pondent had alleged in effect that the estate of the deceased was saddled with a lot of debts and that the responsibility for discharging these debts had fallen solely on herself without any assistance being given to her by any relative of the deceased. including the appellant; and that the appellant instead of assisting her in discharging the debt burden went to live with her and was exploiting her by depending on her fully for his maintenance; that the estate left by the deceased at Moshi was for the benefit of the respondent and her child and that she was terminating the appellant's exploitation of her by requiring him to vacate the house in which he was living with the respondent at Moshi. In his letter tendered at the trial as Exhibit P2 the appellant wrote in rebuttal of the respondent's alle- gations by stating in affect that she was benefiting from the estate of the deceased at Moshi at the expense of the Arusha family of the deceased; that the appellant had endeavoured to advise the respondent in matters concerning the estate of the deceased but the respondent for ulterior motives had not acted on the advice and that the respondent had fabricated allegations against the appellant so that she could continue to exploit the estate of the deceased without Jet or hindrance from any person. I agree that an occasion under which a person is under amoral or social dutyto make certain statements would be an occasion of qualified privilege and that if the statements so made are defamatory the defence of qualified privilege would be available to such person if such statements are made without malice. Mr. Ngalo very helpfully cited the case of Adam v. Ward (1917] A.C. at page 309 which is a case decided by the House of Lords in Britain. In that case one Major Adam had made a violent speech in Parliament against the character of one Major General Scobell, a member of the army. Major General Scobell asked the army to make inquiries concerning the allegations made in the speech of Major Adam. The army made inquiries which brought to light matters rebutting the speech made by Major Adam and disclosed, matters which were defamatory to the said Major Adam. The outcome of the inquiries made by the army was widely published, the effect of which led Major Adam to sue for defamation. The House of Lords in that case held in effect that the occasion was one of qualified privilege and the plaintiff could not succeed in the absence .of malice on the ~rt of the defendant. 1 an_i of the vi_e~ that in the light of the contents of the letter written by the respondent and tendered. a! the tnal L> Exhibit DI the appellant was under a moral and social duty to·replyto it in the manner he did by writing Exhibit P2 and that the defence of qualified privilege is available to the appellant and thus the respondent can~ot ~u~ unless there is malice on the part of the ·appellant in writing Exhibit P2. Was there then malice m this case? Before I answer this question, I must consider the other limb of Mr Ngalo's submission in support of an occasion of qualified privilege. . Mr. Ngalo_ submitted in effect_ that the appellant in writing Exhibit P2 was defending himself or repe- lhng an attack m respect of allegations made by the respondent in Exhibit D l. I agree that the allegations made ~y the respondent amounted to a verbal attack against the character of the appellant and that the alle~ations made by the appellant in Exhibit P2 and which the respondent complains of are aimed at cou- ntering the attac~ made by the respondent. The learned trial judge considered this aspect and came to a contrary conclusion by stating in his judgment :- The offending words in the defendant's letter in my view were unrelated to the allega- tions contained in the plaintiff's letter. At best they are in the nature of counter- allegations. They do not however turn upon the allegations levied against him. Instead, they seem calculated to revenge. I _have carefully _examined and compared the allegations in the letter written by the respondent and those m the letter wntten by the appellant, and I find that all the allegations complained of by the respo- 18 TANZANIA LAW REPORTS [1980] TLR a.nd she felt pain: she had not lost her senses. P. W. l had stated that both her intruders had caps on - except that the accused's cap had not covered his face. Though P. W. I, as I said, is a truthful witness and had known the second accused from childhood which fact has been admitted by the accused himself, the inherent danger of the possibility of mistaken identity by her is to be kept in mind by this Court. P.W. l had seen the accused for the first time in a different attire from the one she normally used to see him in and the defence has submitted that this change of attire coupled with her fright and the fact that it was night time are factors that could have led P. W. I to have mistaken the identity of the accused. As was observed in the caseof AbdallahbinWendoandAnotherv.R., (1953) 20E.A.C.A. 166,168 that: 'a witness may be honest yet mistaken, and may make erroneous assumptions particularly ifhe believes that what he thinks is likely to be true must be true.' This means therefore that this Court must handle the evidence on the identification of the accused with extreme care and caution. As was stated in Abdo Ludova v. Uganda, E.A.C.A. Criminal Appeal No. 68 of 1975 that 'the principles applicable are 1,1,ell settled, and were stated in Wendo v. R., [ I 953] 20 E.A.C.A. 166 and approved in Roria v. Rep. (1967) E.A. 583. Before evidence of identification by a si ngJe witness can safely be accepted as free of the possibility of error, where conditions favouring a correct identification are difficult, there should be some other evidence, be it circumstantial or direct, point to guilt.' We agree with the view oft he learned trial Judge that the conditions at the material time of the robbery and the killing were unfavourable to a correct identification of the gangsters. The rule of practice relied on by the learned trial Judge requiring corrohoration of the evidence of a single witness of identification in cases where the conditions are unfavourable has been considered and accepted by this Court in the case of Magongwa Bosagala v. The Republic Criminal Appeal No . .11 of 1979 (unreported). The rule is one of practice and not of law and does not preclude a trial Court from convicting an accused person on the evidence ofa single witness of identification if the Court 1s,.(ully satisfied that the witness is telling the truth and after warning itself of the dangers of convicting on such uncorroborated evidence. f n the present case the trial Court rightly found that the conditions were unfavourable to a correct identification of the gangsters. From the evidence, it is apparent that P. W. I was not in a position to recog- nise any of the gangsters until one o(the gangsters flashed his torch light towards a curtain on the window. This will appear to be a short span of time and bearing in mind that the gangsters were disguised, there is need to look for corrohoration The learned trial Judge looked for corroborative evidence and stated as follows;- T au:ept the prosecution evidence that the accused had left his home very soon alter the killing of the deceased only to he arrested a year later. rt is unfortunate that the police were not more specific on the issue of how long exactly the accused was arrested following the release of the 10 suspects ·hut f accept their evidence, that it was imme- diately following the release of these 10 suspect'>. The accused·s conduct in leaving his house and disappearing for several months. knowing of the attack on the deceased and knowing that the police had gone to his house asking for him and his reappearance following the release often suspects when the a~ctJsed. as was submitted by the prosecution. must have thought the heat was ofT the case. was indicative.of his guilt and corrohorative of the truth of P. W.1 ·s evidence of accused's idc-ntification that he (the accused) was among the men who had attacked her and the deceased on the night of 24/8/77. There is sufficient corrohoration of P. W. J's evidence of identification of the accused hy conduct. Mr. Matemba, learned Advocate for the appellant. attacked this finding of the learned trial Judge regarding the. existence of corroborative evidence, and Mr. Loomu-Ojare, learned State Attorney, has conceded that on the record there is no evidence to support the finding that the appellant disappeared from his village after the death of the deceased. There is some evidence to the effect that the police visited the appellant's home on the 25th and the following day and did not find the appellant at home. There is. however, no evidence to suggest that the appellant could not be traced somewhere else in the villa~e on these two occasions when the police visited his home. Moreover. the evidence regarding the date when the NOYA GUMUSHA AND OTHERS v. REPUBLIC (MusTAFA, AG. C.J.) 19 ~Jani was arrested is conflicting. According to P.W.4, Detective Constable Francis, it would seem 't 1ppcllant was arrested on the 4th August, 1978, but according to the evidence of P.W.l the appellant . :· vo been arrested much earlier since P. W. l claims to have been summoned to go to the police station '" tlf'y the appellant a month after the incident. • • • • to the learned trial judge's finding that the appellant was arrested a year later, there is no credible .f't on the record to support it. This means therefore that there is no evidence to suggest that the •.)ant disappeared from his village after the death of the deceased. We have searched ~n the record of• 'al Court to see if there is any other evidence to corroborate that of P.W. l and we have found none. . ij, The learned trial judge appears to have been prepared to convict the appeUant on the uncorrob'orat~ .Ince of P.W.1 alone when he stated in his judgment:- . The witness' evidence therefore on identification leaves me in no doubt, even without any other corroborative, direct or circumstantial evidence that P.W. l had indeed identified the accused on the night of the attack as one of her attackers. . We agree, as mentioned earlier on in this judgment, that a trial Court can convict on the uncorrobora- llJ.ovidcnce of a single witness of identification if it is fully satisfied that such witness is telling the truth ! ~d o.ftcr wa{nin_g itself of the dangers of convicting on such un~rroborated eviden~. The question which ifJ}.'1~ therefore 1s whether P.W. l can safely be taken to be a witness who was telhng the whole truth and !fiqthmg but the truth. • ; ;.·~ . The learned trial judge appears to have been very impressed by this witness and went to the extent of ).nq.king his impression known to the assessors. With due respect, we are of the view that the learned trial J\A..dsc erred in making his impression known to the assessors, since such conduct was likely to improperly " lllucnce the gentlemen assessors. We are aware that -in his summing up the learned trial judge told the l\s,essors that they were free to ignore his.own impressions. But we do not think that such warning is a 'i ullicient safeguard against a judge's influence on assessors. We have carefully examined the .evidence of l'. W. I and we are unable to see how this-witness could be relied oµ without reservations. Her evidence was Jll conflict with that of P.W.3 in so far as she claimed to have met P.W.3 at the house of the deceased, whereas . ll. W.3 claimed to have gone to P.W.l 's house after the departure of the gangsters and thereafter the two of , fhom proceeded to deceased's house. Furthermore, P.W. l claims to have heard the robbers demanding money from the· deceased when f>. W. I was still inside her own house. Tber~ is evidence to the effect that the distance between the decea- • •11cd's house and' that of P.W. l was fifty- five paces. We are in great doubt whether P.W.1 was in a position clearly to h~1.r the robbers making their demands in the house of the deceased. In short, therefore, we are of the view that P.W.1 cannot, without reservations, be taken to be a witness of truth and the trial Court would have been wrong 'to convict' solely on her own evidence of identification when conditions of identifi- cation were unfavourable. In other words; this is a case where corroborative evidence is required as a matter of prudence. In the absence of such evidence, the conviction of the appeljant cannot be sustained. In the final analysis, therefore, this appeal succeeds and we quash the conviction, set aside the scn~ and direct that the appellant be released from jail forthwith unless detained therein for some other lawful cause. Appeal ! Allowc4.