[1952] EACA 241

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and Sir Hector Hearne, C. J. (Kenva)

# ASMANI ALIAS KATOTO s/o KIGANGA, Appellant (Original Accused)

### REGINA, Respondent (Original Prosecutrix)

Criminal Appeal No. 70 of 1952

(Appeal from the decision of H. M. High Court of Tanganyika—Sinclair, J.)

Murder-Grave and sudden provocation-Husband's suspicion of adulterous association.

The appellant was convicted by the High Court of Tanganyika of the murder of his wife's paramour. He admitted the killing but pleaded acting under the stress of sudden provocation. The appellant suspected an adulterous association between his wife and the deceased and set a trap to catch them. He lay in wait with a spear until the deceased, his wife and child were asleep. When the deceased awoke and sat up the appellant stabbed him with the spear.

Held (9-6-52).—The mere existence of an intention to kill would not of itself deprive an accused of the defence of provocation. But the intention must still be inspired by sudden provocation. No loss of self-control was attributable to the deceased.

Anneal dismissed

Cases referred to: Holmes v. Director of Public Prosecutions, (1946) A. C. 588; Rex v Yafesi Nabonde, (1948) 15 E. A. C. A. 71.

#### Appellant absent, unrepresented.

Summerfield, Crown Counsel (Tanganyika) for Crown.

JUDGMENT.—The appellant was convicted by the High Court of Tanganyika of the murder of his wife's paramour by stabbing him through the heart with a spear. In a long and detailed extra-judicial statement, to which he adhered at the trial, the appellant admitted killing the deceased because he found him sleeping with his wife and the only ground of appeal is that the learned trial Judge ought to have held that the provocation received by the appellant was sudden and that he acted under the stress of it, so as to reduce his offence to manslaughter.

The main facts of the case are not in dispute. The appellant's own story is that he strongly suspected a liaison between his wife and the deceased and decided to test this. He therefore gave out that he was going to visit relatives and would not be back until the following day: he went away but came back secretly the same night and, unseen himself, saw first his wife and then the deceased go to the "verandah" of a certain house where they lay down and "slept together". The appellant had armed himself with a spear. Having waited till everyone was asleep he approached and, in his own words, "saw the man, my wife and the child sleeping there. I did not want to hurt the child. As I was standing there the man awoke, he sat up and grasped my left hand. I then stabbed him. I wanted to stab my wife also but the neighbours were awakened by her screams when the man fell so I ran away". The Crown had no opportunity to cross-examine the appellant on this statement and it is not quite clear how much he actually saw of what took place on what he calls the "verandah". It was a night of full moon and the wife's evidence was that she and the deceased were lying on the floor of a room the door of which was ajar.

The learned trial Judge held, and rightly held, that there could be no doubt that the appellant intended to kill the deceased. The question for our consideration is whether he was also right in holding that there was no sudden provocation. On this he says: —

"The accused had a strong suspicion that the deceased and his wife were committing adultery and he set a trap to catch them. It could have been no surprise to him when he caught them in adultery. His actions were not those of a man deprived of his self-control by sudden knowledge of his wife's adultery; they showed design and cool calculation. Not only did he set a trap for them but when they were caught in the trap he coolly waited until everyone was as eep before he advanced to kill them. This must have been a considerable period for his wife testified that after they had had sexual intercourse she went to sleep but was awakened later in the night by the deceased to have further sexual intercourse and it was when the deceased got up after this second intercourse that he was killed. Even when the accused came upon them sleeping together he did not strike but held his hand until the deceased wakened because he did not wish to harm his child."

The law relating to provocation in cases of this nature is in one respect peculiar. In Holmes v. Director of Public Prosecutions, (1946) A. C. 588, Viscount Simon in a speech with which Lord Porter, Lord Simonds and Lord Du Parcq concurred said (at p. $598$ ):—

"The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill (such as Holmes admitted in the present case), or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Only one very special exception has been recognized, viz., the actual finding of a spouse in the act of adultery. This has always been treated as an exception to the general rule: Rex v. Manning. Blackstone (Commentaries) (Book IV, p. 190), justifies the exception on the ground that there could not be a greater provocation. But it has been rightly laid down that the exception cannot be extended, e.g. by Parke B. in Pearson's case, where he insisted on the condition of ocular observation. Even if Iago's insinuations against Desdemona's virtue had been true, Othello's crime was murder and nothing else."

It follows from this that the mere existence of an intention to kill or inflict grievous harm on the adulterer would not of itself deprive an accused of the defence of provocation. Nevertheless the intention must still be inspired by the sudden provocation, that is to say, by the actual finding of a spouse in the act of adultery. Sudden provocation cannot therefore be successfully pleaded if the intention has been formed beforehand and the wronged spouse has been only waiting before carrying it out for an opportunity to confirm his knowledge or suspicion of the adultery.

So also in cases where, even though the inteniton is inspired by the provocation, the execution of it is not the result of immediate reaction but is delayed and deliberate: it is not open to a man who coolly and with calculation postpones his attack until the adulterous pair have gone to sleep to plead that he was suddenly provoked.

In Rex v. Yafesi Nabonde, (1948) 15 E. A. C. A. 71, this Court held that when an accused is charged with the murder of his wife's paramour and it is established that he had prior knowledge of the adulterous association and was privy to a plot to catch them together, the defence of provocation by sudden knowledge is not open to him. The learned trial Judge applied this principle to the instant case on the ground that the appellant, although he may not have had actual knowledge of a prior adulterous association, had so strong a suspicion that he set a trap to catch them. We would not go so far as to say that merely watching to confirm a suspicion would of itself in every case negative sudden provocation. Every such case as this must depend largely upon its own facts. In the present case the appellant's suspicion must have hardened into a practical certainty when he saw the deceased lie down with his wife: even he had not already formed the intention to kill when he lay watching, there can be no doubt at all that he formed it before he approached the house and that his killing of the deceased was not attributable to loss of self-control but was a deliberate act of revenge and retaliation for the wrong done to him.

There are features in the case which will no doubt receive consideration in another quarter but it is clear that the learned trial Judge correctly applied the law to the facts of this case. The appellant was properly convicted of murder and this appeal must be dismissed.