[1952] EACA 249

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and Cox, C. J. (Tanganyika)

YUSUFU ALIAS HEMA s/o LESSO, Appellant (Original Accused)

v.

REGINA, Respondent (Original Prosecutrix) Criminal Appeal No. 144 of 1952

(Appeal from the decision of H. M. High Court of Tanganyika—Sinclair, J.) Homicide-Wrongful act done to property-Whether provocation.

The appellant was convicted of murder before the High Court of Tanganyika. The facts were not in dispute. The appellant was woken at midnight by a noise as of someone digging at the wall at the back of his house. He seized a bill-hook and seeing two persons running away, pursued them. One fugitive fell and the appellant struck him several times on the head with a bill-hook killing him.

Held (23-10-52).—The question of provocation vide section 201 and 202 Penal Code does not arise in the case of wrongful acts done to property.

Appeal dismissed.

Cases referred to: Rex v. Murume, (1945) 12 E. A. C. A. 80; Rex v. Machage, (1935) 2 E. A. C. A. 94.

Master for appellant.

Halliwell, Crown Counsel (Tanganyika) for Crown.

JUDGMENT.—The appellant herein was convicted before the High Court of Tanganyika sitting at Singida of the murder of one Tandu. The facts are not in dispute. At about midnight on the night of 8th and 9th April, 1952, the appellant was awakened by a noise as of someone digging at the wall at the back of his house. He got up from his bed, seized a bill-hook and went outside. As he rounded the corner of the house, he saw two persons running away in different directions. The appellant pursued one of them for about one hundred yards. The fugitive was carrying something in his hand, but there is no evidence as to what this thing was. The fugitive fell and the appellant caught up with him and struck him several times on the head with the bill-hook. The appellant then returned to his house and saw that an attempt had been made to dig a hole in the wall, some of the bricks having been removed. He then sent his young son to call a Native Court Messenger. When the latter arrived, the appellant took him to the place where he had struck the fugitive, and there they found the dead body of the deceased, Tandu.

Post-mortem examination showed no less than seven cut wounds on various parts of the head and face and one on the left side of the chest. The worst injury was one which fractured the frontal bone and penetrated to a depth of two inches into the brain: other wounds had cut the nasal cartilages, cheek bones and jaw bones, the cause of death being the injury to the brain and other multiple injuries. On these facts the learned trial Judge and the assessors found the appellant guilty of murder.

The question for consideration in this appeal is whether the learned Judge was correct in his conclusion that these facts provided no answer to the charge either by way of excuse or justification so as to entitle the appellant to an acquittal, or by way of mitigation so as to reduce the offence from murder to manslaughter. In order that all proper considerations should be before the Court, we directed that counsel be assigned to argue the appeal, and we are indebted to Mr. Master, who has put before us everything that could be said on the appellant's behalf.

In the memorandum of appeal two substantive grounds are put forward: (a) that the learned trial Judge erred in holding that the appellant's dominant intention was to kill the deceased in retaliation and not merely to effect his arrest; and $(b)$ that, assuming the appellant exceeded his right to use all means necessary to effect the arrest of the deceased, the learned trial Judge ought to have held that the appellant was guilty of the offence of manslaughter only.

In addition to these grounds, Mr. Master has urged that the learned Judge failed to take into account the defence of sudden provocation under section 201 of the Penal Code. It is not quite correct to say that the learned Judge did not consider it, for he has said in his judgment that although the attempt of the deceased and his companion to burgle the appellant's house was a provocative act, the provocation was clearly insufficient to reduce the offence to manslaughter. In our opinion the question of provocation does not arise at all in the circumstances of this case. Section 202 of the Penal Code defines the terms "provocation" as meaning and including "any wrongful act or insult" of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care or to whom he stands in the specified relationships to deprive him of the power of selfcontrol etc." The next paragraph of the section speaks of such an act or insult being "done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that person, or to whom the latter stands in any such relation as aforesaid." We think that this definition must be confined to wrongful acts done to the *person* and does not extend to wrongful acts done to property. We shall have occasion to consider later in this judgment the rights of a person whose property is the subject of a wrongful act, but those fall under a different rule of law. But, except for the one reported case of *Rex v. Murume*, (1945) 12 E. A. C. A. 80, we know of no case either in these Territories or in England in which an act done to property and unaccompanied by any act or insult done or offered to a person has been held sufficient excuse for such loss of self-control as to justify reduction of a charge of murder to manslaughter. Rex v. Murume purports to be a decision on particular facts, which were that the appellant had suffered several thefts of produce from his shamba and one night, hearing the noise of sugar canes being pulled, he threw a spear and killed the deceased. In delivering the judgment of this Court, Sheridan, C. J. said that the person to whom the spear was thrown "was committing a wrongful act" and that "the case was one to which the local definition of legal provocation in sections 202 and 203 of the Penal Code can and should be applied". The sections cited correspond to present sections 201 and 202 of the Code and did not differ from them in any respect material to our present purpose. It appears from the report that the Court then distinguished the case of Rex v. Machage, (1935) 2 E. A. C. A. 94 (which indeed turned not upon any question of provocation but upon the extent of the right of arrest) and then concluded with the words: "We may say that it is very difficult to lay down a hard and fast rule in cases of this kind, nor is it desirable to do so. The facts of each case have to be carefully considered with a view to ascertaining whether the provocation provisions to which we have referred apply." With respect we agree, but such considerations do not warrant any extension of those provisions to a type of wrongful act which is neither covered by the wording of the section nor sanctioned by precedent and authority. The actual decision in $Rex$ v. Murume might perhaps be justified upon another ground but in so far as it purports to be founded upon the doctrine of provocation it was, in our opinion, wrongly decided.

The two defences which were available to the present appellant were $(a)$ his right to defend his property, and $(b)$ his right to arrest the intruders.

As to $(a)$ , there can be no doubt that the appellant was entitled to drive off the persons who were seeking to break into his house and, if necessary to inflict death in so doing. As is stated in Archbold's Criminal Pleading, Evidence and Practice, 32nd edition, at page 909: "If any person attempts burglariously to break into a dwelling-house in the night time and is killed in the attempt the slayer is entitled to acquittal for the homicide is justified and the killing is without felony." Or, as it is put in Hales Pleas of the Crown, at p. 486, "If a man comes to rob me, or take my goods as a felon, and in my resistance of his attempt I kill him, it is se defendendo at the least and in some cases not so much". But this rule cannot avail the appellant in the instant case, for the intruders desisted from their attempt to break in as soon as he appeared, and in fact he pursued one of them for one hundred yards before catching and killing him.

As to $(b)$ , section 32 of the Criminal Procedure Code provides: —

- "(1) Any private person may arrest any person who in his view commits a cognizable offence, or whom he reasonably suspects of having committed a felony. - (2) Persons found committing any offence involving injury to property may be arrested without a warrant by the owner of the property or his servants or persons authorized by him."

The learned trial Judge apparently treated the case as coming under the first sub-section for he says in his judgment that the deceased was discovered by the appellant "committing a felony". This is not strictly correct for the combined effect of sections 294 and 381 of the Penal Code is that an attempt to make a burglarious entry is a misdemeanour only. However, this mistake is of no importance since the case clearly comes within the second sub-section, and by virtue of section 19 (2) of the Criminal Procedure Code the appellant was entitled to use "all means necessary to effect the arrest" of the fugitive. The measure of what means are to be deemed necessary or what degree of force is reasonable is indicated by section 19 of the Penal Code, which provides: -

"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 apprehension of such person, have regard to the gravity of the offence which had been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person."

It cannot be validly contended that the learned trial Judge did not correctly direct himself on this aspect of the law, for in his judgment, after referring to the two relevant sections of the Code, he says: "If the accused's intention was merely to effect the arrest of the deceased, the degree of force which he used was unnecessary and grossly excessive in the circumstances. One blow with the bill-hook might have been justified, but not the series of blows which he rained upon the deceased." Had that been all and had the learned Judge come to the conclusion that the appellant had merely exceeded his right to arrest and used an unreasonable or unnecessary degree of force, he might properly have found him guilty of manslaughter only, but the Judge did in fact—and here the assessors were of the same opinion-reject the view that the appellant was seeking to effect an arrest. He says: "The nature of the attack, however, indicates clearly to my mind that the accused's dominant intention was to kill the deceased in retaliation and not merely to effect his arrest." This is an inference drawn from the proved and admitted facts which we, sitting as Court of Appeal, cannot say was unreasonable and with which indeed we agree. From that finding, a conviction of murder necessarily followed.

There are no doubt circumstances in the case which will receive consideration in another quarter, but they are not matters which we can take into consideration at this stage, and this appeal must therefore be dismissed.