[1950] EACA 507

### H. M. COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR NEWNHAM WORLEY (President), SINCLAIR (Vice-President) and BACON, Justice of Appeal

#### ZEDEKIA LUKWAGO, Appellant (Original Accused)

### υ

# REGINAM, Respondent

#### Criminal Appeal No. 535 of 1955

(Appeal from the decision of H. M. High Court of Uganda, Keatinge, J.)

Manslaughter—Sentence—Degree of force permissible in defence of the person— Facts relevant to sentence.

The appellant killed a man whom he stated had entered his house while the appellant was asleep. He claimed to have acted in self-defence. He was charged with and convicted of manslaughter and was sentenced to imprisonment for life.

Held (12-4-56).—While the trial Judge was correct in finding that the killing of the deceased was not justifiable because he used excessive force when force was no longer necessary,<br>the facts alleged by the appellant, if true, were relevant for the consideration of sentence. The Judge had misdirected himself on the question of self-defence of the person and this must have had its effect on the assessment of sentence.

Conviction affirmed. Sentence reduced to seven years' I. H. L.

No cases.

Appellant in person.

Dickie for respondent.

JUDGMENT (prepared by Worley, President).—This appellant was charged before the High Court of Uganda sitting at Kampala and convicted of the manslaughter of an old man called Yakobo aged about 60 years. He was sentenced to imprisonment for life.

The undisputed facts are that on the morning of 4th June, 1955, Yakobo's dead body was found in the accused's house. It bore six very severe wounds including the complete amputation of the right hand, and accused admitted that he had inflicted these wounds and thereby killed the deceased. He put forward the excuse of self-defence, alleging that early in the evening of 3rd June (probably about 7 p.m.) he fastened both doors of his house and went to bed and to sleep. He was awakened, he said, by the deceased pulling off his bedclothes and, on his trying to capture the intruder, he was set upon and acted, as he claimed, in self-defence.

We find it rather difficult to discover from the record exactly what the Crown case was and exactly what facts the learned trial Judge found proved. The nature and the number of the injuries inflicted on Yakobo showed a prima facie case of murder and it must be assumed, from the fact that the appellant was indicted for manslaughter only, that the Crown considered his acts were partially excused. But it is by no means clear whether the Crown accepted the accused's story that the deceased broke into the house. The learned trial Judge in his judgment found that there was no evidence whatever to support the accused's claim that his house was broken into. If this story is rejected, however, there is no explanation of the deceased's presence in the accused's house and there is no indication in the evidence that the attack on the deceased took place outside the house, the body being dragged in afterwards.

The learned trial Judge observed that even were the appellant's story accepted as true "it would avail him nothing". We take this to mean from the passage which follows that in the circumstances of this case, even were the appellant acting in defence of his property or of his person, his killing of the deceased was not justifiable because he used excessive force when force was no longer necessary. We think that this finding was correct in law and in fact and that the appellant was rightly convicted, but we also think with respect that the facts alleged by the appellant, if true, were relevant for the consideration of the appropriate sentence to be passed. It was, therefore, we think, necessary for the learned trial Judge to arrive as best he could at a conclusion as to what actually happened. This he failed to do.

He also, with respect, misdirected himself on the question of self-defence of the person when he said: "One must use all means of escape. In this case there was nothing to prevent the accused from running out of the back door... In any event it is clear that according to the accused the deceased was trying to escape and all he need have done was to allow him to escape". We do not think that it is the law that a householder attacked in his own house by an intruder is required to use all means to escape. It is a mistake in such circumstances to draw a hard and fast distinction between the right of defence of property and the right of defence of the person. The householder is entitled either to seek to arrest or to expel the intruder and, should he be attacked in so doing, to use all necessary force to repel such attack and to effect the arrest or the expulsion. We thought that this misdirection must have had its effect on the mind of the learned Judge in assessing sentence. In all the circumstances of this case we were of opinion that the sentence of life imprisonment was manifestly excessive and we reduced it to seven years' imprisonment with hard labour.