[1949] EACA 44

### COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Graham Paul, C. J. (Tanganyika), Edwards, C. J. (Uganda). and SIR JOHN GRAY, C. J. (Zanzibar)

REX, Respondent (Original Prosecutor) $\boldsymbol{\mathrm{\nu}}$

# ANTON s/o ALOISI, Appellant (Original Accused) Criminal Appeal No. 171 of 1949

### (Appeal from decision of H. M. High Court of Tanganyika)

Murder—Words assailing virtue of appellant's niece—Whether provocation— Tanganyika Penal Code, section 202.

The deceased sang a song in which the virtue of the appellant's niece was. assailed; she was not under the immediate care of appellant, nor was appellant her master or servant.

- Held (17-10-49).—(1) That fact did not afford sufficient provocation to reduce the offence to manslaughter as the niece did not stand in a "conjugal, parental, filial or fraternal relation". - Held also (2) it was not intended in Cr. App. 73/49 Kinyange s/o Kidinha v. Rex, to lay down a rule that a Judge should never in his judgment comment on the failure of an accused to give evidence; further it would be bad law to suggest there was any distinction in the mode of trial between pagans and non-pagans.

Cases referred to: R. v. Hussein s/o Mohamed, 9 E. A. C. A. 52; R. v. Welwel bin Kamara, 2 E. A. C. A. 83; R. v. Mvula s/o Irove, 11 E. A. C. A. 112.

#### Appellant absent, unrepresented.

Munir, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by EDWARDS, C. J.)—This is an appeal from a conviction and sentence of death for murder passed by the High Court of Tanganyika. The main ground of appeal is that the appellant should have been convicted of manslaughter only by reason of the fact that he had received provocation in that the deceased victim had sung a song containing words the import of which was to attack the virtue of the appellant's niece. The sole question of law for us to decide is whether it can be said that this was an insult done to the appellant himself (granted that he is an ordinary person) or, in the appellant's presence, to another person who was under his immediate care or to whom the appellant stood in conjugal, parental, filial or fraternal relation within the meaning of section 202 Tanganyika Penal Code, 1945. It is not suggested that the appellant is not an "ordinary person" nor was his niece either under his immediate care nor was the appellant her master or her servant. Can it therefore be said that his niece stood to him in a "conjugal, parental, filial or fraternal relation"? We do not think so because, had the Legislature intended to include such a relation as that: of uncle and nephew or niece, it would have been easy for them to have added. such a word as "avuncular" after the word "fraternal". Authority for our view is to be found in the case of Rex v. Welwel bin Kamara, 2 E. A. C. A. C. R. 83 where this Court held that section 192 (the corresponding section in the earlier code) laid down a precise rule of law by which "provocation" is limited to acts or insults done to the accused himself or persons within the categories mentioned therein. Nor do we consider that to say things derogatory of a man's niece amounts to an insult done to the man himself. Because of the interpretation which. we place on section 202 it is unnecessary for us to consider whether the words of the song were of so insulting a nature as to afford legal provocation. Had we found it necessary to consider this question we would have felt bound by the decision of this Court in Rex v. Hussein s/o Mohamed, 9 E. A. C. A. 52 followed in Rex v. Mvula $s/o$ Irove 11 E. A. C. A. 112. The only other ground of appeal is that it would have been fairer had the learned trial Judge refrained, in his

summing up to the assessors and in his judgment, from commenting on the fact. that the appellant did not give evidence. We have perused the learned Judge's notes of his summing up and although the Judge *did* comment on the fact that the accused had called no witnesses, he made no comment on his failure to give evidence. In his judgment he said: "The accused, though carefully informed of his rights under the law, did not give evidence in his defence. He maintained in unsworn statement, however, that he had spent the evening of 2nd April quietly in his own house at Kibosho and had gone to bed at about 7 p.m. I need only say that his statement is completely uncorroborated and that I have no hesitation in rejecting it, in full agreement with the assessors".

Later, the Judge said: "In the expectation that this case will come before His Majesty's Court of Appeal for Eastern Africa I would very respectfully seek guidance on a matter arising out of Criminal Appeal No. 73 of 1949, Kinyange s/o Kidinha v. Rex, which matter is common to this present case. In the former case (as in this) the accused did not give evidence on oath and in my judgment I commented unfavourably upon that fact, as I have frequently done in similar circumstances in the past. In the learned judgment of the Court of Appeal, however, my comment is criticized as follows: -

We think that since the appellant was a pagan, he may not have realized • that his failure to enter the witness box at his trial might have led to adverse unfavourable comment; we accordingly hold the opinion that it would have been fairer had the learned Judge not referred to it.'

Unless I have misunderstood the position therefore, comment of this nature is not unfair if the accused is a Christian—but is if he is a pagan—(the question of a Mohammedan or other believer also arises)—and it would seem to follow that at the close of the case for the Crown when the accused elects to make an unsworn statement the Court should ask him to what, if any, religious belief he professes so as to ensure that he is not unfairly treated in the judgment. In short, it would seem that persons of different religious beliefs should be treated differently—a proposition which I must confess is new to me.

It may very well be that I have misconstrued the passage quoted above from the learned judgment and it is for this reason that I seek further guidance as the point is an important one of almost daily occurrence."

It is, pehaps, a fortunate coincidence that two of the members of the Court as constituted for the hearing of this appeal were also members of the Court which decided Cr. A. 73 of 1949. That makes it easier for the present Court to deal with the problem which has troubled the learned trial Judge. We would, at the outset, say that the remarks made by this Court in Cr. A. 73 to which the learned trial Judge has referred were, of course, merely obiter.

We wish to make it abundantly clear that no duty is cast upon a trial Court to go beyond, or in any way to add to, the words of section 278 (2), Criminal Procedure Code. In short, section 278 (2) lays no obligation on a trial Judge to inform an accused person, whatever his religious faith or if he is a pagan, of the probable consequences of his failure to give evidence on oath or affirmation. It was not intended by the judgment in Cr. A. $73/1949$ to lay down a rule that Judge should never in his judgment comment on the failure of an accused to $\overline{a}$ give evidence, and we certainly now wish to make it clear that, in this connexion it would be bad law to suggest that there should be any distinction, or differentiation, in the mode of trial between accused persons who are pagans. The words "since the appellant was a pagan" used by this Court in Cr. A. 73 of 1949 were, perhaps, unfortunate, but we trust that we are setting the mind of the learned trial Judge at rest when we now say that, in any event, the comments made in Cr. A. 73/1949 must not be regarded as extending beyond the facts of that particular case, namely, the case of Kinyange s/o Kidinha. As no other grounds of appeal are taken in the Memorandum of Appeal before us in the present case, we dismiss this appeal. $\cdots, \; \;$