[1938] EACA 122

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir JOSEPH SHERIDAN, C. J. (Kenya); WHITLEY, C. J. (Uganda); and KNIGHT-BRUCE, Ag. C. J. (Tanganyika)

REX, Respondent (Original Prosecutor)

LYANGIA BIN LUWANYA & KITENGWA BIN KADEDE, . Appellants (Original Accused)

Cr. Apps. Nos. 75 & 76 of 1938.

Appeals from convictions by H. M. High Court of Tanganvika.

Criminal Law and procedure—Absence of defence witness—No application at trial for adjournment—Evidence—Hearsay—Statement by deceased persons—Indian Evidence Act, Sec. 32 (1).

Appellants appealed from conviction of murder of their brother. At the preliminary inquiry the second appellant gave the name of one B. as a witness whom he intended to call at his trial. The witness did not appear at the trial and Counsel for defence did not apply for an adjournment as he was satisfied that every reasonable effort had been made to procure the attendance of the witness and that it was difficult to lay hands on an unwilling witness in the district where B. lived. The evidence which this witness could be expected to give was unlikely to have carried the defence case further.

Evidence was admitted of statements indicative of fear of the appellants, made by the deceased a considerable time before the attack which resulted in his death. The other evidence alone was sufficient to establish the guilt of the appellants beyond reasonable doubt.

Held (20-8-38).-(1) That the second appellant suffered no injustice through his inability to call the witness and a retrial should not be ordered.

(2) That the statements were inadmissible since they were not statements as to the cause of death nor were they statements as to the circumstances of the death of the deceased. (Appeals dismissed.)

Ross for the appellants.

Dennison, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by Whitley, C. J.).—With the consent of Mr. Ross, who appeared for both appellants, these two appeals (Nos. 75 and 76 of 1938) were consolidated. Before dealing with the facts Mr. Ross made two submissions on points of law. The first affected only the second appellant. At the preliminary inquiry this appellant gave the name of Balombalila as a witness whom he wished to call at his trial. At the trial this man railed to appear and the learned trial Judge made the following note, "Nene (Counsel for defence) states that Balombalila though bound over has gone to Songwe and is not available." Mr. Ross submitted to us that we ought to order a retrial in the case of this appellant on the ground that he ought to have been given an opportunity of securing the attendance of this witness. We communicated with the trial Judge and he has informed us by telegram that no application was made for an adjournment by counsel

for the defence who was satisfied that every reasonable effort had been made to procure the attendance of the witness and that Songwe being close to the Congo border it is difficult to lay hands on an unwilling witness from that district. An accused person must of course be afforded every reasonable opportunity of calling witnesses to support his case and any failure to afford such opportunity is a good ground for ordering a new trial. But in the present case there is nothing to indicate that there has been any such failure. No application for an adjournment was made by counsel and in view of the circumstances and of the nature of the evidence which the missing witness would apparently have been expected to give, we do not feel that counsel in any way failed to appreciate his duty to his client when he omitted to apply for an adjournment. It appears from the evidence of Hungu that he. Balombalila and the second appellant all slept that night at the millet field some 500 yards from the scene Hungu's evidence failed to establish the second of the crime. appellant's alibi inasmuch as he could not prove that the second appellant had not left the field whilst Hungu slept and it is difficult to see how Balombalila could have carried the case any further. We are satisfied that the second appellant has in fact suffered no injustice through his inability to call this witness and we see no reason to order a retrial.

The second point concerned the question as to the admissibility of certain evidence. Kirondeza a widow of the deceased stated under cross-examination, "My husband used to say that his brothers would come and kill him but I don't know who he meant." Other earlier statements by the deceased indicative of fear of the accused were also admitted. No objection was taken by counsel at the trial to this evidence but Mr. Ross very properly pointed out that that omission does not preclude this Court from striking it out and he invited us to rule that it is inadmissible. We agree with his submission. Statements such as these made by a person who is dead and therefore cannot be called could only be admissible under section 32 (1) of the Evidence Act—which provides that a statement written or verbal made by a person who is dead is relevant when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. They are relevant whether the person who made them was or was not at the time they were made under expectation of death. To this extent the section constitutes an extension of the English law and must therefore be construed strictly. The statements by the deceased which were admitted in this case were clearly not statements as to the cause of his death. Can it be said that they were statements as to the circumstances of the transaction which resulted in his death? We think not. They were made long before the attack upon the deceased and the only way in which they could be regarded as being in any way connected with the actual attack would be by arguing that they disclose that the deceased previously thought that he had reason to be afraid of the two accused. In our opinion the nexus is not sufficiently close and it would be widening the scope of the section too far if we were to admit the statements on such grounds. As to whether or not statements can only be admissible under the section when they are made after the deceased has sustained his fatal injuries we express no opinion as that point was not fully argued and appears to be one of some nicety.

These statements having been ruled out the question which we have to decide is whether there remains sufficient other evidence to establish the case against the accused beyond reasonable doubt. In. other words does it appear that if that evidence had been excluded the Court must yet have come to the same conclusion. We think that it must. Kirondeza the deceased's youngest wife who was lying awake with him in bed deposed to having seen both accused enter the room with knives in hand, one stabbing the deceased and the other threatening her. She knew the second accused by sight and there was ample light so that as regards him there could be no possibility of genuine mistake. She was believed by the learned Judge and the assessors in her identification of both accused and reading her evidence it seems to ring true. The deceased told several persons that the two accused had attacked him and Ndayandi another wife after hearing the deceased shout out—went out from her house—a separate one-into the compound and was knocked down by the two accused whom she saw running from the deceased's house. That is ample evidence, if believed, to support the conviction. It was believed by the Court and we can see no reason why it should not have been believed. The evidence in support of the alibis of the two accused is not such as to throw a reasonable doubt upon the case for the prosecution. The appeals will be dismissed.