[1947] EACA 52

## COURT OF APPEAL FOR EASTERN AFRICA

## Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and THACKER, J. (Kenva)

#### REX, Respondent (Original Prosecutor)

v.

# ZAKAYO LWABIJJAWO. Appellant (Original Accused) Criminal Appeal No. 249 of 1947

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

Criminal law—Manslaughter not pleaded—Duty of Court to consider.

The accused, in a trial for murder, pleaded the defence of accident, which the Court rejected. There was no reference to provocation or manslaughter in the judgment.

Held (7-11-47).—That where, in a trial for murder, a defence is put forward and rejected by the Court, it is still the duty of the Court to consider also the possibility of manslaughter<br>if there is some evidence to support it. In this case however there was no such evidence.

Rex v. Mwaniki IX E. A. C. A. 40; Mancini v. Director of Public Prosecutions (1941) 3 A. E. R. 272; Rex v. Kwaku Mensah 115 L. J. Reports 20; Rex v. Hopper (1915) 2 K. B. 431, referred to.

Appellant absent, unrepresented.

Sir James Henry, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by NIHILL, C. J.).-The appellant was convicted of murder in the High Court of Uganda on evidence which showed that he speared the deceased man, Nasaneiri, in the back whilst he and others were gathered round the appellant's house which was on fire. At his trial the appellant put forward a defence which we agree with the learned Chief Justice was a fantastic one. It is idle to suppose that the appellant could have thought the deceased was an animal. Certainly it was night time, but the deceased was gathered with other spectators watching the burning house, the blaze from which must have afforded considerable illumination. Both the assessors also rejected this story and gave cogent reasons for so doing. On this ground of appeal the appellant clearly fails.

We have considered, however, although it is not put forward as a ground of appeal, whether the learned Chief Justice should have directed himself and the assessors as to whether there was anything in the case as a whole to suggest that the appellant speared the deceased under the stress of provocation caused by a belief, honest although mistaken, that it was the deceased who had set fire to the house. We have no record of the learned Chief Justice's summing-up, but as there is no reference to provocation in the judgment we think it fair to assume that he did not refer to it. There is authority, both in East Africa and in England for the rule that where a defence of accident is put forward by the accused and rejected by the Court, it is still the duty of the Court to consider also the possibility of manslaughter, even though the accused does not put forward that defence, if there is some evidence to support it (Rex v. Mwaniki, IX E. A. C. A. Law Reports, p. 40, and Mancini v. Director of Public Prosecutions (1941), 3 A. E. R. 272), and the same principle has more recently been approved in the Privy Council case Rex v. Kwaku Mensah, 115 L. J. Reports, p. 20.

In that case, which was an appeal against a conviction for murder in the Gold Coast Colony, where the defence relied on was one of accidental killing, Lord Porter at page 23 puts the principle thus: "But if on the whole of the

evidence there arises a question whether or not the offence might be manslaughter only, on the ground of provocation as well as on any other ground, the Judge must put that question to the jury. This was distinctly laid down in R. v. Hopper (1915), 2 K. B. 431, a case in some respects resembling the present, $\cdot$ more especially in that the line of defence adopted was that the killing was accidental, and no attempt had been made at the trial to rely on provocation. The rule was expressly approved by the House of Lords in *Mancini v. Rex.* The reason for the rule is, that on an indictment for murder, it is open to a iury to find a verdict of either murder or manslaughter, but the onus is always on the prosecution to prove that the offence amounts to murder if that verdict is sought. If on the whole of the evidence there is nothing which could entitle a jury to return the lesser verdict the Judge is not bound to leave it to them to find murder or manslaughter. But if there is any such evidence, then, whether the defence have relied on it or not, the Judge must bring it to the attention of the jury, because if they accept it, or are left in doubt about it, the prosecution have not proved affirmatively a case of murder."

After a detailed examination of the evidence in this case it is the opinion of the majority of the Court that there was no evidence on which an hypothesis involving provocation could be constructed and that the learned Chief Justice accordingly did not err in not addressing his mind to the possibility that the appellant had acted under the stress of provocation. Indeed we think it may be said without any unfairness to the appellant that there is positive evidence which excludes it. Thus the first prosecution witness, the woman Nakku, testified that at the scene of the fire the appellant had stated that he suspected no one of burning his house, but put it down to "children and fowls". When seized after the spearing by those standing round he gave the following explanation: "Don't you know the trouble between us? It is due to fires," Taken by itself this remark might perhaps seem to indicate that some belief existed in the appellant's mind that the deceased was responsible for the disaster, but there was other evidence to the effect that the deceased was a chief who prevented people from burning jungle near their homes and that on his complaint the appellant had been fined Sh. 10 by the Gombolola for so doing. This, coupled with the appellant's previous statement to Nakku, and to the fact that he has never at any stage alleged that the deceased had had anything to do with the burning of his house, both explains the remark and rules out the possibility that at the time he speared the deceased he was acting under any such impression. The case is somewhat similar to that of Rex v. Clinton, C. A. R. 215, where it was the jury's belief in certain statements made by appellant just after the crime that ruled out the possibility of provocation. In that case the Court of Criminal Appeal held that on the facts the Judge had not erred in not leaving the question of provocation with the jury. That, at the time of his crime, the appellant may have been under the stress of strong emotions engendered by the sight of his burning homestead so that he suddenly seized the occasion to do injury to his former enemy may be a factor for consideration in the proper quarter, but cannot reduce his offence to anything less than that with which he stands convicted.

The appeal is dismissed.