[1945] EACA 10

# COURT OF APPEAL FOR EASTERN AFRICA

# Before Sir Joseph Sheridan, C. J. (Kenya), MARK Wilson, Acting C. J. (Tanganyika) and BARTLEY, J. (Kenya)

## REX, Respondent (Original Prosecutor)

# JUMA MAFABI s/o WABISINA, Appellant (Original Accused) Criminal Appeal No. 20 of 1945

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

Criminal Law—Murder—Provocation—Uganda Penal Code, S's. 198, 199— Manslaughter.

The appellant and K, his neighbour, had both attended a beer party at another neighbour's house. The appellant returned home alone and on seeing his cows grazing in K's shamba proceeded to chase them out. While he was doing so K came up and asked him why he was allowing his cattle to stray. On the appellant replying that he was driving them home, K struck him on the left elbow and left little finger with a light walking stick he was carrying. The appellant's little finger was cut in two places, each three-quarters of an inch long, and bled. Whereupon, in the heat of passion induced by sudden provocation, the appellant beat up K on the head and body with a heavy stick he had in his hand, causing multiple injuries, including fractures of three ribs and the cheek-bone and a fractured dislocation of the axis bone of the neck, from which he died.

The appellant was convicted of the murder of K and appealed.

Held $(14-2-45)$ .—(1) Before the doctrine of provocation can enure to the benefit of an accused person where an unlawful killing has taken place in circumstances which but for the doctrine of provocation would constitute murder, it must be proved (or at least a reasonable doubt raised) that the following positive requirements are satisfied:—

(i) The act causing the death must have been done in the heat of passion;

(ii) that state of passion must have been caused by provocation of a sudden kind;

'(iii) there must not have been time for the passion so engendered to cool;

- (iv) the provocation must consist of a wrongful act or insult; - (v) the wrongful act or insult must be of such a nature, i.e., so grave, as to be likely when done or given to an ordinary person (or in his presence to a person within those degrees of relationship to him mentioned in section 199 of the Penal Code) to deprive him of the power of self control and to induce him to commit an assault on the person doing the act or offering the insult.

(2) In deciding whether the wrongful act or insult is sufficiently grave to constitute provocation the Court should consider the effect of the provocation on an ordinary man of the community to which the accused belongs.

(3) In deciding the diffiult point as to whether the provocation actually received was such as would be likely to deprive an ordinary man of the power of self-control it is necessary and proper to take into consideration amongst other things the kind of<br>instrument used to effect the killing and the number of wounds inflicted, for these are factors which are relevant in deciding whether the retaliation in any case was or was not disproportionate to the provocation, and any marked disproportion between the provoca-<br>tion and what *Mancini's case* called the mode of resentment might lead the Court to a finding that the killing was an act of revenge and not one done in the heat of passion while the accused was deprived of the power of self-control by legal provocation.

(4) Although by section 4 of the Uganda Penal Code it is provided that the terms used in sections 198 and 199 of the Code must "be interpreted in accordance with the principles of legal interpretation obtaining in England" yet the substance of the local law as laid down cannot be altered or affected in any way in deference to the existence of differences, if any, between it and the English law on the subject.

(5) The two blows the appellant received from $K$ were of such a painful kind as to be likely to deprive an African of the appellant's class of his power of self-control and to cause him to hit back immediately before his passion had time to cool and constituted sufficient provocation to reduce the offence to one of manslaughter.

Appeal allowed.

Their Lordships, however, marked their disapproval of the excessive violence used by sentencing the appellant to ten years imprisonment with hard labour.

Hussein Mohamed, 9 E. A. C. A. 52 approved; Rex v. Yonasani Egalu and others, 9 E. A. C. A. 65; Rex v. Maziku, 8 E. A. C. A. 55; Rex v. Frank Mwale, 3 E. A. C. A.<br>102; Rex v. Wanusu, 6 E. A. C. A. 76; Mancini v. Director of Public Prosecutions, 28 Cr. App. R. 65 referred to.

Appellant absent, unrepresented.

## Phillips, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by MARK WILSON, Acting C. J.).—The appellant was convicted at Mbale by the learned Chief Justice of Uganda of the murder of his neighbour Kayisa. Deceased was aged 35, about ten years older than the accused. They had both attended a beer party at another neighbour's house that day, but there had been no quarrel between them there. Nor does any question of drunkenness as a defence arise, for the accused admits that, although he had taken drink, his brain, as he puts it, was clear enough. Apart from accused and deceased themselves there was no eye-witness of the beginning of the fatal quarrel, which took place in or near the deceased's shamba after the parties had left the beer drink. But deceased's wife, from inside her house, heard deceased ask accused why his cattle were trespassing, and she also heard the sound of two blows. She ran out to see what was the matter and then saw the accused belabouring her husband with a big stick (which was not exhibited at the trial) and saw her husband fall down and die. The accused then ran away and was arrested next morning.

This account by deceased's wife of what she saw and heard fits in very well with accused's version of the alleged affair which he gave to the police when arrested and charged on the day after the event. He said that on returning alone from the beer party he saw his cows grazing in deceased's shamba and went to chase them out. While he was doing so Kayisa (deceased) came and asked him why he was allowing his cattle to trespass. He replied that he was driving them home. Deceased then struck him with his stick on the left elbow and the left little finger, breaking the stick. He then, being provoked by this assault, beat the deceased on the head and sides with a stick he had in his hand, which also cracked though it did not break in two. When the deceased fell down he ran away as the deceased's wife began to raise the alarm.

The accused's story was supported by the finding of the deceased's broken walking stick (exhibit 1) near the body and by the presence on accused's little finger of two cuts, each three-quarters of an inch long, which had bled. There was also found near the body an undamaged bamboo beer pipe (which was not produced at the trial). The learned Chief Justice thought this might have been the weapon used by the deceased in beating the accused, but we think the circumstances point irresistibly to the broken walking stick.

(We digress here to endorse the very proper opinion of the learned Chief Justice that all persons charged with homicide should be given the opportunity by the police of being medically examined for the presence of injuries to the person and that the doctor should be examined on this point at the preliminary inquiry and that if this does not appear to have been done the Crown Law Office should have the preliminary inquiry re-opened for the purpose.)

Continuing, we see no reason to disbelieve the accused's version of the quarrel, which not only is not controverted by the only prosecution eye-witness but is supported by her evidence as far as it goes. The learned Chief Justice indeed found that the facts were "hardly in dispute", though he did draw from them certain inferences which are not so uncontentious, to which we shall refer later

The accused's attack on the deceased was clearly of a murderous nature and the only question in issue, as the learned Chief Justice correctly directed the assessors, was whether (in the words of section 198 of the Penal Code) in the circumstances of this case the accused in unlawfully killing the deceased did the act which caused death in the heat of passion induced by sudden provocation, as defined in section 199 of the Penal Code, and before there was time for his passion to cool. The accused, of course, does not have to prove provocation but only to raise a reasonable doubt as to its existence.

There can be no doubt that the assault on him by the deceased constituted some provocation to the accused and that it was sudden and that his retaliation was immediate, before there was time for his passion to cool. The short point, therefore, is whether the provocation he received was such as is defined in section 199 of the Penal Code.

The doctrine of provocation was fully discussed by this Court in $\text{Re}x$ v. Hussein s/o Mohamed, 9, E. A. C. A. 52. Referring to this case in his judgment, the learned Chief Justice mentioned that he had been referred at the trial to three recent local cases in which the Court, purporting to follow the decision in the above case, had found manslaughter by reason of provocation. The learned Chief Justice disagreed with those decisions, saying they were based on one short extract from the judgment in Rex v. Hussein (supra) divorced from its context and that they overlooked the very clear wording of sections 198 and 199 of the Penal Code, which lays down a number of conditions, all of which must be satisfied before the doctrine of provocation can be successfully invoked by a person charged with homicide.

We agree with the learned Chief Justice that the lengthy and careful judgment in Rex v. Hussein $s/o$ Mohamed (supra) must be read as a whole, otherwise it may be misleading. To remove any doubts or misconceptions which may exist, we would again state that before the doctrine of provocation can enure to the benefit of an accused person, where an unlawful killing has taken place in circumstances which, but for the doctrine of provocation, would constitute murder, it must be proved (or at least a reasonable doubt raised) that the following positive requirements are satisfied: —

(i) the act of causing the death must have been done in the heat of passion;

- (ii) that state of passion must have been caused by provocation of a sudden kind: - (iii) there must not have been time for the passion so engendered to cool; - (iv) the provocation must consist of a wrongful act or insult; - (v) the wrongful act or insult must be of such a nature, i.e. so grave, as to be likely when done or given to an ordinary person (or in his presence to a person within those degrees of relationship to him mentioned in section 199 of the Penal Code) to deprive him of the power of selfcontrol and to induce him to commit an assault on the person doing the act or offering the insult.

In addition to these positive requirements, the Code further provides that no lawful act and no act done in consequence of incitement given by any other person in order to induce the act and thereby to furnish an excuse for committing

an assault can constitute provocation. It also provides that an arrest which is unlawful is not necessarily provocation for an assault, but may be evidence of provocation to a person who knows of the illegality.

The above is the law on the subject of provocation as it is laid down in the Penal Code, and while the terms used in sections 198 and 199 must, under section 4 of the Penal Code, "be interpreted in accordance with the principles of legal interpretation obtaining in England" the substance of the law so laid down cannot be altered or affected in any way in deference to the existence of differences between it and the English law on the subject, if such exist (Rex v. Yonasani Egalu and Ors., 9 E. A. C. A. 65).

We would here point out that section 192 of the Tanganyika Penal Code (corresponding to section 199 above) enacts that "for the purpose of this section the expression 'an ordinary person' shall mean an ordinary person of the community to which the accused belongs". This very proper construction of the words in question has been many times applied by this Court in cases arising in the other territories, though their Codes do not contain a specific provision on the point.

The point on which the greatest difficulty is likely to arise in applying the law stated above is, in our experience, that stated in (v) above, that is, in deciding whether the wrongful act or insult is sufficiently grave to constitute provocation. The trial court has (with the assistance of the assessors) to put itself into the place of an ordinary man of the community to which the accused belongs. That is never an easy matter and no doubt it accounts for the divergent decisions of different judges. Though ordinarily each case must be decided on its own facts, there have been a few reported decisions of a general nature on the point, as, for example, the rule laid down in Rex v. Maziku, 8 E. A. C. A. 55; that mere vulgar abuse, such as is commonly bandied about amongst Africans and others, does not amount to a wrongful insult under the section. And in Rex v. Frank Mwale, 3 E. A. C. A. 102, it was laid down that in any case where a deadly weapon is used the provocation must be great indeed to justify a reduction of the finding to one of manslaughter. That decision was considered and explained in $\text{Re}x$ v. Hussein s/o Mohamed (supra), where it was said that the decision was too sweeping in view of the definition of provocation in section 199 of the Penal Code and was apt to mislead. It is a question, however, whether the pendulum has not swung too far the other way following the latter decision. In one of the cases to which the learned Chief Justice was referred at the trial the learned trial Judge had found that the retaliation "was eminently disproportionate" to the provocation received, but he had gone on to say that "the Court of Appeal has precluded us from taking this into consideration as proof of malice". We do not think that is an accurate statement of the effect of the judgment in $\text{Re} x \nu$ . Hussein $s/o$ Mohamed. In that judgment it was said (at p. 55):

"Although this passage in *Mwale's case* must in the light of our definition be regarded as too sweeping, it must not be taken that the use of a deadly weapon and the manner in which it is used or the other means employed in causing death are not matters deserving of the most careful consideration in arriving at a decision whether a case is murder or manslaughter. Every case has to be determined on its own facts and the manner and the circumstances in which death is caused may reveal that the retaliation is not attributable to the provocation received, but is really an act of vengeance or wicked malice done for the purpose of paying off an old score."

and again on the same page:

"We have to interpret and apply our provocation sections as they stand and, in so far as the question of murder or manslaughter is concerned. leaving out of account for the moment any question of the appropriate sentence, any disproportion between retaliation and provocation can only be relevant in that it may tend to throw some light on whether at the crucial time the accused was, in fact, acting through deprivation of self-control and not merely actuated by motives of revenge."

The passages quoted above clearly show to what extent and in what manner the use of a deadly weapon and the way it is used are to be taken into account in considering whether the conviction should be for murder or for manslaughter only.

We think that perhaps some misconception on this aspect of the matter may have been caused by another passage from the judgment on p. 55 where, after the Court had drawn attention to the decision in Rex v. Wanusu, 6 E. A. C. A. 76, that "When once it has been established that legal provocation exists the fact that a deadly weapon has been used, or even used several times, does not necessarily prevent the offence from being manslaughter", it went on to say:

"Even at the risk of unnecessary reiteration, we sum up our conclusions as follows: When once legal provocation, as defined in our Code, has been established and death is caused in the heat of passion whilst the accused is deprived of self-control by that provocation the offence is manslaughter and not murder, and that irrespective of whether a lethal weapon is used or whether it is used several times or whether the retaliation is disproportionate to the provocation. The presence of one or more of these factors is, of course, a matter to be taken most carefully into account when considering the question of sentence, but will not of itself necessarily rule out the defence of provocation."

We think that passage, though it is not an incorrect statement of the law, is likely to mislead unless very carefully read. It probably errs on the side of undue compression of the various constituents of the doctrine of provocation as • applied to homicide, and in the emphasis laid in the last sentence on the effect of the factors mentioned on the question of sentence and the negative character of the reference to their effect on the question of conviction. The factors for consideration to which it refers are, of course, quite relevant (in the way we have stated above) in considering whether the conviction should be for murder or for manslaughter. In addition, if the conviction be for manslaughter, they are also relevant in assessing sentence.

We would point out that the question of taking into account the nature of the instrument with which the homicide was effected was considered by the House of Lords in Mancini v. Director of Public Prosecutions, 28 C. App. R. 65. That case was decided before Rex v. Hussein s/o Mohamed (supra), but it is not referred to in the latter judgment. It seems to us that what was decided in Mancini's case (supra) is in point here and that it shows that there is on this aspect of the law of provocation little, if any, divergence between English law and our law. The relevant passage (at p. 74) reads:

"It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act which causes death.

'In deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death. to the time which elapsed between the provocation and the act which causes death, to the offender's conduct during the interval and to all other circumstances tending to show the state of his mind' (Stephen's Digest of the Criminal Law, Article 317). The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Leshini, 11 Cr. App. R. 7 (1914) 3 K. B. 1116, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance (1) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (2) to take into account the instrument with which the homicide was effected: for to retort, in the heat of passion induced by provocation, by a simple blow is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter."

In our opinion, the concluding phrase "the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter" is only another method of expressing what we have said above, namely, that in deciding the difficult point as to whether the provocation actually received was such as would be likely to deprive an ordinary man of the power of self-control it is necessary and proper to take into consideration, amongst other things, the kind of instrument used to effect the killing and the number of wounds inflicted, for these are factors which are relevant in deciding whether the retaliation in any case was or was not disproportionate to the provocation, and any marked disproportion between the provocation and what *Mancini's case* called the mode of resentment might lead the Court to a finding that the killing was an act of revenge and not one done in the heat of passion while the accused was deprived of the power of self-control by legal provocation. Each case must, of course, be decided after a full consideration not only of the matters referred to above but of all the relevant circumstances.

Applying the above principles to the circumstances of the present case, we find ourselves unable to agree with the accused's conviction for murder. The provocation received by the accused was sudden and his reaction to it was immediate, before his passion had time to cool. The provocation consisted of two blows with the stick Exhibit 1 on the elbow and the little finger. Although the stick in question is only a small walking stick it was used with enough force to break it in two and it has a ragged thorny knob at the thick end capable, in our opinion, of inflicting quite a painful injury, especially when used on such comparatively tender parts as the elbow and the little finger. Sitting in appeal we are as competent as the trial court to draw inferences from the clear evidence (including the nature of the weapon used by deceased), and on the evidence in this case we think that inferences minimising the injuries and the pain suffered by the accused are unjustified. On the other hand, the retaliation or mode of resentment was undoubtedly severe. Accused's stick (unfortunately not produced at the trial) is described as being big (bigger than Exhibit 1), and with it he belaboured deceased on the head and body, causing multiple injuries, including fractures of three ribs and the cheek bone and a fractured dislocation of the axis bone of the neck.

We are, however, of opinion that the two blows the accused received from the deceased were of such a painful kind as to be likely to deprive an African of accused's class of his power of self-control, and we think it was to that loss of self-control and not to any independent malice or desire for revenge that is to be attributed accused's repeated use of the big stick he had in his hand to inflict serious and fatal injuries on the deceased.

We accordingly allow the appeal but mark our disapproval of the excessive violence of the fatal assault by sentencing the accused to serve ten years imprisonment with hard labour.