[1947] EACA 57

## COURT OF APPEAL FOR EASTERN AFRICA

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

REX, Respondent (Original Prosecutor) $\mathbf{v}^{\prime}$

## PAULO MUGWERI's/o ERUKANA. Appellant (Original Accused) Criminal Appeal No. 256 of 1947

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

Murder—Statement by a mistress to her lover that she had found a better man— Provocation—S. 199 Penal Code (Uganda).

An argument arose between the appellant and his mistress as the result of. his asking her to return some kitchen utensils belonging to him. In the course of the argument she called him a fool and said she had a lover who was a better man. Whereupon the appellant attacked her with a *panga* and killed her. He was convicted of murder and appealed.

Held (11-11-47).-(1) That the words used by the deceased did not constitute an insult within the meaning of S. 199 of the Uganda Penal Code.

(2) That as the deceased was not the lawful wife of the appellant the information that she had found another lover could not in itself constitute provocation.

Appeal dismissed.

Case referred to: Rex v. Sitapakwe 12 E. A. C. A. 40.

Appellant absent, unrepresented.

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

JUDGMENT (delivered by NIHILL, C. J.).—In this case the appellant was convicted by the learned Chief Justice of Uganda for the murder of his mistress Salome. The sole point for our consideration is whether the appellant immediately before the killing received provocation at the hands of the deceased sufficient to reduce his crime to manslaughter, having regard to the provisions of section 199 of the Uganda Penal Code. The evidence as to what passed between the appellant and the woman prior to the appellant's attack upon her consists solely of the evidence of a small boy of tender years and a statement made by the appellant to a police officer when he was charged. According to the boy, whose evidence was accepted by the learned Chief Justice, nothing was said by the deceased to the appellant before he attacked her. The appellant in his statement on the contrary alleges that not only did he ask for the return of some kitchen utensils which led to an argument between them, but that she called him a fool and intimated that she was in love with another man who could beat him (the appellant), presumably as a lover, ten times over. The learned Chief Justice directed his mind to the desirability of corroboration of the evidence of a person of tender years who was not sworn, and found it in the statement of the appellant, which did in fact bear out the boy's story in several particulars. From this the learned Chief Justice felt it safe to accept the whole of his story and to come to the conclusion that no provocation was offered.

The learned Chief Justice did however in his judgment go on to consider what would be the position if he had accepted the appellant's version in full. We think that possibly it would have been safer if the learned Chief Justice had in fact refused to assume against the appellant that no words passed between him and the woman and had he proceeded on the basis of acceptance in full of the appellant's story. Even on that basis, however, we agree with the learned Chief Justice's conclusion that the words spoken by the deceased to the appellant did not amount to an insult of the kind contemplated by section 199 of the Uganda Penal Code.

In that somewhat similar case of Rex v. Sitapakwe, 12 E. A. C. A. 40, this Court held that words used by a wife to her husband indicating that she knew of better men in her parent's house were held not to constitute an insult within the meaning of the provocation section of the Tanganyika Penal Code which, although since amended, was when this judgment was given, identical with the section of the Uganda Code which we are now considering.

It is significant also that the appellant in his statement did not complain that he had been insulted, but made it clear that the reason why he lost his head and attacked the deceased was because he learnt for the first time that she had found another lover. The deceased was not even the lawful wife of the appellant and in no circumstances therefore could this unwelcome information have constituted legal provocation unless it was accompanied by words of so insulting a character as to deprive an ordinary person of self-control. The fact that the deceased intimated that she regarded her new lover as a better man than the appellant were not such words.

As regards the retention of the kitchen utensils, even if the deceased had no right to them, on which we have no evidence, the appellant was already aware that she had them and could not therefore have been suddenly provoked by her refusal to give them up.

For the reasons given we sustain the conviction for murder entered against the appellant and dismiss his appeal.