[1945] EACA 11

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and MARK WILSON, Acting C. J. (Tanganyika)

## REX, Respondent (Original Prosecutor)

## ABUDUMALIKI MUKAMA, alias ERINESTI MUKABYA, Appellant (Original Accused)

Criminal Appeal No. 35 of 1945

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

Criminal Law—Murder—Illegal arrest—Fatal assault on person effecting arrest-Provocation—Manslaughter—Uganda Native Authority Ordinance, S's. 5 (3) and $6$ .

The facts appear fully from the judgment.

Held $(16-2-45)$ —(1) As neither section 5 (3) nor section 6 of the Native Authority Ordinance would appear to be applicable it was not established that the arrest was lawful.

(2) Although the case was on the border line of murder yet in view of the opinion expressed by the trial judge that admitting the attempted arrest to be unlawful there was sufficient provocation to reduce the offence to one of manslaughter, a finding of manslaughter was substituted for that of murder.

Appeal allowed and a finding of manslaughter substituted.

Appellant absent, unrepresented.

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

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—This is an appeal from a conviction for murder by the High Court of Uganda. The facts as found in the judgment, is so far as they are material, are as follows: On or about the 19th September, 1944, a Muluka chief, Yowasi, accompanied by a Mutuba chief, Anania, went to collect luwalo tax from the accused. The instructions from the Gombolola chief were to arrest people who failed to pay, though the authority or legal justification for this is not disclosed. When the accused saw the chief he ran away and the chief seized one of his goats. The accused came back and with an adze cut the rope by which the goat was tied and the goat ran away. The chief then wrested the adze from the accused and took it to the Gombolola chief. Prior to this he had asked the accused to come with<br>him to the Gombolola chief, who would give him work to do which would be the equivalent of the tax which is customarily accepted in lieu of the obligation to work, but the accused refused. Yowasi reported the incident to the Gombolola chief's askari, Zedekia, in the absence of the Gombolola chief, and accompanied by Anania and Zedekia returned to the accused's house. They saw the accused standing in his compound, but on their arrival he entered his house and sat down on a chair. On being asked to come out he refused, so all three entered the house and Zedekia caught hold of the accused's waist and tried to take him out. While doing so the accused stabbed him fatally.

There are two questions for decision in this appeal: firstly, whether the deceased was acting lawfully in attempting to arrest the accused; and secondly, if he was not, whether the case is manslaughter owing to legal provocation. It was submitted by learned Crown Counsel that the arrest was lawful under the provisions of section 6 of the Native Authority Ordinance, which reads: —

"Subject to any orders of the Provincial Commissioner or District Commissioner, any Chief may direct any native within the local area of his jurisdiction to attend before him or before a Native Court or before any Government official.

Any native, who when so directed to attend before any such person or court, shall, without reasonable excuse, fail or neglect to attend as and when directed, may be arrested by or under the orders of such Chief and taken before such person or Court as aforesaid."

The learned trial Judge rejected that submission, holding that no order had been given to the deceased by the Muluka chief. He held, however, that the arrest was lawful for another reason. The relevant passage in the judgment reads: -

"There is in fact, evidence as to the real reason for the attempt to arrest the prisoner. Anania said that on arriving at the prisoner's house the constable called out three times 'I have come for you because you have fought with the Muluka chief'. The constable, in his statement, said 'I asked him to come out and let me know why he had beaten Yonasani (?Yowasi), the Muluka chief.' The prisoner denies that any such words were used, but I have no doubt Anania was telling the truth. The words reveal what was in the mind of the constable and disclose, though not with any precision. the ground for his intended action. He must have had information that an assault of some kind had been made on the Muluka chief. The source of that information is not far to seek; Anania gave evidence that the prisoner had tried to cut the Muluka chief with the adze. It is immaterial whether this was true or not, what is relevant is whether the constable had reasonable cause to suspect that the prisoner had done what Anania says he did. I have no doubt that he had such reasonable cause; and the facts disclosed that the suspected offence might have been one under section 220 (2) of the Penal Code, i.e. a cognizable offence. In that case, the chief was justified in ordering the arrest of the prisoner, and the constable was justified in obeying the order (Native Authority Ordinance section 5 (3))."

At the opening of the trial Crown Counsel had submitted that he could not justify the arrest under this section. Section 5 (3) reads: $-$

"Every Chief receiving information that any native who has committed a cognizable offence triable by some court other than a Native Court, or for whose arrest a warrant has been issued by a magistrate, is within the local limits of his jurisdiction, shall cause such native to be arrested and to be taken forthwith before the District Commissioner."

The difficulty, as it appears to us in applying this section, is that the Muluka chief at no time complained of the accused having assaulted or attempted to assault him, nor is there any evidence of his having directed the arrest of the accused on that account. On a broad view of the evidence it seems probable that the reason for the accused's arrest was his conduct on the occasion of the Muluka chief's first visit, but from the chief's account this does not seem to have involved any breach of the criminal law. As neither section $5$ (3) nor section 6 would appear to be applicable, we are not satisfied on the material before us that the arrest was lawful.

The learned Judge, though holding the arrest to be lawful, considered the legal position in the event of the arrest being held to be unlawful, both as regards self-defence and legal provocation. As to the former, he said: "Even if the arrest was unlawful, the prisoner proceeded in defence of his person far beyond what was necessary. The constable was unarmed, neither of the chiefs with him were armed, and there was nothing to excuse the prisoner in using a lethal weapon in the manner in which he did". With this we agree.

With regard to legal provocation, the learned Judge said: "Had I been able to come to the conclusion that the attempted arrest was unlawful, I would, from the circumstances, have presumed in accused's favour that he knew of the illegality, and that the act of the constable was sufficient provocation to reduce the offence to manslaughter." Though we ourselves think that the case is on the border line of murder, we do not consider that, with this definite opinion of an experienced Judge before us, it is reasonably open to this Court to hold that the offence is murder, once we have come to the conclusion that we are not satisfied that the attempted arrest was lawful. We therefore substitute a finding of manslaughter for murder. As regards the sentence we take into account the fact that the victim of the fatal stabbing was a Native Authority askari, that the accused must have recognized him as such, that a lethal weapon was used and that it was used more than once. We sentence the accused to serve twelve years imprisonment with hard labour.