[1941] EACA 67

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and SIR HENRY WEBB, C. J. (Tanganyika)

REX. Respondent

$\cdot$ v.

# MOHAMED SEKENDO BIN NYANGE, Appellant

#### Criminal Appeal No. 79 of 1941

### Appeal from decision of H. M. High Court of Tanganyika

Criminal Law—Homicide—Murder—Manslaughter—Provocation.

Appellant believed himself to be entitled to some cattle which as a result of some litigation in which he had been unsuccessful were legally in the possession of the deceased as trustee. On the day of the killing appellant went to the deceased with the intention of getting the cattle peaceably if possible but by force if necessary. His demands were refused and when he would not abate his demands or leave, the deceased, with a stick raised to strike in one hand and a rope in the other, advanced on the appellant. Whereupon the appellant retired a little fitting an arrow to his bow and then standing shot at and killed the deceased who was still advancing towards him. Appellant did not run away or give up his claim to the cattle.

Held $(15-8-41)$ .—That the killing was manslaughter.

Appellant absent unrepresented.

Spurling, Crown Counsel, for the Crown.

\*JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—This is an unusual and difficult case. The appellant admits having killed the deceased by shooting him with an arrow. He also admits that he went to the deceased's place in order to take the law into his own hands in connexion with some cattle to which he considered himself entitled. He had been unsuccessful in some litigation as the result of which the deceased was legally in possession of the cattle as trustee. The deceased kept them mixed with his own.

The question which had to be decided at the trial was whether the killing amounted to murder or manslaughter or was wholly excusable as justifiable homicide. The decision of this question depended upon the circumstances which led up to the killing.

It is we think proper to approach the case on the basis that the appellant was engaged in what amounted to, technically at least, criminal trespass. He probably thought that he had a right to the cattle but he had no right to remove them from the keeping of Kombo (the deceased) by force and it would seem that that is what he intended to do if he could not get them otherwise. It is however in his favour that he went openly to Kombo and did not try to take the cattle without his knowledge. The conversation related by the witnesses suggests that he had hopes of persuading Kombo to agree to his taking them.

The prosecution witnesses and appellant are to a large extent in agreement as to what took place when appellant arrived at Kombo's place accompanied by his grandson Maligwa. He had been there the evening before when he had told Kombo that he wanted his cattle back and, according to Kombo's mother

\* Sir Henry Webb, C. J., did not sign the judgment.

Msunya, Kombo replied "Now it is too late. You had better come to-morrow". He returned at 8 a.m. and was asked whether he had any letter from Dodoma permitting him to take the cattle back to which he replied that he had not. He was asked to await the Chief's return but refused and said he would take the cattle by force. He asked them to separate his cattle from the herd and Msunya. told him to take them himself but she says that she did not mean this in a. permissive sense.

It would seem that Kombo became annoyed at the appellant's persistence: and decided to tie him up for he advanced towards him with a rope. In this he was probably acting within his legal rights since criminal trespass is a cognizable. offence and section 32 of the Criminal Procedure Code provides that any privateperson may arrest any person who in his view commits such an offence. If Kombohad done nothing more than that the appellant's act in shooting him with an arrow must have amounted to murder and nothing less, but the appellant's account of what then happened clearly raises difficult questions of self-defence and provocation.

### In his evidence he stated: $-$

"The woman said 'Must we bear the trouble of this old man' and Kombosaid 'Try to take the cattle' and girded his loins. I said 'It is war now?' They all turned on me as though to attack me. I feared they might kill me with their sticks. I ran and jumped backwards (demonstrates) at the same timepulling an arrow from my quiver. The deceased was in front, leading the others, but all were coming towards me. The woman urged them on saying. 'This old man is troubling you for nothing'. When deceased was coming he had a stick raised in his right hand and in his left hand he held the rope. The woman said 'Stop, he has got an arrow' but deceased pushed her out of his way. Deceased said 'you stop us now and say he has an arrow. When you urged us did you not see he had an arrow'. Then I realized I was being. attacked and I loosed my arrow and hit deceased in the stomach. I fired at random not meaning to hit anyone."

The learned trial judge says that he does not accept this account but in: dismissing it *in toto* it seems to us that he was going too far inasmuch as, except. for the assertion that he shot at random, it receives strong corroboration in most material particulars from the evidence of the prosecution witnesses Msunya and Asmani s/o Ndolwa. Msunya, who, being the mother of the deceased would bemore likely to be prejudiced against his slayer than in his slayer's favour, said:

"Then accused said 'Take out my cattle (from the herd) and give them to me'. This he said to me and my son (deceased). I said 'Take them yourself'. By this I meant that as he had said he was going to take them by force then he had better set about it. I did not mean it in any permissive sense. Deceased said 'Try to take them'. Then accused took a few paces away from us and took an arrow from his quiver. Before this-just before this, deceased said 'Try it-I will tie you up'. The deceased ran towards the accused. It was then that the accused retired, as I have said, and set his. arrow. Then deceased advanced towards him. I said to deceased 'Go back accused has got arrows. We will all be finished. Let me die first'. Deceased ignored me and advanced on the accused, pushing me aside. In one hand hehad his stick and in the other his rope. The stick he held up ready to strike. Then accused fired and deceased received the arrow in the stomach. At that. time accused and deceased were 7 paces (indicated) apart."

and later

"When accused walked backwards he did so for about 15 yards. He drew" the arrow from his quiver as he so retreated."

Asmani's evidence on this was: -

"Accused said 'I will now go and take them'. He left the place. Kombo took a short cut to the cattle through the shamba. We others, myself, my wife, Asmani and Maligwa followed. When we got to the cattle accused said 'Cut out my cattle and give them to me'. My wife answered 'We cannot cut, them out. You yourself do so'. The deceased said 'If you try and cut them out I will tie you up and take you to the Boma'. Then accused walked a few paces backwards. Then deceased moved forward. Accused continued to retire, moving backwards but facing us and took out an arrow. Deceased, as he moved forward, had a stick and rope in his hand (this is the stick. Identified. Ex. G). He held the stick in his right hand as if to strike and the rope in his left hand. As accused moved back he had already put his arrow on to the bow; as he was going towards accused deceased came up to where his mother was and she said 'Don't go on. He has an arrow' but deceased pushed her aside. It was then that deceased was hit by an arrow in the stomach by accused. He pulled out the shaft and advanced on the accused and hit him with his stick.

The learned judge regarded these as truthful witnesses and, that being so. it seems to us, in fairness to the appellant, that he ought to have accepted his story in so far as it is supported by them. The sequence of events, bearing in mind that, when there is a reasonable doubt as to what a witness really meant the court should adopt the view most favourable to the appellant, would from a careful piecing together of the evidence seem to be as follows: —

Kombo and his family were examples at the appellant's persistence and Kombo threatened to tie him up, as, it may be assumed, he was under the circumstances entitled to do. But he ran towards the appellant with his stick held up as Msunya says "ready to strike" and, as Asmani puts it, "as if to strike". The appellant thereupon retired backwards facing Kombo. It was as Kombo advances towards him that he took an arrow from his quiver and shot Kombo. If Kombo had merely been advancing with the rope the shooting must clearly have been quite inexcusable and therefore murder. Does the fact that appellant did not shoot until Kombo ran at him with a heavy bludgeon stick raised as if to strike, alter the position as to the appellant's responsibility? We have seen the stick which is a heavy formidable weapon. The appellant is an old man of sixty-five or so. He was alone against several persons who, quite naturally, were incensed at his behaviour. It is true that he had a bow and arrow, a stick and an unloaded pistol. It has been suggested that he had taken these in order to intimidate but he says that he always carried them with him and he was not cross-examined as to this. In our experience natives generally do carry arms when herding cattle and the evidence shows that he made no attempt to use his weapons, to intimidate or otherwise, until he thought that Kombo was about to assault him.

Assuming then the facts to be substantially as we have just set out (which is consistent with the recorded evidence) can the appellant bring his case within any of the special defences in the Penal Code?

Section 18 provides that criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law. The English cases establish that where one man attacks another and the latter, without fighting, flies and then turns and kills his assailant it is justifiable homicide if he had retreated as far as he could and manslaughter if he had not. If there is no other way of saving his life it is justifiable. If he could have saved his life or avoided sustaining grievous bodily harm in some other way it is manslaughter. (1 Hale 481, 483 and R. v. Knock 14 Cox 1.) As we have already indicated we consider that on a fair view of the evidence as a

whole it should have been held that the appellant may reasonably have apprehended a serious assault upon him by Kombo with. a very formidable weapon, which assault Kombo was not justified in making, since the offence of criminal trespass which the appellant was at the time committing is a misdemeanour and not a felony. Whilst such apprehension would take the killing out of the category of murder it could not wholly excuse the appellant since, though he retreated to some extent, he did not run away and made no attempt to pacify Kombo by<br>abandoning his demand for the cattle. The English case which appears to be most in point is that of *Meade and Belt*, 1 Lewin 184, though there the positions are largely reversed. Meade killed one Law with a pistol. Law was one of a party of boatmen who had threatened Meade. In the middle of the night the party came outside his house, singing songs of menace and using violent language indicating that they had come with no friendly or peaceable intention. Meade, under an apprehension, as he alleged, that his life and property were in danger, fired a pistol killing Law. Holroyd, J., directed the jury that making an attack on a dwelling especially at night, the law regards as equivalent to an assault on a man's person. He went on to observe. "If you are satisfied that there was nothing but the song, and no appearance of further violence—if you believe that there was no reasonable ground for apprehending further danger, but that the pistol was fired for the purpose of killing, then it is murder. There are cases where a person in the heat of blood kills another, that the law does not deem it murder, but lowers the offence to manslaughter; as where a party coming up by way of making an attack, and, without there being any previous apprehension of danger, the party attacked, instead of having recourse to a more reasonable and less violent mode of averting it, having an opportunity so to do, fires on the impulse of the moment." The jury found Meade guilty of manslaughter and he was sentenced to two years' imprisonment. Applying the concluding portion of that direction to the circumstances of the present case the defence could we think contend not unreasonably that Kombo came up by way of making an attack upon the appellant and that, without there having been any previous apprehension of danger, the appellant, instead of having recourse to a more reasonable and less violent mode of averting it, having an opportunity so to do, shot his arrow on the impulse of the moment so that, he having killed in the heat of blood, the offence is lowered to manslaughter.

We set aside the conviction for murder and substitute one of manslaughter passing sentence of three years' imprisonment with hard labour.