[1941] EACA 98

## 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

$\mathbf{v}$ .

OBA s/o URU, Appellant

## Criminal Appeal No. 90 of 1941

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

Criminal Law—Murder—Provocation—Insulting words.

Appellant a game scout appealed from a conviction of murder of a woman with whom he had been living but to whom he was not married. She had deserted him for another man who had paid no expenses for her and this rankled in the appellant's mind so much that seeing her by chance when he was going to work with his rifle he became intensely annoyed and shot her dead. There was a suggestion that the deceased had spoken some abuse to the appellant immediately before he shot her. The further facts appear sufficiently from the judgment.

Held (29-8-41).—That even if the deceased had spoken insulting words to the appellant the insult was not of such a nature as to be likely to deprive an ordinary person of the power of self-control.

## Appellant absent unrepresented.

Spurling, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—This is not an easy case. The accused admits having killed the woman with whom he was living but to whom he was not married by shooting her with a rifle which he was carrying at the time as a game scout. When one analyses the evidence there can be no doubt that his real reason for killing her was that he was infuriated at her having left him for another man while he was away at Arusha and her refusal to leave that man and what rankled particularly with him was the fact that she was living with another man who had paid no expenses for her, a big fact with any native. Support for what I have said will be found in the accused's extra judicial confession and statutory statement. In the former he said "The officer in charge police asked her if she wanted to return home at my expense. She refused. The officer in charge police then said it was a matter for the native court, Karatu to deal with the case. Zena then went away in the direction of Shomali's house. I went away and slept the night and in the morning, i.e. to-day, I was going to my work with my rifle when I met Zena by the well at an Indian shop near the German school. I found myself overcome with hate at the sight of her for all the trouble she gave me. I told Zena I hate you to-day, your days are finished and I fired at her and shot her in the right arm." He then proceeded to say that he fired two more shots hitting her with both and killing her with the third shot and added "I was so angry that I threw into the bush a purse with 48 Sh. and some Government envelopes". In his statutory statement he said "My confession" recorded by the sixth witness is correct in every detail with one exception" (here referring to an omission to record an incident and a remark, neither of which calls for comments) ... "I did not leave the house on the morning of killing her. with the intention of killing her as I set out to go to work. I only formed the intention of killing her when I saw her that morning. Then the bitterness welled up in me. If she had agreed to return to Maswa at my expense I should not have

minded. But what drove me wild was the thought that having paid for her to come from Maswa and she having deserted me in my sickness she was living with another man who had not paid her expense. Had she returned to Maswa at my expense and had her lover then paid for her to come back from Maswa to Oldeani I should not have minded. $\cdot$ . It was not that I was only sore at the deceased. If I had met her with Shomali that day I would have killed him too."

These two very important utterances by the accused disclosing the real motive for his killing the woman do not receive the prominence they deserve in the notes of the address to the assessors or in the judgment. No one could read the record without coming to the conclusion that the accused's malice against the woman was rooted in her refusal to have anything to do with his proposals to which we have referred. And it will be noted that neither utterance refers to -any offensive language used by the woman. When the accused gave evidence in the High Court he mentions the meeting with the woman and says "I called her 'Mama' and she said why do you call me. I said I told you yesterday I wanted you to return to your home at Maswa, but you refused. Then she said 'return your own mother your urine is smelling. At that point I felt devilish and shot her . . . When she said those things to me which I have mentioned I felt it was a bad insult for a woman to give a man".

The learned trial judge in addressing the assessors and referring to the words last quoted said "The question is were those words sufficient to cause accused to lose all power of self-control and induce him to shoot Nyamisi out of hand like a dog". The first assessor gave it as his opinion "I consider she provoked him. First of all she refused to comply with his request made before the bwana askari and then next morning when they met she abused him". The second assessor said "He killed her because she provoked him". In his judgment the learned Judge referring to earlier cases, one of this Court and the other of the High Court of Tanganyika said "Notwithstanding the opinion of the assessors therefore that the words uttered by the deceased coupled with her previous conduct afforded the accused great provocation, the finding of the Court is that the accused is guilty of the charge preferred against him in the information". At the present Session of this Court in Rex v. Maziku, Criminal Appeal No. 99/41, it was said:-

"The learned judge held that it was established law that mere words however grave, can never amount to provocation enough to reduce murder to manslaughter'. We are not prepared to say that the words uttered in the present case would constitute sufficient provocation to reduce the charge from murder to manslaughter, judging the accused not as an old man who was easily deprived of his self-control, but rather as an ordinary person of the class to which he belonged. At the same time having regard to the provisions of section 192 of the Penal Code which includes in the definition of provocation 'insult of such a nature as to be likely, when done to an ordinary person ... to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is offered', we think that the learned Judge has stated the law too widely. Ordinarily it is true that mere vulgar abuse such as happened in this case will not suffice to reduce a charge from murder to manslaughter, but there may be cases. where by reason of the circumstances words if sufficiently insulting will. (Vide R. v. Abderrehemani bin Brahim, 2 E. A. C. A. 81, R. v. Samsoni Kafausa, 6 E. A. C. A. 154.)."

The learned Judge would seem neither to have directed the assessors nor to have himself considered whether, having regard to the absence of any refer--ence to the alleged insult in the appellant's confession and statutory statement, such insult had in fact been uttered, or whether the allegation that it had was not an afterthought on the part of the appellant. Assuming, however, that the

words were uttered by the deceased, we are of opinion that in all the circumstances of this case they did not constitute an insult of such a nature as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the deceased. Considering the three statements made by the appellant we are satisfied that the real motive for the murder was not what the woman said, if she did say it, but the malice which the appellant entertained towards her because of her refusal to accommodate herself to his wishes. The appeal is dismissed.

We have read with interest and, if we may say so, with appreciation the valuable memorandum on the subject of provocation, and particularly provocation by insult, which has been submitted by the learned Acting Attorney General for Tanganyika. We would welcome the opportunity of giving the views expressed therein the full consideration that they deserve, but, having regard to the view that we have taken of the facts of the present case we consider that any expression of our opinion would be an obiter dictum, likely to unsettle the law, rather than to settle it. When the case arises the questions raised by the learned Acting Attorney General's memorandum may well form a proper subject for discussion by the full Court.