[1941] EACA 87

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR HENRY WEBB, C. J. (Tanganyika) and WILSON, J. (Tanganyika)

REX, Respondent (Original Prosecutor)

ANDEREA EDORU s/o OKOMERA, Appellant (Original Accused No. 1)

Criminal Appeal No. 157 of 1941

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

Criminal Law—Evidence of wife or husband of accused—Monogamous marriage-Uganda Criminal Procedure Code, section 151.

Appellant appealed from a conviction of murder. Evidence against him was given by his wife named Maliya (corresponding to Maria) and the record showed that this evidence had been given on oath.

**Held** (10-11-41).—That these facts were sufficient to put the Crown on inquiry as to whether appellant's marriage to Maria was monogamous and the Crown should have adduced evidence as to the nature of her union with the appellant before the admission of her evidence.

R. v. Nyawa wa Nyawa (15 K. L. R. 99) referred to.

Appeal allowed.

Appellant absent unrepresented.

Kingsley, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).-By section 151 Criminal Procedure Code Uganda as amended it is provided: -

"(1) In any inquiry or trial the wife or husband by monogamous marriage of the person charged shall be a competent witness for the prosecution in the following cases only— $\cdot$

- (a) in any case where the person charged is charged with bigamy or with: $(a)$ any offence under Chapter XV of the Penal Code: - (b) in any case where the person charged is charged in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them.

(2) For the purpose of this section a monogamous marriage means a marriage which is by law necessarily monogamous and binding during the lifetime of both parties unless dissolved by a valid judgment of a court."

In accordance with the provisions of this section the evidence of Maliya the wife of the accused Andrea was, it would appear, inadmissible. From her name, the equivalent of the English "Maria", and the fact that she was sworn and not affirmed the presumption is that she is a Christian. Similarly in the case of Andrea her husband. These facts at least put the Crown on inquiry as to whether their marriage was not monogamous. And that their marriage was monogamous appears from the statement in the written arguments by counsel for the appellant, which in the absence of any assertion to the contrary there is no reason to doubt. In this connexion we would refer to the judgment of this Court in $\text{Rex } v$ . Nyawa wa Nyawa, 5 K. L. R. 99, in which it was held "That where there is a doubt as" to the status of a native 'wife', the Crown should adduce evidence as to the nature of her union with the accused prior to admitting her evidence".

The learned Chief Justice's attention was not attracted to this section. To the evidence of this witness a great deal of importance was attached in the judgment as will be seen on reading from the words "The evidence of Maliya" on the first page to the words "Egalu's statement to the police also supports her" on the second page. In passing we would say that what Egalu said in his statement to the police could not be evidence against Anderea. The question we have to decide in this case is whether, excluding Maliya's evidence, the remaining evidence is such that the decision must in reason have been the same. It is for the Crown to show that the admission of the evidence in question cannot reasonably be said to have affected the decision. The language of the judgment amply shows, as we have said, that the evidence of Maliya was regarded as of much importance and we cannot say that had that evidence been excluded the decision. must have been the same. This is more particularly so on the facts of this case, where in so far as the accused Andrea is concerned there would appear to have been little or no motive for the crime, and the principal evidence against him, after eliminating the inadmissible evidence, is that of an incriminating statement alleged to have been made by him without rhyme or reason in Anaso's presence to her husband, a co-accused who was acquitted in the course of the proceedings. Other points to which we might refer as illustrating the unconvincing nature of the case are: (1) the alleged visit to Emotu's house with a corpse on the carrier of the bicycle; on which the obvious comment is: why not get rid of it first? (2) the evidence that the blood in Emotu's hut came from the bundle on the bicycle, which is not confirmed by the medical evidence; (3) the evidence that Andrea carried an axe. There is no suggestion as to where this came from; there is no reason why he should have carried it when he set out originally with the innocent purpose of going to Atuboi to buy beans; and there is evidence that no axe was seen with him when he set out. It has not been and could not be suggested that he was bent on committing a murder when he originally set out from his own house; (4) the wide discrepancy between the medical evidence and that of Anaso as to the size of the bundled-up corpse said to have been carried on the bicycle.

We allow the appeal, acquit the appellant and order that he be set at liberty. On the question of procedure there are one or two points to which we would draw attention. With regard to the service of the information, the record does not disclose how, when and by whom the information was served (s. 239, Cr. P. C.); the record shows that the statutory three days' notice of trial was not given and there is nothing to show that the accused persons elected to waive their rights (s. 238, Cr. P. C. and Rex v. Luguda $s/o$ Wage, 1 E. A. C. A. 148). We have ascertained in this case from the trial Judge who is attending the present sessions that they did in fact waive their rights, but it is obvious that the Court should be in a position to ascertain this fact from the record itself.