[1938] EACA 143

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Joseph Sheridan, C. J. (Kenya); Whitley, C. J. (Uganda); and BARTLEY, J. (Tanganyika)

REX, Respondent (Original Prosecutor)

1. MUNGU ATOSHA BIN SIJA and 2. IBRAHIM BIN MAGANGA, Appellants (Original Accused)

## Cr. Apps: Nos. 141 & 142 of 1938.

Appeals from convictions by H. M. High Court of Zanzibar.

Criminal Law and Procedure—Retirement of assessors to consider their opinions—Evidence of accused at preliminary inquiry— Certification of accused's statement—Zanzibar Criminal Procedure Decree, secs. 182, 211, 212, 218, 288 and 304.

The convictions were had before a judge sitting with two assessors. After the summing up the assessors retired to consider their opinions. At the preliminary inquiry both appellants after the usual warning had been given to them at the close of the prosecution case in pursuance of section 218 of the Criminal Procedure Decree, elected to give evidence. Their evidence was duly recorded and signed by the magistrate but he did not certify it. At the trial this evidence was put in and read as provided by section 288 of the Decree.

Held $(21-11-38)$ .--(1) That the retirement of the assessors is neither illegal nor irregular if after the retirement the judge obtains the individual opinion of each assessor and records it: Rex v. Assa Singh (4 E. A. C. A. 41) considered.

(2) That when an accused person elects to give evidence at a preliminary inquiry his evidence need only be recorded in the same manner as the evidence of any other witness and it is not necessary that it should be certified in the manner prescribed for an unsworn statement by the accused: Rex v. Hashimu (1 E. A. C. A. 79) followed and Rex v. Kitunza bin Kasinde (4 E. A. C. A. 60) disapproved.

Appellants, absent, unrepresented.

Henderson, Crown Counsel (Tanganyika), for the Crown.

In view of the importance of the matters involved the members of the Court delivered individual judgments.

Sir Joseph Sheridan, C. J.-I have had the advantage of reading the judgments of my brothers Whitley and Bartley with which I am in agreement. The points of law in issue are of such importance and arise so frequently in the Courts of the East African Territories that I think I should add a few words of my own. On the point arising out of the retirement of the assessors to consider their opinions there is nothing in the relevant section prohibiting their doing so and so long as the trial Judge obtains the individual opinion of each assessor and records it, the fact of their having retired and consulted should not per se in my opinion have the drastic result of rendering the proceedings a nullity. To arrive at such a conclusion would in my opinion be tantamount to restricting the purpose for which assessors are present at a trial. On this the case of $\text{Rex } v$ . Mutwiwa s/o Maingi (2 E. A. C. A. 66) where the functions of assessors are referred to is in point. To any judge acquainted with East Africa it will be well known

that during the course of a trial assessors while in Court exchange views during the course of a case and their doing so must be advantageous to the trial Judge when he comes to ask them for their That they similarly exchange views during ordinary adopinions. journments one knows is also the case and can it be seriously suggested that their doing so constitutes an illegality vitiating the proceedings? Why then should the mere fact of their having adjourned to consider their opinions at the conclusion of a case have the effect of vitiating the proceedings? To hold this would amount to reading something into the relevant section of the Criminal Procedure Code which is not there. On the point as to whether the admissibility of the evidence on oath of an accused person depends on its being certified the decision of this Court in Rex v. Hashimu (1 E. A. C. A. 79) made it clear that the legislature discriminated between a statement and evidence on oath on this point and I cannot perceive anything in the amendment section 266 of the Criminal Procedure Code which is identical with section 288 of the Criminal Procedure Decree of Zanzibar affecting that decision. When the section speaks of the evidence of an accused person being duly recorded, it can only mean recorded in the manner in which the evidence of any witness is recorded. To hold the contrary is again reading something into the section which is not there. Were there any doubt on the point—and in my opinion there is none—a perusal of section 212 should remove it. I agree that the appeals should be dismissed.

Whitley, C. J.—These two appellants were tried together and accordingly their appeals were also heard together. Two interesting points of law arose. The first concerned the procedure to be followed with regard to assessors. After the summing up the assessors retired to consider their opinions. In the case of Rex v. Assa Singh (4 E. A. C. A. 41) the following passage occurs in the judgment of the Court of Appeal at p. $45:$ -

"The section-dealing with the delivery of opinions of assessors is set out supra, and although it is not strictly necessary to do so, in view of our decision on the first point, we wish to state that, in our opinion, in view of the words of the section which seem plain, permission to assessors to retire is such an irregularity in the mode of trial as to vitiate the entire proceedings."

The section referred to was section 304 (1) of the Kenya Criminal Code which is identical with section 304 $(1)$ of the Zanzibar Criminal Decree which reads as follows:-

"When, in a case tried with assessors, the case on both sides is closed, the judge may sum up the evidence for the prosecution and the defence, and shall then require each of the assessors to state his opinion orally, and shall record such opinion."

It follows that if we are bound by the opinion expressed by that Court the proceedings in this case would have to be treated as a nullity. I am however of the opinion that we are not so bound. In that case, as appears from the extract above set out, the Court had two points under consideration. The first and by far the more important was whether or not the conviction could stand in view of the fact that one of the assessors, having been absent during one day's hearing, was allowed to resume and give an opinion. After exhaustively considering this point the Court came to the conclusion that this was an illegality which could not be cured and which

accordingly rendered the trial a nullity. That being so, as the learned Chief Justice pointed out, it was not necessary for the decision of the case to give any ruling on the second point dealing with the retirement of the assessors to consider their opinions. Accordingly, we are I think entitled to treat the dictum which I have quoted as being obiter and not binding. I am strengthened in this view by the fact that from that judgment it would appear that the attention of the Court had to a very large extent been concentrated upon the first point, the second being dismissed in a very few lines. For these reasons, I think that it was open to us to consider the point anew and it was accordingly deliberated at considerable length. As a result I have come to the conclusion that this retirement did not constitute an illegality such as to vitiate the proceedings. There is nothing in the section which expressly prohibits such a retirement. All that it seems to require is that the Court shall have the benefit of the individual opinion of each assessor. That is as far as Mr. Sohoni is prepared to go in his Code of Criminal Procedure 12th Edition at p. 731, and, I take the same view. It is only reasonable to suppose that assessors discuss the case amongst themselves during adjournments and I can see no reason to hold that they should not do so after the summing up. I would go further and express the view that in some cases, e.g. those involving technical evidence, it may be useful that they should so consult. It would seem much more convenient that they should consult in a private room than in Court and in the absence of any direct prohibition in the Code, I feel that it should be left to the discretion of the Judge to decide in each case whether to allow a retirement or not. But after consultation each assessor must of course give his own opinion. That was done in this case so that in my view there was neither any illegality nor any irregularity.

¥

The second point concerns the admissibility of certain evidence. At the preliminary inquiry both accused, after the usual warning had been given to them at the close of the prosecution case in pursuance of section 218 of the Criminal Procedure Decree, elected to give evidence. Their evidence was duly recorded and signed by the magistrate but he did not certify it. At the trial this evidence was put in and read as provided by section 288 of the Decree. The question which arises is whether in view of the decision of this Court in the case of Rex v. Kitunza bin Kasinde (4 E. A. C. A. 60), this evidence ought not to have been admitted at the trial on the ground that it had not been certified in accordance with section 218 (4). It is, I think, clear that if that case is to be regarded as a binding authority which must be followed we should have no option but to hold that this evidence ought to have been certified and accordingly that in the absence of such certification it could not be admitted. That case turned upon the construction of sections 211 and 266 of the Tanganyika Criminal Procedure Code which correspond to sections 218 and 288 of the Zanzibar Decree. It was held that when an accused person elects to give evidence on oath before the committing magistrate, the record of his evidence must be certified in accordance with section 211 (4). It would appear however from a careful perusal of the judgment that the attention of the Court was not drawn to the provisions of section 212 of the Code and it seems to me that had the Court also had that section under consideration it would probably have come to a different conclusion. Section 212 provides that immediately after complying with the requirements of the preceding section relating to the statement of the accused the Court shall ask him whether he desires to give evidence and if he states that he wishes to do so, shall proceed to take his evidence.

The view which I take is that if sections 211 and 212 are considered together it is clear that a distinction is made between the procedure to be followed by the magistrate when the accused makes an unsworn statement and that to be followed when he elects to give evidence on oath. In the former case, section 211 (4) lays it down<br>that "the statement" shall be "certified" in the manner prescribed by that subsection whereas in the latter case section 212 provides that the Court shall "take" the evidence of the accused which must mean that it shall be taken in the same manner as the evidence of any other witness. From that it follows that the accused's evidence is not required to be certified.

For the foregoing reasons, I am of opinion that the decision in the case of $\text{Rex } v$ . Kitunza (supra) ought not to be followed.

That being so the only question which remains to be considered is whether there is anything in the Zanzibar Decree which imposes upon the magistrate holding a preliminary inquiry an obligation to append his certificate to evidence given by an accused person. I can find nothing in the decree to indicate that such a certificate is required. On the contrary it seems to me to be abundantly clear that such evidence should be recorded in precisely the same manner as the evidence of any other witness either for the prosecution or for the defence. Section 218 (1) of the Criminal Procedure Decree provides that the accused shall be informed of his right to give evidence on his own behalf. The remaining subsections deal only with the procedure to be followed when the accused makes an unsworn statement and subsection (4) lays down that such statement shall be attested by the magistrate by certifying it in a prescribed form. There is no special provision as to how the accused's evidence should be taken and the reason for this must clearly be that when once the accused has elected to give evidence he is to be treated like any other witness. He becomes in effect the first witness for the defence. Referring back to section 182 we find that in an inquiry before a magistrate the evidence of witnesses shall be recorded by its being taken down in writing and signed by the magistrate. That was done in the present case and accordingly the evidence of the accused was "duly recorded." That being so, section 288 provides that it may be given in evidence at the trial without further proof as was done in this case. I accordingly have no doubt that no certificate was required and that the evidence of the two accused was properly admitted.

As regards the merits of the case there was in my opinion ample evidence to support the convictions and I would accordingly dismiss the appeals.

Bartley, J.—These two appeals have been consolidated, the appellants having been convicted of murder at one trial by the High Court of Zanzibar.

At the end of the trial the learned trial Judge proceeded to sum up to the assessors. The record then reads: "Court adjourned, assessors retire to consider their opinions."

In Rex v. Assa Singh (4 E. A. C. A. 41) which was an appeal from a judgment of the Supreme Court of Kenya the following two questions were raised by the Court: "whether the trial was a nullity (a) because one of the assessors, having been absent during one day's hearing, had been allowed to resume and give an opinion, and $(b)$ because the assessors, instead of giving their individual opinions at the conclusion of the summing up, were allowed to retire and consult before giving their opinions."

The law regarding the assessors giving their opinions which is exactly the same in both Zanzibar and Kenya reads: "when in a case tried with assessors, the case on both sides is closed, the Judge may sum up the evidence for the prosecution and the defence, and shall then require each of the assssors to state his opinion orally, and shall record such opinion."

After the above points were set out the Court proceeded to consider and decide the first question. The decision arrived at was that the absence of an assessor for the day and the subsequent giving of his opinion after resumption was fatal and rendered the trial a nullity. The Court next proceeded to consider the question of the assessors retiring to consult. The judgment on this point states that nothing had been pointed out to the Court in the authorities on the subject and that the Court had not been able to find anything except a passage in Sohoni's Code of Criminal Procedure in which the opinion of Bhashyan Ayyanger, J., expressed in 24 Madras 523 was followed to the extent of holding that the trial judge is entitled to have before him each assessor's individual opinion.

In 24 Madras 523, Bhashyam Ayyanger, J., expressed the opinion that "the assessors are not to retire for consultation and forming their opinion." It is worth noting that in that case the assessors had not retired for consultation and the only question for decision was whether the trial was a nullity because an assessor had been absent from the trial for two days, then resumed his seat, and gave his opinion at the end of the trial.

The judgment in Rex v. Assa Singh's case (supra) after setting out those authorities continued: "The section dealing with the delivery of opinions of assessors is set out supra, and although it is not strictly necessary to do so, in view of our decision on the first point, we wish to state that, in our opinion, in view of the words of the section which seems plain, permission to assessors to retire is such an irregularity in the mode of trial as to vitiate the entire proceedings."

That case was not decided on this opinion which is in the nature of an *obiter dictum*. The attention of the Court of Appeal was not directed to in re Sennimalai Goundan and others (A. I. R. 1915 Madras 1036) which actually is the case on which the extract from Sohoni's Criminal Procedure Code quoted in the judgment based. In that case five persons appealed against convictions of dacoity with murder. One of the grounds of appeal was that the trial Judge had refused to allow one of the assessors to consult the others before giving his opinion. The advocate for the appellants relied on the possibility that the assessor in question, who would not commit himself regarding the presence of a convicted accused among the dacoits, might have been willing to give his opinion against it as the result of consultation.

The decision of the Court of Appeal was: "We cannot find in the Code any provision authorizing or forbidding the Judge to allow consultation between the assessors and although we are not prepared to decide that the Judge may not in his discretion do so, we follow the opinion of Bhashyam Ayyanger, J., expressed in Emperor v. Terumal Reddi (24 Madras 523) to the extent of holding that he is entitled to have before him each assessor's individual and independent opinion."

The case referred to was 24 Madras 523 in which as already stated the opinion was expressed that the assessors were not to retire and consult. The law in India regarding the delivery of opinions of assessors is the same as in East Africa.

In my view the opinion expressed in $\text{Re}x$ v. Assa Singh (supra) in so far as it purports to decide that permission to assessors to retire is such an irregularity in the mode of trial as to vitiate the entire proceedings ought not to be followed. I am fortified in my opinion by the following considerations. At adjournments during a trial with assessors they are allowed to leave the Court and mix not only with themselves but others. I can envisage a case in which an adjournment until the following day was necessary during the final stages of a trial. During the adjournment there is nothing to prevent assessors consulting together.

A second point was raised by the Court in this trial. Neither of the appellants made a statement at the preliminary inquiry each giving evidence on oath. The evidence was not certified in accordance with the provisions of section 218 (4) of the Zanzibar Criminal Procedure Decree which requires that a statement by the accused person in answer to the charge after the statutory caution shall be certified as having been taken in his presence and hearing and as containing accurately the whole statement made by the accused The evidence recorded was admitted at the trial under person. section 288 of the Decree. That section reads, "The statement or evidence on oath (if any) of the accused person duly recorded by or before the committing magistrate and whether signed by him or not, may be given in evidence without further proof thereof, unless it is proved that the magistrate purporting to sign the statement or evidence on oath did not in fact sign it."

In Rex v. Kitunza bin Kasinde and others (4 E. A. C. A. 60) on an appeal from the High Court of Tanganyika it was held that "the giving of evidence is in the alternative or in addition to making a statement, and it is an accused's answer to the charge which has to be certified under section 211 (4)." Section 211 (4) of the Tanganyika Code of Criminal Procedure commands the same certification of a statement made by the accused as is commanded by section $218$ (4) of the Zanzibar Criminal Procedure Decree.

The attention of the Court in Rex v. Kitunza bin Kasinde and others (supra) was evidently not directed either to section 212 of the Criminal Procedure Code of Tanganyika or to the fact that in Rex v. Hashimu (1 E. A. C. A. 79) the Court of Appeal expressed the opinion that the expression "statement" used in section 211 of that Code "refers to an unsworn statement made in answer to the charge and not to evidence on oath." This opinion was not referred to in the judgment in Rex v. Kitunza bin Kasinde (supra) although the case was cited. In Rex v. Kitunza bin Kasinde the Court appears to have been directing its attention mainly to the question of the legality of not certifying a statement at the time when it was made in accordance with section $21(4)$ of the Criminal Procedure Code. At the time $\text{Re}x$ v. Hashimu (supra) was decided, under section 266 of the Tanganyika Code it was only the duly recorded statement of the

accused which could be used in evidence without further proof. Before Rex v. Kitunza bin Kasinde (supra) was decided that section had been amended to include the evidence given by the accused and the section now reads as in sction 288 of the Zanzibar Decree quoted above. The alteration to section 266 could not affect the decision of the Court of Appeal on the meaning of the word "statement" in section 211.

It is under section 212 of the Criminal Procedure Code of Tanganyika that the evidence of the accused is taken. That section clearly distinguishes the evidence from a statement. By subsection (1) of that section the Court is required to ask the accused whether he desires to give evidence on his own behalf "whether the accused has or has not made a statement."

The corresponding section in the Zanzibar Decree (section 219) is silent as to the accused giving evidence. Under that section the Court is only compelled to ask the accused whether he desires to call any witnesses. Under section 218 (1) of the Decree the accused has to be informed of his right to give evidence.

In my view the opinion expressed in $\text{Re}x$ v. Hashimu (supra) should be followed rather than the decision in Rex v. Kitunza bin Kasinde (supra).

Following the former decision it follows that the provisions of section 211 of the Code have no application to evidence given on oath and therefore no certificate is necessary when such evidence is taken under section 212 and properly recorded under section 184 of the Code.

With regard to the merits of the appeal, even were I to hold that the statements of the appellants were inadmissible I would still come to no other decision than that the appeals should be dismissed. The evidence clearly proves that both appellants set out together for the house of Muhoza on the night he was brutally murdered. They both admit being present when the murder was committed. Muhoza received seventeen serious wounds and two superficial injuries. The evidence establishes that one injury was not inflicted by a knife but by an instrument such as a crow-bar and that the others must have been inflicted by an instrument such as a bush knife. A bush knife and crow-bar each stained with human blood were found in Muhoza's house. Clothes stained with human blood were found in the houses of both appellants. Ibrahim Maganga admitted that he did strike Muhoza with a bush knife. Mungu Atosha denied taking any part in the murder. One of his explanations as to the blood stains found on his clothes was that the clothes were stained when he tried to reason with Muhoza.

The two appellants admit that after the murder they spent the night together.

Ibrahim Maganga alleged that he struck Muhoza because the other appellant threatened to kill him if he did not do so. He went on to say that the other appellant could kill him "by medicine, by witchcraft." Even if this were to be believed it would not amount to a threat to kill instantly.

On the evidence only one conclusion was possible.

I would dismiss the appeals.

(Appeals dismissed.)

those who commit it, he will not be a principal in the second degree merely because he does not endeavour to prevent the felony, or apprehend the felon.

"In 1 Hale, Pleas of the Crown, p. 439, it is said that to make an abettor to a murder or homicide principal to the felony there are regularly two things requisite: first, he must be present; second, he must be aiding and abetting. If, says Hale, A. and B. be fighting and C., a man of full age, comes by chance, and is a looker-on only, and assists neither, he is not guilty of murder or homicide as principal in the second degree.

"So again in Foster's Crown Law, p. 350, it is said that in order to render a person an accomplice and a principal in felony, he must be aiding and abetting at the fact or ready to afford assistance if necessary, and therefore if A. happeneth to be present at a murder, for instance, and taketh no part in it, nor endeavoureth to prevent it, nor apprehendeth the murderer, nor levyeth hue and cry after him, this strange behaviour of his. though highly criminal, will not of itself render him either principal or accessory."

The relevant section of the Kenya Penal Code (section 22) provides that "Where two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed ... each of them is deemed to have committed the offence."

"A participation, the result of a concerted design to commit a specific offence, is sufficient to constitute a principal in the second degree." (Archbold, 30th Ed., p. 1447.)

It is worthy of note that in both the cases of witch murder reported in the East African Law Reports-we refer to Kitchingeri and Others v. Rex (3 E. A. L. R. 1) and Rex v. Kumwaka and 69 Others (14 K. L. R. 137)—it is clear from the judgments that the guilt of each participant was established, although the cases are actually reported for other reasons.

If we apply these tests—and they are the tests which must be applied-it is very difficult to see how the conviction of most of these appellants can be justified. The prosecution established the presence of these men at the *baraza*, and then contented themselves with a vague and general assertion to the effect that the whole of the baraza moved down to the hanging, although a far from searching cross-examination threw sufficient doubt upon this evidence to secure the release of seven of the prisoners. But presence at the baraza was not in itself culpable, and only when certain persons decided to kill the wizard, and took him to the place of execution in pursuance of that decision and there killed him—it is only when these persons have been proved, beyond reasonable doubt, to have done that, that they can be convicted. Mere presence at the hanging was not sufficient unless it can be shown that the person either gave active assistance or, at least, moral support (as, for instance, by being one of those who sat round in a ring in order to overawe the victim and to be ready to help if help were needed).

But there is no evidence to show who these individuals were except in the case of Nos. 7 and 9. "But the whole *baraza* went down and sat in a ring round the tree, and as these men were in the *baraza* they therefore sat round the tree, and as none of them interfered to prevent what happened they must be guilty." That is not an unfair résumé of the prosecution argument. But even if they had been proved to have done the one, and to have failed to have done the other, they should still not necessarily have been convicted, and in any case this Court desires to say as emphatically as it can that it looks upon the evidence which has been offered in this case as quite insufficient to establish the guilt of the prisoners. Whether two men are tried or twenty, five or fifty, the requirements of the legal proof must still be fulfilled in each separate and individual case, and the guilt of each prisoner brought home to him as carefully, and as surely, as though he stood alone in the dock and engaged the undivided attention of the Court.

This seems to us to be a case in which the well-known citation from *Woolmington v. Director of Public Prosecutions* (1935 A. C. 462) might yet again be set out:-

"Throughout the web of English criminal law one golden thread was always to be seen: that it was the duty of the prosecution to prove the prisoner's guilt ... No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner was part of the common law of England and no attempt to whittle it down could be entertained."

We dismiss this appeal in the case of No. 7, Cherutich arap Chimnior, and No. 9, Kandie arap Kimoi, for we consider that the guilt of these two has been amply proved, and we do not propose to go over that particular ground again. We are not prepared, moreover, to interfere with the conviction of No. 51, Kipkitoi arap Chelelgo, who, though he was not shown to have been at the hanging, was yet clearly shown to have counselled the death of Nyanyor, and to have provided himself with a rope, and he has brought himself within the provisions of section 21 $(d)$ of the Kenya Penal Code and accordingly his appeal is dismissed.

In the case of each of the other appellants, we allow the appeal.