[1948] EACA 19

# COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill, C. J. (Kenya), Edwards, C. J. (Uganda), and AINLEY, J. (Uganda)

REX, Respondent (Original Prosecutor)

### GUSAMBIZI WESONGA, Appellant (Original Accused)

# Criminal Appeal No. 34 of 1948

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

Criminal law — Murder — Provocation — Reasonable doubt — Manslaughter — Whether evidence of witness as to native law and custom admissible at trial by Judge sitting with assessors-Uganda Evidence Ordinance, Laws of Uganda, Cap. 68, sect. 46—Assessors required by Judge to answer specific questions after summing-up—Proper direction by Judge—Uganda Criminal Procedure Code, sect. 277—Functions of assessors in criminal trial vaguely defined—Test the Court will apply.

The deceased was living promiscuously with a woman named Bugozi, who by native law and custom had become the wife of one Tanasi. The latter complained to the chief. He was advised to catch the couple by night in delicto. A party of men, including the appellant and his father Wasonga, but not the chief, set out by night to arrest the deceased. Outside the hut where he resided with Bugozi they called upon him to get ready because they were, a remark which appears to have been interpreted by the deceased as a threat to kill. Wasonga entered the hut carrying a *panga*, and the deceased immediately slew him with a spear. At about this time the woman Bugozi escaped through a hole in the back of the hut, and soon after realizing what had happened to his father the appellant killed the deceased. At the trial the appellant admitted the killing but pleaded provocation and the Judge came to the conclusion that as, in his opinion, the deceased's act in killing Wasonga was not an unlawful one the plea of provocation must fail.

The appellant was convicted of murder.

Held $(22-4-48)$ .—(1) (a) That homicide unless accidental is always unlawful except in $(22-4-46)$ . (i) (ii) That nonincide unless accidental is always unlawful except in circumstances which make it excusable, and if the deceased had not been killed and had stood his trial for causing the death of Wasonga i

(b) That the appellant might have satisfied the Court that what he did was a legitimate act of self defence and no more, but it was an issue that was never tried, and the appellant was entitled to the benefit of any doubt on the point.

(c) That as the point was sufficiently in doubt, on setting aside the finding of the trial Judge, the appellant was entitled to rely upon his plea of provocation. Conviction of murder quashed. Conviction of manslaughter substituted.

(2) Whilst one of the purposes of a Judge sitting with Assessors is to consult with them in order to ascertain matters of local custom, this does not make inadmissible the devidence of a witness called to testify as to native law and custom. Its admissibility depends on the view the trial Judge takes of the status of the witness, and if admitted, evidence in rebuttal may be called; then the duty of Assessors, if requested by the Judge, is to give an opinion as to what weight should be attached to it.

R. v. Ndembera, 14 E. A. C. A., referred to.

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(3) That there is no objection to a Judge requiring Assessors to answer specific questions after summing up providing that he tells them that they should state their opinion generally on the whole evidence, which seems to be required by section 277 of the Uganda Criminal Procedure Code.

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(4) That as the Legislatures of the East African Territories have been vague in defining or setting out the precise functions of Assessors in a criminal trial, until they are so defined it would be unsafe and impossible for the Court to set them out in comprehensive certainty, and in the examination of the exercise of any function by Assessors the Court will always apply the test of what is fair to an accused person, keeping in mind the principles of natural justice.

Appellant present, unrepresented.

## Dreschfield, Acting Solicitor General (Uganda), for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).-The appellant was convicted of murder in the High Court of Uganda of one Kesekiya. He was charged jointly with another man who was acquitted. The appellant in an unsworn statement at his trial admitted that he killed the deceased, but stated that at the time he did so he was acting under the stress of grave and sudden provocation because the deceased almost immediately before had speared his father to death in his presence. This assertion was borne out by the prosecution evidence, but the learned trial Judge came to the conclusion for reasons which he has fully and cogently stated that the act of the deceased in killing Wesonga, the father of the appellant, was not an unlawful one and that accordingly the plea of provocation must fail. In order to test the correctness of this conclusion it will be necessary to review the facts as found by the learned trial Judge in some detail. A man named Tanasi on the death of his brother inherited his land and his wife Bugozi. This inheritance so far as the wife was concerned did not turn out happily and after two or three months Bugozi went back to her late husband's plot (now the property of Tanasi) and there rebuilt and occupied the hut which stood on that plot. She then took unto herself a lover, the deceased Kesekiya. They seemed to have lived openly together for some considerable time before the incident which was the subject of this charge occurred and certainly this situation was well known to Tanasi, for in August, 1947, he complained to the Mutongole chief, who decided that a case should be filed before the Muluka chief. Nothing appears to have been done however, and the Judge has found as a fact, although the Muluka chief denied it, that he advised Tanasi that he should catch the couple by night *in dilecto*. As the learned Judge has remarked, this advice did not seem unreasonable, but the performance of it brought about the death of both Kesekiya and Wasenga, the appellant's father. On 19th October, 1947, about midnight Tanasi was prevailed upon by six of his clan relatives, which included the appellant and his father, to go in a body to the hut where Bugozi was living for the purpose of arresting Kesekiya, who was known to be there with the woman. Tanasi at first demurred on the grounds that if there was to be an arrest the chief should be present, but the others prevailed on him to accompany them. On arrival at the house Wasonga knocked in the door and entered carrying a panga. There was evidence that before this occurred the party called out to Kesekiya from outside the hut to get ready because they were ready-this remark in the opinion of both the assessors and the Judge constituted a threat to kill. Why this should have been so is not abundantly clear to us as the words we should have thought might equally have meant that the intention was to arrest and take Kesekiya to the chief. However, there seems no doubt that Kesekiya himself thought that it indicated that the party outside was about to attack him for he at once took a spear and broke it to a length suitable for use at close quarters. The next moment the door was broken in and Wasonga entered followed by Tanasi. According to Bugozi the former had a panga in his hand. Kesekiya immediately speared and killed Wasonga. The evidence as to the exact sequence or nature of the events which followed is somewhat confused, but it is evident that the appellant on realizing what had happened to his father very soon after killed Kesekiya.

The conclusion which the learned trial Judge reached, as he says "without hesitation", was that for a party of men to visit a house at midnight, to call out a threat of death, for the door to be forced and for Wasonga to burst in armed with a panga fully justified Kesekiya's action in spearing Wasonga "in defence of his home, his woman and his very life". The learned Acting Solicitor General in his able argument has put it even higher as he sought to show that there was a little difference between what the party of men did and a gang of robbers. We are by no means so sure that this is a sustainable analogy. The learned trial Judge himself does not find, at least in clear terms, that the party went to the house with a common felonious intent, and we doubt if the evidence in any event would justify such a finding. The house was the property of Tanasi and Kesekiya certainly had no rights in the property or the woman who lived there. Both by native law and custom and on grounds of general morality he was a wrongdoer who had no business to be there. However we would put our objection to the conclusion reached by the learned Judge on a broader ground. Homicide, unless accidental, will always be unlawful except in circumstances which makes it excusable. Can it be certain that if Kesekiya had not been killed by the appellant and had stood his trial for having caused the death of Wasonga that the prosecution might not have proved that in doing what he did he exceeded the right of self-defence? It is possible, perhaps even probable, that the appellant might have satisfied the Court that what he did was a legitimate act of self-defence and no more, but if there is doubt at all on this point appellant must have the benefit of it. In any case it is an issue that cannot be said to have been ever tried. The fact that the woman Bugozi at or about the time the blow was struck was able to escape through a hole in the back of the hut might we think have proved an embarrassment to Kesekiya's defence. However, as we have indicated, we think the point sufficiently in doubt for us to accept the conclusion reached by the learned Judge and the logical consequences in law which followed from it. If this be set aside then the appellant is entitled to rely upon his plea of provocation. We accordingly quash the conviction for murder and substitute one of manslaughter.

As regards sentence it is undeniable that the provocation was extreme, but the appellant was engaged at midnight on an adventure that to say the least was calculated to bring about a breach of the peace. Even if the conduct of Kesekiya and Bugozi was a scandal to the neighbourhood there was no justification for a nocturnal visit by this gang of men with a show of threats and force. We sentence the appellant to undergo imprisonment with hard labour for seven vears.

Although it in no way affects our decision in this case there is a matter which we feel bound to mention as during the hearing of this appeal we have heard arguments concerning it.

During the defence of the appellant at his trial his advocate informed the Court that he proposed to call a witness to give evidence of what steps according to native law and custom may be taken to arrest persons living in adultery. The learned Judge after hearing an objection from Crown Counsel ruled that such evidence was inadmissible on the ground that one of the purposes of sitting with assessors is to enable the Court to consult with them (and presumably with them alone, although the learned Judge did not say so) in order to ascertain matters of local custom. The learned Judge had probably not before him a recent case which came before this Court (Rex v. Ndembera, Criminal Appeal No. 97/47) where the point was discussed, nor do we think his attention can have been specifically called to section 46 of the Evidence Ordinance (Cap. 68 of the Laws of Uganda). Without in any way holding that the case above quoted, which was a Tanganyika one, is necessarily applicable to the Protectorate of Uganda we think the learned Judge was wrong in preventing the defence from calling a witness—the evidence the witness proposed to give was certainly relevant, its admissibility would depend on the view the learned Judge took of the status of the witness. If the Judge, after the witness had been called, had not been satisfied after preliminary questioning that he was sufficiently expert to give opinion evidence he would have been right to exclude it. If the evidence had been admitted, evidence in rebuttal, if such had been available, could have been called either by the prosecution or by the Court on its own motion. The duty of the assessors would then have been, if requested by the Judge, to give their opinion as to the weight they would attach to it.

In point of fact the exclusion of the evidence in no way prejudiced the appellant because the witness the defence desired to call had given evidence before the committing Magistrate at his request and had then stated that to arrest a man at night suspected of adultery a chief should accompany the party.

We also note that at the end of his summing-up the learned Judge put three questions to the assessors in order that he might have their opinions on the lawfulness by native law and custom of the entry into the house. We can see no objection to a Judge requiring assessors to answer specific questions after his summing-up provided that he is careful to tell them that they should state opinion generally on the whole of the evidence, for this seems to be required by the terms of section 277 of the Uganda Criminal Procedure Code.

Both these points we are aware involve the much larger one as to what are the precise functions or the exact status of assessors in a criminal trial. The legislatures of all the East African Territories have been vague, perhaps intentionally so, in defining or setting out their functions, and until they are so defined it would be unsafe and impossible for the Court to set them out in comprehensive certainty. All that can be said is that in the examination of the actual exercise by assessors of any function this Court will always apply the test of what is fair to an accused person and will keep in mind the principles of natural justice.

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