[1948] EACA 21

## 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)

(1) YAFESI NABENDE S/O MAYAMBA, (2) ERIAZALI WAMUYA S/O MAYAMBA, (3) YOVANI MASABA s/o MAYAMBA, (4) LUKA KISA s/o MAYAMBA, (5) NIKANOLI WATASA s/o MAYAMBA, Appellants (Original Accused)

Criminal Appeals Nos. 35, 36, 37, 38 and 39 of 1948 (Consolidated)

(Appeals from decision of H. M. High Court of Uganda)

Criminal Law—Murder—Provocation by knowledge of wife's adultery—Witness's delay in giving information to the police—Conflicting evidence—Credibility -Appeal on finding of fact-Principles which should govern a Court of Appeal when considering questions of fact.

This was a consolidated appeal by five convicts who had been convicted of murder and sentenced to death. The facts appear sufficiently from the judgment below: —

**Held** (29-4-48).—(1) When an accused is charged with the murder of his wife's lover and it is established that he had prior knowledge of their adulterous association and was privy to a plot to catch them together, the defence of provocation by sudden knowledge is not open to him.

(2) Although a witness to a crime may delay in giving information to the police, and even then at first deny knowledge of it, a trial Judge, after fully directing himself<br>on the need for caution in considering his evidence, may be justified in believing that his failure to come forward and his first denial were due to genuine fear.

All appeals dismissed.

(3) That in an appeal against a finding of fact, where it is impossible to say that the trial Judge did not take proper advantage of his having seen and heard the witnesses or that the reasons given by him for the conclusion he reached are unsatisfactory, the Appellate Court will not intervene.

The principles which should govern a Court of Appeal when considering questions of<br>fact arrived at by a Judge or Magistrate sitting alone, as set out in the decision of Viscount Simon in Watt v. Thomas (1947) 1 A. E. R. 582 applied and adopted.

R. v. Figgis (1940-41) 19 K. L. R. 32 approved.

Appellants present, unrepresented.

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

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—This consolidated appeal arises out of the conviction of five men who were jointly tried and convicted for the murder of one Fesito Wamimbi in the High Court of Uganda. The five appellants' first names are as follows: (1) Yafesi; (2) Eriazali; (3) Yovani; (4) Luka; and (5) Nikanoli, and they stood on the same order when arraigned at their trial. The defence of the first four appellants has always been that they knew nothing about the killing and were elsewhere at the time; the fifth appellant contended at his trial and before this Court that although he may be responsible for having brought about the death of the deceased his offence at the most is manslaughter because he was provoked by the sudden knowledge that his wife Dinah had been committing adultery with the deceased. The submission of all five appellants in their memoranda of appeal and in their statements to this Court

is that the learned trial Judge erred in accepting the evidence of the prosecution: witnesses Isaka and Yusifu and should have accepted the version of the incident: related by the woman Dinah, second wife of the fifth appellant and lover of the deceased. The first four appellants have all strenuously protested their innocence before this Court and have put forward reasons of a kind which certainly warrant examination as to why the evidence in particular of Isaka should be considered as suspect and why the evidence of Dinah is more inherently probable. On the evidence of Isaka it is manifest that the appellants went to a house at night where they knew they would catch the deceased in an act of adultery with the wife of the fifth appellant and that, after what the learned Judge has aptly termed, a kind of trial they put him to death and disposed of the body. The chief criticism that has been levelled against Isaka is that it was nearly a month before he made a statement to the police containing allegations against the appellants and what is more in his first statement to the police he denied all knowledge of the night's happenings. This defect in Isaka's behaviour was fully considered by the learned Judge who came to the conclusion that he was justified in believing that Isaka's reluctance to come forward to the authorities and his first denial were due to genuine fear. Isaka has testified that he was actually threatened with death on the night of the crime, because he tried to raise an alarm—that he was made to assist in the carrying away of the deceased's body and that his life had only been spared on condition that he kept his mouth shut. It is also urged against Isaka that his story that his sister Dinah was prive to the trap to ensuare the deceased which involved a confession of her adultery to her husband the fifth appellant is so inherently improbable that the trial Judge should have rejected it, particularly as Dinah, a prosecution witness denied all that part of her brother's story. Certainly it is more probable that a guilty wife who wanted to continue an irregular liaison would keep silent, but no Court can prove the motives, which may have inspired this woman's conduct. and this Court cannot put itself in the place of the trial Judge who had the advantage of seeing both Isaka and Dinah in the witness box. The learned Judgeafter fully directing himself on the considerations which could be urged against: Isaka came to this conclusion.

"Isaka was in the witness box for a long time and was subjected to a very thorough cross-examination; his demeanour both when he gave evidence-in-chief and under cross-examination impressed me as that of a person who was speaking the truth without fear or favour."

His conclusion with regard to Dinah was precisely the reverse; "her demeanour in the witness box was noticeably uneasy and I formed the impression that she was nervous not because she was admitting adultery but because she was deliberately lying. I have no doubt whatsoever that she was lying and her evidence can therefore be ignored".

The principles upon which an Appellant Court can in a proper case act upon its own view of conflicting evidence were stated at some length in the wellknown Kenya case of Rex v. Figgis which was decided in the Supreme Court of Kenva sitting in its appellate capacity and there is nothing in the view expressed. in the judgment given in that case with which this Court could disagree. In the House of Lords case *Watt v. Thomas* (A. E. L. R., Vol. I, page 582) decided in: 1947 Viscount Simon stated at some length the principles which should govern a Court of Appeal when considering questions of fact arrived at by a Judge or Magistrate sitting alone. As these are applicable to the instant case and arestated with such clarity we feel we should repeat them and adopt them.

We quote from the headnote which fully and accurately reproduces the substance of Viscount Simon's observations.

"Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, and Appellate Court which is disposed to come to a different conclusion on the evidence should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the Judge's conclusion. The Appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. The Appellate Court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court."

In the case before us it is quite impossible for us to say that the learned trial Judge did not take proper advantage of his having seen and heard the witnesses or that the reasons given by him for the conclusion he reached are unsatisfactory—furthermore the evidence of Isaka did not stand alone—it was corroborated by the witness Yusifu who spoke to having seen four of the appellants at the spot described by Isaka "stooping over some long thing" on the ground and of hearing Eriazali the second appellant calling out "catch that one also and we will kill him", this bearing out Isaka's evidence that he was threatened by the appellants. The learned trial Judge after fully considering objections which might be urged against the impartiality of this witness, came to the conclusion that he was speaking the truth. Again we cannot say that was an unjustifiable conclusion. It follows accordingly that on the view the learned Judge took he was right to convict the first four appellants of murder.

The fifth appellant has always maintained that the deceased met his death by an accident for which he may have been responsible as he was assaulting him at the time but that his offence cannot be more than manslaughter as he had just discovered Fesito in his wife's house under circumstances which clearly indicated that he had been having adulterous intercourse with his wife.<br>Unfortunately for the appellant this defence is not open to him if Isaka's. evidence is accepted as from that evidence it was established that he had prior knowledge of his wife's adultery and was privy to the whole plot to catch the two together. We need not restate the reasons why we cannot hold that the learned Judge was wrong in accepting that evidence in toto.

The appeals of all five appellants must be dismissed.