Rex v Birigenda (Criminal Appeal No. 188 of 1948) [1948] EACA 49 (1 January 1948)

## . COURT OF APPEAL FOR EASTERN AFRICA

Before Sir BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and LLOYD-BLOOD, J. (Tanganyika)

### REX. Respondent (Original Prosecutor)

# ZAKAYO ITIMA $s/o$ BIRIGENDA, Appellant (Original Accused) Criminal Appeal No. 188 of 1948

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

Criminal Law—Murder—Manslaughter—Provocation $\mathbf{b}\mathbf{y}$ insulting $\textsf{words-}$ Interpretation of word "insult" in section 199, Uganda Penal Code-Trial with two Assessors—Assessors divided in opinion—Duty of trial Judge— Uganda Criminal Procedure Code, Section 277 (2)—Matters to be considered in Judgment.

The appellant was convicted of the murder of his wife. He had struck her several times with a panga, inflicting fatal injuries, because she refused to have sexual intercourse with him. At his trial the appellant alleged that she had said: "You cannot lie with me, you are no longer a man", words which apparently the trial Judge accepted as having been uttered. One of the two assessors gave it as his opinion that the words used would have made the appellant mad, and that the offence was manslaughter; the other, though finding for murder, agreed that the appellant had been provoked.

Held (1-11-48).-(1) That an insult of the nature of that offered to the appellant, unaccompanied by any wrongful act, could amount to legal provocation.

R. v. Hussein s/o Mohamed, 9 E. A. C. A. 52 referred to and followed; R. v. Samsoni, 6 E. A. C. A. 154 referred to and quoted.

(2) That the authority of the decision in $R$ . $\nu$ . Samsoni (quoted in the judgment below) was sufficient warrant for interpreting the word "insult" in section 199, Uganda Penal Code, as including "insulting words".

Gour's "Penal Law of India", 2nd Edition (1918), Vol. II p. 1347 quoted; Ratanlal and Dhirajlal's "Law of Crimes", 14th Edition (1936) p. 721 quoted.

(3) That when a trial Judge is satisfied that certain words were uttered by a victim of a homicide to his or her slayer, in deciding whether such words are sufficient provocation to reduce the crime to manslaughter, and when there are two assessors whose opinions are divided, whilst the Judge should pay attention to their opinions and give them due weight, he must decide the point according to his own view, explaining why<br>he adopts the view of one assessor in preference to that of the other, or giving his reasons if he comes to a decision contrary to the opinion of both assessors.

(4) That in the present case the learned trial Judge gave no indication that he addressed his mind to the assessors' opinions, nor did he give any reason why he could not find any sufficient provocation in the words used, and that had he directed himself properly, whilst he might have come to the same conclusion that he did, he might also have possibly agreed with the first assessor that the words did drive the appellant mad.

(5) Whilst holding that on the face of it an imputation of impotency suddenly made by a native wife to her husband might well be held to amount to more than mere vulgar abuse, especially when given as a reason for refusing sexual intercourse, nevertheless, the Court was far from saying that the use of such words would always be accepted as an insult of such a nature as to constitute grave and sudden provocation, for everything must depend on the circumstances of each case.

Conviction of murder quashed. Conviction of manslaughter substituted. Appellant sentenced to 12 years' hard labour.

Appellant absent, unrepresented.

Sir James Henry, Crown Counsel (Tanganyika), for the Crown.

JUDGMENT (delivered by EDWARDS, C. J.).—The appellant was convicted by the High Court of Uganda of murder and sentenced to death. Against both the conviction and sentence he now appeals to this Court. In paragraph 5 of his Memorandum of Appeal he prays that he be acquitted, alternatively that he be acquitted of murder and convicted of manslaughter. There can be no question but that the appellant struck his wife, Maria Akuheranda, several times with a panga. The medical evidence revealed that her right knee, right forearm and right thumb were lacerated, while the remaining fingers were amputated; there were several other wounds on the chest. She died from shock and hæmorrhage from the injuries just described. The deceased made a dying statement at Hoima Hospital to Mr. Addison, an Assistant District Commissioner and III Class Magistrate, in which she said that her husband, Itima, cut her when she objected to having sexual intercourse with him, he having at midday taken her to the forest to collect firewood. In a voluntary statement to Assistant Superintendent of Police Woodgate the appellant said, "I went to the bush to cut firewood and afterwards returned to where Maria was also cutting wood. I asked her to sleep with me at this spot, she refused and getting angry with her I struck her several times on the back with the panga that I was carrying. She fell on the ground. I became afraid and ran away and reported the matter to the police who arrested me". Before the committing Magistrate the appellant said "It was I who cut and killed this woman, but I will explain why I did so to the High Court Judge". In the High Court the appellant made an unsworn statement the terms of which were "I wish to add to my former statement that my wife disobeyed me: I was<br>feeding her, looking after her, doing everything for her. When we went to the bush I did not mean to kill her. We went to work. When I asked for sexual intercourse in the house she refused, being attached to Ganafwa. So in the bush it came to my mind that she would consent there. Having arrived in the bush I asked her again, and asked her if she wanted to see me going after other men's women. I insisted on having intercourse there. She replied: "You cannot lie with me, you are no longer a man". I said "I pay poll tax and am a man". Then, as if by accident, I cut her. By this time I was not steady in my heart. I ran a distance of two miles. I decided to give myself up to the authorities".

One of the two assessors gave it as his opinion that the woman's words "You are no longer a man" would make the appellant mad. This assessor considered that the appellant's crime was manslaughter and not murder while the other assessor said "He was provoked but he cut her very severely repeatedly. I find him guilty of murder". It is not altogether clear from the second assessor's opinion whether or not he considered the provocation grave and sudden or whether he considered that the appellant, although justifiably provoked in the first instance, went on striking at the woman after, or long after, his passion should have had time to cool but he did at least agree with his colleague that the appellant was provoked. Be that as it may, the learned trial Judge held, and we think rightly held, that refusal of intercourse per se could not be considered as provocation in law and he also went on to say "I cannot find in those words 'You are no longer a man'-if used, sufficient provocation for what he characterized as a 'Savage and manifestly murderous attack on his defenceless wife'". He accordingly found him guilty of murder. We think it might have been better if the learned trial Judge had said whether or not he believed that the deceased did use the words quoted. We think that the Judge having only the appellant's own assurance as to this might have found it difficult to believe the appellant in view of the fact that he had made no mention whatsoever of this in his statement to Mr Woodgate. Nevertheless, it would seem that both the assessors were prepared to accept the appellant's assurance that the deceased *did* say "You are no longer a man" and, since the Judge did not in terms say that he disagreed

with the assessor on this point, we, sitting as an appellate court, must assume that the trial Judge did decide the case on the footing that these words were uttered. by the deceased. We must therefore consider the point whether an insult of thisnature, not accompanied by any wrongful act, could amount to legal provocation. This Court in the case of Rex v. Hussein s/o Mohamed, Vol. 9, E. A. C. A. L. R. page 52, held that under certain circumstances insulting words alone amount to provocation.

Then again in Criminal Appeal No. 125 of 1939, Rex v. Samson, Vol. 6, E. A. C. A. L. R. page 154, which was an appeal from the High Court of Uganda, this Court said "We are not prepared to say that there may not be cases when. insulting words used in particular circumstances may not constitute legal provocation but such words must be more than mere vulgar abuse". The authority of that decision is, in our view, sufficient warrant for our interpreting: the word "insult" in section 199 Uganda Penal Code as including "insulting: words". Section 199 is in the following terms, namely, "The term 'provocation'. means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presenceof an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, or in the relation of master or servant, to deprive him of the power of self control and. to induce him to assault the person by whom the act or insult is done or offered"...

When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.

A lawful act is not provocation to any person for an assault.

An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excusefor committing an assault is not provocation to that other person for an assault.

An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality".

In Dr. H. S. Gour's "Penal Law of India" 2nd (1918) Edition Vol. II at page-1347 the following commentary on Section 300 Indian Penal Code appears. "In England, words as well as acts may cause such provocation. So Blackburn, J., in a case of wife-murder told the jury: "As a general rule of law, no provocation of words will reduce the crime of murder to that of manslaughter, but under special. circumstances there may be such a provocation of words as will have that effect; for instance, if a husband suddenly hearing from his wife that she had committed. adultery, and he, having had no idea of such a thing before, were, thereupon, to kill his wife, it might be manslaughter. Now in this case, words spoken by the deceased just previous to the blows inflicted by the prisoner were these: 'Aye, but I'll take no more for thee, for I will have no more children of thee: I have done it once, and I'll do it again?' Now, what you have to consider is, would these words which were spoken just previous to the blows, amount to such a provocation as would, in any ordinary man, not in a man of violent and passionate disposition, provoke him in such a way as to justify him in striking her as the prisoner did? (4) In some earlier cases it appears to have been suggested that mere words unaccompanied by an act were insufficient to give provocation. (5) But this view if ever taken is not the view of the Code. So the authors wrote: "We greatly doubt whether any good reason can be assigned for this distinction. It is an indisputable fact that gross insults by words or gesture have as great a tendency to move many persons to violent passion as dangerous or painful bodily injuries nor does it appear to us that passion excited by insult is entitled to less indulgence than passion excited by pain. On the contrary, the circumstance that a man resents. an insult more than a wound is anything but a proof that he is a man of a peculiarly bad heart. It would be a fortunate thing for mankind if every person felt an outrage which had fractured one of his limbs. If so, why should we not treat an offence produced by the blameable excess of a feeling which all wise legislators desire to encourage more severely than we treat the blameable excess of feelings certainly not more respectable?

Again in Ratanlal and Dhirajlal's "Law of Crimes" 14th (1936) Edition page 721 it is said that "According to English law mere words, or gestures, not accompanied with anything of such a serious character as a blow will not, in point of law, be sufficient to reduce the crime to manslaughter. This, however, is a general rule of law, and under special circumstances there may be such a provocation of words as will have the effect of reducing the crime to manslaughter".

The next question which we think we ought to attempt to answer is "Assuming that a trial Judge in Uganda is satisfied that certain words were uttered by the victim of a homicide to his or her slayer how should the Judge decide whether such words were sufficient provocation to reduce the crime to manslaughter? Should he act on his own estimation of the effect such words ought to have on a person of the type of the accused or should he act on the advice of the assessors?" If, as in the instant case, there were only two assessors and as here they were divided, should the Judge still act on his own view or should he, seeing that the assessors were divided, convict the accused of manslaughter only? There is, of course, another possible method, viz. that the accused should be expected to call evidence of experts or notables, such as Chiefs or Sub-Chiefs; if this course were adopted the Crown would surely be entitled to call rebutting evidence to show that the words were not of such a nature as to be likely to make an average man of the accused's type lose control of himself. There are obvious objections to this latter suggested method, namely, that of calling witnesses, and we at once rule it out. Should then the Judge be guided by the opinions of the assessors? The law as to assessors is statutory. Section 277(2) Uganda Criminal Procedure Code states "The Judge shall then give judgment but in doing so he shall not be bound to confirm to the opinions of the assessors".

In our view the answer is a simple one, namely, the trial Judge, while he should pay attention to the opinions of assessors and give them due weight, must decide the point according to his own view. His own view will be founded on his knowledge and experience of the people as well as on his own wisdom and knowledge of life as well as of law. If the two assessors are divided, he should explain why he adopts the view of one in preference to that of the other while, if he decided in a manner contrary to the opinions of both assessors, he should similarly give reasons for so doing. Our difficulty in the present case is that the learned trial Judge in his judgment has given no indication that he addressed his mind to the opinions given by the assessors, nor has he given any reason why he could not find any sufficient provocation in the words used. On the face of it an amputation of impotency suddenly made by a native wife to her husband might we think well be held to amount to more than mere vulgar abuse especially when as in the present case it was put forward as a reason for her refusal of sexual intercourse. On the other hand we are far from saying that the use of such words would necessarily be always accepted as an insult of such a nature as to constitute grave and sudden provocation. Everything must depend on the circumstances of each case. In this case had the learned trial Judge properly directed himself we agree that he might well have come to the same conclusions as he did; there is, however, a possibility that he might have agreed with the opinion of the first assessor that the words did drive the appellant mad. That being so, we feel that we have no option save to quash the conviction of murder and substitute a conviction of manslaughter and we sentence the appellant to undergo imprisonment with hard labour for 12 years. $\mathcal{O}_{\mathcal{M}_{\mathbf{A},\mathbf{A}}}$