Rex v Kabaile and Another (Criminal Appeal No. 45 of 1941) [1941] EACA 46 (1 January 1941)

## COURT OF APPEAL FOR EASTERN AFRICA

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

## REX. Respondent

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## LULATIKWA S/O KABAILE, alias RUTAHABA S/O KASASE, Appellant Criminal Appeal No. 45 of 1941

## Appeal from decision of H. M. High Court of Tanganyika.

Criminal Law-Identification Parade-Instructions to identifying witnesses.

Appellant appealed from conviction of murder which had been committed by one Lulatikwa about a year before appellant's arrest. Lulatikwa and his father had left the district immediately after the murder. Three witnesses, Bamwanga, Itako and Masunga s/o Chukuri, positively identified the appellant as Lulatikwa. The witnesses had an opportunity of seeing the appellant under arrest before an identification parade at which he was an identifying witness. In addition, the officer who conducted the parade told this witness when he brought him to the line, "you know a man called Lulatikwa whom you say killed your uncle. Come on to the verandah and see if you can find him".

The defence was that the accused was not Lulatikwa and that he was a man from a different district. Appellant called no evidence other than his own evidence to substantiate the suggestion that he was living in another district at the time of the murder.

Held $(6-5-41)$ —(1) That it is dangerous to suggest to an identifying witness that the person to be identified is believed to be present on the parade.

(2) That in spite of the unsatisfactory nature of the identification parade as far as<br>the evidence of Bamwanga was concerned, the evidence was sufficient to justify the conviction.

Appeal dismissed.

Appellant absent unrepresented.

Windsor-Aubrey, Acting Solicitor General, Uganda, for Crown.

JUDGMENT (delivered by SIR HENRY WEBB, C. J.).—The appellant appeals against his conviction and sentence for the murder of Wakinyagi s/o Kidumira by shooting him with an arrow. The murder took place in October, 1939, at a village called Nyakagomba; the murderer was not apprehended at the time, but two years later Itako s/o Sambaiga, son of the man who was headman of Nyakagomta at the time of the occurrence, recognized the appellant at a place called Nyamkwali, and arrested him. It is a curious fact that up to that time the death of Wakinyagi had never been reported to the authorities. The motive of the murderer appears to have been trivial in the extreme, he was drunk and had a triffing dispute and quarrel with one Bamwanga, at whose house the deceased was drinking pombe, which ended in the deceased saying to him, "Have you come here to quarrel? You had better go home"; this man, Bamwanga, was the only available eye witness of the occurrence.

The defence was that this is a case of mistaken identity; the appellant said that his name is not Lulatikwa, but Rutahaba, that he was never in Nyakagomba village, but was at the time of the murder in his native place, Kakongo, near Kigoma, where he has a shamba. As against this three witnesses, Bamwanga, Itako and Masunga s/o Chukuri, were positive that the appellant was well known to them as Lulatikwa s/o Kabaile as he and his father had been living at Nyakagomba for about four years. There was evidence also that after the murder people went to look for the appellant, but found that he and his father had disappeared. After the arrest of the appellant an identification parade was held, but unfortunately in a somewhat careless and irregular manner, for it would seem that it is at least highly probable that the witness Bamwanga, who was to be asked to identify the murderer, had an opportunity of seeing the appellant under arrest before the parade took place. In addition the officer who conducted the parade says that when he brought Bamwanga to the line of men he said, "You know a man called Lulatikwa whom you say killed your uncle, come on to the verandah and see if you can find him". It is undesirable and dangerous to say, particularly to a native witness, anything calculated to suggest to him that the person to be identified is believed to be present in the parade: some quite colourless expression should be used, such as, "is there anyone here whom you recognize?" If the witness picks out anyone, he can then be asked, "Who is this?" The correct procedure is set out in the judgment of this Court in R. v. Mwango s/o Manaa, $3 \text{ E. A. C. A. } 29.$

In spite, however, of the unsatisfactory nature of the identification parade, and of the fact that the witness Bamwanga stated incorrectly that the appellant had a scar on his forehead, by which he identified him, the positive evidence of this witness and Itako and Masunga that the appellant is the person whom they had known for four years at Nyakagomba as Lulatikwa, was sufficient to justify the conviction. The learned trial Judge and the assessors believed this evidence, and it is not for us to say that they were wrong in so doing. It must be noted, further, that the appellant never asked to have witnesses called to prove the alibi upon which he relied at his trial: in his statutory statement he said: "If you don't want to decide my case now, I have nothing to say now, but will speak when the High Court comes", and in his evidence at his trial he said, "I have not called the headman of my village because I have not killed anyone, why should I trouble to call him?" If a person charged with a serious offence alleges that at the time when it was committed he was in some other place where he is well known, and yet makes no effort to prove that fact, which, if true, could easily be proved, the Court must necessarily attach little weight to his allegation, particularly in the face of such definite evidence of identity as there was in this case.

The appeal is accordingly dismissed.