Rex v Mbologa (Criminal Appeal No. 183 of 1947) [1947] EACA 48 (1 January 1947)

### COURT OF APPEAL FOR EASTERN AFRICA

## Before NIHILL, C. J. (Kenya), SIR. G. GRAHAM PAUL, C. J. (Tanganyika) and BARTLEY, J. (Kenya)

**REX, Respondent (Original Prosecutor)**

#### MBOLOGA s/o NYESHEMA, Appellant (Original Accused)

## Criminal Appeal No. 183 of 1947

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

Criminal law—Murder or manslaughter—Duty of Court to inquire.

The appellant, at his trial, gave evidence that he killed the deceased because he was attacked by him. The Court disbelieved his evidence and found him guilty of murder. There was other evidence, however, including a previous statement on oath by the appellant that the deceased had been making amorous advances to the appellant's wife.

Held (29-8-47).-That proof that an accused person has lied in his defence does not itself justify a conviction of murder or absolve the trial court from ascertaining from the whole sevidence whether the crime was murder or manslaughter. In the present case there was<br>some doubt, of which the appellant should have the benefit, and a conviction for manslaughter should be substituted.

Appellant absent, unrepresented.

Lowe, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The appellant was convicted in the High Court of Uganda at Kampala of the murder of Arafaeri and sentenced to death. From that conviction he appeals to this Court.

That the appellant killed Arafaeri is beyond doubt. When charged with the murder at his trial he answered. "I killed him", which the Court rightly recorded as a plea of not guilty. In his lengthy statement on oath at the preliminary investigation and at his trial he admitted the killing. When first charged by the police he had denied the killing and tried to blame it on one Matiya, but in his statements on oath at the preliminary investigation and at his trial he admitted that his original statement to the police was a lie.

That Arufaeri was killed by a spear wound in the back is also established beyond doubt. The only question of any substance in this appeal is whether in the circumstances of the case the conviction of murder should be quashed and a conviction of manslaughter substituted.

The specific grounds of appeal set out in the memorandum of appeal, grounds Nos. 1 and 2, seek to reduce the offence to manslaughter on the ground that the appellant killed the deceased "while smarting under sudden anger caused owing to his wife and the deceased found actually sleeping together in his own hut".

These specific grounds of appeal prepared by appellant's advocate are quite inconsistent with the appellant's own evidence at the trial, for in that evidence he says in regard to the killing of Arafaeri: "I did not know that I was stabbing Arataeri, but I noticed afterwards, when he had fallen down, that he was Arafaeri".

According to the appellant's evidence he had arrived at the verandah of his house in the dark when an unknown man "put his clutched fingers on my chest. I fell down on my back". The man then ran away and the appellant got up and speared him in the back as he ran. In cross-examination, the appellant said that the man came from his (the appellant's) house.

Quite clearly, according to that evidence, the spearing was in no way actuated by anything in the mind of the appellant about Arafaeri or Arafaeri's misdeeds.

But there remain the questions whether the evidence of the appellant should be accepted as to the circumstances of the spearing and whether the facts proved were sufficient to reduce the offence to manslaughter.

Upon the first of these questions we have the express and definite view of the learned Chief Justice who tried the case. The learned Chief Justice did not believe the appellant's evidence as to how he came to spear Arafaeri. We quote from the judgment: -

"I believe that the prosecution theory is the correct one, namely that the deceased had come some months ago to live with the accused at first and later he (deceased) had his own place. The deceased made amorous advances to the accused's wife. When the accused complained, the deceased "squared" the accused and mollified him by giving him a small sum of money. Subsequently, the accused became more and more dissatisfied and wanted to repay this sum of money. The deceased seems to have refused to accept the money. whereupon the accused stabbed Arafaeri".

It is impossible for us to hold that the learned Chief Justice was wrong in the passage we have quoted from his judgment, for it is in effect precisely what the appellant himself had said on oath at the preliminary investigation. We think that the learned Chief Justice was right in his conclusion that the appellant lied in his evidence at the trial on this point. We think that there can be no doubt on all the evidence that at the time he speared him the appellant knew perfectly well that it was Arafaeri he was spearing.

That an accused person is proved to have lied in his evidence in his defence on a charge of murder does not, however, itself justify a conviction of murder or absolve the trial Court from ascertaining from the whole evidence whether the crime was murder or manslaughter, and it is this question which now confronts us in this appeal.

The assessors on this question do not assist much, for they simply give each a bare finding of wilful murder without any explanation of the grounds for their finding.

There is no doubt upon the whole evidence that Arafaeri had been making amorous advances to the appellant's wife. The learned Chief Justice has so found. It is in evidence for the prosecution that the appellant had complained to Erasto Kalanzi about this amorous activity and that he had for that reason stopped Arafaeri having his meals in his (appellant's) house. Arafaeri was originally an employee of the appellant and had abused his position by his amorous activities. Upon that state of the evidence we must examine the incident of the spearing of Arafaeri upon the evidence and the findings of fact of the learned Chief Justice. That incident, so considered, may be shortly stated. The appellant one evening returned to his house after dark. He suddenly encountered the erring Arafaeri coming out of his house, where the appellant's wife was, after dark. Arafaeri not unnaturally ran away from the irate husband after knocking him down. The husband has his spear with him and uses it. In these circumstances we find it impossible to say that it is not at least doubtful whether the spearing was done under "provocation" within the meaning of section 199 of the Uganda Penal Code. That being so, we must resolve the doubt in favour of the appellant and we accordingly quash the conviction of murder and the sentence of death and substitute therefor a conviction of manslaughter and a sentence of seven years' imprisonment with hard labour.

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