REx v Mushibi (Criminal Appeal No. 63 of 1946) [1946] EACA 35 (1 January 1946)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

## REX, Respondent (Original Prosecutor)

## MUSHIBI s/o MUHINGUZI. Appellant (Original Accused) Criminal Appeal No. 63 of 1946

(Appeal from decision of H. M. High Court of Tanganyika).

Criminal Law—Murder—Provocation—Manslaughter.

The appellant's wife had spent the whole day at a beer party at M's house and towards sunset the appellant, taking his spear with him as a defence against wild animals on the way, went to M's house to look for her. When he began to take her out of the house he was attacked by E and thrown out in the courtyard. He picked himself up but was insulted and struck on the shoulder with a piece of firewood by T. Whereupon he stabbed T with his spear with the result that she died. The appellant was convicted of murder and appealed.

Held $(18-5-46)$ .—(1) The question of provocation in East Africa is a matter of specific legislation and not of common law.

(2) Provocation is established in East Africa when there is a wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive him of the power of self-control and to induce him in the heat of passion and before there is time for the passion to cool to assault the person by whom the act or insult is done or offered.

(3) The English law of provocation is different from that applying in East Africa and provocation which under English law might excuse only a slap with the open hand, in East Africa excuses a fatal attack with a lethal weapon to the extent of reducing the fatal attack to manslaughter.

Appeal allowed.

Conviction of murder quashed and conviction of manslaughter substituted and sentence of ten year's imprisonment with hard labour imposed.

Cases referred to: Rex v. Juma Mafabi (Cr. Appeal No. 20 of 1945); Rex v. Theodori (Cr. Appeal No. 201 of 1945).

Appellant absent, unrepresented.

Dreschfield, Crown Counsel (Uganda), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The appellant in this case was convicted in H. M. High Court of Tanganyika at Bukoba of the murder of Tibakalana d/o Bilamaijo, the wife of his neighbour and relative Malingumu, and sentenced to death. From that conviction he appeals to this Court.

The only question of any substance in the case is whether the conviction should have been of murder or of manslaughter. In his Memorandum of Appeal the appellant puts forward two alternative grounds for reducing the conviction from murder to manslaughter, namely legal provocation and drunkenness.

As to drunkenness, it may be said at once that there is no evidence upon which it could be held that at the time he killed Tibakalana the appellant was in any of the states of intoxication which under section 14 of the Penal Code would excuse him from criminal liability, and there is therefore no substance in this ground of appeal. The appellant himself swore that he had taken no drink that day.

As regards provocation, the facts, as found by the learned Judge, are that the appellant's wife was at a beer party at Malingumu's house all day; that towards sunset the appellant, taking his spear with him as a defence against wild animals on the way, went to Malingumu's house to look for his wife; that he found her there but when he began to take her out of the house he was attacked by Ezebia and thrown out in the courtyard; that when he picked himself up he was insulted and struck on the shoulder with a piece of firewood by Tibakalana; and that in his anger at this he stabbed her with his spear with the result that she died. We think that the foregoing findings of fact by the learned trial Judge were justified by the evidence and that he was right to differ from the opinions of the assessors on the facts:—

Having found the facts as stated the learned trial Judge went on to consider whether there was on these facts legal provocation within the meaning of sections 201 and 202 of the Penal Code. He found that the verbal insult had not made the appellant angry and that the injury to the appellant's shoulder by the blow struck by Tibakalana was, according to the medical evidence, of a trivial nature, the skin not being broken and the injury not at the moment of infliction very painful.

The learned Judge then proceeds as follows: —

"In such circumstances I feel that I have no option but to follow the rule laid down in Rex v. Juma Mafabi (supra) as follows: -

$\ldots$ in deciding the difficult point as to whether the provocation actually received was such as would be likely to deprive an ordinary man of the power of self-control it is necessary and proper to take into consideration amongst other things the kind of instrument used to effect the killing and the number of wounds inflicted, for these are factors which are relevant in deciding whether the retaliation in any case was or was not disproportionate to the provocation and any marked disproportion between the provocation and what *Mancini's* case called<br>"the mode of resentment" might lead the Court to a finding that the killing was an act of revenge and not one done in the heat of passion while the accused was deprived of the power of self-control by legal provocation.'

Taking all the circumstances of the case into account I have come to the kind of conclusion referred to at the end of the above quotation, though I am not saying that the case is not one in which there are not mitigating circumstances which may properly be taken into account in another place. But as far as the law is concerned I do not see how this killing can be anything less than a murder."

The somewhat involved sentence quoted from the judgment in $\text{Re}x$ v. Juma *Mafabi* is apt to be misleading and we think it did mislead the learned Judge in this case. In interpreting that sentence it must be borne in mind that this question of "provocation" in East Africa is a matter of specific legislation and not of common law. Also it must be borne in mind that the specific legislation on the subject makes the English common law inapplicable in an important respect. Under the English common law, to enable an accused person to take advantage of provocation to reduce a killing from murder to manslaughter the "mode of resentment" employed by the accused must bear a reasonable proportion to the provocation offered. That-to some minds most reasonable-stipulation finds no place in the specific enactments in the East African legislation. As long as there is a wrongful act or insult of such a nature as to be likely when done to an ordinary person 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, then "provocation" is established. A slap with the open hand is an "assault". If the wrongful act is of such a nature as to be likely to cause an ordinary person to lose<br>his self-control and slap the provoker, then legal provocation is established, and any act whatever causing death, whether done with or without lethal weapon. if done in the heat of passion caused by such provocation, and before there is time for the passion to cool, is manslaughter and not murder in the East African Colonies. Provocation which under English law might for this branch of the law excuse only a slap with the open hand, in East Africa excuses a fatal attack with a lethal weapon to the extent of reducing the fatal attack to manslaughter. however savage, brutal and unbridled such attack may be.

The sentence quoted from the judgment in *Mafabi's* case, if interpreted as the learned Judge has interpreted it, it quite inconsistent with the terms of sections 201 and 202 of the Penal Code which are unqualified by the English doctrine as to disproportion in the "mode of resentment". It is also quite definitely inconsist-<br>ent with the actual decision in *Mafabi's* case. The facts in that case were that the accused had received from the deceased two cuts on his little finger each only three-quarters of an inch in length caused by the deceased's walking stick, whereas the "mode of resentment" was a murderous attack by the accused who "belaboured the deceased on the head and body causing multiple injuries including fractures of three ribs and the cheek bone and a fractured dislocation of the axis bone of the neck".

It might well be that under English law the doctrine of disproportionate "mode of resentment" on the facts of *Mafabi's* case might have deprived the accused of the benefit of the defence of provocation, but it is otherwise in Tanganyika as is made clear by the concluding part of the judgment in *Mafabi's* case which is as follows: -

"We are however of opinion that the two blows the accused received from the deceased were of such a painful kind as to be likely to deprive an African of accused's class of his power of self-control and we think it was to that loss of self-control and not to any independent malice or desire for revenge that is to be attributed accused's repeated use of the big stick he had in his hand to inflict serious and fatal injuries on the deceased.

We accordingly allow the appeal but mark our disapproval of the excessive violence of the fatal assault by sentencing the accused to serve ten years' imprisonment with hard labour.'

It is this latter part of the judgment in *Mafabi's* case rather than the sentence quoted by the learned Judge that in our view governs the present case. This view is further supported by the decision of the Court in Rex v. Theodori (Criminal Appeal No. 201 of 1945) and by a passage from the judgment in that case. In that judgment this Court dealing with the question of disproportion in the "mode of resentment" said as follows:-

"Juma Mafabi's case aptly illustrates the interpretation to be put upon the provocation sections with regard to the point under consideration, for in that case the retaliation was definitely disproportionate to the provocation, yet this Court altered the conviction from murder to manslaughter."

Following what we conceive to be the very clear implication of the actual decision in *Mafabi's* case we find that in the present case there was provocation within the meaning of sections 201 and 202 of the Penal Code and we therefore allow the appeal, quash the conviction of murder and sentence of death and substitute therefor a conviction of manslaughter and a sentence of ten years' imprisonment with hard labour.