Rex v Nakome and Another (Criminal Appeals Nos. 165 and 166 of 1947) [1947] EACA 47 (1 January 1947)

# COURT OF APPEAL FOR EASTERN AFRICAT

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

## REX. Respondent (Original Prosecutor)

# (1) ABSOLUME NAKOME s/o MAMUMI. (2) NAMALOBA s/o NABURUKU, Appellants (Original Accused)

# Criminal Appeals Nos. 165 and 166 of 1947

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

Evidence—Double interpretation of evidence—Competency of wife as witness against husband-Section 119, Evidence Ordinance of Uganda.

(1) A witness gave evidence of a statement recorded by him through two interpreters, neither of whom was called. (2) The wife by a Christian marriage of the first appellant was called as a witness against him.

## Held (25-8-47).-(1) That the two interpreters should have been called to make the evidence admissible.

(2) That under section 119 Evidence Ordinance, Uganda, a wife by a monogamous marriage is not a competent witness against her husband.

#### Appellants absent, unrepresented.

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

JUDGMENT (delivered by NIHILL, C. J.).—There are two points in the evidence in this case to which we think it advisable to draw attention. In the first place, the witness Harwich, a Superintendent of Police, gave evidence that, through double interpretation, he took a voluntary statement from the second appellant. Neither of the two interpreters gave evidence and yet the statement was admitted in evidence. We think it necessary to point out that this was wrong, as all the Superintendent could say was what the second interpreter told him in English—mere hearsay. Both interpreters should have given evidence before the statement could rightly be admitted. The second appellant's appeal having succeeded on other grounds the point is only of academic interest in this case, but it would not always be so.

Secondly, we note that the witness Sebia Kiboni, the wife of the first appellant by a Christian marriage, gave evidence against him. In our view of section 119 of the Evidence Ordinance of Uganda a wife of an accused person is a competent witness against the accused only if married "by a marriage other than a monogamous marriage", and, on her own evidence, Sebia Kiboni was therefore not a competent witness against the first appellant. Her evidence, however, was of no materiality as against the first appellant, so as it happens the point is of only academic importance in the present case. We repeat the warning that it might not always be so.