Rex v Ndembera (Criminal Appeal No. 97 of 1947) [1947] EACA 30 (1 January 1947)

## COURT OF APPEAL FOR EASTERN AFRICA

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

### **REX.** Respondent (Original Prosecutor)

# NDEMBERA s/o MWANDAWALE, Appellant (Original Accused) Criminal Appeal No. 97 of 1947

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

Criminal Law-Native law and custom-Section 18 Tanganyika Penal Code.

The deceased encountered the appellant eloping with the wife of the deceased's nephew. The deceased endeavoured to arrest the appellant, but the appellant killed him with his spear. At the close of the case the assessors stated that according to native custom the deceased was justified in arresting the appellant. The Court found that the appellant was not justified in resisting such arrest and convicted him of murder.

Held (24-7-47).—That native custom must be proved in evidence; it cannot be obtained from the assessors or supplied from the knowledge and experience of the trial Judge. In the present case there was sufficient evidence of provocation to reduce the conviction to one of manslaughter.

Cases referred to: Rex v. Smith 8 C. & P. 160; Rex v. Abdumaliki Mukama 12. E. A. C. A. 51.

Appellant absent, unrepresented.

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

JUDGMENT (delivered by NIHILL, C. J.).—This is an appeal from a conviction of murder by the High Court of Tanganyika. The facts with regard to the death of the deceased man Chewarenge as related by the prosecution witness Mosho and accepted by the learned trial Judge and assessors which exclude the theory of accident urged by the appellant were as follows.

Mosho, a woman married to the deceased's nephew, after some persuasion agreed to elope with the appellant. The couple left the house of Mosho's mother shortly before dawn with the appellant carrying his spear. They had not gone very far before they were met by the deceased, who seems to have at once realized what was afoot. He came up quickly, seized the appellant round the body, and said "Now I have caught you taking away my nephew's wife". The deceased answered "You had better take me to the native Court if you have caught me doing wrong". The deceased replied "I have caught you to-day", but he did not release the appellant but held him, including his spear arm, from behind. Then they struggled and the appellant succeeded in freeing his spear arm, whereupon he raised his spear and stabbed the deceased in the back. On these facts the learned trial Judge convicted the appellant of murder because he held that by native custom the arrest of the appellant by the deceased was a lawful one and that he was therefore not entitled to resist the arrest and his use of lethal violence in doing so could amount to nothing less than murder. This statement of the law by the learned Judge would be unimpeachable if there was evidence on record from which the existence of the custom could be inferred. It is true that both assessors in their opinions given after the learned Judge's summing-up stated that according to native custom the deceased was fully justified in arresting the accused. Nevertheless, was the learned Judge entitled on these opinions to come to a finding adverse to the appellant when no evidence of the custom had been tendered by the prosecution? We think not, as otherwise an accused person left with no opportunity to traverse the opinions

of the assessors might be gravely prejudiced thereby. As a matter of fact in this case, such evidence as to custom as there is on record, seems contra to the views expressed by the assessors. Thus Mosho in cross-examination made the following statement: —

"Our custom about divorce is that a woman will run away with a man and then her husband will divorce her. I was willing to leave my husband and go with the accused just because I wanted a new husband. My husband had not ill-treated me and I had borne him two children (both deceased). I just wanted to marry the accused. I did not seek my husband's consent to a divorce. It is not our custom to do so. I could please myself. I did not need to ask my parent's consent.

If this should be regarded merely as a progressive woman's imaginative conception of what a woman's rights ought to be it is surprising that it elicited no re-examination and no questions by either assessors. It may well be of course that the learned trial Judge, who has long African experience, was himself conversant with native custom on the point, but if that was the case we respectfully suggest that it would have been better had he attempted to elicit evidence of it by questioning either Mosho or her husband who was<br>also a prosecution witness. Had such evidence been forthcoming, either *pro* or contra, or both, the opinions of the assessors would then have been pertinent and could rightly have been acted upon by the learned trial Judge. As it is we feel bound to leave out of account this part of the judgment and to treat this case as if the deceased had no business to interfere with the person of the appellant by physical force. It is incumbent on us therefore to consider whether the appellant did what he did in the exercise of his right of self defence or if he exceeded that right, whether an element of grave and sudden provocation was present sufficient to remove the killing from the category of murder. By section 18 of the Tanganyika Penal Code criminal responsibility for the use of force in defence of person or property lies to be determined according to the principles of English law. The deceased was unarmed and was an older man than the appellant, once having freed his spear arm, it cannot be said that the appellant stood in much danger of receiving serious bodily harm at the hands of the deceased that he was justified in spearing him and clearly he exceeded the right of private self defence in so doing. On the further questions put above we cannot do better than quote the direction put to the jury by Bosanquet J. in the case of Rex v. Smith 8 C & P 160-162 which received the concurrence of Bolland B. and Coltman J. (quoted by Archbold 31st Edition p. 870).

"Did the prisoner enter into a contest with an unarmed man intending to avail himself of a deadly weapon? If he did it will amount to murder. But if he did not enter into the contest with the intention of using it, then the question will be did he use it in the heat of passion in consequence of an attack made upon him?"

If he did then it will be manslaughter.

Applying these two questions to the present case it seems to us that the answers must be a negative to the first question and an affirmative to the second. The contest was forced on the appellant by the deceased and during the struggle tempers must have been roused, that the appellant so lost control of himself as to use his spear (which he was carrying as an Englishman in England might carry a walking stick) makes him criminally liable for the homicide but it does not make him guilty of murder. As in the case of Rex v. Abdumaliki Mukama 12 E. A. C. A. 51 where this Court found legal provocation for a stabbing following an unlawful arrest we substitute a conviction for manslaughter in the present case.

As regards sentence, we take a grave view of the appellant's conduct which showed a criminal and wanton lack of self-control. We sentence him to serve a term of ten years' imprisonment with hard labour to date from 6th March, 1947, the date of conviction by the High Court of Tanganyika Territory.