Rex v Omenyi and Others (Consolidated Criminal Appeals Nos. 18 to 28 of 1943) [1943] EACA 25 (1 January 1943)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), MARK WILSON, Ag. C. J. (Tanganyika) and HAYDEN, J. (Kenya)

## REX, Respondent (Original Prosecutor)

$\mathbf{v}$

(1) DOMINIKO OMENYI s/o OBUKA, (2) ERUKANA OLOK s/o OLWENY, (3) TOMBE s/o LOGEE, (4) TOMASI LAMOYO s/o OKENYI. (5) KALIFA s/o GUGU, (6) FIRIMONI OKETCH s/o LOGOMA, (7) ABDULLA WANI s/o LODU, (8) DONATO OBEL s/o ATUBU, (9) OKUMU s/o OKENY, (10) MAROBE s/o LADU, (11) PITIYA JEDA s/o JADA, Appellants (Original Accused Nos. 1, 2, 3, 5, 6, 7, 8, 10, 14, 15, 16).

Consolidated Criminal Appeals Nos. 18 to 28 of 1943

Appeals from decision of H. M. High Court of Uganda

Criminal Law-Murder-Common intent-Uganda Penal Code, Section 22-Acholi superstition—Sufficiency of evidence.

The eleven appellants were convicted of the murder of Mr. E. G. Gibbins, of the Uganda Medical Service, and sentenced to death. There was evidence that the murder had its origin in an Acholi superstition that Europeans kidnapped and ate natives, and that Mr. Gibbins, who was engaged in the innocent act of looking for a suitable place to turn his car on the road at 8 p.m., was, under the influence of this superstition, assumed to be a European who was bent on kidnapping and eating natives, and that those who took part in the killing of Mr. Gibbins had no personal malice against him, and that he was unknown to any of them.

Held (19-2-43).—That although the evidence against individual appellants varied in strength, as was to be expected, nevertheless there was sufficient evidence that each of the accused had formed the common intention to kill the deceased, even though the latter was personally quite unknown to each acused, and that each accused had been sufficiently identified as having been engaged in the attack upon the deceased.

R. v. Tabulayenka and others, 10 E. A. C. A. 51 followed.

R. v. Mikaeri and others, 8 E. A. C. A. 84 and R. v. Okute and another, 8 E. A. C. A. 78 referred to.

The appeals were dismissed.

Figgis, K. C., for the Appellants.

Gregg, Ag. Attorney General (Uganda), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The eleven appellants were convicted of the murder of Mr. E. G. Gibbins, of the Uganda Medical Service, and sentenced to death.

Before this Court to which they have appealed they have had the advantage of having been represented by Mr. Figgis, K. C., who was unremitting in bringing to the notice of the Court everything that could be said in their defence. The Crown was represented by Mr. Gregg, the Acting Attorney General of Uganda. who presented the Crown case lucidly and fairly.

At the outset we desire to say that nobody reading the record of the evidence and hearing the arguments could fail to come to the conclusion that the murder had its origin in an Acholi superstition that Europeans kidnapped and ate natives, and that Mr. Gibbins, who was engaged in the innocent act of looking for a suitable place to turn his car on the road near the Kakira Sugar Estate camp at 8 p.m. was, under the influence of this superstition, assumed to be a

European who was bent on kidnapping and eating natives, and that those who took part in the killing of Mr. Gibbins had no personal malice against him. In fact it is clear that he was unknown to any of them. This aspect of the case will no doubt receive full consideration from the Executive in due course in respect of those of the accused whose appeals are dismissed.

The learned Chief Justice in his judgment said: -

"It being impossible to say who actually caused the death, the basis of the Crown case is section 22 of the Penal Code, and as regards each accused it has to be decided whether the evidence and the actions or words proved against him establish beyond reasonable doubt that (1) he with others formed a common intention to prosecute an unlawful purpose (such intention could of course be formed at any time and it is not necessary that there should have been some previous meeting at which they conspired to do the act), (2) that the offence of murder was a probable consequence of the prosecution of that unlawful purpose, and (3) that murder was in fact committed in the prosecution of that unlawful purpose."

With that statement of the law we respectfully agree. This Court has had occasion more than once to state its views on the question of common intention. In the case of Rex v. Tabulayenka and others (Cr. Apps. Nos. 162-165 of 1942), decided during the present sessions and to be reported in due course,\* the Court held that Section 22 of the Penal Code applied to the facts of the case. Section 22 of the Penal Code provides: —

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

The following extracts from the judgment are in point: —

"The fact that the four accused answered the alarm and went to the scene independently, each one taking up the assault as he arrived, does not rule out a common intention. Each as he arrived showed by his actions that his intention was at least to beat the thief, and when they were all assembled the beating in some form or other continued until Mikairi died. In these circumstances they were all so identified with the fatal assault on Mikairi that they may be said to have formed a common intention to prosecute an unlawful purpose in conjunction with one another, the unlawful purpose being to beat the so-called thief, there being no suggestion that the violence used was necessary to effect his arrest. To constitute such a common intention it is not necessary that there should have been any concerted agreement between the accused prior to the attack on the so-called thief. Their common intention may be inferred from their presence, their actions and the omission of any of them to disassociate himself from the attack on Mikairi."

The judgment proceeds to refer to two other cases decided by this Court in the following terms: —

"The facts of this case bear a remarkable resemblance to the facts in Rex v. Mikairi and others, 8 E. A. C. A. 84; the headhote to which reads: 'Appellants and others set upon the deceased; whom they believed to be a thief or a person addicted to thieving; with the common intention of giving him an unmerciful beating and beat him with sticks so that he died soons afterwards. The trial Judge found that those concerned in the beating were $\beta$ : actuated by a common intent to cause grievous harm. Held: That the • appellants were each guilty of murder'.

\* Reported in 10 E. A. C. A. 51.

The following passage is taken from the judgment: 'The evidence supports the view that a person was caught who was regarded whether rightly or. wrongly as a thief and that a number of persons set upon him with the common intention of giving him an unmerciful beating, which they did, with the result that the victim died soon after. The medical evidence was that the body bore testimony to the beating having been such that the doctor had never seen a worse beating. It seems to us, and the learned Judge and assessors so found, that any person identified as having taken part in the beating must be regarded as linked by a common intention within the meaning of the section quoted making him responsible for the death and so responsible for the crime of murder. All five accused are shown to have played some part in the terrible beating with its terrible consequences. It is but reasonable to hold that those who took part in the beating must be taken to have had the knowledge that grievous harm at least was a probable. consequence. We cannot say in these circumstances that the findings of fact or law of the learned Judge were wrong. As to whether there should be any discrimination made between the accused as to the respective degrees of responsibility or as to whether the capital sentence should be commuted that is a matter for consideration in another quarter. The appeals are dismissed.

And the following passage from the judgment of this Court in $\text{Rex } v$ . Okute and Another, 8 E. A. C. A. 78, at p. 80, is particularly apt on the question of common intention: 'Where several persons together beat another, then, though each may have a different reason, and though may join in the beating later than others, it is plain that all have what the law calls a "common intention", which does not necessarily connote any previous concerted agreement between them."

What has gone before clearly shows what this Court understands by common intention within the meaning of Section 22 of the Penal Code. We recognize, however, that to apply the doctrine of common intention to the facts of this case requires a careful examination of the facts and in making this examination we have been much assisted by learned counsel.

It will be observed that in the case to which we have referred the Court was assisted in arriving at a conclusion that the doctrine of common intention applied by the fact that the individual accused persons were present taking part in the beating of the deceased while he was still alive. In the present case it has been urged before us that at the time when some of the appellants at least were engaged in attacking the car, Mr. Gibbins was already dead, and that consequently those appellants could not be held to have any common intention to cause his death. It is of course impossible so say at what precise moment Mr. Gibbins died and to say who exactly were present at the time, and in that respect this case presents a difficulty which was absent from the cases to which we have referred. Consequently it becomes a matter of importance to consider what can have moved the crowd of labourers who attacked the deceased, his boys and his car with a variety of deadly weapons in the insensate manner revealed by the evidence. To that there can, we consider, be but one answer, namely that they had become worked up under the influence of the superstition to which we have referred and, linked together by that influence, they set upon the deceased, his boys and his car.

The circumstances of the case are of such a nature as to lead to the beliefthat any one of the accused sufficiently identified as having been engaged in the attack that night was a party to a common intention to kill the deceased, though he was personally quite unknown to them.

It is convenient here to refer briefly to such evidence as there is concerning. the superstition which may be said to be the mainspring of the attack. $\gamma_{\rm{eff}}=0$

There is the evidence of Juma Mabore as to what happened on Sunday. the 1st November, two days before the murder: "I was in front of my hut when Dominiko and others passed. I heard Dominiko say that he was going to guard the road because there was a European who eats people... It was in the daytime when Dominiko passed by and said that he and the others were going to guard the road because there was a European who eats people. That was in the morning two days before the car came". There is the evidence of Kalito: "I remember 3rd November, 1942, when a European was killed. I heard of it next morning. On the Sunday before (1st November) about 6 p.m. I was sitting outside our hut with Okumu. Dominiko came and said, 'To-night you Palabick people will watch the road to the Sugar Factory. The Loking and Paiule will watch the road to the native dukas, because there is one Teso missing because there is a European who eats people. If this European is found we shall kill him.' Okumu heard this but said nothing". There is the evidence of Emilio: "One of the crowd shouted 'He is a European, kill him'. All of them were<br>shouting 'kill him, kill him'". There is the evidence of Mukutale: "I heard Dominiko, Erukana and Tombe crying out from round the car yelling and shouting 'he eats people, he eats people'". There is the evidence of P. C. Stanley Rua: "I heard one voice which I recognized in the crowd saying 'We have killed the European, let us kill the corporal and his constable as well"."

The terrible and otherwise senseless nature of the attack on the deceased and his car by a crowd of people who acted as if they were possessed in itself makes this evidence of the Acholi superstitution very credible. But there is other evidence which is relevant in this respect and leads to the same conclusion. There is the evidence of Emilio, who was with Mr. Gibbins in the car, as to what happened when they arrived at the scene of the tragedy at 8 p.m. on the night in question. According to Emilio, Erukana (second appellant) challenged Alozeo, demanding "What do you want here?" and in answer to Alozeo's reasonable answer, "We are looking for a place to turn", announced "I shall kill you now". There is also the evidence of the sudden appearance at the motor car of a large number of people, ready armed with various weapons, after Erukana had shouted out something in his own language, and finally of the massed attack of the nature we have mentioned with its fatal consequences. All this evidence put together conveys to one's mind that the old Acholi superstition was very much alive in the camp and that it had worked upon the minds of the Acholi labourers. Immediately the torch flashed into the camp as the deceased looked for a place to turn his car, the war cry was raised. The event which was not unexpected had happened with the arrival of the deceased's car, and all ran to answer the alarm.

The learned Chief Justice considered the evidence against each accused separately and we cannot say that in convicting any of the accused he was wrong.

Criticism has been directed to the evidence of Juma Mabore, the argument being that it was not reasonably possible that he should have seen all he said he saw on a dark night with a large crowd round the car. Juma Mabore's evidence reads: "There was no moon, it was dark, but it was possible to recognize anyone pass by if one knew him. There were very many people round the car. I could recognize those who passed near me. The path leading to the car was just in front of me". The effect of this evidence is that Juma Mabore only purported to pick out those people who had passed within his range of vision. The questions of darkness, the large crowd attacking the car and the prevailing excitement, all tending to make accurate observation difficult, are matters on which we would have welcomed a reference in the summing up and a discussion in the judgment. Mr. Figgis very rightly stressed their importance and the necessity for a direction as to these matters. At one time the learned Chief Justice obviously had the question of darkness present in his mind for he said in his judgment: "For the most part they knew well the various persons whom they identified and apart from the question of darkness anyone standing on the grass plot in front of or near Kalifa's house would have an uninterrupted view of the road and the car as there are no bushes or trees of any description". That is the only reference to darkness we can find in the judgment and where there was so much evidence that the night was very dark a consideration of this question was most desirable. Corporal Rudolfo said: "It was too dark to see people there", while P. C. Zefania said: "It was a dark night. I recognized no faces. There were many people there round the car". Mr. Figgis argued that this fact of there being many people round the car must have greatly increased the difficulty Juma Mabore had in accurately observing individuals and what they were doing. On the other hand, Inspector Woodgate said: "There was no moon but it was a clear night on 3-11-42 as far as I remember. Without artificial light I was able to recognize the faces of the corporal and askari and Dr. Gibbins when he came. $\ldots$ I could recognize people I knew at 10-15 paces". This evidence of Inspector Woodgate throws some light on the question under consideration. He was able to identify persons he knew at a distance of from 10 to 15 paces, and it may well be that Juma Mabore could similarly identify people he knew, for all those in the camp were known to him. But Mr. Figgis argued there was no crowd round the car when Inspector Woodgate arrived, as the crowd had been dispersed by the shots fired by the police from Kakira police post shortly after the murder. Consequently he submitted that the possibility of Inspector Woodgate being able to recognize individuals was not a fair test in considering what Juma Mabore could see. There would be greater weight in the argument did Juma Mabore's evidence stand alone. But the record shows that he is corroborated in his identification of individuals.

We will now refer briefly to the case against the appellants individually. Against Dominiko, the headman, there is the evidence of Juma Mabore of the conversation concerning a European going round and eating people, as well as the evidence of Kalito on the same point; there is the evidence of the corporal and two police constables as to Dominiko being present at the motor car, one of the constables, Stanley Rua, saying he heard Dominiko call out "We have killed the European, let us kill the corporal and his constables also". Dominiko, we should say, was well known to those policemen as the headman at Kakira Camp. Then there was a most important piece of evidence in the finding of the axe stick with human bloodstains on it in Dominiko's hut and his admission to Inspector Woodgate that it was his. Juma Mabore, besides saying that Dominiko was striking the car with something like an axe, said he heard him calling out "We have found the European who kills people. We cannot leave him". Mukutale said that he saw Dominiko beating the car with a stick like the axe stick, and so did Paulo Buleba. The case against Dominiko is certainly a strong one.

Against Erukana there is firstly the ominous greeting he gave to Emilio, his unprovoked attack on him and his shouting out in his own language when other people came up. Juma Mabore said he saw him beating the car with a stick and stabbing into the car with a spear. Danieri said he was beating the car with a stick. Mukutale and Paulo Buleba both said he was beating the car with a stick. There can be no doubt as to Erukana having been a member of the party that attacked the deceased, causing his death.

Against Tombe, there is his own statement before the Magistrate which was put in at the trial in which he admitted striking the European, and in his evidence at the trial he confirmed his statement in saying, "We went on beating him (the European)". This evidence would be sufficient to convict Tombe, but there is other evidence such, for instance, as Mukutale's: "I saw Tombe beat the car with a

stick"; Bumali's: "Tombe then passed me carrying a stick with an axe on it"; and Paulo Buleba's: "I also saw Tombe whom I knew well beating the car with a stick". All this evidence is more than sufficient to convict Tombe.

Against Tomasi there is the evidence of Juma Mabore that he saw him carrying a shield and stabbing into the car with a spear; he also said that when he, Juma, came out of his house, he saw Tomasi pass carrying a shield and spear. Danieri also gave evidence of Tomasi carrying a shield and spear and stabbing with the spear through the back window of the car. Mukutale also spoke of seeing Tomasi striking the car, and so did Bumali. The evidence of these eye witnesses is corroborated by the finding in Tomasi's hut of a shield which he admitted was his. This evidence was sufficient to convict Tomasi.

Against Kalifa there is the evidence of Juma Mabore that he saw Kalifa hacking the car seat with a *panga* and that he saw blood on the seat and on the panea. Maniere, Kalifa's wife by native custom, said: "I saw Kalifa go out of our house carrying a stick and a *panga''*, and later, "Kalifa then came back still carrying his *panga* and stick". She noticed no blood on the *panga* or stick and added that next morning she noticed a motor car seat outside her house. Hassan Leta said: "I searched hut of Kalifa, he was present. I found this *panga* under a gunny bag on the floor. Kalifa said it was his". Human blood was found on the *panga* by the Government Pathologist. This evidence is sufficient to convict Kalifa.

Against Firimoni there is the evidence of Juma Mabore that he saw Firimoni throwing stones into the car. Later he said that Firimoni passed him carrying stones and pieces of wood. Juma Kisiki said: "I searched a hut which Firimoni said was his. He was wearing shirt and shorts. These are they (Ex. 21). There seemed to be bloodstains on them". Human blood was found on the shirt. This evidence is sufficient to convict Firimoni.

Against Abdulla there is the evidence of Juma Mabore, who said: "I saw Abdulla carrying big pieces of stick and stones and throwing them into the rear part (presumably of the car) which was open". Sakut said he saw Abdulla beating the car. Tombe said that he saw Abdulla chasing the European and his boy. Juma Kisiki said: "I arrested Abdulla. He was wearing these shorts and shirt apparently with bloodstains (Ex. 20)". Both garments were found to have human blood on them. Manjere said: "I heard Abdulla, whom I know well, shout out to Tombe, whose house is next door, 'Tombe, come out'". This evidence is sufficient to convict Abdulla.

Against Donato, Juma Mabore said: "I saw Donato running from his house carrying a stick and he threw stones with the others. Some of the stones went inside and some outside", and, "When I saw Donato at the car I heard him shouting that now they were killing the European who kills people". Tereza, the temporary wife of Donato, said that Donato went out after Okumu and had with him the stick Ex. 14. Juma Kisiki said he searched Donato's house and found the stick Ex. 14 under a bed, that Donato said it was his stick and that it had what looked like blood marks on it. They proved on analysis to be human blood marks. This witness also said that Donato was wearing a shirt and shorts, that he removed the shorts which appeared to him to have blood marks on them. They proved to be human blood marks. This evidence is sufficient to convict Donato.

Against Okumu there is the evidence of Kalito that on 1st November prior to the murder he was present when Dominiko spoke of guarding the roads as there was a European who ate people and when, according to Kalito, Dominiko said "we shall kill him". This witness said: "Okumu heard this, but said nothing". Juma Mabore said he saw Okumu throwing stones and sticks. Tereza said: "I heard an alarm and shouting and whistling. Okumu went first with two sticks, Donato followed with a stick later. When they had gone I heard the sound of banging on tin. . . Then I heard a shot. . . Okumu came in after the shots with his two sticks. Exhibits 16 and 18. I saw blood on Okumu's shirt and shorts. Okumu had a wound bleeding on his right knee. He wore a shirt and shorts (Ex. 19). Okumu said that people had killed a European. . . When Donato and Okumu went out they went in direction of the alarm on main road". Juma Kisiki said he found the two sticks Exhibits 16 and 18 in Donato's house under a bed and on the same bed the shirt and shorts Ex. 19, having on them what appeared to be blood, Exhibits 16 and 18 were found to have human blood on them and so were the shirt and shorts Ex. 19. Okumu's fingerprint was found on Ex. 16. Donato and his wife, according to Juma Kisiki, said that Exhibits 16, 18 and 19 belonged to Okumu. This evidence is sufficient to convict Okumu.

Against Marobe there is the evidence of Juma Mabore that he was throwing stones and blowing a whistle, and later he said: "That night I saw him pass me blowing a whistle. ... He was alone following the others to the car. I saw him go to the car and blow the whistle there and then go away to where he had come from to call other people. ... He went and fetched others who also attacked the car". Sakut also said he was blowing a whistle. The learned Chief Justice, differing from the assessors, found Marobe guilty of murder. Marobe, we should say, was also implicated by Tombe in his evidence. The learned Chief Justice accepted the evidence to which we have referred, and we are unable to say that he was wrong.

Against Pitiva there is the evidence of Inspector Woodgate that he arrested him on the 9th November and took from him a vest which he was wearing and which seemed to have blood on it. On analysis human blood was found on it. Sakut gave evidence that he saw Pitiya beating the car. Tombe also in his evidence implicated Pitiya. The evidence is sufficient to convict Pitiya.

We have not referred to every piece of evidence against the accused, but there is very little that we have omitted. We have considered the whole of the evidence and can perceive no valid reason for coming to a different conclusion from that arrived at by the learned Chief Justice. The evidence against individual appellants varies in strength, as is to be expected, but in no case can we say that the decision is wrong.

No defence of provocation was raised—for the obvious reason, we assume. that there was no evidence of any legal provocation whatever. Nor was there raised a defence based on a mistake of fact under section 11 of the Penal Code which provides:-

"A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."

The learned Chief Justice dealt with the possibility of such a defence in the following words: "To establish provocation in law there must be some wrongful act by the deceased, and I can find none. Possibly one might invoke the aid of section 11 of the Penal Code, but there again the difficulty would be that even if one of the accused had alleged that he attacked the European because he thought that the latter was going to kill and eat him—which none of them did allege such mistaken belief, though possibly honest, could hardly be held to be reasonable". With this we agree. All eleven appeals are dismissed.