Wakilii

Rex v Asani (Cr. App. 63-1930.)

East African Court of Appeal · [1932] EACA 29 · 1932 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction
Decision
Conviction upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the evidence of a woman married to the appellant according to native custom was admissible notwithstanding the absence of the appellant's consent. Following Rex v Amkeyo, the court ruled that section 122 of the Indian Evidence Act, which restricts testimony by married persons, does not apply to persons living together after native customary marriage. The appeal was dismissed.

Outcome

Conviction upheld

Facts

The appellant was convicted at trial. The prosecution's case rested largely on the testimony of a woman named Mshambala who stated that the accused had given one bull and one sheep for her, indicating a native customary marriage. She was one of three wives. In her evidence, she repeated communications made to her by the appellant. The defence objected that as the woman was married to the appellant within the meaning of section 122 of the Indian Evidence Act, her evidence was inadmissible without his consent. The trial judge admitted the evidence following Rex v Amkeyo but expressed doubt about whether that precedent remained binding in light of Rex v Doudi Odongo.

Issues

  1. Whether the evidence of a woman married to the appellant according to native custom was admissible under section 122 of the Indian Evidence Act without the appellant's consent.

Orders

  • Appeal dismissed.

Rules and key headnotes

Evidence — Spousal Testimony — Native Customary Marriage — Admissibility
The evidence of a woman married to an accused person according to native custom is admissible in criminal proceedings without the accused's consent, as section 122 of the Indian Evidence Act does not apply to native customary marriages.
Evidence — Statutory Interpretation — Meaning of 'Married' in Section 122
The word 'married' in section 122 of the Indian Evidence Act, which creates an exception to the general competency of married persons to give evidence, should not be interpreted to include persons living together after the delivery of cattle in a native customary marriage.
Evidence — Precedent — Reconciliation of Authorities
There is no inconsistency between Rex v Amkeyo, which held that section 122 of the Evidence Act does not apply to native customary marriages, and Rex v Doudi Odongo, which interpreted the word 'wife' in section 497 of the Indian Penal Code as including women in native customary marriages, as the two cases address different statutory provisions with different purposes.

Legislation cited (3)

  • Indian Evidence Act s.122
  • Indian Penal Code s.497
  • Marriage Ordinance (East Africa) 1902

Cases cited (3)

  • Rex v Amkeyo (7 E.A.L.R. 14)
  • Rex v Doudi Odongo (10 E.A. 49)
  • Criminal Appeal No. 3 of 1929

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Rex v Asani (Cr. App. 63-1930.) [1932] EACA 29 (1 January 1932)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.