Wakilii

Rex v Tibanyendela (Criminal Appeal No. 142 of 1948)

East African Court of Appeal · [1948] EACA 36 · 1948 Conviction Quashed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for murder in the High Court of Tanganyika
Decision
Appellant acquitted and released

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal and set aside the conviction. The Court held that failure to serve statutory notice of intention to call a co-accused as a prosecution witness under section 273 was not curable under section 346 where the accused was unrepresented and the evidence was not formal in character. The Court also held that extra-judicial exculpatory statements by co-accused should be admitted as evidence in favour of the maker, though not against persons inculpated. The Court emphasised the importance of strict adherence to procedural safeguards in capital cases where the accused is unrepresented.

Outcome

Appellant acquitted and released

Facts

The appellant was charged with murdering Lugeiyamu s/o Kyaruzi. He was originally committed for trial with two co-accused, Martin and Thomas, but was tried alone. The prosecution case was that during a drinking session in a hut, the appellant took offence at the deceased's advances toward the appellant's lover, Mukarama. The appellant approached the deceased with a stick; the light went out; sounds of struggling were heard; and when the appellant struck a match, the deceased was found dead on the ground. The medical evidence showed death by asphyxiation, likely strangulation, with a mark around the neck. The body was carried out to a nearby shamba. Key prosecution witnesses—Mukarama, Lumelage, and Martin (a former co-accused)—gave evidence, but their statements contained material discrepancies from earlier depositions. The appellant was not legally represented at trial.

Issues

  1. Whether failure to give three days' notice of trial as required by section 242 of the Tanganyika Criminal Procedure Code is an irregularity curable under section 346.
  2. Whether failure to serve notice of intention to call a co-accused as a prosecution witness under section 273 of the Tanganyika Criminal Procedure Code is curable under section 346 where the accused is not legally represented.
  3. Whether the Court of Appeal should refer to a witness's deposition where material discrepancies exist and the appellant was not legally represented at trial.
  4. Whether extra-judicial statements by co-accused which exculpate themselves and implicate co-accused are admissible under section 30 of the Indian Evidence Act.

Orders

  • Appeal allowed.
  • Conviction and sentence set aside.
  • Appellant to be released forthwith.

Rules and key headnotes

Criminal Procedure — Notice of Trial — Failure to Give Three Days' Notice — Curable Irregularity
Where the notice of trial required by section 242 of the Tanganyika Criminal Procedure Code is not served on an accused at least three days before trial and the accused has not waived the right to the full statutory period, the defect in service may be curable under section 346 provided there has been no possibility of a failure of justice, but the provisions regarding notice of trial should in all cases be strictly adhered to unless expressly waived, particularly where an accused is not legally represented.
Criminal Procedure — Additional Prosecution Witness — Co-Accused Called as Witness — Failure to Serve Notice Under Section 273
Where a person originally committed for trial with the appellant is called as an additional prosecution witness at trial, failure to serve the statutory notice of intention to call that witness as required by section 273 of the Tanganyika Criminal Procedure Code is not an irregularity curable under section 346 where the evidence is far from being of a formal character and the accused is not legally represented, as the omission may have occasioned a failure of justice.
Evidence — Witness Credibility — Discrepancy Between Trial Evidence and Deposition — Unrepresented Accused
Where an appellant was not legally represented at trial and a material discrepancy exists between a witness's trial evidence and deposition which might seriously impeach the witness's veracity, the Court of Appeal should refer to the witness's deposition in the interests of justice, as a defending advocate would have applied to have the deposition read at trial.
Evidence — Extra-Judicial Statements — Co-Accused — Exculpatory Statements — Admissibility Under Section 30 Indian Evidence Act
Extra-judicial statements by co-accused which exculpate themselves and implicate one or more of their co-accused are not inadmissible in evidence under section 30 of the Indian Evidence Act. Where such statements are not confessions, they cannot be used against any persons inculpated thereby, but each should be admitted in evidence as a statement exculpating the maker from the charge, as the fact that an accused person has made a statement denying guilt very soon after being charged may be very relevant as showing the consistency of conduct at that early date with the version of facts given at trial.
Criminal Procedure — Extra-Judicial Statements — Improper Use of Word 'Confession' by Magistrate
When a person appears before a Magistrate to make an extra-judicial statement, the Magistrate should not record that he is satisfied the confession the person is about to make is a voluntary one, as the Magistrate may not assume that the statement will amount to a confession since it may prove to be exculpatory in character. Such improper use of the word 'confession' indicates a confusion of thought in the mind of the Magistrate.
Criminal Procedure — Capital Charges — Unrepresented Accused — Strict Observance of Prescribed Procedure
When an accused person who is not legally represented is being tried upon a capital charge, it is even more important that the prescribed procedure regarding High Court trials should be most carefully observed than in the case of a person who is represented by an advocate.

Legislation cited (6)

  • Tanganyika Criminal Procedure Code s.242
  • Tanganyika Criminal Procedure Code s.273
  • Tanganyika Criminal Procedure Code s.276(1)
  • Tanganyika Criminal Procedure Code s.346
  • Indian Evidence Act s.30
  • Treason Act 1708

Cases cited (5)

  • Regina v Frost (1839) 9 C & P 129
  • Rex v Luguda s/o Wage (1934) 1 EACA 148
  • Rex v Yakobo Isairi Busigo (1945) 12 EACA 69
  • Rex v Ziyaya (1936) 3 EACA 31
  • Rex v Sayed Mohamed Naj-Muddin (Criminal Appeal No. 94 of 1947)

Full judgment

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

Rex v Tibanyendela (Criminal Appeal No. 142 of 1948) [1948] EACA 36 (1 January 1948)
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.