Mohamed s/o Waziri v. R., Crim. App. 520-M-71, 17/5/72, El-Kindy, J.

 

Mohamed s/o Waziri v. R., Crim. App. 520-M-71, 17/5/72, El-Kindy, J.

The appellant was convicted of driving while impaired and reckless driving c/ss 49(1), 45(1) and 70, Traffic Ordinance, and (inter alia) was disqualified from driving for 12 months. Appellant alleged that he had 30 dependents and that driving was his only means of supporting them.

            Held: The reasons advanced for not imposing a disqualification order relate to the offender rather than to the offence and therefore are not “special reasons” for not imposing such an order. Appeal dismissed.

168. R. v. Rev. Father John Rwechungura, Crim. Rev. 101-M-71, 19/5/72,  Kisanga, J.

The appellant, a Catholic Priest, was convicted of common assault c/s 240 Penal Code. It appears that the complainant wished to marry a young man by the name of Augustine. The wedding was to take place in church, but difficulties arose when no record of Augustine’s alleged baptism could be traced. Advised by church authorities that he could not have a Christian marriage unless he was baptized first, Augustine

refused to comply on the grounds that he had already been baptized. The parties then decided to get married under customary law. On the day appointed for the wedding, the appellant was sent by his superior to persuade the complainant’s father not to give away his daughter in a non-Christian marriage. On the way, the appellant met the complainant in her wedding, dress being escorted by a group of women to her groom’s house. There was conflicting evidence as to what occurred. Prosecution witnesses alleged that the appellant slapped the complainant in the face and hit her with a stick below the eye, cutting her; then he dragged her back towards her father’s home. The appellant and his witnesses, however, testified that on meeting the complainant the appellant asked her to go back to her father but at first she refused and sat down in protest. Whereupon the appellant lifted her up by the arm and led her back towards her father’s home. The trial Magistrate accepted the defence version on this point. In the meantime the complainant’s father was informed of the appellant’s intervention in the matter and so he and his relatives set out and met the appellant leading the complainant back to her father’s home. They set upon the appellant and beat him up causing him to sustain a fracture of the ulna of the right arm and several other wounds and injuries on the head, arms and shoulder. The marriage which was thus interrupted could not longer take place that day. The trial Magistrate found that the appellant did lift up the complainant and led her back towards her father’s home against her wish. He then held that the force thus employed by the appellant was sufficient to constitute an unlawful assault.

            Held: (1) “Mr. Rugarabamu who represented the appellant submitted that considering the appellant’s position as a spiritual father it cannot properly be said that his conduct amounted to an unlawful assault because it did not involve the necessary “mens rea”. Mr. Ntabaye for the Republic, however, contended that the complainant was exercising her right to marry under customary law so that the appellant’s conduct was unlawful assault because it consisted of using physical force to prevent the complainant from doing what the law allowed her to do. The conduct of the appellant which is being complained of would appear to be what in English Law is called battery which is a form of assault. Section 240 of our Penal Code which creates the offence of assault does not define that offence. Arch bold 35th edition at paragraph 2633 defines battery, which as already stated is a form of assault, as follows: “A battery, in the legal acceptance of the words, includes beating and wounding. To beat, also in the legal accept ion of the term, means not merely to strike forcibly with the hand, or a stick, or the like, but includes every  touching or laying hold (however trifling ) of another’s person or clothes, in an angry, revengeful, rude, insolent, or hostile manner: ……; as for instance thrusting or pushing him in anger: …….; holding him by the arm; ……;” The learned author has also cited a number of cases decided by English Courts on this point but I have not been able to lay my hands on the actual authorities. However it would seem clear that in order to establish a battery it is necessary to prove two ingredients, (a) beating or touching of another person and (b)

that the beating or touching was done in an angry, revengeful, rude, insolent or hostile manner, which adjectives can note an evil mind. Proof of (a) alone would not suffice; it is necessary to go farther and show that in touching the complainant the appellant did so with an evil mind as shown above. In other words the touching must be accompanied with “mens rea”. (2) “It is against that back ground that the conduct of the appellant in this case should be looked at. There was sufficient evidence to show that the complainant sat down in protest, but the appellant lifted her up by her hand and led her back towards her father’s home. I am satisfied that this evidence was sufficient to establish the first ingredient as shown above. The next question to consider is whether the appellant in handling the complainant he did so with an evil mind. In his sworn evidence the appellant stated that his only concern that day was to try to see that the complainant celebrated a Christian marriage. When he met the complainant on the material day he realized that she was going to contract a marriage outside the Church Law. Thus he became sorry for her because in doing so the complainant was committing a sin the punishment of which might be eternal condemnation. While thus feeling sorry for her he lifted her up by the hand and led her back towards her father’s home; he did this kindly, calmly and without any violence. The idea at this late stage was to ask the complainant’s father to hold on for a while in order to allow the appellant to driver to the Bishop’s residence and to ask for Bishop’s dispensation to marry the complainant to a person who was not baptized. The learned trial Magistrate accepted the evidence of the appellant because at page 10 of his judgment he said that he had no reason to disbelieve the appellant. If the appellant’s evidence is accepted, it would seem that the handling of the complainant by the appellant was not accompanied by an evil mind. The appellant as a spiritual father considered himself as owing a spiritual duty to the complainant and it would seem that all that he was doing was in fulfillment of that duty. He did not at any stage seek to deny the complainant the right to marry, but all that he was doing at all time was to try to ensure that the complainant was married in accordance with Church Law and thus to save her spiritually. In so doing he acted kindly and calmly and without violence. In his evidence which was believed there is nothing to suggest that he acted in a manner that was angry, revengeful, rude, insolent or hostile. In such circumstances therefore I am unable to say that the element of “mens rea” was established. As pointed out earlier, Mr. Ntabaye submitted that the complainant was entitled in law to marry under customary law and I fully appreciate that view. However the point really is that the appellant who owed a spiritual duty to the complainant sought to ensure that the complainant was married in church and thus to save her spiritually, and that in his Endeavour to achieve that and he acted without any “mens rea”. (3) Appeal allowed and conviction quashed.