190801017 TZHC Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABO RA ( Coram: Nyalali, C.J., Mwakasendo, J.A. and Makame, J.A.) CRIMINAL APPEAL NO. 17 OF 1980 B E T W E E N NYAMWENDA NTUKAMAZINA : : : : : : : : : APPELLANT A N D RESPONDENt (Appe a l from the convi&tion and sentc; of the High Court of Tanzania at Kigom) (Chipeta, J.) dated the 5th day of March, 1980, - -. In Criminal Sessions,' Case No.39 of 1979 JUDGMENT OF THE CCURT • ,' MWAKASENDC,. J.A.:. r , The appll ant NYA ENA by the High Court at Kigoma of the 'murder of'. OSEPH KILOMBA and sentenced to death. In this a!se th& eviden&e iniplicat'in?g the appellant in the killing of the deceased w.s purely circumstantial. Mr Ntabaye,' learned couns'eI for the appel:laiit, driticjséd' the judgment 'Ofthel ldarnd t±a2Yjtdge oi"thr&e tMin '. grounds: :'•. -' that the learned judge erred in law in not considering the' defence of intoxication which was available to the appellant; -". .•. f - ;• , that the learned judge erred in law and in fact in believiiT the evidence of P.W.2, P.W.3 1 .4P.W.4 Sand p'.w.,8 who .were intoxicated at thea1iiie;and (3), that the learned judge erred in law in finding 'tht malice aforethought had been proved. L [ • r • •' . • •.• - • ,, I t; 1.• r I f -2- As regards Mr. Ntabaye's first criticism of the trial judge's decision we fail to see any .merit in his argument that the learned trial judge erred in not putting the issue of intoxication to the assessors. While we agree that there was some evidence in the case indicating that the appellant had imbibed some amount of local liquor, we are unable to accede to the argument that this fact alone made it imperative for the judge to seek the views of the assessors on the questIon of intoxication. We can find nothing on the record indicating even remotely that during the material time the appellant could have been so intoxicated as to make him incapable of forming the necessary intent for the offence of murder. There was thus no evidence of intoxication to put to the assessors. In any case, we are unable, on the evidence on record, to see how after the appellant had firmly asserted that be was nowhere near the scene of the crime at the material time could be heard to plead intoxication. The second ground of appeal can briefly be disposed of. While it is an agreed fact that all the principal witnesses of the prosecution took some liquor on 'the material day, we can find no legal basis for the proposition that the taking of liquor as such makes a witness unreliable and unworthy of belief. With respect, in view of the evidence on record we cannot see how the learned trial judge could be castigated for believing the evidence of prosecution witnesses numbers 1, 2, 3, 4 and 8, and acting on it. Finally, the third ground .of appeal. Mr. Ntabaye's argument that the learned trial judge erred in finding malice aforethought proved isreally not worthy of any serious scrutiny. We are satisfied that the evidence accepted and acted upon by the learned trial judge shows beyond any :. -3- reasonable doubtthat the appellant's Vicious attack on the deceased and his frjends was completely unprovoked and as it has not e been asserted or sugg'eted that his violent assault on the deceased waS done in self-defence, we find i as the learned trial judge did, that the appellant was properly convicted of uilawfully cauSing the death of the deceased with malice aforethought S We ac.c-ordingly dismiss this appeal. DATED at TABORA this 17th day of October, 1980. '.5 F. -L. NYALALI CHIEF JUSTICE Y.M.M.. MWAKASEND0 JUSTICE OF APPEAL L. M. TAKAME JUSTICE OF APPEAL I certify that this is a true copy of the origin- - - Z MTENGA- ..- . REGISTRAR