republic vs elijah ngumbuke mwaipaja 1975 tzhc 7 21 november 1975

IN THE HIGH COURT OF TANZANIA AT MTWARA ORIGINAL JURISDICTION (Mtwara Registry) CRIMINAL SESSIONS CASE NO. 11 OF 1973 THE REPUBLIC Vs ELIJAH NGUMBUKE MWAIPAJA CHARGE: Murder c/s 196 of Penal Code JUDGEMENT Kisanga J. The accused Elijah Ngumbukege Mwaipaja is charged with murder contrary to section 196 of the Penal Code; 'the parti­ culars being that he murdered one Jumanne Mkungu* Very briefly the evidence adduced in support of the charge was as follows:- The accused was at the material time regional engineer in the Ministry of Communication and Works (Comworks) for the Lindi Region. He was married with children but had also a girl friend, one Matilda Masukila, for whom he provided separate accommodation in the town* He jrented a room for her at the rate of shs. 30/- per month, furnished it and bought her clothing and items of food such as maize and rice*- He used to come to see her every day and at times he would stay with her all night. He gave her a job in the same department where he himself was working. During this friendship he conceived her . but unfortunately she either had a miscarriage or gave birth pre­ maturely and the baby died. This friendship i'asted for just under a year before this incident happened and Matilda thought that it would eventually end up in marriage. Matilda also had another boy friend one Jumanne Mkungu who was a member of Tanzania People *s Defence Forces and who is also the deceased in this case. This friendship started when Matilda was a pupil at Loleza Girls’ Secondary School but it continued even after Matilda had ceased to be a pupil at that school in 1971. So that even after Matilda had come to Lindi in 1972 she received correspondence from the deceased and she did talk over the telephone with the deceased when he was stationed at Nachingwea. Matilda, however, did not disclose this friendship to the accused* On the day of the inccident which was on Christmas Eve 1972 the deceased travelled from Nachingwea to Lindi to come to see Matilda, his girl friend. He arrived in Lindi during the day time and made several attempts until night time to contact Matilda but in vain* In the meantime Matilda who had been to,Church that evening came back after the service at about 9 p.m. and went for a w alk to Beach Hotel where she found the accused and joined him* Matilda was with three other girls. The accused bought drinks to enter­ tain the girls and the party continued until at about 12.30 a.m* At the end of the party the accused drove the cirls in his own motor vehicle to their respective homes# He dropped the other girls first and when he came to Matilda*s place both he and Matilda got down and went into Matilda’s room. They went to bed but presently they heard hooting of the horn of the accused's motor vehicle* The horn hooted several times. Whereupon the accused got up and peeped through the window* Then someone who turned out later on to be the deceased spoke and said that he wanted the accused and accordingly the accused'went out. Upon the accused reaching there the deceased asked him where was the girl who accompanied him* adding that he wanted both the accused and that girl. The accused however told him rudely to go to the qirl whom he was talking about. On hearing this the deceased went into Matilda's room and the accused followed behind. Matilda was not to be found in her room because she was hiding in the latrine. Then the deceased persisted on asking where was Matilda and on wanting to see her. Then presently there was a gun shot in Matilda's room followed by a voice saying "I am dying". This voice was not that of the accused. At about I o'clock in the night the accused drove to the home of one Mr. Lugwisha, the Regional Police Commander, and asked him to accompany him to the scene, adding that something had happened which might not be serious to Mr. Lugwisha but was serious to him (the accused). On arriving at the scene Mr* Lugwisha and the accused found the deceased lying on the floor in Matilda's room. The deceased was groaning, apparently in pain, and was unable to speak. The accused told Mr. Lugwisha that the deceased came and caused y disturbances in that place by hooting the horn on the motor vehicle of the accused and by abusing him. Then Mr. Lugwisha and the accused took the deceased to hospital where he was examined and found with a penetrating wound in the abdomen which looked like one that was caused by a bullet shot or a pricking of the nail. Later on that night the accused surrendered a pistol to the police and some time after day break an empty cartridge was recovered from Matilda's room. At the hospital the deceased was given treat­ ment including a surgical operation but he died only two to three days later and death was due to bullet injuries to the viscera in the abdomen and chest. That was the substance of the evidence for the prosecution. At the close of the evidence for the prosecution Mr. Lakha for the accused made a submission of no case to answer but in a very brief ‘ruling I overruled the submission and gave my reason for doing so* In his defence the accused elected to give evidence » on oath the essence of which was as follows. On the day of the incident at about 6 p.m. he took the members of his family to church and left them there while he returned to town to drink. He drank at two different places and eventually at about 8.30 p.m, he moved to Beach Hotel where he found some fellow officers and the Regional Commissioner with his family. The Regional Commissioner asked him to join him and his family and he did. Later the Regional Police Commander and his family also came and joined them. After some time both the Regional Commissioner and the Regional Police Commander with their families went away leaving the accused behind drinking. The accused drank stout beer throughout and by the time the Regional Commissioner and the Regional Police Commander went away he had consumed eight to nine bottles of such beer. Theh shortly after those two with their families had left, Matilda and her girl friends arrived. Matilda was his wife by customary law and he was maintaining her and was rendering all the wifely services to her. He provided her with separate accommodation from that of his first wife, but he used to spend nights with her from time to time* He once conceived her but the child was lost through a miscarriage. After Matilda and her friends arrived the accused bought drinks to entertain them. He also continued to drink and after he had finished two or three bottles it was about mid-night and so they decided to leave. He drove the girls in his motor vehicle and after dropping the other girls at their home or homes first he came to Matilda’s place where both he and Matilda got down and retired to Matilda*s room for the night. So soon after they had gone to bed there was a hooting of the horn on his motor vehicle which he parked outside. On peeping through the window he noticed someone in his motor vehicle and on asking him what was the matter he replied that he wanted the people who were with the accused. Upon further questioning the stranger asked the accused to come out as he wanted to see him. Accused went out carrying a pistol in his pocket and as he opened the outer door the deceased walked in and went past him into the house leaving him at the outer door. Presently he came back and asked the accused to accompany him into the house, and stretched his hand wanting to hold the accused by the arm but the accused avoided him. Then he returned into the house and the accused followed behind. The deceased went into Matilda*s room and so did tho accused, but when the accused had just crossed the door of the room and was only about a foot on the inside, the deceased suddenly turned and, holding him by the arm, he asked him where were those persons who were with him (the accused), adding ...... /* angrily that If he did not show those persons he would see* The deceased further put his other hand into the pocket and took out something which the accused could not recognize as the lamp which lit the room was not sufficiently bright* The accused ttied to free himself from the grip of the deceased but failed because the grip was so tight. All this frightened the accused and made him think that the deceased had bad intentions on him* Whereupon the accused took cut the pistol from his pocket to warn the deceased that he was armed so that if he intended to harm him he should stop it; the accused, however did not intend to harm the deceased with the pistol* As soon as the accused pulled out the pistol, the deceased suddenly grabbed it and then both the accused and the deceased struggled for it, each trying to take it from the other. This struggle lasted for only a short while and in the course of it the pistol which was loaded went off and injured the deceased. The accused stood some two paces away and asked the deceased vtio he was and the deceased replied that he was an askari after which the deceased suddenly lost strength and sat down. The accused then drove to the home of Mr. Lugwisha, the Regional Police Commander, and reported the matter to him, and when they both drove back to the scene they found the deceased lying on the floor in Matilda*s room. The accused asked Mr. Lugwisha if he knew the deceased but Mr. Lugwisha said no. He then informed Mr. Lugwisha that the deceased had come to cause disturbances at the place, whereupon Mr. Lugwisha asked him if he had stabbed the deceased with a knife but he said no. Then on Mr* Lugwisha's advice they conveyed the deceased to hospital. On arriving at the hospital they found nurses only and the accused telephoned the Medical Assistant who came and attended the deceased. Subsequently the accused made a recorded statement to the police which was put in evidence as part of the defence. That statement agrees with his testimony in court on most of the assential matters. That was the substance of the accused*s defence. I summed up the case to the three assessors who sat with me and they were unanimous in finding the accused not guilty of any offence. I now turn to consider the case as whole and to decide whether the charge has been proved. In so doing I bear in mind that the burden is on the prosecution to prove the case against the accused and that no duty is cast on the accused to establish his innocence* I further direct myself that if, considering all the facts and circum­ stances of the case, I entertain any reasonable doubt, I must resolve such doubt in favour of the accused. There was sufficient evidence to show that deceased died from a bullet wound which he sustained during an incident involving him and the accused. Indeed the defence appears to have conceded on this point although relying on other grounds for its case. It seems that the real question for determination by this court is what were the circumstances in which the shot was fired that led to the death of the deceased, and here is where the prosecution and the defence join issues. The prosecution alleges that the accused intentionally fired the shot at the deceased, but according to the accused the shot fired accidentally when he and the deceased were struggling for the pistol. Thus the question is purely one of fact and the answer to it depends entirely on whether or not the accused is believed. In that connection it is pertinent to note from the very outset that the accused was the only person who gave evidence as an eye-witness to the incident. The assessors believed the accused and found that the firing was accidental. Going through the evidence it seems that there are certain features which appear to cast grave doubts on the view that the accused deliberately fired the shot at the deceased.' The evidence shows that before the accused and the deceased moved into Matilda*s room in which the deceased was shot, the accused had ample opportunity to shoot the deceased if he wanted to. For, according to Matilda, the accused went out at the request of the deceased and after these two had met and talked outside they returned to Matilda's room, the deceased being in front. Thus if the accused intended to shoot the deceased, it seems that he could have done so when they were talking together outside or when they were coming into Matilda’s room with the deceased being in front. But the fact that the accused did not shoot the deceased at those stages would appear to raise at least a reasonable doubt whether the accused had any intention of shooting the deceased that night. Again there was ample evidence to show that after the shooting the accused was anxious to see that the deceased was rushed to hospital; indeed the accused used his own motor vehicle to convey the deceased to hospital. On arriving at the hospital the accused insisted on calling the Regional Medical Officer and he himself telephoned the Assistant Medical Officer— all this in an effort to ensure that the deceased received proper and prompt medical attention. There was evidence also that following the incident that night the accused was in a very sorry and unhappy state. To my mind, such matters in the conduct of the accused could hardly be said to be consistent with a person who had intended to kill the deceased. What is more, the post moterm examination report would appear to show that the bullet wound was inflicted on the left side of the deceased. This appears to be more consistent with a struggle as alleged o.../6 by the accused because if-there was deliberate aiming, one would hardly expect the accused to aim at the deceased on the side. It therefore follows that it has not been proved beyond a reasonable doubt that the firing which led to the death of the deceased was intentional, and consequently like the gentlemen assessors I find that the charge of murder cannot succeed. Having found that there was not sufficient evidence to establish intent to kill, I have now to consider whether the conduct of the accused was in any way unlawful because if it was, then he would be guilty of manslaughter. For, to constitute manslaughter it is enough merely to show that the act or conduct of the accused leading to the death of the deceased was unlawful. The only evidence available on this issue is that of the accused alone. The accused said that the deceased held him firmly and uttered a threat, at the same time putting his hand in his pocket as if to take out something. This frightened him and made him think that the deceased intended to harm him. So that he took out his pistol to warn the deceased that he was armed and if the deceased had any intentions of harming him he should stop it. The accused emphasized that in taking out the pistol n ho did not inted to shoot the deceased, and that the shot fired only accidentally during the struggle for the pistol which followed after the deceased had grabbed it and tried to take it away from him. All the assessors accepted this version as being the manner in which event happened that night. In the circumstances of this case it would be difficult to reject the accusedTs story special because it stands unchallenged by any other evidence. . There are one or two matters in the evidence whidi would tend to suggest- that the events cannot have happened the way the accused alleges.':' First, when the accused reported the incident to Mr. Lugwish that night, he did not disclose to him that the firing was accidental following a struggle for a pistol; he merely informed Mr. Lugwisha that the deceased had c<me t<^create disturbance at the place. There is no doubt that the allegation alx.ut the shot having fired accidental was an important one as defence to possible charges against the accuse As such one would expect the accused to disclose it at the earliest opportunity when he reported the incident to Mr. Lugwisha not only in his capacity as the Regional Police commander but also in his capacity as a very close personal friend of the accused. The accused however did not make any such disclosure, and when asked in the course of his evidence he stated that he failed to disclose it because his mind was in a state of confusion. That may well be so, but I would go further and say that in my opinion even if one does not accept that explanation, the mere fact that the accused failed to disclose the defence at the earliest opportunity cculd not, by itself, in the ' circumstances of this case, be sufficient on which to say that the events cannot have happened the wc.y the accused alleges. In other words a disclosure of that defence to Mr, Lugwisha would have added weight to the accusedfs story but the fact that no disclosure of it was made could not by itself necessarily lead to the conclusion that the defence cculd not possibly be true in the circumstances of this case. There is also an apparent inconsistency between the evidence of the accused and his statement to the police. His statement to the police appears to show that he was already holding the pistol in his hand when the deceased seized him. In that statement also there is no express mention of a struggle for the pistol between himself and the deceased. There is, however, a reference tc what the accused termed "msukosuko '* which followed the seizing of him by the deceased It seems to me, however, that the word "msukosuko" in this context has the connotation of a struggle. In the circumstances there­ fore I am of the view that this inconsistency did not go to the root of the matter because it did not affect materially the issue of a struggle for the postol which was of the essence here. Consideration should also be given to a statement which was alleged to have been made by the deceased when he was seriously ill in hospital. According to that statement the shooting was deliberate, and there is no suggestion of any struggle between the accused and the deceased. The statement was clearly a dying declaration and the rule of practice is that it must be corroborated by some other independent evidence. I can find no such corroboration however, and in my opinion the circumstances were such that it would be unsafe to accept and act on it alone. In all the circumstances therefore, I am inclined to think that the story of the accused could possibly be true and having regard to what I have said above I find no good reasons for holding otherwise. Granting that the events may have happened the way the accused has described, the next question to consider is whether or not the act of the accused of taking out a pistol was justified in the cir­ cumstances in which he found himself. Because if his act was not justified then it was wrongful or unlawful and the killing resulting from it would be unlawful. I specifically put this question to the assessors and they all said that the. art of the accused was justified. There was ample evidence to show that the accused considered and regarded Matilda as his wife even though he was not legally married to her as yet. He had rented the room and he was maintaining Matilda in all other respects as his wife. The accused therefore had authority not only over Matilda but also over the room which she occupied. The accused had a right to exclude trespassers from Matilda's room and, when necessary to use reasonable force for the purpose. Now, when the deceased seized the accused and uttered a threat at the same time putting his hand in the pocket as if to take out something, the deceased was not only a trespasser in Matilda's room but he was also applying violence on the accused. Such conduct of the deceased was unlawful and in the circumstances the accused was entitled to drive him out of the room and for this purpose to use comparable force to meet the degree of violence offered to him by the deceased. Thus it seems to me that the accused would be entitled to take out the pistol, as he says, to warn the deceased not to harm him. Considering that the incident happened late in the night and the deceased was a complete stranger to the accused, this must have increased greatly the fear and anxiety of the accused about his personal safety. In such circumstances therefore, I think that the act of the accused of taking out the pistol for the purpose of warning the deceased amounted to using force which was reason­ ably necessary to enable him to free himself from the tight grip of the deceased and to meet the threat which the deceased had uttered and to eject the deceased from the premises as a trespasser. But if on seeing the pistol the deceased did not heed the warning, and instead he decided to grab the pistol and to struggle for it, the accused was still entitled to struggle for the pistol and to prevent its recovery from him by the deceased. Now if in the course of such a struggle the pistol fired and injured the deceased, then the accused cannot be said to blame because he was all along exercising his legal rights. Consequently the accused could not he held criminally liable for the death of the deceased following such an injury, and in the circumstances it would seem that the deceased was the author of his own misfortune. In the result I respectfully agree with the unanimous opinion of my three gentlemen assessors and find that the accused is not guilty of murder or of any offence, and he is accordingly acquitted. Judge Mtwara 21.ii.75 Assessors thanked and discharged. R,H, Kisanga Jud ge Mr. W.H, Sekule for the Republic Mr, Lakha absent with leave. Judge