19800117 TZCA Dar es Salaam

IN THE COURT OF AF~EAL OF TANZANIA .• . AT TABORA ( Coram: C.J., Mwakas~ndo, J.A. and Makame, •t" ! ., CRIMINAL AF:PEAL NO. 17 OF 1980 B E T WE E N • NYAMWENDA NTUKANAZINA APPELLANT . A N D THE RI!:PUBLIC : : : : : RESPONDENT (Appeal from the conviction and sentE!lce 1of' 'the High Court of t~n:iania· at Kigo111a) (Chipe·ta ~ J.,) c;a.t~q the ;,tli day of ' · . · , · ..; March ' · 1980 ; , ,... . · In Criminal Sessidns Case No. J9 of 1979 JUDGMENT 'OF THE COURT MWAKASENDC, J.A.: The appellant, NYAM'lriENDA NTUKAMAZINA, .,, was convicted ·. . .. . by the High Court at Kigoma of the mtirder of JOSEPH KILOMBA \· • , :· • ; ·, • ~ I In .. · this .. .'- case the evidence implicating the appellant ·:_i· }n the k~ll~ng of the 'deceased was purely circums~antial. ~r.• Ntabaye, lea 7ned counsef for the appellan~, criticised the judgment of tp,e learned trial judge on three main -!_~. I ! grounds: j ;•· .• (1) that the learned judge erred in ~aw in not considering the defence of intoxication which was 'available to the appellant; ' .. ( 2) that the learned judge erre_d in law and in f~ct in believing the ev~aeric~ of P.W~2, . . ' . : J>•W•J, P.W.4 and P.Wo8 who were intoxicated ' at., the mat¢•ria:;t time; a:nd that the learned judge erred in law in finding that malice aforethought had been pr~ved~ .•• ~ .. /2 .. 2 As regards JY;r. ~tab.aye's :first criticism of the t.:rial judge's, ?_ecision we fail. to see any merit . in his a:rgument that the ,learned trial judge erred .in not pl;ltting the issue of intoxication to the assessor.s. W;bile we agree that there was some evi~ence in the case indicating th~t the appeJ.la:,;it , had .,im.bi,bed some amount of •local li quQr, we are unable to accede to the argument that this fact alone made i t imperat:ive for ,the judge to seek the views of the assessOJ'.'.S on ,fhe question of intoxication. ,We can find nothing on the ~ecp~d ip~i~ating even remotely that 4µ~ing the ~aterial time tbs ap~ellant could have been ,1' i. . so l~toxicai~d as to ~ake him incapable of forming t&e necessary ~µtent fqr ~be offence of ~µrde~. There Was b:his rio e\ridence of intoxicat;ion to pu,t to the assessors,. ,lh arly case, Je are unable~ dn the ~V:idetice oh record, .\o •e~ hd~ after the app~ilant had firmly as~erted ihat he was nowhere near the scene of the crime ~t the material time could be peard to plead intoxication. The second ground of appeal can brief_ly be disposed of. While i t is an agreed fact that all the principal witnesses of the prosecution took some -liquor on the material daY., we can f'ind no legal bas;is for th,e proposition tha.t the taking of liquor as suc.b makes a witness unreliable a-nd unworthy of' belief. With respect, in vie.w of the evidence on re.cord we cannot see how th.e learned trial jud:ge ,could ~~ castigated for bel~eving the evidence of prosecution witnesses numb~;r-s 1,, 2, J, 4 and 8, and acting on it. Finally, the third ground of appeal. Mr.~. Ntabaye 's argµment that the learned tr:j.qf jµdg~ erred in finding malice aforethought <.' proved j_s really not worthy . of any serious scrutiny. We are satisfied that the evidence a~cepted and acted upon by the learned trial judge shows beyond any • • e ~ • ·• /'J J reasonabl.e doubt that the appellant's vic.ious attack on the deceased and his friends was completely unprovoked and as i t has not been asserted or suggested that his violent assault on the deceased was done in self-defence, we finc1, as the learned trial judge did, that' the appellant was properly convicted of unlawfully causing the death of the deceased with malice aforethought. We ac_c:ordingly dismiss this app~al. .. DATED at TABORA this 17t~ d~y of October, 1980. ~- Ll NYALALI CHIEFJUSfICE Y.MoM• MWAKASENDO JUSTICE OF APPE,AL ,._; '! I -: l,,• M. Jv;AKAME ' JUSTICf.(' OF APPEAL I certify that this ts a true copy of the origin,.,. ~ ~ -'. ( C • if. MTENGA ) REGlSTRAR /