19840720 TZCA Dar es Salaam5

IN THE COURT OF APPEAL OF TANZANIA ~- :·1~-•. AT DAR ES SALAAM ' ; · .J - ~ ,-' ·, ., ,. (CORAM: Mustafa., CRIMINAL APPEAL NO. 18 · OF 1982 B E T W E. EN PULASIDI NANGILE • · o e' t?', ·. 0 o. ·. Q APPELLANT A N D THE REPUBLIC • • 0 o o. ·o e. o O •. 0 o C • • RESPONDENT (Appeal from: the judgment of the High Court of Tanzania at Kond oa) . (Lugakingira, Jo) date~ethe 25th day of March, 1981. J_UD.GMENT OF 'I'HE COURT .· . ._ ··.- KISANGA, J-oAa: ·The appellant was conyic;:ted: of murder and · sentenaed to death by the High Court. sj,,tting at Kondoa. He is ·now appealingo ·• .Most of the facts. were not in dispute. It was common ground that one Lazaro_Waginee (PoW.1) had his goat stolen·. and he repor.ted the matter to the village authori tie-so In the course of investigations,. a number of people wen~ named as suspects and these included one Matei-;: a younger brother of the deceased. Then a meet'ing was held at the village. Par.ty offic:e to discuss the matter. At· that meeting the deceased was required to pay compensatib'n-and·fihe on of Matei, his younger brother; for - having stolen· '.•. behalf the goat in que stinno The deceased•· agreed tb dn soo Many, people attended the meeting;. some. came arrned with bows and a.trow so It would appear- thn t _the. appellant who was 0 0 0 ./_2. . ,..;, 2 ' f ', the headmaster of Ovacta' Second'arY School, 'arrived towards the end of the meeting and, 'l1POrl' enq'lliri~g' he wa~ informed that the matter was. settled by making th·e· deceased pay compensation and ~ ' . fine on behalf of his younger brother. Whereupon he criticised very s·eve·rely the meeting for ,: having settled the matter that viay. It is in the course of such cri tic:i.srtt. that he delivered an inflama.tory speech ·,~hich · a2cording to the prose·cution incited the villagers to res9rt,to acts of violence leading to the death of the deceasedo During such violence the a·eceiJsed was shot with arrows r.1.nd.. his head was badly smashed with stones. The deceiJsed died . . only shortly afterwards . . from these. ihjurie~. After the de..a..th of ,the deceased; the iriflamec( vill~gers proceeded to ·b.urn · the houses of the suspected "maj ambazi" o There wa~not much controversy about what exa~tly the app~llarit sa.id in hi·s speech. The learned trial juctge found that th~ oper,:iti ve par-:t of the appellant Is speech waii as' contained in the evidence of P.W~ 2 who had reported the appellant ~s saying: "Wazee ni:nyi rnna uchu wa nyarrta~ Na katni/ ni nyama·i tu twendeni kwa babu yangu aha ng' ombe, clkawapeni· mk~le nyama o. •. Wewe Mwenyeki·ti': Sisi ·hatuna uongozi hapa. Mnafuga majangili hapa~ Mnawaogopa~ halaf~ watu 1;:unateseka, hatulali, .halafu Kama ti mriahukuinu huyu aje akalipe f12dha, sijui nini, ng'orribeo . :,· Mkifikiri mali hizo mnadha.ni ana uchungu? Si anawalipa kwa mali zenu·wenyewe?· Uchu wa nyama! Twendeni kwa babu yangi.i! • ■.• Mj,m:i. nitnekuj a hap a nirriewakuteni watu wachache., Nirrterudi kuwaalikao Wanakijiji wa Ov.ada mnashi.ndwa kazi. Mhajaa hapa na mi shale tu, bure. Mnashindwa. l,1ata na vijiji vingine. · Hapa ni•bure tu.· K'ama hamjui kazi .. za mishale 'wapeni wanawa~e lab4J w~naweza waka{~nya .kazi w~~ ~uu mti huu (pointifig. to a tree) ukiµkatakata ma,,t:awi yake bil.a kung'·oa 'shina si unaweza··ukachipuka'? '• •• Hawa watu ,dawa yao ni kuwachomea nyumba!?o oeoo/3 . (. ' I ,, The evidence of P.W.2 on this.point was ful1y s:,.tpported by other evi'dence, ar,d the learned·· trial judge was amply justified to accept it and to find that the appellant did say those things in the course of his speecho J:ndeed Mro Rutab~ngw~, who argued the appeal. before us,. did not seriously seek '.to chall:eng'e that finding, but his main contention was that et: the eff .. ,. .t of the appellant' ,• s speech was. to invite the •' vill?3gers to burn the· nouses of. "majamba-zi1'. So that if th.e appellant was to be charged with any offence at ali it was= that of arson - which, however, he was noto We have given due consideration to this submiss:1,on but we are: una~le to agree .. The learned trial judge in his usual '' tho!oughness, specifically dealt with this issue in ·his judgm_ent and said:- ''When .a person says to people armed with arro'-'ls: •:'Kama hamjui kazi za mi shale wapeni · wanawalq:~ labda .,' wanaweza wakafanya · kazi' , the m.~ssaqe.:,is- loud •and clearo When a person says: a 'Haw ~at)l; dawa yao ' ni kuwachomea nyumba-'., the message_ is loud~t still a ' ,, ~- ' · I find that the second accused made those . remarks, among othe.t's. · Arty reasonable person "hea.ti,i1g those remarks ~annot but undersfa'nd that -the ·spe·aker is. exhorting his audience. _to murder and: a-rson. Anc;i th at was how the .. mess.age was' under~ tood::\,y P. w·~-2 and P .WO 3 and even th.e g:en~lemen asses~prs. And that was how it was undetstoo'd .:by the c-~o~d for immediately they fell ~p6h Zakaria-;,,. a suspected j~mbazi and a suspected comforter of jambazis, and killed him and weht on to burn two houses. II o The conclusi:on arri v·ed at by the t:rial judge i•S w~ll found~d on the facts. and ~e ·could find no fault with it. ·•Turning to j:he law goverriincj th.e ma:tter, the le8rried judge held that . the appellant was gui1 ty · of murder either .under section 22 or 24 of the P~fn·~ i' Codeo We are clea·r1y of ;the view ,that by his conduct., the '~ppeliant co~nseled and. prr:,cured ,the villagers to murde'r ·11 majambazi 11 includi·ng ·the deceesect., ' ' ., i. ~' 4 • ' in which :case hi.s cofiVif:tion for murder under -sectio.p 22 (d) or the i:-.erta:i Code was a:iso _well founded in lawo In the circumstances; we are satisfied that this appeal has no merit and it is accordingly dismissedo DATED at DAR ES SALI,AM this L. Mo MAKAME JUSTICE OF APPEAJ:, ·i R. Ho KISANGA JUSTICE OF.APPEAL \:~->f'i~VAIBSANYA~~+ \ REGISTRAR COURT OF APPEAL