19840720 TZCA Dar es Salaam2

IN THE c·ouRT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM:; Nyalali, CoJ•, Mustafa, J.A. and Kisanga( J.A •. ) CRIMINAL APPEAL NO. 45 of 1982 BETWEEN DICKSON MJ.l.NDAU • o .- ·• • • 0 0 0 0 0 o O 0 . . APPELLANT A N D THE REPUBLIC • 0 e ~ 0 0 o • e O e RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Dodoma)· (Lugakingira, J.} dated the 2nd day of October,. 1982 JUD_GMENT .OF THE COURT MUSTAFA, J.A.: The appel lan·t, with· two others, had s.tolen a cow·.. He offered_to pay compensation at a reconciliation meeting at the village, but the offer was rejected as he was reputed to be a notorious ~hief. While,the appellant was being es~~~~~d ~o a Police Station, he escaped. About two days later, some one espied him in the evening -----=-- going to his home at the village-. The owner of the stolen cow P.W~7 Nyelia was informed, and he, with several other persons, including the deceased; went to the house where the appellant was apparently liv:ing with his mother. The group arrived there at about 8.00 p.m. They went to ascertain if t~e appellant was then at home~ They que_stioned the appellarit's mother and concluded thnt the appellant was in. The group made no attempt to get in or break into the house··, al though the door of the hoti.se was open. The party was unarmed. They su'rrounded the house in order to prevent the appellant from escaping, aRd sent a person to call ·the village militiaman in order to apprehend ¼:he appel lahto Suddenly, the appellant. rushed out of the house, and the deceased, who was by the door, seized the appellant by the arm . \ or hand, and the appell'ant stabbed deceased with a knife in the chest perforating his•heaet and fatally injuring him Another man P.W~6 Joseph came forward to seize the appeilant, a:nd. the appellant stabbed Joseph several times, but 'fortun.ately this stabbing was not fatal. The appellant then escaped, but a week or so liter, he gave himself up~ and was arrested. The appellant did not deny the stabbing. He said that when the party arrived at his house that night he alleged that he heard , P.W.7 threaten to kill him and burry him right there. He lo~ked out of the door and recognised the deceased. H_e then looked for i'_. • a stick. He did not find one. HowEiver, he stormed out of the JQ: house and stabbed the deceased who was trying to hold himi He said he stabbed him because his mirid was confused after hearing P.W.7's threat~ He said he honestly thought that P.W.7 was going to carry out· hi~ threat. Miss Mjasiri'appeared for the appellant ~n this appeal. She submitted several grounds of appeal. She relied on self- defence. As the trial judge remaried, when . the . app~l lan't came • J ' • ~. , : rushing out with a knife in' his hand, ;the deceased was unarmed and was merely trying'to hold hi~.• Nevertheless the appellant . , ..•. ! . stabbed the deceased. The appellarit:"'coulci not reasonably be in apprehension of his life or -iimb',_ and knew he was a thief .. ,· and was being lawfully a'pprehendect'. 'There'·was no el<:ment -of I ,. , ,, . self~defence at all. oooo/3 . ' 3 The next·ground was provocation. We completely fail to see xany legal provocation in the facts of this caseo The dece·ased did not provoke the appellant c1t alL Miss Mjasiri referred to the threat allegedly allegedly -uttered by P .w o 7 o We very much doubt. if that threat was utteredo The group had come. peac;:eably to ,surround the house _to prevent the appellant's escape, and _had · sent a person to apprise the village militiamano They could easily have . gone into the house if they had wanted, but decided to ·remai_n outside, and no one was armed. A threat of the type alleged by the appeliant was completely· inconsistent wi-th · the peaceful . conduct an·d action of the group 0 · . However, the trial judge was prepared to accep't that such a threat had been madeo He held thnt i t was mc~rely a device to ~e~ the appellant out of the house, as nothing ai•ail was done to implement the threat in any wayo The group was lawfully attempting to effect an arrest, 9 nd was entitled t6 use any straagem needed. There was also a submission that there was no malice aforethought. The appellant had used a knife and thrust it into- the chest of an unarmed man, and the attack was. carried out without a~y iegal provocation. There was suff:l.ci•ent evidence of malice aforethought. oooe,/4 . ' . J 4 A. MUSTAFA JUSTICE OF APPEAL Ro Ho KISANGA JUSTICE OF APPEAL I( REGISTRAR