19840720 TZCA Dar es Salaam

IN THE COURT QF APPEAL OF TANZANI. - AT DAR ES SALAAM . . -. (CORAM: Mustafa, J.A., M a J,A. and. Kisanga, J.A. 4 CRIMINAL APPEAL NO. 18 OF 1982 B E T W E EN. PULASIDI NANGILE . .. . . APPELLANT A N D THE REPUBLIC . . ,. . . .-. . . RESPONDENT (Appe a l from the judgment of the High Court of Tanzania at Kondoâ) (Lugakingira, JO) dated the 25th .dy of March, 1981 JUDGMENT OF THE COURT KISANGA, J.A. The appellant was convicted.of murder and sentenced to death by the High Court. sitting at Kondoa. He is now appealing. Most of the facts were not in dispute. It was common ground that one Lazaro Waginee (P.W.1) had his goat stolen and he reported the matter to the village authorities. In the course of investigations, a number of people were named as suspects and these included one Matei, a younger brother of the deceased. Then a meeting was held at the village Party office to discuss the matter. At that meeting the deceased was required to pay compensation and fine on behalf of Matei, his younger brother, for having stolen the goat in question. The deceased agreed to do so. Many people attended the meeting; some came armed with bows and arrows. It would appear that the appellant who was ... -2- the headmaster of Ovada Secondary School, arrived towards the end of the meeting and upon enquiring, he was informed that the matter was settled by making the deceased pay compensation and fine on behalf of his younger brother. Whereupon he criticised very severely the meeting for having settled the matter that way. It is in the course of such criticism that he delivered an inflamatory speech which according to the prosecution incited the villagers to resort to acts of violence leading to the death of the deceased. During such violence the deceased was shot with arrows and his head was badly smashed with stoneso The deceased died only shortly afterwards from these injuries0 After the death of the deceased, the inflamed villagers proceeded to burn the houses of the suspected "majambazi". There was not much controversy about what exactly the appellant said in his speech0 The learned trial judge found that the.oper.tive part of the appellant's speech was as contained in the evidenöe of P.W.2 who had reported the appellant as saying "Wazee ninyi mna uchu wa nyama. Na kama ni nyama tu twendeni kwa babu yangu ana.ng'ombe, akawapeni mkale nyama .. Wewe Mwenyekiti: Sisi hatuna uongozi hapa. Mriafuga majangili hapa. Mnawaogopa, halafu watu tunateseka, hatulali, halafu Kamati mnahukumu huyu aje akalipe fedha, sijul nini, ng'ombe. £ Mkifikiri mali hjzo mnadhani ana uchungu? Si anawalipa kwa mali zenu wenyewe? Uchu we nyama! Twendeni kwa babu yangu! Mimi nimekuja hapa nimewekuteni watu wachache Nimeridi kuwaallka. Wanakijiji wa Ovada mneshindwa kazi. Mnajaa hapa na mishale tu, bure. Mnashindwa hate na vijiji vingine. Hapa ni bure tu. Kama hamjui kazi za mishale wapeni wanawake labda wanawezawakafanya kazi ... Huu mti huu (poihiing to a tree) ukiukatakata matawi yake bile kung'oa shna si unaweza ukachipuka? Hawa watu dawa'yao ni kuwachomea nyumba!?. 0000/3 •uP - ; The evidence of P.W.2 on thic point w0?fu 1 1y suppo'tad by other evidence, aM the learned trial judge was amply justified to acéept it andIto find tht the appellant did say those things in the course of his speech. Indeed Mr. utabinqwa, who argued the appeal before us, did not seriously.seek tO challenge that findingi but his main contentiori was that - he effect of •the appellant's speech. was to inite'the villagers to burn the houses of ."maj.athbai. So that if •th appellant was to, be cha:ged.d,th ayoffnc:e at a -li' it•was.. that of arson which, howver, he was not. We have -givendu-coñsidera-ton to this submission but we are unable to agree. The learned trial judge in his usual th.oroughhess, specifically dealt with this issue in his judgment and said- "When a person says to people armed with arrows: Kama harnjui kazi za mishale wapeni wanawake labda wanaweza wakafanya.kazi', the message is-loud, and clear. When a person says: -'Hawa watu dàwa - .ya.o ni kUwachomea nyumba', th'e message is louder still.- I find that the second accu'ed 4 made those 'emarks, among others. Any reasonable person hearing those remarks cannot but understand -that the speaker is exhortlng hi-s audience to -murder and arson. And that was how the message was understood by. P.W..2 and P.W.3 and even the gentlemen asessors... And that wab how it was understood by. the- crowd for immediately they fell upon Zakaria, a suspected jmbazi and a suspected comforter of jambazis, and killed him and went on , to burn two houses..",' The conclusion arrived at by the trial judge is well founded On the facts and we cotild find no fault with it.. Turning to the law govetn'ing the matter, the learned judge held that the appellant was guilty Ofrnurder either under section 22 or 24 of the Pena'l Code. We are clearly of the view that.by his conduct, the appellant c.unseled and procured the Villagers to murder "majambazi". including the deceased, . . . - 4 - in which case his convict-ion for murder under section 22(d) of the 'enal Code was also well founded in law, in the circumstances, we are satisfied that this appeal has no merit and it is accordingly dismissed0 DATED at DAR ES SALAAN this 20th day of July, 1984 A. S' JUSTICE®PEAL ..: .'/ e L. M. MAKAME JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL I certify that this is a true copy of the original. ( .... -•.------ L. MWALUSARYA J. ( REGISTRAR A CQURT OF APPEAL -I