19840427 TZCA Dar es Salaam

IN THE COURT OF AFPEAL 0£' TANZANIA . AT DAR ES SALAAM (CORAM: Mustafa, J.Ao, Makame, JoAo and Ki,sanoa, J.A.:,_~ CRIMINA~ APPEAL NOo 29 OF 1981 and CROSS Ai?PEAL NOo 30 OF 1981 BETWEEN ·1. TITUS SONI@ JOE ) 2. DANIEL MANOKGOTLA ) 3o GILBE:RT NHLAPO@ SMASH ) oo APPELLANTS 4 .. ABRAHAM TATU REUBEN SWANE @ TECKO ) s. JA.MES HLONGWANE ) 60 SHINDO NAHLANGU @ STUDIO MAHLANGU DEBOLIST CYRIL) AND THE REPUBLIC o 0 O 0 0 0 0 0 0 0 o o' o o o o .. RESPONDENr: (Appeal from the judgment of the High Court of Tanzania at Dar es saiaam) ( Mnzavas, J oK'o) , .. ·., d_ 9 ted the 15th day of June, 1981 in , .. ____ Cr'a.minal Sessions CasJ . ·-. '.'\ , No .. 3 of 1980 .-... JUDGMENT OF THE COURT MUSTi,FA, J .. A.: The six appellants Titus Soni, Daniel Manakgotla, Gilbert Nh),apo.@ ' .-:-:-:Smash, . .. . Abrahc1m Tatu Rf:;!uben Swane @ Tecko, James Hlong':"'ane ond Shindo Mahl.anga together with one Ingram Mazibuko were charged with the murder. of David Sibeko before the High Court at Dar es Salaam (Mnzavas, J.Ko)o Ingram was acquitted and the six appellants were convicted of manslaughter and each was sentenced to fifteen years' imprisonment on 15th, _June, 1981. The appellants are appe3ling against both conviction· and sentence and we h?.ve consolidated their appeals. Mr .. Ismail appeared for first appellant Titus and second app-ellant Doniel, Mr o Muccadam for third appellant 2 Gilbert, Mro Raithatha for fourth appellant A~raham and fifth appellant James and Mro Jadeja for sixth appellant Shindoo The Republic, represented by Mro Mwi~opo and Mr 0 Safari_,, has cross appealed; and is asking us to subs itute a conviction o:f m11.rcler for that of manslaughtero Very briefly the .fol.1owi.n.i:1 facts 'vere established by the Republic, accepted by the trial court, a_nd not disputed by the appellantso The deceased SibQko and the appellants were a1·1 members of the Pan_Africanis+. Congress 0f,, ~-Azania, P •.A.Ce · for short, a liberation movement to free South Africa from white recist rule. There were two factions within P.-AoCo, one faction represented by Sibeku and his colleagues and another by the appellants who allegedly owed allegiance to one Potlako Leballo, whu was ousted as Chairman of PoAoCo by Sibeko and his party. After LebaUo had lost or resigned from the Chairmanship of PoAoCo, a Presidential Council was formed comprising of three members, ~oeo Sibeko, PoW.13 Make and one Elias which t.uok over the pu1,;ers · and functions of the Chairmano This happened short:y before the incident which resulted in the death of Sibekoo There is a military wing of P Jl.Co called the High Command which controlled a number of tr~ine<i military cadres who were pro-Leballo. The appellants were all members of the military cadreo The killing tuok place at about 11000 p.mo in an upstairs flat at Sea View in Dar es Salaam occupied by P Wa13 Make, 0 where Sibeko was then staying. The door bell ~ar.g and when the door was opened, three persons, 1st appellant, 2nd appellant and 3rd appellant rushed ino The 1st a~d 3rd appellants were both armed with pistols which they pointed ' at Sibeko and Make, whc, were unafmed ,:md were the only occupants I, I eooo/3 3 - in the fla to The 2nd appellant was armed with a knife he was holding in.his hando The 2nd appellant told Sibeko and Make i'The comrades h;cwe sent us to call you to a meeting at Keko 11 or words to that effecto Neither Sib.-::ko nor 1'1ake knew of any such meetinga At one stage the 1st appellant ~emporarily left the kitchen where they. all were and went into another room, but as he was leaving the kitchen 1st appellant said to his compahions 11 Man 9 la 1 if any onci of them moves, shoot". Both Sibeko and Make w2re bodi1y searched and money and other articles were taken off both of themo Th ~re was some conversation 1 beh'lleen the appel J.ants and Sibeko and Mc3ke, who were clearly not prepared to accompany the appellants to Keko or wherevero 11 Sibeko at one stage said, Do not intimidate us, we are not afraid of youi'o Th~;n the third appellant caught hold of S_ibeko' s wrist, and Sibeko fr'.~ed himself and in the process pushed the third appellanto At that juncture shots were fired by one or two of the appellantso -Make ran into a store room and just managed to lock himself insideo Make h~ard more shots being fired and shouted for help. Make then heard a voice saying "Let us go". H2 then came out of the store room and saw Sibako lying on the floor in a pool of bloodo Sibeko had been shot in the head and died of his wound either on his way to or on arrival at the hospital~ The doctor P.Wol Shaba performed a post mortem examination on Sibeko and gave as his opinion that Sibeko had died of cerebral contusion and haemorrhage from a bullet wound which went in at the right pari,"tal region and exited at the top of the h 1~ado At the time of the shooting the 4th, 5th and 6th appellants were waiting or on guard at the bottom of the block of flatso .When the 1st, 2nd and 3rd appellar.ts c~me down after the j' shooting all six appellants I Ii oooo/4 4 drove off in ,a la-ndrover iri. the direction of Itimbi camp • l at Mbeya Regiono· They were intercepted at a road block , on the Dar es Salaam/Mbeya Road on 12th June, 1979. Three pistols were found in the land rover, one of which w~s on the person of 6th appellanto Two of the pistols had b~en used in the shooting at the Sea View flat the previous nighto The six appellants h;:id used the said land rover to r2ach Dar es Salaam from Itumbi camp. Op these facts the Republic had submitted thnt the appellants had with malice aforethought unlawfully killed the deceased and werP guilty of murder. The 1st, 2nd nnd third appellants made unsworn st~tements • .All these three appellants admitted that on_ the m"3·terial night Make_ 2nd take them to Itumbi,camp at_ Mbeya._ The first appellapt_ sbted that the six appellants_ had arrived at Dar es Sal~am together. 'j. • Three 6f.thGm went upstairs ~ ' I ', to the . flat and . :the . other' three aopellants ~ . ~ ',, remained t , downstairs. ~ After entering ' . ' the flat . the ·.first ' . appellant temporarily w~nt outside the.door to cali_ the companions dowi:stairs. As he lef·t the room J:l~ heard a gun shot a'nd he r~-entered the room with his pistol. He saw the 3rd.?ppellant struggling with Sib?ko.. The ls~ appellant then Jireq a shot at thP. ceiling in order to sepnrate them. He then sow Make rushing inside. a store.Foom i3nd. Sibeko fall~ng ~own. He left with his companions to repor~ back at Itumbi camp. The 2nd appellant's account is sim'iL,ro He said he heara Sibeko. shouting ,tha "!: h<~ f:ould not be ipti_midated i3nd saw Sib-~ko push third appellant nn1 thereupon hP ~~arp a shoto ~~ th~n .l he~~d more shots and saw Make running .into a store room .. -. . Second app~llnnt panicked ~nd rushed off., I . ooo ♦ /5 Sibeko saying that he ( Sibeko) could not be -int1111,_ ....,., ,, _ :- . . ' then grabbed Sibeko' s arm. Sib0ko fr,"'r:d himself ond 3rd appellant fired a shot at the ceiling. As he was st~uggling with Sibeko a bullet w,s fired accidentally from hi's µistol and he saw Sibeko falling down. At th;1t juncture the three appellants decid~d to leave. There were fiv,~ bullet marks found in the :flrit. Thr,'e mc1rks were on the ceiling .:rnd one or two , w,"r·:?. on the door of a fridge in the kitchen~ The sixth appellant also made an unsworn statement. Ht: said he had remained downstairs r3nd did no\ ·ente• :i:Rthe flat. He however said that he knew that thf::!Y all had come to Dar es Salanm armed with pistols to confront the mem'bers of the Presidential Council. The 4th 3nd 5th appellants remained silento It is clear that the six app"'·llants had nrrived at Make's fiat armed with two pistols .=md n knife to bike Make r3nd Si:beko away by force. ThP.y had come to abduct them and in the course of such abduction killed Sibeko. The trial judge reviPwed the evidence of the prosecution and defence in qreat d•?tail. He accepted thr; evidence givGn by P.W 13 Make as substantially true. 0 He rejected the evidence of P.W.20 Thobia Gola whom he found was ~ot a truthful witne~s. If he had accepted Gola' s evidencP. he wquld necessar1ly hav8 convicted all the appellants of murder, as Gola had testified that it had been decided ;:it a meeting ;:it Ttumbi camp to liquidate the members of the Presidential Council and the appellants had formed thP.. squad to carry out that assignment,. 0 •Clo /,6 '1·1-..- -1:.,,..i.,:1:t · Judqo nol:Gd GoL~' s demeanour and bearing in the witness box, and his evasive manner in answering cert~in questions :=ind came to the conclusion that Gola' s evidence could not be relied on. He agreed with the three ?ssessors that Gola was not a truthful witn<:?ss and he rejected vola's testimonyo Despite the Republic's plea to us, we do not see any compelling reason to disagree with th~ trial judge on this issue o The trial judqe rejected the defence argument thnt the fatal shot was fired accidentally. He was of the view that the 1st, 2nd and third appella,pts were grossly negligent ,rnd reckless in the way they had acted with loaded firearms in the flaL He held that the 4th, 5th and 6th appellants aided and abetted the first three appellants or had acb=:d with a common intention in terms of section 23 of the Penal Code and were equally guiltyo He found that the appellants had formed an intention to intimidate the members ·of the Presidential Council wrongfully .=ind illegally cantr.=iry to section 89B(b) of the Penal Code, and Sibeko was killed in th~ prosecution of such intimidation. He however was doubtful whether the killing of Sibeko was wit.h malice aforethought~ and he resolved thG doubt in favour of the appellants. He was satisfied that if the appellant had intended to kill Make or Sibeko they could easily have done s~ when they gained entry in Make' s fl"3t. Th~ trial judt!Je considered the shots fired at the ceiling and believed that the appellants deliberately did not shoot to kill. If they had wanted to hit their targets, they could not have failed to do so in the confines of a small room, especially ' "~ as they were trained fi~hters. He convicted all of then of ' ·,'3t i1,,•f, manslaughter and sentenceo each of them to fifteen year~ 1 •'.·• imprisonmento ' ' .\:.' . :•.. • 'I ""' Before us Mr. Ismail for the 1st and 2nd appellants had submitted that the killing was accidental as it could have happened during the struggle between the 3rd appellant and Sibeko. He admitted that the killing was done in the course of the commission of '3n unl,3wful a-.t-. He also complain~d of the harshnPss of the sentin<:e tmposed. Mro Muccadam for the 3rd appel 1 ,3nt ;:id'opted Mro Ismail's submission. Mro Raithatha for the 4th and 5th eppellants submitted that his clients were in a different position. They were not involved in the shooting as they wer~ downstairs. The trial : judge had found that death was caused by qross negligence and recklessness on the part of the 1st, 2nd and 3rd appellants. Mr. Rai thatha sb,tr~d that there was no evidence to show thr.1 t his clients were aware that the 1st, 2nd and 3rd appellants were armed, nor that they were privy to the gross negligence and reck1'~ssness on the part of 1st, 2nd and 3rd appellants. Even if his clients had agreed to force o nd comp~l Sil~eko and Make-· to attend a meeting, what the 1st, 2nd and 3rd appellants did at the flat was outside the scope of what h~d been agr~ed. -His clients could not be liable for acts which were outside the scop8 of the common intention. He referre<!, -~,V•iPfJ•-~eby 1g40--42 Volo28 Criminal ~ppeal Reports p. 7 _,ar:i_d _.~ohn Denni..s. Lovfsay '1-969 Volo 53 Criminal Appeal Reports p,. 464 in support. He also contended that in any event his clients• 'guilt. was less grave and deserved a more lenient sentence. Mro Jadeja for the 6th appellant adopted Mr. Raithatha 1 s argumentso He conceded thAt the 6th appellant was f~und with an unfired pistol -,t · the road block ond had -i3ls'o made a st;:ite- rnent: indicating knowledge that the' gro~p was carrying pistols • •••• /8 We do not think that the defence of accident was open to 1st, 2nd and third appellan•s a~ they had killed in the course of carrying out ;:in unlawful· a.-·~,, that of ;:ibduc•ion contrary to sections 246 and 249 or the Penal Code, which ~as classified as a felony. We are satisfi~d the conrinement was both secret and wrongful. As regards the 4th, 5th and 6th appellants it was eshiblished o-.w odmitted that they had left Itumbi camp for Dar es Salaam •o abduct Make and Sibeko, members of the Presidential Council. They travelled together in a land rover with 1st, 2nd and third appellants. After the killinq they all escaped in the same landrover. When stopped at a road block they all denied they had any weapons, see the evidence of P.W. 10 Detective Juma. In th~ sei'lrch three pistols were found, and the 6th appellant said that a pistol found in a bag belonged to all of them. Neither 4th or 5th appellant challenged 6th appellant's statf~ment. We are satisfied that the 4th and 5th appellants knew or must have known that the 1st, 2nd and third appellants who went into the flat were 1,.rmed, and were aware th."lt they would use their weapons should that be necessary. They were clearly c~ught by th,':! provisions of section 23 of the Penal Code, in that they and the 1st, 2nd.and third appellants shared a comrnor. in tent ion. The above ~easoning also applies to 6th appellanto We dismiss ·th(=o appellants' app0al against conviction. Mr o 1"1wipopo for th(·: Republic hns counter-appeale9 .::ind contended thn.Y 'the appellants should hcwe been convic ~ed. of murder. He referred to section 200(c) of the Penal Code which reads: ••• 0 /9 "200. Malice aforethought shall be deemed to 'be established by evidence proving any one or more of the following circumstances - (a) (b) (c) an intent to commit a felony, ( d) (I O C " 0 Mro Mwipopo referred to the time and manner ~f entry into the flat, the pointing of pistols at Sibeko and MRke, and the instruction to shoot if ei thF?r Sibeko or Make moved.a He also referred to the bullet mark or marks' on the door of the fridge which he submitted showed that shots must have been aimed at Ma.ke but missedo He also referred to the head wound inflicted on Sibel<oo He contended that the appellants had aimed their pistols when they fired. He al so asked us to accept the evidence of PoWo20 ·Gola, who, he argued, was a witness of trutho Alterna lively he submitted that Make and Sibeko had been robbed and the killing had taken place in the course of an ;:irmed robberyo Mro Safari in support of Mr. Mwipopo referred to Ro Vo Beard 14 Criminal Appeal Noo 110 and Petro Sentali Vo Ro 20 EoA.CoAo. · 230.. Mro Safari submitted that the trial judge erred in failing to consider constructive or implied malice in terms of.section 200 Cc) of the Penal Codeo The ~il ling was committed in the course of a felony, abduction, and malice aforethought has b~en establishedo We must confess that the cross-appeal hns caused us great anxietyo If we had tried ·the case, it was unlikely that we would have arrived at a verdict so favourable ., to the appellants as that of manslaughtero But can we say that the trial judge could not have come to the conclusion he did? He made a finding of fact that when the 1st,. 2nd and 3rd appellants, entered the flat they had no intention of killing Sibeko or Makeo He gave reasons for that findingo We think,· with considerable he si t.:,,tion, thn t he could have so found. • ••• /10 .._., ,, ·c- ~ ... 10 It is true that the trial judge did not direct his mind to constructive or implied malice in terms of the provisions of section 200{c) of the Penal Code. Misdemeanour and felonies were abolished by the Amendment to Penal Code Act 14 ~f 19800 All misdemeanours and felonies are now to be construed as "offences" .. At the time of trial, Act 14 of 1980 was operative. Dues section 200(c) still apply? Mr. Mwipopo submitted that the amendment has widened the scope of . . ··section 200(c) of the Penal Code; he went so far as to say that malice aforethought can now be ·implied from ahy act of 'killing in.the course of an act with an intent to commit an offence, however tri.,iai the offence may be. We are· not prepared to accept that proposition. If ·the Legislature had intended_ to vtiden the scope of section 200(c) of the Penal Code in the mar:ner suggested by Mr. lvlwipopo, it would have stated so in clear and express terms. According to Mr. Mwipopo' s interpretation, if a pF:r.son technically assaults another, and that other person· dies, then the 1,-erson who assaults has committed murder • .-Indeed there would be practically no manslaughter verdicts, ~xt~pt for provo- cation, as every unlawful jct could be an offence. We think that either section 200(c) of the Penal Code is now no longer operafive on the abolition of the classification of offences as felonies or misdemeanours or that·it can be invoked only in the case of serious offences necessarily involving viol~n•e or grave injury. But we tfiink it is unnecessary for us to come to a conclusion for the decision of this appeal. 0 0 •• /11 ... 11 As we have ,.stated, ,the trial judge found as a fact I that that the 1st:, 2nd and 3rd appellants had _ho intEfritio'n :. . . . ~"( ,1/ \ to kill when they entered the flat of. Make. Orice th,at findifig I I , !' 1 is accepted, malice aforethought is excluded, ,as :th~ killing thereafter coul4. have t~ken place as a result of ai Jtruggle ,I 1 or due to panfc or to gross res;:klessness a _ s/ the t'rial judge f11 ' ' 1.1 found or for whatever reason. The killing" did not,,, necessarily /' ,: arise from the act of abduction, 0~ put in anothed way, the I /I , ' ,'/ killing was not something foreseen or anticipated, by the 1 I I I d appellants, since they had positively lqckep the /intent to killo ' ··1' ' ' . In these circumstances we.do not think any irnp).ied ' . I r ; ~j or constructive malice should be imported into the act. ,to I " ( .J nullify the consequences of the trial judqe's f~nding of .'I facto 1i I ,'/· '1 I .. 1 " li We, therefore, thol)gh with considerable misgivings, : .., ,ii. ·.· ' ,. uphold the ·.v~rdic:'t~ of mansiaughter and alsmissf the cross- ; :I. .· : ; J 1/ appeal of the Republic. ' We wish to add th':l t we have arrived · . · .. I 11 '' . I ,/ at this conclusion in the peculiar circumstan~es of this case, ; /1 ,' : .L . particularly in view of the trial judge's positive .,. finding ;1 r f,' of a lack of intent tot~ill. I I We now turn to the question of sentE:tree. ,Mr. Ismail . ;1 J t1 has pointed out that the appellants h~d been i.h custody for ii two years prior to their being con':;icted Ji and sentenced, J ,,'1 and no account was taken of that cust,·ody period by th~ trial I I ·'I judgeo We think that point has merit. We i a 1 so agree that ii a term of fifteen years is very severe tof a killing due to ,·:? gross negligence or recklessness. , In all th~ circumstances ;1 { 'I , we think a sentence of ten years i~ reasonable. We reduce ,{ the sentence of imprisonment to ten yea~;k for each of the appellant. We think all the appellants ,:/are equally_ guilty and deserve the same punishrnento '· ...... 1-il2· ' I I I 12 I I ' •, ;II appeals both 'the , Apart from the reduction in ·sentence, I ,\ :f l ' 11 1! ,, I of Apri!l,, 1984. 1: 'I I 'I i i' l I ti ir I -- ,i~· ,--•, 1' r. Ro\ H. K.J'.SANGA _JUSTICE OF APPEAL I ceJ: ;1 I I ,I