19840807 TZCA Arusha1

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: Mustafa, J0A0, Makame, J.A. and Kisanga, J.A. CRIMINAL APPEAL NO0 18 OF 1984 BETWEEN WILLIAM JOSEPH 0 0 0 0 0 0 0 0 0 APPELLANT A N D THE REPUBLIC 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Arusha) (Maganga, J0) dated the 9th day of March, 1984 JUDGMENT OF THE COURT MUS TAFAA The appellant had a dispute 'with the deceased, his elder brother, over some shambas left by their late father0 The dispute was being referred to the elders, but on the, date fixed, no meeting of the elders took place, as some members did not turn up0 Later that day, according to the prosecution evidence, the appellant went to the house of one Kitutu, where the deceased was sitting with P0W02, Alex, who was a nephew of both the deceased and the appellant, and withOut a word the appellant stabbed the deceased to death whi]Je the deceased was seated0 The deceased died instantaneously irom the stab wound0 p0w02 Alox was present and witnessed the incident, • and his account was believed by the trial judge and, the assessors0 No other person was present at the time of the stabbing0 0 * --1 - The appellant later gave himself up, and 'led the police - to a banana shamba where he had hidden the knife with which he had stabbed the deceased0 He made an extra-judicial statement in which he alleged that the appellant had taunted and abused him and that he became incensed and stabbed the deceased0 He also made an unsworn statement in which, in addition t. words uttered by the deceased, he alleged that the deceased had struck him with a gourd, and he retaliated by stabbing the deceased0 The appellant had partaken of pombe on the material day; he however did not claim that he was drunk0 Mr0 Zafferali appeared for the appellant before us He submitted that the appellant was provoked by the abusive words uttered by the deceased just before the deceased was stabbed 0 He said the words provoked the appellant, especially as he was labouring under a sense of grave injustice over' the shamba dispute0 He also submitted that the pombe the appellant had partakenon that day rendered him easier to provocation0 He al s o contended that the only witness to the incident was POWO2 Alex, and he urged this court to reject P0W02's evidence as he could be biased0 The trial judge, and his three assessors as well, held that p0W02 Alex was a truthful witness and accepted.his testimony0 POWO2 testified that no words had been uttered by thu deceased before he was stabbed by the appellant0 We 'ourselves can find no reason at all why P0W02Alex should not be believed0 , A§ to drunkeness, the trial judge gave good and cogent reasons as to why he found that the appellant was not drunk at the material time0 There was thus no provocation nor drunkeness, and the attack was a deliberate one0 00 - - - - - INV The judge convIcted the appellant of murder 0 Despite Mr. Zafferali's gallant efforts on behalf of the appellant, we find that the trial judge had come to the right conclusion, and we :see no merit in the appeal0 we dism.i-ssthe-ppeal DAT]:-Qt ARUSHAhis 7th day of Jugust, 1984 c / A. MUTAFA / .JUSTiCE OF APPEAL L. M. MAKAME JUSTICE OF APPEAL R. H. KISANGA JUSTICEOF APPEAL I deri5ia±thisis a true copy of the original L A. A KYANDO ) DEPUTY REGISTRAR