Criminal Appeal No

IN THE court of APPEAL Of TANZANIA AT DA.. 55 SALAAM coramfc MUSTAFA. J.A. MAKaME, J.A. And KISANGA. J.A. CRIMINAL APPEAL NO. 56 OF 19Q5 MUOMBAMUNOU JUMAPILI. ............. APPELLANT VERSUS THE REPUBLIC........................ RESPONDENT '(Appeal from the conviction of The High Court of Tanzania at T anga) (Hon. H.E.D. Si*yo, J.) dated the. 22nd day of March, 1985 in Criminal Sessions Case NO. 18 of 1981 JUDGMENT OF THE COURT MAKAMS. J . A . : We appellant ,MU0M3rtMUNGU JUMAJHLI was convicted for the murder Of his brother-in law, KANIKI KIYEBU, and was accordingly sentenced to suffer death by hanging. He has appealed to this court and Jie is being represented by^ Miss Mulaki, learned counsel. Mrs* Malecela, learned State Attorney, is appearing for the tespondent Republic. It was established at the trial that the deceased was slashed with a panga by the appellant and that he died as a result. In hia unsworn statement the appellant gave an account of the incident, which differed significantly from an extra­ judicial statement he had made to a justice of the peace only thr«e days after the killing. The trial court was satisfied that the unsworn statement the appellant made at his trial was merely an aftert h o u g h t and that the extra-judicial statement represented substantially the truth. Iha trial court considered the version it held to bed tha true account and came to the conclusion that ^ th*t w o u n t / n c t accommodate the defence of provocation so as t# reduce the killing to the lesser offanc^ ©^/Manslaughter. The appellantj. had an .lfirlp uncle. cslled can NGELEJA and this ' • 11 Annarently for a l°ng time. He was taken Ngeleja was unwell, apparently tp various hospitals ® * *> traditional «,dicin.».en, but • efforts to save tils life proved futile. During Hg.l.j»>■ , ^ „ 1 ru»o»r. were circulating to th. effect that a . ipp.UM hod bewitched Ngeleja to death* According to t u extra-judicial *t»te».nt, the appellant and hi. brother, called CO»ST*TINO KAPEKBE, went to fetch th. ceased in this case and took M » t. th. appellant's h o ™ . A the appellant1" H e . h ( « a.k.d appellant if he had hear that th. <wo.as.d was alleging that he, th. appellant,had bewl c a hi. uncle (Ngeleja). The appellant =eV lled that h* h,a he“ d th* and that he did not like it. Th. appellant wept with anger, and* \whila the discussion was continuing« he becama m° re »ni3ry so he hit the deceased with a panga on the head and killed him. As we have pointed out, the trial court believed this version rather than the later one given in court. The trial court was satisfied that, according to thi. version, the alleged conversation was between the appellant and his Own brother, not With the deceased, and therefore, if, for the sake o f argument, the appellant was provoked, he was proveked by his <*-« brother, Kapsmbe, so it is_t 9_Kapen.be the appellant should have directed hi. reaction. The trial court went farther and held that, in any event, the allegati*^ about whi«h the appellant heard, was not ' *u<id<an and was incapable of provoking the appellant, in law. Miss Mulaki urged, in effect^ that the version contained in the extra-judicial statement did not necessarily exclude the deceased's participation in the discussion and that,taking into **wv«i<iar»tion all the circumstances, including the appellant's sustained but unsuccessful efforts to .ave Ngeleja-s life, a subsequent allegation that the dppeliartt had bewitched Ngeleja wbuld have provoked him. As we Uhddrsfcttod it* Miss Muiaki also made s««e effort to reconcile the Account given by the appellant to the justice of the peace with the Mango-tree v«t*i<bn Contained in the unsworn statement in court. Mrs. Nalecela, on her part, submitted that there was no provocation. After carefully considering the learned trial judge's judgement and the submissions made to us we are of the considered view that the trial court's reasoning and conclusion cannot be faulted. We cannot see how the appellant would have left out the physical struggle at the mango tree, in his account to the Jti«tiee °f the Paacefif any such thing had happened. We are of the view that the trial court was quite entitled to go by the ext»a— judicial statement, to the exclusion of the unsworn !•tafesment. We are satisfied that the story the appellant told in court was a'lie, and we would add two observations in passing: First we cannot see how theappellant, who had taken the trouble ©f getting the deceased home so as t« discuss with him a mattsr whi«h had so irritated him, wotfld leave the deceased and first go to the bush for some mangoes; and secondly, the unsworn f- • n •tatanvent does not tell how the deceased came to sustain three v e r y sever* cut wounds, one on the head, another on the neck, a third on the arm, if all that the appellant did when he got up during the physical struggle was to hold up his panga. We a.pe satisfied that, according to the accepted extra­ judicial statement, what conversation there was, was between the appellant and his own brother, over an issue the appellant hiwsalf said he had already h^ard about, and that the deceased Offered no provocation whatsoever. The offence of Murder was pjroved, and we accordingly dismiss the appeal. DATED at DAR ES SALAXM this 4th day of October, 198S A. MUSTAFA ^ ■ttts^t c e ’ o f appeal L. M,i MAKAME .Tii.qTICE Of ~Ap p £AL’ R. H. KISANGA .•fii^TTgE' OF APPEAL I certify that this is a true copy of the original ,(B. P. MOSHI) SENIOR DEP'UTY REGISTRAR.