19860326 TZCA Dar es Salaam 4

IN THE COURT OF APPEAL OF TANZANIA ·· · AT DAR Es· SALAAM CORAM: NYALALiz CoJ.; MUSTAFA, JoA. And MAKAME, J.A. CRIMINAL APPEAL NO. 26 OF 1984 '1 MUHUMBA KAMNYA. o o - o • • 0 • • o • APPELLANT i VERSUS / THE REPUBLIC. .. 0 • • 0 0 • • • . 0 • RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Dodoma) (Lugakingira, J.) dated the 17th day of April, 1984 in Criminal Ses~iOns Case No. 4 of 1983 JUDGMENT OF THE COURT MUSTAFA 1 The appellant was convicted of mui::de.i:: and sentenced to death. He is appealing. The prosecution case is as follows,;, 'l'he aop·ellant,- as a resident.at Tinai Village, had not taken part in cultivating in the village development programme. The village Chairman sent four militiamen, among whom-was the deceased, ~n the material day, at about 4. 00 p.mo, to arrest the appellant· and to bring him before·the Chairman. The four men, all unarmed, went 1,- / · to the house of the appellant to arrest him. The militiamen had no letter from the chairman, nor had they a warrant of arrest. Apparently the appellant was to be arrested and brought before the Chairman for not participating in villag'e develo~ment activ~ ties. Earlier the same day it appeared that the appellant was before the village committee and had refused the demand of the village committee to pay compensation ("udoba") of shsa 50/- and costs for the militiamen of shso 25/- ( 11 K1latu") arising out of his failure to participate in village development, and had left the meeting in a defiant mood. . , . • • • • • 11 • • ,y /2. I I ! - 2 I The four militiamen went to a place where the appellant ,. was repairing· a house o When the appellant saw the, four militiamen at a distance, he called out to them not to enter his compound. However the dece~sed nevertheless went on in order to arrest the appellant. The other three followed. As the deceased neared the appellant, the appellant hit the' deceased with a stick on the thigh. Despite that the deceased held the appellant. The other three militiamen rushed forward to help the deceased. The appellant managed to free one of his arms from ... the clutch Of the dee-eased and drew out a._ J<;nife: fr.om ,.h.is wa~st .. ·, ~e deceased thereupon releosed the appellant,.,and all:·:the. 4 · ··militiamen ran away. They were then inside the cattle boma of the appellant. The militiamen r.an towa,:ds the exit · Of the boma, which wa.s a narrow one, chased by the· appel~ant •. It· .- appears that the deceased someh~w was behind the ,appellan.t, and seized or tried to seize the ' . appellant. A_s the. d~ceased ~as in that act the appellant turned and stabbed·the deceased . . .in the chesto The deceased then ran a few paces·, jumped over the fence of the cattle bOma, and fell a, short distance_ away. He died shortly thereafter. According to medical evidence the cause of death was haemorrhage due to the stab wou~d which penetrated the chest and pierced through the lung and punctured the heart. Considerable f~rce must have been used to have caused such a wound., A sharp instrument like the knife produced in court could have caused it. Briefly the above account was testified to by P.Wo1, P.w.2, and P.w. 3, the militiamen who had accompanied the deceased. in the arrest expedition and who were eye witnesse.s. to the : stabbing. The appellant gave a different version of the events., HQ-said that on the material day, in the morning he was sent for, a~. he went to the village CCM Office. He was asked why he did not participate in working the village shamba. He alleged he was exempted from such duties because he was suffering frOm T"'B. ,The •••oo_.,/3 •. I 3 CCM Office told' the app"!llant to pay some compensation, and ff the appellant did not pay that day, the appellant woul,? be put under custody, and he was in fact kept in custodyo At dbout 4o00 porno he was given permission to·go out and eat;.. While he·was repairing his house 4 militiamen, including the deceased, arrived. He heard thP.m say "Umekimbia mvua lakini umande hutaukimbia", and was frightened. He·thereupon ,wanted to run back to the CC:M Office. As he did so, a militiaman· kicked him and he fell. It was the deceased who had kicked .himo The appellant stood up and as he had a stick, he hit the deceased on the left thigh with it. The deceqsed held him and the other three a.lso attacked him. He alleged P.W.1 Daniel took out a knife to stab the appellant, but the appel_lant managed to snatch away the knifeo The appellant realised that he himself was carrying a knife in his.pocket. He pulled out his knife and the militiamen, on seeing this, scattered.· I , . The appellant remained standing waving his knife in a circle, telling the militiamen not to approach him.. Three militiamen; i.eo P.W.1 and PoW.2 and PoWo3 were in front of the appellant, and the deceased was sc:;i"?hOw standing behind the appellant. As the appellant was waving with his knife, he suddenly fOuhd that he had struck something, and heard that sorne one has been , stabbedo He turrn~d and_ saw _the deceased running away and falling down, badly injuredo The appellant ·-then ran to a police station to report. The trial judge, and his assessors, considered and assessed the evidence adduced at thP- trial; ·.and ·concluded that the prosecution witnesses, especially P.Wo1, P.W.2 and P.W.3 had told the truth.. In our view tha_t conclusion wai; justified. We will decide the appeal on that basis. Accepting the prosecution veision of events, ~ertain matters arise for consideration. Were the miliHamqn in fc\ct effecting an unlawful and illegal arrest? In this connection the trial judge stated ' I •.,' 4 - "In view of the submissions by learned counsel for the defence it may now bt" asked whether the militiamen were justified .in going for the accused and in arr.esting him if necessary. I think they were. First, it will be recalled that the accused had defied the village reconciliation tribunal; , in· effect ..the village government in a matter arising from-the accused's .absenteeism at shamba work •. Under -s" 12 ( 1) (d) of Act No. 21 of 1975 (since -repeal-ed) -vi),.lage governments were enjoined to encou_,rag~ village residents in undertaking and participating.-_in communal: enterpriseso And under sub-sec.(2) thereof village governments had power to do all such acts and things.·as appeared to them to be.necessary, advantageous or convenient for or in connecti,9n with the car:ry:fo·g out of their functions or to .be inciilental or conducive to 'their proper disc_harge .. :_ _-.:t' think:-,, ~1th' ~esp.act, 1 that giving suh-sece (2) it:s .true:. intendrnent, v'i.liage ·,governments' had thereby been vested wfth pow~~ to, summon ~nd secure the appearance· Of uncoopera:ttve v.illagers for the purpos~ of questioning and recond.iiationo It is Otherwise difficult to see hOW a vil.iage gove.t'.nmen,t could function effectively. It might perhaps.be argued that this power did' not include the power of arrest 'v-!hich is a judiciai power. I note, indeed, th~t under So 18 Of the Act aforesaid. specific . provision was made giving discretion to the President, where he considered ·it necessary or desirable so to do, by or~er to vest in a village government any power, including any judicial, quasi-judicial or. admini·strative power, but my investigations have not revealed.that the Presideht exercised thAt discrstion in rel~tioh to any area. I think, however, that the· absence of s~ch an order does not vitiate the mission· in the instant case, there being no·evidenc'?'of an intention to arrest the·. accused if he had agreed to go and eschewed violence. I a~ therefore of the view that the village ch~irrnan properly sent for the accused and the militiamen rightly went for him". We find it difficult to understand this passage. Obviously, according to the evidence at the -trial, the village Chairman or the village committee or the militiamen had no power of arrest, a~d the President had not exercised his discretion in granting any judicial, quasi-judicial or administrative powers to the village committee in terms of sec. 18 of Act 21 of 1975. The Chairman was not otherwise vested with any powers of arrest. The power Of arrest·and the circumstances in which such power can be exercised; to deprive a person of his liberty, must be clearly spelt out, and cannot be deduced from any so-called "intendment"... • •........ /s. 5 Clearly, therefore, the arrest of the appellant was unlawful. Learned State Attorney for the Republic before us conceded that this was so;·as he was unable to find any legislation vesting in the village Chairman the power to.arrest somebody who at,stains from village communal work. Here a show of force by the vill'age authority is evident. Four milittiamen were sent to arrest the appellant at the appellant's ·- __ own home. 'l'he appellant had not committed any act which e-:>'11.d result in his being arrested, with or without_.a warrant. Before the militiamen entere'd his compound, the appellant had w_~ned them not to approach. They nevertheless did so. The deceased was bent on arresting the appellant. The appellant tried to ward Off the deceased by beating the.deceased with a stick but the deceased and his companions were still determined to arrest him. It was only when the appellant pulled Qut a knife that the militiamen scattered. Even then the decea~ed tried to arrest the appellant from behind. It was at that st.age· that the appellant stabbed the deceased. The nppellant had acted , in self~d~fence to prevent an illegal arrest and to pr,~serve his ( libertyo It was for the prosecution to justify the arrest, and no l?wful justification was fo~thcoming. However in this case, the appellant knew why the militiamen had come for him. He knew that his presence was needed by the village Chairman and the village committee. So the purpose of the illegal and unlawful arrest was comparatively· a •minor.. rnatter •. The appellant was clearly entitled to resist an unlawful arrest,. but was he entitled to use a knife in the circums~ances of this case? Was he justified in stabbing the deceased o~ the chest? 'l'he resistance should bear some relationship to the evil to be averted. Each case has to be decided on its own facts. In our view the appellant was justified in forcibly resisting the ·unlawful arrest. However, we are of the opinion that the appellant had used excessive force in the circumstances. He could have chased the militiamen away, as he was in the process of dOing so when he produced the knifea Even when •••oo•••/6. ' I I,., 6 the deceased was tryi:19 to grab· him from behind the appel li'mt could have prevented the arrest, as the appellant was armed and the deceased was noto And the appellant well knew that all the militiamen want~d to do was to compel him, by force if necessary, to go before the village ~hairman. That compulsion was of course unlawful, but it was not a matter so grave or of such great mom_ent as to justify the amount of force the appellant had used in repelling that attempt., In our view the appellant had used excessive force in legt timate self-defence, in terms of the provisions of se_ction ·1s(B) (3) of the Penal Code. · We allow the appeal., quash t>f.~ conviction of murder and set aside the sentence of death iw~osedo We substitute therefor a conviction of manslaugh:er and since the appellant has been in custody since 1S83, we serr·ence the appellant to 3 years imprisonment8 ~· ~i.:4t DATED at DAR ES SALAAM th:f:s ~6th Liy of March, 1986. : Fa La NY,\LALI CHIEF JUSTICE A. MUSTAFA JUSTICE OF APPEAL L. M. MAKAME JUSTIOE OF APPEAL I certify that this is e. true COf,L' of the original. REGISTRAR COURT OF APPEAL CF TANZANIA