19870507 TZCA Dar es Salaam

IN TI"E COURT OF APE1AL OF TI\N"Z.ANIA AT MWANZA CORAM: IBJ-.::'AF.AJ Jo A.:.,l MAK_fil1E, J. A. And KIS~G.A.l :f!.i}• CRIMINAL APPEAL NO. 18 OF 198p I KAJALA s/ o BWIGILI. . . . . • • • • .AHELLANT VERSUS TBI£ REPID::LIC. • • • • • • • • • • ,. RE'SPONDE1!7r (Appeal from the convict ion of the High Court of Tanzania at ~ranza) (Kor~sso, J.) dated the 20th day of December, 1985 in Criminal_§assions Csse No. l.'Lsf 128? JUDGMENT OF THE COURT The decea2ed was killed after he was stabbed with a knife ~n or about the 6th February, 1982 at Kibona Village. The Republic contended that it was the appellant who had callsed the death of the deceased, and that such killing amounted h murder. The appellant denied having stabbed the deueased with a knife on that or any day. The trial judge convicted the appellant of murder and the appellant is appealing from that conviction. P. :-J& 1 Yosia, a son of the deceased testified at the trial. P. W. l stated that he, together with P. w. 2, who was his sister, was in the company of the deceased going home on the material night. The c:toceased had purc,u<-.S•~Cl seme pombe and was carrying it in a gou.rd. On the way .>14••--~~ me·:t the appellant, who was a cousin of the deceased. The appellant asked the deceased to give him the pombe; the deceased :t.; usec, and the appellant snatched at the go11rd ,-J~;ich fell te the ground, spilling its content. Thereupon the appellant fought with the deceased, felling the deceased to the ground. Th,) apr;ellant stabbed the deceased with a knife while the deceased WRD on the grollnd. The appellant r:1n off with the knife, but in the course of running away .the appellant tripfed and fell down, and cropping his knife jn 41' fall. ........ /2. J ; 2 In the meantime P. W. 3 Anacl0ti came on tho scene ih answer to the alarm r2,ised. P. W. 3 saw the appellant on top of the dece3sed. P. W. 3 triad to intervene and was stabbed by tho appellant with the knife before the appellant ran 0ff. P. \·J. 2 and :(. We 3 •• substa_nce confirmed the account as given .\: by P. W. 1. According to the Post mortem report, death was due to circulatory collapse rer~ulting from a penetrating wound within the 5th intercostal space going into the heart. T.he wound w3s 2 cm x 4cm and it was a cut wound. It would app"lar such wound was consistent with ;its being inflicted by a sharp instrumeb,.t like a k1ife., The deceased died a day after he was stabbed. The appellant denied that he had a knife on the mat•rial night, or that he had stabbed the deceased or any body. The appellant claimed that on the material night he met the deceased ih the company of his children and several ether persons. The deceased and his companions allege'd>'that the :appell-ant had falsely accused them ,~f theft of some clothes and the deceased and his companions, numbering a•••ut 10 persons, assaulted the appeliant, who ,-ras unarmed. The appellant fought with his assailants, was overpowered, and managed ' ,, ; t, run away. Ho did not stab _the deceased. K=) also stated · 11 The knife in questhn was found .in the house of Mr-.anda, my elder brother". The appellant maintained that P. W. 1 1 P. W. 2, and P. W. 3 had all told lies ae:;aim:t him. Mr. Rweyem2:mu for the appellant attscked the credibility of the prosecution wi tr.esses. He su.bmi tted that the appellant, on his arrest . -··- -----._:'I-~ .s;iat~isd -oxi th9 e'.\ticlanc-e addueed originally in the . Primary Court t!.1at the appellant is not entitled. to the "mashamba ya 1:c1.pv.:..1.,ga 1' which he had been claiming, Tl1ose sham . bas were oric;inally owned .b,y hia grandfather Mwai babu and are now clan property, The.:, .were not the parso11al property of hiS' father Kapiteni, From I979 the appellant. regained from the respondent his legitimate inheritenee of his late fi3.ther's personal estate. Tha respondent, \ with the consent of the clan~ way back in !973 9 inherited the clan lands co.mprising the disputed nma$hamba ya mpunga. n. I. therefore dismiss this app~al with costs", This is therefore a third appeal and t~e issue before us ~s ,.i within a narrow compass. The appellant could not come to us wi th1u\ · ~:-' ce~tificatei in accordance with Section 4(2){e) of the Appellate , ~ni:risd.i.ction Aot I979 - that a point of law is involved,· The ' · appellant got such certific~te? from Katiti, J. whos with sreat re1;1pe ct misread M.roso J 9 s views quoted above o The lean-1eo. judge 1:3aid of :W.roso J 1 s views~ · n~irst, I find disturbing contradictions in that material ,, excerpt, if I read thG above excerpt right. That is, if the 0 mashamba Ja . mpu:nga 11 that were originally being under , use by the a:rplicant vs &rancl f2.tl1er 9 were the same that · the applicant gained in I979, t::wy must still be clan property, and not the a1)plicant 1 s.nfat~h£! 1 S perso.n.al,estate"t And if they were not personal property o;f the applicant'e father Kapi teni, as the learned judge se?med to thiJ.1li::, the same property could not be said to be the applicant~s "A--ather' s ..E~!:~.9..!lll-t.•~state'.' said to have been legitimately inherited by the applicant; vn/ back from I979. 1' I ' the excerpt from The learned judge wondered if 1J:1e had read Judge Mroso's ju~gemsnt right. With respect, we are of the vtew that he did not and that, proceedi:nr,; from that error 1 and basing himself an it, he wrongly certified thus~ .3 ... t~ilfhethar where i:or10vable :property has not fallen 'bona vacantia' - i.co where the interstator ls outlived 'by an heir or hei.rs, . the clan councils' ls legally competent to disinherit such hear or·.t-v;irsi in 1Jarticular in view of the provisions of :paras (I9) 1 (2I) to mention a few, I of the law of inheritance~ 2:i.1~1 S_chedule to Cap. 33Ji applicable to the place of or_-J.gin of th.is case 9 vide Goverru11ent Notice No. 436/I963., 11 That issue cannot arise. The )orsonal.property regained in I979 was the §lJJ2!?.~-~-~nt~ fath0r ~ s 1)ersonal proport7, by the a;E,Pellant 1 in the appeal before the High Court 9 who was Th()mson Mwaikamila 1 'r' ~ j t l s did not involve rrclan lands co::~.JJr.i.sing the d~~puted. mashamba _. J ya mpunga" mentioned. in I\Troso J's j_udgement. We are unable to - dis~eri1 the 'disturbing contradictions' found by Kati ti J and we tail to w;1.de~stand how the q_ues~i on of I Bone Vacantia' comes in, When si1 Niwa.i..babu died ·ths _q)..~'?,_n lands did not d.evolve on Kapteni 1 his_ 7 but went to Mwakyusa, Mw3ibabua s brother,. before it finE,lly reaehec! Kapteni vs hands. It is these sa::-;_c elem lands Anyegile, the present respondent, ·got from the clan m:Jr:.1ber;-J and which the appellant toufd not get directly from his father, smd cannot now di vest the .respc,n- dent, his deceased vs f:~ther vs brotb.er r of the same; o We are of the co,.1sidered vievv tl:u.t the learned certifyi3:1g judge rred_ in issuing. t.h.e certif~cate 2 1)ocause no point of lavv is .invol- .- ~d• When. the parties ap1earod bc3f,;ro us we indicated OlU" viewe ,. ·; 1d ·che ap;;iellant said he u.11.derstoocJ. tl1G point raised and .appreJ•- ated it. He, however, ~X:~;ressed ar_i_ot.'::i.er Grievance - that the res:;;1ondent was rir)1t now allcmia.tin:~,: tho clan l~nds to ,People who do not belong to. tho clan. To t].:r.is the respondent retorted that if that was the case the clan mer11bers c?.l1 always sue him. rhe ~espondent is r.ight. In the last analysis the parties s~1ould not have been perm.:i. -;ted to ~ome to this. Court. The al)pes.l is aqcordinr;ly rejected w.i.. th eosts •, DATED at MBEYA this 7th daJ of Fay- 9 1987. .. , ~, ~.I "'" < -.... - 4 - A. MUS:.l:AFA AG. CHIEF JUSTICE ---=-----"""---'--·""'••·-<-•-·.... -'··"•-l"'-..a.~,-·.-.... L.M~ 'MAKAlUE -- .JUSTICE OF APPEAL ..... -~~~ - A.WI. A';, OMAR ,![USTI CE OF_ ~!~R.:~b]; I certify that this is a tro.e copy of the ?riginai. • .·,fa'·-/Jlt-· (J.H. r.J.soffe) ~~t[TY ~:~GLl~RAR .