19880530 TZHC Mbeya4

•::' IN THE COURT OF APPEAL OF TANANIA AT rrJBEYA (coijiivi: MAKdE, ,J,A., KISANGA. J.A,, AND OMAR, J,A.) CRIMINAL IJTEAL NO, 34 OF 1987 ELIZA KIBAYA MAHENCE, . . . . AELANT versus THE REPUBLIC, ... ,... , , , , , , RESPOIaT (Appeal from the conviction of the High Court of Tanzania at Iringa) (Mtenga, j) dated the 17th day of - March, 1 987 in Criminal Sessions Case No. 4 of 1984 JUDGEMENT OF THE COURT KISANGAO J,A,: The appellant was convicted of murder, contray to eection 196 of the Penal Code, and sentenced, to death by the High Court (Mtenga, j.) sitting at Iringa He has now appealed against both conviction and. sentence. the apea1 before us were Mr. Bateyunga for the appellant and Mr. Senwaji for the respondent Republic. The killing was admitted § but the facts conprising the immediate background to such killing were in dispute The appellant is the son of the deceased. The deceased. and his wife fell into a misunderstanding which led the deceased.ts wife going to stay with her son, the appellant. The deceased.resented this. He referred the matter to the village elders for reconciliatioi but in vain, and so. he filed a suit in court claiming damages against the appellant for keeping his wife away from him. While the suit was thtis pending in court and with only about three days before the date of judgement, the deceased. brought yet another complaint before the elders claiming that the appellant -2 - vea tiax-resting po±ó€s from his (deceasedts) shamba and consuming. them thus depriving the deceased thereof. The elders were 'equally unable to resolve the dispute. After the meeting of the elders had thus failed to resolve the dispute that morning the meeting dispersed and shortly thereafter the deceased visited the home of a relative (P.v.3) where he and one Elly )Tbiliñ3ri were served with a meal. The said. Elly was not called to give vdence; more will be said, about this latet on in this judgementt As the deceased and Elly were having the meal in the house of P.W.39 the prosecution claims that the appellant came and brutally attacked the deceased to death using an axe which he had picked outside the. house of P.M. - The appellant in his evidence on oath stated that on arriving at the home of Pw.3 he found the deceased and. Elly having a meal in the house, but on seeing him the deceased went out and presently returned, with an axe, threatening that if the appellant did not pay him the compensation for the adultery with his (deceaseds) wife, he was going to see him Whereupon the appeliant snatched the axe and with it inflicted cut wounds on the deceased killing him. The appellant summed up his defence most süccintly by scying "1 killed him bucause of the fact that iic told me to pay compensation 'because of adultery with rr mother to bean insult and secondly when the deceosd cam in with the axe, I thought he was goind to kill me so I acted on self deftnce. I killed the deceased because he provoked me by telling me that I had committed adultery with imj mother and also I acted. on self defence". After due consideration of the appellant's defence of provocation and self-defence, the lechned t±ial judge rejected them as being an afterthought, and accepting the prosecution version of the incident he found the appellant guilty as charged.. ./3. -3- Mr. Bateytuigals subiesjon fore ie was essentially that -.-----.-- . the appellarytts defences of provocation and self-'defence were wrongly rejected, and that on a proper evaluat ion of the evidence, those defences were open to him. On the issue of self—defence counsel pointed out that the learned judge misdirected himself and the assessors by taking the view that the use of excessive force negates the defence of self—defence and renders the prisoner guilty of murdr.. His djso±4.on to the assessors was in the following terms "In law one has the right of self—defence but there should not be an excessive exercise of the riht of self—defence 1 If the right is exercised e;:cessiveJr then one is guilty of murdera'. AM in his udement.. the learned judge sa id "If at all the deQed attempted to attack the accused, the story which as I said earlier on that I reject, the force used by the accused was excess tve.". It is clear from this that had the learned judge accepted, the appellant's story, he would still find him guilty of mwder notwithstanding the use of excessive force-i We a'ree with the learned counsel that this was a misdircction It is settled lw that whore..; selfdefence is set up in defence but i is shown that the prisoner used exeessive force in the exercise of that defence, this has the effect of reducing the charge from murder to manslaughter. The authority for this is section 18B (3) of the Penal Code which provides that, "Any person who causes the death of another as the result of excessive force used in defence, shall be guilty of manslaughter.". Thus in the present case if the learned judge had found that the defence of self—defence was open to the appellant but that the appellant in exercising that defence used excessive force, then it was open to him to find the appellant guilty not of. murder but of the lesser charge of manslaughter. Such misdirection, however, was completely harmsless because the learnccl ju;s has made it quite plain that the defence of self—defence was not open to the appellant in the first instance, that is to say he rejected the appellant 's story that the deceased had attempted to attack him. Sothat had the learned jtdge properJ.y directed himself on the law, he would still have come to the saire concluion closely connected with this is the question whether on the evidence the learned judxe was entitled to reject the apeUant's story. We thInk he was. If the appellant kilJ.d the deceased because the deceased wanted toattack him wit the axe, that was a very good, defence, and the uld naturally be expected to disclose it to his relatives, the villagers and the polioe when he explained 'the killing to them. It is most odd, however, that he did not. Iis only explanation to these people was escentially that ho had killed, the deceased because of a misunderstanding between him and the deceased, and because the deceased was bothering him. The appellant's story that the deceased had attempted to attack him was disclosed for the first time in his defence at the trial4 This was clearly an invention, and the learned, trial.judge was perfectly entitled to reject it, as he did, as being an afterthought, Secondly the evidence shows that the appellant inflicted, inter alia, a out wound on the loin at the back of the deceased, and the appellant in his defence stated that this was the first out wound he inflicted, on the deceased during the attack. Such a blow is not reasonably consistent with self-défence on the part of the appellant. Rather it is conitent with an attack on the deceased unawares from behind at the time he was having the meal. Again if the deceased had uttered the threat that if the appellant did not pay the compensation for adultery then he was going to see him, p.w..3 who was within.a hearing diatance would have heard it, but the witness testified that she did not hear it she only heard a hitting sound or noise s . . - 9/ . &rteq s pO3.X iqttt 38pnc EtJ- P tJ091 Oqq. 4eLl0I 3UT14 3M 3T9 U3At2 suosega aqj 1O tn- e ewtq. s.rtj 3 .103 p90EOSp sem ou3L q.et jue-L -Ladde 9T40 OOr tI3dO4OU sem gougjap q.t4 et4 )UtT4 3M 'UO1300A0 3uTuxnj, JO 9OU3J3p 9t] Oq. MOU ao uo noao.1d eqq oajja kj1[E4e1U T40qM -JOU9.X3JUT tie Jo UTM.XP aqj 00. 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G00U8A91 Gt( UTJ9J9J 10 ?txpje UT PDAaTTaq O1.1k 1.10W e 001k PDGea09P oqq. q.eq. 0M0140 9ouep43 aq .&TjGUTJ pr - -7- In the result we are satisfied that both d±endes were It rightly rejected. The appellant's conviction ws sound and we can see no reason to ±nterfere. The appeal is occord.in'ly dismissed in its entirety DATED at MLSYA this 30th day of Mey, 1960 L. N. EIAKAME JUSTICE OF AFPEAL R. H. IaS.ANGA JUSTICE 0111_APPEAL 0 A, N. A. 3MIE JUSTICE OF JPIIJ I certify that this is a true copy of the oiigthcl (J, H. MsoP:) SENIOR DEPUTY PGISiU.