19890719 TZCA Dar es Salaam4

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CRIMINAL ,\PPEAL NO. 24 OF 1989 BETWEEN N, ALEXANDER NICHOLAS • e ., .. .. • • ., • o .. o ., • APPELLANT A N D THE REPUBLIC .. .. ,, • • .. • .. ., .. • .. .. ., .. • • HESPONDENT (Appeal from'the judgment of the High court of Tanzania at Moroqoro) (Masanche, PRM - ExtP.nded Jurisdiction) dated the 25th day of June, 1988 in Criminal Sessions Case No. 58 of 19R6 MFALILA, Ag. J .A.: The appellant Alf'!xander - Nicholas was convicted of murder by the --' Principal Resident Magistrate Mr. Masanche exercisinJ Extended Jurisdiction and sentenced to death. He appealed against both th~ conviction and senten~e o+= death , arguing ' that . · . in the circumstances surrounding the killing, th~ trial Principal Resident Magistrate should have convicted him of manslaughter and sentenced him accordingly. After discreditid:.ng the evidence of Alfred DOminik1 (PW .1) as a hostile witness, for reasons whioh we -b!.ink were extremely inadequate, the prosecution was left with only o~e eye witness \ \ " Nestor Cyprian PW.6. This_witness told ,th~ trial court that 1:: i.: on the day in question, he, the dece.~sed and PW.1 Alfred were in l'.· !j· the shamba picking tomatoes when the appellant arrived. h' it. • I:.. t', . l; !. j ' brothers, the~ appelJ.,c::nt is their maternal uncle:. As the ·-tl-t;.-e~ of them were o:lcking tomatoes, the appt£J_Jiant arrived c.1c to th·:ir surprise he ,•;as shouting 11 thie:f 1 thief! 11 for there w-1s no onr'! being chased as a thief. On a.i::-rival at wl,i::;re they WP.re; th8 appellant asked the dece~sed where his~ appellant 1 s, g~een peas were. ':Che d,,ceased replied that hr, d::Ld not know.. Thern.:pon tha appellant hs:-.ld the deceased by t:he hand and slash12ci h::.. , throat. The deceased ,~xtr:icated ld.mse·1--1 -cnrl 3ttemptec to run aw,,y with th-2 appellant in pur.::,uit. The deceasPd fell ciown 1 ,chereupO!\ i::he appellant cGnt.inued to slash h:l::-1 with a pangan The dLceased This was ~~c prosecution v2rsio~. ' and after tJ-:c sr>cvice he ret:.:;rncd hc;,12 only to be toj_('~ b1at his house 'had bee,: ~r·Oken ::Lnt:o and :,is g:.·cen peas stolen~ ~'. t would appear that his prime suspects w~re his nephews, for he ~011owad hidden in th~ ·;irass 9 -th@. dE,ceased ::-ushed towards h:Lm a:-,J hit him on the heai with a panga. BOlt 5PJ.l into a water po~d, thP. deyeased puJ }.ed out c. kn5.fe c.nd 'i·:ahted to stab him but h-: managed to s:1.a+_.ch i t from him and st3bbed him on the nen:::., The appella:c_t .. :he:::-efore advansed th,1 defence: of sP.lf dl~f,~r,ceo T}1is was reji:cc ted. by the learned td ::il !<c5.nc:i.pal Resid•~r.·:: Magistrate wr,c preferred the version :.:-, own ·nephew Nestor Cyprian (PW.6). After accepting the evidence of PW. 6, we do not SE~e how any other conclusion could be possible. At the hearing of this appeal it was submitted on behalf of the.appellant that the trial court erred in no:t considering properly the fact that death was a result of a fight between the deceased and the appellant, which if properly considered would have reduced the conviction to a lesser o:r:rew,q "':/: i,,,,. ... ,,, :'lnqht-.~.-:-- The appellant's version suggests th;;.t the deceased went to pick tomatoes armed with a knife and a panga which the appellant said was stolen by the. deceased along with the peas. This to us appears unlikely and we agree with the trial Cot~r.t which accept2d the prosecution version that it is thf'.! appellant who wen·:: to the scene armed with a knife, panga and a rope•• · W~ alsc dO not accept the charge levelled at the trial that they did not adequately consider the appellant's defence of self defen~e. The learned Principal Resident Magistrate ealt with this aspect of the case at page 32 stating: "Having held that the knife and the panga belonge1 to th; accused, it now remains to consider whether in the circumstances of the case the defence of self defence can be · availed. I think it cannot., The evidence on record is thait after the accused arrived at the scene, he pulled the deceased thre-.; stE>ps aside and there stabb~d him on the neck. The rleceased ran, as if in frenzy, but the cteceased (sic) held_ persuit and st1bbed the deceased on the legs several t::.mes. I see no evid9nce to show that the deCec:GGd st.rue'.: first or that the lifa of. the accused was at stakeo Indeed there is motive in this case in that the accused came all the way from his hume with the aim of punishing the deceased whom he had heard he was the thief of hi.s peas .. i;. In our view nothing could be clear from this pass~ge than that the trial Court considered and rejected the allegation of a fight and that the deceased was the ag~ressor. On the evidence \ .• •• · ·~.... /'4 \ \ i... •. '- we see nothing wrc.>ng with ·these c.:inclusions. rt is unth:i..nkable that the deceasP.d cuuld have attacked the appellant with a panga: simply because his uncle had asked him whether he had seen his peas. · In· any case the deceased had no panga with which· tc, attack the appellant. As to the head injury suffered by the appellant, he could have suffer~d this at the pond where most likely he fell down in the course o~ attacking the deceased. In any event one of the witnesses described this as no more than a scratch. The appellant stabbed his nephew on the neck and legs with -~ lethal weapons believing that he had stolen his peas. He merely suspected him, and this could not even amount to provocation. ,...-·-::·::. ":;:;:[ A FU~ t.A. ,. In the cir,/~lane~s .. _we,(agree with thr~ trial court that the . !:; . ·,, ,, .•,~ . 0 1 ~- d. /'·"- '· \, killing of . ,'"'~ ciece·a"s'i=ld·· amounteC\ to murder. t~•>'.1 !' . . . . Accordi ;:~ly the appeal la~~~l.meri t and we dismiss i to .... , / 2: ·' I DATED a~\.'b.AR ES SALAAM .,.. fr.f1.s 19th day of July, 1989 • /'lir./ \ Y. ,·\ Vo ·1/ ~ - L. M. MAKAME JUSTICE OF APPEAL Ao M.A. OMAR JUSTICE OF APPEAL ,. \! ~ ( J. H. MSOFFE ) SENIOR DEPUTY REGISTRAR