19890331 TZCA Dar es Salaam5

I I IN THE COURT OF APPEAL 0F TANZANIA ! AT DAR ES SALAAM (CORAM: MAKAME, JoAoz KISANGA 1 JoAo,•And OMAR,J A.,) 0 CRIMINAL APPEAL NOo 117 Op 1988 i''t\' ! : :MOHAMED BA.KARI N,-\CHIMBILI o Cl \ • 0 • ., APPELLANT VERSUS THEi .REPuBLICo Cl O O O O e o ., RESPONDENT i I (Appeal from the conviction of the High Court of Tanzania at Mtwara) dated the 16th day of: May, 1988 in I Criminal SP.ssions Case No., 27 of 1~B7 ---------;i - JUDGMENT OF THE COURT I· f·J;\.KAME , Jo A o : l ' following his conviction This appellant was sentenced to. death . for the mur~er of an elderly man called Abdallah Rashidi. The deceased was v,tsiting his st~p-daughter P.,W.,1 FATU HAi-'lISI at NaMikupa Village, Newala District, ~rom his' own village ~f Mako~boo, Wh~n he met liis death he was in the hohse I of a woman called HADIJ ..\ · I DAKIKA, PoW.,6, evidently for the purpo:se of having sexual intercourse with her, late at night in September, ~9850 Dakika was at the material. ' - I' tfme the wife of one Iss~ Ling 1 ande thb appellant's paternal first ! co_usin, and on the particuJ =i.r ri,,:· Ltngi' ande was not at hOme., A person I charged with_ the appellant but who was) acquitted, ISViAIL J.viFAUME,. I another cousin of the appellant, woke up the appellant very late at I night and told him he thought there wa~ a male stranger in Ling'and8 1 S house., The two accused went, thither :b investigate but they could . I not establish that there was really a ~tranger in the house so the appellant went back to sleepn Lat~r Ismail went to the appellant's I house again and this time told the appellant that thAre was indeed a man in Dakika's·hOuse. They went t+re again and took positions: j •Qoooo/2o 2 the appellant at the front door and his co-accusect at the rear. When they announced their presence, Dakika and the man inside went to the front door which the woman openedo It was common ground at the .trial that the appellant assaulted the man, the deceased, who died a few hours later. The appellant's version was that he merely pushed the dec~aso.d back when ·the deceased tried to push the appellant, and in the process the deceased fell down against a'::-wall. Mr. Ngalo, learned counsel for the appellant at the hearing of this appeal, valiantly·submitted that the ap~ellant was in fact acting in self-defence and that he should have been convicted for Manslaughter onlyo He further submitted that the deceased was so drunk that a slight push was enough to make him fall down and that the lady, PoWo6, should not have been relied on as to what went on inside the hOuse where the deceased was "war-like 1 'o Mro Boaz, learned State At~orney resisted the appeill. .With respect, the submissions by Mr. Ngalo have failed to persuade us to agree that the trial court 1 s d~cision should be upseta We found no evid€nce to support Mr. N9alo' s contention that the deceased was "aggressive and warlike" and that the appellant was legitimately defending his person~ If anythin9, the indication is that th~ deceased was in an advanced state of inebration and vomitinge Dakika's evidence was that the appellant was hitting the deceased's head on the wall and saying "Shenzi nitampiga mpaka afe. Anakula vitu vya ~atu••~ According t9 Dakika, the deceased was too drunk to fight back. Mro Boa.z submitted that from the nature of the injuries it.was right to infer that the attack was into.nse and carried out with malice aforethought~ We respectfully agree~ It indeed needed considerable for~e to inflict a cut wound above the right eye deep into the skull and cause a fr.'!cture of the base of the skull. We· are satisfied that the appellant was not defending himself from an attack by thA .deceased. He deliberately attacked the deceased and explained whya ,, 3 The three assessors gave different 0pinions but they all \.. agreed that one was not entitled to assault a person he finds committing adultery with one's hrother's wifeo · The convicti~n was well merited and the appeal agaj_nst I it is accordingly dismissed •. DATED at DAR ES SALAAM:..':this 31st day of Narch, 1989., L. M. MAKAM.E JUSTICE OF APPEAL Ro Ho KISANGA JUSTICE OF APPEAL .- Ao Mo Ao OMAR JUSTICE OF APPEAL., ,! i ·certify that th.i~\ is a true copy of the original. ,i t; ' ( 1,',\ ( JO HO nsOFFE ) SENIOR DEPUTY. REGISTRAR., \