19891218 TZCA Mwanza2

IN' THID COURT OF APPEAL OF T}•.UZiilill (CORAM: CRIMilifAL !J'PEP.L NO .. 143 OF 1989 BEI1WEEN I,filSS..4. ftASRIDio • ,,o 0 " 0 " • • • APPELL\NT .And THE REPUBLIC,. o e 0 0 ♦ • .. . ,. RESPo:rm:mnT • (Appeal from the conviction of High Court of Tanzania ' at Tabora). . (K2._r.£_§1S0g J J dated the 29th·day of .August, 1989 in _qriminal Sessions Case No. 8 of 1988 .JUDGMEJ'.IJT OF TEE COUP..T' The appellant MUSSA :P..ASHIDI i·ras cl1a.rgcJ ,nth c!l1d · convicted of the offence of murder and pentenced to death by the High Court sitting at Tabora (Korosso, Jo)o He appealed against this conviction and senten_ce complaining that the learned trial judge did not I properly and fully direct his mind to the defence of into:x:ication which he raised during the trial. Mr. Magongo who appeared, for the app_ellant at the he axing of this appeal, exhibited some uneasiness·in axguing this ground of appeal and we thought with_good reason 7 because the question vtl1ether pombe was served at the deceased's home dm~ing the un:fortm~ate _,,,J,··-~ -... ceremony was not adequB,tely canvassed. The deceased arid his family stai·ted the day well on 16/11/86. Re and; his wife Tatu Selcmani (PW., 3), were holdil1g a function to welcome home their daughter and her husbando A number of relatives including Juma Mussa (PW.2) and the appell~t were invited. When the appellant- arrived, he complained to tl1e host 1 the deceased ·who . was his uncle t:!.lat both his wife and mo the..1......... in-law had not been invited to the function., ••••• /2. . '-- 2 The de~eased 9-ssured ~im that they had been invited. 2.nd that t;.1oy were expected., The appellant appeared. unconvinced,· so he announced that since this uas the position, he wotud take to his home the food which was being prepared and he pro_oeeded to do just- that. Ile .entered the k;i.~,chen where PW. 3 and other women were cooking. IIe picked up a '.Poii of ugali and start~d .~lking away ~ith it towards his J:ie.usf_ The deceased. deemed it'hj.a duty to intervene and stop the appeliant from spoiling the -whole function. 3o he went after him and beseefed the appellant to _return the food. Then the . appellant wguJ.d not listen, the deceased struck him with a stick at the back of the head, this led to a fight between the two. This fight 1m.s settled by those present and the accused walked away .1,9 his home, which was estimated to be 194 paces away. J3ut ~ ' the appellant returned te the deceased's hous~ having·armed himself wi~h an ·a.xej P!-1.2 was standing in the doorway, the deceased was in the hiuse1 The appellant aimed an,a.xe blow at_ PW.2 who dodged it, s.r the axe struck what was described as a gJ.~ass door, thereupon the deceased mgved to seize the a.xe, but the appellant· struck him on ' .~he righi _arm and ran awey with his axe~ Tb.e deceased t1•fod to gej fut but he fell down be~ind the house._ He was taken to the nearesi dispensary where he died before receiving medical treatnent. ThE! cause of death wa.s reGorded as,' haemor:rhagic shock. In his own defence, the appellant denied the allegations saying that he had attended ~he function at the deceased' s home, btn lei)· peacefully if intexicat~d when it ended at 2 p.rn. Ee proceeded - his home whore he chatte~ with his__ father-in-law uniiil 7 p.m. when militiamen arrived ~ . and arrested him allegine that. he had killed his ' uncle Ramadhe..ni Lubamb<,. 3 It is thus cloa·~ that at the trial the appellant I s defence was a genera,l deni,: l and peThaps in the alte1·native to somo extent intoxication. Howeve:r, the learned judge having rejected the appellant I s genorc.J. denial, proceeded to eJ:amine the possilJle defences open to the appella.,."lt in the light of the evid.ence. Tie considered the· defence of p:..•ovocation a;.1d having examined it at length, c2.me to the conclusion that that defence was not nvail2.ble to the a11pella11t,. Ro gave two reasons. First he said that t::ie deceaseds' act of assaul ti..vig the appelh.nt could not be p:rovocat~ve because it w-2,s not an v.n1at,rful acto The deceased W'as merely trying to prevent the appellant from taking aw·a,y the food which l1c:,d been p:;:-epa.red fo:r his guestso To achieve this, tb.e deceased we,s entitled to use some a.r.iount of force 0 ,5econdly,. he said that even if the deceased ts act is reg;:~rded as provocative, the subs~q_uent attaclc with an axe.could not be described as done in tbe heat of passion ~s the appellant walked abou·i;' 190 me::tres to collect the weapon after the -- in-itial fight had been settled., We 3.t.,o-ree with the learned tr:i.al judge on both these conclusionsn Tlie appellants' subsequent fatal attack on the deceased was intended to punish him ·presumably for not inviting his people and preventing him from ta_king the fo'od. The ap:;;iellant did not even see...lc to challenge the learned judge I s findings on the defence of provocation,, .as indicE~ted oar lier, the appelJ.u.nt I s main comple,int in this appeal was that the l 6 c:1-1.-11,~d judge did not consider the defence of - intoxicationo Indeed this is true, but. vTG think this is not surprising as tho defence was not specificaJ.ly raised., Eo1feve:r, as a first a~pellate Court, it is still open to us to examine the issue. The appella..'1.t seems .to be saying that on tb.e particular day he had ~ drunk so muc...11. pomlJe that he became drunk to the extent which m2,de him incapa'ule of foiming a specific int0r:t to com:'it ::-.:~ r·::?c:100.· . 4 In our view, there a.re two .factors militating against this theory. Firstly, the appellant himself stated.that although he was intoxicated, he was in his normal senses. Now, a person in his normal senses must be capable of forming a spec:if'ic intent with regard to ruzy course of conduct he might choose to follow. Secondly, there was no pombe served at the function as PW.2 deposed. The ap1)ellant was therefore not tru.tJifui in this regard. In the circumstances, we hold the view that in the light of the foregoing, the ·defence of intoxication even if the trial judge had considered it, would not have helped the appellant I s position in any ·way. For these reasons, we dismiss the appeal in its entirety. I DATED at MW.ilNZA this 18th dey of December, 1989. 0 JUSTICE OF APPEl.;L '-.. L.M. MFALilJ.. I JUSI.1ICE OF AFPEAL I certify that this is a true copy of the· original. ... - '