19900511 TZCA Dar es Salaam

IN THE COURT OF APPEAL Op Ti,NZANIA J,T DAR ES SAl.hAM K~-~!l~~ JO i~ ~ z j~i1'Mi1DHi\NI z J.1\.,z And MFALILi-, 2 J.A.L_ :,: CRIMIN,\L APPEi',L NO. ee IF 1989 hi,JJ,BU i,BDl,LLAH. o • • • APPELLANT ver~us THE HEP UBLI C • (Appeal from the convict~on of the H:i.gh Ccurt of T-:1.nzania cit Mtwara) (ky:rndo 1 J.) aatert the 7th rlay of ·March, 1989 in f.ciminal Sessions Csse Ne. 29 of 198• JUDGMENT 8F THE <;:~HT T~c nppcllant Wai!: eanvicted on two counts ui,_der section 191 of the P ::mal Cc(E' fer the murder of ohe Ahemadi I!sa Malhiusi and on2 Amina Allyo The rtecea~ed persons were son and mother ~ respectively-: The appellant was ee.ntenced to rfoath in respect of ,. the murier of hl:;:r.'.cCi Is1'a Malimusi; and he has now appealed against both the convicticns and the sentence. In this appeal he was represant,2d by Mr o s. H. El-Maa-.ry while the respondent Republic wa~ repr~sentec by ~r. M. J. Kamba. The facts ltacing to the trapic events may be su•marized briefly t ,i, as !'oll8ws:- On th£ day o!' the iniidedt the appellant and the deceasei l\hamadi returned home together at night after havin! had s.om..:~ drinks.. Gn arriving at the home of 11!1e deceased they - .2 - quarrelled and fought but they we~e separated. The appellant was escort-,ld home and everybody thought that. it was all over.- .. In the meantime the decec.SE·d picked up another quarrel with his, mother Amina,. the other deceased 1 but that quarrel also .was put down. P.W.1 and PoW04 were among those who helped to put down the quarrels., PoW~1 was the husband of the deceased Amina and step father-of the dec€ased Ahamadi Issa~ After the second quarrel was.put_jown the two deceased persons plus P.Wo1 i'!nd P.W.4 gathered together at the home of P~W.1 '·,here they started discussing th,~~ c2uses of the quarrels and_ the figh~,. that night. Then as they ,·10.re coing so, the appellant suddenly appeared on the sc~ne and atb-,c1(~ c'. A~;::imadi with wh'at was described as a "qongon. When An\ina tried fr:, intervene the appellant also attaa1<ad her l;lsing the same "£ongo".. Both deceased sustained serious injuries following the attack inflicted by the appellant, and di:d 0 niy a cay or two afterwards. as. a result of those injuries •. rh8 appE:llant 1 :::; defence as contained in his evid2nce at the trial and in his extra-judicial statement is essentially one Of provocati.ono In bot;1 versions he 'maintaitih that there was only one: incic1 ent of a quarrel and a. fight that nigh~. According to him this is the incident which happened pt the hOm8 of the dE.ceased Aha;nadi Issa~ In his evirlence in. court h2 claims that while he and Ahamadi were engaged in the struggle with each other, the deceased Amina ca~e and intervan~d but Ahamadi tempor~rily abandoned him,_picked up a Dtick and ass8ulted Amina with it; it is from that assault that A:nina (~iedo After thus assaulting Amina, Ahamadi resum~d .•.•.•/3 ... _;, 3 his ass3ults on thE appellant in the •~urse of which the appellant p~ck.~i up a stick and hit him with it after wnich the fight was put down, and PoW.2 and P.W.3 escorted him to his house. He denies •0mp1,~taly going back that night and having another encounter wi -.!1 the deceased persoris·o · :tn his extra-judicial statement he made a · slight :ieviation by saying that it :ts he who assaulted the deae:a~eri I• Artina .l\.lly v1hcn she tried to 1-j~~rve~e during his fight wi ~ All~adi Iss:<;i, 1:>ut o.t 'chE. trial he cilsowned that part of his statement and · impli8'i that that part of thE? statement was added by the justice of t]:l:= peace who ntcrcted i L The trial court accepted the prosec :1tion version and!, rejecting the defence, convicted him accor1ingly .. In his memoran<um of ~~peal.Mr. El-Maamry filed five grourds of aLJpeal in 1Jhich ~e raises .. s'ubstantially the following issti-3s, namely, thE.~ identification of the appellant as the person who inflictec1 tht fatal blow: or b}ows on the deceased pers?ns, provocation, ::.1.runke:nness and accident. On the first point Mr. El-Maamry urgec us to find that after ~he appellant was escorted to his hOuse following the fight with the deceased Ahamadi at the ho~e of ti1e latter, he fid ndt return to PiW~1's home to renew his enc-::,untcr with the decea~ed Ahamadi. . He submitted that J\ham::iii and Amine: may well have been attackerl. by some other I person or persons 2t the home of P.W.1, but it was assurneo · that it w~s the 8pf~llant who did so simply bec~use of his earlier fight with the deceased Ahamadi at the home of the lattero In support C·f tthis subm~ ssioh the lE)arnect counsel relie1 0n the cvic1ence of P.W. 3 who ·stated that the incicient ,: 4 ha~pen~d on a derk ~ight which, in the opinion of counsel, ciict not f':\V·JUr correct ictentification.. However, we can find no subst~nca in the subrnissioh. At the time of inflicting the fatal :1ssaults, the c>ppellanf:nwas identifieci by P.w.1 anrl P.W.4 who knew the appellant well as a fella~ villager. P.W.4 identified th-~: aprellant by voice when he spbk~ttott~e deceased Ahf!ma1i as he struck him with the "gongo". Furthermore, according to P.d.1 the appellant rlid not leave the scene immediately after the nssault. He remained at the scene until P.w~1 returnei there ofter reporting the matt~r to the village secret'iryo Th21t provirled ample opportunity for ictentifyin1)' the appellant correctly. rbe submission on provocation is equally devoici of merit. it abunJ.::mtly clear thcit the appellant had two separate encounters with tpc deceased Ahamadi that night. The first encounter w,Js at the home of the deceased Ahama<li 'and the ... secon·i one wc;;s c1t the home of P.w.1. The evidence further shows clearly th2t the fatal assaults inflicted on the deceasa1 during thL seoonrt encounter were completely unprov~ked in thet after the first fight:was put ciown and the eppellant w~s escorted home anrl everyone thought that it w3s all over, the appellant in a fresh move returned to the h-)use -of F aWa1 where he carried out su<iden anci unprovoked attack on the dece2s-ec persons. In these circumsbrnces the . trial c~urt rightly foun·o that the defence of provocation was :. 0. 0 • /5. I Nor dO \'Je fine any merit in couhsel 1 s submission on the issue of intoxicc'ltion$ · i,drnittedly ·the appellant had harl. some. drinks on the ·i."ly of the:: incic'.e•nt and he, in his. ·n.efence at the trial' ·claimed that h~ wns crunko But there is evidence that after the appellant· was esc~rted to his hcuse, h~ was able to trace his ~ay back, on that :h.rk night, tc. the home of P~W.1 which, from the sketch plan (Exh.P o 2), is shown t0 be some ~40 p-:ices away. •Furthermore u·pon reaching the home cf F.W.1 he wns able~? select or pick on his target, · the c~cce2sE.:C' Ahamadi t on the same dark night, out of the four p3ople who h2c gathered there to discuss the·cause of the disturbances that night .. Such o'Jnduct coulo not .oe saici· to be cc.nsistent with a person who w·as so rl.runk as to be incnpable of forming the intent tb kill or cause grievous harm.;. the deceased l\lTiina, the appellant it.n'.l(':)c her: only aocidentall.y when she tried tc sepbrat~ the appellan~'from the de~~a~ed Ahamadio But it shc.uld be apparent that once we have ft>und that th8 appellant was escorted home after the .iirst fi~ht* and that he inflicted the fatal injuri~s only·upon hi~return to· the h'.)me cf F.wo1, then that .submission can have no relevance because when the appellant seti out t0 return to the house of P.W.1 ha already fcrmed the intent to kill or cause grievous harm;; a!'ld it is immaterial that he executed that intention. on Amina who was net the target of the attac'c· •. · And lastly Mr. El-Maamry complained that no post-mortem examin:1.tion report Wes put in evidence tn respect of the ), / 6 dec.3ased Ahama'di Issa o There was one .~ua:i report ~nly in respect of tha dGceased Amina, and yeb the appellant was sentenced-~o death on the count of rnurc'1ering Ahamadi I,gS8:• If we underl5tand the learned .r couns31 correctly, his complaint was that cause ·61 death was not ;. establi sh2d.. With c'1ue respect., however., that complaint wa~ totally unfoun·ie'.io As for the deceased Ahamadi Issa there was abundant evid:anca that the aprel lant ~it him on the head twice with a "gongo"; the de:::ceasec' fell dowr;l as a re~ul t and remained there in a serious ccnditio~~ntil the following mor~ing whe~ he wa!'i~~G:.-,1ovc,c~ to the local dispensary, bub on arriving at the dispensary he di0C even befor~ he could be attended. It is apparent that although the dead body wai. taken to hospital, no post:-mort2m exc::mination w·a:3 carried out. For, P.W.t b~stif'"ied that he accompanied the body b".:l Mkomaihdo hospital and identified it to the joctor who c'.id not, however,. examine i ti... No reason wait' qi'tan for not conc>ucting posu..-mortem examination o~~e d~ad beldy. ,:·;. ~1at was cl~2rly wrGng; the doctor should have perfolimed a post-mortem axa~instion or reasons should have been. giveri • why such ~xauinc.ti.cn could not be performed •., But having said that, it is obvicus that thP. absence of post-mortem examin:1.ti:>n rc.!i)Ort is. cf no consequf'!nce at all here. It wasn:')t nc:ccssc::ry for the purposes of ascertaini~g cause 0f deutho 'Ihe evid•:,nce of the persons who eye- wi tness,3d thG incident>-;- clearly establi~hes, tha11 ,.bh.e de~eas,3d Ahi3Illadi Issa died directly from the injuries· sustained during the atta~k on him by the ~ppellant •. .'i.s for tht:: cE:cea~e_d Amina also. there was ample evidence thnt the appellant 1. u~j,n~ the ~ame "gongo" he • •·.•·. 0 . /, 0. /7 . . .' 7 used on Ahamnc:i, hit her on the jaw, on the tummy an<i on the loin. horri•·· This w:1s 1ii'Ji/lft~f ou·t: by the post-mortem examination report which shows that sh2 susta:i.r ,:·c' three fructured ribs~ a frr1ctured jaw and had a swelling on th~ left sine of the trunk. The eye-witnesses' account was thnt after the appellant had inflicteci these injuries, the -i'3C:::!ass:d Ar.~ina was rendered in a serious condition and that she 1ie.1 in h:.>spi tal cnly a day or two after the assault::;. In his or,11 evid0ncc in ccurt the do::::tor ~ho conducte<i the post- resulting from.the injuries which he fctind and listert.in hi~ report a::i summ':l.rizccl abcveo In the li,zht of such evid.er,-:::>, we coulct find no rJ0m f0r duubt as tc the ~au~e of death of Amina either. In the lf.:st anr'llysis the appellant 1 s conviction for murct~r ~~both ccunts was amply justified, and WA can see ' no ground for c v m y . ~ ~ a t i s f i e c t that the appeal \ t is CJm~le t c 1 y d 7/: ~cic' o f meri· t an · 1..,.1_ 1\ !- ,..... is - .., • l"' • accor~:ing· -'i sm i sse d x ,1 . ...,. . \~ in its entirot \'I.. -~ ..,~,::· . ., . •\_, \- ,~, ') i.rED ::'t Oflj'(• E,S S11LAr\M tJ'l'j~~ 1:::~ day of "' May, 199C~ ,-< .. \/ '-:--...~--.---· '-:: -4' . . ~ ~~ R. H. KISANGA Jl! STICE OP APPE/\L \ JUSTICE OF APPEAL --·-------~------- L. M. MFALILA -.-c.-~---OF APPEAL JUSTICE ':rU·?. copy of the originale ~-t'·i/1 ( J. H. MSOFFE ) SENIOR DEPUTY REGISTRAR.