moses mungastani mlaizer chichi vs the republic 1994 tzca 57 28 november 1994

IN THE COURT OP APPEAL OF TANZANIA AT ARUSHA (CORAM: KISANGA, J.A. , MNZAVAS , J.A. , And MFALILA, J . ^ ) CRIMINAL APPEAL NO. 99 OP 1994 BETWEEN MOSES MUNGASIANI LAIZER @ CHICHI. . . APPELLANT AND THE REPUBLIC............ .. RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Arusha) (Mushl, J.) dated the 4th day of September,1992 in Criminal Sessions Case No. 16 of 1991 JUDGEMENT OF THE COURT MNZAVAS, J.A.: The appellant, Moses Munqasiani Laizer Chichi , was charged with and convicted of murder c/s 196 of the Penal Code and sentenced to death. Dissatisfied with the decision of the High Court he has come to this Court. Mr. Mwale, learned advocate, appeared for the appellant while Mr.Mwaimu, learned State Attorney advocated for the Republic. Mr. Mwale essentially argued that on the evidence before the High Court the learned trial judge should have convi.cted the appellant not of murder but of the lesser offence of manslaughter c/s 195 of the Penal Code as, it was submitted, there was a fight between the deceased and the appellant before the latter fatally attacked the former. The learned State Attorney on the other hand supported the conviction for murder arguing that the appellant had ambushed the deceased,' PW.i and PW.2 in an attempt to commit tfte offence of robbery. 2 In this case the conviction of the appellant for the murder of the deceased stands or falls on the evidence of PW.l and PW.2. According to the evidence of PW.l on 28/7/91 he at about 9 p.m., was in the company of the deceased and one, Florida Ndosi (PW.2) at Kivulini bar quenching their thirst. They remained there for a while anti left to Tanta bar. As they were on cheir way to Tanta bar the deceased and himself were assaulted by two people whom they identified as Chichi, the appellant, and one, Simon Alfayot When they asked their assaillants why they were attacking them the assai11 ants attacked them all th-^ more and the appellant took a knife from inside the pocket of his jacket. At this juncture the witness told the trial Court that he ran away to enlist assistance from his watchman, (PW.3) - And added "I left the accused fiqhting with the deceased while holding a knife. PW.2's testimony was to the effect that after Kivulini bar they left to Pi/.l's place of work and that as they were going two young men came from the side of the path and slapped the deceased on the shoulder. The deceased asked the young men why they assaulted him and a reply came from one of them - "Tunataka kukunyang'anya pesa". The appellant said in his defence given on oath that ha was also at Kivulini. oar on the material evening drinking. From Kivulini bar he went to "Baa ya John Lema" where he drank beer. From there he proceeded to a hotel of Mama Elizer. Thereafter he went home accompanied by one, Simon Alfayo. On the way they met three people, two qentlemen and a lady walking at close—range; the lady being in the middla. He recognized one of the men as Elibariki, (PW.l). According to his defence he greeted them in a perfectly proper manner — "Jamani habari ya saa hizi" but they did not reply. ,He a]l the same touched the lady's shoulde^r and said to her - ’’Naona leo uko na akina Niko". PW.l is said to ___ /3 3 have replied - "Kv;ani unamfahamu huyu mwaramke", jumped on the appellant ard held him by his shirt ard at the same time the deceased hit him with his fist and fell him on the ground and held him by the neck. According to his defence it was when he was being held on the ground that he pulled his knife and stabbed the deceased i.r self—clefence. In finding the; appellant guilty of the offence of murder the learned judge said inter alia: -- "In otlv;r words the accused cannot be hoard to say that he was overpowered ard therefore justified to stab the deceased so as to reduce the act of killing to that of manslaughter as found by the assessors in their opinions. It will be an extremely bad precedent to a1low someone to deliberately and with unknown motive to attack another person and in the course of the ensuing strungle the cttack>r should be hoard to say that he has been overpowered and thus ertitl :d to kill the other person." In this case both the evidence of the prosecution and the defence case is ad idem that the appelant, PW.l and the deceased were drinking at Kivulini bar. It is also clearly brought out from the prosecution case and the defence that the deceased and the appellart fought on the material night. As for the learned State Attorney's submission that the appellant ambushed the deceased and his companions and that he committed the offence of murder as he was attempting to commit the offence of robbery we are far from berng persuaded by this argument. If the appellant had in fact decided to commit robbery he could not have been so naive as to say, to his victim - "Tunataka kukunyang'anya pesa" s 4 bearing in mind thnt the appellant, the deceased and PW.l were fellow villagers. That he would have decided to expose himself in suchmar.nor is, to say the least beyond our comprehension. If he ir fact said so it was, in our view, more of a drunken froth than an intent of malice. Coming back to the question of the appellant and the deceased having fought it was, in our view, a misdirection on the part of the 1,-arned trial judge when he said: "Even if I was to find that the deceased's death was caused under the circumstances described by the accused,. I would still hold that the death of the deceased was murder. This is because the accused having been the one who started the fight he cannot turn round and say that he was acting in self-defence." This was a misdirection because if appellant's version was accepted the defence of self-defence would have been available to him. It has been said times without number, and we would like to reiterate that where death is caused as a result of a fight an accused person should be found guilty of the lesser offence of manslaughter ar-d not murder. See the decision in R v JOHN WIMAANA (1968) HCD 49. May be it is not irrelevant to mention if only in passing the defence case that the lady, (PW.2), in some ways sparked the fight between the deceased and the appellant. This defence was apparently not adverted to by the learned judge in his judgement. After our close review of the evidence tendered before the High Court we are satisfied that the question of appellant's guilt regordirg the charge of murder "is so complicated and uncertain that the Court of first instance ought to have felt some doubt about it" - R v RAMZAN AHMED JAMAL - (1955) 22 EACA 504. • ' ' ' : : s On the evidence we are not surprised that the assessors were 5 unanimous that the appellant was only guilty of the lesser offence of mans!cughter c/s 195 of the Penal Code. In the evont the conviction for murder is hereby quashed and the sentence of denth is set aside. In substitution therefor the appellant is convicted of the lesser offence of manslaughter c/s 195 of the Penal Code. As for the sentence to ba imposed the appellant used a knife in killing the deceased. The use of a knife in a fight is always a tolling fnctor against an accused person. The appellant is sentenced to 10 yoars imprisonment. DATED at ARUSHA this 28th day of November , 1994. RoH. KISANGA JUSTICE OF APPEAL N.S. MNZAVAS JUSTICE OF APPEAL L.M. MFALTLA JUSTICE OF APPEiiL I certify that this is a true copy of the original. ( E.J. NYAMASAGARA ) DEPUTY REGISTRAR