saidi abdallah vs the republic 1994 tzca 58 7 october 1994

IN THE C O U R T OP A P P E A L OF TANZANIA AT P A R ES SALAAM (C O R A M ; KISANGA, Aq. C . J . . O M AR, J.A., And LUBUVA, J.A.) C R I M I N A L A P P E A L NO. 130 OF 1994 BETWEEN S A I D I A B D A L L A H ............................... A P P E L L A N T AND THE R E P U B L I C ..................................R E S P O N D E N T ( A p p e a l f r o m t he c o n v i c t i o n and s e n t e n c e o f the H i g h C o u r t o f T a n z a n i a a t M t w a r a ) (M k w a w a . J.) Hated the 4 t h da y of F e b r u a r y , 1993 in Criminal S e s s i o ns C a s e No. 4 of 1992 JU D G E M E N T OF THE C O U R T OMAR, J.A. ; The appellant Saidi Abdallah was charged with the m u r d e r of his fellow worker Saidi Hassan Mnanila and w a s c o n v i c t e d . He is now appealing. The p r o s e c u t i o n led e v i d e n c e to the e f f e c t t h a t on 16th April 1991 at P u n g u t i n i Village in Kilwa D i s t r i c t the a p p e l l a n t and the* d e c e a s e d took their meal tog e t h e r in the house of PW.l where they were employed as s h a m b a b o y s . PW.2 the b r o t h e r of P W 1 w a s pr e s e n t too during meal time. Both PW.l and PW.2 heard the appellant entreating the d e c e a s e d to go with him to t h e s h a m b a to c o l l e c t b u i l d i n g poles. At first deceased refused but the appellant insisted, so t h e deceased turned to P W . l and P W . l p e r m i t t e d the d e c e a s e d t o go. The two then d e p a r t e d f o r the c o u n t r y side; the appellant borrowed a b i l l —h o o k f r o m P W . l and took it along. Shortly afterwards a loud sound w a s h e ard by PW.l and P W . 3 and the c r i e s f r o m the d e c e a s e d screaming that Saidi w a s k i l l i n g him. 2 PW.4 Sikujua d/o Pengere who was passing by at the time, saw the appellant running very fast to the b u s h and w i e l d i n g a bill-hook, and a distance ahead she saw the deceased lying on the ground, he w a s a l r e a d y dead. In the c a u t i o n e d statement before ASP M a t h o in the C.I.D. Office at K i l w a Masoko the appellant confessed to killing the deceased by cutting h is n e c k on the right side with a bill-hook. B u t h e Hiri s o b e c a u s e he suspected that the deceased and h i s c o l l e a g u e s h a d hatched a plan to k i l l him. In his d e f e n c e the a p p e l l a n t agreed t h a t he and deceased w e n t out together that fateful day but on the w a y the d e c e a s e d tried to throw him to the g r o u n d b u t he the appellant managed to e s c a p e f r o m hi m anH ran a w a y he_ w a s not carrying a bill-hook and PW.4 who said she saw him r u n n i n g armed with a bill-hook was lying. The appellant then said that he did not k n o w who killed the deceased. Mr. Mkongwa the l e a rned C o u n s e l for the appellant submitted that the learned trial judge erred in law and in fact by finding the a p p e l l a n t g u i l t y of m u r d e r instead of manslaughter. He added that the a p p e l l a n t w a s a c t i n g in self de f e n c e f o l l o w i n g w h a t he p e r c e i v e d w as a serious threat to his life, he t he appellant dir* not; d e n y attacking the deceased. Mr . Matupa, the learned State Attorney, on the o t h e r hand supported the c o n v i c t i o n of m u r d e r and he added that it w a s well founded because it is c l e a r that he w a s v e n g e f u l from the w a y he p u r s u a d e d his victim to f o l l o w h i m to the forest ostensibly to h e l p h i m (the appellant) cut building poles but actually to a f f o r d him (the appellant) the opportunity to kill, which he did at the f i r s t available 3 opportunity. We agree with the C o u n s e l for the Republic that the defence o f p r o v o c a t i o n is not available to him. If the appellant perceived any threat to-his life he should have quietly disappeared from his place of w o r k i n s t e a d o f doing w h a t he did. If people were t a l king in r i d d l e s s w h i c h made him understand that they were saying that they had him in their grip then t h a t c o n c e p t i o n is not p r o v o c a t i v e enough to lead him to c h o o s e one unsuspecting person and lure him to his death. We find on this account t h a t the appe a l is d e v o i d of merit and so d i s m i s s it in its entirety. D/iTED a t H A R E S S A L A A M t h i s 7 t h d a y o f O c t o b e r , 1994. R.H. KISANGA Aq. CHIEF JUSTICE A.M.A. OMAR J U STICE OF APPEAL O.Z. LUBUVA J U S T I C E OF APPEAL I certify that this is a true co p y of the o r i g i n a l . ( M.S. " S K I G A L I ) DEPUTY REGISTRAR IN THE COURT OF APPEAL OF TANZANIA AT I' A (CORAP: RATADHANI^ J. A. . SAKATIA. J.A. . And LUGAKINGIRA. J. A . CRH I ’ AL APPEAL NO. 131 OF 1994 BETi/EEN KILLIAN K D E M D E M * APPELLANT THE REPUiiLIC RESPONDENT (Appeal from the conviction and. sentence of tne Higi> -Court of Tarvz.ani-a- at ilor\gea) (Kileo~PRF/Ext. J u r ,) dated the 17th day of Fay, 1994 in Criirinal jess ions Case No, 1 of 1994 ORDER RAFADHANI, J.A. ; There is information from the Lindi Prison vide Telegram No, 516 of 18/5/99 to tne effect that the Appellant died at the Central Prison, Dar es Salaam on 18/8/97. In that fase this appeal abates un^er Rule 71 as properly submitted by Fr. I-'kumbe, learned advocate for the appellant, and agreed upon by Fr. Fulokozi, Senior State Attorney for the Respondent/Republic. I* is so ordered. DATED at FBEYA this 25th day of Fay, 1999 V A.3.L .RAFADHANI \ 'V-i JUJTICE OF APPEAL "v* 'rii ',/■ 3. A. JAI- a TTA - ./ JUiTICE OF APPEAL K. 3.K.LUGAKINGIRA JUSTICE OF APPEAL I certify, that this is a true copy of tue original. DEPUTY HEGIoTRAR