19990819 TZCA Dar es Salaam

\ IN THE COURT OF APPEAL OF TANZANIA AT DAR-ES-SALAAM (CORAH: ........,_-•-. CRIMINAL APPEAL NO. 12 OF 1998 BETvJF.EN SALESIUS LIREMERO 000000•00000~0•0•••••• APPELLANT AND THE REPUBLIC 0◊00000000QC,0000000000()000 IffiSPONDENT (Appeal from the decision of the High Court of Tanzania at Dar-es-Salaam) (Bahati J.) ·"--~~,1~- dat ed the 24th March, 1984 in J U D G ME N T At about 20rGO houp, on 1/6/1981 at Jragµa V:i.l:l.9-e;e in Mahenge .was not in dispute that ·the deceased was suspected of havi_ng bewitched another person called Silvanus Nguyao who died in A:pri], of the same year. After some consultations which took a :µumber §i'i.&rtiy b@for@ hfa G!eatht some iiionay wtMs given to Anzingari by t·&e #{ffu.ya& fa:ffliiy for th€' t:fip • Two persorts were suspected of ti~{;i:g· lZf':ried. Ant}iri'g;aff,~ a: f'~i&Hve of Silvanus and the appell::mto :· ' ~ " ✓ .::- -- '! .~: :.., -~.,~: ('_~ '.' . :"\') ..~ ,!. ~- .. /, .-· -~ J. ·,..., - • , . The former was acquitted· at the st~i~ JY p1'-.rrti't{ lade case', -~,,._,;, . . ,-.,, :.:~i·-._::. 'C:J _:··_:=:.s;:__c•t.--:.r;-:-: ·:-.:_-_::t1r·r('·1----. . . - . . . .J\,:.. •--;: C' ~.The appellant confessed to Assistant Inspector Ladislaus .(;W 3) :~~t ~l:, ~~;t ;;;~ d·eceased ~ii t'h ~- atibw after he was S6 1 PW 3 took the ap9ellant to a Justice of the Peace, Ah.'i!ed Sa~d Mohammed Mlima . __ i;JC. :· __-_} (::·:-'_._,:· --~ ~--: _. ,_·. ,..,.L-- (PW 6) who r~orded an extra 'judicial '.statement (Exh- P8) in whir-i, h .:.. it the appellant refapttulated his story. Agatp, in his sworn defence in court, tqe appellant . owned the killing S?,.ying: ' . \ ' 0n 1/6/81 I was at home. 1 At 7 p.m. " I v,re~t to buy oi;l. at a shop~ Fro{ll th~ shop I went back home. Theri wh~n I got to the home of the deqeased, at 8P,1!1• the dec~as~d • ~ ' ·1 • a$!<;.ed me 11 who 13:-re you?a I ?5ai9: + w~ Selesius, < \; +he de9eased sai~, ,· 1 i1 pave / • been, _'l' loqking ' for you. · + w:).:ll kill you f;l,S I killed $ilvanus . :, N~_µyao 11 • ' Th¢q I went' to my hprne wid'took my b0w and arrow antj.'~_fo:it de~eased with an arrow. I~thr~w a stpp.e . on top ,C>:f his house an6 t:;hen ~ : al} arrow.ii \\r BAHATI t J. cor,tvj:cted the appell&n.t with: k·lJ!d~r as charged and sentenced him to:suffer death by:hi.nging; · Being aggrieved with 'that decision, the appellant has preferred this appeal which was argued by Mr. Mselem, learned advocate, while the Republic/ respondent was represented by Ms. Munisi, learned State Attorney. Mr. Mselem had only one ground of appeal that the learned judge erred both in law and in fact in rejecting the defence of provocation. The submission of Mr. Mselem was that the appellant was provoked by the words uttered by the deceased that he (the deceased) was going to kill the appellant also. Mr. Mselem argued that the prosecution did not show what was the distance between the appellant's and the deceased 1 s houses and that it was such as to provide time for the appellant's heat of passion to cool. We agree with Ms. Munisi that there was no provocation at - 3 - from what the appellant himself said: 11 1 killed deceased because of what he said to me. I had to kill him just before he killed me.•i The appellant was not deprived of the power of self-control, which is the essence of provocationo Instead he deliberately took a pre-emptive action. For completeness, we may as well point out here that what the appellant did could not even be considered to be self-defence. So, we .are of the considered opinion that the appeal is devoid of any merit and we accordingly dismiss it. DATED at DAR-ES-SALAAM this 19th day of August, 1999. A.SoL• RAMADHANI JUSTICE OF APPEAL Do Z. LUBUVA JUSTICE OF APPEAL .,..,_.._,,,._,.,. B. A. SAMATTA JUSTICE OF APPE,.i\.L I certify that this is a true copy of the original. . 11·; i JI ,'I" . , ( A.G.'!~~ARIJA ) DEPUTY REGISTRAR