20021008 TZCA Dodoma 2

IN i'HE COURT OF APPEAL Qj_P TANZANIA / AT.DOlDMA ( COHAM: Rf.l~DI-IAN,:C:t. .. J 0..u~~UBUVA___,_ :[.A. ,.__And LU~NGIRA, J .A_.) CRIMINAL APPEAL NO. 74 OF 1999 BE'l'W'E~N AD.AM. F4SSAN KIJUU. • 0 0 0 APPBLLA.NT Ai'ID · THE illf:FUBLIC. ... 0 0 0 0 i:<:8B:PONDBNT (Appeal from- the Judgment and Conviction of the Resident Magistrates 1 Court of Dodoma at Dodoma) · (Luguru-PP.Mj;pctend~~r:~p<lid~) dated the 11th day of June, 1999 in. Criminal Sessions Case !'.£9-• __ 30 ..5?f. 19_~7.. The appellant, Adam Hassan Kijuu, was charged with and · ·convicte'd of the murder of his wife 1 Zuhura Hussein, the de.ceased. As reflected in the memorandum of the undispt.tted matters, it was ac·cepted that the appellant killed the deceased. The contentious· issue was wnether the e.ppellarit caused the :::.0.9,th of the deceased · under provocation. The facts as found at the trial were that on the fateful day, 17.1.1996 1 at about 11.00 a.m. while the deceased was coming from the river to fotch water, accompanied by Chaus.iku 1~amadhani (PW.1) and Mariam Hu.ss0in (PW.2), the appellant came running from ••• /2 ' 2 a nearby thicket armed with a bill-hook (hengo) • He cut the deceased causing mDl tiple deep wounds on the head, neck and shoulders severing major vessels of the neck. The deceased died of haemorrhage. The appellant 1 s defence was that he was provoked by the deceased. He said on 16.1.1996, at about 5.00 a.m., he, and the deceased were set to go for shamba work. The deceased left first leaving the appellant behind. However, the appellant claimed that on the way, the deceased was involved in adultery with one Viashaka Hussein. Because of the incident, the n:,,JpcL~ant further claimed, the deceased did not return to their house that day. Instead, the deceased went to her parents 1 home. The next day, 17.,1.1996 1 at about 10 a .. m.. , 2.s he was com.ing · from shamba to fetch poles for ·the repair of their house, he met the decectSed together with PWo1 and P~Je2 carrying bucl~ets of water from the river~ He greeted them (deceased and PW., 1, PW.2) bt1t the deceased repl.ied 11 Kamsalimu mama yakoi 1 which trru1slates n go and greet your mother 1 • This provoked him so much that he cut the deceased to death with the bill-hook. The learned trial Principal Resident Magistrate (Lxtended Jurisdiction) was satisfied that on the evidence led at the trial, there was no provocation because no provocL·i::.-;8 vm1~cts were uttered. eo•/3 • 3. He found PW.1 and P\'i-2 truthful witnesses. Consequently, the appellant was convicted of murder. In this appeal, Mr. Njulumi 1 learned counsel appeared for the appellant. He filed one ground of appeal to the effect that the trial Court erred in holding tha~ the killing of the deceased was not a result of provocation. In the fir,3~ :place he said it was a serious error on the part of the trial magistrate in not giving reasons for not believing in the appellant I s . assertion that the provocative words were uttered. As the prosecuti~~ evidence did not show the distance between :.-'11 .. 1, PW.z', the deceased and the appellant, it was possible that these words were uttered by the decec,.~,G6- without the hearing of PW.1 and PW.2, Mr. Njulumi urgcdQ He also said that for an ordinary person .in the appella11t 1 s community, these words were provocative. This is so, he stressed, having regard to the adulterous incident involving the deceased the previous day. Secondly, Mr. Njulumi criticised the trio.l magistrate's scanty summing up to the o.ssessors. In elaboration, he said becm'.S•, ·t:.-w summ{ng up was not so well done, the assessor:s m.ixed up tho event of the previous day o.nd the wor~s uttered on the day of the incident. According to him, if the assessors had. been properly directed cm provocation a11d the words uttered, perhaps they would i10.ve come to a different ••• /4 J • 4 conclus•ion. In the circumstnnces, ho u:::·ged, as it wos not certain what would be the .~:t.Ssessors I opinion. i f they were properly directed, the appelln.nt' should b,c given the benefit of doubt. ; 1'1f• Magoma; lenrned Principal .Stc,te Attorney, for the r8spondent Repub.lic, strongly countered these sµbmissions. Ho was firmly of the vi0\, that the trinl court which hear.d PW.1 and PW,.2 testify ih Court, wns ,in a better po,si tion to assess their credibilit_y. The words were not uttered because PW.1 and PW.2 and the deceased who wer.e in a single file, orie after the other, 'would hnve heard the decensed utt0r tho words_, he submitted. We are· respe~tfully in ngrecmqnt with l':l"• i•iugoma tha~ 'the · trinl Court which heard and saw P\'J a '.1 D.nd PW .2 giving evidence in court, wos in a bGtter pocition thrui an. appellate Court in assesing the duciea11our and credibility of those witnesnoc. Having seen the witnu:,ses the trinl Court found them truthful witnesses. We can s·ee no rec.son for faulting the· 1earned trio.l Pr.incipal Residei1t Hogistrate :L1 this finding. From the:: evidence of PW.1 and PW.2, .it is clcc.Tly shown thnt the app~llnJit emerged running from n bush·behind holding a bill-hook,. He struck the deceased to. death Dlld ·that they heu.rd no words u.ttcred by the deceased. ... 5 Furthermore, from this evidence, there were no any words at all uttered by the d~cczuS-:;d on which the defence of provocntion could be bnsecl~ 'rhereforc, we nccept Mr. Magom.:1 1 s submission that the trinl magi.str£:..te 9 s rejection of the appellnnt 1 s defence of provocation was justified. The fnct that PW.2 wDJ3 a rclati ve of the deceased, does not in our view make cny difference, her evidence wos corroborated by PW.1. From the evidence of PW.1 nnd PW.2, we are incrcc..singly of the view that the o..ppellc.nt wns not in a friendly ti:tli~ing mood to the deceased~ PW.1 and PW.2 did not ~see the appelL:nt v1he:n they were going to the river to fetch wstter. On their wo.y back, they saw the appcllnnt emerging from the bush running townrds. the decensed armed with ,-:.. bill-hook. He started nssaulting the deceased viciously. This, to our minds, suggests that the appellant was on a vicious murderous mission., Awa:re of whnt he wo.s doing, no wonder the appellant chased away PW.1 under threat. In these circumstances, tho appellant vs claim th~,t the d0ceased uttered provocative or o:r.y words to him was, as helcl by the tricJ_ magistrate not true. On tho othor ho.nd 1 evon if it is accepted for the sake of argument that the alluged words werG uttered, ·we do not think th::i.t nn ord.inD..ry man frc.rn the nppell1J!-lt I s society \;oulcl .be provoked by .... /6 6 such words. We are also not inclined to accept the suggestion by Mr. Njulumi that an ordinary man from the society would react to these words in such. a callous and vic.ious manner of inflicting repeated cut wounds to a fellow human being and worst still, a wife. We also a 6 ree with Mr. Njulumi that the assessors were not properly directed by the trial magistrate on provocat.ion •. To say the least, the summing up was scanty and inadequate •. However, it is our view that this, notwithstanding, the assessors addressed ·we:re themselves properly on whether the alleged words f. provocative. In the event, w<J . are satisfied -.\ that on the evidence as a whole, that the learned trial magistrate was justified in his 'finding that the killing of the deceased by the appellant was not a result of provocation. The conviction against the appellant was properly founded. There is no merit in the appeal.. I-c is ciismissed in its entirety. • •• /7 • ... 7 - ., v 8th day of October, 2002 • \ . ' \ .. \ ~ AoS.L.RAMADHANI JUSTICE OF---=.c.,,.,APPbAL ...,...,....,,................ ~ , - , . . . ••c , ~ ~.... DoZo LUBUVA - K.S.KoLUGAKINGIRA ~~'"1C-~-~---. . --'. JU;3TICE; OF APPEAL I certify that this is a true copy of the original.