20061012 TZCA Dar es Salaam2

····-·-· _,_. IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RAMADHANI, J.A; MUNUO, J.A; And NSEKELA, J.A.) . CRIMINAL APPEAL NO. 210 OF 2004 BETWEEN JOHN WILLIAM MPAI ... APPELLANT AND REPUBLIC ... RESPONDENT (An Appeal from the Decision of the High Court of Tanzania, at Mtwara) (Lukelelwa, J.) dated the 15th day of October, 2003 in Criminal Sessions Case No. 31 of 2003 ....... JUDGMENT 11 September & 12 October, 2006. RAMADHANI, J.A.: The appellant, .John William Mpai, was convicted of the murder of one Fatuma d/o Akule Luhunde, the mother of his neighbour, PW 2, Shaibu Nassoro, at Chinongwe "B" Village, Ruangwa District,· Lindi Region, on 13th November, 2002. The High Court of Tanzania at Mtwara, LUKELELWA, J., was satisfied that at about 10 a.m. on the fateful day the appellant met PW 2 and told him that he (PW 2) and his mother, the deceased, should move away from the village because they were witches. At about 6 p.m . . that evening PW 2 went to a sho'p to buy- some kerosene, leavfng the deceased all alone in the house, as he went past the appellant's house he saw the appellant sitting at the verandah of the house. 2 A few minutes later, another neighbour of the appellant, Abdallah Issa, PW 1, was returning home when he saw the appellant in a thicket repeatedly beating something on the ground with an iron rod (nondo). From where PW 1 was passing, and because of the thicket, he could not see what was being beaten on the ground. The thicket was not so tall so as to obscure the identification of the appellant. After PW 1 had delivered in his house the goods he was carrying, he went to where he saw the appellant but found him gone. However, on the ground he saw the deceased who was still alive but thoroughly thrashed. PW 1 went for Pw·2 and together they took the deceased to hospital but that could not save her life. The village militiaman, Mzee Kumbuka (PW3), assisted by Jafari Halfani Mkana (PW 4), and some other villagers mounted a search for the appellant. On the second day they found the appellant at the place where some boys were being initiated but he took to his heels and was eventually arrested. The appellant gave an alibi that on the material day he was at the house of Msafiri Mahamudu Maravi (DW 1) distilling _local gin popularly known as gongo. However, DW 1 disputed that. The appellant owned to_ have been arrested at the boys' initiation place but denied to have run away. He also stated that there was bad 3 blood between him and PWs 1 and 2. He said that PW 2 failed to pay him shs 200/= the price of some cassava sold to him. The appellant also said that he was not pleased with his father's action of selling a family plot to PW 1. But the appellant's story did not raise a reasonable doubt in the prosecution case. As already said, LUKELELWA, J. convicted the appellant of murder and sentenced him to suffer death. The appellant has preferred this appeal and had the services of Mr. Kalolo - Bundala, learned counsel. The respondent/Republic was represented by Mr. William Magoma, Principal State Attorney. Mr. Kalolo - Bundala filed a memorandum of appeal containing two grounds: (i) That the trial Judge erred in law and in fact in convicting the Appellant on insufficient and/or contradictory evidence. (ii) The learned trial Judge erred in law in convicting the Appellant of murder. However, in Court the learned advocate advanced two defences which he said the learned trial Judge ought to have found in favour of the appellant though they were not specifically raised. The learned advocate submitted that since the appellant was distilling gongo then he must have· been drunk and, therefore, he should have been availed with the defence of intoxication. Secondly, Mr. Kalolo - Bundala argued that the appellant was provoked by the witchcraft of the deceased and her son, PW 2. The learned advocate relied on the fact that PW 2 owned to have been warned by the appellant that 4 morning to leave the village because they were witches. Mr. Kalolo - Bundala submitted that the heat of passion of the appellant kept on rising and culminated in the evening when he attacked the deceased. We agree with Mr. Magoma that these two defences were neither canvassed at the trial nor were they included in the grounds of appeal. However, since this is the final Court of justice in this country and as this is the first appeal, we are duty bound to scrutinize the evidence and see whether there is any scintilla of evidence to support any of the two defences. The learned trial judge dealt with the defence of alibi though no notice was given as required under section 194 of the Criminal Procedure Act, Cap 20. He found that the alibi was not sustainable because Msafiri Mahamudu Maravi (DW 1) denied to have been with the appellant distilling gongo .. In that case there is no basis of saying that the appellant even had an opportunity of getting drunk let alone being drunk. As for provocation we agree with Mr. Magoma that Mr. Bundala is establishing a totally new concept of the defence. Under section 202 of the Penal Code, the defence of provocation is available when it is sudden without any time for cooling down. The defence is not available where provocation builds up. 5 Besides, Mr. Bundalla, himself, cited authorities to the effect that the defence of provocation as a result of witchcraft requires an overt act by the deceased. Here there was none. In fact from the evidence adduced the appellant looked for an opportune time to attack the deceased: when PW 2 had gone away and the deceased was all alone and helpless. Surely that is not an act done because of the heat of passion. We are satisfied that the appellant's guilt was proved beyond reasonable doubt. We, therefore, dismiss the appeal in its entirety. DATED in DAR ES SALAAM, this 1th day of October, 2006. A. S. L. RAMADHANI JUSTICE OF APPEAL E. N. MUNUO JUSTICE OF APPEAL H. R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original. NYIKA) REGISTRAR