200806603 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM,:RAMADHANI, C. J.; MROSO, J. A. And RUTAKANGWA, J. A.) CRIMINAL APPEAL NO. 221 OF 2007 BETWEEN PHILIPO THEMANINI ... APPELLANT AND I THE REPUBLIC I... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Munuo, J.) dated the 15th day of June, 1999 in Session C:ase No. 9 of 1997 •••••• -JUDGMENT OF THE COURT I 29 October, 2007 RAMADHANI, C. J.: On 15th May, 1994, the appellant went to his uncle, Emmanuel I Mchomba, PW 1, at Lokoro Kikelwa, Rambo,. Kili~anjaro Region, looking for a job. PW 1 arrange~ for the appellant to share a room I with the .deceased, Clement ~atei. The following evening, the appellant rushed to PW l's hciuse and told him that they were . I attacked by some bandits and that the deceased was killed. PW 1 I . told the appellant to report the imatter to the Police. The appellant did not do so but instead went Ito a local beer shop where he was I later arrested and charged with the murder of the deceased. D/SSgt Joseph, PW 3, investigated the matter. He found a headless corpse in the room which had been occupied by the appellant and I 2 I the deceased and saw some marks on the ground from which he I concluded that a struggle preceded ;the death. He found the severed I head dumped among banana shoot~ 18 paces away from the house. I The appellant, in an extra judicial $tatement which was recorded by I one John Liberati Swai, PW 4, a Ward Executive Officer, owned to i have slaughtered the deceased. The learned judge being satisfied iwith that evidence convicted the I' l appellant as charged and sentenced him to suffer death and hence I this appeal canvassed by Mr. Ezra Mwaluko, learned advocate, and I resisted by Mr. Henry Kitambwa} learned State Attorney for the I respondent/Republic. Mr. Mwaluko had only one groun~ of appeal: that the learned trial judge did not consider the plea of:the appellant of self-defence while the appellant was the only eye witness. Mr. Mwaluko reiterated the I story of the appellant that when 1he suddenly woke up he saw the I deceased standing beside the appellant's bed brandishing a panga, I· he overpowered the deceased, <!teprived him of the weapon, and I used it to slaughter the deceased.' I, Mr. Mwaluko submitted that underI section 18B (3) of the Penal Code if excessive force is used in: self-defence then the killing is I manslaughter and that the appel;lant should be so convicted as was in Daudi Sabaya v. R [1995] TLR 148. 3 Mr. Kitambwa submitted that the Republic supported the conviction. He argued that once the appellant had disarmed the deceased then he was no longer in danger and, therefore, he should not have used the weapon against the deceased. Mr. Kitambwa pointed out that the appellant manifested malice aforethought by sev~ring the head of the deceased from the trunk and by lying to PW 1 that they had been attacked by bandits who had killed the deceased. The learned State Attorney also contended that the struggle marks on the ground that PW 3 spoke about could have been made by the writhing of the torso. We agree with Mr. Mwaluko that there were only the appellant and the deceased in that room and that the appellant is the only surviving eye witness. So, his word should be scrutinized against the circumstantial evidence consisting of the following four incidents: One, the struggle marks found on the floor of the room in which the killing took place. Two, the appellant disarmed the deceased and used the weapon against him. Three, the severed head was found wrapped in a paper bag and thrown in the banana plantation. Four, the appellant lied to PW 1 that they had been attacked by bandits and that the deceased was killed in the process. As for the struggle marks, two different explanations were canvassed. Mr. Kitambwa argued that they were made by the 4 writhing of the deceased's body after the head was severed. But to ' Mr. Mwaluko the marks indicated a fight between the ·two. Both I ·explanations could be correct. PW 3 did not describe the extent of the marks he saw. We do not know the size of the deceased so as to I ' be in a position to assess whether or n~t the torso could make such marks. All in all we are left in doubt as to what actually happened. ,o,a,,. I Our law is very clear that in case of a d,bubt the benefit should go to ' the accused person, in this case thei appellant. We may as well observe that the learned trial judge did not consider the evidence of these marks at all. Was the appellant clearly out of danger once he had disarmed the ' ' deceased? The Court asked Mr. MwalL1ko that question and his reply ' was that though the appellant was able to disarm the deceased there was no guarantee that the deceased ./could not have done the same. It cannot be said that the appellant was entirely safe, especially as it is not clear if the appellant had opportunity to escape from the room. We were referred to Joseph Hugo Uganga v R. 1992 TLR 354 (CA) ,. ,, where the appellant used a panga; against an unarmed deceased. This Court had this to say at p 357: .· Reading through the judgmeht of the trial court, it becomes abundantly clear to ,lus that the learned trial judge treated self defence ahd provocation in great ' detail. In our view it is not ~asy to fault the learned judge's reasoning. When he vyent in to collect t~e rice from the deceased's room:, the appellant armed I I I" il ' ' 5 himself with a panga. Indeed the learned judge thought it more likely than not that the appellant was also armed with the axe for he could not see how the axe got into the deceased's room, given the manner in which it was ordinarily kept in his room. If he was going merely to collect rice for cooking, why arm himself so heavily? The appellant explained that it was his habit to walk about with his panga wherever he went "even in the toilet". We ask ourselves, why? of course we do not know what kind of toilet facilities he had. But would this necessitate his walking into his sister-in-law's room at night armed with the panga? The learned trial judge rejected. this and found that the appellant went into the deceased's room with criminal intentions. We agree. The version which the appellant gave in his evidence at the trial would give rise to a defence of self defence and provocation. But since the deceased was no longer armed at the time the appellant bashed her head, we agree with the learned judge that there was nothing against which the appellant was defending himself. He was in his own words just revenging. The present appeal is distinguishable from Joseph Hugo Liganga. Here there is no evidence that the panga belonged to the appellant. In that case the entry into the deceased's bedroom with a panga was taken to be proof of malice aforethought. As for the third issue, we concede that the severing of the head is undoubtedly evidence of excessive force. But if self-defence is, C ~ccepted_then that goes to whether theJHl!ng was justified or it was r,nansfaughter but not whether or not iLwas murder which can only I rbe----CO~[lsidered when .plea of self-defence -·-- Ts rejected. ,_ - - - --- \ 6 I Mr. Mwaluko was emphatic that since the learned trial judge found that the appellant was acting under self-defence, it is trite law that · any excessive use of force reduced the killing to manslaughter. The learned judge said: Even in self defence, the excessive force used to cut off the head and wound both hands of the deceased, totally negates accidental killing. With all due respect, the learned judge mixed up two defences: self- defence and accidental killing. We agree with the learned judge that there was no accidental killing. But when the learned judge considered the possibility of self-defence, then she should have applied the law regarding that defence, and that is that excessive force negates justifiable homicide and renders the killing manslaughter. The severing of the head, and even the way it was disposed of, is not proof of malice aforethought and the appellant, when answering a question of an assessor, stated: I was sleeping when he wanted to cut rne with the panga it was easier for the deceased to kill me. I never intend to kill the deceased though I cut his head and put the head in the plastic bag. I put the head in the plastic bag out of confusion and fear after the killing. 7 Lastly, there were the lies of the appellant to PW 1 that the deceased was killed when the deceased and the appellant were attacked by bandits. Lies of an accused person or a suspect may disclose mens rea. In Salum Yusuf Lilundi v. R., High Court C(iminal Appeal No. 26 of 1984 (Mtwara Registry) (unreported), the appellant, a watchman, denied being on duty on the material night while in fact he had been. It was held that his unabashed lies corroborated the confessions of the co-accused persons. However, there are also lies which are given not as a cover up but for fear of one's safety. This is especially so when the lies are given almost immediately after a crime. We have quoted the answer of the appellant to the assessor where he owned: I put the head in the plastic bag out of confusion and fear after the killing. In Manyaki d/o Nyaganya v. R, [1958] EA 495 at 498 the Court of Appeal for Eastern Africa, following Gathitu s/o. Giondo v. R. (1956) 23 EACA 526; R. v. Levy [1921] 1 K. B. 18 at 161 and R. v. Jones [1949] 1 K. B. 194, decided: There was evidence on which the learned judge could make the finding that Wakuru's motive in saying at first to the police that the deceased had gone to Shinyanga was fear for her own safety. That was a finding of fact which we should not interfere. We think that the learned judge was right in saying that such a finding disposed of the argument that she was an accessory after the fact and therefore an accomplice. \ 8 The ratio decidendi is that if lies are given for fear of own safety then one is not an accomplice, that is, the lies are not taken as proof of malice aforethought. We think that that principle, though it has been used in cases of accomplices, is also true in case of a principal offender. Thus the lies of the appellant to PW 1 should not be taken to be proof of malice aforethought. For all the above reasons we are of the decided view that self defence was available to the appellant. We, therefore, quash the conviction for murder and replace it with a conviction for manslaughter. We set aside the punishment of death. Since the appellant has been in custody for nine years from the date of conviction and five years from the date the offence was committed, that is, a total of 14 years, we order his immediate release unless his incarceration is otherwise lawful. DATED at DAR ES SALAAM this 3rd day of June, 2008. A.S. L. RAMADHANI CHIEF JUSTICE J. A. MROSO JUSTICE OF APPEAL E. M. K. RUTAKANGWA JUSTICE OF APPEAL I certify that this is a true copy of the original. (F. L. K. WAMBALI) REGISTRAR