20080714 TZHC Mbeya

IN THE COURT OF APPEAL OF TANZANIA ATMBEYA (CORAM: LUBUVA, J.A., MBAROUK, J.A., And OTHMAN, J.A.) CRIMINAL APPEAL NO. 191 OF 2006 I •. GREGORY s/o JOHN .................................................... APPELLANT VERSUS THE REPUBLIC ......................................................... RESPO.NDENT (Appeal from the decision of the High Court of Tanzania at Sumbawanga) . ,,--; (Mmilla, J.) dated the 11th day of November, 2005 in Criminal Sessions No. 9 of 2001 JUDGMENT OF THE COURT 30 June & 14 July 2008 MBAROUK, J.A.: The appellant, Gregory John was charged with the offence of murder contrary to section 196 of the Penal Code. The High Court (Mmila, J.) sitting at Sumbawanga convicted and sentenced him to suffer death by hanging. Briefly stated, the facts leading to this case were that, on 18.3.2000, one Michael Joh·n hosted a ceremony at his homestead in honour of his newly born twins and invited several persons including .\ 2 the appellant. Also in attendance was the deceased~ though not invited. On his arrival. at the ceremony, the deceased complained why he was not invited. He was then replied that, it was because he was staying very far from there. According to the appellant's version, the deceased was dissatisfied with the reason given to him for not befng invited. Hence he threatened to make the appellant and his brothers scatter in the wildness with no permanent place of aboard as it happened to the appellants' father. After the ceremony, it is the prosecution case that at some stage, the deceased left for his home. The appellant followed after the deceased whom he found on the way. He attacked the deceased to death. The appellant was arrested and charged for the offence of murder. At the trial, the appellant did not deny killing the deceased, but he· maintained that, he killed the deceased in self defence after the deceased uttered provocative words by uttering death threats twice against him and his brothers. ·3 At the trial, the evidence against the appellant was wholly based on his extra-judicial statement (Exh. P3) and the caution statement (Exh. PS). The appellants' defence was that he killed the decease because of his provocative and threatening words. The trial judge did not accept the defence of provocation contrary to the opinion of the assessors. He was of the settled view that the killing was pre-meditated. He found the appellant guilty of murder, convicted and sentenced him to suffer death. Aggrieved, this appeal has been preferred. In this appeal, the appellant had the services of Mr. Mwakolo, learned counsel and Mr. Mwenda, learned State Attorney appeared for the respondent Republic. The appellant's memorandum of appeal contained three grounds, but Mr. Mwakolo preferred to argue one ground only, namely that the trial High Court erred both in law and fact by .\ 4 convicting the appellant to suffer death by hanging despite the raised defence of provocation. The learned advocate for the appellant argued to the effect that the whole case is based on what had been stated by the appellant and no other witness. He was of the view that the trial judge ought · to have agreed with the appellant's defence of provocation. He further added that the record has shown that even the assessors accepted the defence of provocation. In support of his submission, he referred us to the decision of this Court in John Ndunguru Rudovick v. Republic [1991] T.L.R. 102 where it was held that: "Although mere belief in witchcraft is no defence to a charge of murder, a threat to kill by witchcraft may in certain- ·circumstances constitute legal defence to that charge." Based on this decision he urged us to find the appellant guilty of the lesser offence of manslaughter. 5 On his part, Mr. Mwenda supported the appellant's conviction. He vehemently and precisely argued that the appeal lacks merit and should be dismissed in its entirety. He submitted that both the extra judicial statement (Exhibit P3) and the caution statement (Exhibit PS) clearly support the version that the appellant decided to follow the deceased after the ceremony because he was angered by the alleged uttered threats against him. Mr. Mwenda further argued that, the appellant's claim at the trial that he was asked by the deceased to escort him after the ceremony was an afterthought. The reason Mr. Mwenda said was that if that was what happened he would have stated so earlier at the time of interrogation when the caution statement (Exh. PS) was made. For that reason, he urged us to dismiss the appeal. The issue for consideration in this appeal is whether or not the killing of the deceased was pre-meditated or that the act which caused the death was in the heat of passion caused by sudden provocation. 6 To begin with, let us first examine what· is meant by the term provocation. Section 201 of the Penal Code gives us an insight on the situation where the defence of killing by provocation is founded. It provides that: "When a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation ..... , and before there is time for his passion to cool, he is guilty of manslaughter only." (emphasis added) From this provision of the law, it is clear that for the defence of provocation to be sustained the following ingredients are to be considered: 7 1. The act which causes death has to be in the heat of passion. 2. The act has to be caused by sudden provocation. 3. The act which causes death has to be taken before there is time for his passion to cool. Looking at the facts in this case we find none of these ingredients available. By closely examining the extra judicial statement (Exhibit P3) taken before PW2, a Justice of the Peace gives the picture emerging is that the appellant followed the deceased and· killed him on the way. The appellant's own words in the extra judicial statement (Exh. P3) stated inter alia: "marehemu akaanza kunitolea lugha ya vitisho "we.we nitakuua kwa maana wewe huelewi" akawa anaondoka, mimi nilikasilishwa na yale maneno yake aliyoyatoa niliamua kumfuata nikamshika nikamnyang'anya upanga wake nikampiga 8 sehemu ya shingoni, akaanguka akafariki pale . . pale." (emphasis added) Literally those words can be translated as follows: "The deceased started to insult me by uttering threatening words "I will kill you because you do not understand" and he moved, I became angry because of the words he uttered,. thereafter I decided to follow him. I held him and repossessed his matchet and cut him around his neck, he fell down and died instantly.ff (emphasis added) From these words contained in the extra judicial statement . (Exhibit P3), it is clear that after the utterance of the words the appellant took sometime and thereafter decided to follow the deceased and killed him. As it took considerable time from the time the words were uttered and the time when the deceased was followed and killed by the appellant, it can hardly be said that the i . \ __ 9 appellant killed the deceased in the heat of passion. There was sufficient time for the appellant's passion to cooL This is glaringly evident again from the caution statement (Exhibit PS) in which the appellant stated: " baada ya vitisho vyake vya siku nyingi kwa sisi wajukuu zake nilichukia na kuamua kumfuata hadi polini na kumpokonya panga alilokua amelishika na kumkatakata kichwani na shingoni na akawa amekufa ..... " This translates to the following: " ..... after so many threats directed to us his grandsons, I became furious and decided to follow him into the forest area and pouched on my grandfather John s/o Mangula and grabbed him the matchet he held ..... and I repeatedly cut him in the head and neck and he died". (emphasis added) 10 In the circumstances, we are in agreement with Mr. Mwenda, learned State Attorney, that the learned trial judge was justified in accepting and relying on the caution statement (Exh. PS) and the extra judicial statement (Exh. P3). This is so because we think the omi~sion not to state earlier at the time of interrogation in the extra judicial statement (Exh.P3) and caution statement (Exh. PS) that he was asked by the deceased to escort him instead of stating what he testified in his defence at the trial was an afterthought. This takes us to the next issue to be considered namely whether in causing the death of the deceased, the appellant did so with malice aforethought. It is common knowledge that at times malice aforethought is manifested or inferrecl-from the act or conduct of the accused. In this case the fact that the appellant repeatedly stabbed the deceased suggests the intention of the appellant to cause death to the deceased. In the case of Tunutu s/o Mnyasule v. Republic [1980] TLR 204 the court held inter alia: 11 "malice aforethought can be proved by the fact_ that the accused stabbed the victim several times with a knife". (emphasis added) In this case as shown in the caution statement (Exhibit PS) the appellant admitted to have repeatedly cut the deceased in the head and neck until he died. The act of repeatedly stabbing and cutting in the head and the neck of the deceased indicates the appellant's intention to kill the deceased. In the circumstances, like the learned trial judge, we are satisfied that the defence of provocation was not available to the appellant. In the upshot and for the reasons stated above, we find-this appeal to have no merit. 12 Accordingly, the appeal is dismiss in its entirety. DATED at MBEYA this 14th day of July, 2008. D.Z. LUBUVA JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL M.C. OTHMAN JUSTICE OF APPEAL I certify that this is a true copy of the original. I I