19990610 TZCA Mbeya

( C0RAfv: ~~~H_A.',;-_I.,.."..J.._fl. , SAl' ATT.ih_ J. A. , And LUQ.AJ:Cgj_GJRA, J. A.) CRU~IL;L APPE.llL NO. 150 OF 1994 BETWEb;N ENOCK KIP.;:::LA. 0 •. . .• . . . APPELLANT • • AND 'rI-IB R.SPU.i3LIC. . . . . . . . . . . (Appeal from the Conviction and :,enten~e of ~he '.1igh Court of Tanzania at ~jombe) (:[:/).e.o..-:7.¥'Jtl'-.J]:xt. ~JJ.il.§Q,!9tion) dated the 22nd day of April, 1994 .i,n f!:~rrii_n_aJ. -~-~_ssions Case No. ?,7 of 1992 ~:ATTA. J. A. : The. appellant, iin0·ck Kipela, was· convicted and condemned to death fGr the murder of Desdelia Ndadavala alias D0sea J\'.·ga?a, tlle wife of one Adam l'l:angula, en 17th January, 1991, at Ikwete HAa Village. in Njombe District. The case was tried by a Principal Resident . . IV:agistrate exercisii.1g Extemt"ed Jurisdiction, J\'.:rs. Kileo, as she then was~/ The case was a short.one. The prosecution adduced evidence from three witness.es, . including a policeman, while the accused, who gave evidence,. called no witness. The area in G.ispute at the trial was·very narrow, indeed. It was cortmon gr:)und that on the fateful day the cc)w - of ,me Hosea Ngakala was stolen. Jina alarm ·was raised. · rany villagers responded to it. -A trail of hoof-marks ••• j2 - ' 2 led the men, including the owner of ·the stolen beast, to • the house of Adam Fangula. Neither the rr,an nor _his wife, the deceased, was f,:)Und. there. A trail of

blood stains led the search group to a bush. There, they saw the couple running away. The rrernbers of the group ch~sed them but only the deceased surrendered; her husband disappeared and sta~;2d in hiding for _two months. It is not in disput:: ti1at as so,)n as the deceased had been arrested, the appellant, wh-:i was arrr.ed with a big bamboo stick, appeared on the· s•·ene. He immediately attacked the deceased, inflicting t);lree blows on her head, and chest using his stick. The deceased sustained serious injuries as a result of the attack and S'\.lccurnbed to those injuries instantly. A postmortem examination carried out on her bndy revealed that she had sustained fractures of the base of the skull and nasal bones. Her death, acc0rding to the undisputed opinion of thedoctor who carried out the p~st~~rtern exa~ination, was due to brain corr:pression. It Has tne case f•Jr the prosecution that the attack on the deceased was-perpetrated by the appellant only, -and that he wielded the large bamboo stick with both hands when inllicting the blows. Essentially, ·this is the st•"'\ry which Ait,:m I'-'lwale (PW.2) and Andreas 1't;:bago. (PW. 3) told the trial c0urt.. W::iile adrr!i tting to have assaulted the deceased, the appellant asserted that he used a small bamb00 stick and merely joined a mob which beat the deceased f::r the· purpose of compelling her to show the villagers where

the meat of the slaughtered c6w was hidden. It was the appellant's case that he intended to cause neither death 0f, nor grievous bodily harm to, ..• /3 3 the deceased.· When, on September~, 1993; his plel was I ,I taken, his counsel offered a plea 9f guilty.to mans:)..aughter, : .. . I but.oounsel who represented the Republi~ declined .to . I i. ,. ...• I accept the offer, A trial becarre unavoidable, t Both Assessors were of t11e opinion· that what happened on the fateful day was wh~t PW.2 and PW.3 told .t ! the court. They rejected as a lie!the appellant'siassertion that the de.ceased was .a victim of ihe so-called mob justi~e. I ~ • : • ,. The learned Principal Resident Mag{strate analysed/th~ · ' ( ... i evidence laid before her and unhesitatingly I' . agreed!with I • ( the Assessors I opinions. In the. course of her judgment. i she said.: I I ' ( 11We have the evidence of the two . I'. prosecution eye witnesses _who both 1 claimed that it w.as only the accused • ' j, and none other who struck!at the . r deceased with a barr.boo stick using both hands, .All three gerttlemen and . . I lady assess0rs believed t~ese two_ witnesses. . Having. observ~d . I them on the witness stand I have also to say. I that I was most impresse?-1' by_ their testimonies and I see no .i-easons . I whatsoever to think that· ·circurnsta- , nces were any other than those . ' [ . presented by them.

Admittedly, they held no.grudges agaihst the . .I accused and I have seen. h0·reason : I· why they should have lie.o.l~ against. I • him. I· believe that tn_ey · told the court the truth." · 4 A little later she said: "I am satj_sfied beyond any shadow of doubt tll-::,t it was the accused i::nock Kipela and him alone who struck at the deceased and caused her death. 11 The learned trial magistrate had no hesitation in finding as a fact that malice aforethought was proved beyond reasonable doubt. Jhe accordingly convicted the appellatit of the charge laid at his door, and, as already indicated, imposed on him the mandatory sentence of death. On behalf of the appellant, Jl'.r. Naali, learned advocate, has advanced two grounds why, he says, this Court should fault that decision.· Those grounds are: 1. [fJ]he trial Court erred both in law and in fact in not considering that, the death was occasioned over mob justice ffidministere.97 on the deceased. ' . 2. lT..]he trial Court failed to evaluate well the evidence otherwise it could have arrived•. ffit 7 the - decision that the appellant had no mens rea. n We propose to start with the first ground. Essentially, the learned advcicate's ( contention'here was that the learned Principal Resident l\'Jagistrate did not consider the defence that the deceased was a victim of "mob justice 11 and that it is possible that the fatal blows were

inflicted by a person other thm1 the appellant. With a view to strengthening this argument the learr;i.ed .... /5 ' \. 5 advocate rerr:inded us 0f the practice prevailing in villages I in this ci:5untry w:1ereby those responding to alarms arm I tnemsel ves. ..3efore dealing with the argument, we wish to observe that as far as we know there is no civilized i country in the world in which tl-ie so.:..ca1led mob justice i is regarded as justice. Depending upon the particular I facts of the case, an attack in the.course of administering "mob justice 'i which results in the death of the victim n-,ay, under the law of' this c0untry, constitute murder. Provided ' common intention existed, it would rn;it matter who inflicted the fatal wound or wounds. To rever~ to the instant, case, with due respect to J.Vr. Naali, we do 1 not find any merit in . ! his argument. Rightly, in our opinion, the learned .. l Resident lVagistrate believed the evidence of.PW.2, who, in the course of his testimony, said) 11 It was only Enock I Kipela the accused who hit the woman", and that of PVl.3, who amply corrob0rated that assertion, .Answering the last question of r:r. Putilrn, counsel who represented the appellant at the trial, PW.3 said: 1:1 There was rio mob justicea. Naturally, having found the evidence of the two witnesses very reliable, as she di9-, the learned, Principal Resident l'-fagistrate

found herself constrained to reject as a lie the appellant'~ half-hearted assertion that 811 those· wl'n responded . to the alarm subjected ,the . deceased to violence. The medical evidence laid before I the trial court is, in our opinion, plainly inconsistent with the assertion that the crowd_pounced upon the deceased. I According to the p0.stmortem report, which was admitted in evidence without any objection from ~·r. Putika, the injuries which the deceased sustained were, as' already indicated, . fractures on the base of the skull and the nasal bones. I •.. /6 ' . 6 There were no other injuries, not even bruises. It is inconceivable that the deceased would have sustained no other injuries if, as asserted Dy the appellant, the deceased was a victim of 11 mob justice r,. We have no hesitation in agreeing with IV'r •. Sengwaji, Principal State Att-')rney, that t~1ere is no merit in the complaint in the first ground of appeal. We turn n0w to a considerati0n of the merits or otherwise of the sec~nd ground of appeal. Even accepting. Iif:r. -Naali' s contention that the appellant picked up the ( bamboo stick on the way and that there was no proof 0f bad blood between the appellant and the deceased, we have the greatest difficulty in sustaining the learned advocate's subIPission that malice aforethought was not proved in this case. Usually an attacker will not declare his intention

to cause death or grievous bodily harm. '.;ihether or not he had that intention must be ascertained from various fact::irs, including the following: ( 1) the type · 8nd size of the weap0n, if any, used in the attack; (2) the arr,ount of fr,rce applied in the assault; (3) the part or parts of the body. the blow or blows were dir2cted at or inflicted •m; (4) the number of blows, although one blow may, depending upon the ·facts of the particular case, be sufficient f,::ir this purpose; (5) the kind 0f injuries inflicted; (6) the attacker's utterances, if any, made bef0re, dm~ing or after the killing; and ( 7) the conduct of the attacker before and after the killing •. 1I The evidence which was accepted by the trial court in the instant case - rigi1tly in our opinion - proved that the appellant used a big stick, which he wielded with both ... /7 -,J L ,,.,. ' 7 • hands, and delivGred three blows, on the head and chest. The d2ceased died instantly. There is, :m the t•::-tali ty of the evidence on rec-::>rd, no rn•)m for more than one view as to the appellant's intent. Bearing in mind the fact'Jrs we have just menti0ned, we can find no justificaticn for doubting that in attacking the deceased the appellant intended at L,:a.st to cause griev(ms bodily harm to her. we can, th12ref,)re, find no merit in I'-'r. Naali I s argument. to the contrary. The second gr,)und of appeal must

also fail. . F0r the reas~ns we have given,. we can find nc warrant f0r holding that the learned Principal Resident Kagistrate was not, upon the evidence -:m record, entitled to c,:mvict the appellant of the iturder of iJesdelia Ndadavala and imp0se on him the sentence of death.· We dismiss the appeaL this 10th day of June, 1999. A. S. L. RAl"ADiI.ANI JUSTICB, OF APP~AL B. A. SAI•:JiTTA JUJTICi OF APPEAL K.S.K.LUGAKINGiRA J~U.S'rICc;..2[ APPi!:AL I certify that this is a true c0py '.)f the 0riginal. ·1 1 /f .A.~t l ( A. G/ 1 ·F:-tlARIJ A ) pEPUTY RBGISThhR