20121024 TZCA Tabora

- \\!\.o\i'.v e. \.:,lI (Jt\\\V\\'\.CA.\ Ckoo,.,.i ' \."-\;-..Qtr'"u:."' W'u.\..t&.ho...l i o~,... op_,~ °l"-A,.."2i ~- £A'"°'-\.c::,\.v:,'\iuu~.. . ' .S, 'l.0 Pc ~ 't-'e-A2 ; '-::\ t: <;,~\.~\ \:,!",,., ~ Q,_ ~~O & C .\r-.. \\A.L NI_L,_,.;-n,\/\.c...,._. '4--...., l\,'-"'L'· --n \ - ,....,. \, ., -..::::.. \"'-.\i-.;., '""--,~-"'-'' c:--.- IN THE COURT OF APPEALOF TANZANIA · '\'->-J:i\---t>&. __,_,-rn:;.. ('.\'\\\~, AT TA·BORA . \~9 · Lt .. ~-. - \ "-J \, u_ R,0-- ' (CORAM: MSOFFE, J.A., MBAROVK_c J.A., And ORIYQ, J.A.) \.;"-) ex,'::'} fl"" p ~ \.\:~. ~' • f • CRIMINAL APPEAL NO. 321 OF 2009 ! . ~\;--.c..~ ~ A\_;;_; T..::..• S1....\.. ·"ti:., ILANGA S/O NGUGAGU ........................................... ~ .........................................................APPELLANT \().....\,_.;i.._. (~ ~- VERSUS · ~ \\,'v I THE REPUBLIC ......................................................... ~ .......................................................... RESPONDENT (Av-L\. . . l . W-1. A v-..\;- ':'\, (Appeal from the decision of the High Court of Tanzania at Tabora) ~ ~>- I . ' I (Muju'.lizi, J.') dated the 2 nd day of October, 2009 in Criminal Appeal No. 76 of 2003 I --------- 1

JUDGMENT OF THE COURT 22 & 25 October, 2012 ORIYO< J.A.~ The appellant, Ilanga Ngugaiu, was convicted of the offence of murder contrary to Section 196 of the Penal Code, Cap 16. R.E. 2002 and l . I ' was sentenced to the mandatory sentence of death. The trial High Court 1 convicted the appellant on the basis of the testimonies of five prosecution witnesses including PWS, Kijja Ngu~agu,. a brother of the appellant, that I , while at the deceased' home, he! eyew\itnessed the appellant come in ; carrying a spear which he threw at the deceased and hit him just below I I I 2 j the ribs. The deceased, Emanuel Maduhu, who bled profusely was taken - . I . i to the hospital where he died on the foll9wing, day due to - - j . internal haemorrhage due to stab wound on perforation of sJa11 intestines and I mesenteric blood vessels, 1 I . according to the Postmortem Examinati6n Report. i Aggrieved, the appellant, throu6h the services of Mr. Kamaliza I Kamoga Kayaga, (K.K.K.), learned counsel, who advocated for him in the I . trial court as well, came to this Court w:\th on_'ly one ground of appeal: - j ' That the Honourable trial Judge erred both on I . facts and law in holding that under the circumstances of this I case the appellant intentionally speared thJ deceased, EMMANUEL 5/0 MADUHU to death. I I Submitting in support of the appeal, ~r. Kayaga, faulted the trial court for I . convicting the appellant without establishing the motive of the killing. I The learned counsel stated that it wJs necessary to establish the motive in the face of the uncontroverted tebtimonies that the deceased and the I I appellant were very good friends who used to carry on businesses together, did not have any dispJtes, squabbles or quarrels among

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I I I 3 themselves or within their family lembers as testified by PWS and I. , corroborated by PW4, Mariam Dotto IShabani, the wife of the deceased. o I I The cordial relationship between th¢ appellant, the deceased and their I families was reiterated by the appel~ant in his sworn testimony, (DW1), i though he denied any knowledge of the incident which led to him spearing I . the deceased to death, except what 1 he ~a~ told by the police and other 1 people. I I Mr. Jackson Bulashi, Principal State Attorney for the respondent I Republic, stated that the Republic supported the conviction of the I I r appellant. He disagreed with the le~rned counsel for the appellant that the I , trial court erred for convicting the appellant without establishing the motive I , for the killing. He submitted that ih law,· it was not necessary to estab'lish I . I motive before conviction. He referred to the case of Chandrakant , I Joshubhai Patel vs Republic/ [2094] TLR 218 and Mwanambi I Lumambo vs Republic [1984] TUR 336.

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I I I . On our part, we propose to; begin with Section 10 of the Penal . I I ' Code on the relevance of motive}tntention which provides:- 1 I I I 4 "1 O. -(1) Subject to the express provisions of this C(!de relating to negligent acts and omissions/ a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or for an event which occurs by accident. (2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constitute{1✓ in whole or in part; by an act or omission the result intended to be caused by an act or omission is immaterial. (3) Unless otherwise expressly declare~ the motive by which a person is induced to do or omit to do an act, or to form an intention, is immaterial so far as regards criminal responsibility.'' (Emphasis added). And as it was stated by the Court in the case of Chandrakant (supra):- 5 "We agree with the trial court's finding that the appellant was the slaughter man. As is the law, it was not necessary to prove motive. In the . deepest recesses of the appellant's own mind would be hiding the reason, and motive, that propelled him to commit a deed so foul, callous, and blood - chilling." (Emphasis supplied). In view of the clear provision of section 10 of the Penal Code (supra), we are in entire agreement with the learned State Attorney that in

a criminal cause or matter, the motive is immaterial in determining the criminal responsibility of the accused. This .leads us to the inevitable conclusion that the appeal lacks merit and we dismiss it. However, the judgment will not be complete without our comment on the action taken by the trial court at the end of the defence case. There is no gainsaying that throughout the trial, neither the defence nor the prosecution alluded to the defence of diminished responsibility on the part 6 of the appellant. However, it occurred that at ·the end of the trial the learned trial judge adjourned the proceedings and ordered that: - the accused be detained at Isanga Medical Institution for medical examination (Emphasis provided). The learned judge's reason for referring the appellant to a mental institution was given as:- "there is a high likelihood on the evidence from both side~ that the accused could have been suffering from a debilitating mental disease, or infirmity the existence of which can only either be eliminated or explained out upon medical examination'~ In his Report, the Consultant Psychiatrist, who examined the appellant stated the following conclusion:- "Mr. Dilanga Ngugagu is a person of sound mind and therefore SANE mind during the material time'~ 7 Wit~ due respect, we do not think· that the learned trial judge was • I entitled to raise the defence of insanity for the

appellant. Even if the I learned judge felt strongly that the accused might be prejudiced if the defence of insanity was not raised, thkre I was an opportunity for the trial judge to put up the proposal to the learned counsel for the accused to work on it. And as demonstrated by the Psychiatrist Report, the fear of the learned trial judge was unfounded. 1 ' DATED at TABORA this is 24 th O~tober, 2012. I I J.H. MSOFFE JUSTICE QF.APPEAL •., ' M.J. MBAROUK . JUSTICE Qf,APPEAL K.K. ORIYO

JUSTICE OF APPEAL I certify that this is a true copy of the original. '