19890323 TZCA Dar es Salaam4 1

IN THI:; COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM ( CORAM: ~5;'.\J\'iE, -I. A. , KI SAN GA, J. J?,;. , And OMAR, J •A.) I CRIMINAL APPEAL NO. 2• OF 1988 I MT. 39973 PTE. JOHN JONAS • • • • APPELLANT versus 'rHE REP\JBLICo ,. o • • • • • • • • ~ RESPONDENT t (Appeal from thP. conviction of the High Court •f Tanzania at songea) (Rubama, J.) .t-•'' dated the 26th day of N•v~mber, 1987 in Ci;_iminal Sessions Case No. 7 of 1985 JUDGMENT OF THE COURT The apPP.llant was charged w1 th and convicted· of the offence of murder contrary to section 196 of .the Penal Code. Four prosecution witnesses gave evidence to thA effect that the appellant PTE John Jonas was seen on 29.4.1984 at the pombe club in the Village of Lizaboni in th~ township of Songeae He first appear~d with his companion and asked to bP. all•wed to sit with the drinkers at what was popularly'k' ]fnOwn as the youth club . ~ shel t-=r. The people present refused to have more people join their ~.up . -~ . as the liquor was not enough to satisfy more people. Appellant according to the prosecution witnesses P.w.1, P.W.2 and P.W.4 lAft the place, only to return shortly afterwards, with a banana in his hands eating it. He was seen dtopping it on the ground and steoping on it,. People protested Over this dirty habit and appellant abused them and said he could do nasty things to the cleaner of the club ioe• PoWo2 as well as to another male member there~ Then a fracas ensued and appP.llant was thrown out by -the peOplP. h~ seemed bent on annOy1ng. Shortly afterwards appellant was seen returning to the same group which he had ear:lier approached·, this time he was armed with a knife which he carri~d openly. He passed sevRral people ;• :~ .. who seeing his threatenin9 m•od and the w•.tds he. was uttering, ·•' ... .•••·eoe/2. . ,. ~ . ' :.. 2 scattP.red in fear of the loss of their lives. Appellant went straight to the same shelter where deceased was present alone, others having run away, and stabbed him on the left side-Of the chest near the arm pit which act ~aused his death the same eveningo Appellant's defence was that he was attacked mercilessly until he lost all consciousness and he did not know what happened after that •. The learned trial judge analysed the evidence of all the four witnesses and pointed out the discr.epancies and came t'- the conclusiin that appellant was the cause of all that happened there at the club. He was more of the aggressor than the victim. The attack he suffered in the hands of the drinkers was invited by him becnuse of the abuses he huried at them and the provocation he the appellant seemed to have caused as a result of his overbearing conduct which was deliberate. The appellant's defence of,,provocation was clearly unacceptable both to the learned trial judge and to this Court. His plea that he was attacked by the group until he became unconscious and did not know what took place afterwards - especially ab~ut his alleged possession of a knife and its use on ·tllle deceased - this w~s completely rejected by the trial judge who maintained that app"llant knew what he was doi.ng and also mentioned deceased and •i:::wt other, people as his choice of attack. we are in full agreem.ent with the finding of the trial judg~ a.s ·~ to thA guUt of the appell';rit"'.,·-~e find that he was properly co:1.vict'2'io . I ,'\ We see no merit ·in the appeal whi~h we hereby dismiss. . : .., \'·. . . \ -l\ \ DATED at fDi:i.R ES SALA.-.M thii!; 2\jrd day of March, 1989. :•i I I ;:11 ' ,I~ cf ',t,.' I tvj/ \•. .;:j:1-1L • M. HJ,KAME '','..,_ .. - - - . .~~;USTICE OF APPEAL --~., . . .. -;.; ,-, R.H. KISANGA --------- JUSTICE APPEAL OF