20051026 TZCA Dar es Salaam

IN - .....THE ·-·-- -~ COURT ' __ __ -- -OF APPEAL OF TANZANIA .,

AT DAR ES SALAAM (CORAM: LUBUVA, J.A., NSEKELA, J.A., And MSOFFE, J.A.) ---· . ----- . ---··----- CRIMINAL APPEAL NO. 37 OF 2001 NICCO PETl:R@ RASTA ..................................................... APPELLANT ----·-···. .... . ·-- -- ..... -· .. . -•-; -.·--........._---~-

VERSUS . . THE REPUBLIC ..................... ~ .. ::-:::::::·:::-:.. ,. ........... ·........... RESPONDENT NSEKELA, ~.A.: ---••'>~,.. J·

JUDGMENT OF THE COURT - !. The app~llant, Nicco Peter@ Rasta was convicted of murder by ' the. ~igh;:Court (~imaro, J) sitting at Dar es Salaam and was r.,; ·•t: •. 4., ·,• \•, ► - - - -······-----•-• - - - - - - - - - •• ••••-•"-~. sentenced to the statutory death sentence. The main thrust of the l \ r ,appeal relates •,first, to the availability ..............---------~---.--- - ··-·---.. of the defence ____ of self-defence ..._. ..,.._.. . . . . . i .,._,. , :' . . a·nd second, whether or not- the-··appellant-was intoxicated at the tlme •· __,. -~,.·-·-· ~_J_,:.~------· •"""•·- . . . . he committed the offence. TfJ_e t.rL~L~D= had no difficulty in making . .-· .... ··--· J<... a finding of fact, with which we are in respectful agreement, that tl1e ........... _. -- appellant wasJhe person who inflicted the fatal injuries on the chest -----•-•--••- • ••--· r- -•• - ~ • -• ••.-• ••-, _ • ...,, • •- -• i·' ' of the deceased. ---·-- ;-· i I i ... , 2 Mr. Kweka, learned advocate for the appellant preferred one ground of appeal namely - "That the learned trial judge erred in law in holding that malice aforethought was proved beyond reasonable doubt." I Elaborating on this ground of appeal, Mr. Kweka submitted that first, the appellant and the deceased had taken some quantity of I alcohol for a considerable period of time and so the appellant was ---·-- incapable of forming

the requisite intent to kill. Second, while in the . ......--. ·- ...... - kiosk the appellant ·and the deceased were engaged in a fight as a result of which the appellant was compelled to defend himself in the manner he did. Mrs. C. S. Maganga learned State Attorney, strongly countered these submissions. She was of the view that the appellant had committed a pre-meditated murder. She submitted that the appellant had gone to the deceased's kiosk to demand a refund of his I unpaid money. After the appellant had allegedly denied any indebtedness to him, he stabbed the deceased with a knife on the chest and attempted to escape from the scene of crime. In the process, he threw away the knife but was arrested by PWl, PW2 and ,, ii ' :/ ! JI PW3. She added that the nature of the i:-1Junes on tt:e chest 11 I indicated that the appellant hab the requisite malice aforethougl1t. ' i I' . Furthermor·e, she submitted that the appellant's cond!Jct be:for·e and . I I after the killing did not point thpt he was intoxicated so as to negate

I I I 1nens 1ea on his part. i I, I, I I The prosecution case revolved around three \vitnesses. PWl • I I was one D 7993 PC Kulutera · Makelena Mtaki, PVV2 v✓ as Isawangu : Assery Kimaro and PW3 was Fredrick Herema. The appellant and the deceased were apparently friehds and business associates. On some I occasions the appellant used ~o sell on credit certain commodities to I ! i the deceased. The appellant alleged that at the time of his death, . I I the deceased was indebted tjo him in the sum of Shs. 75,000/= for I suga1· not yet paid for. On ~he fateful day, the appellont visited the I deceased at his kiosk from ~.00 pm. Since the appellant is the only person who knows precisely/what events· happened in the kiosk that led to the death of the dedeased, we take the liberty to 1·eproduce the material part of the adpellant's evidence before the trial court. He stated this - "I went to his/ khiosk (sic) for purposes of demanding payment of my debt. V·Jhen I ! arrived at his Khiosk he was selling beer (Stella). We drank wiih him inside the Kh:osk (sic). He was the orie I who was seili110- the beer (Stella). We drJnk for long until lz.te in the night but I cannot recall e.x2.ctly when. I was the one who was pay:r1g for· tile ,. beer. I reminded ;the deceased of rnv debt of TShs. 75,000 / =. By then \'✓ e were_both drunk. lJ do11't rPcall tilt:: exact number of beer taken'. When I

reminded him I ' of my debt he said he was not indebted to me. I asked how could he say that he v.1as not indebted to me. I Before I finished the . I sentence he beat me on my head....... \Ve started fighting and I took the knife and I I stabbed him. The knife belonged to the deceased. It was among the commodities he I was selling. I had to defend myself because he had cut me with a knife on my head. He also cut me on my arm and 1 on my back. My shirt was full of blood. When I stabbed Gasper he fell down." ( emphasis added) According to the appellant's own evidence, the deceased was I his friend and business associate. On the fateful dav, the appellant visited the deceased ostensibly in order to collect an outstanding debt from him. The appellant did not intrnduce th0 pul'pose of the visit until after they had imbibed some alcoholic di ini~s. P,iJparently the deceased resiled from his undertaking to rep2·; the debt. This prompted a fight inside the kiosk resulting in the appellant stabbing l the deceased with a knife which was in the kiosk. :he post-mortem :- '! examination report revealed that there were seven si·ab \vounds on the chest. The evidence of the a,Ppellant, PWl, P\V2 and PVV3 was to the effect that the appellant then plotted his escape from the kiosk fir-st, by rnnning away from the scene of crime; second ir, the I process, he threatened PWl and PW2 vvith the blood

stained knife he was holding; third, he threw it away, before being apprehended alter a chase by PWl, PW2 and PW3. Earlier on, the appellant had explained the reason he had gone to visit his business associate to demand his unpaid Shs. 75,000/ =; he testified that both of them had I drinks for which the appellant paid for; the brief discussion they had on the unpaid debt; the stabbing and falling down of the deceased; how remorseful the appellant \/\'as at the turn of events and why he decided to run away from the kiosk for fear of being lynched by the crowd. \ The anchor of Mr. Kweka's submission was th~ defence of self- defence. The essence of the defence is that the appellant was e1,titled to protect himself by the use of force~ t·J i- ?U·-:".: Fcrce used I against the appellant. PVVl a11d PW2 tesl1fied that \··.1lv:~n the 1 appellant came out of the kiosk, he was hold;r'1g a blood-stained knife. They did not see any injuries on the head, at the back or on the arm suggesting that the appellant had been att?.cked. PW3 however testified that the appellant's shirt had blood. \Ve ar·e not surprised, but it is unlikely that it was blood from injuries on his body for these three witnesses could have testified if they saw any injuries. Section 18A ( 1) of the Penal Code as amended by Act f ✓ o. 14 of 1980 reads - "18A ( 1) Subject to the provisions of the Code every person has the

right to - (a) to defend himself or any other person against any unlawful act of assault or violence to the body." In the case of Bukulukulu Ndoma v. R (1981) TLR 353 this Court observed in connection with section 18A ( 1) (a) as under· at pages 354 - 5 - ''It seems to us that the plain mea11ing of this provision is that - where self-defence 1s I pleaded, it has to be shown that the deceased committed an unlavvful act of assau!t ( :· violence to the body, knd as a r·es~!lt of suct1 conduct the prisoner inflicted the f atai blO'.··.: i on the deceased. In o'.ther words, the cor1ouct which induces the fatal injury must hcve ccme I from the deceased aAd ,, not from sonv: t hir·d \ 11 party. Whatever conclusions there are regarding the reality of the I danger posed to the appellant by the deceased's conduct, this can only be drawn from the evidencelon the record. The appellant in his evidence testified that the deceas'ed attacked him first \Vith a knife on I the head, at the back and on the arm. However PVJl and P\V2 did not see any such injuries on th'e appellant's body. These are the I witnesses who arrested him as he was runnir1g awaj' from the scene ! . of crime. The learned trial judge termed the purported self-defence 11 a "concoction. We, on our pa'rt, are in respectful agreement with the learned trial judge. On the totality of the evidence before the - I Court the deceased

did not attack the appellant with a knife. There is no evidence that the appellant was repelling ar1 actual attack from the deceased which would then bring into pla/ sectio11 1S~ ( 1) of the Penal Code. With respect, we reject as unt<::13ble Lhe cippl?llai1t's defence of self-defence. We now come to the question of intoxicatior}. ScctiCil 14 ( 1) and ( 4) of the Penal Code provides as follows - "14 ( 1) Save as provided in this section into,:ication shall not constitute a defer1ce to any criminal charge. . ( 4) Intoxication shall be taken into account for the purpose of determin1ing whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not b-2 guilty of the offence." As a general rule, intoxication affords no defence to a criminal charge but under subsection ( 4) of section 14 intoxication is taken into account in those offences requiring a specific intention "for· the purpose of determining whether the person charged had formed any intention." The onus of establishing that the appellant was not by reason of the drink consumed incapable of forming the intention to kill rested on the prosecution. \Ne r-ely on the appellant's ovvn I 1. versior, on drunkenness and assume iln his favour- tl,at he has told the I i trnth as to what took place. \Ne agree that tht-::i :=ipp-Jll2r~~ h?icl been I drn1king alcohol and was prnbably n6t

sober. HcA.'c v'E.:i, E: /ide11ee of drunkenness per se is not enough, there must be some evidence I I that the appellant's capacity may ha:ve been affected by it so that he . may not have been able to form tre necessary inti=:n~. Surely, the 1. appellant's narrative of all the seq~ence of evcr1ts starting v-,rith the I, I purpose for going to visit the dec~ased; what happened whe11 the I I two of them were in the kiosk and ,lwhy he attempted to escape from I --· -- - I. the scene of crime cannot possibl~ be said to be consiste11t with a persor, who is so dr-unk as to be,1 incapable of forming the specific 1 I I intent to kill or to cause grievous bbdily harm. . I 1, In the result, we are satis~ied that the appellant's conviction I i was well-founded. We dismiss th¢ appeal in its entirety. I:' I I,

I

I I I 4 I,, DATED at DAR ES SALAAM this 2f:, day of October, 2005. I:" I !

I I I D. Z. LUB~VA

JUSTICE OF APPEAL r i I H. R. NSEKELA JUSTICE OFiAPPEAL l I' I, J. H. MSbFFE ' ,.' JUSTICE OF APPEAL I certify that this is a true copy of the original. i :::..--·· . / . /,,_ p PE"' C' 4 ~ --..... __ _,./ .I