19880505 TZCA Dar es Salaam 1

. ., IN THE COURT OF APPEJ\.L OF T.1:i.NZiuiJI.ll. AT Z!i.NZIBAR CRIMINAL APPE!ll, HO. 48 OF 1988 CROSS LPPE1\L NO. 49 OF 1988 S. M. Zoo o • o_ o o • • ·• • • • APPELLii.NT VERSUS MSABIKA BILALI. IU1LOGURU • • • • • RE.SPOND ENT (Appeal from the conviction and sentence of the High Court of Zanzibar at Zanzibar) (Ramadhani, C.J.) dated the 25th d.ay of November, 1987 in Criminal Sessions Case No. 5 of 1987 JUDGMElFr OF THE COURT 1 NAKAME 2 J ~ A• g I The respondent MSABIK£1. BILALI Kii.LUGURU was charged with the murder of his neighbour, a man called KH11.m:s PAULO SEIRIWA! He was found guilty of the lesser offence of Manslaughter and was accordingly ;, convicted and sentcmced to imprisonment for ten years. S. I:I~ Z. is appealing against the High Court judgement, urging that the respondent ought to have been convicted.. for Murder. The respondent is cross-appealing against the sentence, complaining thot it is 11 too sevGre in the circumstances of the case 11 • The deceased was a new comer to the area where the respondent and his mother were living. The raspondent sold him a house in the respondent's homestead so ·the deceased became a very close neichbour of -:-;. the respond.ent and r..is mother. The evidence is tl1at the d.eceased was a cantank~rous person and that he was on a number of occusions \'I--- - J reported to the lo~al CCM officials for being abusive and a nuisance to the respoI}<lcnt and. his mother. When .\he deceaecd would not men:l • •~ • e o o • • • /2 / / 2 - · his yays and t~e respondent got fed up, the respondent shifted to another area so as to avert trouble.· He would merely visit his mother from time to time. At the time when the unhappy incident took place the respondent was staying with his mother who had given birth to a child and so the rEspondent wos looking after her. According to P.\·t-.5 FliTUMA BINT AJ\'!Ej the local cell-leader 9 there had been another quarrel bdween the respondent and the deceased a few days before the killing. ·At the respondent's trial, and even before it 9 the respond.ent did not deny killing the deceasGd. He slashed the deceased with a panga a number of times and 9 according to the Post-Mortem exa111ination report 9 Exh. Pl 9 the deceased suffered as nany as eight cut wounds. P.Ho1 Dr. ABDALLJill DUCHI was of the opinion that the caum=: of death was shock and haemorrhage as a result of the injuries sustn ined. The. responde~t 's defence was that he killed. the deceased when he 9 the_ respo1;1dent 9 was defending himself from an attack by ,the deceD,.idd. In reducing the offence to Manslaughter, ,R8madhani 9 C.J. who hrnrd the cDse,was sDtisfied. that the defences of ProvocDtion and Self ~D6fence were available to the respondent. He found. thot the respondent was acting under provocation and that the respondent was also defending himself from the deceased 's attack. ,S.M.Z~ is complaining against those findings by the· learned Chief Justice. r.'Jr. Mtembei 9 learned State Attorney 9 subrni tted before us that the evidence on record was enough to support the graver offence of Murder. ' Lipiki 9 learned Counsel for the respondent 9 On the other hand Mr. urged that the conviction for Manslaughter was the proper one. Mro Lipiki 1 s only, complaint was 9 as aforesaid 9 that the sontGnce imposed was too severe. He said thDt it should be so reduced as to have the respondent set free. • ••• 0 0 0 /3 / .J 3 We propose to start with the issue of Provocation. He B.re able to say -without any hesitation that, on the evidence, that defence was not available to the respondent. As Mr. Mtembei quite ri;'.;-btly submitted 1 even the respondent hirnse lf j_ did not claim thE t he was 1 acting under provocation. Granted that there was a history of bad blood between the respondent and the deceased, and granted again, if only for the sake of argument, that on the fateful day the deceased said thG .respondent's brain was like that of a dog, the innuendo in Zanzibar being that the respond.ent was in the habit of mounting his own mother like a dog would, the respondent himself is loud and clear that he was not provoked by all this.. He says 11Hakuna sik.11 , niliyokasirika katika mizozo yetu" ;·,and again, of th~ events on the fateful· day, 0 .Sikukasirika bali :qikij ihami." He was not provoked within the meaning of the law, and if we may say so, this does not seem to be out of character. ThG picture -thet emerges of the resiondent is that of a person of even temperament and disposition, always trying to reconcile his mother and the deceased, and even on the day of the killing when the deceased allegedly tried to revive the earlier quarrels, the respondent said but by-gones were by-3·ones. We_ re·spectfully ; . agree with Mr. Mtembe i that there was .no evidence to sustain the finding of provocation. We wish next to consider ,Self-Defence, which is really 1-1hat the respondent relied on at his tr:j_al. He gave a detailed. account of what he said immediately p.receded the killing. Mr. Lipiki urged that the learned Chief Justice was entitl<Jd to find that the respondent killed the d ecease¢i. in the course of the respondent defending himself~ I · d omg only that he used excessive force 1n · so. \·'e v are not of that view. The evidence of P.W.2 who was a mere fifty-fig·ht feet away was that he saw the respondent arrive at where the deceased was washing his . f ee t . an d procee d.e d t o a tt ac k h u:i. Af. ter hi·tting the deceasod ·••ofer:,0••/4 I F .- JI, ~ ~ - - '~,~-. ~ · • · ~ J l r - 4 once with the panga thG respondent chased the deceased. who ran into the fields and P.W.2 was not in a position to see what tronspired thereafter. We are satisfied that P .W .3 did see the latter part of the attack, even though he might have added some salt. P .W.3 says the respondent was chasing the deceased and cutting him with a panga 9 which would tend to support P :w .2 1 s version that the dececlsed ran away after being cut. On the respondent's own account the dece8sed's lmife 9 if the deceased did have one 9 fell qo\-m soon after he had. ' dealt the deceased 1 s the first blow 7 and the second blow thereafter was the terrible one on the neck, the 19 cm.x10cm. deep into the neck, - but the deceased suffered severcil other cut wounds after tl12t. We are not satisfied. that the respondent's life and person were really in danger and that the respondent was defending himself when the deceased was injured and fleeing. The ci,rcumstances make us believe that the attack on the deceased w£ls unprovoked as .-:• P.W.2 told the trial court. It is possible the respondent had beer '..,:::-oodin::; over the past evcmts and decided to avenge himself. That would bG neithE.:r 0 Provocation nor Self-Defence. It would be an act of reven6 e, and Murder. (See SAIDI fll.1JAM\:JINDI 1 s'Gase 9 1972 HCD 12)., Like all the three assessors at the trial 9 but not for the same reosons, we are satisfied that the respondent i~ guilty of Murder and should have been so found. We therefor~ allow the appE:';31 by S .M.Z. and accordingly set aside the High Court's conviction for Manslaughter and the sentence of ten years imposed. . We substitu~e for the foregoing a conviction for Murder and a sentence of Deaf:1. In the circumstances we naturally do not have to consider the res pendent' s cross-appeal again~t sentence. We wish to remark that 9 unless there 8ire, good reasons to the contrary 9 to be recorded in the proceedings ,,asa~ssors should. g{ve their •• ••••e>•oj/5 - 5 opinions in the order they first took their seats~ In. tho :present case the assessors gave their opinions in this orderi Assessor 2 9 3 9 l; and we wonder wrzy-. DATED at ZANZIBAR this 5th day of May 9 1988. A. MUSTAFA JUS'l'I CE . OF APPJ.!lll.L L. Mo r'.IAKAME JUSTICE OF APPEAL A. M. A. OMAR JUSTTICE OF APPEAL I certify that th~ is a true copy of' the original. SENIOR DEPUTY RffiISTfilffi.