IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
(CORAM:
MROSO, J.A., MSOFFE, J.A. And KAJI, J.A.
CRIMINAL APPEAL NO. 158 OF 2004
AMOSI MAIKO MBODELE .…………….………..…….. APPELLANT
VERSUS
THE REPUBLIC …………………………...………...… RESPONDENT
(Appeal from the Judgment of the High Court of Tanzania
at Dar es Salaam)
(Shangali, J.)
dated the 25th day of May, 2004
in
Criminal Sessions Case No. 59 of 2001
-----------JUDGMENT OF THE COURT
27 November 2007 & 30 January 2008
MROSO, J.A.:
The appellant who was convicted for murder and was
sentenced to death by the High Court has appealed to this Court
against conviction and sentence. At the hearing of the appeal he was
represented by Mr. Nyange, learned advocate, and the respondent
Republic was represented by Ms Eveta Mushi, learned State Attorney.
2
The appellant had filed six grounds of appeal but at the hearing
Mr. Nyange abandoned the first, the second and fifth grounds of
appeal and so, only grounds 3, 4 and 6 were argued.
In the third ground of appeal the complaint is that the learned
trial judge had disregarded the appellant’s defence of self-defence.
As for the fourth ground of appeal it is claimed that the trial High
Court convicted the appellant on the basis of a repudiated/retracted
confession.
Finally, in the sixth ground the complaint is that the
appellant was wrongly convicted because the trial court had relied on
irregular caution statement, confession and proceedings.
Before considering the grounds of appeal it may be helpful to
give a summary of the case which led to the appellant being
convicted for murder.
At one time the appellant worked for the deceased Paschal
Chilangazi Kasanga in Kilosa District.
However, the deceased
suspected him of theft and dismissed him from employment. At the
time of dismissal the deceased owed him Shs. 6,000/=, being unpaid
wages.
3
On 17th January, 1999 at about noon the appellant and the
deceased met at a “pombe” shop where the wife of the deceased
(PW1) Paulina Kasanga was selling “pombe” and was being assisted
by their son PW2 – Damas Pascal. The appellant ordered “pombe”
and was served by the wife of the deceased. But the deceased was
against his wife selling “pombe” to the appellant and protested
openly.
The appellant took exception to the protestations of the
deceased and a quarrel between the two ensued.
Eventually the
appellant went to participate in a dance in the same locality until
night time. At about 10:00 pm the deceased and his family left to go
home.
During that same night the appellant visited the home of the
deceased. He got into the house in which the deceased together
with his wife (PW1) and his son (PW2) slept. He obtained a wooden
pestle from inside the house and assaulted the deceased with it once
on the head. The deceased succumbed from the assault and died on
the same night and the appellant was arrested also on the same
night.
4
On 21st January, 1999 D/CPL Raymond – PW3 – took a caution
statement from the appellant. In the statement which was tendered
in evidence without objection at the trial the appellant is recorded to
have admitted causing the death of the deceased when he assaulted
him with the pestle. On the same day the appellant made an extrajudicial statement to a justice of the peace – PW4 – Fundi Ramadhani
Mangila who was a Primary Court Magistrate. The statement was
also tendered in evidence without objection and in that statement the
appellant is recorded as saying he assaulted the deceased on the
head with a pestle while the deceased was sleeping in his house.
In his defence the appellant admitted meeting with the
deceased at the “pombe”
shop and that at night he went to the
home of the deceased to demand for his money. The deceased took
a pestle with which to hit him but he grabbed it and hit the deceased
with it in self-defence. The deceased died as a result. We think it is
now appropriate to discuss the grounds of appeal.
Was the appellant acting in self-defence?
The claim by the
appellant when giving evidence that when he dealt the fatal blow
5
with a pestle on the deceased he was acting in self-defence would
appear to be a contradiction to his caution statement in which he
said that on the fateful night, when he left the “pombe” shop, he
went straight to the home of the deceased with a view to assaulting
him, to avenge himself for being cheated of his money, chicken and a
hoe by the deceased. His own words go as follows –
“Sikwenda moja kwa moja (nyumbani) bali
nilipitia kwa marehemu Pascal nikiwa na lengo
la kumpiga kwani nilikuwa na hasira ya
kudhulumiwa pesa zangu, kuku pamoja na
jembe langu.”
And then he is recorded to have said –
Baada ya kuingia ndani na kumkuta amelala
nilichukua
mwichi
(sic)
wa
kutwangia
uliokuwa sebuleni na kumpiga nao kichwani.
Hakuweza kupiga kelele.”
In the extra-judicial statement, he is recorded as having said –
6
“Usiku nilipofika nyumbani kwake (marehemu)
na kumpiga marehemu na mchi kichwani
marehemu akiwa amelala ndani kwake …..”
It is plain that if the quoted words are believed, the appellant’s
defence at the trial was an afterthought.
Mr. Nyange was fully aware of the devastating effect of the
quoted words and spiritedly advanced a two pronged approach with
regard to them in dealing with grounds 3 and 4 together. First he
criticized the advocate who appeared for the appellant at the trial for
not objecting to the admission into evidence of the caution statement
and the extra-judicial statement. In his view, it should have been
clear to the defence counsel that as soon as the appellant made a
plea of not guilty to the charge, he had disputed all the prosecution
evidence in anticipation. With due respect to Mr. Nyange, we do not
accept that argument as correct in law. When an accused person is
called upon to plead to a charge which is read over to him, he merely
pleads to the truthfulness or otherwise of the charge. He does not
thereby anticipate the evidence to be adduced later and accept it or
dispute it in advance.
This is also the view of the learned State
7
Attorney. It is conceivable, of course, that an accused person who
pleads not guilty to a charge may, subsequently after hearing all or
part of the prosecution evidence against him, change heart and
accept the charge as true.
We are not by any manner of means exonerating the learned
counsel who appeared for the appellant at the trial for his
shortcomings.
However, we do not know whether or not he
consulted with his client before the trial began which, if he had done
so, would have put him in a position to know in advance the
appellant’s views about the caution and extra-judicial statements so
as to object or not to object, as the case may be, to their admission
as evidence at the trial.
The second prong of Mr. Nyange’s argument was that the
impugned statements were at any rate repudiated/retracted by the
appellant when he gave his defence evidence. The trial judge should
have taken cognizance of the repudiation/retraction by the appellant
and look for corroborating evidence.
He argued that in this case
there would be no corroboration because neither the wife of the
8
deceased nor his son appeared to have known well the full
circumstances in which the appellant caused the death of the
deceased. In the absence of corroboration, the retracted statements
should not have been relied upon and the only evidence would be the
appellant’s version of the event.
The question then would be
whether, on that evidence, the appellant had malice aforethought at
the time he went to the home of the deceased. Mr. Nyange thought
it was obvious the appellant did not have the intention to cause
death or grievous harm to the deceased or he would not have gone
there unarmed. That argument was countered by Ms Eveta Mushi.
She explained that it was in evidence that during the quarrel between
the appellant and the deceased at the “pombe” shop the appellant
was heard by both PW1 and PW2 to threaten that he would teach the
deceased a lesson.
She said there was also the question of the
appellant, as admitted by himself, going to the deceased at night to
demand for his money and thereafter assaulting him on the head, a
vulnerable part of the body. All that was indication that the appellant
went to the deceased with the intention to harm him.
Ms Mushi
submitted that those pieces of evidence corroborated the caution and
9
extra-judicial statements, that the appellant had formed mens rea
when he went to the home of the deceased.
The fact that the
appellant did not carry with him a weapon with which to harm the
deceased did not mitigate the evil intention of the appellant, she
said, because he knew he would find the pestle in the house since he
had worked in the house and knew where the pestle was kept. Once
malice aforethought was established the question of self-defence did
not arise. She cited various cases in support of her submission such
as – Said Ally Matola @ Chumila v Republic, Criminal Appeal No.
129 of 2005 (unreported) and Enock Kipela v Republic, Criminal
Appeal No. 150 of 1994 (unreported).
Regarding the sixth ground of appeal Mr. Nyange argued that
the extra-judicial statement was recorded in an irregular manner in
that the appellant did not sign it to indicate that he was willing to
make a statement to the Justice of the Peace. The word “ndiyo” in
answer to the question –
“Je ni kweli wapenda kwa hiyari yako kutoa
maelezo”
10
was written by the Justice of the Peace who was the recording officer
and it did not give the assurance that the appellant was willing to
make a statement. Mr. Nyange also took exception to the words –
“Amesomewa na amethibitisha ni sawa.”
According to Mr. Nyange, the correct words should have been –
“Nimesomewa na …..”
because those would have been the words of the appellant and the
appellant who could read and write would have signed on the
statement and not put a thumb print like an illiterate person.
Mr. Nyange further criticized the preparation of the record of
appeal saying it did not contain the committal proceedings and the
appellant was not given a copy thereof, contrary to sections 243 to
249 of the Criminal Procedure Act, 1985.
One other irregularity
pointed by Mr. Nyange was that the Justice of the Peace was not
listed as a prospective prosecution witness at the trial. The appellant
was taken by surprise when the Justice of the Peace gave evidence.
All those irregularities and omissions amounted to a mistrial,
rendering the trial a nullity, according to Mr. Nyange. Finally, Mr.
11
Nyange submitted that if this Court does not hold that there was a
mistrial, it should at any rate find that at the very most the appellant
was guilty of manslaughter.
We wish to begin by discussing the question whether the
appellant killed the deceased in self-defence. Mr. Nyange wanted the
Court to accept the appellant’s version of the event because, he
argued, if it is accepted that the caution statement – Exhibit P4 and
the Extra-judicial statement – Exhibit P5 were retracted or repudiated
and were not corroborated, there was no any other direct evidence
on how or why the appellant caused the death of the deceased.
We have looked very carefully at all the evidence which was
adduced and we were not able to see anywhere in the appellant’s
defence where he expressly disowned the contents of exhibits P4 and
P5.
Those statements having been admitted in evidence without
objection, their evidential value remained unchallenged. What the
appellant did during his evidence in defence was simply to give a
different account on how and why he fatally assaulted the deceased.
12
In effect, there were two contradictory versions from the appellant
about the killing.
We, like the trial court, reject the argument that the appellant
was acting in self-defence.
Even without relying on the caution
statement and the extra-judicial statement, the conduct of the
appellant in going to the home of the deceased after 10:00 pm and
the unchallenged evidence of PW1 and PW2 that the appellant had
said during the quarrel at the pub that he would teach the deceased
a lesson and the fact that both PW1 and PW2 did not hear of any
scuffle in the house before the appellant dealt the blow on the
deceased all this was sufficient to show that the appellant had not
been acting in self-defence as he claimed.
Ms Mushi argued that once the defence of self-defence is
rejected then malice-aforethought will inevitably be inferred.
We
think that it does not necessarily follow that the appellant had formed
the intention to kill the deceased or to cause him grievous harm. If
all the circumstances are carefully considered it may be doubtful
13
whether the appellant had the capacity to form the specific intention
to kill the deceased or cause grievous harm to him.
It is undisputed that the appellant started drinking “pombe”
from around noon on the fateful day. The wife of the deceased –
Paulina (PW1) said in her evidence that in the night at the pub –
“The accused deemed (sic – seemed?) to
have been very drunk on that day. He was
dancing like a mad man.”
The appellant himself said in his evidence –
“….. I remember on that date I was drunk.”
The trial court itself accepted that the appellant had consumed a lot
of liquor when it said –
“There is evidence that the accused consumed
a lot of local liquor.”
It however held, correctly, that intoxication is not, normally, a
defence to a criminal charge – See section 14 (1) of the Penal Code.
14
But in sub-section (4) of the same section 14 it is provided as
follows:-
“(4) Intoxication shall be taken into account
for the purpose of determining whether the
person charged had formed any intention,
specific or otherwise, in the absence of which
he would not be guilty of the offence.”
Under section 200 of the Penal Code “an intention to cause death of,
or to do grievous harm to any person …..” is an essential element in
a charge of murder.
The learned trial judge in agreeing with Mr. Mapinduzi, the
learned State Attorney, that appellant’s state of intoxication should
be disregarded said –
“I agree with Mr. Mapinduzi that ….. the
accused was not intoxicated sufficient (sic) to
blow off the faculty of reasoning.”
It may be true that the appellant’s ability to reason might not have
been completely wiped out by intoxication but it is our considered
opinion that for a person who was so drunk, he danced like a mad
15
man, his reasoning may have been impaired so that he could not
form the specific intention either to cause the death of the deceased
or to cause him grievous bodily harm. One may be reading too much
into his threat earlier in the day that he would teach the deceased a
lesson. Those words did not necessarily mean that he would kill the
deceased or even cause him grievous harm.
Furthermore, his
conduct of going to the home of the deceased during the night may
have been irresponsible but, again, for a drunken man, it was not
surprising and one must not infer that he necessarily went there to
kill or to cause the deceased grievous harm.
The learned judge in her judgment used words which were not
justified by the evidence to infer mens rea from the conduct of the
appellant. She said, for example, that the appellant used
“a huge pounding pestle” and
“mercilessly (sic) aimed on the vulnerable part
of the body, to wit the head of the deceased.”
Now, there was no evidence that the pestle was “huge” and, in the
absence of evidence that there was sufficient light in the room which
enabled the appellant to see the head of the deceased and “aim” at
16
it, that language was emotive and prejudicial against the appellant.
It does not give the assurance that the learned judge was assessing
the evidence dispassionately.
Having reached the decision that the appellant might not have
been in a condition to form a specific intention to cause death or
grievous harm on the appellant, it must follow that the charge of
murder was not proved to the required standard and the appellant
should have been given the benefit of the doubt.
We therefore
quash the conviction for murder and set aside the sentence of death
which was meted on him.
We, however, find him guilty of
manslaughter and considering that he has been in custody for nearly
nine years by now, we sentence him to eight (8) years imprisonment.
It is so ordered.
We have not made use of the authorities which were referred
to us because they were not relevant to the approach we have taken.
The Said Ally Matola and the Enock Kipela cases were essentially
authority on how or when to infer malice aforethought from the
conduct of the accused, his utterances and weapon used by him and
17
the part of the body of the deceased aimed at by him.
In the
present case the thrust of our decision is that it is risky to infer
malice aforethought in the circumstances.
We have also found it unnecessary to discuss the other
arguments raised by Mr. Nyange in his desperate attempt to
persuade the Court that the irregularities at the trial or prior to the
trial such as that the appellant was not given a copy of the
Preliminary Inquiry proceedings or that the Justice of Peace was not
listed as a prospective prosecution witness, vitiated the trial. We do
not think the trial was vitiated because of those irregularities.
DATED AT DAR ES SALAAM this 22nd day of January, 2008.
J. A. MROSO
JUSTICE OF APPEAL
J. H. MSOFFE
JUSTICE OF APPEAL
S. N. KAJI
JUSTICE OF APPEAL
I certify that this is a true copy of the original.
(F. L. K. WAMBALI)
SENIOR DEPUTY REGISTRAR