IN THE COURT OF APPEAL OF TANZANIA
ATTABORA
(CORAM: RUTAKANGWA, l.A •• MANDIA, l.A •• And MUSSA, l.A.)
CRIMINAL APPEAL NO. 185 OF 2014
SAMWEL SIO DAVID •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
APPELLA.NT
VERSUS
THE REPUBLIC •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
RESPONDENT
(Appeal from the Conviction of the
High Court of Tanzania at Tabora)
(Rumanyika, l.)
'.,
dated the 22"d day of November, 2013
in
Criminal Sessions Case No. 70 of 2009
JUDGMENT OF THE COURT
1st &. 5th December, 2014
RUTAKANGWA,
J.A.:
The appellant
was convicted of the murder of one Magreth d/o
Nsungu, by the High Court (trial court)
sitting
at Tabora.
He was
sentenced to suffer death by hanging. Aggrieved by the conviction, he has
preferred this appeal, complaining that:
" ..the Learned Trial Judge erred in holding that the
defence of provocation was not available to the
Appeltent';
d/o
At the appellant's trial and in this Court, the fact that Magreth
Nsungu (the deceased) died a violent death was not disputed.
Also
undisputed is the fact that it was the appellant who single-handedly caused
this violent death. The bone of contention has all along been whether the
killing was done with malice aforethought or was justified on any ground,
such as provocation, hence the above alluded to sole ground of appeal.
Admittedly, save for the appellant alone, no other person witnessed
the killing. For this reason, the prosecution case was primarily predicated
on what the appellant had stated in his cautioned and extra - judicial
statements (exhibits P4 and P5 respectively). All the same, the prosecution
had also called PW1 A.S.P. Said Kassim Gingo, PW2 James Masanja, PW3
No. E 50 D/CPL Sospeter, PW4 No. F296 D/Sgt. Nassib and PW5 Peter
Reuben, to beef up its case against the appellant. The evidence of these
five witnesses was brief and except for that of PW4 D/Sgt. Nassib, went
uncontroverted .
PW1 A.S.P. Gingo told the trial court that on 24thNovember, 2007, at
about 10.00 a.m, the appellant called at Ushirombo Police Station and
reported that he "had killed his lover." Together with other police officers
PW1 A.S.P. Gingo visited the scene of the incident
2
being
led by the
I
t
appellant. The body of the deceased was found in a supine position, lying
in a pool of blood and half naked with an cut neck.
A post-mortem
examination of the deceased body which was carried out on the same day,
established the cause of death to be "severe hypovolaemic anaemia "due
to the cutting of the "oesophagus, trachea, carrotid arteries and jagular
veins." PW2 Masanja, who was the deceased brother only confirmed the
appellant's assertion to the Police that the deceased and the appellant
were "lovers".
While PW3 D/Cpl. Sospeter drew the undisputed sketch
map of the scene of the crime, it was PW4 D/S/Sgt. Nassib, who recorded
the appellant's confessional cautioned statement (exh. P4).
At the time PW4 D/S/Sgt. Nassib wanted to tender this cautioned
statement in evidence,
the defence challenged its admissibility not on
account of not having been freely and voluntarily made, but because it was
never read out to the appellant by the recorder. After a trial within a trial,
the learned trial judge overruled the objection and admitted it in evidence.
Indeed, in his brief submission before us, Mr. Mugaya Mtaki, learned
advocate for the appellant, pressed us to disregard what the appellant said
in his sworn evidence and adopt the contents of exhibits P4 and PS in
order to find and hold that the defence of provocation was available to the
3
appellant. In both statements (exhibits P4-S) the appellant stated that he
decided to kill the deceased because he was fed up with her infidelity on
top of the fact that she had infected him with the HIV virus.
In his sworn evidence, the appellant denied murdering the deceased.
He claimed that he, on one night, inadvertently slept with the deceased
who was a known HIV victim, after taking liquor at her" pombe" shop.
From that day he separated with his wife and decided to live with the
.-.
'(
deceased although he suspected her of having an affair with one Hussein.
He went on to assert that on the fateful day, he had requested the
deceased to give him water to take a bath. The deceased advised her to
hold on as it was still early for a bath. When he insisted for the water, the
=;
deceased allegedly picked up a knife and as he was struggling to disarm
her "it went astray on her neck" and she fell down on the bed.
,
.t
The three assessorswho aided in the trial of the appellant returned a
unanimous verdict.
The appellant murdered the deceased, they opined,
relying heavily on the confessionsfound in exhibits P4and PS.
In his judgment, the learned trial judge agreed with the assessors
opinions. Basing his opinion on the graphic details obtainable from the
4
undisputed Report on Post-Mortem Examination (Exh.Pl), on the nature of
the injuries sustained by the deceased, he held, and we are in agreement
with him, that the deceased "suffered a brutal... and barbaric death." He
rejected the story of accidental killing relied on by the appellant in his
defence. On this we are again in full agreement with him. The slashing of
the oesophagus, trachea, carrotid arteries and jagular veins, could not
\
·S.
'-1
have been so casually caused.
The injuries are consistent with the
explanation given by the appellant in his confessional statements. This
conclusion, finds support from the appellant's mouth. Responding to the
trial court's question, he conceded that he reported to the police that he
had "slaughtered her". We were, therefore, not surprised when Mr. Mtaki
pressed us to disregard the defence evidence and rely on exhibits P4 and
PS, to hold that the appellant was cumulatively provoked by the deceased
misconduct prior to killing her.
In his summing up to the assessorsand well reasoned judgment, the
learned trial judge did not jettison the defence of provocation to the winds.
The learned judge was of the firm view that the facts fronted by the
appellant in his confessional statements, one of which (exh. PS) was not
challenged at all, did not meet the requirements of the time honoured
5
principles on provocation. He accordingly held that the killing of the
deceasedwas a premeditated murder, hence the conviction for murder.
In his brief submission before us, Mr. Mtaki pressed us to fault that
holding of the learned trial judge.
He contended that had the learned
judge considered the pertinent facts to be gleaned from the two
confessional statements, he could not have readily rejected the defence of
provocation. He cited these facts to be, that:
(a)
the deceased and the appellant were lovers;
(b)
the deceased was known to be HIV positive;
(c)
the deceased had lied to the appellant that Hussein whom the
latter suspected to be her paramour was her close relative
...;.
(nephew), and
(d)
the deceased had denied the appellant water to take an early
i
J
bath.
Resisting the appeal on behalf of the respondent Republic was
Mr. Iidephonce Mukandara, learned State Attorney.
He argued
forcefully that the facts relied on by the appellant to justify the
homicide do not build up a sustainable defence of provocation. It
6
was his serious contention that nothing was done by the deceased
immediately before the killing which could be said to amount to
provocation. To him, the facts related in the two confessional
statements establish an undoubted premeditated murder on the part
of the appellant.
He accordingly pressed us to dismiss the appeal
and sustain the appellant's conviction.
In disposing of this appeal, we shall rely on the undisputed
facts as found in the two confessionalstatements. This is becauseas
already alluded to in this judgment, the evidence in defence was a
figment of the appellant's own imagination.
It was inconceivable
and, therefore correctly rejected by the trial court.
After carefully evaluating the entire evidence before him, the
learned trial judge found the two confessional statements to be
nothing but the truth. We cannot reproach him for so holding. This
is because the extra-judicial statement was tendered in evidence by
PWS Peter Reuben, a Justice of Peace, without any objection from
the defence.
7
We have gleaned from exh.P4 that the appellant conceived the
idea of killing the deceased on the morning of the fateful day. This is
how he put it:11
majira ya saa 06.00 hrs nilipata wazo la kumuua,
niliamua na kuanza kumpiga sehemu mbalimbali..
na... nilimkata shingo na kuhakikisha kuwa ameaga
dunia. "
\.,
·t
In exh. PShe unequivocally and pertinently says:11
20-11-2007
tukiwa tumelala alikuja yule
mwanamume mwenye BAG; hivyo nilisema
kuwa
kuepusha mengi
nijifiche
maana ni
mkubwa wa kunizidi.
Hivyo nilijificha chini ya meza na yule jamaa
aliingia na mimi
nikatoka nikaenda kulala
sehemu nyingine;
r
-t
22-11-2007 nilienda kushitaki kituo cha Polisi
MASUMBWE
kwamba
nimebakwa
na
MARGERETHDELE Nao walinikatalia.
Hivyo nilianza kufikiria na ilibidi nikalale tu kwa
yule MARGERETHDELE na BAG ilikuwa bado
limo.
8
23-11-2007
niliomba ushauri kwa kitongoji
wangu na alisema kuwa nifanye
upelelezi
wamkamate ila yule bwana hakuonekana.
24-11-2007 nilishindwa kuvumilia. Mama mtoto
nilimuacha sababu ya MARGERETHDELE naye
anazidi kuleta wanaume ndani ya nyumba hivyo
niliamua
nilichukua
KUMKAMATA na
kisu
ambacho
KUMNIGA
na
nilikamata
na
NlKAMCHINJANA KISU."
From the above extract, in which he is confessing throttling and
slaughtering the deceased, it is clear as correctly contended by Mr.
Mukandara that the deceased in between 21st November, 2007 and the
minute she was slaughtered had done or said nothing which would have
provoked the appellant. The appellant lost his golden opportunity on the
night of 21st November, 2007 to prove his suspicions that Hussein was
having an affair with his lover Magreth by allegedly seeking refuge
somewhere else. Instead, as the learned trial judge correctly observed:" The accused reacted three days later; this was
by no stretch of imagination caused by
control of himself, i.e on heat of passion. "
We subscribe wholly to this observation.
9
loss of
We have found ourselves constrained to agree with the learned trial
judge, because as this Court succinctly stated in HERMAN NYIGO V R.
[1995] TLR 178:" Normally the defence of provocation is available in the
circumstances which would otherwise constitute murder
except for the sudden loss of control of oneself
as a
result of some act which provoked the accused person. "
Such a situation was not obtaining here. The killing was not done on the
heat of passion. The appellant
acted out of malice on the basis of
unconfirmed suspicions. It is our firm finding, therefore, that the appellant
killed the deceased with malice aforethought.
His conviction and sentence
for murder, therefore, ought to be sustained which we hereby do.
All said and done we dismiss this appeal in its entirety.
DATED at TABORA this 4th day of December, 2014.
E.M.K.RUTAKANGWA
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JUSTICE OF APPEAL
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MANDIA
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K M MUSSA
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JUSTICE OF APPEAL
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hat this ·s a true copy
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