IN THE COURT OF APPEAL OF
AT ARUSHA
(CORAM:RAMADHANI,
C. J.; MROSO, J. A. And RUTAKANGWA, J. A.)
CRIMINAL APPEAL NO. 221 OF 2007
BETWEEN
PHILIPO
THEMANINI … APPELLANT
AND
THE
REPUBLIC … RESPONDENT
(Appeal
from the decision of the High Court of Tanzania
at
Moshi)
(Munuo,
J.)
dated
the 15th day of June, 1999
in
Session
Case No. 9 of 1997
……
JUDGMENT OF THE COURT
29 October, 2007
RAMADHANI, C. J.:
On
15th May, 1994, the appellant went to his uncle, Emmanuel Mchomba,
PW 1, at Lokoro Kikelwa, Rombo, Kilimanjaro Region, looking for a job. PW 1 arranged
for the appellant to share a room with the deceased, Clement Matei. The following
evening, the appellant rushed to PW 1’s house and told him that they were attacked
by some bandits and that the deceased was killed. PW 1 told the appellant to
report the matter to the Police. The appellant did not do so but instead went
to a local beer shop where he was later arrested and charged with the murder of
the deceased.
D/SSgt
Joseph, PW 3, investigated the matter. He found a headless corpse in the room
which had been occupied by the appellant and the deceased and saw some marks on
the ground from which he concluded that a struggle preceded the death. He found
the severed head dumped among banana shoots 18 paces away from the house. The appellant, in an extra judicial
statement which was recorded by one John Liberati Swai, PW 4, a Ward Executive
Officer, owned to have slaughtered the deceased.
The
learned judge being satisfied with that evidence convicted the appellant as
charged and sentenced him to suffer death and hence this appeal canvassed by Mr.
Ezra Mwaluko, learned advocate, and resisted by Mr. Henry Kitambwa, learned
State Attorney for the respondent/Republic.
Mr.
Mwaluko had only one ground of appeal: that the learned trial judge did not consider
the plea of the appellant of self-defence while the appellant was the only eye witness.
Mr. Mwaluko reiterated the story of the appellant that when he suddenly woke up
he saw the deceased standing beside the appellant’s bed brandishing a panga, he overpowered the deceased, deprived
him of the weapon, and used it to slaughter the deceased.
Mr.
Mwaluko submitted that under section 18B (3) of the Penal Code if excessive
force is used in self-defence then the killing is manslaughter and that the
appellant should be so convicted as was in Daudi Sabaya v. R [1995] TLR
148.
Mr.
Kitambwa submitted that the Republic supported the conviction. He argued that
once the appellant had disarmed the deceased then he was no longer in danger
and, therefore, he should not have used the weapon against the deceased. Mr.
Kitambwa pointed out that the appellant manifested malice aforethought by severing
the head of the deceased from the trunk and by lying to PW 1 that they had been
attacked by bandits who had killed the deceased. The learned State Attorney
also contended that the struggle marks on the ground that PW 3 spoke about
could have been made by the writhing of the torso.
We
agree with Mr. Mwaluko that there were only the appellant and the deceased in
that room and that the appellant is the only surviving eye witness. So, his word
should be scrutinized against the circumstantial evidence consisting of the
following four incidents: One, the struggle marks found on the floor of the
room in which the killing took place. Two, the appellant disarmed the deceased
and used the weapon against him. Three, the severed head was found wrapped in a
paper bag and thrown in the banana plantation. Four, the appellant lied to PW 1
that they had been attacked by bandits and that the deceased was killed in the
process.
As
for the struggle marks, two different explanations were canvassed. Mr. Kitambwa
argued that they were made by the writhing of the deceased’s body after the
head was severed. But to Mr. Mwaluko the marks indicated a fight between the
two. Both explanations could be correct. PW 3 did not describe the extent of
the marks he saw. We do not know the size of the deceased so as to be in a
position to assess whether or not the torso could make such marks. All in all
we are left in doubt as to what actually happened. Our law is very clear that
in case of a doubt the benefit should go to the accused person, in this case
the appellant. We may as well observe that the learned trial judge did not
consider the evidence of these marks at all.
Was
the appellant clearly out of danger once he had disarmed the deceased? The Court asked Mr. Mwaluko that question and
his reply was that though the appellant was able to disarm the deceased there
was no guarantee that the deceased could not have done the same. It cannot be said that the appellant was
entirely safe, especially as it is not clear if the appellant had opportunity
to escape from the room.
We
were referred to Joseph Hugo Liganga v R. 1992 TLR 354 (CA) where the appellant used a panga
against an unarmed deceased. This Court had this to say at p 357:
Reading through the
judgment of the trial court, it becomes abundantly clear to us that the learned
trial judge treated self defence and provocation in great detail. In our view
it is not easy to fault the learned judge's reasoning. When he went in to
collect the rice from the deceased's room, the appellant armed himself with a
panga. Indeed the learned judge thought it more likely than not that the
appellant was also armed with the axe for he could not see how the axe got into
the deceased's room, given the manner in which it was ordinarily kept in his
room. If he was going merely to collect rice for cooking, why arm himself so
heavily? The appellant explained that it was his habit to walk about with his
panga wherever he went "even in the toilet". We ask ourselves, why?
of course we do not know what kind of toilet facilities he had. But would this
necessitate his walking into his sister-in-law's room at night armed with the
panga? The learned trial judge rejected this and found that the appellant went
into the deceased's room with criminal intentions. We agree. The version which
the appellant gave in his evidence at the trial would give rise to a defence of
self defence and provocation. But since the deceased was no longer armed at the
time the appellant bashed her head, we agree with the learned judge that there
was nothing against which the appellant was defending himself. He was in his
own words just revenging.
The
present appeal is distinguishable from Joseph Hugo Liganga. Here there
is no evidence that the panga
belonged to the appellant. In that case the entry into the deceased’s bedroom
with a panga was taken to be proof of
malice aforethought.
As
for the third issue, we concede that the severing of the head is undoubtedly
evidence of excessive force. But if self-defence is accepted then that goes to
whether the killing was justified or it was manslaughter but not whether or not
it was murder which can only be considered when plea of self-defence is
rejected.
Mr.
Mwaluko was emphatic that since the learned trial judge found that the
appellant was acting under self-defence, it is trite law that any excessive use
of force reduced the killing to manslaughter.
The
learned judge said:
Even in self
defence, the excessive force used to cut off the head and wound both hands of
the deceased, totally negates accidental killing.
With
all due respect, the learned judge mixed up two defences: self-defence and accidental
killing. We agree with the learned judge that there was no accidental killing. But
when the learned judge considered the possibility of self-defence, then she
should have applied the law regarding that defence, and that is that excessive
force negates justifiable homicide and renders the killing manslaughter.
The
severing of the head, and even the way it was disposed of, is not proof of
malice aforethought and the appellant, when answering a question of an
assessor, stated:
I was sleeping when
he wanted to cut me with the panga it
was easier for the deceased to kill me. I never intend to kill the deceased
though I cut his head and put the head in the plastic bag. I put the head in
the plastic bag out of confusion and fear after the killing.
Lastly,
there were the lies of the appellant to PW 1 that the deceased was killed when
the deceased and the appellant were attacked by bandits. Lies of an accused
person or a suspect may disclose mens rea.
In Salum Yusuf Lilundi v. R., High Court Criminal Appeal No. 26 of 1984
(Mtwara Registry) (unreported), the appellant, a watchman, denied being on duty
on the material night while in fact he had been. It was held that his unabashed
lies corroborated the confessions of the co-accused persons.
However,
there are also lies which are given not as a cover up but for fear of one’s
safety. This is especially so when the lies are given almost immediately after
a crime. We have quoted the answer of the appellant to the assessor where he owned:
I put the head in
the plastic bag out of confusion and fear after the killing.
In
Manyaki d/o Nyaganya v. R, [1958] EA 495 at 498 the Court of Appeal for
Eastern Africa, following Gathitu s/o Giondo v. R. (1956) 23 EACA 526; R.
v. Levy [1921] 1 K. B. 18 at 161 and R. v. Jones [1949] 1 K. B. 194,
decided:
There was evidence
on which the learned judge could make the finding that Wakuru’s motive in
saying at first to the police that the deceased had gone to Shinyanga was fear
for her own safety. That was a finding of fact which we should not interfere.
We think that the learned judge was right in saying that such a finding
disposed of the argument that she was an accessory after the fact and therefore
an accomplice.
The
ratio decidendi is that if lies are given for fear of own safety then one is
not an accomplice, that is, the lies are not taken as proof of malice
aforethought. We think that that principle, though it has been used in cases of
accomplices, is also true in case of a principal offender. Thus the lies of the
appellant to PW 1 should not be taken to be proof of malice aforethought.
For
all the above reasons we are of the decided view that self defence was
available to the appellant. We, therefore, quash the conviction for murder and
replace it with a conviction for manslaughter. We set aside the punishment of
death. Since the appellant has been in custody for nine years from the date of
conviction and five years from the date the offence was committed, that is, a
total of 14 years, we order his immediate release unless his incarceration is
otherwise lawful.
DATED at DAR ES SALAAM this 3rd day of June, 2008.
A.S.L. RAMADHANI
CHIEF
JUSTICE
J. A. MROSO
JUSTICE
OF APPEAL
E. M. K. RUTAKANGWA
JUSTICE
OF APPEAL
I
certify that this is a true copy of the original.
(F. L. K. WAMBALI)
REGISTRAR
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