IN THE COURT OF APPEAL OF
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.
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.
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.
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 extra-judicial 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
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 –
“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 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
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 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”
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. 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. 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 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. 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 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 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 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
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