Amosi Maiko Mbodele v. Republic, Cr app no 158 of 2004 (murder case)

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 25^th 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 17^th 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 21^st 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 22^nd 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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