DAUDI SABAYA v REPUBLIC 1995 TLR 148 (CA)

 DAUDI SABAYA v REPUBLIC 1995 TLR 148 (CA)

Court Court of Appeal - Dar Es Salaam

Judge Kisanga JJA, Omar JJA and Lubuva JJA

H Criminal Appeal No 67 of 1994

May 23, 1995

(From the decision of the High Court of Tanzania at Dar es Salaam, Mackanja, J)

Flynote

Criminal Law - Murder - Malice aforethought - Self defence - Use of excessive force

in self defence - Section 18B(3) of the Penal Code. I

1995 TLR p149

LUBUVA JA

-Headnote

The appellant was charged with and convicted of murder by the High Court. The A

trial court found that the appellant killed with malice aforethought ought because he

used excessive force and rejected his defence of self-defence. The appellant inflicted

several serious cut wounds on the deceased whom he found stealing from the shamba

he was guarding and who, after some persuit stopped and started advancing towards

the appellant holding a knife in hand. On appeal: B

Held:

(i) Having regard to all the circumstances of the case as a whole the

defence of self defence was properly founded;

(ii) The appellant used greater degree of force than was necessary in the

circumstances; he should have been found guilty of manslaughter;

Conviction of murder set aside, that of manslaughter substituted. C

Case Infomation

Cases referred to:

(1) Ipabala s/o Ibrahim v. R [1953] 20 EACA 300

(2) Sigismund Palmer v. R [1971] AC 814 D

Miss Mjasiri for the appellant.

Miss Chinguwile for the respondent.

[zJDz]Judgment

Lubuva, JA delivered the following considered judgment of the Court: E

The High Court of Tanzania sitting in Dar es Salaam (Mackanja, J) convicted the

appellant of the offence of murder contrary to s 196 of the Penal Code. He was

sentenced to death. From the conviction and sentence, he has appealed to this court.

F

As established from the evidence on record, the facts of the case are simple. They may

be summarised as follows: The appellant and the deceased lived at Goba, Kinondoni

District within the outskirts of Dar es Salaam. The appellant was engaged to guard the

farm of one Michael Mushi in which pineapples were grown. On 27 November 1988

at about 8 pm before retiring to bed, the appellant went G around the farm to

inspect and ensure that the security position was in order. In the course of his rounds

in the farm, the appellant saw the shadow of a moving object. On approaching the

object, it dawned on the appellant that it was a man H who was then running away.

The appellant pursued the fleeing person shouting 'thief! thief'. The fleeing thief who

is the deceased in this case stopped and then advanced towards the appellant holding

a knife in his hand. The appellant hit the deceased with a stick which was wrested

from him (appellant) by the deceased. As the deceased still persisted in advancing

towards the appellant, fearing for his life, the I

1995 TLR p150

LUBUVA JA

A appellant slashed the deceased with a panga. The deceased sustained serious

multiple deep injuries over the shoulders and the back. While on the way to the

hospital the deceased died. The appellant was arrested and charged with the offence

of murder.

B At the trial it was not in dispute that the appellant caused the death of the

deceased. The issue was whether the appellant caused the death of the deceased with

malice aforethought. It was the appellant's defence that he killed the deceased who

was found at the farm stealing. The learned Trial Judge held that the appellant used

excessive force in inflicting several serious cut wounds on the deceased. The appellant

was thus convicted of murder. C

In this appeal, Miss Mjasiri, learned counsel from the Tanzania Legal Corporation

advocated for the appellant and Miss Chinguwile, learned State Attorney appeared for

the respondent, Republic. The memorandum of appeal filed contains three D

grounds of appeal which in effect boil down to one point of complaint. That is, that

the learned Trial Judge erred in rejecting the appellant's defence of self defence.

Arguing on this point Miss Mjasiri, with distinct eloquence, addressed us at length on

the fact that in the circumstances of the case the prosecution had failed to prove

malice aforethought against the appellant. That the appellant should have E been

convicted of the lesser offence of manslaughter and not murder because the appellant

caused the death of the deceased in the course of defending himself (appellant)

against the threatening deceased, Miss Mjasiri contended. F

In support of her submission, Miss Mjasiri referred us to the case of Ipalala s/o

Ibrahim v R (1) on the basis of which she said, the learned Trial Judge had resolved to

decide the instant case. Unfortunately, she lamented, the learned Trial Judge came to

the conclusion which in her view was not in accord with the principles set out in that

case. Miss Mjasiri, also made further reference to the G Privy Council decision in the

Australian case of Sigismund Palmer v R (2) which was also considered by the learned

Trial Judge. In her submission, she stressed that even though the correct principles on

self defence as restated in this case were taken into account in this case, the learned

Trial Judge failed to distinguish the circumstances of this case from those in the

Palmer case. As a result, in the circumstances of the case, she said, the Trial Judge fell

into the error of convicting H the appellant of the offence of murder and not

manslaughter.

Miss Chinguwile, learned State Attorney, who as already indicated appeared for the

Republic, conceded to the submission that I

1995 TLR p151

LUBUVA JA

the appellant should have been convicted of manslaughter and not murder. In view

A of the fact that in the evidence on record, the deceased was found stealing from the

shamba which the appellant was guarding, the Trial Judge was wrong in rejecting the

defence of self defence, Miss Chinguwile contended. She further argued that in view

of the provisions s 18A (3) of the Penal Code, the appellant having used more force

than was reasonably necessary, the appellant should have been convicted of

manslaughter. B

From the record of this case before the High Court and the oral submissions before us

at the hearing of this appeal, it is apparent that the essential facts are not disputed.

The main question in this appeal is whether the defence of self defence C could in

the circumstances of this case be sustained. On this, Miss Chinguwile, the learned

State Attorney while in agreement with Miss Msajiri learned Counsel for the

appellant that the appellant used excessive force, categorically asserted that the Trial

Judge should have found the appellant guilty of manslaughter because, D she said,

the defence of self defence could not be discounted. In order to resolve this issue it is

imperative first to have a clear perception of the law as it stands in Tanzania today.

This, it appears to us the learned Trial Judge sufficiently E addressed himself on in

the judgment in which reference was made to ss 18, 18A and 18B of the Penal Code.

These are the provisions which, it should be noted, provide for circumstances in

which the right to defend one's self or one's property or others against any unlawful

act of seizure, destruction or violence. However, the right of defence provided for

under s 18A of the Penal Code is subject to the limitations set out under s 18B which

provides: F

18B: (1) In exercising the right of self defence of property, a person shall be

entitled only to use such reasonable force as may be necessary for that defence. G

(2) Every person shall be criminally liable for any offence resulting from

excessive force used in self defence or in defence of another or in defence of property.

(3) Any person who causes the death of another as the result of excessive force

used in defence, shall be guilty of manslaughter. H

Apart from these clear statutory provisions on the defence of self defence in Tanzania,

and as correctly pointed out by the learned Trial Judge, case law is another important

source of guidance in deciding cases of this nature in Tanzania. In the instant case, the

main evidence from which the sequence of events leading to the I

1995 TLR p152

LUBUVA JA

A death of the deceased is reflected in the extra judicial statement of the appellant.

This was a statement made by the appellant before a magistrate as a justice of the

peace on 3 December 1988, six days after the incident (27 November 1988). This was,

to our minds recent enough for the appellant's memory to recount vividly what

happened before the death of the deceased. In the statement, the appellant among

others said: B

'... Mara niliona kama mtu amekaa. Nikaanza kumsogelea na kabla sijamfikia

hatua 3 hivi akaanza kukimbia mimi huku namfukuza na kupiga kelele za mwizi,

mwizi.... C

Mara katika kufukuzana huke nilimkuta nikampiqasfimbe mbili ubavuni mara

marehemu alininyang'ganya fimbe na akatoakisu na kukiweka mkononi ili amijeruhi

juu ya mali yangu Kwa bahati mkono wa kushoto nilikuwa na panga hivye kabla

hajaanza kunikata nilimuwahi na kuanza kumkata kwa kuwa kulikuwa giza sikujua

nimenkata sehemu gani kwani marehemu alikuwa anatake kunirudishia' (emphasis

supplied). D

As already pointed out, the learned Trial Judge accepted the evidence of the appellant

as the only witness who could tell how the cut wounds on the back of the deceased

were inflicted. On this evidence and as the extra judicial statement E extract above

shows, it is evident that the appellant while in pursuit of the fleeing deceased from

the shamba as a suspected thief, inflicted two blows on the deceased by use of a stick.

Thereafter, in the process of the pursuit, according to F the appellant's statement,

the deceased having wrested the stick from the appellant held out a knife while

advancing to attack the appellant. In these circumstances which were believed by the

learned Trial Judge as truthful, could the appellant avail himself of the right of self

defence? The learned Trial Judge rejected the defence of self defence when he said: G

'It could be said that the accused was also entitled to arrest the deceased and

that he was also entitled to use all reasonable force to subdue the deceased. But it is

now clear that the deceased did not resist the arrest through any violence. In my view

the two blows which the H accused inflicted on the deceased were unlawful and the

deceased was entitled to defend himself. In the circumstances of this case the first two

blows were a series of unlawful attacks on the deceased which were committed out of

no legal justification.'

From this it is apparent to us that the learned Trial Judge while accepting and relying

on the extra judicial statement of the appel- I

1995 TLR p153

LUBUVA JA

lant, the analysis and conclusion reached are based on parts of the statement and A

not the statement taken as a whole. This, Miss Mjasiri, learned Counsel for the

appellant submitted was not proper on the part of the learned Trial Judge because it

resulted in the rejection of the defence of self defence raised. Referring to the case of

Ipalala s/o Ibrahim v R (1) the learned Trial Judge resolved to decide this B case on

the basis of the principles set out in that case. Applying the principle in the Ipalala

case to the circumstances of this case, the Trial Judge held that as was the case in the

Ipalala case the right of self defence was not established because no unlawful act had

been established which from the beginning had posed imminent danger to the

appellant. C

It should be noted that the circumstances and facts in the Ipalala case are different

from those in the instant case. In the Ipalala case, the appellant killed the deceased

who at the time was struggling with the appellant's companion. The appellant hit the

deceased from behind with a stick which he (appellant) had D fetched. The blows

caused grievous injury and death to the deceased. In defence, it was submitted that

the appellant had acted in defence of his companion's person in that the appellant had

reasonably feared that the deceased was attempting to kill his companion. Dismissing

the appeal, the Court of Appeal for E Eastern Africa re-affirmed the principle that

killing of another is justifiable where an accused person acts without vindictive

feeling and believes, and has reasonable grounds that a person's life is in imminent

peril and that his action is absolutely necessary for the preservation of life. F

The Court further held that there was no basis upon which it could be inferred that

the appellant honestly and reasonably believed that his friend's life was in imminent

peril and that his action in hitting the deceased on the head was absolutely necessary

for the preservation of life. In the instant case, however, with G respect, we agree

with Miss Mjasiri, learned Counsel that the circumstances are distinguishable. Here,

as the evidence in the extra-judicial statement shows, unlike in the Ipalala case, the

life of the appellant himself was threatened and not his companion's. Furthermore,

taking into account the sequence of events as H revealed from the extra-judicial

statement as a whole and not in portions as the learned Trial Judge did, it seems

reasonable to us that the life of the appellant was in imminent peril when the

deceased advanced towards him (appellant) threatening to attack (him) with a knife

in hand. In that situation, we think it was reasonable for the appellant to take such

action as was necessary for the preservation of his life against the I

1995 TLR p154

LUBUVA JA

A deceased's threatened act of violence to his (appellant) body. From this point of

view, it seems to us that the first two blows inflicted on the deceased by the appellant

were rather more of an action on the part of the appellant taken as a reasonable

means to prevent the commission of theft by the deceased at the shamba and not as a

series of unlawful acts on the part of the deceased as the Trial Judge held. In our

considered opinion, such are the circumstances in which B the defence of self

defence could properly be called in.

Having taken the view that the circumstances and the evidence of the case as a whole

warranted the invocation of self defence which is enough to dispose of this appeal, we

do not think it necessary to address ourselves any further on the case C of Sigismund

Palmer v R (2). Our attention was drawn to this case by the learned Counsel for the

appellant. The learned Trial Judge relied on the decision of that case for the

proposition of the law that if resistance exceeds the bounds of D mere defence and

prevention, the defender would himself become an aggressor. With respect, we think

this is an overstatement of the law on self defence because in deciding whether it was

reasonably necessary to have used as much force as was used, regarding must be had

to all the circumstances of the case. That is, E each case in which excessive force is

used, must be taken on its own individual merit and not on a generalised basis. That is

the general principle which was underscored in the Palmer case in which the defence

of self defence was extensively discussed.

F Though as already indicated, there was evidence in support of self defence, it is no

gainsay that the force used was excessive. The post mortem examination report bears

this out. It shows that the deceased sustained multiple deep cut wounds over the

shoulder and on the back with amputed index and middle fingers.

G In Tanzania, the law is clearly spelled out under the Penal Code for a person who

causes the death of another as a result of excessive force used in defence. For an

offence committed under these circumstances, s 18B(3) of the Penal Code provides for

a conviction of manslaughter. In the instant case, we agree with Miss Mjasiri, learned

Counsel for the appellant supported by the learned State Attorney H that having

regard to all the circumstances of the case as a whole, the defence of self defence was

properly founded. We also agree with both learned Counsel that as the appellant used

greater degree of force that was necessary in the circumstances, he should have been

found guilty of manslaughter and not murder. Had the learned Trial Judge considered

the sequence of events leading to the I

1995 TLR p155

LUBUVA JA

death of the deceased as a whole and not in phases, no doubt he would well have A

come to the same conclusion.

For these reasons, we set aside the conviction for murder and sentence of death. In

substitution thereof, we enter a conviction for manslaughter. Taking into account that

relevant factors and circumstances of the case we sentence the appellant to five (5)

years imprisonment effective from the date of his conviction before the High Court.

B

1995 TLR p155

D