HERMAN NYIGO v REPUBLIC 1995 TLR 178 (CA)

HERMAN NYIGO v REPUBLIC 1995 TLR 178 (CA)

Court Court of Appeal - Mbeya

Judge Ramadhani JJA, Mfalila JJA and Lubuva JJA

Criminal Appeal No 15 of 1995 B

June 16, 1995

(From the conviction and sentence of the High Court of Tanzania, Mapigano, J) C

Flynote

Criminal law - Murder - Defence of provocation and self defence - When available.

Criminal law - Murder - Malice aforethought - Manifestations of.

-Headnote

D The appellant was convicted of murder by the High Court. In an unprovoked

manner, using a heavy stick, he had hit the deceased hard on the head. Subsequently

the deceased died. On appeal the appellant complained that the trial court should

have accepted his defence of provocation and self defence and found him guilty of the

lesser offence of manslaughter.

E Held:

(i) Normally the defence of provocation is available in circumstances

which would otherwise constitute murder except for the sudden loss of control of

oneself as a result of some act which provokes the accused person;

F (ii) There was no provocation at all involved in this case;

(iii) In the absence of a fight between the appellant and the deceased and

that it was the appellant who started attacking the deceased with a heavy stick

forcefully, the defence of self defence was not available either;

G (iv) The appellant's utterances that he was killing the deceased because of

sorcery is a clear manifestation of malice aforethought

Case Infomation

Appeal dismissed.

No case referred to.

H Kapinga for the appellant.

Mbise for the respondent.

[zJDz]Judgment

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

The High Court sitting in Iringa convicted the appellant of the murder of Musa

Chatila. The incident took place at the village of I

1995 TLR p179

LUBUVA JA

Kaning'ombe within Iringa District. On 27 September 1992 at about 5.30 pm the A

deceased had gone to a nearby pombe shop for refreshment. Ana Kabogo (PW1) was

also present at the pombe shop. It would appear that at some stage while the deceased

was exchanging greetings with PW1 somewhere outside the pombe shop, the

appellant came armed with a bamboo club on his back. Without any B further ado,

the appellant hit the deceased hard on the head. The deceased fell down unconscious.

The appellant was heard by PW1 announcing: 'I am killing you because of your

sorcery'. PW1 raised an alarm in response to which people came to the scene

including Fidelis Mtende (PW2). The appellant was raging and C threatening other

people. He was, however, subdued and arrested.

Charged with the offence of murder contrary to s 196 of the Penal Code, the appellant

put up the defence of provocation and self-defence. In a sworn statement, he claimed

that when he met the deceased at the pombe shop, the deceased struck the appellant.

That the appellant wrested the stick from the D deceased and with the stick, he

(appellant) hit the deceased on the head once. Furthermore, the appellant flatly

denied that PW1 was present when the incident took place. The learned Trial Judge

rejected the defence of self-defence and provocation and held that the appellant

assaulted the deceased unlawfully with malice aforethought. The appellant was

accordingly convicted and sentenced to E death. He has appealed against the

conviction and sentence.

Mr Kapinga, learned counsel who advocated for the appellant argued one ground of

appeal. That is that the appellant should have been convicted of the lesser F offence

of manslaughter and not murder. The reason, Mr Kapinga stated, was that the

defences of self-defence and provocation were available to the appellant. He

contended that the Trial Judge erred in not believing the defence of the appellant that

he was attacked by the deceased. Mr Kapinga further argued that PW1 did not G

indicate the time she had arrived at the scene and so it was possible that the appellant

was attacked before her arrival. He urged the court to allow the appeal against

conviction for murder and in substitution therefor a conviction for manslaughter be

entered. H

The only issue for determination in this appeal is whether the defence of provocation

or self-defence was available to the appellant. Otherwise, as informed from the bar by

Mr Kapinga, the rest of the facts are not in dispute. It is common ground that the key

witness for the prosecution is PW1. She was talking with the deceased when the

appellant came, armed with a bamboo club and I

1995 TLR p180

LUBUVA JA

A started attacking the deceased. In her evidence, she is categoric that there was no

fight initiated by the deceased as claimed by the appellant. She raised an alarm in

response to which other people came to the scene where the deceased was lying on

the ground unconscious. On this, she is fully supported by Fidelis Mtende (PW2) who

was among the people who responded to PW1's alarm. PW2 found B the deceased in

critical condition and the appellant who was there was arrested. As already observed,

the learned Trial Judge found PW1 and PW2 as credible witnesses and consequently

rejected the appellant's defence of provocation and self-defence.

C Mr Mbise, learned senior State attorney for the respondent Republic, had

submitted that once the evidence of PW1 and PW2 is accepted as the learned Trial

Judge did, the defence of self-defence and provocation is not available to the

appellant.

D We accept Mr Mbise's submission that with PW1 and PW2 having been accepted

as witnesses of truth by the Trial Judge who was in a better position to assess their

credibility, we have no reason to differ from the Trial Judge's finding on the

credibility of these witnesses (PW1, PW2). On the basis of this evidence (PW1 and

PW2) is the defence of self-defence or provocation available to the appellant? Our

answer is that it is not available. As correctly observed by Mr E Mbise, learned

senior State attorney, in the absence of any quarrel or fight, in an unprovoked

manner, the appellant hit the deceased hard with a heavy stick on a vulnerable part of

the body i.e. the head. There is no basis upon which the appellant could avail himself

of the defence of provocation or self-defence. F

At this juncture we wish to observe that normally the defence of provocation is

available in circumstances which would otherwise constitute murder except for the

sudden loss of control of oneself as a result of some act which provokes the accused

person. This, as shown, was not the case in the instant case. There was no provocation

at all involved. On the other hand, from the evidence, in the G absence of a fight

between the appellant who started attacking the deceased with a heavy stick

forcefully, the defence of self-defence was as properly held by the learned Trial Judge,

not available either.

H In all the circumstances of the case, there is no basis upon which to fault the

learned Trial Judge in convicting the appellant of the offence of murder. The

appellant's utterances that he was killing the deceased because of sorcery is in our

view a clear manifestation of malice aforethought. The appellant was therefore

properly convicted.

The appeal is devoid of any merit, it is dismissed in its entirety. I

1995 TLR p181

A