ISIDORI STANISLAUS v REPUBLIC 1994 TLR 24 (CA)

 

ISIDORI STANISLAUS v REPUBLIC 1994 TLR 24 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Nyalali CJ, Omar JJA and Ramadhani JJA

B CRIMINAL APPEAL NO. 187 OF 1991

(Appeal from the conviction of the High Court of Tanzania, at Tabora. Kajeri, PRM

Ext Jurisdiction)

Flynote

C Criminal Law - Murder - Defence of provocation.

-Headnote

The appellant was charged and convicted as charged for the offence of murder

contrary to s 196 of the Penal Code, Cap 16, and sentenced to death by the High

court. On appeal it was contended that the trial Court erred in law by refusing to

accept the appellant's plea of provocation.

D Held: No provocation in law was established and the conviction and sentence

were properly arrived at by the trial court.

Case Information

Appeal dismissed.

Cases referred to:

E (1) Yovan v Uganda, [1970] EA 405.

(2) Katemi s/o Ndaki v R [1992] TLR 297.

Mr Nasimire, for the appellant.

Mr Mapunda, for the Republic.

[zJDz]Judgment

F Nyalali CJ: delivered the following considered judgment of the court:

The appellant, Isidori Stanislaus was convicted as charged for the offence of murder

contrary to s 196 of the Penal Code and was given the mandatory sentence of death

by hanging by the High Court G at Tabora (Kajeri, PRM with extended jurisdiction).

He was aggrieved by the conviction and sentence, hence this appeal to this Court. In

this appeal Mr Nasimire, learned advocate, represented the appellant, whereas Mr

Mapunda, learned attorney, represented the respondent, Republic. Two H

memoranda of appeal were filed, the first one by the appellant himself and the second

one, subsequently by Mr Nasimire. All the grounds of appeal boil down to the

complaint that the trial Principal Resident Magistrate (with extended jurisdiction)

erred in holding that the appellant acted I without legal provocation in killing the

deceased in this case. Mr Mapunda, on behalf of the Republic, supports the decision of

the trial court.

1994 TLR p25

NYALALI CJ

From the proceedings both in this court and the trial court it is apparent that there is

common ground A on most of the matters relevant to this case. It is common ground

that on 14 April 1987, the appellant killed one Nathan s/o Itiel by practically

decapitating him with a panga in appellant's shamba, at Kibanga village, Kasulu

district. Prior to the incident, the deceased and his brother, B namely Zakaria s/o

Itiel - the first prosecution witness (PW1) - had been staying as guests at the

homestead of appellant's father. The appellant lived with his father. Shortly before

the incident, the appellant invited the deceased to accompany him to appellant's

shamba to help the appellant carry some luggage. Deceased obliged and took his

bicycle with him for that purpose. Sometime after they C arrived in the shamba, the

appellant struck deceased with a panga at the back of the neck.

It is common ground also that after thus attacking the deceased with the panga, the

appellant returned home where he asked PW1 also to accompany him with his own

bicycle to the shamba D purportedly to assist in carrying a luggage which had

proved to be too heavy to be carried by appellant and PW1's brother. PW1 obliged.

Shortly after they arrived in the shamba, the appellant slashed PW1 in the back but

PW1 managed to escape serious injury and ran away. Thereafter, the E appellant

made a shallow grave in his shamba where he buried the deceased Nathan s/o Itiel

and camouflaged it by planting some banana shoots on top of it. Having accomplished

that, the appellant returned home. Appellant, however, did not stay long at home.

PW1 turned up at night and narrated F to appellant's father and relatives what had

transpired in appellant's shamba. Anticipating trouble for himself, the appellant

disappeared from home and ran away with the bicycle of the deceased.

It is undisputed between the parties to this case that the shallow grave where the

deceased was G buried by the appellant was discovered by the villagers after a search

was mounted the following morning. The police were informed, and they came to the

scene, accompanied by a doctor, several days later. A postmortem examination was

conducted on the dead body of the deceased. The appellant was subsequently arrested

on 20 April 1987. He was taken before a Justice of the Peace before whom he

recorded a confession to killing the deceased.

At his trial he raised the defence of provocation claiming in effect that the deceased

and the appellant had been partners in an illicit business of smuggling elephant tusks

from Tanzania to Burundi. He

1994 TLR p26

NYALALI CJ

A further asserted that for sometime prior to the fatal incident, the deceased had

behaved as if he wanted to cheat on appellant's share of the last transaction.

Appellant's suspicions were confirmed when the appellant demanded for his share

when the appellant and deceased were in appellant's B shamba on the material day.

Deceased flatly refused, saying what amounted to in Kiswahili as:

`Blashara gani dihara yenyene ya niza tena ya magendo na tedha zenyewe

nimekwisha tumia na kunywew.'

C This roughly translates into English as saying `What kind of business is this! It

amounts to stealing and involves smuggling. Anyhow, I have spent all the money on

drinking.'

It is these remarks which the appellant claims provoked him into killing the deceased.

The trial court did not accept the story given by the appellant to explain his killing of

the deceased and therefore held D that the defence of provocation was not proved.

The thrust of the appeal is directed at faulting this finding of the trial court. In the

course of hearing this appeal, the court asked the parties to address it on an important

point of law, upon which the decision of this appeal turns. This is whether the story

E of the appellant, if accepted as true, discloses conduct which amounts to legal

provocation. Both sides are in agreement that the answer lies in the provisions of s

202 of the Penal Code, which states:

F `The term "provocation" means and includes, except as hereinafter stated, any

wrongful act or insult of such a nature as to be likely, when done to any ordinary

person, or in the presence of any ordinary person to another person who is under his

immediate care, or to whom he stands in a conjugal, parental, filial or fraternal

relation, or in the relation of master and servant, to deprive him of the power of selfcontrol

and to induce him to commit an assault of G the kind which the person

charged committed upon the person by whom the act or insult is done or offered.

When such act or insult is done or offered by the person to another, or in the

presence of another to a person who is under the immediate care of that other, or to

whom the latter stands in any such relation as aforesaid, the former is H said to give

the latter provocation for an assault.

A lawful act is not provocation to any person for an assault.

An act which a person does in consequence of incitement given by another

person in order to induce him to do the I act and thereby, to furnish an excuse for

committing an assault is not provocation to that other person for an assault.

1994 TLR p27

NYALALI CJ

An arrest which is unlawful is not necessarily provocative for an assault, but it

may be evidence of provocation to a A person who knows of the illegality.'

The important issue that arises in this case is whether the alleged refusal by the

deceased to pay the proceeds of smuggling, coupled with the words allegedly spoken

by him amount to wrongful act or B insult. In the case of Yovan v Uganda (1), the

Court of Appeal for East Africa while dealing with similar legal provisions, stated:

`With this in mind we would again shortly summarize the provisions of ss 187

and 188. The essentials as set out in s 188 are that there must be: C

(i) A wrongful act or insult, and as stated in ss (3) it cannot be a lawful act;

(ii) It must be such an act or insult as to deprive an ordinary person of his

self-control; D

(iii) and such as to induce him to commit an assault of the kind which he

did upon the person offering the insult;

(iv) the assault must be committed on or at least aimed at the person

offering the provocation.'

The expression `wrong' or `wrongful' is not specifically defined under the Penal

Code or the E Interpretation of Laws and General Clauses Act 1972, chap 1 of the

Revised Laws. To our knowledge, these expressions do not appear to have been

previously defined judicially within our jurisdiction or elsewhere in our

neighbourhood. However, according to Jowitt's Dictionary of English F Law a

`wrong' means `the privation of right, and injury; that which takes place when a

right is violated or infringed'. Similarly Wharton's Law Lexicon (14th ed) defines a

wrong as, `the privation of right, an injury, a designed or known detriment'. The

Shorter Oxford English Dictionary defines a G wrong as it relates to law as,

`violation, transgression, or infringement of law; invasion of right to the damages or

prejudice of another or others'.

We think that the meaning of a `wrong' as articulated above is the correct meaning

in the law H applicable in this country. It follows that the conduct of the deceased

could amount to provocation in law only if it deprived or violated a right acquired by

the appellant under the illicit transaction between them. It is, however, elementary

principle that illegal transactions do not give rise to rights recognized by the law of

the land. In other words, illegal activities take place outside the protection of the law,

and those who partici- I

1994 TLR p28

A pate in such activities do not acquire any rights in respect of which a privation

injury, violation or infringement is capable of being committed. The case of Katemi

s/o Ndaki (2) decided by this court, did not deal with the provisions of s 202 of the

Penal Code in respect of the claim made by the appellant in that case that he had

been provoked by being served with a court summons in a matter B already settled

out of court.

In the final analysis therefore it is clear that the conduct of the deceased, as disclosed

by the story of the appellant, does not amount to legal provocation. Appellant was

thus liable to be convicted as C charged. As the sentence imposed is mandatory

under the law, this appeal must fail and we dismiss in its entirety.

1994 TLR p28

E