SHABANI RASHIDI v REPUBLIC 1995 TLR 259 (CA)

 

SHABANI RASHIDI v REPUBLIC 1995 TLR 259 (CA)

Court Court of Appeal - Dar Es Salaam

Judge Kisanga JJA, Mfalila JJA and Lubuva JJA

Criminal Appeal No 194 of 1994 B

October 23, 1995

(From the conviction and sentence of the High Court of Tanzania at Dar es Salaam,

Mackanja, J) C

Flynote

Criminal law - Murder - Provocation - When the defence of provocation is available.

-Headnote

The appellant appealed to the Court of Appeal of Tanzania challenging his D

conviction for murder and sentence of death by the High Court of Tanzania. His main

ground was that the trial court did not accept that the defence of provocation was

available to the appellant. The Court of Appeal considered this ground against the

background of the appellant's denial of killing the deceased and that the relationship

between the appellant and the women who the appellant alleged to have caught

committing adultery with the deceased had terminated. E

Held:

(i) For the defence of provocation to avail the appellant two factors must

be present: first that a relationship between him and Fatuma still existed and secondly

he must admit to killing the deceased. F

(ii) There was ample evidence that the relationship between the appellant

and Fatuma had effectively ended in 1986;

(iii) Once the appellant denied killing the deceased the defence of

provocation disappeared and the Trial Judge was right in rejecting the defence of

provocation. G

Case Infomation

Appeal dismissed.

No case referred to.

Mselemu for the appellant.

Korosso for the respondent. H

[zJDz]Judgment

Mfalila, JA read the following ruling of the court:

The appellant Shabani Rashidi was charged with and convicted of murder by the

High Court (Mackanja, J) sitting at Dar es Salaam. Consequent upon this conviction

he was sentenced to death. This appeal is against the conviction and sentence. I

1995 TLR p260

MFALILA JA

A The facts are not complicated. According to the prosecution witnesses, the

appellant and a woman, Fatuma Hussein (PW1), cohabited as man and wife from

1983 to 1986 when they formally ended their relationship. They even divided B

whatever they had earned together, in particular from produce. Fatuma then lived as

a single woman with her parents from 1986 to 1988 when the deceased Ayubu Hatibu

started courting her. With her parent's consent, she accepted his advances and they

soon developed a love relationship. According to Fatuma, the deceased C intended to

marry her. Then on 28 January 1988 at about 10 pm as the two of them were seated in

her bedroom, the appellant suddenly burst in and without much ado proceeded to

stab the deceased. He stabbed him in the stomach. Both the deceased and his lover

ran out of the house shouting for help, the deceased clutching his stomach perhaps to

prevent the intestines from pouring out. The D appellant caught up with him and

started kicking him. Neighbours came in answer to the alarm. These included the

Chairman Saidi Mwelupunge (PW3) and Fatuma's brother, Zuberi Hussein (PW2),

who managed to separate the two. The E appellant told them that he had stabbed the

deceased because he had found him committing adultery with his wife, Fatuma. The

appellant was arrested and police from Chalinze Police Station took the deceased to

hospital where he died of the injuries on 31 January 1988. The appellant was charged

with this offence.

F In his defence, the appellant denied this allegation. He disputed the allegation that

at the time of this incident his relationship to Fatuma had been terminated.

According to him he had simply taken a second wife and he used to alternate

between the two women. On the fateful day, he was supposed to be at the home of

the second woman. But because one of his children with Fatuma was ill, he G

decided to go and visit Fatuma's home to see how the child was doing. It was during

this unexpected visit that he found Fatuma and the deceased committing adultery. He

became extremely provoked he said. He got hold of the deceased and pulled him

down from the bed and he fell down. When the deceased got up he saw him holding

a knife. Seeing this, the appellant said, he kicked the deceased on H the legs. As the

deceased fell down, he fell on the knife he was holding. When he got up, he ran out

of the house. The appellant added that he pursued the deceased while raising an alarm

and caught up with him about 100 paces from the house. When neighbours answered

his alarm, he told them that he had found the deceased committing adultery with his

wife. They started assaulting the deceased, but I

1995 TLR p261

MFALILA JA

when at last they saw who he was, they stopped their assaults. The appellant A

therefore denied the charge that he murdered the deceased.

After considering the whole evidence, the learned Trial Judge rejected the appellant's

version of events. He believed Fatuma's evidence and on that basis B rejected the

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

of self-defence because the deceased was not armed with any weapon and he rejected

provocation because his relationship with Fatuma had ended two years previously.

Fatuma was free to take another lover. He therefore convicted him and sentenced

him as indicated. C

In this appeal, only one substantial ground was filed on behalf of the appellant, that

the learned judge erred both in law and fact rejecting the appellant's defence of

provocation and that the appellant should have been given the benefit of doubt. D

At the hearing of the appeal, Mr Mselemu from the Tanzania Legal Corporation

advocated for the appellant, and argued that as there was no formal dissolution of the

relationship between the appellant and Fatuma, the appellant was entitled to be

provoked when he found the deceased committing adultery with his wife or

concubine. In rebuttal, Miss Korosso learned State Attorney who appeared for the E

Republic, argued that the defence of provocation was not available to the appellant

because at that time there was no relationship between him and Fatuma, such

relationship had already come to an end. F

On our part we think that for the defence of provocation to avail the appellant, two

factors must be present. First, that a relationship between him and Fatuma still

existed, and secondly, he must admit to killing the deceased. As to the first factor, G

there was ample evidence which was accepted by the trial Court, and in our view

rightly, showing beyond controversy that whatever relationship there was between

the appellant and Fatuma, it had effectively ended in 1986. From then on, Fatuma

considered herself free and indeed she was free to take on another lover. On this

basis, she informed the appellant that she had already got another man, H hence he

could only visit to see the children. The second factor was also absent because the

appellant denied killing the deceased. According to him, the deceased fell on his own

knife he was holding in readiness to stab him. Once this version was rejected as it

was, then the defence of provocation disappears. We are therefore satisfied that the

Trial Judge was right in rejecting the defence of pro- I

1995 TLR p262

MFALILA JA

A vocation. It was not available to the appellant in the circumstances of this case.

This being the only ground of appeal, we are satisfied that this appeal has no merit

and we dismiss it in its entirety. B

1995 TLR p262

C