JESINALA MALAMULA v REPUBLIC 1993 TLR 197 (CA)

 JESINALA MALAMULA v REPUBLIC 1993 TLR 197 (CA)

Court Court of Appeal of Tanzania - Mbeya

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

CRIMINAL APPEAL NO. 4 OF 1993 E

12 August, 1993

(From the conviction and sentence of the High Court of Tanzania at Mbeya,

Mwaikasu, J.) F

Flynote

Criminal Practice and Procedure - Assessors - Judge removes the question of

provocation from Assessors - Fatal to resulting conviction.

-Headnote

The appellant was found guilty and convicted of the murder of her husband. The

Trial Judge found G that the appellant had been provoked by the deceased.

Nevertheless the learned Trial Judge thought that the defence of provocation was not

available to the appellant and directed the assessors not to consider this defence. On

appeal the Court of Appeal of Tanzania considered the proprietary of the H Trial

Judge's direction to the Assessors and the effect of removing the question of

provocation from the Assessors.

Held: To remove the question of provocation from the Assessors when there is such

provocation is fatal to the resulting conviction.

Case Information

Appeal allowed. Conviction for murder quashed, sentence of death set aside, appellant

found guilty and convicted of manslaughter. I

1993 TLR p198

A No case referred to.

Ndibalema, for the appellant.

M.T. Mbise, for the respondent.

[zJDz]Judgment

B Mfalila, J.A., delivered the following considered judgment of the court:

The appellant Jesinala Malamula was found guilty and convicted of the murder of her

husband Edison Mkasiwa. Upon this conviction she was sentenced to death. She

lodged this appeal against C both her conviction and the sentence of death.

There was only one material witness in this case, namely Mesia d/o Edison (PW1), the

daughter of both the appellant and the deceased. According to her, she was present

when this sad event D between her parents took place. She said in her evidence that

on 21 September 1988 her parents ie, the deceased (her father), the appellant (her

mother) and Lutinala Nbasu (PW2) (her father's second wife) returned home from the

pombe shop at 7 pm. On arrival, a neighbour one Masundi came and invited her

parents to go to his home for a drink. He asked then to go and join his guests for a

drink. E Her father did not go but he allowed his junior wife, Lutinala to go to

Masudi's house as requested but he refused to let her mother, the appellant go,

although she specifically asked for permission to do so. This led to a quarrel between

the two particularly after the deceased had abused her in the F most foul language

calling her foolish. The deceased warned the appellant that if she persisted in her

intention to go to the drinking party, he would beat her. Thereupon the appellant

challenged him to do so. The deceased like the man he was, accepted the challenge

and advanced towards her. As he G did so, the appellant picked a pestle which was

near at hand and beat him with it on the shoulder and waist. But as the deceased was

still advancing on her, the appellant beat him on the neck. The deceased fell down. At

this stage, Mesia said, she raised an alarm and started crying. People came, including

the deceased's junior wife. They carried the deceased into the house and the next

morning H the deceased was taken to hospital where he remained for two weeks

before being discharged. But two weeks later, the condition of the deceased

deteriorated, he was taken back to hospital where he died a week later.

In her defence at the trial, the appellant denied these allegations. She denied beating

the deceased I as alleged by her daughter (PW1) or asking for permission to go for a

drink at Masudi's house.

1993 TLR p199

MFALILA JA

According to her, when the three of them returned home at about 7 pm on the day in

question, their A neighbour one Masudi invited them for a free drink at his house.

Her co-wife Lutinala (PW2) went to Masudi's house, but she and the deceased

remained at home. She personally elected not to go, she said because she thought it

was rather late. Later her daughter Mesia (PW1) told her that her father B had gone

to the pombe shop. After some time the deceased returned home and he asked her

why she continued drinking pombe in spite of his having prohibited her from

drinking. The deceased then proceeded to assault her with his fists three times on the

head. The appellant said she ran away. The deceased went back to the pombe shop.

After some time as she was in her house, her C daughter Mesia called her out to

come and see how the deceased was walking. When she went out she found the

deceased had fallen down near the latrine.

In his summing up to the gentlemen Assesssors, the Trial Judge directed them to

consider three D questions; first whether in the light of the evidence it is the

appellant who caused the death of the deceased. Secondly whether the death was

caused with malice aforethought. Thirdly, if malice aforethought is present, whether

it was negated by the accused's intoxication. The Trial Judge E specifically directed

the assessors not to consider provocation as a defence which is legally available to the

accused. On this direction, the gentlemen Assessors were divided. Two of them

advised that the accused was guilty of murder as the person who caused the death of

the deceased and that although she had taken some pombe, she was not so drunk at

the time she assaulted the F deceased as to render her incapable of forming a specific

intention. The third gentleman Assessor differed saying that on the evidence the

accused was incapable of forming a specific intention by reason of her drunkness. The

Trial Judge accepted the advice of the majority Assessors and found G that the

accused before him had killed her husband with malice aforethought by reason of the

weapon used and that at the time she was not so drunk as to be rendered incapable of

forming a specific intent. Accordingly he found her guilty of murder and sentenced

her to death. H

In this appeal, Mr Ndibalema learned Advocate filed two grounds of appeal, that the

learned Trial Judge erred in law and fact when he failed to consider the appellant's

possible defence of provocation and secondly that the learned Trial Judge erred in law

and fact when he rejected the I appellant's defence of intoxication in the

circumstances of this case. At the hearing of the appeal, Mr Hdibalomo

1993 TLR p200

MFALILA JA

A quite properly abandoned the defence of complete denial advanced at the trial.

He accepted the prosecution case that it is the appellant who killed the deceased, but

he submitted that this was done without any intention on the appellant's part to kill

her husband. Firstly, he said that this death occurred following a family drunken

brawl in which the appellant picked a weapon ready at hand and B inflicted it on

non-vulnerable parts of the body. Secondly, he submitted that in this case the

deceased seriously provoked the appellant by his threats to beat her and abusing her

in the most foul manner in the presence of their young daughter. In the

circumstances he said, the appellant should C have been convicted of the lesser

offence of manslaughter.

We are satisfied that this was a typical family brawl which was not helped by the

pombe which both D parties had taken from 2 pm to 7 pm. We think it is

unfortunate that the defence at the trial was not competently handled. The appellant

was allowed to embark on a futile exercise of complete denial when the evidence

supporting her role in the killing of her husband was so glaring, provided by none

other but her own daughter who professed to love both her parents. Similarly,

Defence Counsel at E the trial embarked on a futile exercise to discredit the girl

Mesia as a witness. Defence Counsel should have energetically advanced the twin

defences of provocation and intoxication which are so clearly brought out by the

record. Defence Counsel should have used the evidence of PW1 to defend F the

appellant rather than trying to discredit it. From the evidence of PW1, it is clearly

brought out that the deceased used foul language to abuse the appellant in the

presence of their young daughter. He threatened to beat her and indeed was going to

make good his threat when the appellant decided to stop him. In view of the

deceased's previous conduct of beating his wives whenever he was drunk, G the

appellant was entitled to take his threats seriously. These certainly were provocative

acts on the part of the deceased. But the Trial Judge thought this defence was not

available to the appellant and directed the Assessors accordingly. We intend to

reproduce in full the Trial Judge's summing up on this point because it contains such

serious misdirections that our comments may help to avoid H such pitfalls in future.

He stated:

`Now turning to the defence of provocation, the evidence we have for the

defence that tends to establish the same is that following a quarrel with the deceased,

the deceased beat her on her head three times with a fist after when she I ran away,

and the deceased left her and went away too. Assuming for a moment that the

accused picked the pestle

1993 TLR p201

MFALILA JA

and beat the deceased as alleged, and of course that would have to be regarded

to have been so done in the heat A of passion, while there was no time for her to

cool, which then could be said to have deprived her of the power of self control, the

next and important question that would have to be answered, is whether by the use of

the pestle as alleged, what she did as she beat the deceased with it could be said to

have been of the nature of or commensurate B with the assault alleged to have been

done by the deceased to her. To that I would clearly give a `no' answer. In the

circumstances, the use of a pestle in repelling such deceased's alleged assault, was

totally out of proportion and gravely excessive force. Accordingly I cannot put to you

that there was such legal provocation as to constitute a valid defence for the accused.

So do not have to labour yourselves considering such a defence. Apparently should C

you accept the evidence of PW1, the only eye witness and daughter of the accused, it

would appear that the deceased, thought he threatened to beat the accused and did

approach her for the purpose empty handed, the accused ran away before she was

beaten.' D

Since the Judge found that there was provocation, he should not have removed the

question from the Assessors and decided it on his own. This Court has held on a

number of occasions that to remove E the question of provocation from the

Assessors when there is such provocation is fatal to the resulting conviction, for it is

impossible to know that the Assessors would have said had the question been put to

them.

In this case there was provocation in the form of insults and threats to beating and the

parties had F been drinking, this made it a typical family brawl. Mr Mbise, learned

State Attorney had at first supported the appellant's conviction, but on second

thoughts, decided that the appellant's conviction for murder cannot be supported. He

said that on the evidence she should have been convicted of manslaughter. G

We agree, and for the reasons we have given, we allow the appeal, quash the

appellant's conviction for murder and set aside the sentence of death. Instead we find

her guilty of the lesser offence of manslaughter and convict her of this offence. H

As to the sentence, we think that the appellant's criminality was not as such a level as

to call for a severe punishment. As we have indicated, it was a family brawl following

a long session of drinking which culminated in insults and threats. The appellant may

have thought she had a genuine I grievance at her being refused permission to go for

a drink while her co-wife was allowed, even if the

1993 TLR p202

A deceased may have had good reasons for doing so. She has been in custody since

1989. This makes it about four years. As she herself stated, she loved her husband, she

could hardly therefore have wished to cause his death.

In the result we sentence the appellant to such term of imprisonment as will result in

her immediate B release from prison.

1993 TLR Cp202

C