MATEI JOSEPH v REPUBLIC 1993 TLR 152 (CA)

 MATEI JOSEPH v REPUBLIC 1993 TLR 152 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Nyalali CJ, Makame JJA and Omar JJA

G CRIMINAL APPEAL NO. 45 OF 1993

4 June, 1993

H (From the judgment of the High Court of Tanzania at Morogoro, Kyando, J.)

Flynote

Evidence - Evidence of spouse - Compellability of spouses to give evidence against

each other in criminal cases I - Admissibility of spouse's evidence - Evidence Act

1967, ss 130(2).

1993 TLR p153

-Headnote

The appellant was convicted of murder and sentenced to death. At his trial, his wife

was compelled A to testify against him as a key prosecution witness. He appealed

against conviction and sentence.

Held: The evidence of a spouse who has been compelled to testify against another

spouse in a criminal case contrary to the provisions of s 130 of the Evidence Act 1967,

is inadmissible and of no effect. B

Case Information

Appeal allowed. Conviction for murder quashed and substituted for manslaughter.

No cases referred to.

Miss D.K. Mutabuzi, for appellant. C

Sengwaji, for respondent.

[zJDz]Judgment

Nyalali, C.J., read the following considered judgment of the court:

The applicant, namely Matei Joseph, was charged and convicted in the High Court on

circuit at D Morogoro for the offence of murder contrary to s 196 of the Penal Code

and was sentenced to death as prescribed by law. He was aggrieved by the conviction

and sentence hence this appeal to this Court. Miss Mutabuzi, learned Counsel from

the Tanzania Legal Corporation represented the E appellant before us, whereas Mr

Sengwaji, learned State Attorney represented the respondent Republic. The

memorandum of appeal contains two grounds of appeal, but Miss Mutabuzi

abandoned the second ground. The remaining ground states: F

`That the learned Trial Judge misdirected himself in law and in fact in not

giving the appellant the benefit of doubt.'

According to the record of the trial in the High Court, much of the relevant facts are

not in dispute between the parties including the killing by the appellant of his fatherin-

law, namely Zebedayo Tupa, G whose daughter, that is, Maria Zebedayo, was

appellant's wife at the material time. It is common ground that the appellant's

marriage to Maria Zebedayo had been bedevilled with marital problems for sometime

prior to 10 September 1989 when appellant killed his father-in-law. Maria Zebedayo

had H run away from the matrimonial home on several occasions, and on the fateful

day, she had been brought back to the appellant by the deceased. The appellant and

the deceased had then gone out together for a drink of local liquor and when they

returned to the appellant's home, they found Maria Zebedayo missing. That triggered

off a quarrel I

1993 TLR p154

NYALALI CJ

A between the appellant and the deceased which led the appellant to inflict fatal

stab wounds upon the deceased. Thereafter the appellant went to surrender himself

and his weapon to the local authority, that is, Hassani Mgalusi (the Ward Secretary).

Subsequently the appellant was taken to a B Justice of the Peace to whom he made

an extra-judicial statement.

The only dispute in this case concerns the circumstances under which the appellant

stabbed the deceased to death. Counsel for appellant has submitted to the effect that

appellant could have been acting either under self-defence or provocation or under

the influence of drink. We have examined C the evidence. Apart from the appellant,

the only eyewitness to the incident is the wife of the appellant, that is, Maria

Zebedayo, who gave evidence at the trial as the first prosecution witness (PW1).

Unfortunately, according to the record of the trial, the provisions of s 130 of the Law

of Evidence Act D 1967 concerning the compellability of spouses to give evidence

against each other in criminal cases were not complied with by the Trial Court. Subsections

(1) to (3) state:

`(1) Where a person charged with an offence is the husband or the wife of

another person that other person shall be a competent but not a compellable witness

on behalf of the prosecution, subject to the following E provisions of this section.

(2) Any wife or husband, whether or not of a monogamous marriage, shall

be a competent and compellable witness for the prosecution -

F (a) in any case where the person charged is charged with an offence

under chapter XV of the Penal Code or under the Law of Marriage Act 1971;

(b) in any case where the person charged is charged with an act or

omission affecting the person or G property of the wife or husband, of that person or

the children of either or any of them.

(3) Where the person whom the Court has reason to believe is the husband

or wife, or, in a polygamous marriage, one of the wives of the person charged with an

offence is called as a witness for the prosecution, H the court shall, except in the

cases specified in ss (2), ensure that the person is made aware, before giving evidence,

of the provisions of ss (1), and the evidence of that person shall not be admissible,

unless the Court has recorded in the proceedings that this subsection has been

complied with.'

I It is clear under the above cited provisions that in cases like this

1993 TLR p155

NYALALI CJ

one, which does not fall within the categories of cases stipulated under ss (2), the

evidence of a A spouse, such as PW1, which is given contrary to the relevant

mandatory provisions, is inadmissible and of no effect. That leaves us only with the

evidence of the appellant himself, the evidence of the Ward Secretary (PW4) and the

appellant's extra-judicial statement, The evidence of PW4 who B seems to be a

credible witness, excludes the possibility that the appellant could have been drunk to

the extent of not being capable of forming a culpable intent. As to the issue of selfdefence,

it seems that there is no clear suggestion or assertion either in appellant's

evidence at the trial or in his exculpatory statements to the ward secretary and the

Justice of the Peace. The relevant part of his C evidence reads:

`As I was attending the call of nature Tupa approached me from behind and

hit me with a piece of an iron which was a tractor part. I fell down and he started

kicking me with his feet and fists. I lost self-control and as I was having a D knife

then and also due to drink, I took out the knife and stabbed him with it in the

stomach and it cut from one side of it to another. He left and started to run. I rose and

due to the state in which I was I also started to run . . .'

As to the relevant part of his extra-judicial statement to the Justice of Peace, it reads

in Kiswahili: E

`. . . alikuja kunivamia na kuanza kunipiga kwa vile alikuwa ananishembulia

na kunitupa ehini. Daada ya kunitupa shini, nikapata kasire ndipe niliohomoa kisu

nikamchoma kwa vile slinisukuma nilimehoma tumbeni na kiunoni. Nilivyoang

aweumia nilikwenda CCM kutoa ripoti . . .' F

The thrust of this evidence is provocation and not self-defence. This evidence is

consistent with appellant's statement to PW4 whose relevant part of his testimony

reads: G

`He said he had truly killed him by stabbing him twice with a knife in the

back in the stomach and that intestines had come out and he was totally finished. He

said he had come to me for safety as he did not want to be bothered by people. He

said I should take him where he should be taken for killing deceased. He said he had

stabbed H deceased because deceased had got drunk and had gone to make `fujo' at

his (accused's) house.'

In the light of the evidence therefore, the defence of self-defence I

1993 TLR p156

A appears not to be available to the appellant. As to the defence of provocation, the

Trial Court rejected it mainly on the basis of the testimony of PW1. But as already

pointed out, PW1's testimony is inadmissible for non-compliance with the relevant

provisions of s 130 of the Law of Evidence Act. B There is no other evidence to

discredit the appellant's story. We are of the view that in the light of the available

evidence, the defence of provocation cannot safely be excluded. We are bound

therefore to quash the conviction for murder and substitute therefore a conviction for

the offence of manslaughter contrary to s 195 of the Penal Code. Taking into account

the circumstances of this C case and the fact that the appellant has been in custody

since 1989, we think that a sentence of ten years from the date of his conviction - that

is - from 10 April 1992 will meet the justice of the case. Accordingly, we allow the

appeal by quashing the conviction for murder and substituting instead a D

conviction for manslaughter, contrary to s 195 of the Penal Code and sentencing the

appellant to ten years imprisonment commencing from 10 April 1992.

1993 TLR p156

F