MOSES MUNGASIANI LAIZER ALIAS CHICHI v REPUBLIC 1994 TLR 222 (CA)

 MOSES MUNGASIANI LAIZER ALIAS CHICHI v REPUBLIC 1994 TLR 222 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

B CRIMINAL APPEAL NO. 99 OF 1994

28 November, 1994

C (From the conviction of the High Court of Tanzania at Arusha, Mushi, J)

Flynote

Criminal law - Murder - Self-defence - Whether plea of self-defence is available to a

person who started the fight.

D Criminal Law - Homicide - Death occurring as a result of a fight - Whether it is

murder or manslaughter.

-Headnote

This was an appeal against conviction for murder. The appellant argued that he

shoould havve been convicted of the lesser offence of manslaughter instead of murder

as the death of the deceased was the result of a fight.

E Held:

(i) The defence of self-defence is available also to a person who has started

a fight depending on the circumstances of the case;

(ii) Where death occurs as a result of a fight an accused person should be

found guilty of the lesser offence of manslaughter and not murder.

Case Information

F Appeal allowed.

Cases referred to:

(1) R v John Wimaana [1968] HCD 49.

(2) R v Ramzan Ahmed Jamal [1955] 22 EACA 504.

G Mwale, for appellant.

Mwaimu, for the respondent.

[zJDz]Judgment

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

H The appellant, Moses Mungasiani Laizer alias Chichi, was charged with and

convicted of murder contrary to s 196 of the Penal Code and sentenced to death.

Dissatisfied with the decision of the High Court he has come to this Court.

Mr Mwale, learned advocate, appeared for the appellant while Mr Mwaimu, learned

State Attorney, advocated for the Republic.

Mr Mwale essentially argued that on the evidence before the High I

1994 TLR p223

MNZAVAS JA

Court the learned Trial Judge should have convicted the appellant not of murder A

but of a lesser offence of manslaughter contrary to s 195 of the Penal Code as, it was

submitted, there was a fight between the deceased and the appellant before the latter

fatally attacked the former. The learned State Attorney on the other hand supported

the conviction for murder arguing that the appellant had ambushed the deceased,

PW1 and PW2 in an attempt to commit the offence of robbery. B

In this case the conviction of the appellant for murder of the deceased stands or falls

on the evidence of PW1 and PW2. C

According to the evidence of PW1 on 28 September 1991 at about 9 pm, he was in the

company of the deceased and one Florida Ndosi (PW2) at Kivulini Bar quenching

their thirst. They remained there for a while and left to Tanta Bar. As they were on

their way to Tanta Bar the deceased and himself were assaulted by two people whom

they identified as Chichi, the appellant, and one Simon Alfayo. D When they asked

their assailants why they were attacking them the assailants attacked them all the

more and the appellant took a knife from inside the pocket of his jacket. At this

juncture the witness told the trial Court that he ran away to enlist assistance from his

watchman (PW3) - And added `I left the accused fighting with the deceased while

holding a knife'. E

PW2's testimony was to the effect that after Kivulini Bar they left to PW1's place of

work and that as they were going two young men came from the side of the path and

slapped the deceased on the shoulder. The deceased asked the young men why they

assaulted him and a reply came from one of them - `Tunataka kukunyang'anya pesa'.

F

The appellant said in his defence given on oath that he was also at Kivulini Bar on the

material evening drinking. From Kivulini Bar he went to `Baa ya John Lema' where

he drank beer. From there he proceeded to a hotel of Mama Elizer. G Thereafter he

went home accompanied by one Simon Alfayo. On the way they met three people,

two gentlemen and a lady walking at close-range; the lady being in the middle. He

recognized one of the men as Elibarjki (PW1). According to his H defence he

greeted them in a perfectly proper manner - `Jamani habari ya saa hizi' but they did

not reply. He all the same touched the lady's shoulder and said to her - `Naona leo

uko na akina Niko'. PW1 is said to have replied - `Kwani unafahamu huyu

mwanamke', jumped on the appellant and held him by his shirt and at the same time

the deceased hit him with his fist and fell him on the ground and held him by his I

1994 TLR p224

MNZAVAS JA

A neck. According to his defence it was when he was being held on the ground that

he pulled his knife and stabbed the deceased in self-defence.

In finding the appellant guilty of the offence of murder the learned Judge said inter

alia:

B `In other words the accused cannot be heard to say that he was overpowered

and therefore justified to stab the deceased so as to reduce the act of killing to that of

manslaughter as found by the assessors in their opinions. It will be an extremely bad

precedent to allow someone to deliberately and with unknown motive attack another

person and in the course of the ensuing struggle the attacker should be heard to say

that he has been overpowered and C thus entitled to kill the other person'.

D In this case both the evidence of the prosecution and the defence case is ad idem

that the appellant, PW1 and the deceased were drinking at Kivulini Bar. It is also

clearly brought out from the prosecution case and the defence that the deceased and

the appellant fought on the material night. As for the learned State Attorney's

submission that the appellant ambushed the deceased and his E companions and that

he committed the offence of murder as he was attempting to commit the offence of

robbery we are far from being persuaded by this argument. If the appellant had in fact

decided to commit robbery he could not have been so naÝve as to say to his victim -

`Tunataka kukunyang'anya pesa' bearing in mind F that the appellant, the deceased

and PW1 were fellow villagers. That he would have decided to expose himself in such

manner is, to say the least, beyond our comprehension. If he in fact said so it was, in

our view, more of a drunken froth than an intent of malice.

Coming back to the question of the appellant and the deceased having fought it was,

on our view, a misdirection on the part of the learned Trial Judge when he said: G

`Even if I was to find that the deceased's death was caused under the

circumstances described by the accused, I would still hold that the death of the

deceased was murder. This is because the accused having been the one who started

the fight he cannot turn round and say H that he was acting in self-defence'.

This was a misdirection because if the appellant's version was accepted the defence of

self-defence would have been available to him.

It has been said times without number, and we would like to reiterate, that where

death is caused as a result of a fight an accused I

1994 TLR p225

person should be found guilty of the lesser offence of manslaughter and not A

murder. See the decision in R v John Wimaana (1). Maybe it is not irrelevant to

mention if only in passing the defence case that the lady (PW2) in some ways sparked

the fight between the deceased and the appellant. This defence was apparently not

adverted to by the learned Judge in his judgment. After out close B review of the

evidence tendered before the High Court we are satisfied that the question of the

appellant's guilt regarding the charge of murder `is so complicated and uncertain that

the Court of first instance ought to have felt some doubt about it' - R v Ramzan

Ahmed Jamal (2). On the evidence we are not surprised that the assessors were

unanimous that the appellant was only guilty of the lesser offence of manslaughter

contrary to s 195 of the Penal Code. C

In the event the conviction for murder is hereby quashed and the sentence of death is

set aside. In substitution therefore the appellant is convicted of the lesser offence of

manslaughter contrary to s 195 of the Penal Code. D

As for the sentence to be imposed the appellant used a knife in killing the deceased.

The use of a knife in a fight is always a telling factor against an accused person. The

appellant is sentenced to ten years imprisonment. E

1994 TLR p225

G