RICHARD VENANCE TARIMO v REPUBLIC 1993 TLR 142 (CA)

 

RICHARD VENANCE TARIMO v REPUBLIC 1993 TLR 142 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

B CRIMINAL APPEAL NO. 29 OF 1993

21 May, 1993

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

J.)

Flynote

C Criminal Practice and Procedure - Assessors - Directions to assessors - Trial judge

misdirects assessors on the nature of provocation - Assessors fail to determine and

advise on the provocative nature of the deceased's words - Effect of such misdirection.

D Criminal Law - Provocation - Deceased uttered words tending to show that she

had an adulterous association with some men - The test of provocation.

-Headnote

E The appellant was convicted of the murder of his wife and was sentenced to

death. Among the defences raised during trial was provocation; the appellant had

contended that his wife made statements which tended to show that she had

adulterous associations with some men. When giving directions to the assessors, on

the question of provocation, the learned Trial Judge put emphasis on alleged or

suspected adultery as constituting provocation and not the words uttered by F the

deceased. This way of directing the assessors was attacked on appeal.

Held: (i) The immediate alleged provocation was not the deceased's adultery, but

rather the words allegedly uttered by the deceased when asked where she had been

and why she had gone out without telling the appellant;

G (ii) The test in this case was on the provocative nature of the deceased's

words, whether the words themselves were capable of provoking an ordinary man of

the appellant's community to induce him to react in the manner the appellant did,

not whether these words suggested or amounted to a confession of adultery by the

deceased;

H (iii) The learned Trial Judge misdirected the assessors on the question of

provocation and this misdirection resulted in failure by the assessors to determine and

advise on the provocative nature of the deceased's words;

(iv) Before a conviction for murder can be upheld in a situation where

there was a misdirection or non-direction on the question of provocation the

following two conditions must be present: firstly the omission must have been

deliberate on a view of the evidence taken by I the judge and,

1993 TLR p143

secondly, the judge must have made a specific finding making it clear

that he would in any A case have overridden the contrary opinions of the assessors

the contrary;

(v) In the present case, the assessors were misdirected away from the true

nature of the provocative act; so neither the assessors nor the judge made any finding

on it.

Case Information

Appeal allowed. B

Cases referred to:

1. Wafula s/o Waninira v. R. [1957] EA 498.

2. Bullard v. R [1957] 3 WLR 656.

3. Tulubuzya Bituro v. Republic [1982] TLR 264. C

4. Abdullahi Ali v. R [1958] EA 725.

Ngalo, for the appellant

Mrs. Lyimo, for the respondent

[zJDz]Judgment

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

The appellant Richard Venance Tarimo was convicted of murder of his wife Delfina

Richard by the High Court sitting at Moshi and was sentenced to death. He filed this

appeal consisting of two E grounds against both his conviction and the sentence of

death. In ground 1, he complained that the Trial Court ought to have considered the

evidence that the appellant and the deceased had been drinking for a long time and

that at the time of the commission of the offence the appellant was still under the

influence of alcohol. In Ground 2 he complained that the Trial Court ought to have

held that F there was sufficient provocation to reduce the offence of murder to

manslaughter.

Apart from the appellant, there was no other person who witnesses the deceased

being assaulted. The two neighbours, (PW6) Orest Ntaimo and his wife Akwilina

Orest (PW7) who arrived at the G scene in answer to the cries of the deceased,

found the appellant standing at the door of his house holding the door frame. When

they asked him what was the matter, the appellant ordered them to go away and

threatened to teach them a lesson if they dared to come any nearer. At being so H

threatened, the two retreated to the safety of their home. But they heard the deceased

crying from inside the house and lamenting that she was dying leaving behind her

children as orphans. The next day they heard of Delfina's death and reported the

incident to the police who came to the village and arrested the appellant. I

1993 TLR p144

MFALILA JA

A At his trial the appellant explained that the deceased Delfina was his wife whom

he regrettably killed. Narrating the circumstances of her death, he said that on the

day in question, he and the deceased went to drink pombe at 5 pm and they returned

home at 8 pm. On their way home, they B met two men one of whom he identified

by his voice to be Orest (PW6). Orest then attacked him and threatened to teach him

a lesson because he alleged the appellant was back-biting him. He, however, managed

to free himself from Orest enabling him and his wife to proceed home where they

slept. But later during the same night as he and the deceased were asleep, he woke

and realised C that the deceased was not in bed with him. He went out to look for

her thinking that she had gone to the latrine, but she was not there. He decided to

wait on the veranda. At last she appeared coming along the path leading from Orest's

house. When they were both inside the house, he asked her D where she had been

and why she had gone out without informing him. She replied:

`Mimi sichungwi. Kama huko Dar es Salaam una wanawake na mimi nina

wanaume,'

E and pushed him. The appellant said he fell on the table, the deceased also fell over

him. There was a knife on the said table which he picked up intending to put away.

But she also held it and a struggle for the knife between the two of them ensued. In

the course of this struggle, he said, he stabbed her accidentally. He does not know

how many times he stabbed her but he was shocked at F what he had done. He slept

until the following morning. He explained that the deceased sustained several cut

wounds because they struggled over the knife.

Both in his summing up to the Assessors and his judgment, the learned Trial Judge

considered that G three defences were open to the appellant, namely provocation,

self-defence and accidental killing. The learned Judge considered all these three

defences and rejected them as did the assessors. He therefore found the appellant

guilty of murder as charged and sentenced him to death.

At the hearing of this appeal, Mr Ngalo who advocated for the appellant, argued that

as the appellant H and the deceased had been drinking for many hours before the

attack, the appellant must have been so drunk that he was incapable of forming a

specific intent.

On our part, we do not think the evidence on record supports Mr Ngalo's contention

that the appellant was at the time so drunk that he was not in a position to form a

specific intent. On his way home, the I appellant was strong enough to wriggle out

of the clutches of his

1993 TLR p145

MFALILA JA

assailant and to continue with his journey home. On arrival at home, he was sober

enough to wake A up and realise that his wife was not in bed with him. He went out

looking for her thinking that she had gone to the latrine, and when he found that she

was not in the latrine, he decided to wait on the veranda until she returned. We are

satisfied that these are not the actions of a man so drunk that he cannot form an

intent to do a specific act. What took place inside the house up to the fatal stabbings

B of the deceased confirms this view.

On the second ground, Mr Ngalo argued that when all the evidence is considered

including the appellant's cautioned statement, it is clear that provocation was

established and that therefore the C Trial Court should have convicted the appellant

of manslaughter not murder.

In connection with the defence of provocation, the learned Judge explained to the

Assessors what this defence entails and after explaining its elements he directed them

as follows: D

`Finding a wife in the act of adultery or in circumstances suggesting reliably

that she had just been committing adultery can provide legal provocation.

Accused did not find the deceased in the act of adultery. But do you think he

suspected she had just been E committing adultery with someone when she left him

in bed during the fateful night? If so, were those circumstances that irresistibly

suggested she had been committing adultery? Mere suspicion is not enough.

If you believe she must have been committing adultery when the accused saw

her returning home and he killed her F in the heat of passion, then you can advise

me to find the accused guilty of manslaughter only. You may consider in that

connection, whether you believe the deceased, on being asked where she had been,

said `Mimi nina wanaume wengi, ukipenda nenda ukatafute mke wa kwako' or

`Mimi sichungwi, kama huko Dar es Salaam una G wanawake na mimi nina

wanaume.' If you believe she replied in that manner to the accused, do such words

indicate that she was confessing to having just committed adultery? Would that be

unequivocal confession of adultery?'

By this direction the learned Judge wanted the Assessors to assume two things.

Firstly, that the act H of provocation was the deceased's alleged or suspected

adultery. Secondly, that the deceased had gone out at night leaving the appellant

alone in bed and when she came back and on being asked where she had been, she

answered in the manner the appellant alleges she did and therefore to consider I

1993 TLR p146

MFALILA JA

A whether this answer suggested adultery on her part. We think it was a serious

error to ask the Assessors to act on the basis of these two assumptions. In our view the

immediate alleged provocation was not the deceased's adultery, but rather the words

allegedly uttered by the deceased when asked where she had been and why she had

gone out without telling the appellant. The judge B should therefore have directed

the Assessors to answer the following questions:

(a) Whether on their way back from the pombe drinking, the appellant

and his wife encountered Orest and another man and that Orest threatened to assault

him.

C (b) Whether the deceased had gone out of the house in suspicious

circumstances leaving the appellant alone in bed?

(c) Whether after her return and being asked where she had been, she

answered the appellant in the manner the appellant alleged she did.

D (d) If the answer to (c) is in the affirmative, whether such words were

provocative capable of inducing the kind of reaction exhibited by the appellant.

In other words, the test in this case was on the provocative nature of the deceased's

words, whether E the words themselves were capable of provoking an ordinary man

of the appellant's community to induce him to react in the manner the appellant did,

not whether these words suggested or amounted to a confession of adultery by the

deceased. This misdirection resulted in the failure by the Assessors to determine and

advise on the provocative nature of the deceased's words. On his part, F the learned

Judge also continued to act on this error and rejected the defence of provocation

because adultery had not been established. The learned Judge rejected the defence of

provocation because there was only suspicion that the deceased had committed

adultery. In the circumstances G he held that the appellant killed the deceased to

punish her because of his suspicions that she had committed adultery.

What then are the consequences of this misdirection? Except in very rare cases, both

this Court and H the old Court of Appeal for East Africa considered such

misdirection as fatal. In the case of Wafula s/o Waninira v R (1) the appellant who

had been struck with a stick following a beer party, stabbed and killed his assailant.

At his trial for murder, the appellant's plea of self-defence was rejected and was

convicted and sentenced to death, but the Trial Judge failed to appreciate that the

evidence I clearly raised an issue of provocation. On this omission, the Court of

Appeal of East Africa

1993 TLR p147

MFALILA JA

(Forbes JA) held that the omission of the Judge to direct himself and the Assessors on

the issue of A provocation was a serious misdirection and the conviction of murder

could not stand. The Court quoted with approval the following passage from the

judgment of the Privy Council in Bullard v R (2) at 659:

`It has long been settled law that if on the evidence whether of the

prosecution or of the defence, there is any B evidence of provocation fit to be left to

a jury, and whether or not this issue has been specifically raised at the trial by

Counsel for the defence and whether or not the accused has said in terms that he was

provoked, it is the duty of the Judge, after a proper direction, to leave it open to the

jury to return a verdict of manslaughter if they are not satisfied C beyond reasonable

doubt that the killing was unprovoked.'

On the consequences of such misdirection the Court held and state at 499:

`. . . It is once more stated that it is not open to a Court of Appeal to speculate

on what the conclusion on the issue of D manslaughter would have been if the issue

had been left to the jury. Similarly it is not for us to speculate on what conclusion

would have been reached by the Assessors and the learned Trial Judge had they

considered this issue. In the circumstances the conviction for murder could not

stand.' E

Similarly this Court in Tulubuzya Bituro v Republic (3) considered this point and held

that failure by a Judge to direct Assessors on the issue of provocation where evidence

shows so, vitiates the entire F proceedings. In that case the record indicated Appeal

for East Africa in an appeal from the Somaliland Protectorate in the case of Abdullahi

Ali v R (4). In that case on the question of provocation the Trial Judge had held as

follows: G

`. . . This followed her repudiation of the settlement and refusal to go home

and allowance must be made for the `last straw' doctrine of commulative

provocation, but, put at its highest, this could not excuse so grossly excessive reaction.

For these reasons I was of the opinion there was no evidence of provocation on which

a verdict of culpable homicide could properly be founded and I did not refer to such a

possibility in the summing up.' H

On appeal, the Court of Appeal for East Africa held at para 708:

`With respect, we thought that it was not correct to remove the I

1993 TLR p148

MFALILA JA

A question of sufficient provocation or no sufficient provocation from the

Assessors. However since the learned Judge in the next sentence of his judgment

found as a fact, as he was entitled to do, that the story that the woman refused to go

home at that time and in that situation, was not credible, it is quite clear that he

would have overridden the assessors whatever their opinions on the question of

provocation might have been. Accordingly his omission to B mention provocation in

the summing up did not affect the result.'

The Court of Appeal then concluded the judgment with the following words:

C `We would add that we agree with the learned Judge that even if the

appellant's statement were to be taken at its face value, the provocative received could

not have justified so brutal a retaliation by the appellant. We merely point out that

this matter should not have been removed from the consideration by the Assessors.

The question whether or not the retaliation was out of proportion to the provocation

was a question of fact which they should have been D required to take into

consideration before giving their opinions.'

Thus before a conviction for murder can be upheld in a situation where there was a

misdirection or E non-direction on the question of provocation, the following two

conditions must be present. Firstly, the omission must have been deliberate on a view

of the evidence taken by the Judge. Secondly, the Judge must have made a specific

finding so that it is clear to this Court that he would in any case F have overridden

the opinions of the Assessors to the contrary. In the present case, the assessors were

misdirected away from the true nature of the provocative act so neither the Assessors

nor the Judge made any finding on it. We are therefore in no position to speculate on

what the conclusions might have been had the Assessors been properly directed on

the provocative nature of the words uttered by the deceased or what view the learned

Judge himself might have taken of these words. G We can only resolve this

uncertainty in favour of the appellant and hold that his conviction for murder cannot

stand. Mrs Lyimo who appeared for the Republic conceded as much and declined to

support the appellant's conviction for murder.

H Accordingly we allow the appeal, quash the conviction for murder and set aside

the sentence of death. Instead we find the appellant guilty of the offence of

manslaughter and convict him accordingly.

On the question of sentence, we agree with Mrs Lyimo that this was a wicked assault

on the I unfortunate woman and we also agree that the sentence to be imposed must

reflect this fact.

1993 TLR p149

With all these factors in mind we sentence the appellant to fifteen years

imprisonment. A

1993 TLR p149

C