BENJANIN MWANSI v REPUBLIC 1992 TLR 85 (CA)

 BENJANIN MWANSI v REPUBLIC 1992 TLR 85 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Omar JJA, Ramadhani JJA, Mnzavas, JJA

13 May 1992

Flynote

Criminal law - Murder - Provocation - Caused by words. B

Evidence - Provocation - Seemingly innocent words - When can be provocative

-Headnote

The appellant confessed killing his fiancee. In his defence he said he was provoked by

C the words of the deceased whom he found in the bed of her new lover. Upon being

asked she replied: "wewe bwana achana na mimi. Sina habari na wewe" (literally

translated: "Please leave me alone. I have no business with you"). The Court

considered whether these seemingly innocent words could provoke a person to

killing. D

Held: (i) Now, those words in themselves appear innocent. But if they are looked at

with the hindsight of what had transpired they are powerful dynamite sufficient to

blow off the faculty of reasoning of the appellant. Not only that the appellants hope of

E marriage with her was kindled by her deceit but also that very day she made him

part with his shs. 20/=. As if that was not enough, and to add insults to injury, she

turned him into a sentry and made him kick about his heels eagerly waiting for her

when she knew just too well that she was not going to come back to him; F

(ii) the appellant was provoked by those words.

Case Information

Appeal allowed. Guilty of manslaughter.

[zJDz]Judgment

Ramadhani, Omar and Mnzavas, JJ.A.: Benjamin Mwansi, the appellant, was G

convicted of the murder of Lucia d/o Hamadi and was sentenced by the High Court of

Tanzania at Arusha (Nchalla, J.) to suffer death by hanging.

The Republic had produced three witnesses whose testimonies were not worthy even

H to prove the case on a balance of probabilities which is not the standard in criminal

trials. The appellant had put the nail in his own coffin, so to speak. His extra judicial

statement (Exh. P.3), which he readily owned without requiring it to be produced by

the Justice of Peace who recorded it, and his evidence in Court formed the planks on

I which his conviction was based.

1992 TLR p86

RAMADHANI JJA, OMARI JJA, MNZAVAS JJA

The appellant and the deceased had agreed to marry and as the day of days was fast A

approaching, the deceased schemed back-pedalling while putting up a facade that all

was as planned. The deceased was also dishing out favour to one Idi Kazimoto. The

appellant had intelligence of that affair but was satisfied by the assurances of Idi that

he, B Idi that is, was not aware that he was trespassing on the appellant's garden and

promised to desist further encroachments.

On the fateful day the appellant met the deceased on the way. The deceased managed

without any difficulty to extract some twenty shillings from the appellant. As the C

deceased was on a very private errand, she promised to return and be with the

appellant within a short while. Minutes ticked by. The appellant then realised that he

was left stranded on a barren and rather a dreary shore. Or, as they say, "aliwachwa

kwenye mataa". So the appellant decided to go after the deceased. He went on Idi's D

where he was told that the deceased had merely passed through without stopping.

The appellant for some few minutes was sitted outside with Idi when suddenly Idi

came up with an offer of a cup of tea at a nearby cafe. While there, an invitation was

extended to the appellant to wait for food which was being prepared by one Monica.

The E appellant had a brainwave and alone he went back to Idi's where, peeping

through an aperture in the wall, he saw his Lucia cosily lying of Idi's bed. The

appellant asked her "Ee bwana, sasa vipi?" To that the deceased replied "Wewe bwana

achana na mimi. Sina habari na wewe". The appellant said he went wild. He kicked

the mud F thatched wall making a hole through which he got access into the room.

He then picked a plank of wood which he found therein and with it administered

unknown number of blows on the head of Lucia. She died instantly. The appellant

melted away until he was arrested.

The triable issue was whether or not the appellant was provoked. The learned trial G

judge, in agreement with a male assessor and at variance with a female assessor, found

that the appellant was not provoked.

The appellant was advocated for by Mr. Ojare, learned counsel. He had a sole H

ground of appeal which was that there was "grave provocation". The learned advocate

had two points in that respect. First, he pointed out that the words which the

deceased replied to the appellant were taken to be not provocative because they were

held to constitute neither an offence nor a wrong. Mr. Ojare pointed out further that

the I definition of provocation, as given in Section 202 of the Penal Code, includes

an insult.

1992 TLR p87

RAMADHANI JJA, OMARI JJA, MNZAVAS JJA

The learned advocate then submitted that the words uttered by the deceased when A

looked at with the background of the relationship which existed between the

deceased and the appellant were insulting and were nothing but provocative. As his

second point, Mr. Ojare contended that provocation was at the time of the utterance

of those words by the deceased and that there was no moment for cooling down. The

learned B counsel submitted that the learned judge erred in holding that even if

there was provocation the appellant had time to cool down. Mr. Ojare argued that the

appellant just did not have that time to cool down.

On behalf of the respondent/Republic was Mr. Mono, Senior State Attorney. He C

started by questioning the credibility of the appellant who first disowned the extrajudicial

statement, then offered plea of guilty to manslaughter and finally came round

to adopt the extra-judicial statement. However, Mr. Mono threw up the sponge and

conceded that the appellant was consistent in denying murder and pleading D

manslaughter. Secondly, Mr. Mono contended that as the appellant had a preknowledge

of the relationship between Idi and the deceased then he should not have

been provoked when he found Lucia in Idi's bed.

There are three matters which require our determination for the disposal of this E

appeal. First, whether or not there was a cause for sudden provocation. Then there is

the question at what occasion did that cause present itself. Lastly, and consequent to

the second issue, whether or not there was time for cooling down.

The learned trial judge found that malice aforethought was established: F

... from the nature of the weapon used (Exh. P.2), the nature of injury caused

(Exh. P.1) and the excessive force used by the accused... Also the accused hit the

deceased on the G head, vulnerable part of the body.

With respect that was begging the issue which was to be decided. Killing on

provocation is provided in section 201 of the Penal Code thus: H

When a person who unlawfully kills another under circumstances which, but

for the provisions of this section would constitute murder, does the act which causes

death in the heat of passion caused by sudden provocation as hereinafter I

1992 TLR p88

RAMADHANI JJA, OMARI JJA, MNZAVAS JJA

defined, and before there is time for his passion to cool, he is guilty of manslaughter

A only. (emphasis provided)

Thus in killing on provocation circumstances which constitute murder are proved and

established. But that is not the end. There is something extra and that is sudden B

provocation. If we were to be mathematical and devise a formula we would say:

killing by provocation is equal to circumstances which constitute murder plus sudden

provocation without time for cooling down.

So what the learned Judge did was to catalogue circumstances which would constitute

C murder. But the issue is was there or was there not sudden provocation.

Admittedly the learned Judge also made the finding that the appellant had formed the

intention to kill when he was awaiting food with Idi and that was why he left

stealthily. The learned Judge stated: D

It is established on the evidence that accused intended to kill the deceased and

the motive thereon was to punish her for fidelity or dishonesty and to revenge from

Idi Kazimoto.

The issue then for determination here is whether the appellant returned to Idi's

having E made up his mind to pay off old scores, as the learned Judge found, or he

was provoked by the reply of the deceased, as Mr. Ojare contended.

The appellant said that he refused to wait for food and so left Idi and then revisited F

Idi's place to investigate. There is not the slightest suggestion that he left Idi

stealthily. Admittedly in his sworn evidence the appellant had said that he had heard

the voice of the deceased from the house of Idi the first time he was there. But in his

extra-judicial statement (Exh. P.3) he did not say so and instead he stated that because

of suspicion G he went back to Idi's to find out whether or not Lucia was there. The

extra-judicial statement seems more credible. It would seem odd, if the appellant had

known that the deceased was there, that he would let himself be kidded by Idi; taken

away to a cafe H for a cup of tea and forget the purpose of his mission.

However, for the sake of argument and for the avoidance of doubt, too, let us take the

sworn evidence of the appellant and work on it. Suppose the appellant was aware that

the deceased was inside the room of Idi, and suppose, also, the appellant had already I

resolved to teach the deceased a lesson when he had gone to Idi's the second

1992 TLR p89

RAMADHANI JJA, OMARI JJA, MNZAVAS JJA

time, one wonders why the appellant did not go straight and, without a word, force

A his way through the door. Indeed one wonders why he did not go there armed so

as to execute his purpose. Or put it the other way: how did the appellant know that

he would stumble upon a plank of wood in the room of Idi which would conveniently

present itself as a weapon with which he would accomplish his murderous errand.

We have failed B to come up with answers to these questions that would satisfy us

beyond reasonable doubt.

What we are then left with is his story. The appellant said he peeped through the wall

and saw Lucia relaxed on the bed of her new lover and upon being asked she replied

"Wewe bwana achana na mimi. Sina habari na wewe". C

Now, those words in themselves appears very innocent. But if they are looked at with

the hindsight of what had transpired, they are a powerful dynamite sufficient to blow

off the faculty of reasoning of the appellant. Not only that the appellant's hope of

marriage D with her was kindled by her deceit but also that very day she made him

part with his shs. 20/=. As if that was not enough, and to add insults to injury, she

turned him into a sentry and made him kick about his heels eagerly waiting for her

when she knew just too well that she was not going to come back to him. With this

prelude one would agree E with the lady assessor that the appellant was provoked by

that reply.

Did he have time to cool down? No, obviously not. If so, had the gentleman assessor

grasped what happened, he would have opined as his colleagues for he had said: F

The accused had time to cool, from the time he discovered that Lucia was in

the house of Idi Kazimoto to the time accused returned there for the second time. G

Mr. Mono, has also submitted that the appellant, being a Nyiramba, whose custom, as

he had admitted, does not give a right to a fiance to stop a fiancee from running with

other persons, should not have been provoked. We agree with Mr. Ojare that Lucia

was not a Nyiramba but a Mbulu and the matter was in Hanang District which again

is H in Mbulu area. Moreover, under Section 202 of the Penal Code the appellant has

to be judged as "an ordinary person of the community to which the accused belongs".

At the time of the offence the appellant belonged to the Mbulu community.

We, therefore, find the appellant not guilty of murder but of manslaughter. So we I

quash the conviction for murder. We set aside

1992 TLR p90

the sentence of death and impose one of imprisonment for a term of 4 years taking A

into account that he has been in custody over since 18/8/1998. Appeal is allowed to

that extent.

B Appeal allowed.

1992 TLR p90

C