DAMIAN FERDINAND KIULA & CHARLES v REPUBLIC 1992 TLR 16 (CA)

 DAMIAN FERDINAND KIULA & CHARLES v REPUBLIC 1992 TLR 16 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Kisanga JJA, Ramadhani JJA and Mfalila JJA

23 February, 1990 G

Flynote

Criminal Law - Dying declaration - Authenticity and weight of a dying declaration.

Criminal Law - Murder - Provocation - Conditions for its invocation.

-Headnote

This is an appeal from a conviction of murder by the High Court. The facts were that

H the appellant and the deceased were husband and wife and were living together at

the material time. There was no dispute that the appellant stabbed and killed the

deceased. What was in dispute was the motive, circumstances and reasons for the

attack. The I prosecution relied on a dying declaration, Exh. P.2, which

1992 TLR p17

MAPIGANO AG. JA, RAMADHANI JJA, MNZAVAS JJA

stated that the appellant attacked the deceased when she told him that she was A

leaving him on account of his drunkenness and quarrelsome behaviour. But,

according to the defence, the appellant attacked the deceased on account of her

refusal to give him his money and provocative words and acts accompanied

therewith. The trial judge was of the view that the deceased's dying declaration was

weak and unreliable. However, B he held that the words and acts of the deceased did

not amount to legal provocation. On appeal.

Held: (i) For the defence of provocation to stick, it must pass the objective test of

whether an ordinary man in the community to which the accused belongs would

have C been provoked in the circumstances;

(ii) the words and actions of the deceased did not amount to legal provocation;

(iii) the recording officer had no reason to lie against the appellant and that the dying

declaration was authentic and contained a painful lament by a dying mother. D

Case Information

Appeal dismissed.

[zJDz]Judgment

Mfalila, Kisanga and Ramadhani, JJ.A.: The appellant was convicted of the E Murder

of his wife and sentenced to death by the High Court sitting at Dar es Salaam

(Kyando, J.). He lodged this appeal against both conviction and the sentence of death.

There were no eye witnesses to the killing of the deceased woman Siwajibu Kondo. F

She was stabbed in the privacy of their house, all the witnesses who arrived at the

scene including her cousin Ali Kondo (P.W.2) found her already stabbed. However

there was no dispute on the identity of the killer. The appellant admitted stabbing his

deceased wife and that she died of this stab wound. What was seriously contested by

the G defence at the trial were the motive, circumstances and reasons for the attack.

According to the prosecution who relied on the deceased's statement which was

reduced into writing and admitted in evidence as a dying declaration Ex. P.2, the

appellant attacked the deceased when she announced that she was leaving him on H

account of his drunkenness and quarrelsome behaviour. But according to the defence,

the appellant attacked the deceased on account of her provocative acts and words.

The stabbing of the deceased was of such a nature and extent that the knife embedded

in the neck could not be removed at the local hospital, the deceased had to be I

referred to Muhimbili Medical

1992 TLR p18

MAPIGANO AG. JA, RAMADHANI JJA, MNZAVAS JJA

Centre where the knife was dislodged and handed over to Inspector Jumanne Itunga.

A But while still at Tumbi Hospital Kibaha, the deceased had occasion to call

Inspector Itunga and told him the circumstances of her being stabbed. Inspector

Jumanne Itunga reduced this statement into writing and this is Ex. P.2. The person

who inflicted this B injury could only have intended to cause death or at the lowest

to cause grievous bodily harm. On the other hand, the appellant explained that he

stabbed the deceased following her provocative behaviour both in words and deeds.

He said that after leaving the Police Force, he started doing some business and

farming, in which the deceased was fully C involved. In the course of time they

managed to accumulate shs. 80,000/= which the deceased was keeping. On the day in

question, he asked the deceased to give him some shs. 25,000/= for his business trip to

Morogoro. Not only did she refuse him this money but she used offensive language.

This, he said, angered him and he attacked her with a knife. D

The learned trial judge considered the deceased's dying declaration as providing the

motive and circumstances of the appellant's attack on the deceased, but he rejected it,

stating that he was unable to place much reliance on it because in his view it was

weak E and unreliable on account of the contradictions between the version given

by P.W.3 and P.W.4. The contradiction being that while P.W.3 stated that the

deceased gave reasons for the appellant's attack on her, P.W.4 categorically stated that

she did not, she having become too weak to continue speaking. On the other hand,

the learned judge accepted the version given by the appellant, that he attacked the

deceased F when she refused to give him the money and used what he called "dirty

words", but in his view this could not have provoked "an ordinary reasonable literate

Chagga living in a village". He therefore convicted him of murder and sentenced him

to death. G

In this appeal, the Tanzania Legal Corporation filed one ground of appeal on behalf of

the appellant complaining that the learned judge erred in rejecting the defence of

provocation, and at the hearing of this appeal Mr. Lubulira emphasized that the

deceased's refusal to hand over money to the appellant as requested and her use of H

dirty words must have provoked him to such an extent that he lost his self-control

and acted in the heat of passion. He argued that this was how an ordinary Chagga

would have reacted in the circumstances.

For the defence of provocation to stick, it must pass the objective test of whether an I

ordinary man in the community to which

1992 TLR p19

MAPIGANO AG. JA, RAMADHANI JJA, MNZAVAS JJA

the accused belongs would have been provoked in the circumstances, and the best A

judges to determine this question are the assessors, for they are "the ordinary persons

of the community to which the accused belongs". If courts adhere to this simple test

and as amplified and explained in various judgments of this Court, the need to resort

to judgments passed and pronounced in a different sociological context would never

B arise. We have in mind the case cited by the trial judge when considering the

presence or absence of provocation in this case. In considering whether the act of the

deceased refusing to hand over money to the appellant amounted to provocation in

law, the trial judge quoted remarks from an old case which to us appear not only

unsuited to the C facts of the present case but out of place in the context of the

present sociological environment. The learned judge stated:

D As regards the act of the deceased refusing to hand over money, the courts

have repeatedly stated that in the case of an uneducated African villager, the

reasonableness of his reaction to the provocation must be gauged not by what the

judge would have done, but by what an average tribal villager might have done in the

circumstances. E

This passage is from Kasumbwe v R. (1944) - EACA 116 at page 119. Unless these

words were only meant to denigrate the African as it was fashionable in those days,

we do not see the relevance of singling out the uneducated African villager whose

reactions F should be related to the average tribal villager, and not to what the judge

would have done. The Ordinance and its definition of provocation which have been

in force since 1930 makes no such distinction. Everybody, whether an uneducated

African villager or otherwise must be judged according to what an ordinary man of

his community would G have reacted in the circumstances and not what the judge

would have done. As we stated earlier, this case is also unsuited to the facts of this

case because the present appellant is not an uneducated African villager. It could not

therefore be applied to him even if it were sociologically acceptable. Section 202 of

the Penal Code which H defines provocation provides as follows:

202. The term "provocation" means and includes, except as hereinafter stated,

any wrongful act or insult of such a nature as to be likely, when done to an ordinary

person, or I in the presence of an ordinary person to another person who is under

1992 TLR p20

A his immediate care, or to whom he stands in a conjugal, parental, filial or

fraternal relation, or in the relation of master or servant, to deprive him of the power

of self-control and to induce him to commit an assault of the kind which the person

charged committed upon the person by whom the act or insult is done or offered and:

B

For the purposes of this section the expression "an ordinary person" shall mean

an ordinary person of the community to which the accused belongs.

In the present case the "dirty words" allegedly uttered by the deceased were not C

considered because the appellant did not specify them, but even if he had done so,

they would not in our view have amounted to provocation because in the appellant's

own words, up to that stage he thought the deceased was joking. What angered him

was, D to quote his own words:

After I had washed and returned into the house that is when she displayed her

hostilities, deceased refused completely to give me the money. Because of this I was

seized with E anger and I became very bitter because it is I who earned that money.

In that state of anger and bitterness I injured my wife with a knife.

The learned judge was of the view that an ordinary reasonable educated Chagga F

would not have been provoked by the deceased's action of refusing to hand over

money to him. He would have taken other measures to get the money. We are not

certain whether the learned judge was in a position to put himself into the shoes of

what he called "an ordinary reasonable educated Chagga". Secondly, there was no G

evidence that the appellant is educated apart from the fact that he was at one time a

policeman. The learned judge would have been on firmer ground if he had gone by

the views of the assessors who rejected the appellant's story. They seemed to prefer

the dying declaration as providing the basis for the attack on the deceased. They H

however stated that even if the appellant's story were true, the refusal by the

deceased to hand over money would not have provoked him to make him commit the

kind of assault he committed on the deceased. In legal language, the assessors were

saying that no ordinary man of the appellant's community, would I

1992 TLR p21

be provoked by the actions of the deceased to the extent that the appellant claims he

A was.

For our part we do not think there were good reasons for regarding the dying

declaration in Ex.P.2 as weak and unreliable. It was recorded by a police officer who

had no reason to lie against the appellant. The fact that P.W.4 did not hear the

deceased B give reasons for the attack cannot be explained solely on the basis that

the reasons recorded by P.W.3 were invented. Indeed the dying declaration appears

very authentic as it contains a painful lament by a dying mother - "who will look after

my children?" These moving words could not have been invented by P.W.3. C

For these reasons we are firmly of the view that the dying declaration provides the

motive for the killing of the deceased and that the appellant invented the money

story which as the assessors stated, even if it were true, could not have amounted to

provocation in law. The appellant's attack on the deceased was cruel, intended and D

calculated to cause death. His conviction for murder was in these circumstances well

founded. Accordingly this appeal has no merit and it is dismissed.

E Appeal dismissed.

1992 TLR p21

F