DASTAN ANTHONY LUAMBANO v REPUBLIC 1990 TLR 4 (HC)

 

DASTAN ANTHONY LUAMBANO v REPUBLIC 1990 TLR 4 (HC)

Court Court of Appeal of Tanzania

Judge Makame JJA, Ramadhani JJA and Mfalila JJA

E 11 April, 1990

Flynote

Criminal Law - Murder - Circumstances where the defence of insanity can be

invoked.

-Headnote

F The appellant was condemned to suffer death after his conviction for the murder

of one, Micaela Mwenda. The deceased was the husband of one Danda whom the

accused believed to be the paramour of his wife. According to the evidence available,

the appellant deliberately put poison in some flour which the deceased used to cook a

meal G for herself and the family. The deceased, her husband and the son ate the

meal. The husband and their son survived the dreadful ordeal. After the death of the

deceased the appellant wrote to his brother confiding to him how the deceased

unhappily got killed when the appellant intended to kill the deceased's husband who

had been H sleeping with his wife. At the hearing of the appeal counsel for the

appellant argued that the learned trial judge should have invoked the provisions of

section 220(1) of the Criminal Procedure Act i.e should have ordered the appellant to

be detained at a mental hospital for medical examination.

I Held: (i) Before section 220 (1) of the Criminal Procedure Act can be brought into

play there must be some material which could reasonably

1990 TLR p5

MAKAME JJA, RAMADHANI JJA and MFALILA JJA

make it appear to the court that the accused person might have been insane when he

committed the offence; A

(ii) there was sufficient evidence to show that the appellant intended to cause

the death of the deceased.

Case Information

Appeal dismissed. B

Mwanyika, State Attorney for the Republic

Mcharo, Advocate, for the Appellant.

[zJDz]Judgment

Makame, Ramadhani and Mfalila, JJ.A.: The appellant Dastan Antony Luambano was

condemned to suffer C death and he is now appealing from the decision. The High

Court sitting at Songea, (Kazimoto, J.), found it established that the appellant, with

malice aforethought, killed Micaela Mwenda, the wife of Edward Danda, a person the

appellant believed to be his wife's paramour. The allegation was that the appellant

deliberately put D poison in some flour which the deceased used to cook a meal for

herself and her family. She died as a result of eating that meal. Her husband and her

son were also taken ill as a result of partaking of the meal. This was at Namabengo

village in Songea District on 31st August, 1986. E

Mr. Mwanyika learned State Attorney, resisted the appeal argued before us by Miss

Mcharo, learned Counsel for the appellant.

Miss Mcharo had filed two grounds of appeal - that the trial court should have

considered the defence of accidental poisoning, and secondly, that the learned trial

judge should have invoked the provisions of section 220 (1) of the F Criminal

Procedure Act, 1985; in other words he should have ordered the appellant to be

detained at a mental hospital for medical examination.

We were not at all surprised that at the hearing of the appeal Miss Mcharo abandoned

the first ground, and we are G able to say at the outset that Miss Mcharo is on very

thin ground with regard to the second prong of her attack.

Before section 220(1) can be brought into play it must first appear to the court that

the accused person might have been insane at the material time. There must be some

material which would make it appear to the court, and H reasonably so if we may

add, that the accused person might have been insane when he committed the deed. In

the instant case we are of the considered view that there was no material such as

would have made the court feel that the accused might have been insane.

There was plenty of evidence, despite the appellant's protestations to the contrary,

that the appellant believed that I the deceased's husband,

1990 TLR p6

A Danda, was in the habit of enjoying the appellant's wife's intimate favours. After

the deceased had got killed the appellant wrote to a brother of his confiding to him

how the deceased unhappily got killed when the appellant had intended to kill the

deceased's husband who had been sleeping with the appellant's wife. We see nothing

that would B persuade us to agree that the trial court should have ordered the

appellant to be medically examined as to his mental health. Miss Mcharo urged that

the appellant's act of poisoning food stuff which he knew would be consumed also by

other people, and not only by Danda, was irrational. We ask, what murder is ever

rational?

C We agree with Mr. Mwanyika that the evidence against the appellant was

overwhelming and we accordingly dismiss the appeal.

Appeal dismissed.

1990 TLR 4

D