JOSEPH HUGO LIGANGA v REPUBLIC 1992 TLR 354 (CA)

 JOSEPH HUGO LIGANGA v REPUBLIC 1992 TLR 354 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JJA, Ramadhani JJA, Mfalila JJA

27 November, 1992

Flynote

Criminal law - Murder - Provocation - Stopping appellant from taking rice and

throwing B an axe at him - Whether defence of provocation available.

Criminal law - Murder - Self defence - Whether available where deceased not armed.

C

Headnote

The appellant was convicted of murder and sentenced to suffer death. He appealed

challenging both the conviction and sentence. He argued that the defences of

provocation and self-defence were available to him. The appellant told the Court that

D when the deceased told him to stop taking rice and threw an axe at him that

provoked him. He further argued that the throwing of the axe at him forced him to

defend himself.

Held: (i) The version which the appellant gave in his evidence at the trial would give

E rise to a defence of self defence and provocation. But since the deceased was no

longer armed at the time the appellant lashed her head there was nothing against

which the appellant was defending himself;

F (ii) as to provocation, merely to tell the appellant to desist from taking the rice

and even throwing the axe would not have deprived the appellant the power of self

control particularly when he himself says that he had in the past ignored the

deceased's previous irritations because he had to act responsibly as the male head of

the household. G

Case Information

Appeal dismissed.

[zJDz]Judgment

Mfalila, Makame and Ramadhani, JJ.A.: The appellant Joseph Hugo Liganga was H

convicted of murder and sentenced to death by the High Court sitting at Morogoro

(Lugakingira, J.). The High Court found the allegation that he had with malice

aforethought caused the death of his sister-in-law Konsolata Likupila proved beyond

reasonable doubt. He lodged this appeal against both conviction and sentence. I

1992 TLR p355

MAKAME JJA, RAMADHANI JJA, MFALILA JJA

The only eye witness to the killing who gave evidence at the trial was the appellant

A himself. The only other person who was in the room at the time, the young girl

Salima Selemani could not be found to give evidence. On 12/8/88 at 11 p.m.

Nikodemu Liganga (P.W.1) received particularly bad news of the death of the wife of

his younger brother. This witness told the trial court that at that hour he was visited

by the late B Rashid Katepa who was accompanied by the appellant and the young

girl Salima. They informed him of the killing of his sister-in-law Konsolata. On

receipt of this information, he proceeded to the scene where he found a particularly

gruesome sight. In Konsolata's C room, he found a lot of blood splattered

everywhere. They saw the deceased lying on the bed, she had a cut wound on the

throat extending from below the left ear to below the right ear. She had another

wound on the head which appeared to have been inflicted by a heavy instrument like

a hammer. The gruesome sight was also witnessed by a neighbour Iddi Mbonde

(P.W.2) who arrived at the scene in response to an alarm as D well as the village

chairman Selemani Rajabu (P.W.3) who arrived at the scene after being sent for. The

appellant was arrested, tied with ropes and placed in the custody of the chairman who

also took under his possession the suspected murder weapons namely, the axe and the

panga. When later police arrived at the scene, he handed to E them both the

appellant and the murder weapons.

At his trial, the appellant did not dispute the allegation that he killed his sister in law

Konsolata. He freely admitted killing the deceased to the point of describing in detail

F how he had killed the unfortunate woman. Both from his evidence in court, and

his extra judicial statement, it can be gathered that he claimed that he killed the

deceased either in self defence or on grave provocation or both. He explained that on

the day in question, he could not eat his dinner properly because of a bad stomach.

But later in the night G about 9 p.m. when the two women, the deceased and Salima

had gone to sleep, he felt hungry and looked for food in the house. He found none as

the whole amount had been consumed. He therefore decided to do the cooking, but

the rice was kept in the deceased's room. He went into the deceased's room to take

the rice. As he prepared H to take the rice from under the deceased's bed, the

deceased who had been asleep woke up and ordered him to stop. The appellant said

he ignored her and continued to take the rice. But as he was doing so, he suddenly

heard an axe strike the wall behind him. This he said irritated him, and so he picked

up the axe and struck back at her head. I After striking this blow, the axe slipped

from his grip and

1992 TLR p356

MAKAME JJA, RAMADHANI JJA, MFALILA JJA

fell to the floor. But at hand was a panga which he had taken with him into the A

deceased's room. He picked this panga and gave her another blow with it. However in

his extra judicial statement, the appellant suggested that the deceased only threatened

him with the axe if he continued to ignore her order to stop taking the rice. As she

said B this while pointing the axe at him, he snatched it and struck her with it.

When he lost grip and it fell on the floor, he produced a panga which was nearby and

slashed her throat with it.

On this evidence the learned trial judge directed the assessors on two defence: Self

defence and provocation. Although the assessors did not say so in so many words, C

perhaps on account of the manner in which they were directed, they seem to have

rejected these defences and advised that the appellant was guilty of murder. The

learned trial judge accepted this advice and in his judgment gave detailed reasons why

the two defences were not available to the appellant and convicted him. D

In this appeal, the appellant raised only one issue namely that "the learned trial judge

erred in law and evidence in not giving the necessary weight to several incidences

prior to the death of the deceased such as accusations of sexual demands, caning of the

appellant by the deceased and the refusal by the deceased to allow appellant take E

some rice for cooking on the material date triggering the appellant to kill the

deceased. Such incidents if properly considered would have reduced the conviction to

a lesser offence of manslaughter."

Reading through the judgment of the trial court, it becomes abundantly clear that the

F learned judge treated the two defences of self defence and provocation in great

detail. In our view it is not easy to fault the learned judge's reasoning. When he went

in to collect the rice from the deceased's room, the appellant armed himself with a

panga. G Indeed the learned judge thought it more likely than not that the appellant

was also armed with the axe for he could not see how the axe got into the deceased's

room, given the manner in which it was ordinarily kept in his room. If he was going

merely to collect rice for cooking, why arm himself so heavily? The appellant

explained that it was H his habit to walk about with his panga wherever he went

"even in the toilet". We ask ourselves, why? of course we do not know what kind of

toilet facilities he had. But would this necessitate his walking into his sister-in-law's

room at night armed with the panga? The learned trial judge rejected this and found

that the appellant went into the I deceased's room with criminal intentions. We

agree. The version which the appellant

1992 TLR p357

gave in his evidence at the trial would give rise to a defence of self defence and A

provocation. But since the deceased was no longer armed at the time the appellant

bashed her head, we agree with the learned judge that there was nothing against

which the appellant was defending himself. He was in his own words just revenging.

As to provocation, we agree with the trial court that merely to tell the appellant to

desist from B taking the rice and even throwing the axe, would not have deprived

the appellant the power of self control particularly when he himself says that he had

in the past ignored the deceased's previous irritations because he had to act

responsibly as the male head of the household. The act of pointing an axe at the

appellant as explained in the extra C judicial statement could not amount to

provocation capable of creating the kind of reaction the appellant unleashed on the

deceased. This is the only explanation why the appellant chose to go into the

deceased's room armed to the teeth. The manner and D brutality with which he

killed the deceased is proof that the appellant on that particular day, had decided to

provide or execute the last solution to his long standing problems with the deceased.

He bashed the deceased's head and in his own words finished the business by cutting

her throat from end to end. Such a killing cannot be anything but murder. E

For those reasons we are satisfied that this appeal has no merit and we dismiss it in its

entirety.

F Appeal dismissed.

1992 TLR p357