ELIASI SEIF v REPUBLIC 1984 TLR 244 (CA)

ELIASI SEIF v REPUBLIC 1984 TLR 244 (CA)

Court Court of Appeal of Tanzania - Mbeya

Judge Nyalali CJ, Makame JJA and Omari JJA

July 10, 1985

CRIMINAL APPEAL 19 OF 1984 F

Flynote

Criminal Law - Provocation - One's uncle committing adultery with wife of another

uncle - Whether provocation.

Criminal Law - Mistake of fact - No indication whether a witness could have known

about the mistake of fact G - Whether failure by prosecution to call such a witness

would lead to an adverse inference against the prosecution.

-Headnote

The appellant was convicted of murdering his uncle. On suspicion that the deceased

was H committing adultery with the wife of his other uncle, he hit him with a

pounding stick. On appeal the defences of provocation and mistake of fact were

considered.

Held: (i) A reasonable or ordinary person would not have been provoked by finding

one of his uncles or any person committing adultery with the wife of another uncle of

his; I

1984 TLR p245

NYALALI CJ

A (ii) a mistake of fact concerns a state of mind of the person making the

mistake;

(iii) Stahimili's evidence would have been crucial only if there was indication

or a probability that she could have known about the mistake of fact made by the

appellant.

Case Information

B Appeal dismissed.

No case referred to.

G. Mbusa and Mushokorwa for the appellant

C E.F. Kapinga, for the Republic

[zJDz]Judgment

Nyalali, C.J. delivered the following judgment of the court: The appellant, namely

Eliasi Seif, was charged and convicted in the High Court at Morogoro for the offence

of murder c/s 196 of the Penal D Code and was sentenced to suffer death by hanging.

He is aggrieved by the conviction and sentence, hence this appeal to this court.

Messrs Mbusa and Mushokorwa, learned Counsel appeared for him in this court,

whereas Mr. Kapinga, learned State Attorney represented the respondent Republic.

E On the record of proceedings both before this court and the High Court, the

following primary and secondary facts are either common ground or undisputed

between the parties: Sometime during the night of 28th September, 1976 in Ibingu

village within the Kilosa District of Morogoro Region, F the appellant attacked one

James Hamisi with a pounding stick or pestle at the home of one Waziri Hamisi. The

said James Hamisi was a brother of the said Waziri Hamisi who happened not to be at

his home. Waziri Hamisi's wife, namely one Stahimili, was present when the attack

took place. The G appellant is a nephew of both Waziri Hamisi and James Hamisi.

One Tengeza Saanane - that is the first prosecution witness (P.W.1), a neighbour and

cousin of Waziri Hamisi, heard a woman's cry of protest emanating from his cousin's

home and decided to go and see what was happening but the appellant threatened to

assault him if he went closer to the scene. The said James Hamisi then H managed to

escape for his own safety, The following day, the appellant was apprehended in the

same village by the second prosecution witness (P.W.2) and he accompanied the said

James Waziri who was carried to Kilosa Government Hospital. While at Kilosa, the

appellant as re-arrested by the I police. On the 8th October, 1976, the said James

Waziri died at the hospital and a postmortem examination was performed by a

government doctor.

1984 TLR p246

NYALALI CJ

With regard to primary and secondary matters which, on the proceedings in this

court and the court A below, are in dispute between the parties, it is the prosecution

case that the death of the deceased resulted from the appellant's attack and that the

appellant intentionally killed him without lawful justification or excuse. On the

other hand, it is the contention of the defence that the appellant B attacked the

deceased thinking that it was a hyena which had invaded his uncle's home. It is part

of the defence case that the appellant's actions and thinking were under the influence

of alcohol which he had been drinking for a long time.

The first point for consideration and decision is whether the appellant could have

been drunk when C he did what he did. The learned trial judge specifically

considered this point in his judgment and stated:

Finally, I will consider whether the accused was so drunk so as to be incapable

of forming the intent to kill or to D cause grievous bodily harm. The accused

himself has denied that he was so drunk although he had been drinking for a long

time, namely from 10 a.m. to 12 midnight. The gentlemen assessors did not find any

evidence of drunkenness of such a nature which would have made accused incapable

of forming the E prerequisite intent. I do not find any evidence of such drunkenness

which made the accused incapable of forming the prerequisite intent. F

This finding of the trial court on the issue of drunkenness has not been challenged on

appeal and we see no reason to re-examine it further.

The next point for consideration and decision is whether the appellant mistook the

deceased for a G hyena when attacking him. The learned trial judge also specifically

considered this point in his judgment and stated:

From the evidence as a whole, I find no difficulty in rejecting the defence

story about the hyena being in the H house of Stahimili. This story cannot be

possibly true for the following reasons: If the story were true, the accused who had

more than one occasion to explain why he had assaulted the deceased would have

given this story. ... Secondly, if the story of the accused about the hyena were true,

the accused who was represented I would have challenged the witnesses in cross-

1984 TLR p247

NYALALI CJ

A examination when they claimed that he told them that he had beaten the

deceased because he though it (sic) was a stranger sleeping with his uncle's wife.

Nowhere does the accused allude to the hyena story except when he began giving his

defence.

B Mr. Mbusa, learned counsel for the appellant, has submitted in effect that the

learned trial judge erred in coming to this conclusion on this point as there was a

failure by the prosecution to call Stahimili - that is, the appellant's uncle's wife who

was present when the attack took place. He C argues that this failure on the part of

the prosecution gives rise to an adverse inference that the prosecution decided not to

call this eye witness because she would have supported the appellant's evidence

concerning his mistake about the hyena. Surprisingly this submission was supported

by D Mr. Kapinga on behalf of the Republic, We say 'surprisingly' because Mr.

Kapinga did not indicate that he was not supporting the conviction until we pressed

him to say so.

With due respect to both Mr. Mbusa and Mr. Kapinga, we do not think that such an

adverse E inference can be drawn from the circumstances of this case. A mistake of

fact concerns a state of mind of the person making the mistake. So, Stahimili's

evidence would have been crucial only if there was indication or a probability that

she could have known about the mistake of fact made by F the appellant. In his

testimony given in his defence at the trial, the appellant stated inter alia:

When I got to the home of my uncle I said 'Hodi'. The woman replied

'Karibu'. Then she asked who I was. I G told her. Then she asked what I wanted. I

told her to give me my clothes for covering myself. She asked where the cloth was. I

said it was hung up in the house. Then she said 'who is here?' I asked, 'but the door

is shut?' She said, 'There must be something'. Then she opened the door and came

out. Then I entered the house. Then I looked under the bed and then I asked, 'what

is here?' I got no reply. I did so four times. Then H I saw something move towards

me. I then took a pounding stick as I thought it could be a hyena. The stick was

inside the house. I hit once. I hit at the face. Then the man I hit ran out. Asked

Stahimili who was outside what that man was. Then I told Stahimili to go back to

sleep there. But she refused. I then escorted I her to Tengeza's house ...

1984 TLR p248

NYALALI CJ

It is obvious from the appellant's own testimony that Stahimili did not know and

could not have A known about the appellant's alleged mistake of fact since she was

outside the house when the appellant allegedly was mistaken after he had entered the

house to look under the bed. There is no likelihood therefore that her evidence could

have supported the appellant's defence or undermined B the prosecution case. That

is why we are unable to draw an adverse inference against the prosecution for failure

to call her to give evidence in this case, although, of course, the failure makes us

curious about what she might have said.

The other important consideration arises from what the appellant stated to P.W.2 and

to the police C officer - that is, the third prosecution witness (P.W.3). These

witnesses testified to the effect that the appellant told them that he attacked the

deceased upon the mistaken belief that the deceased was a stranger committing

adultery with his uncle's wife. This evidence raises the issue of D provocation which

was specifically considered and ruled out by the trial court. The learned trial judge

stated inter alia in his judgment.

The gentlemen assessors were of the view that a reasonable man would have

called out for help so as to arrest E the stranger. I am of the same view. I am not

convinced that a reasonable man or an ordinary man would have lost his head and

reacted by beating the stranger on the head with a pounding stick...

We concur with the view of the gentlemen assessors and the learned trial judge on

this point. We F are satisfied that a reasonable or ordinary person would not have

been provoked by finding one of his uncles or any person committing adultery with

the wife of another uncle of his. At worst he would be shocked and scandalized.

The other important point is whether the deceased died as a result of the appellant's

attack. This G issue poses no problem as the medical evidence clearly shows that

death was due to head injury and brain damage. Obviously the appellant's attack

killed the deceased.

Finally, we have to consider and decide whether the appellant had malice

aforethought and had no H lawful justification or excuse in killing the deceased.

The learned trial judge found the existence of malice aforethought from the nature of

the weapon used and the location of the injury inflicted. We respectfully concur. On

the evidence, there could not have been and there was no lawful I justification or

excuse for killing the deceased. The appellant was

1984 TLR p249

A therefore properly convicted. Since the sentence of death by hanging is

mandatory by law, we dismiss this appeal in its entirety.

Appeal dismissed.

1984 TLR p249

B