Samwel s/o David vs Republic (Criminal Appeal No. 185 of 2014) [2014] TZCA 276 (5 December 2014)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA ( CORAM: RUTAKANGWA. 3.A.. MANDIA. J.A.. And MUSSA. J.A.^ CRIMINAL APPEAL NO. 185 OF 2014 SAMWEL S/O DAVID................................................................APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Conviction of the High Court of Tanzania at Tabora) (Rumanvika. J.) dated the 22n d day of November, 2013 in Criminal Sessions Case No. 70 of 2009 JUDGMENT OF THE COURT 1st & 5th December, 2014 RUTAKANGWA. J.A.: The appellant was convicted of the murder of one Magreth d/o Nsungu, by the High Court (trial court) sitting at Tabora. He was sentenced to suffer death by hanging. Aggrieved by the conviction, he has preferred this appeal, complaining that: ..the Learned Trial Judge erred in holding that the defence o f provocation was not available to the Appellant".

At the appellant's trial and in this Court, the fact that Magreth d/o Nsungu (the deceased) died a violent death was not disputed. Also undisputed is the fact that it was the appellant who single-handedly caused this violent death. The bone of contention has all along been whether the killing was done with malice aforethought or was justified on any ground, such as provocation, hence the above alluded to sole ground of appeal. Admittedly, save for the appellant alone, no other person witnessed the killing. For this reason, the prosecution case was primarily predicated on what the appellant had stated in his cautioned and extra - judicial statements (exhibits P4 and P5 respectively). All the same, the prosecution had also called PW1 A.S.P. Said Kassim Gingo, PW2 James Masanja, PW3 No. E 50 D/CPL Sospeter, PW4 No. F296 D/Sgt. Nassib and PW5 Peter Reuben, to beef up its case against the appellant. The evidence of these five witnesses was brief and except for that of PW4 D/Sgt. Nassib, went uncontroverted. PW1 A.S.P. Gingo told the trial court that on 24th November, 2007, at about 10.00 a.m, the appellant called at Ushirombo Police Station and reported that he "had killed his lover." Together with other police officers PW1 A.S.P. Gingo visited the scene of the incident being led by the 2

appellant. The body of the deceased was found in a supine position, lying in a pool of blood and half naked with an cut neck. A post-mortem examination of the deceased body which was carried out on the same day, established the cause of death to be "severe hypovolaemic anaemia "due to the cutting of the "oesophagus, trachea, carrotid arteries and jagular veins." PW2 Masanja, who was the deceased brother only confirmed the appellant's assertion to the Police that the deceased and the appellant were "lovers". While PW3 D/Cpl. Sospeter drew the undisputed sketch map of the scene of the crime, it was PW4 D/S/Sgt. Nassib, who recorded the appellant's confessional cautioned statement (exh. P4). At the time PW4 D/S/Sgt. Nassib wanted to tender this cautioned statement in evidence, the defence challenged its admissibility not on account of not having been freely and voluntarily made, but because it was never read out to the appellant by the recorder. After a trial within a trial, the learned trial judge overruled the objection and admitted it in evidence. Indeed, in his brief submission before us, Mr. Mugaya Mtaki, learned advocate for the appellant, pressed us to disregard what the appellant said in his sworn evidence and adopt the contents of exhibits P4 and P5 in order to find and hold that the defence of provocation was available to the 3

appellant. In both statements (exhibits P4-5) the appellant stated that he decided to kill the deceased because he was fed up with her infidelity on top of the fact that she had infected him with the HIV virus. In his sworn evidence, the appellant denied murdering the deceased. He claimed that he, on one night, inadvertently slept with the deceased who was a known HIV victim, after taking liquor at her " pombe" shop. From that day he separated with his wife and decided to live with the deceased although he suspected her of having an affair with one Hussein. He went on to assert that on the fateful day, he had requested the deceased to give him water to take a bath. The deceased advised her to hold on as it was still early for a bath. When he insisted for the water, the deceased allegedly picked up a knife and as he was struggling to disarm her "it went astray on her neck" and she fell down on the bed. The three assessors who aided in the trial of the appellant returned a unanimous verdict. The appellant murdered the deceased, they opined, relying heavily on the confessions found in exhibits P4and P5. In his judgment, the learned trial judge agreed with the assessors opinions. Basing his opinion on the graphic details obtainable from the

undisputed Report on Post-Mortem Examination (Exh.Pl), on the nature of the injuries sustained by the deceased, he held, and we are in agreement with him, that the deceased "suffered a brutal... and barbaric death." He rejected the story of accidental killing relied on by the appellant in his defence. On this we are again in full agreement with him. The slashing of the oesophagus, trachea, carrotid arteries and jagular veins, could not have been so casually caused. The injuries are consistent with the explanation given by the appellant in his confessional statements. This conclusion, finds support from the appellant's mouth. Responding to the trial court's question, he conceded that he reported to the police that he had "slaughtered her". We were, therefore, not surprised when Mr. Mtaki pressed us to disregard the defence evidence and rely on exhibits P4 and P5, to hold that the appellant was cumulatively provoked by the deceased misconduct prior to killing her. In his summing up to the assessors and well reasoned judgment, the learned trial judge did not jettison the defence of provocation to the winds. The learned judge was of the firm view that the facts fronted by the appellant in his confessional statements, one of which (exh. P5) was not challenged at all, did not meet the requirements of the time honoured

principles on provocation. He accordingly held that the killing of the deceased was a premeditated murder, hence the conviction for murder. In his brief submission before us, Mr. Mtaki pressed us to fault that holding of the learned trial judge. He contended that had the learned judge considered the pertinent facts to be gleaned from the two confessional statements, he could not have readily rejected the defence of provocation. He cited these facts to be, that: (a) the deceased and the appellant were lovers; (b) the deceased was known to be HIV positive; (c) the deceased had lied to the appellant that Hussein whom the latter suspected to be her paramour was her close relative (nephew), and (d) the deceased had denied the appellant water to take an early bath. Resisting the appeal on behalf of the respondent Republic was Mr. Ildephonce Mukandara, learned State Attorney. He argued forcefully that the facts relied on by the appellant to justify the homicide do not build up a sustainable defence of provocation. It

was his serious contention that nothing was done by the deceased immediately before the killing which could be said to amount to provocation. To him, the facts related in the two confessional statements establish an undoubted premeditated murder on the part of the appellant. He accordingly pressed us to dismiss the appeal and sustain the appellant's conviction. In disposing of this appeal, we shall rely on the undisputed facts as found in the two confessional statements. This is because as already alluded to in this judgment, the evidence in defence was a figment of the appellant's own imagination. It was inconceivable and, therefore correctly rejected by the trial court. After carefully evaluating the entire evidence before him, the learned trial judge found the two confessional statements to be nothing but the truth. We cannot reproach him for so holding. This is because the extra-judicial statement was tendered in evidence by PW5 Peter Reuben, a Justice of Peace, without any objection from the defence.

We have gleaned from exh.P4 that the appellant conceived the idea of killing the deceased on the morning of the fateful day. This is how he put it:- " majira ya saa 06.00 hrs nilipata wazo la kumuua, niliamua na kuanza kumpiga sehemu mbalimbali.. na... nilimkata shingo na kuhakikisha kuwa ameaga dunia." In exh. P5 he unequivocally and pertinently says:- " 20-11-2007 tukiwa tumelala alikuja yule mwanamume mwenye BAG; hivyo nilisema kuwa kuepusha mengi nijifiche maana ni mkubwa wa kunizidi. Hivyo nilijificha chini ya meza na yule jamaa aliingia na mimi nikatoka nikaenda kulala sehemu nyingine; 22-11-2007 nilienda kushitaki kituo cha Polisi MASUMBWE kwamba nimebakwa na MARGERETH DELE. Nao walinikatalia. Hivyo nilianza kufikiria na Hibidi nikalale tu kwa yule MARGERETH DELE na BAG Hikuwa bado Hmo. 8

23-11-2007 niliomba ushauri kwa kitongoji wangu na alisema kuwa nifanye upelelezi wamkamate Ha yule bwana hakuonekana. 24-11-2007 nilishindwa kuvumilia. Mama mtoto nilimuacha sababu ya MARGERETH DELE naye anazidi ku/eta wanaume ndani ya nyumba hivyo niliamua KUMKAMATA na KUMNIGA na niiichukua kisu ambacho nilikamata na NIKAMCHINJA NA KISU." From the above extract, in which he is confessing throttling and slaughtering the deceased, it is clear as correctly contended by Mr. Mukandara that the deceased in between 21s t November, 2007 and the minute she was slaughtered had done or said nothing which would have provoked the appellant. The appellant lost his golden opportunity on the night of 21s t November, 2007 to prove his suspicions that Hussein was having an affair with his lover Magreth by allegedly seeking refuge somewhere else. Instead, as the learned trial judge correctly observed " The accused reacted three days later; this was by no stretch o f imagination caused by loss of control o f himself, i.e on heat o f passion. " We subscribe wholly to this observation. 9

We have found ourselves constrained to agree with the learned trial judge, because as this Court succinctly stated in HERMAN NYIGO V R. [1995] TLR 178:- " Normally the defence o f provocation is available in the circumstances which would otherwise constitute murder except for the sudden loss o f control o f oneself as a result o f some act which provoked the accused person." Such a situation was not obtaining here. The killing was not done on the heat of passion. The appellant acted out of malice on the basis of unconfirmed suspicions. It is our firm finding, therefore, that the appellant killed the deceased with malice aforethought. His conviction and sentence for murder, therefore, ought to be sustained which we hereby do. All said and done we dismiss this appeal in its entirety. DATED at TABORA this 4th day of December, 2014. E.M.K.RUTAKANGWA JUSTICE OF APPEAL W.S. MANDIA JUSTICE OF APPEAL K.M. MUSSA JUSTICE OF APPEAL

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