Republic vs Chalatila Mwanandeje (Criminal Session Case No. 11 of 1996) [1999] TZHC 438 (15 April 1999)

• 22 - IN THE HIGH OJURI' OF TANZANIA AT SUMEAWANGA · ORIGINAL JURISDIGrION MBEYA REGISTRY CRI'M!NAL SESSION CASE NO. 11 OF 1996 THE REPUBLIC VERSUS CHALATILA MWANANDEJE JUDGMI!:NT. MOSHI, J. The accused persoi:i, CHALJ,.TILA ANADWEJ,r--~~ands charge,d with the murder 10 of- one MERANIA D/0 PEI':ER on the 19th.day of. JuJ_y 1995, at Chanji area, within
• • I • •~ ' . ,. - ... -':,--;-,.,: ·- · the Township of Sumbawanga. Sev·eral matters were found to ·be not· in dispute at the· Prt?1iminacy_ ·Hearing of the case, and they were listea,, in the Memorandum of up.disputed matters prepared by the court and signed by the parties and their learned · counsel. The undisputed matters included an extra-judicial statement (Ext. ·P3) voluntarily made by the accused to a primary court magistr.ate as justice of peace, and a post-mortem examination report (Ext.P1) on the body of the deceased. The accused did not only admit and assert that Ext. P3 was voluntarily given . but that it was a true and a faithful record of what he had told the 20 magistrate. These undisputed matters, and, 9 yveral others, were, in consequence·, . . . cc· 'deemed to· have been duly proved in terms of section 192( 4) of the .Criminal Procedure Act 1985 •.. · Evidence relating to the death of the deceased, and its cause; is not ' in dispute •. During the night of 19.7,.,95 at about 10.00 pm the deceased was ... found prstrate on the ground a 'few steps from the house of her father PErER' MAMBOLEO KAMEKA (PW1 ); wheie i3he lived, profusely b1eeding··from cthree stab-wounds on the stomach froni' which intes:tines wer:e prot:rudin!F -She died . ·. the following day at S-urtibawanga Government Hospital . An·· autopsy 1 was co119:ucted

· 23 on the body after it was identified by PW1,- and in the opinion and finding of the performing Medical Doctor ·expressed in his autopsy report (ExtF°1); death was due to ble·e.diu._g __ +eadng to .irreversible shock. In consequence; .. ,. . ... ~ ... · .. ··- .. I am satisfied, and hereby find, that the deceased MERANIA D/0 PEI'ER is, in fact, dead,_ and that she -fed. a_ yiolent death. What transpired on the day of the incident and one or two days before th: incident: was~,AA~r_a..:ted :by the accused in his extra-judicial statement . . . . .- .. .. !;.:.:.:r-=:· ·•. '· · (ixL: p· 3 ) and .before this court, The accused and the d:eceased were fiancees, They' i'ntended -t.p. g_et married in November 1995. But. dowry .had not been set • •• : C a:nd· paido- Op. 1607 ■ 95 at 11.00 am the deceased met the cl;CCU$.ed at Salama bar,• 10 .<:: ".·:--: ·-.;They pared __ at 2.30 pm atr drinking beer •. At 6.00 pm the accused went to ·.- :.,-· .. ' ... • .. . · . . .o:,,,c,: .·,,., Salama bat and. later to Central bar where. he found thE;l deceased.

• - . :. :· : . ! ... At the · .. , . .-:re-quest .. of.. the deceased the accused gave her.--hs-.6, 00_0/= f~~~ying household . . -·.· ! . ' --. '• items (utenils) in preparation for their intended marital life. ·-•-'::": After drinks ' ' they boih went to the house o·f the accused where. the accused. suggested sexual . -...! • . :, .·.· . .. r •,: .. intJrcoi.irse! Th deceased refused saying that time for that was yet to c.ome~. /.·-. : -;.. . . . ..... , __ ,·· .. ·The accused then said if thlit were th~ case the deceased would have to return .: .. .-· . ···tc.;: -: . -· ·'' ·. r t-9: hirrt );tis shs.6,000/= and escoited her home. The deceased said she would C • •• -l "J .' --; :: : .. ·,. w. ·_. '·,- .. •·;,:<·buy trie.ut_encils the following day.- .S_alama bar, Central bat/d the houses : . . ·.,; :-, ·_:.. . . ; ... : . . df the aM\ised and the fi:ither df''·the g.eceased (PW1) were alf in the same 20 . :;.· ,.-- . , :: _, :·.,, -e.ighbourhood at Chanji area of the town. . : .-. ,· 1 . .... . • - • :· ••.. . • ,•... •. •. :. The. following day ( 17-795) · the acc~e.d and deceased did ·not meet.·· On' .. L· The accused gave her shso400/= for ;c.--·<- :/.:.,g.fnk~. icl_l:,.- promised '·t'o mee1(her ·1ate-r , •••• _ ..,j:, •· -;,rJ'Ci : . • . . at Central bar, At 900 pm they met at ,..,,, · .Central baro The accused suggested .. -~ ·. ·: --, . . ..... · :.::-;. ·, i: -- { 1•·· . refused •. Tey parted • they. g9 to his house, ·but the deceased . ' -~·:. . ..: .. ~ __ ;· . ··..1. l.; ; i.:'.: i ;;. ; . '!::(; .. . ·:•:£.;i:!...:"l·:t·:---:,·.., ... • . In the evening of the following day. (1907.95) the adcused went to Salama bar for pombe. · He later moved to Central bar and found the deceased outside the bar. It was about 7.00 pm. This was the day of the incident. The accused asked the deceased to accompany him home for sexual intercourse. The deceased 30

She . !,': .'. r . , told him all between them was finished •. On the question of-the return of •. •: ·,!, , .. l, .fl '. the; shs.6,000/= to the accused she told him she .would not return the mo:trny ,.,., as she had not forced him to part with it in the first place. The accused, he claimed, then left her and went home to sleep. He-told the trial court .,-.that it was at about· 7.00 pm that, he left for home. But this, quite obviously, could not have. been the case, have met-a-t 7o00 ·-- ; pm and parted at 7.00 pmo .... • J .'.l;'hat same night a:~ a~-t 10000 pm the, fat~~~ of th_e deceased (PW1) was -··· ., -· awakened,·from sleep PY. the cries of the deceased outside the house,. The . . . :·. ~~- dep:eas-ed was s.ip$ in a. loμd ,and shr.illed voice.,tChalatil~ atr!en1clima visua :; Ptvh'!i:.:got out of .the. }!9use .and .fo11n,d the deceased prostrate ;- the°g:round . .• .......... , ... -•:-· .. : • · : ,. : • !' ,•, . ·,. • .-:.a.'.. .,., at;jout "five· paces fro,m the house in. the condition already described. He · • .· ·:Mked :her te person. responsible and she repeated that it was Chalaiila who ti-.-:·:;·: .:+- had stabbe'd -her. He asked her the ··reason, and she '$%i\o.•: she had refused ·'Iiim ... . ,•,• . . -! .. :: . . ... -:'-- !'--J).~~ . . _1:,exual int<?_urse. _ J.t.~ common ground that ChaJ.ahW!!.:s the first nm'·bf ·:·,:-:.•'--· "'!;:.··.: .•.•. :-·-. . . ·-· the ·accUB'e<lc:- .. T-y 422.Je-.t~. S_y.mba~~,a _police station and then to Sumba- ' . y,, .... ,,... . . ; .. , .. '. . '.. ·. wru-i-ga:C government,.J?:'9.+.- wh,E:.$ -~~ a~_mittd-. -That 'sameriight' at -1·.;"ou am •·. .. .. - ...... --,,- . . . . . . the polic.went to the house of the accused and arrested him. O:n 240·795 the .' , . accuse_d made · pdrhary court . magistrate. The first point of contention to be L~;nsidered' aii:'ir·dterll!ined by this ;-learned.adv_ocate for_the accused, Mr. Materu, submitted that the :identity. of, the accused as the killer of the .deceased was 'not suff1eiently established. _The first· lady assessor expressed the same opinion. Ori · the other hand,· 'the .. . . .. ,,. 1,~arned stat_e attorney for the Republic, Mr. Boni_face, ·submitted 1 'that· the . . . . . ' . . . .-.accused was sufficiently identified as the killer of the d"ec~~ed,: and· the ~ . ~ . . 10 20 30

.. gentleman assessot• ::.s·.· There ie• f1rotlY • d.nulll$tantial evi;ence whi•h, ,n p~~~er refiection~ iesi.eta.'oly 1t9ints to the a;•1,1Sed ~ the kill.er ot the deceaaea: They were !". ··1, -· togethe~ not only. v.r1ng the nght of the agsa~~ t immeditel.Y oefore the aasav.1ta They hao met at ? 1 00 pm an; ;h@ te they part'd. •i{ting they ~ .W:U,. ... mkn. Th;:, me.;1,ng ti 5ho nht ot 5_he i.n-Git - ~~d not gone ' -- . •', . well, . They liyed. ·-i,n eaino tdgl~OQGe . P:~~~;y ~ W ~ their l!IQ8 ~ thy Centrai 0af ia1 •1rt, Ano. ntr@. t~~ WM b:, n6 means a case of a •1-ea- kilg, · Th@:,o wq motive or i-eMtn GQ kill.· The accused .,,, hi.m.sslf PPlie4 ~ Ho haf not i, 'oHn rfuse61Jexu '1ite:1QOUrse for 10 t,hre.e c.onsec.~~- - ut ~ was.' :'Lile.Uy r,oste6', a ~~~tt'r:,.or !iancee, and the hope tf geUng hie she 1 j,=ooo;. be. tt;&i Mr,· Miteru submitted '✓ ·! , .. that these matt were in;ult1;i,ent to supp3.1 any ff!,·Uve r reason for the crime. I woul •. hwv-lt. .. agro@· with Jv'i:, Bontase that ;hey d.i,d.. I am mindful, howev_er, that motiv; is iit aa·ingrtd-iqt.,ot'iho_off;nce of mu;de~.· 'But .- ' I wouJ.d, with reepee;, a.g.N w1tl. -wh.,.t, ~~~e 1 J I eag. il\ the case of . . .. ' . : . ~ •• i : ·. ' • .( . . .. &!• Stephano Aig{j ('19411 H~-N16 9t t~~ file+-- moti-P- tG~ to _st.rengthen the p~:t°',' .e~· "t .f: 1~ ru;s~ ~~. to weaken it~·

• . ·. . -:,I-:- . • scondly, thete .:-fi{ aodiin t~ th@ !oreging .ci:itanti:·:.: ·· - evidence, the dying decWat,ian of the aeleased, For ~ d;ing decirti.h .. 20 · .. ·:·.' to ,)i.av_E:l ·a±i:y · evidential value there must, , f.itly 1 be sufficint evidence that ; . ;::;...... . . . .. . --· ·• . i., was, in fact, mad~,§.~ R.v • .J1~:hl_igi1l_a Sl<?_mije ( 1974) LRr n. 57, ... In :this case it is not in dispute that the dying declaration was made. The point of contention is whether it condemned the accused person. Mr. Materu and the lady assessor thought that it did not, while Mr. Boniface and the gentleman assessor thought that it did. The reason given by Mr. Materu is that the deceased could have referred to_'anotll,er CHALATILA as only·t'he:first name of the accused_ was mentioned. With rspect, I find myself unable to .. .:. ·.·•,.i-. .. . . ' . • agree with Mr. Mate~. E~s reasoning mis5.ed an important point. The deceased r:· did not only ·mention that CHALATILA was her assailant. ••• j.,·- ~'. • She also mentioned the 30

• ?6 ... reason for the attack. She had refused CHALATILA. sexual intercourse. On the e•idence and in the ciretanees -it w CHALATILAi the ac_cused person, .• she had refused sexual intet,rse that night. They were very well known to each other. They were t9gether that l\iht 0 The nigAt • !t,cording to PW1, was not a dal:-k l'!.ight. Ther w~ meonlight, The 0-ecasid old not have · mistaken the aeced for anothwr pel"Eiono - I fud., therefore, that the deceased con<l.enme.d th.$ ace.used per~ in the d.;Yil\g deelariition~ 4 . The eurrent positiow. is that eorl!'obortion is required a.s a matter of practice before a dying.declaration OM be actet upon aa PTOOf of the content ther:Ln - .s~ ;a.v. A~,t~ li-Cll.a-.-d ai.XLJos.,e;eh N~~-C?. (1977) 1 LRr n. 6. I a'l!.satisfed that the cireJ.lI?IS.tantial evidence, as found by this · court, sufficiently corroborates the dying .d.e¢laration. I have considered the accused 1 s defence. of alibi "in the light of the foregoing indicated evidence. He said he had parted with the deceased and was at. ·home ·at the •-, time of the assault. As a matter of law, an at:J,U,Sed' pers.o..n is not required to prove his alibi. It is sufficient for him if th& alibi raisBs a satisfiel that the accused vs alibi does not raise an;y reasonable doubt. as to his complicity in the matter. Consequently, like the second gentleman assessor, I am satisfied, and hereby find, that the accused person was, on the eviden·ce, the killer of the deceasedo I am next and finally to decide whether or not the accused killed the deceased with.malice aforethought. On the facts the accused had taken some .. pombe. It i..s the law that malice aforethought i..s less readily inferrable where the culprit is shown to have taken liquor immediately before he committed the offence- SEE_R.vo MagJ??i __ s/o __ Bwanyigt.!: (1973) LRI'_No. 90. However, . in this c,3.5e the defen_ce of in~oxication was not raised by the accused. The accused did not say that he was drunk. There was no evidence or indication ' . . in the evidence that he was drunko In any event, it is not the law that every . . ! time a person tastes or abuses U1imself vdth liquor he i..s intoxicated within

:. . ··:t7 ;;·;t-",...;: - ~ }?t:.:· the meaning of the law- SEE Court of Appeal Criminal Appeal Noo 77•of 1987 ( unreported) in E!.al_sL.~~uelv~.·: The p;~ticulars of f,i'l.cts • have to be weighed. . . In this ca.e the fatal wounds were inflicted by a knife, and the knife was directed at the stomaqh f the deceased • . .. . . ·•· ..... (1954) 12 EACA 63, the Court_of Appeal for Eaatern Africa held that in arri'hng at a conclusion as to whether malice aforethought has been established, the court must consider, among other things, the 'weapon used, ·:•--, .. - ...... ...;,. .... . . - ' ... the manner in which it'Is ·used, and th pa.'rt 'of the' body ih'jtired,. ''Bbth · learned Counsel were not at issue that malice aforethought attentled·the- killing •. rhey differed only on the identity of .the killer. The second gentleman assessor expressed an opinion that Malice aforethought was established. Considering the vicious nature of the attack and df the wounds caused, and the part of the body injured, I am satisfied that the element of intention to kill or to do· grievou harm must have attended t•he commission of the assault, and thus making the offence a murder as defined under the law • .. In the final analysis, I am satisfied that the offence of murder as charged on the information has been demonstrated beyond reasonable doubt and, like the second gentleman assessor, hereby find the accused person guilty of that offence, and accordingly convict him. Mro Boniface: ___________ .. _ -- . -· - accused. Mr.Materu: .. ,...,,._ _ ,.,.,,..,.,, __ B8P. MOSHI JUDGE. My lord, there is no known previous record against the . ' MITIGATION .,...,.,... ... ~ !'1y lord, I have nothing to say• 1C 2(

... 28 .. ./\llo<?Ut?.Y ac_sus 7 d:- I have nothing to say.; For you, Chalatilaa.11.deje, thare is only one sentence in law which the Court .can pass, .and does hereby pass, and that ia that, you shall suffer death by hanging. B.P. MOSHI 1.lJ__QG,b_ 15o4o99 • Court: .Appeal. :rights explained.. and assessdrs. a:re thank-ed and discharged. AT SUMBAWAJ.~GA. 15 April 1999. For Republic: Mr. Boniface. For Defence: Mrr Materu. BJP. MOSHI JUDGEo 10