Court name
Court of Appeal of Tanzania

Wilson Nyamhanga vs Republic () [1986] TZCA 8 (26 March 1986);

Law report citations
1984 TLR 340 (TZCA)
Media neutral citation
[1986] TZCA 8

Nyalali, C.J. delivered the following judgment of the court. H
The appellant, Wilson Nyamhanga Marwa, was charged and convicted in the High Court at Dodoma with the offence of murder contrary to section 196 of the Penal Code, and was sentenced to suffer death by  Ihanging.  He was aggrieved by the conviction and sentence, hence this appeal to this Court. Miss Mlaki of the Tanzania
               
  A Legal Corporation appeared for the appellant, whereas Mrs. Malecela, learned State Attorney, appeared for the Respondent/Republic.
From the evidence adduced at the trial from both sides, there is a wide area of agreement between the   B parties.  It is common ground that on the 27th of April, 1980, during the day time, there was a commotion at the Isanga Prison, Dodoma, triggered off by a fight between one Senge Senge and one Ramadhani Iddi.  The appellant, who was a remand prisoner, and one of the remand prison leaders became involved in the   C commotion.  The said Senge Senge was a convict serving his sentence of imprisonment at the prison.  In the course of the fight and the commotion, the said Senge Senge was stabbed with a knife.  He was later rushed to the hospital on the same day where he died.  A post mortem examination was performed upon his body the following day, that is 28th April, 1980.  The appellant and the said Ramadhani Iddi were taken   D by the prison warders to the Dodoma Police Station.  Among the prisoners who were present when the fight and the commotion occurred were P.W.4, that is, Severin Rashidi and P.W.5, that is, Hashim Selemani.
  E From the same evidence adduced by both sides at the trial, the area of disagreement appears to lie within a narrow compass.  The prosecution asserts that while the deceased was fighting with the said Ramadhani Iddi, the appellant appeared from one part of the prison compound and went to stab the deceased with a knife with a declared intention to finish him off that day as he was a troublesome person in   F the prison.  The prosecution further contends that the deceased died as a result of the wound inflicted upon him by the appellant.
On the other hand, the defence contends that the appellant did not join in the fight and commotion, but   G intervened to put a stop to the fight between the deceased and the said Ramadhani Iddi.  The deceased was annoyed by this intervention and he produced a knife with which he attempted to stab the appellant.  The appellant managed to deprive the deceased of the knife by kicking it off from the deceased's hands, as   H a result of which it flew and landed in a crowd of prisoners nearby.  The deceased went to fetch the knife only to emerge later from the crowd injured and bleeding, apparently, after being stabbed by somebody unknown among the crowd.
The first point for consideration and decision in this case is whether the appellant stabbed the deceased.    I The learned trial judge considered this point and stated:
               
   It follows from the foregoing, and I have so stated, that I believe as true the evidence of P.W.4 and PW.5 on the A accused's role.  Not only were they in a position to testify to the events, they also impressed me as merely anxious to serve the course of justice.  I therefore find that the accused arrived at the scene and first stabbed the deceased in the back.  Admittedly, the back wound does not feature in the evidence of the doctor or the post mortem report, but the B accused impliedly confirmed its existence when he stated that he saw blood on the deceased's back.  I also find that after the stab in the back the accused went on to stab the deceased on the forehead and in the neck. C
The learned trial judge correctly observed, in another part of his judgment, that the prosecution case depended on the credibility of P.W.4 and P.W.5, whom he found to be truthful witnesses.  There are,  Dhowever, certain discrepancies between the evidence of P.W.4 and P.W.5 which the learned trial judge failed to consider.  According to P.W.4 the fight involving the deceased and the said Ramadhani Iddi had ceased when the appellant appeared and went straight to strike Senge Senge in the back.  In the struggle  E that followed, the appellant further stabbed the deceased on the face, left arm and the neck.  P.W.5, however, stated that the fight between the deceased and the said Ramadhani Iddi was still continuing when the appellant appeared and went to stab the deceased in the back.  The appellant later followed this  F by stabbing the deceased in the head and neck.  There is no mention of the stab on the left arm.  There are, thus, discrepancies concerning the situation in which the deceased was when he was stabbed by the appellant, and also concerning the parts of the body where the appellant inflicted the injuries.
  We are satisfied, however, that these discrepancies can be explained.  It is common ground that there  G were a lot of convicts and remand prisoners present when the fight and the commotion occurred.  In those circumstances of the commotion involving so many prisoners, it is unlikely for a witness to see clearly all the sequence of events without interruption.  Added to this, is the fact that P.W.4 and P.W.5 were not  H observing the occurrences from the same vantage point.  After all, P.W.4 was a convict prison leader in charge of a queue of remand prisoners, whereas P.W.5 was an ordinary convict sitting or standing among his fellow  convicts.  We are satisfied that these are the reasons for the discrepancies which do not  I therefore undermine the credibility of P.W4 and P.W.5.
               
  A The appellant's suggestion that the deceased could have been stabbed by someone else while he retrieved the knife from the crowd is unacceptable, in view of the evidence of P.W.4 and P.W.5.  These witnesses had no reason at all to lie against the appellant.  After all, it was common ground that the   B deceased was a troublesome person and a nuisance to everyone in the prison.  The appellant seems to have done an act which was popular to the inmates including P.W.4 and P.W.5.  The learned trial judge was of the same view when he stated in one part of his judgment that:
C    I am of the view that if the deceased was so hated, and the witnesses apparently welcomed his death, they could only have spoken the truth when they testified in the deceased's favour.  On the other hand, there was no allegation of mutual grudges between the witnesses and the accused.  They were convicts, he was a remand, and perhaps the D only time they met was at meal times.  They therefore had no cause falsely to testify against the accused, least of all when he had done them an apparent service by eliminating a hated man.  Even for these reasons alone I can say E with perfect conviction that the witnesses testified to the truth.
We concur with the learned trial judge and find as he did, that it was the appellant, and no one else, who stabbed the deceased with a knife.
  F The next point for consideration and decision in this case is whether the deceased died as a result of the stab wounds inflicted by the appellant.  The learned trial judge considered this point and in the light of the evidence found little difficulty in coming to the conclusion that the deceased died as a result of the injuries   G inflicted by the appellant.  There was medical evidence and the evidence of P.W.4 and P.W.5 to support such conclusion.  Nothing has been raised in this case, and we can find no reason to make us differ from the conclusion of the learned trial judge on this point.  We also find that the deceased died as a result of   H the stab wounds inflicted by the appellant.
The next point for consideration and decision in this case is whether the appellant had malice aforethought   I in inflicting the fatal injuries upon the deceased.  The learned trial judge considered this point and stated:
               
   There was no provocation properly so called nor can it be said that the accused acted to save Ramadhani's life.  He A acted simply to punish the deceased.  Further, it is evident that the attack and its accomplishment were specifically intended to cause death.  When the accused stabbed in the neck he also declared:  'Lazima ufe leo'.  And when he B realised the inefficiency of his crude weapon he exerted his might, forcing the weapon deeper and deeper into the neck, undoubtedly to exact the desired effect. I have considered the views of the second assessor but, most respectfully, I must disagree.  A person cannot get away with murder because he fears that his victim, if left alive, C might in future take revenge.  To adopt that view would be licensing  chaos and death and we would be back to a state of nature.  The instant case was a case of irreducible murder. D
In considering the evidence and the finding of the learned trial judge, one must bear in mind the common ground that the stabbing occurred in the course of a fight and a commotion involving the deceased, Ramadhani Iddi and the appellant.  There is thus every ground to suggest very strongly, that the stabbing  E by the appellant took place in the heat of passion generated by the fight and commotion.  Although at one point of the fight and commotion the appellant told the deceased "Lazima ufe leo", that is, "you must die today", that statement by itself is not evidence of premeditated killing, since the statement was made in the course of, and during, the fight and commotion and not before. The appellant could have uttered the  F statement as an expression of his raging passion. The position would have been different if the words were said before he joined the fight. We share the doubts entertained by one of the assessors who sat with the learned trial judge, and we find that malice aforethought was not proved in this case.  But since it appears  G from the evidence that there was no legal justification for the killing of the deceased, the appellant is liable to conviction for the lesser offence of manslaughter.  As the appellant was responsible for assisting to maintain law and order in the prison in his capacity as a remand prisoner leader, he deserves a severe  H sentence. We shall take into account    the fact that the appellant had been in custody in respect of this case since 27th April, 1980.
In the final analysis, therefore, we allow the appeal by quashing the conviction for murder and setting  I aside the sentence of death by hanging and instead substituting therefor a conviction for
               
  A manslaughter contrary to section 195 of the Penal Code, and we sentence the appellant to ten (10) years' imprisonment.
Appeal allowed.
               
B