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
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
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
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.