Court name
Court of Appeal of Tanzania

Ally Juma Mawepa vs Republic () [1993] TZCA 25 (08 November 1993);

Law report citations
1993 TLR 231 (TZCA)
Media neutral citation
[1993] TZCA 25

Kisanga, J.A., read the following considered judgment of the Court: I

A This appeal arises from the appellant's conviction for murder and the sentence of death passed on him by the High Court (Nchalla J) sitting at Arusha.
The brief facts were that the appellant and the deceased were co-workers at the National Milling Corporation in Arusha. They were both employed there as porters or collies and at the material time B they were also living in the same premises where the appellant had invited the deceased to come and share a room with him. On the material day the appellant attacked the deceased at night, cutting him with an axe twice on the head and killing him instantly. On the following day the appellant told C witnesses that the killed the deceased for stealing his (appellant's) mattress and a bucket some days prior the day of incident.
In his defence at the trial the appellant raised the defences of drunkenness and provocation. However, the Trial Judge sitting with his assessors rejected them and accordingly convicted him for D murder.
Before us the appellant was represented by Mr D N Kapoor, learned Advocate while Mrs M Lyimo, Senior State Attorney, appeared for the respondent Republic. Mr Kapoor filed three grounds of appeal E which he argued together, essentially contending that the defences of drunkenness and provocation were open to the appellant. His contention was strongly resisted by Mrs Lyimo.
As stated earlier the Trial Court duly considered these defences but rejected them; that decision F being based entirely on the credibility of the appellant as a witness. In the morning following the night of the incident the appellant told Joseph Haule (PW2) and Jumanne Kiyemi (PW3) that he had killed the deceased because he (the deceased) had stolen his bucket and a mattress. He duly produced the axe which he used in killing the deceased. Later on the same day he gave a similar account to G the policeman (PW1) who recorded his cautioned statement.
In his defence at the trial, however, the appellant said that he was drunk that night because he had taken lots of drinks. Elaborating on that he stated that on the day of the incident he drank from 6 pm H to 10 pm. He started off with what is popularly known as `moshi' or `gongo'. He consumed three big bottles - orange juice size - of this stuff and then switched over to various other types of drinks. To use his own words:
I `I took three bottles of gongo. Three bottles of the size of an orange juice bottle, that is the big bottles. . . . I also drank `Wanzuki'. . . . I

also drank mbege, whisky, konyagi - every alcohol that you can think of. . . . I drink all these types of pombe every A day.'
Then upon his return home at 10 pm he said he noticed that his property had been stolen. This included his mattress, bedsheet, bucket and utensils, and when he asked the deceased, the B deceased said that he knew nothing about them. In addition the deceased told him not to ask him about the matter and further insulted him, `kuma ya mama yako, mimi sikukuibia vitu vyako'. Whereupon, the appellant says, he became angry, fetched an axe from under the bed and hacked him to death. C
The Trial Court duly considered the appellant's defence but rejected it. The learned Judge and his assessors did not believe that the appellant was drunk or that the deceased insulted him. Mr Kapoor contends that the Trial Court erred and urges us to find that the defences of drunkenness and provocation were open to his client. D
In rejecting the appellant's defence, the Trial Court took into account that on the day following the killing the appellant consistently explained to witnesses his reason for the killing. PW2 and PW3 had each asked the appellant the reason for the killing and the appellant's reply was that he killed the E deceased because he had stolen his property including a mattress and a bucket. Later on the same day the appellant made a detailed cautioned statement to the police officer (PW1) in which he gave the same reason for the killing, adding that the theft leading to this killing had taken place some days back. The appellant did not disclose or suggest to these witnesses that he was drunk or that he was insulted by the deceased. Indeed according to PW2, the appellant told him that when he (the F appellant) asked the deceased about the theft, the deceased simply laughed. And when PW1 specifically asked the appellant whether he was drunk at the time of the killing he said no, adding that he did not take any pombe that day. G
The Trial Court took the view that if it is true that the appellant was drunk or that the deceased had insulted him, he would have said so at the earliest opportunity when PW1, PW2 and PW3 questioned him about the incident. Since he did not do so but disclosed the defence only during the trial, the Court disbelieved him and found his defence to be an afterthought. In our view that H conclusion was amply supported by the evidence, and we can find no fault with it.
Mr Kapoor also criticised the Trial Judge for making certain comments during the summing up to the assessors about the cred- I

A ibility of the appellant. The Trial Judge had remarked that the appellant's allegation that he had mixed all sorts of alcohol; mbege, gongo, whisky, konyagi and several others was a blatant lie. He made similar remarks about the appellant's claim that the deceased had insulted him, which the judge also said was a lie. Again the learned Judge commented on how the appellant in the course of B his defence at the trial prevaricated and indicated the reasons for such prevication by the appellant. For instance the appellant at first stated that the theft of his property had taken place a week before the killing but that on realizing that such evidence was dangerous he quickly changed and said that it C had occurred on the day of the killing.
Mr Kapoor vigorously submitted that such remarks amounted to a misdirection in that the Trial Judge had, in effect, made up the mind for the assessors that the appellant had told lies. Counsel went D further and submitted that such misdirection also, in effect, meant that the learned Judge tried the issues of drunkenness and provocation without the aid of the assessors. But the principle long established by this Court is that where the Trial Judge proceeded to consider and reject the E appellant's defence without the aid of assessors, then the appellant's conviction is a nullity. See for instance the case of Tulubuzya Biture v Republic (1). Accordingly Mr Kapoor urged us to declare the conviction of his client a nullity.
We have given due consideration to Mr Kapoor's submission. It seems however, that there is a F certain amount of misunderstanding here. Admittedly, the Trial Judge, in his summing up, did make remarks about the appellant's credibility to the effect that the appellant told lies. But he did not direct the assessors to reject or not to consider the appellant's defences of drunkenness and provocation. It cannot be said that the Trial Judge failed to leave those defences with the assessors for their consideration. Indeed a perusal of his summing up clearly shows that he expressly left those matters G to the assessors. This is born out by the last two paragraphs of his summing up in which after reviewing the evidence and explaining the defence of provocation, he said:
H `Considering the above evidence, gentleman assessors, whether the malice aforethought has been proved on the accused in the light of the various circumstances which I have given and explained to you from which malice aforethought can be inferred. Also consider whether the accused killed accidentally. Or whether he killed under I provocation. Or he killed under intoxication.

I have said about that the element of accident is ruled out, as the accused himself also has not pursued it in his A defence at the trial. Then consider the element of intoxication. Has the accused drunk when he committed this offence? Is the accused's evidence on that fact believable: if you think and believe that the accused killed under intoxication then the provisions of s 14 of the Penal Code, cap. 16 will apply to him. Firstly you will have to say B whether the accused was so drunk that he did not know what he was doing, or if he did then he did not appreciate the results of his act. This means the accused will be treated like a person who kills while insane. Secondly, you will have to say whether due to intoxication the accused could not form the specific intention for the commission of C murder, in which case the accused will be found guilty of the lesser offence of manslaughter.
And the defence of provocation if successfully pleaded and proved, then the same reduces the offence of murder to that of manslaughter.' D
Thus it is important to distinguish between commenting on the appellant's credibility on the one hand, and on the other withdrawing the appellant's defence from consideration by the assessors or failing to leave such defence with the assessors for their consideration. All that the learned Trial Judge did E in his summing up to the assessors in this case was to comment on the appellant's credibility when he said that he (the appellant) had said was a lie. That did not amount to withdrawing the appellant's defences from consideration by the assessors, and upon reading the above quoted extract from the summing up, there can be no doubt whatsoever that the learned Judge did leave the defences of F drunkenness and provocation to the assessors for their consideration. Therefore, the question of nullifying the appellant's convictions as raised and canvassed by Mr Kapoor does not arise.
Before taking our leave of the matter we find it necessary to say a few words for the benefit of those G who preside over trials with the aid of assessors. Our observation relates to the aspect where the Judge expresses or arises his own views when summing up to the assessors. Where this happens, as indeed in the present case, we think that it can influence the assessors in making up their own H minds on the issue, or issues being left with them for consideration. For in practice assessors have high regard and respect for the Judge and his opinion because the Judge is a learned and experienced man in legal matters and also in human affairs. As such one would rarely expect assessors to come up with an opinion different from that expressed by the Judge on a particular matter. I

A On that account it is considered appropriate that when summing up to assessors the Trial Judge should as far as possible desist from disclosing his own views, or making remarks or comments which might influence the assessors one way or the other in making up their own minds about the issue or issues being left with them for consideration. The summing up should be unbiased and B impartial such that it leaves the assessors to make up their own minds independently. For instance where, as in this case, the accused had given conflicting accounts of the circumstances surrounding the killing, the Trial Judge should sum up and explain the conflicting accounts to the assessors without showing his own opinion or inclination one way or other; to make known his own views, as he C did, as this stage would be going too far. He should then ask the assessors to decide whether or not in the light of the conflicting accounts, and considering all the circumstances the accused could be believed and if so which account was or was likely to be true. The assessors should be made to give their opinions independently, based on their own perception and understanding of the case after D the summing up. The Judge makes his own views known only after receiving the opinions of the assessors and in the course of considering his judgment in the case.
E Now the pertinent question which arises is if the Trial Judge properly directed the assessors without commenting in the manner he did on the appellant's credibility, the assessors would have come to a different conclusion ie that the appellant was drunk and that he was provoked by insults F uttered by the deceased at the time of the killing. We are firmly of the view that having regarding to the material on the record the assessors would have come to the same conclusion as they did. For even on a cursory glance at the evidence on record, it is evident that what the appellant stated in Court as his defence was demonstrably false. Therefore the error committed by the learned Judge G did not really affect the opinion of the assessors. However, it is necessary to emphasize the need to adhere to the practice as stated above, for failure to do so may in a proper case result in declaring the trial a nullity on appeal.
In the result we can find no justification for interfering with the appellant's conviction for murder. That H conviction is upheld and, therefore, the appeal fails and is dismissed in its entirety.

A
________________