Mnzavas, JA, delivered the following considered judgment of the court: D
The appellant, Seif Mohamed Senzagala, was charged with and convicted of wounding with intent to cause grievous harm contrary to s 222(1) of the Penal Code and sentenced to five years imprisonment by the district court.
Dissatisfied with the decision of the district court he appealed to the High Court E which dismissed the appeal against conviction but reduced the sentence of five years imprisonment to one of three years. Still dissatisfied the appellant has come to this Court.
Arguing the appeal before us Mr Rutakyamirwa, learned defence Counsel, submitted that since the High Court (Rubama, J) had found that the attack of the F complainant, (PW1) by the appellant was done in self-defence inside the appellant's room where the complainant had followed him he should have found the appellant not guilty of any offence as the attack was justified in law. In support of his argument the learned Counsel referred us to article 16(1) of the Constitution G of the United Republic of Tanzania and the decision in R v Hussey (1).
In the alternative but without prejudice to the above argument Mr Rutakwamirwa submitted that even if the conviction was to be upheld, (as indeed it was upheld by H the High Court), the circumstances under which the assault was done called for a more lenient sentence than that of three years imposed by the High Court.
The Court was asked to uphold the appeal and order the acquittal of the appellant.
In rebuttal Mr Senguji, learned Senior State Attorney, supported I
A the conviction and the sentence of three years imprisonment. It was argued that the sentence was not so manifestly excessive as to call for reduction by this Court.
When the Court referred the evidence in the district court to the learned State Attorney, he conceded that the complainant was the aggressor who had followed B the appellant into his house. It is also not irrelevant to mention that the complainant hurled obscene abuses to the appellant and his wife before he attacked him in the presence of his (appellant's) wife.
Taking into account this evidence and the provisions of ss 18, 18A and 18B of the Penal Code which say inter alia that: C
`A person is not criminally liable for an act done in the exercise of the right of self-defence unless "excessive force" is used'.
D We are of the considered view that in using a panga in his defence and thereby causing the complainant to suffer a severe head injury the appellant used excessive force as rightly argued by the learned State Attorney. He was therefore rightly convicted of the offence of wounding with intent to cause grievous harm contrary to s 222(1) of the Penal Code. The appeal against conviction is accordingly dismissed.
E As for the sentence of three years imprisonment imposed by the High Court the learned judge said inter alia before sentencing the appellant:
`I accept in that vein Mr Rutakyamirwa's submission that the appellant had every justification to defend himself and his property'. F
With that observation by the first appellate Court we respectfully agree; but with even greater respect to the learned judge we are far from being persuaded that taking into account the circumstances that led the appellant to use a panga (as mentioned above) in attacking the complainant called for a severe sentence. G
As rightly argued by the learned defence Counsel had the learned judge sufficiently addressed himself to the circumstances that preceded the attack of the complainant by the appellant he would no doubt have found that this was a case H that loudly cried for lenience the use of a panga by the appellant notwithstanding.
The record shows that the appellant was convicted of the offence on 10 August 1992; and he will by now have served one year and five months imprisonment. We are of the opinion that this is more than sufficient punishment in view of the mitigating factors mentioned above. I
In the event we sentence the appellant to such sentence as will result to his A immediate release from custody. It is so ordered.