Mfalila, JA read the following ruling of the court:
The appellant Shabani Rashidi was charged with and convicted of murder by the High Court (Mackanja, J) sitting at Dar es Salaam. Consequent upon this conviction he was sentenced to death. This appeal is against the conviction and sentence. I
A The facts are not complicated. According to the prosecution witnesses, the appellant and a woman, Fatuma Hussein (PW1), cohabited as man and wife from 1983 to 1986 when they formally ended their relationship. They even divided B whatever they had earned together, in particular from produce. Fatuma then lived as a single woman with her parents from 1986 to 1988 when the deceased Ayubu Hatibu started courting her. With her parent's consent, she accepted his advances and they soon developed a love relationship. According to Fatuma, the deceased C intended to marry her. Then on 28 January 1988 at about 10 pm as the two of them were seated in her bedroom, the appellant suddenly burst in and without much ado proceeded to stab the deceased. He stabbed him in the stomach. Both the deceased and his lover ran out of the house shouting for help, the deceased clutching his stomach perhaps to prevent the intestines from pouring out. The D appellant caught up with him and started kicking him. Neighbours came in answer to the alarm. These included the Chairman Saidi Mwelupunge (PW3) and Fatuma's brother, Zuberi Hussein (PW2), who managed to separate the two. The E appellant told them that he had stabbed the deceased because he had found him committing adultery with his wife, Fatuma. The appellant was arrested and police from Chalinze Police Station took the deceased to hospital where he died of the injuries on 31 January 1988. The appellant was charged with this offence.
F In his defence, the appellant denied this allegation. He disputed the allegation that at the time of this incident his relationship to Fatuma had been terminated. According to him he had simply taken a second wife and he used to alternate between the two women. On the fateful day, he was supposed to be at the home of the second woman. But because one of his children with Fatuma was ill, he G decided to go and visit Fatuma's home to see how the child was doing. It was during this unexpected visit that he found Fatuma and the deceased committing adultery. He became extremely provoked he said. He got hold of the deceased and pulled him down from the bed and he fell down. When the deceased got up he saw him holding a knife. Seeing this, the appellant said, he kicked the deceased on H the legs. As the deceased fell down, he fell on the knife he was holding. When he got up, he ran out of the house. The appellant added that he pursued the deceased while raising an alarm and caught up with him about 100 paces from the house. When neighbours answered his alarm, he told them that he had found the deceased committing adultery with his wife. They started assaulting the deceased, but I
when at last they saw who he was, they stopped their assaults. The appellant A therefore denied the charge that he murdered the deceased.
After considering the whole evidence, the learned Trial Judge rejected the appellant's version of events. He believed Fatuma's evidence and on that basis B rejected the appellant's possible defences of self-defence and provocation. He rejected the defence of self-defence because the deceased was not armed with any weapon and he rejected provocation because his relationship with Fatuma had ended two years previously. Fatuma was free to take another lover. He therefore convicted him and sentenced him as indicated. C
In this appeal, only one substantial ground was filed on behalf of the appellant, that the learned judge erred both in law and fact rejecting the appellant's defence of provocation and that the appellant should have been given the benefit of doubt. D
At the hearing of the appeal, Mr Mselemu from the Tanzania Legal Corporation advocated for the appellant, and argued that as there was no formal dissolution of the relationship between the appellant and Fatuma, the appellant was entitled to be provoked when he found the deceased committing adultery with his wife or concubine. In rebuttal, Miss Korosso learned State Attorney who appeared for the ERepublic, argued that the defence of provocation was not available to the appellant because at that time there was no relationship between him and Fatuma, such relationship had already come to an end. F
On our part we think that for the defence of provocation to avail the appellant, two factors must be present. First, that a relationship between him and Fatuma still existed, and secondly, he must admit to killing the deceased. As to the first factor, G there was ample evidence which was accepted by the trial Court, and in our view rightly, showing beyond controversy that whatever relationship there was between the appellant and Fatuma, it had effectively ended in 1986. From then on, Fatuma considered herself free and indeed she was free to take on another lover. On this basis, she informed the appellant that she had already got another man, H hence he could only visit to see the children. The second factor was also absent because the appellant denied killing the deceased. According to him, the deceased fell on his own knife he was holding in readiness to stab him. Once this version was rejected as it was, then the defence of provocation disappears. We are therefore satisfied that the Trial Judge was right in rejecting the defence of pro- I
A vocation. It was not available to the appellant in the circumstances of this case.
This being the only ground of appeal, we are satisfied that this appeal has no merit and we dismiss it in its entirety. B