Court name
Court of Appeal of Tanzania

Herman Nyigo vs Republic () [1995] TZCA 9 (16 June 1995);

Law report citations
1995 TLR 178 (TZCA)
Media neutral citation
[1995] TZCA 9

Lubuva, JA: delivered the following considered judgment of the Court:
The High Court sitting in Iringa convicted the appellant of the murder of Musa Chatila. The incident took place at the village of I

Kaning'ombe within Iringa District. On 27 September 1992 at about 5.30 pm the A deceased had gone to a nearby pombe shop for refreshment. Ana Kabogo (PW1) was also present at the pombe shop. It would appear that at some stage while the deceased was exchanging greetings with PW1 somewhere outside the pombe shop, the appellant came armed with a bamboo club on his back. Without any B further ado, the appellant hit the deceased hard on the head. The deceased fell down unconscious. The appellant was heard by PW1 announcing: 'I am killing you because of your sorcery'. PW1 raised an alarm in response to which people came to the scene including Fidelis Mtende (PW2). The appellant was raging and C threatening other people. He was, however, subdued and arrested.
Charged with the offence of murder contrary to s 196 of the Penal Code, the appellant put up the defence of provocation and self-defence. In a sworn statement, he claimed that when he met the deceased at the pombe shop, the deceased struck the appellant. That the appellant wrested the stick from the D deceased and with the stick, he (appellant) hit the deceased on the head once. Furthermore, the appellant flatly denied that PW1 was present when the incident took place. The learned Trial Judge rejected the defence of self-defence and provocation and held that the appellant assaulted the deceased unlawfully with malice aforethought. The appellant was accordingly convicted and sentenced to E death. He has appealed against the conviction and sentence.
Mr Kapinga, learned counsel who advocated for the appellant argued one ground of appeal. That is that the appellant should have been convicted of the lesser F offence of manslaughter and not murder. The reason, Mr Kapinga stated, was that the defences of self-defence and provocation were available to the appellant. He contended that the Trial Judge erred in not believing the defence of the appellant that he was attacked by the deceased. Mr Kapinga further argued that PW1 did not G indicate the time she had arrived at the scene and so it was possible that the appellant was attacked before her arrival. He urged the court to allow the appeal against conviction for murder and in substitution therefor a conviction for manslaughter be entered. H
The only issue for determination in this appeal is whether the defence of provocation or self-defence was available to the appellant. Otherwise, as informed from the bar by Mr Kapinga, the rest of the facts are not in dispute. It is common ground that the key witness for the prosecution is PW1. She was talking with the deceased when the appellant came, armed with a bamboo club and I

A started attacking the deceased. In her evidence, she is categoric that there was no fight initiated by the deceased as claimed by the appellant. She raised an alarm in response to which other people came to the scene where the deceased was lying on the ground unconscious. On this, she is fully supported by Fidelis Mtende (PW2) who was among the people who responded to PW1's alarm. PW2 found B the deceased in critical condition and the appellant who was there was arrested. As already observed, the learned Trial Judge found PW1 and PW2 as credible witnesses and consequently rejected the appellant's defence of provocation and self-defence.
C Mr Mbise, learned senior State attorney for the respondent Republic, had submitted that once the evidence of PW1 and PW2 is accepted as the learned Trial Judge did, the defence of self-defence and provocation is not available to the appellant.
D We accept Mr Mbise's submission that with PW1 and PW2 having been accepted as witnesses of truth by the Trial Judge who was in a better position to assess their credibility, we have no reason to differ from the Trial Judge's finding on the credibility of these witnesses (PW1, PW2). On the basis of this evidence (PW1 and PW2) is the defence of self-defence or provocation available to the appellant? Our answer is that it is not available. As correctly observed by Mr E Mbise, learned senior State attorney, in the absence of any quarrel or fight, in an unprovoked manner, the appellant hit the deceased hard with a heavy stick on a vulnerable part of the body i.e. the head. There is no basis upon which the appellant could avail himself of the defence of provocation or self-defence. F
At this juncture we wish to observe that normally the defence of provocation is available in circumstances which would otherwise constitute murder except for the sudden loss of control of oneself as a result of some act which provokes the accused person. This, as shown, was not the case in the instant case. There was no provocation at all involved. On the other hand, from the evidence, in the G absence of a fight between the appellant who started attacking the deceased with a heavy stick forcefully, the defence of self-defence was as properly held by the learned Trial Judge, not available either.
H In all the circumstances of the case, there is no basis upon which to fault the learned Trial Judge in convicting the appellant of the offence of murder. The appellant's utterances that he was killing the deceased because of sorcery is in our view a clear manifestation of malice aforethought. The appellant was therefore properly convicted.
The appeal is devoid of any merit, it is dismissed in its entirety. I

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