Court name
High Court of Tanzania

Republic vs Nicas Lulenga () [1983] TZHC 28 (02 July 1983);

Law report citations
1983 TLR 434 (TZHC)
Media neutral citation
[1983] TZHC 28

Lugakingira, J.: In this case the accused Nicas Lulenga was charged with unlawful wounding with intent to resist his arrest c/s 222(1) of the Penal Code.  It was alleged that on 11/7/81, at Winza village in Mpwapwa District, the accused shot one D/SM C Paulo Ngeleja Kadonya with an arrow while the latter was endeavouring to arrest him for the offence of threatening violence.
There was evidence that the Police at Mpwapwa had received a complaint that the accused had threatened to shoot one Kanyamala with an arrow.  On 11/7/81 D/SM D Paulo (PW.1) set out with a group of five other askaris, as well as Kanyamala, to arrest the accused.  They arrived at the accused's village around midday and surrounded the accused's tembe house, except the front.  They were variously armed, having been prewarned that the accused was dangerous.  They had also received information on arrival at the village that the accused was at home. E
According to PW.1 and P.C. Jumanne Mtunyungu (PW.3), they then identified themselves and ordered the accused to surrender along with his weapons.  There was no response.  PW.1 ordered one P.C. Boniface Ndinde to fire tear gas into the house.  He did so.  Shortly, a woman ran out of the house.  Seeing this, PW.1 rushed to the front.  As he did so he saw the accused emerge armed with a bow and arrow.  He ordered him F to lay down his arms and surrender but the accused did not.  Instead, he let fly his arrow and as PW.1 instinctively turned to avoid it, it landed in his left buttock and stuck there.  Meanwhile the accused ran away and PW.1 fired his pistol in the air. G
Other askaris gave chase firing their guns but without success.  He was pursued with a Land-Rover and finally shot in the right thigh about one kilometre away, according to PW.2, or 21/4 miles away, according to /Gideon Salehe (PW.3).  He was put in the vehicle and taken to the village dispensary.  Meanwhile, a villager, Ndogwe Mwalambalo (PW.4) had succeeded in removing the arrow from PW.1's buttock.  He H was also taken to the dispensary.  From the dispensary the accused and PW.1 were taken to Mpwapwa Hospital.  PW.1 was hospitalised for five days.
The accused was subsequently charged with this offence.
The accused gave evidence on oath and called two witnesses.  He said on that day he I was at home with his wife listening to the radio, his

wife busy cooking.  Suddenly, shots rang out through the window and bullets hit the right A wall.  His wife collapsed in terror and scrambled for cover under the bed.  Just then a second shot rang out, again directed into the house.  The accused said he then scrambled to his feet and rushed to the door to see what was afoot.  The door was ajar.  Just at the door he came face to face with a man, about four paces away, pointing a gun B at him.  The accused ducked to take cover behind the door but before he could successfully do so, he was shot in the thigh.  Instinctively he turned back, collected his bow and arrow, took aim at that man, who was then advancing into the house, and released the arrow.  He saw it land on the man's buttock, for the man had suddenly C turned and saw the arrow shaft shake there with the impact.  He then ran off limping but collapsed about sixteen paces from his house and was there handcuffed and taken away.  As stated above, the accused called two witnesses.  They were his brother-in-law who is serving a prison sentence and his elder sister.  For reason I will shortly state, I do not D have to review the evidence of his brother-in-law (DW.1).  His elder sister Maria Lulenga (DW2.), testified that her house is about fifty paces from the accused's.  On that day she was at home and saw a group of about five armed strangers.  They went up to the accused's house and immediately opened fire into the house.  Then some of the E strangers went to stand at the front. (The accused's house had one door only).  In that instant the accused came out and shot an arrow which hit one stranger in the buttock.  He then ran away.  She said she was also frightened and ran away with her children.  Later she went over to the accused's house and saw blood on the inside of the door as F well as the floor.  There was no-one around.  I have declined to review the evidence of DW.1 because he claimed to have been with DW.2 when all this happened, but DW.2 said she was alone with her children, adding that she could not lie.  DW.1 was thus a false witness.  He saw nothing of the incident.  In short, the defence was self-defence.
I told the lady and gentlemen assessors who sat with me that their task was to decide G whether the accused's act amounted to unlawful wounding and whether he did what he did with intent to resist a lawful arrest.  I directed them on the issue of self-defence and told them that it was not for the accused to prove that defence but for the prosecution to H disprove it.  In the end, I told them, the accused was entitled to the benefit of the doubt.  The assessors were almost unanimous except on the question of the stage at which the accused was shot in the leg.  The first assessor, Mr. Raphael Matonya, was convinced that the accused's leg was shot in the bush following the chase.  The second assessor, Mama Fatu Gwao, said she could not be definite on that point: it could have I been in the bush or it could have been at the accused's house.  She said

that generally the prosecution case left doubts.  The third assessor, Mr. Gaitani A Malecela, was definite that the accused's leg was shot at his house.  However, all the assessors, in particular the first and the second, were convinced that this was a surprise attack.  They were convinced that the askaris did not identify themselves or call upon the accused to surrender and were convinced that there was a firing of guns into the accused's house before the accused came out to wound PW.1.  It was a show of B so-called power, they observed.  They therefore found that the accused acted in self-defence.  The third assessor was not so unequivocal.  He said the accused must have been frightened at seeing strangers, perhaps thereby implying that the accused was taken by surprise.  He nevertheless thought that the accused should not have wounded C PW.1 but should have surrendered.  I benefited tremendously from the combined views of the assessors.  The divergencies here and there to me indicate one thing, namely that the totality of the evidence left doubt in the assessors' minds.
There is no doubt, and it was admitted, that PW.1 was wounded. A double-ear arrow, D which was exhibited at the trial, was lobbed by the accused into PW.1's buttock. There was a great deal of bleeding as evidenced by the trousers of PW.1 which were similarly exhibited. It is said in the 40th Edition of Archbold para 2659, that "wound" includes incised wounds, punctured wounds, contused wounds, and gunshot wounds, E the relevant factor being the breaking of the continuity of the skin. That paragraph discusses section 18 of the English Offences Against the Person Act, 1861 which is not dissimilar to our section 222(1). There was such a breaking of the skin in this case and I am satisfied that there was wounding within the meaning of section 222(1) of the Penal Code. I reserve for the moment consideration of whether the wounding was also F unlawful as it is necessary first to determine whether the attempted arrest was itself lawful.
As stated at the beginning, the Police had received a complaint from one Kanyamala that the accused had threatened him with violence.  A police case file was opened and the G askaris went off to arrest the accused.  For reasons I do not know the prosecution were not keen to summon Kanyamala to testify and he was never summoned.  This led learned counsel for the defence Mr. Alimwike to remark that there was no ground upon which to believe that a complaint was ever made.  It also led the first assessor to remark H that Kanyamala reported the accused out of malice.  I sympathise with these sentiments but I am of a different view.  First, I believe without hesitation that the complaint was made.  I do not see how six askaris, led by a sergeant -major, could out of the blue decide to go and arrest a total stranger in a journey that took them about three hours by Land-Rover.  It would of course have been beneficial had Kanyamala I been called to confirm making a complaint but I think, as a

matter of law, his evidence was not essential.  I am entitled to believe the witnesses A where they deserve to be believed.  I believe PW.1 and PW.2 that a report was made.  On the other hand, the first assessor's predicament raises an interesting point.  I think I am correct in saying that he also wanted to be satisfied that the accused was guilty of B threatening violence.  By implication, it means that the accused had also to know that the arrest was lawful.  I believe that the state of the law is different and I said so in my summing-up.  I think, with respect, that in determining whether the arrest was lawful the court does not also have to be satisfied that the accused was guilty of some offence.  To go that far would require the court to conduct a trial before the trial or a trial within the C trial.  That cannot be the intention of the statute.  In my opinion, where there is evidence that the police were acting as law enforcement officers, the court is entitled to assume that they were acting lawfully.  In the same way, it does not occur to me that the accused has to know that the arrest is lawful.  Perhaps all he has to know is the intention to arrest D him.  In the words of Talfound, J. in R. v Bentley (1850), 4 Cox 406, at 408, with which I agree:
   ... to support a charge of resisting a lawful apprehension, it is enough that the prisoner is lawfully apprehended, and it is his determination to resist it.  If the apprehension is in point of E fact lawful, we are not permitted to consider the question, whether or not he believed it to be so, because that would lead to infinite niceties of discrimination ....  He is not to erect a tribunal in his own mind to decide whether he was legally arrested or not. F
I have found that the police pursued the accused upon a criminal complaint.  They were duty bound to follow up that complaint.  I am thus satisfied that the intended arrest was lawful.
We now come to the question whether the wounding was unlawful.  In this connection it G is I think desirable first to ascertain the stage at which the accused was shot in the leg.  The prosecution claimed that this took place in the bush after a chase; the accused said it was right at his house.  I do not believe the accused and I join the first assessor in finding H that it took place in the bush.  I find so even after taking into account the unreliable character of the two witnesses PW.2 and PW.3 who testified on this issue. I will elaborate.  PW.2 was a police officer who was among the arresting team.  It was demonstrated at the trial that he was capable of manufacturing evidence when it pleased him to do so.  In his police statement exhibit D.1, he claimed that the accused prepared I himself for resistance and took up his bow and arrow just as the arresting team were

approaching.  Yet he agreed in evidence that it was impossible to see inside the A accused's house from outside because the inside was dark.  He even conceded that he could not be certain that the accused could see outside from inside the house.  Secondly, he again stated in exhibit D1 that he witnessed the accused shoot the arrow.  In evidence he stated that he was at the rear of the house and only heard PW.1 cry out that he had B been shot with an arrow.  Thirdly, he stated in exhibit D1 that the firing of tear gas into the accused's house came after the accused had shot the arrow.  In evidence he said the release of tear gas came before the shooting of the arrow.  Fourthly, he claimed in exhibit D1 to have witnessed the shooting of the accused in the bush.  In evidence he C stated that he only heard a gun shot and found the accused already apprehended.  Finally, he claimed in exhibit D1 that from the dispensary they passed at the accused's D house and there found that the accused's mother had completely shifted from the village.  There was indeed some woman seen by the arresting team some distance from the accused's house just as they approached, and she was said to be the accused's mother.  But how this witness knew that the woman had suddenly shifted from the village beats my imagination.  It would be dangerous to believe much of such a willing and unintelligent liar and I do not propose to do so.  There was then PW3, a civilian and resident of the E accused's village.  He was washing at a water point somewhere at the village when he heard gun shots.  He was seized with fear and took cover at a baobab tree.  Moments later, he looked up and saw a crowd of askaris and villagers chasing the accused.  He decided to join in the chase.  He claimed that he was so fast that he soon overtook everybody including the police Land-Rover which had also joined the chase.  It became F a race between him and the accused, the rest of the crowd falling far behind.  Eventually the Land-Rover came around and he indicated to the occupants the direction taken by the accused.  He said an askari in the Land-Rover then ordered the accused to stop but the latter accelerated his run. Thereupon the askari aimed his gun through the Gwindow and shot the accused in the leg.  He collapsed on the spot just thirty five paces from where the (PW3) was.
The witness thus claimed to have been the only civilian who witnessed that shooting.  The askari who did the shooting somehow failed to come and testify. As can be seen, H and so I observed, PW.3 was given to exaggeration and not a little self-glorification.  He appeared immensely to enjoy his role in the witness box even to the extent of making himself a nuisance. He would dispute uttering words he had just uttered and generally showed a want of maturity. He was a youth of about 22 years of age. Mr. Alimwike I characterised him as a hooligan. I cannot be certain of that

but he definitely attracted not much confidence from the court.  In the end, I can accept A the theme of his evidence only because there was corroboration.
There was evidence from PW.4, another villager, that when he heard gunshots he looked out of his house and saw people chasing the accused.  He followed.  In doing so, B he came upon PW.1 who had an arrow sticking out of his buttock, the rest of the crowd having gone ahead of him.  He told PW.1 to stop and removed the arrow.  He told the court that the arrow was poisoned and was amazed to learn that PW1 survived.  He opened his mouth in disbelief upon seeing him in court.  I accept the evidence of this C witness that the accused was chased beyond the environs of his house.  I therefore reject the accused's claim that he collapsed just sixteen paces from his house.  But the claim of the accused is useful in one way: it means he could not run any distance after the shot in the leg.  The court saw the scar on the thigh and it did not speak of a minor D injury.  Indeed the accused stated that he passed out after collapsing.  It is then clear that he could not have run anywhere after being shot.  But he ran.  It is for these reasons that I hold the view that he was not shot at his house.
However, there were events at the accused's house of which I have not lost sight.  The accused testified that bullets were fired into his house, without warning and by people he E could not see.  It was indeed in the evidence of PW1 and PW2 that they approached the accused's house surreptitiously from the rear.  To that end, they left their vehicle a good distance away and skirted around the village, avoiding to be seen by villagers.  They did not associate any villager in this operation.  Undoubtedly, therefore, they were F anxious to take the accused by surprise.  Perhaps that was necessary, having regard to the accused's reportedly dangerous character.  The crucial issue is what happened after they had arrived there.  The accused said he was greeted with gunshots into his house.  This was corroborated by DW.2.  Her house was mere fifty paces or so from the accused's and she said she saw them arrive and immediately open fire into the G accused's house.  She did to testify on any warning or call to surrender as claimed by PW1 and PW 2.  Of course these witnesses also claimed that tear gas only was fired into the accused's house.  There is a doubt.  I am not at ease in my conscience.  I am bound to give the accused the benefit of that doubt.  The prosecution case would have H stood on firmer ground if there had been independent witnesses - but they were deliberately avoided - instead of relying on PW2, whom I have already discredited, or PW1, who was not a disinterested witness.  I cannot state with certainty that guns were or were not fired into the accused's house, and with or without warning; I am thus bound I to give

the accused the benefit of the doubt and say that his story could possibly be true. A
In law every person is entitled to defend himself and his property against unwarranted attack so long as he uses no more than reasonable force.  In my judgment, even where a lawful arrest is to be executed, if it is executed in a manner and with such force that is not justified by the occasion, the prisoner would be entitled to answer force with force.  In B the instant case, I am unable to say that the  police officer did not conduct themselves excessively and want only at the accused's house.  After giving the accused the benefit of the doubt, and even though he was not wounded at his house, I agree with the assessors C that he might have acted in self-defence.  And since he used an arrow to answer the might of a gun, it cannot be said that he exceeded himself in doing what he did.  It has thus not been established that the wounding of PW.1 was unlawful.
For these reasons, I find the accused not guilty and acquit him accordingly.  He should be set at liberty unless further lawfully held. D
Accused not guilty.