Court name
High Court of Tanzania

Republic vs Michael Chibing'ati () [1983] TZHC 54 (21 November 1983);

Law report citations
1983 TLR 441 (TZHC)
Media neutral citation
[1983] TZHC 54

Lugakingira, J.: The accused, Michael Chibing'ati was charged with murder c/s 196 of the Penal Code, it being alleged that on 18th September, 1981, in Dodoma region, he B murdered one Yonas Chibing'ati.  The accused and the deceased were brothers, resident at Veyula village in Dodoma urban district.  They had two other brothers, Jackson and Rogan, and all of them resided in the same homestead along with their mother Marina and the accused's wife Edna.
The facts of the case were simple, there being no dispute about the death of Yonas or C the fact that he was killed by the accused.  It is the circumstances of the homicide that are of major interest in this case.  Merina used to cook for the deceased and Rogan who were still bachelors and for Jackson whose wife was away at the material time.  On the evening of 18th September, 1981 Marina cooked as usual and around 8 p.m. she D proceeded to Jackson's house to invite him, Rogan and the deceased to eat.  The accused had been out in the village and arrived home just before or as Merina was in the course of inviting the above three.  Somehow it got into the accused's head that something was some backbiting was going on.  He therefore remarked: "Kwa nini mnaniteta?" (according to Merina) or "Kwa nini mmejazana ndani mnaniteta?" E (according Jackson). His mother replied that no one was backbiting him but she was inviting his brothers to eat.  Having said so, Merina returned to her house.
It seems that the accused's fear was not assuaged. When Merina headed to her house, he followed her. Shortly, she was heard crying out for help.  Rogan rushed to the scene F and found the accused to have thrown her on the bed and was throttling her. He intervened, tore off the accused from her and pulled or pushed him outside. Jackson and the deceased arrived at that juncture. They assisted Rogan to force the accused back to his house.  The deceased was nevertheless very incensed by the accused's disgraceful G conduct.  While the accused was being led to his house - a matter of ten paces from Merina's house - the deceased aimed two slaps at the accused.  But the deceased was a blind man, hence only one slap found the right target and the second landed on Rogan's shoulder.  Meanwhile, the accused rushed into his house.  Jackson sensed that there H might be further trouble and advanced towards the accused's door with a view to shutting him inside.  He had not reached the door when the accused came out with a bill-hook (hengo) and cut him on the right arm.  As Jackson retreated the accused swung another blow and cut the deceased on the right side of the neck.  The deceased fell and I died almost instantly.  Meanwhile the accused dropped the weapon at the scene and

ran off to hide.  He returned later in the night after the police had arrived and taken the A body away.  Next day he was handed over to the police and subsequently charged with this offence.
The accused gave an unsworn statement and pleaded intoxication.  He said that he drank a honey brew at one Shauri's from 1 p.m. until night and got drunk.  He claimed B not to have known what was happening after that.  He therefore vaguely recalled having returned home, entering his house and to feeling like vomiting.  He then thought he got out for fresh air and proceeded to his mother's house to see her as she had not been feeling well and he had not seen her for the whole day.  But while in his mother's house, C his brothers rushed in and started attacking him.  He then remembered rushing back to his house for safety but before he could shut his door he saw his brothers advancing.  He feared that if they entered there would be trouble and his children would be harmed.  Almost instinctively he picked up his bill-hook and rushed out to meet his brothers there. D The next thing he knew he had cut the deceased.  He does not seem to have been aware that he also cut Jackson.  The rest of the story was about his hiding, re-emergence and arrest which is not essential at this stage.
It is clear from the foregoing that Yonas Chibing'ati is dead.  It is equally clear that he E was killed by the accused.  The postmortem report which was tendered by the prosecuting counsel in the absence of the medical witness gave cause of death as a rupture of the medulla at the cervical vertebrae from a deep wound on the right side of the neck.  This agrees with the evidence of Rogan and Edna who witnessed the cutting; it F also agrees with the version of the accused although he does not himself seem to know where the blow landed.  I therefore accept the cause of death as stated in the postmortem report.
I directed the gentlemen assessors who sat with me that the evidence as a whole pointed G to three defences: provocation, intoxication and/or self defence under a mistake of fact.  The assessors were satisfied that the accused had consumed alcohol, but they were not satisfied that he was so drunk as to be incapable of forming the intention to kill or cause grievous harm.  They were of the view that the killing was intentional.  They did not deal with the issue of self-defence, perhaps because the concept of a mistake of fact H did not perfectly register in their minds.  I will now turn to consider the defences suggested above.
Provocation was not put forward by the defence, no doubt for obvious reasons, but I felt bound to leave it to the assessors.  It is defined as wrongful act or insult of such a nature which, when offered to an ordinary person, is likely to deprive him of the power I of self-control and to induce him to commit an assault of the kind which the person charged committed.

But according to the provision of the third paragraph of s. 202 of the Penal Code, a A lawful act is not provocation to any person for an assault.  Provocation must therefore be legal.  It must proceed from a wrongful act or insult and must be such as would deprive an ordinary person the power of self-control and induce him to commit an assault of the kind the person charged committed.  In the instant case there was undisputed evidence B that the accused was violently wrenched from his mother and slapped as he was being led away and I am prepared to find, generally, that he could not have been kindly treated by his infuriated brothers.  Assuming for a moment that these actions were wrongful, were they of the kind that were likely to deprive an ordinary person in the accused's C community the power of self-control and to induce him to commit the kind of assault as was committed by the accused? I do not think so.  These were minor incidents, so minor that even the accused himself could not state how he was attacked.  In R. v Katani Kabwika [1945], 12 EACA 102, the deceased unlawfully slapped the appellant's face D twice, whereupon the appellant stabbed the deceased in the back with a knife with great force from which the deceased died.  The appellant was convicted of murder and appealed.  The appeal was dismissed in the absence of evidence that the two slaps the appellant received could deprive an ordinary person of the power of self-control and E induce him to commit the assault the appellant did.  I am bound by that decision; it is also commonsensical.  I am therefore of the view that the handling and slapping the accused  received at the hands of his brothers could not induce an ordinary person of the accused's community to commit the kind of assault that the accused committed.  More pertinently, I do not actually find that the assault on the accused was wrongful.  He was F engaged in a criminal and murderous act of throttling his mother and this, in my view, justified the intervention of his brothers to save the poor woman.  Theirs was therefore a lawful act and this could not give rise to legal provocation.  All in all, I hold that provocation does not avail itself to the accused. G
Coming to intoxication, it has to be stated generally that this does not constitute a defence to any criminal  charge.  In a murder charge, intoxication would serve as a defence in three circumstances, namely, where the person charged did not at the time of H the act or omission complained of know what he was doing and the state of intoxication was caused without his consent by the malicious or negligent act of another person; where such person is by reason of intoxication insane, temporarily or otherwise; or where it cannot be established that such person had the capacity to form the intention I to kill or cause grievous harm.  In the words of Onyiuke, J.  In R. v Richard Hiyari [1971] HCD n. 458:

   Intoxication takes various forms.  It may lead to total incapacity amounting to temporary A insanity or it may create a condition which induces extraordinary violence and in this connection it may become relevant in determining whether a person in such a condition is capable of forming a specific intention .... B
In the instant case the accused stated that he drank "kangara" brewed out of honey from 1 p.m. until night, i.e. about 8 p.m.  He claimed to have got drunk.  There was also evidence from Rogan that he smelled pombe on the accused when he was grappling with him.  There was similarly evidence from the accused's wife Edna that when the accused C arrived, he first entered his house, went to lie on his bed and vomited.  She said that he appeared drunk.  Jackson was not in a position to determine the accused's state, for he was himself confessedly drunk.  It was finally agreed by all the family witnesses that the actions of the accused on that evening were extraordinary.  Never before had  he D behaved in like manner.  In considering these factors I have no hesitation in finding that the accused was drunk at the time.  I do so even though in his extra-judicial statement he made no mention of alcohol.  Nevertheless, I do not find that he had become insane in the legal sense, and I do not have to dwell on this aspect, but I think that it is doubtful E that he had formed the intention to kill his blind brother or cause him grievous harm.  It was held in R. v Nyode Wopera (1948), 15 EACA 145 that while under s. 14 of the Penal Code intoxication is to be taken into account in deciding whether the person charged had formed a murderous intention, it is not the only fact which should be F considered. In that case, therefore, the Court of Appeal considered also the absence of any previous quarrel between the deceased and the appellant, the aimless way in which the stabbing of the deceased was done, the lack of any provocation, the fact that a single wound who inflicted on a part of the body not usually regarded as vulnerable and the G general conduct of the appellant, including his curious fit of snorting and grunting immediately after he had inflicted the injury.  After considering these factors and the appellant's consumption of alcohol the Court quashed the conviction for murder and substituted a conviction for manslaughter. H
The facts of the case before us do not show any previous ill-will between the deceased and the accused.  In fact such ill-will was denied by the witnesses.  It is also apparent that the entire incident - from the time the accused started attacking his mother to the time he cut the deceased - did not last long.  It was a rapid succession of events which does not appear to me to have lasted more than three to four minutes.  There was I therefore no time for meditation.  Further, the accused inflicted

a single wound and does not himself seem to know where it was inflicted.  He also did A not realise the fatality of his action for it shocked him to learn that he had killed his brother.  He therefore told the justice of the peace:  "... nikaambiwa kuwa nimeua, moyo wangu ukasituka, nikakimbia ...".  He even dropped his weapon at the scene and later surrendered himself that same night.  And according to Inspector Tryphon B Mwaya the accused was actually found and arrested at the hospital mortuary where he had presumably gone to see his brother's body.  The onus is on the prosecution to prove beyond reasonable doubt an intention to kill or cause grievous harm.  I think that in the light of the factors, that burden was not discharged.  It seems to me, and I find, that the C accused killed out of drunkenness  without an intention to do so and cannot be guilty of murder.
The foregoing is sufficient to dispose of the case but I think that self-defence is a matter which also deserves consideration.  Both in the extra-judicial statement and in his statement in court the accused alluded to self-defence or defence of his family.  He D believed that he was about to be a victim of an attack by his brothers inside his house.  It may be asked whether he had reasonable grounds for believing so.  It will now be recalled that Jackson advanced towards the accused's door with the intention of shutting it from outside.  The deceased and Rogan were at Jackson's heels.  There was no E evidence that the accused knew that the intention of his brothers was to shut the door and the circumstances, I think, militated against such imagination.  Only seconds before his brothers had been chastising him and according to Rogan the deceased was expressing the desire to punish him more even as the accused entered his house.  In F those circumstances and in view of the alcoholic impairment, I think the accused genuinely and reasonably believed, albeit mistakenly, that his brothers were advancing to attack him.  In Leosoni Matheo v R. [1962] E.A. 264 the Court of Appeal was considering provocation in relation to mistake of fact and held that an accused acting under a reasonable mistake of fact, when that mistake, if true, would lead to the G application of s. 201 of the Penal Code, is entitled to rely on that mistake.  It is also stated in Archbold 40th Ed. para. 144 g. (vi), citing R. v Gamlen IF & F. 90, that drunkenness and consequent delusions may in some circumstances assist to make out a defence of self defence based on a mistake of fact.  I have just stated that the accused H had reasonable grounds for his belief.  I will now state that if his belief were in fact true, if his brothers had entered his house and attacked him, that would have invited the application of section 18 of the Penal Code even though  it was the accused's own initial conduct that had ignited their fury.  He is therefore entitled to rely on the mistake, in I which case, again, the homicide  cannot be murder but  manslaughter.

Before concluding this judgment I think it is necessary to comment on two matters.  I A have noted, in the first instance, that the information filed in this court gave the place of crime merely as Dodoma Region.  That is vague, Dodoma region being a vast territorial area.  The mention of it cannot in any mind indicate with any clearness the place where the offence was committed.  It is noted that the specimen forms set out in the Second B Schedule to the Criminal Procedure Code require no more than stating the region and it may well be that it is these forms which were relied on.  But as observed by the Court of Appeal in K. v Loibori Tekindikoki [1949], 16 EACA 86, it is doubtful if the specimen forms themselves comply  sufficiently with the requirements of the provisions of ss. 135 C and 138 (f) of the Code.  The Court stated that it can hardly be said that a reference to what may be a vast territorial area can indicate to the accused, with reasonable clearness, the place at which it is alleged he committed the offence.  I think, therefore, that the information should, particularly where the offence is committed in a rural or peri-urban area, give such particulars, for instance the village, as would obviate D uncertainty.  In this case such particulars were in fact available and contained in the police charge sheet filed in the committing court.  One cannot then explain the brevity of the information filed in this court except, probably, on cosmetic grounds.  I am nevertheless satisfied that the omission in this case did not embarrass the accused, there E being no dispute about the facts.
Secondly, it was also noted that the person who conducted the postmortem at Dodoma Government Hospital, one Maria Galatto, is designated a medical assistant.  Counsel for the Republic Mr. Lyimo was not in a position to confirm that she was not such a medical F assistant.  However, the position is far from clear, for it seems that there have been inconsistencies in stating the status of Maria Galatto.  In Criminal Sessions Case No. 38/83, the plea in which I took on 7th of this month, the same person is there designated as a medical officer.  One prefers that she is in fact a medical officer for the opinion given G by an unqualified person as to the cause of death is bound to be seriously doubted and even rejected unless it is corroborated by other evidence.  In this regard, I should perhaps set out the unequivocal warning sounded by the Court of Appeal in R. v Billa Luhoyo [1947], 14 EACA 137 where an unqualified hospital assistant was involved.  The Court said: H
   We note that in this case, as in some other cases which have come before this Court from Tanganyika, opinion evidence as to the cause of death was taken from a person who was not a qualified medical officer.  We appreciate the conditions and circumstances which bring it I about that it is often the case that no better evidence can be

   obtained than that of a hospital assistant with some medical knowledge, but we think it right to A utter the warning that where in a case there is other evidence not tending to corroborate the cause of death testified to by such a witness, this court would not accept an opinion given by an unqualified hospital assistant, as that of a medical expert witness as establishing cause of death. B
Fortunately, I do not have to tax myself beyond this as there was other evidence, including the accused's own statements, which leave no doubt that the deceased died following a cut wound on the neck.  I can only remark that if Maria Galatto was in fact a medical assistant, that is definitely curious since the Dodoma Government Hospital could C not in 1981 have been wanting in Medical officers.
To revert to the substance of the case, I have held that the accused could not have formed the intention to kill or cause grievous harm.  I have also held that the circumstances of the killing permitted the defence of self-defence based on a mistake of D fact.  It follows that the accused is not guilty of murder and he is acquitted of that offence.  However, I find him guilty of manslaughter c/s 195 of the Penal Code and convict him of that offence.  Sentence:  On the facts of the case, it being established that accused permitted himself to be a slave of alcohol, but considering also his youth and his E apparent remorse at what happened, I sentence him to go to prison for three (3) years.
F Order accordingly.

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