IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA

(CORAM: MMILLA. J. A.. MZIRAY. J. A. And KWARIKO. J. A .}

CRIMINAL APPEAL NO. 435 OF 2018

1. MINANI JOHN
2. DIONIZ GEREVAZI
3. WILLIAM JULIUS ..................................................................APPELLANTS

VERSUS

THE R EP U B LIC ................................................................................... RESPONDENT

(Appeal from the decision of the High Court of Tanzania, at Bukoba)

(Kairo, J.)

dated the 31st day of October, 2018

in
Criminal Sessions Case No. 30 of 2015

JUDGMENT OF THE COURT

3rd & 10th December, 2019

MMILLA, J.A.:

The appellants in this matter, Minani John, Dioniz Gerevazi and William

Julius (herein to be referred to as the first, second and third appellants

respectively), are contesting the judgment of the High Court in Criminal

Sessions Case No. 30 of 2015 in which they were convicted of the offence
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of murder contrary to section 196 of the Penal Code Cap. 16 of the Revised

Edition, 2002 (the Penal Code). It was alleged that on 1st day of August,

2014 they murdered one Bigiramungu Tadeo (the deceased). They were

sentenced to suffer death by hanging. The conviction and sentence

aggrieved them, hence the present appeal to the Court.

The appellants were residents of Mubitasha village within Ngara

District in the Region of Kagera. On 1.8.2014 in the evening, they attended

a meeting at their hamlet, the purpose of which was to discuss about the

construction of a modern laboratory for the secondary school in their

locality, as well as the problem of wandering cattle. After they had

exhaustively discussed the main agenda, the chairman of that meeting

invited the people to air any other matters or issues. At that point, the

deceased raised a hand and complained that Dioniz Gerevazi (the second

appellant), was bullying him in that whenever they met at the local brew

pombe shop, he would force him to buy him that stuff. Dioniz protested

and demanded him to produce evidence to substantiate his allegations.

Fortunately, that problem was resolved.

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 Immediately thereafter, the deceased raised yet another complaint

that Minani John (the first appellant), was having a love affair with his wife.

Like Dioniz, Minani John protested that accusation and demanded

explanation. Once again, the deceased did not substantiate his assertion.

However, that claim too was resolved. At that point, the meeting was

closed and people dispersed.

Joas John (PW2) was one of the key eye witnesses. According to

him, on leaving the meeting place most of the people went to Mkapela

Center, including himself and the deceased. Later on, the first appellant too

arrived at that place. On seeing Minani John, the deceased told him that

" You are my friend please do not repeat to make love to my wife " The first

appellant responded that " You have already killed me, go on killing m e”

After Minani's response, PW2 went on to explain, the deceased became

furious and wanted to beat Minani, but the third appellant stopped him.

However, the two continued bickering and exchanging bitter words, as a

result quarrel ensued and it culminated into a fight. Soon thereafter, other

people joined the fight, including the second and third appellants, all of

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whom were attacking deceased. According to PW2, the sun was still

shining, and that the fight continued for about half an hour.

On 2nd August, 2014 in the morning, PW2 heard that Bigiramungu

had died. He went at the scene and found the deceased's body on the

road.

The case was investigated by No. E. 5296 D/Sgt. Charles (PW3). On

getting information about that incident, he went to the scene of crime in

the company of the Officer Commanding Station (OCS) Insp. Ruchiba, and

a doctor. They saw the deceased's body on the road, and it had several

injuries. The doctor examined the deceased's body before the police

allowed the deceased's relatives to continue with burial arrangements.

According to PW3, the villagers told him that all started when an

argument cropped up between the deceased and Minani John at the stall

of one Stanslaus, and after a heated exchange of words they began

fighting. In the course, the other people joined the fight, including Dioniz

Gerevazi, William Julius and Jacob Sigini. They traced them with the help of

the villagers and arrested them.

 The appellants' defences were fairly short. First to give evidence in

defence was Minani John (DW1). He said he attended the hamlet meeting

of 1st August, 2014 at which the deceased blamed him of having had an

affair with his wife. After his protestations, the complaint was resolved.

Upon closure of the meeting they dispersed. He headed home, but passed

at Mkapela Center.

On arrival at Mkapela Center however, he found the deceased at the

stall of Stanslaus. It was at that point that the latter told him that "Minani

do not repeat again (sic) to love my wife." He reminded him that the issue

had been resolved, whereupon the deceased threatened that 7 can k ill you

and eat your fle sh " and pledged to hire Rwandans and Burundians to track

and kill him. That was allegedly spoken in the presence of Stanslaus's wife

who pulled the deceased away in a bid to stop him from going on with

those threats, but the latter pushed her away. Meanwhile, DW1 said, the

deceased took some sand and threw it in his face and began beating him.

He added that after removing the sand from his face, he left for home. He

denied the allegations that he participated in beating the deceased.

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 On the other hand, Dioniz Gerevazi (DW4) too said he attended the

hamlet meeting of 1st August, 2014. He related that after they had

exhausted the main agenda, the deceased used the opportunity given for

airing other concerns to accuse him that he was bullying him by regularly

forcing him to buy him local brew whenever they met at the pombe shop,

an allegation he denied. The matter was nevertheless resolved.

Upon closure of the meeting, DW4 too proceeded to Mkapela Center

at which he found a convenient place and began drinking local brew.

Afterwards, he heard noises and came out of the place where he was. He

saw Minani quarrelling with the deceased. Also there was William Julius,

among others, who was separating them. The quarrel climaxed into a fight

which involved several other people, it grew up and seemed like a war.

Upon that, he decided to leave the place. According to him, he heard of

the deceased's death the next morning.

The account of William Julius (DW5) was that he was a militiaman,

and that he attended the hamlet meeting on 1st August, 2014. After the

meeting he went to his hotel at Mkapela Center at which he was selling

tea. Around 7:30 pm, a quarrel broke out between Minani and the
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deceased at a nearby stall of Stanslaus. It ended up in a fight between the

two, but soon thereafter other villagers joined the fight and it became

uncontrollable. He tried to quell the fight but he was attacked and

despaired. He left the place. Later on, he was informed about the

deceased's death whereupon he reported the incident to the hamlet

chairman one Bisangwe who in turn reported it to police.

On getting information about that incident, the police visited the

scene of crime and interrogated the people around. That gave them a lead

to the arrest of the appellants whom they eventually charged with murder

as it were.

After a full trial, the trial High Court was satisfied that the evidence

which was mounted proved the prosecution's case beyond reasonable

doubt that the appellants were indeed the persons who killed the

deceased. Consequently, they were convicted and sentenced of the

charged offence of murder. As earlier on pointed out they were aggrieved,

hence the present appeal.

On the date of hearing the appeal on 3.12.2019, Ms. Aneth Lwiza,

learned advocate, appeared for and represented all the appellants;

whereas Ms. Chema Maswi, learned State Attorney, appeared for the

respondent/Republic.

The appellants filed separate memoranda of appeal. The first

appellant's memorandum of appeal raised seven (7) grounds, while that of

the second appellant raise six (6) grounds. On the other hand, the

memorandum of the third appellant raised six (6) grounds.

At the commencement of hearing, Ms Lwiza dropped grounds 6 in

the memoranda of appeal of the second and third appellants, along with

the seventh ground in the memorandum of appeal of the first appellant.

Noteworthy however, is the fact that except for the fifth ground in the first

appellant's memorandum which is different, all the other grounds are

identical. While grounds 1, 2, 3, and 4 commonly allege that the

prosecution did not prove the charge of murder against them beyond

reasonable doubts; ground 5 of the first appellant's memorandum

challenges that the trial High Court erred when it failed to find that the

defences of provocation and self-defence were available to the first

appellant. On that basis, Ms Lwiza proposed to discuss together grounds 1,

2, 3 and 4 in each of the three memoranda, and then ground 5 separately

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which concerns the first appellant alone. She elected to begin with the first

set of grounds.

It is certain that the appellants' conviction was essentially based on

the testimonies of Anna Faustine (PW1) who was 12 years old at the time

she testified before the trial High Court, and Joas John (PW2), both of

whom were eye witnesses. There was also the evidence of No. E 5296

D/Sgt. Charles (PW3), a police officer who investigated this case. We have

found it appropriate to address first question of reliability or otherwise on

the evidence of PW1 before we may proceed.

Our concern has been that as at 22nd October, 2018, PW1 was aged

12 years, thus a minor. Looking at page 20 of the Record of Appeal at

which the preliminaries towards the recoding of her evidence are reflected,

it is apparent that she was subjected to a voire dire test, long after section

127 (2) of the Evidence Act Cap. 6 of the Revised Edition, 2002 (the EA)

was amended by Act No. 4 of 2016 which came into operation on 22nd July,

2016. The said amendment changed the prerequisites for recording the

evidence of a minor; it ended the previous requirement to conduct voire

dire test, instead it introduced the requirement for a magistrate or judge to

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require a witness of tender age to promise to tell the truth to the court and

not to tell any lies. Section 127 (2) of the EA as amended provides that:-

"(2) A child o f tender age may give evidence

without taking an oath or making an affirm ation but
shall, before giving evidence, prom ise to te ll the
truth to the court and not to te ll any lie s."

In the circumstances of this case, the trial judge did not adhere to

the requirements of this section as amended, instead, after conducting a

voire dire test, the trial court recorded that it was satisfied that PW1

knew the duty to speak the truth. That was, in our strong view,

against the demands of the section under discussion because PW1 did not

make a promise to tell the truth to the court and not to tell any lies.

The Court had the occasion to address this situation in the case

Msiba Leonard Mchere Kumwaga v. Republic, Criminal Appeal No.

550 of 2015, which was followed in Godfrey Wilson v. Republic,

Criminal Appeal No. 168 of 2018 and later on in Selemani Bakari

Makota @ Mpale v. Republic, Criminal Appeal No. 269 of 2018 as well

as that of Yusuph Molo v. Republic, Criminal Appeal No. 343 of 2017 (all

unreported). It was expounded in Yusuph Molo (supra) at page 12 that:-

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 "It is m andatory that such a prom ise m ust be
reflected in the record o f the tria l court. I f such a
prom ise is not reflected in the record\ then it is a
big blow in the prosecution's case . . . if there was
no such undertaking, obviously the provisions o f
section 127 (2) o f the Evidence A ct (as amended)
were flouted. This procedural irregularity in our
view, occasioned a m iscarriage o f justice. It was
fatal and incurable irregularity. The effect is to
render the evidence o f PW1 with no evidentiary
value, it is as if she never testified to the rape
allegation against her (sic: the appellant), It was
wrong fo r the evidence o f PW1 to form the basis o f
conviction."

Since this is the ailment befalling the evidence of PW1 in the present

case, ipso facto, her evidence was valueless; therefore it was wrongly

relied upon. In consequence, we expunge PWl's evidence from the record.

That necessarily means, we remain with the evidence of only two

witnesses; PW2 and PW3.

Submitting in support of her contention that the prosecution did not

prove the charge of murder against the appellants beyond reasonable

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doubts which is what grounds 1, 2, 3, and 4 are all about; Ms Lwiza said

this is on the profound evidence on record that the deceased's death

resulted from a fight. She elaborated that if that is the case, it cannot be

said that they killed the deceased with malice aforethought. She relied on

the evidence of PW1 and PW2 (of course, as of now she only remains with

the evidence of PW2).

PW2 had testified that the circumstances leading to the deceased's

death started with a quarrel between the deceased and the first appellant,

and culminated into a fully-fledged fight which was joined by several other

persons who were around, graduating into a deadly end. Ms Lwiza

maintained therefore that, in the face of such evidence, it cannot be validly

said that the appellants intended to kill the deceased. Had the trial court

properly directed itself, she added, it could have found that because death

was sparked by a fight, the appellants were not guilty of murder, but were

guilty of a lesser offence of manslaughter. She referred us to the case of

Moses Mungasian Laizer @ Chichi v. Republic [1994] T.L.R. 220,

particularly the second holding. She urged us to find that the evidence on

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record established the offence of manslaughter and not murder, thus

reverse the decision of the trial High Court.

In this regard, Ms Lwiza enjoyed an enormous support from her

learned sister Ms Maswi who argued likewise that PW2's evidence was firm

that the deceased's death resulted from a fight. She referred to that

witness's testimony at pages 28, 29, 30, 32 and 33 of the Record of

Appeal. Ms Maswi added that since the deceased's death resulted from a

fight, there was definitely no malice aforethought, therefore the trial court

ought to have found the appellants not guilty of murder, but to a lesser

offence of manslaughter. Like her colleague, she relied on the case of

Moses Mungasian (supra).

We have carefully followed the arguments of both learned counsel for

the parties. We hasten to say that we are fully in agreement with them.

We will explain.

As correctly stated by both trained legal minds, PW2 repeatedly said

in his testimony that the quarrel between the first appellant and the

deceased climaxed into a fight, and several other people, including the

second and third appellants, joined the fight. When he was cross-examined
13
by Mr. Byamungu, the learned advocate who represented the first

appellant before the trial court, PW2 was steady that there were several

other persons who participated in beating the deceased, including Bukuru

Michael and Philipo Andrea. Also, when he was cross-examined by Ms

Aneth Lwiza for the second and third appellants before that court, that

witness named one Safari as having been one of those he remembered to

have actively participated in beating the deceased. He also said that he

attempted to intervene and stop the fight, but he refrained because the

second and third appellants threatened to beat him too.

There was similarly the evidence of the second and third appellants

who said in common that it began as a quarrel between Minani and the

deceased, but ended up into a fight. As it were, the fighting intensified and

involved several other people who were at Mkapela Center near the stall of

Stanslaus.

This being the position, we think that it cannot justifiably be said that

the appellants formed an intention to kill the deceased. This is especially so

when it is considered that they were not the only persons involved in that

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fight, but several others were involved as claimed by PW2 and the

appellants themselves.

We are aware that the trial judge found that the killing of the

deceased by the appellants was with malice aforethought in view of the

nature of the injuries which were inflicted on the deceased's body. She

pegged her views on the Post Mortem Report which was constituted in

exhibit PI. She also relied on the guidelines which were outlined in Enock

Kipela v. Republic, Criminal Appeal No. 150 of 1994 (unreported).

With great respect, we agree with both Ms Lwiza and Ms Maswi that

it was not proper to have thought so because the facts and circumstances

under which the killing in Enock Kipela's case (supra) arose were

different when one compares them to those in the present case. This is

because in the former case there was no fighting, while as repeatedly

stated the deceased's death in the present case was prefaced by a fight

which involved several people, of course, including the appellants. We

similarly agree with Ms Maswi that so long as exhibit PI was not read in

court at the time it was received as evidence, the trial court ought not to

have relied on it because it was invalid evidence.

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 We wish to emphasize that since there was strong evidence to

establish that the deceased's death occurred in the course of a fight, the

trial court ought not to have ignored the aspect that under such

circumstances, the appellants could not be said to have formed an

intention to kill the deceased.

There are a range of cases in which we had the occasion to

underscore that where death occurs as a result of a fight, one cannot infer

malice aforethought, with the effect that a charge of murder may be

reduced to a lesser offence of manslaughter. We have in mind the cases of

Elias Pau v. Republic, Criminal Appeal No. 7 of 2004, Emmanuel Mrefu

@ Bilinje v. Republic, Criminal Appeal No. 271 of 2006, Mashaka

Mbezi v. Republic, Criminal Appeal No. 162 of 2017 (all unreported) and

Moses Mungasian Laizer @ Chichi (supra), among others.

In Moses Mungasian Laizer @ Chichi (supra), the High Court

rejected the appellant's version of evidence that the deceased's death

resulted from a fight. The trial judge specifically remarked that even if he

was to find that the deceased's death was caused under the circumstances

described by the accused, he would still hold that the death of the
16
deceased was murder. According to him, that was because the accused,

having said he was the one who started the fight, he could not turn round

and say that he was acting in self-defence. That was reversed by the Court

on appeal. It was held that:-

"Where death occurs as a result o f a fight an

accused person should be found guilty o f the lesser
offence o f m anslaughter and not murder. "

See also the case of Jackson Mwakatika & 2 others v. Republic

[1990] T.L.R.17 in which it was held that:-

"(v) When death occurs as a result o f a fight unless

there are very exceptional circum stances, the
person who causes death is guilty o f m anslaughter
and not murder. "

For reasons we have assigned, we find merit in grounds 1, 2, 3, and

4 because the prosecution did not prove the offence of murder against the

appellants in the absence of evidence of premeditation to kill. Therefore,

had the trial High Court properly directed itself, we believe it would have

found, as we accordingly do, that since the deceased's death resulted from

a fight, then there was no malice aforethought, hence they were guilty of a

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lesser offence of manslaughter. Consequently, these grounds have merit

and we allow them.

We now turn to the fifth ground which, as earlier on intimated, is in

respect of the first appellant only. That ground alleges that the trial High

Court erred when it failed to find that the defences of provocation and

self-defence were available to the first appellant.

On this, both Ms Lwiza and Ms Maswi submitted in common that from

the evidence on record, both defences were available to the first appellant.

To begin with, they stated that the drama leading to the said death was

generated by the deceased himself who, on seeing the first appellant at

Mkapela Center, he revived the debate about the latter having had an

affair with his wife; long after that matter was resolved at the hamlet

meeting. They submitted that the deceased warned the first appellant that

"Minani do not repeat again (sic) to love my w ife" On being reminded by

Minani that the issue had been resolved, the deceased threatened that "7

can k ill you and eat your flesh ," and pledged to hire Rwandans and

Burundians to track and kill him. They held those utterances to be

provocative.
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 Likewise, both learned counsel for the parties contended that it was

the deceased who assaulted the first appellant after a heated exchange of

bitter words reached a climax. Thereafter, they said, the deceased picked

some sand and threw it in the first appellant's face, soon after which he

began beating him. We pose to point out here that though these claims are

found in the defence of the first appellant only, we have taken note that

this piece of testimony was not shaken by the prosecution, which means it

stands. On the basis of that, the learned counsel for the parties commonly

maintained that the first appellant had the right to defend himself. They

referred us to the provisions of section 18B (3) of the Penal Code.

From the above, the learned counsel for the parties said that had the

trial High Court properly directed itself, it would have found that the first

appellant was entitled to those two defences, for which it would have

found him not guilty of murder, but guilty to a lesser offence of

manslaughter. They urged us to find merit on this ground too.

A careful scrutiny of the testimony/defence of the first appellant

however, reveals his stance that he did not cause the death of the

deceased because after removing the sand which the latter had thrown in
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his face, he left for his home. He never admitted that he was involved in

the fight, which is why the record does not show that he neither said he

acted in self-defence, nor that he was provoked. Surprisingly however,

those two defences were raised by Ms Lwiza in her final submission. What

then does that entail?

Principally, for any averment to constitute as a defence, it must have

been advanced by the appellant in his defence. The rationale is that it is

the accused who is supposed to defend himself, and not any other person.

Where, as in the present case, the appellant may have not presented any

such defence at that stage, he/she cannot raise it at the level of appeal.

Thus, his advocate wrongly raised those two defences at the stage of the

submissions as the appellant had a different stand in his defence.

Accordingly, the fifth ground of appeal lacks merit and we dismiss it.

Nevertheless, having held that there is merit in respect of grounds 1,

2, 3 and 4 because malice aforethought was not established, a conviction

for murder cannot stand. In the circumstances, we quash that conviction

for murder and set aside the sentence of death by hanging; in its stead, we

substitute it with one of manslaughter. Since the appellants have so far

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been behind bars for five years, also that the deceased was in the main the

one to blame for all what happened because he orchestred the quarrel and

hence the fight; we order the immediate release from prison of all the

three appellants unless they are otherwise being continually held for some

other lawful cause.

Order accordingly.

DATED at BUKOBA this 9th day of December, 2019.

B. M. MMILLA
JUSTICE OF APPEAL

R. E. S. MZIRAY
JUSTICE OF APPEAL

M. A. KWARIKO
JUSTICE OF APPEAL

The Judgment delivered this 10th day of December, 2019 in the presence of

Mr. Remidius Mbekomize, learned counsel for the appellants and Mr. Shomari

Haruna, learned State Attorney for the Respondent/Republic is hereby

certified as a true copy of the original.