Simango’s

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

(CORAM: LUBUVA, J.A., MROSO, J.A., And KAJI, J.A.)

CRIMINAL APPEAL NO. 134 OF 2002

BETWEEN

ADVENTINA ALEXANDER…………………………………………. APPELLANT

AND
THE REPUBLIC……………………………………………………. RESPONDENT

(Appeal from the Conviction of the High Court

of Tanzania at Bukoba)

(Masanche, J.)

dated the 4th day of July, 2002

in
Criminal Sessions Case No. 20 of 1998
-----------
JUDGMENT OF THE COURT

KAJI, J.A.:

The appellant ADVENTINA w/o ALEXANDER was charged with

and convicted of the offence of murder contrary to section 196 of the

Penal Code, Cap 16. She was sentenced to the mandatory sentence

of death by hanging

At the trial it was the prosecution case that the deceased

ALEXANDER s/o MTATEMBWA and the appellant were husband and

wife respectively having solemnized their Christian marriage in 1960

and having been blessed with seven surviving children.

 Simango’s 2

In the night of 20.3.94 at about 11.00 p.m. or 12.00 midnight

the deceased arrived at home drunk. His daughter VENASTINA d/o

ALEXANDER (PW1) who was living with her parents in the same

house opened the door for him. The deceased entered peacefully

and declared that he was not going to eat because he was drunk,

and that he would eat on the following day. He never saw the

expected day. While in bed the appellant picked a hoe, walked

stealthily and hacked him on the head. She (appellant) picked a

panga and cut him (deceased) several times in the neck. The

deceased died instantly. The appellant ordered PW1 to assist her to

dress up the deceased and to throw the body in a nearby path. This

they did.

On the following day the appellant was arrested. She admitted

the killing. But at the trial she raised a defence of provocation which

was rejected by the learned trial judge (Masanche, J.).

Before us in this appeal the appellant was represented by Mr.

Matata learned advocate. The respondent Republic was represented

By Mr. Feleshi, learned State Attorney.

 Simango’s 3

Mr. Matata raised one ground of appeal, namely that on the

evidence on record the trial court ought to have found that PW1 was

not a reliable witness, and that she was a witness with a purpose of

her own to serve, and that the defence of provocation was available

to the appellant.

In elaboration Mr. Matata, learned advocate, stated that the

learned trial judge erred in relying heavily on PW1 VENASTINA d/o

ALEXANDER who was not a reliable witness. He said PW1 had said

that the deceased did not utter any words other than what she had

told the court. She had told the court that the deceased had simply

said that he was not going to eat as he was drunk and that he would

eat the following day. The deceased had also later on spoken faintly

“Adventina njoo uangalie damu sijui inatoka wapi”.

Mr. Matata urged that the deceased uttered more words than

what PW1 had said. He said that the deceased had called the

appellant to come and suck his male organ. He said that since by

then it was around midnight and PW1 was just about 15 years old,
 Simango’s 4

she was probably asleep and therefore could not have heard those

insults.

Second, PW1 had assisted the appellant to dress up the

deceased and to throw the body in a nearby path. In that respect,

he said, she was an accomplice who was ready to tell lies to

exonerate herself, and that her evidence required corroboration

which was lacking.

Third, PW1 did not tell the village chairman PHILLEMON

MERKIOLI (PW2) everything she had seen and heard. For example

he said, she did not tell him about the conversation she heard

between the appellant and the deceased. She also did not tell him

that she had assisted the appellant to dress up the deceased and to

throw the body in a nearby path, or that she had assisted the

appellant in burying some of the deceased’s clothes. Mr. Matata

urged that had the learned trial judge considered all these he would

not have relied heavily on her evidence in convicting the appellant,

and that he would have accepted the appellant’s defence of

provocation.
 Simango’s 5

Mr. Matata further submitted that the appellant was provoked

by the deceased’s insult for telling her to suck his male organ. He

said that those words were very provocative especially to the

appellant who was a village old woman aged 53 years. He cited the

case of DAMIAN FERDINAND KIULA & CHARLES (1992) TLR 16. In

that case this Court held that for the defence of provocation to stick,

it must pass the objective test of whether an ordinary man in the

community to which the accused belongs would have been provoked

in the circumstances.

Mr. Matata further argued that there was also another

provocative incident. He stated that some days before the killing of

the deceased the appellant had found the deceased committing

adultery with a woman. He said that on the fateful day when the

deceased called her to suck his male organ this rekindled her

previous anger over the adultery. Mr. Matata argued that adultery is

a very provocative act capable of reducing the offence of murder to

manslaughter. He cited the case of BENJAMIN MWASI V R (1992)

ELR 85.
 Simango’s 6

Mr. Matata further submitted that the killing of the deceased

was not premeditated and that the learned judge erred in refusing to

accept the appellant’s defence of provocation for no reason at all. He

said that the appellant had no duty to prove provocation. He cited a

persuasive holding in the case of KENGA V R (1991) 1 EA 145. In

that case the Court of Appeal of Kenya sitting at Mombasa held that

the accused does not have to prove provocation, but only to raise a

reasonable doubt as to its existence. Mr. Matata urged that there

was no evidence to ground a conviction of murder apart from that of

PW1 who was an unreliable witness. It was his submission that had

the learned trial judge considered all these factors he would have

come to the conclusion that the appellant was provoked, and would

have found her guilty of manslaughter.

On the other hand Mr. Feleshi learned State Attorney submitted

that the learned trial judge fully considered the veracity of PW1 and

found her to be a credible witness. She was not an accomplice. She

only participated in assisting the appellant to dress up the deceased

and to throw away the body under threat by the appellant herself
 Simango’s 7

who was her mother. Mr. Feleshi further stated that PW1 had no

interest or purpose to serve because she had not participated in

killing the deceased.

As far as provocation is concerned, the learned State Attorney

conceded that the words “come and suck my male organ” are very

provocative indeed. But that such words were never uttered by the

deceased, otherwise PW1 would have heard them because she was

awake and was the one who opened the door for the deceased. She

did not hear them. Mr. Feleshi further argued that there was no

evidence that the appellant had previously found the deceased

committing adultery. In that respect it was his view that the case of

Benjamin (Supra) is inapplicable in this case.

We have carefully considered Mr. Matata’s submission as to

why he believes that PW1 was not a reliable witness, together with

the appellant’s defence of provocation. We have equally carefully

considered the learned State Attorney’s reply thereat. With respect

to the learned advocate, we are unable to agree with him that PW1

was an unreliable witness for the following reasons:-

 Simango’s 8

First, the appellant and the deceased were her parents. By the death

of the deceased PW1 was deprived of one of her parents. She was

left with only one parent, the appellant, who could provide her with

parental love. By all means and in ordinary life she would definitely

not wish to lose both parents. It is highly unlikely that she would be

willing to give incriminating evidence against her mother, who would

be hanged thereby losing both parents. But with all this dilemma

lingering in her mind she decided to tell the truth. She told the truth.

Second, PW1 told the Village Chairman Phillemon (PW2)

everything in respect of the whole event. This was said by Phillemon

(PW2) himself in his examination-in-chief.

Third, PW1 did not participate criminally in the killing of the

deceased either as a principal or an accessory before or after the

fact. She had simply been ordered through threat by her mother, the

appellant, to assist her to dress the deceased and to throw the body

in a nearby path. Under the circumstances we are satisfied that she

was not an accomplice. In a persuasive case of DAVIES V DPP

 Simango’s 9

(1954) 1 ALL E.R. 507 at page 514 the House of Lords defined the

word “accomplice” as follows:-

“The definition of the term “accomplice”

covers participe criminis in respect of the
actual crime charged, whether as principals or
as accessories before or after the fact”.

This view was adopted by the Court of Appeal for Eastern Africa in

the case of JETHWA & ANOTHER V R (1969) EA 459.. We adopt the

same view.

The learned trial judge who saw PW1 giving evidence was

satisfied she was truthful. We have found nothing to fault him on

this. In the case of ALI ABDALLAH RAJABU V SAADA ABDALLAH

RAJABU & OTHERS (1994) TLR 132 this Court held, inter alia “that

where the decision of a case is wholly based on the credibility of the

witness, then it is the trial court which is better placed to assess their

credibility than an appellate Court which merely reads the transcript

of the record”. Also in the case of OMARI AHMED V R (1983) TLR

52 this Court held, inter alia, “that the trial court’s finding as to

credibility of witnesses is usually binding on an appeal Court unless

 Simango’s 10

there are circumstances on the record which call for a reassessment

of their credibility”. In the instant case there are no such

circumstances.

We now turn to Mr. Matata’s second complaint, that is,

provocation. Indeed the words “come and suck my male organ” are

very provocative.

But in this case there is nothing indicating that such words

were ever uttered by the deceased. Had they been uttered by the

deceased, PW1 would have heard them because she was in the same

house. She was not asleep because she was the one who had just

opened the door for the deceased, and after a short time she heard

rattling noises whereby she asked some questions followed by the

actual killing of the deceased by the appellant, and a threatening

order to assist the appellant to dress the deceased and to remove the

body. It is true an accused person does not have to prove

provocation but only to raise a reasonable doubt as to its existence

as held in the KENGA case (Supra). But in the instant case there is

no doubt whatsoever in our minds that the alleged provocative words

 Simango’s 11

were never uttered by the deceased. They never existed. Therefore

the cases of DAMIAN and KENGA cited by Mr. Matata learned

advocate for the appellant are inapplicable in this case.

Mr. Matata complained also about an act of adultery alleged to

have been committed by the deceased some days prior to the killing.

We hasten to say that there was no evidence about it. Even if it is

accepted that such an act took place, that would not afford the

appellant the defence of provocation because the killing occurred

some days later when the appellant was no longer in the heat of

passion as required by Section 201 of the Penal Code, Cap 16.

Therefore the case of BENJAMIN cited by the learned advocate is

inapplicable in this case.

In the event, and for the reasons stated above we dismiss the

appeal in its entirety.

 Simango’s 12

DATED at DAR ES SALAAM this 15th day of July, 2004.

D.Z. LUBUVA
JUSTICE OF APPEAL

J.A. MROSO
JUSTICE OF APPEAL

S.N. KAJI
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

( S.A.N. WAMBURA )
SENIOR DEPUTY REGISTRAR