F Nyalali CJ: delivered the following considered judgment of the court:
The appellant, Isidori Stanislaus was convicted as charged for the offence of murder contrary to s 196 of the Penal Code and was given the mandatory sentence of death by hanging by the High Court G at Tabora (Kajeri, PRM with extended jurisdiction). He was aggrieved by the conviction and sentence, hence this appeal to this Court. In this appeal Mr Nasimire, learned advocate, represented the appellant, whereas Mr Mapunda, learned attorney, represented the respondent, Republic. Two H memoranda of appeal were filed, the first one by the appellant himself and the second one, subsequently by Mr Nasimire. All the grounds of appeal boil down to the complaint that the trial Principal Resident Magistrate (with extended jurisdiction) erred in holding that the appellant acted I without legal provocation in killing the deceased in this case. Mr Mapunda, on behalf of the Republic, supports the decision of the trial court.
From the proceedings both in this court and the trial court it is apparent that there is common ground A on most of the matters relevant to this case. It is common ground that on 14 April 1987, the appellant killed one Nathan s/o Itiel by practically decapitating him with a panga in appellant's shamba, at Kibanga village, Kasulu district. Prior to the incident, the deceased and his brother, B namely Zakaria s/o Itiel - the first prosecution witness (PW1) - had been staying as guests at the homestead of appellant's father. The appellant lived with his father. Shortly before the incident, the appellant invited the deceased to accompany him to appellant's shamba to help the appellant carry some luggage. Deceased obliged and took his bicycle with him for that purpose. Sometime after they C arrived in the shamba, the appellant struck deceased with a panga at the back of the neck.
It is common ground also that after thus attacking the deceased with the panga, the appellant returned home where he asked PW1 also to accompany him with his own bicycle to the shamba D purportedly to assist in carrying a luggage which had proved to be too heavy to be carried by appellant and PW1's brother. PW1 obliged. Shortly after they arrived in the shamba, the appellant slashed PW1 in the back but PW1 managed to escape serious injury and ran away. Thereafter, the E appellant made a shallow grave in his shamba where he buried the deceased Nathan s/o Itiel and camouflaged it by planting some banana shoots on top of it. Having accomplished that, the appellant returned home. Appellant, however, did not stay long at home. PW1 turned up at night and narrated F to appellant's father and relatives what had transpired in appellant's shamba. Anticipating trouble for himself, the appellant disappeared from home and ran away with the bicycle of the deceased.
It is undisputed between the parties to this case that the shallow grave where the deceased was G buried by the appellant was discovered by the villagers after a search was mounted the following morning. The police were informed, and they came to the scene, accompanied by a doctor, several days later. A postmortem examination was conducted on the dead body of the deceased. The appellant was subsequently arrested on 20 April 1987. He was taken before a Justice of the Peace before whom he recorded a confession to killing the deceased.
At his trial he raised the defence of provocation claiming in effect that the deceased and the appellant had been partners in an illicit business of smuggling elephant tusks from Tanzania to Burundi. He
A further asserted that for sometime prior to the fatal incident, the deceased had behaved as if he wanted to cheat on appellant's share of the last transaction. Appellant's suspicions were confirmed when the appellant demanded for his share when the appellant and deceased were in appellant's B shamba on the material day. Deceased flatly refused, saying what amounted to in Kiswahili as:
`Blashara gani dihara yenyene ya niza tena ya magendo na tedha zenyewe nimekwisha tumia na kunywew.'
C This roughly translates into English as saying `What kind of business is this! It amounts to stealing and involves smuggling. Anyhow, I have spent all the money on drinking.'
It is these remarks which the appellant claims provoked him into killing the deceased. The trial court did not accept the story given by the appellant to explain his killing of the deceased and therefore held D that the defence of provocation was not proved. The thrust of the appeal is directed at faulting this finding of the trial court. In the course of hearing this appeal, the court asked the parties to address it on an important point of law, upon which the decision of this appeal turns. This is whether the story E of the appellant, if accepted as true, discloses conduct which amounts to legal provocation. Both sides are in agreement that the answer lies in the provisions of s 202 of the Penal Code, which states:
F `The term "provocation" means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to any ordinary person, or in the presence of any ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master and servant, to deprive him of the power of self-control and to induce him to commit an assault of G the kind which the person charged committed upon the person by whom the act or insult is done or offered.
When such act or insult is done or offered by the person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is H said to give the latter provocation for an assault.
A lawful act is not provocation to any person for an assault.
An act which a person does in consequence of incitement given by another person in order to induce him to do the I act and thereby, to furnish an excuse for committing an assault is not provocation to that other person for an assault.
An arrest which is unlawful is not necessarily provocative for an assault, but it may be evidence of provocation to a A person who knows of the illegality.'
The important issue that arises in this case is whether the alleged refusal by the deceased to pay the proceeds of smuggling, coupled with the words allegedly spoken by him amount to wrongful act or B insult. In the case of Yovan v Uganda (1), the Court of Appeal for East Africa while dealing with similar legal provisions, stated:
`With this in mind we would again shortly summarize the provisions of ss 187 and 188. The essentials as set out in s 188 are that there must be: C
(i) A wrongful act or insult, and as stated in ss (3) it cannot be a lawful act;
(ii) It must be such an act or insult as to deprive an ordinary person of his self-control; D
(iii) and such as to induce him to commit an assault of the kind which he did upon the person offering the insult;
(iv) the assault must be committed on or at least aimed at the person offering the provocation.'
The expression `wrong' or `wrongful' is not specifically defined under the Penal Code or the E Interpretation of Laws and General Clauses Act 1972, chap 1 of the Revised Laws. To our knowledge, these expressions do not appear to have been previously defined judicially within our jurisdiction or elsewhere in our neighbourhood. However, according to Jowitt's Dictionary of English F Law a `wrong' means `the privation of right, and injury; that which takes place when a right is violated or infringed'. Similarly Wharton's Law Lexicon (14th ed) defines a wrong as, `the privation of right, an injury, a designed or known detriment'. The Shorter Oxford English Dictionary defines a G wrong as it relates to law as, `violation, transgression, or infringement of law; invasion of right to the damages or prejudice of another or others'.
We think that the meaning of a `wrong' as articulated above is the correct meaning in the law H applicable in this country. It follows that the conduct of the deceased could amount to provocation in law only if it deprived or violated a right acquired by the appellant under the illicit transaction between them. It is, however, elementary principle that illegal transactions do not give rise to rights recognized by the law of the land. In other words, illegal activities take place outside the protection of the law, and those who partici- I
A pate in such activities do not acquire any rights in respect of which a privation injury, violation or infringement is capable of being committed. The case of Katemi s/o Ndaki (2) decided by this court, did not deal with the provisions of s 202 of the Penal Code in respect of the claim made by the appellant in that case that he had been provoked by being served with a court summons in a matter B already settled out of court.
In the final analysis therefore it is clear that the conduct of the deceased, as disclosed by the story of the appellant, does not amount to legal provocation. Appellant was thus liable to be convicted as C charged. As the sentence imposed is mandatory under the law, this appeal must fail and we dismiss in its entirety.
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