Nyalali, C.J., read the following considered judgment of the court:
The applicant, namely Matei Joseph, was charged and convicted in the High Court on circuit at D Morogoro for the offence of murder contrary to s 196 of the Penal Code and was sentenced to death as prescribed by law. He was aggrieved by the conviction and sentence hence this appeal to this Court. Miss Mutabuzi, learned Counsel from the Tanzania Legal Corporation represented the E appellant before us, whereas Mr Sengwaji, learned State Attorney represented the respondent Republic. The memorandum of appeal contains two grounds of appeal, but Miss Mutabuzi abandoned the second ground. The remaining ground states: F
`That the learned Trial Judge misdirected himself in law and in fact in not giving the appellant the benefit of doubt.'
According to the record of the trial in the High Court, much of the relevant facts are not in dispute between the parties including the killing by the appellant of his father-in-law, namely Zebedayo Tupa, G whose daughter, that is, Maria Zebedayo, was appellant's wife at the material time. It is common ground that the appellant's marriage to Maria Zebedayo had been bedevilled with marital problems for sometime prior to 10 September 1989 when appellant killed his father-in-law. Maria Zebedayo had H run away from the matrimonial home on several occasions, and on the fateful day, she had been brought back to the appellant by the deceased. The appellant and the deceased had then gone out together for a drink of local liquor and when they returned to the appellant's home, they found Maria Zebedayo missing. That triggered off a quarrel I
A between the appellant and the deceased which led the appellant to inflict fatal stab wounds upon the deceased. Thereafter the appellant went to surrender himself and his weapon to the local authority, that is, Hassani Mgalusi (the Ward Secretary). Subsequently the appellant was taken to a B Justice of the Peace to whom he made an extra-judicial statement.
The only dispute in this case concerns the circumstances under which the appellant stabbed the deceased to death. Counsel for appellant has submitted to the effect that appellant could have been acting either under self-defence or provocation or under the influence of drink. We have examined C the evidence. Apart from the appellant, the only eyewitness to the incident is the wife of the appellant, that is, Maria Zebedayo, who gave evidence at the trial as the first prosecution witness (PW1). Unfortunately, according to the record of the trial, the provisions of s 130 of the Law of Evidence Act D 1967 concerning the compellability of spouses to give evidence against each other in criminal cases were not complied with by the Trial Court. Sub-sections (1) to (3) state:
`(1) Where a person charged with an offence is the husband or the wife of another person that other person shall be a competent but not a compellable witness on behalf of the prosecution, subject to the following E provisions of this section.
(2) Any wife or husband, whether or not of a monogamous marriage, shall be a competent and compellable witness for the prosecution -
F (a) in any case where the person charged is charged with an offence under chapter XV of the Penal Code or under the Law of Marriage Act 1971;
(b) in any case where the person charged is charged with an act or omission affecting the person or G property of the wife or husband, of that person or the children of either or any of them.
(3) Where the person whom the Court has reason to believe is the husband or wife, or, in a polygamous marriage, one of the wives of the person charged with an offence is called as a witness for the prosecution, H the court shall, except in the cases specified in ss (2), ensure that the person is made aware, before giving evidence, of the provisions of ss (1), and the evidence of that person shall not be admissible, unless the Court has recorded in the proceedings that this subsection has been complied with.'
I It is clear under the above cited provisions that in cases like this
one, which does not fall within the categories of cases stipulated under ss (2), the evidence of a A spouse, such as PW1, which is given contrary to the relevant mandatory provisions, is inadmissible and of no effect. That leaves us only with the evidence of the appellant himself, the evidence of the Ward Secretary (PW4) and the appellant's extra-judicial statement, The evidence of PW4 who B seems to be a credible witness, excludes the possibility that the appellant could have been drunk to the extent of not being capable of forming a culpable intent. As to the issue of self-defence, it seems that there is no clear suggestion or assertion either in appellant's evidence at the trial or in his exculpatory statements to the ward secretary and the Justice of the Peace. The relevant part of his C evidence reads:
`As I was attending the call of nature Tupa approached me from behind and hit me with a piece of an iron which was a tractor part. I fell down and he started kicking me with his feet and fists. I lost self-control and as I was having a D knife then and also due to drink, I took out the knife and stabbed him with it in the stomach and it cut from one side of it to another. He left and started to run. I rose and due to the state in which I was I also started to run . . .'
As to the relevant part of his extra-judicial statement to the Justice of Peace, it reads in Kiswahili: E
`. . . alikuja kunivamia na kuanza kunipiga kwa vile alikuwa ananishembulia na kunitupa ehini. Daada ya kunitupa shini, nikapata kasire ndipe niliohomoa kisu nikamchoma kwa vile slinisukuma nilimehoma tumbeni na kiunoni. Nilivyoang aweumia nilikwenda CCM kutoa ripoti . . .' F
The thrust of this evidence is provocation and not self-defence. This evidence is consistent with appellant's statement to PW4 whose relevant part of his testimony reads: G
`He said he had truly killed him by stabbing him twice with a knife in the back in the stomach and that intestines had come out and he was totally finished. He said he had come to me for safety as he did not want to be bothered by people. He said I should take him where he should be taken for killing deceased. He said he had stabbed H deceased because deceased had got drunk and had gone to make `fujo' at his (accused's) house.'
In the light of the evidence therefore, the defence of self-defence I
A appears not to be available to the appellant. As to the defence of provocation, the Trial Court rejected it mainly on the basis of the testimony of PW1. But as already pointed out, PW1's testimony is inadmissible for non-compliance with the relevant provisions of s 130 of the Law of Evidence Act. B There is no other evidence to discredit the appellant's story. We are of the view that in the light of the available evidence, the defence of provocation cannot safely be excluded. We are bound therefore to quash the conviction for murder and substitute therefore a conviction for the offence of manslaughter contrary to s 195 of the Penal Code. Taking into account the circumstances of this C case and the fact that the appellant has been in custody since 1989, we think that a sentence of ten years from the date of his conviction - that is - from 10 April 1992 will meet the justice of the case. Accordingly, we allow the appeal by quashing the conviction for murder and substituting instead a D conviction for manslaughter, contrary to s 195 of the Penal Code and sentencing the appellant to ten years imprisonment commencing from 10 April 1992.
F
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