SEIF MOHAMED SENZAGALA v REPUBLIC 1994 TLR 122 (CA)

SEIF MOHAMED SENZAGALA v REPUBLIC 1994 TLR 122 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Omar JJA, Mnzavas JJA and Lubuva JJA

CRIMINAL APPEAL NO. 8 OF 1993

14 February, 1994

F (From the decision of the High Court of Tanzania at Dar es Salaam, Rubama, J)

Flynote

Criminal Law - Self defence - Appellant followed into his house and hurled with

obscene abuses and attacked by complainant - Appellant used panga against the

aggressor - Whether excessive force used - Sections 18, 18A and 18B of the Penal

Code. G

-Headnote

The appellant was convicted of wounding with intent to cause grievous harm and

sentenced to five years imprisonment by the district court. The High Court H

dismissed his appeal against conviction but reduced the sentence to three years

imprisonment. He appealed further to the High Court. The evidence on record

showed that the complainant had followed the appellant into the latter's house and

hurled obscene abuses at him and his wife, before attacking him in the presence of his

(the appellant's) wife. The appellant then used a panga against the aggressor, causing

severe head injuries. I

1994 TLR p123

Held: A

(i) In using a panga in his defence the appellant used excessive force and

was therefore rightly convicted of the offence of wounding with intent to cause

grievous harm contrary to s 222(1) of the Penal Code;

(ii) The circumstances that preceded the attack of the complainant by the

appellant were such that they rendered this a case that loudly cried for leniency, the

use of a panga by the appellant notwithstanding. B

Case Information

Sentence reduced.

Cases referred to:

(1) R v Hussey [1924] TLR 205.

Rutakyamirwa, for appellant. C

Senguji, for the Republic.

[zJDz]Judgment

Mnzavas, JA, delivered the following considered judgment of the court: D

The appellant, Seif Mohamed Senzagala, was charged with and convicted of

wounding with intent to cause grievous harm contrary to s 222(1) of the Penal Code

and sentenced to five years imprisonment by the district court.

Dissatisfied with the decision of the district court he appealed to the High Court E

which dismissed the appeal against conviction but reduced the sentence of five years

imprisonment to one of three years. Still dissatisfied the appellant has come to this

Court.

Arguing the appeal before us Mr Rutakyamirwa, learned defence Counsel, submitted

that since the High Court (Rubama, J) had found that the attack of the F

complainant, (PW1) by the appellant was done in self-defence inside the appellant's

room where the complainant had followed him he should have found the appellant

not guilty of any offence as the attack was justified in law. In support of his argument

the learned Counsel referred us to article 16(1) of the Constitution G of the United

Republic of Tanzania and the decision in R v Hussey (1).

In the alternative but without prejudice to the above argument Mr Rutakwamirwa

submitted that even if the conviction was to be upheld, (as indeed it was upheld by H

the High Court), the circumstances under which the assault was done called for a

more lenient sentence than that of three years imposed by the High Court.

The Court was asked to uphold the appeal and order the acquittal of the appellant.

In rebuttal Mr Senguji, learned Senior State Attorney, supported I

1994 TLR p124

MNZAVAS JA

A the conviction and the sentence of three years imprisonment. It was argued that

the sentence was not so manifestly excessive as to call for reduction by this Court.

When the Court referred the evidence in the district court to the learned State

Attorney, he conceded that the complainant was the aggressor who had followed B

the appellant into his house. It is also not irrelevant to mention that the complainant

hurled obscene abuses to the appellant and his wife before he attacked him in the

presence of his (appellant's) wife.

Taking into account this evidence and the provisions of ss 18, 18A and 18B of the

Penal Code which say inter alia that: C

`A person is not criminally liable for an act done in the exercise of the right of

self-defence unless "excessive force" is used'.

D We are of the considered view that in using a panga in his defence and thereby

causing the complainant to suffer a severe head injury the appellant used excessive

force as rightly argued by the learned State Attorney. He was therefore rightly

convicted of the offence of wounding with intent to cause grievous harm contrary to s

222(1) of the Penal Code. The appeal against conviction is accordingly dismissed.

E As for the sentence of three years imprisonment imposed by the High Court the

learned judge said inter alia before sentencing the appellant:

`I accept in that vein Mr Rutakyamirwa's submission that the appellant had

every justification to defend himself and his property'. F

With that observation by the first appellate Court we respectfully agree; but with

even greater respect to the learned judge we are far from being persuaded that taking

into account the circumstances that led the appellant to use a panga (as mentioned

above) in attacking the complainant called for a severe sentence. G

As rightly argued by the learned defence Counsel had the learned judge sufficiently

addressed himself to the circumstances that preceded the attack of the complainant

by the appellant he would no doubt have found that this was a case H that loudly

cried for lenience the use of a panga by the appellant notwithstanding.

The record shows that the appellant was convicted of the offence on 10 August 1992;

and he will by now have served one year and five months imprisonment. We are of

the opinion that this is more than sufficient punishment in view of the mitigating

factors mentioned above. I

1994 TLR p125

In the event we sentence the appellant to such sentence as will result to his A

immediate release from custody. It is so ordered.

1994 TLR p125

C