NGOJA CRIMINAL SESSION JDG

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CRIMINAL SESSION NO. 37574 OF 2023 REPUBLIC VS MICHAEL EMMANUEL NGOJA JUDGMENT Date of last order: 11-11-2024 Date ofJudgment: 11-12-2024 B.K.PHILLIP,J The accused is charged with the offence of murder contrary to sections 196 and 197 of the Penal Code. The information filed in this court reads as follows: Michael Emmanuel Ngoja, on 29th November 2022 in Kwembe area i within Ubungo District, in Dar es Salaam Region, did murder Sofia Abdallah Said. Briefly, the facts of the case presented before this court by the learned State Attorneys during the preliminary hearing are as follows: The accused person is Michael Emmanuel Ngoja, who was 16 years old at the time he allegedly committed that offence facing him. In November 2022, the accused person was working at Thadei Gervas's residence, a business selling broiler chicken in Shekilango. On 29th November 2022, while the accused was at Thadei's residence, Sofia Abdallah Said, the deceased went to Thadei's residence. The accused stabbed her with a knife that was on the table. The accused attempted to hide the incident by hiding the deceased under the bed, the incident was discovered by one Selvas Gelvas @ Alpha, who was also staying at Thadei's residence. The information was communicated to the street leaders and the accused was arrested and taken to Gogoni police station. The accused was interrogated by a police officer by way of a caution statement. He confessed to having committed the offence of murder, that is, he cut the deceased's neck using a knife because she had stolen Tshs. 3,000/= belonging Thadei Gervas, his employer. Also, the accused recorded his confession before the Justice of the Peace where he confessed 2 to having committed the offence charged against him. The deceased was taken to hospital, where it was pronounced that she was dead. A postmortem was conducted, and it was established that the deceased's cause of death was hemorrhagic shock due to a sharp, penetrating cut injury to her neck. At the crime scene, several items were corrected: one knife, one sulfate bag, one chicken storage unit, and one shirt. A/Insp Alfredy Lugamara drew a sketch map of the crime scene with the assistance of one Rebecca Iddy. Upon completing the case investigation, the accused was charged before the court. The learned State Attorneys, Blender Masawe and Salome Assey, appeared for the Republic, whereas the learned advocate, Fredrick Charles, appeared for the accused. The social welfare officer, Ms. Stella Shayo, attended the hearing of the case since, at the time, the accused allegedly committed the offence he was facing was a minor. Notably, the accused admitted the offence charged against him during the preliminary hearing and when the case was called for trial. However, this being a capital offence, the practice is that a full trial must be conducted even though the accused admitted the charge against him. In proving their 3 case, the learned State Attorneys paraded eight (8) witnesses, and the accused testified as DW1. PW1 was Abdallah Said Kaluta, the deceased's father. His testimony was that on 29th November 2022, he was coming to Dar es Salaam from Tuliani, and while on the way, his daughter, Rahman Abdallah, called him and informed him that Sofia Abdallah, the deceased, was taken from their residence by a person. She was not sure if she was still alive. He called his neighbor, Takwa and told him what his daughter had told him. In response, Takwa told him that there was something unusual and promised to go to the crime scene. He called him again after a while and told him that things were not good but promised to call him later. He requested Takwa to take her daughter to the hospital if she had any problems. When he called Takwa for the 3rd time, he told him that the Police officers had already arrived at the crime scene/his residence, but his daughter was dead. When he arrived in Dar es Salaam, he joined the police officers. She saw the deceased. She noted that she had wounds on her neck. The deceased was taken to Mlonganzila Hospital. Further, PW 1 testified that when he entered his house/the crime scene, he saw blood on the floor all over the house. Outside the house was there a knife, a big basket, and a sulfate bag, all had blood stains. On the 1st of 4 December 2022, he went to Mlongazila Hospital to identify the deceased. He was with his relative Shaban Thabit and three police officers. In the mortuary, there were two Doctors. After identifying the deceased together with his relatives, they were told to go out. From the crime scene to his residence is about 150 meters. He was informed that a young boy killed his daughter. PW2 was Juma Mohamed Mapunda, a resident of Kwembe, an electrician, and a local militia. He testified that on 29th November 2022, Rebeka called and asked him to go to Mama Mura's house near the crime scene. Upon arriving there, he met Rebeka and Eddy. All of them went to the crime scene, where they found a person lying down on the verandah covered with a tarpaulin. He opened the tarpaulin and found a dead young girl. Eddy told him that the one who killed the child was in the house. Eddy called the accused and asked him to open the door. When the accused opened the door, Eddy went straight to the accused person and chained him. He entered the house and found blood on the floor all over the house. He noted that the accused was trying to mop the house to remove the blood stains. He took the accused to Gogoni police station. PW2 identified the accused before the court. 5 PW3 was Dr. Dammy Abdulrahman Chimbo. He told this court that the deceased was Sofia Abdallah Said. Abdallah Said and Thabiti Shaban identified the deceased. He examined the deceased body and noted that the deceased had big wounds on the neck and the right shoulder, nerves were cut, and the esophagus was injured.PW3 prepared the postmortem report (Exhibit Pl), which indicated that the deceased's cause of death was blood loss due to wounds caused by a sharp weapon. PW4 was Inspector Alfred Lugamara, the investigator of the case. His testimony was to the effect that on 29th November 2022, he was instructed by his seniors to go to the crime scene of a murder case at Kwembe, Mtiki area, in Ubungo District. He went to the crime scene with Juma Mapunda. At the crime scene, he found many people. He met the leader of that area, Rebeka, who showed him the deceased, who was lying in the Verahdah covered with a bed sheet. He opened the bedsheet and noted that the deceased was a girl child. She had a big wound on the neck. Also, there was blood in that area. He said that the floor in the entire house had blood. He saw a rag soaked with blood and a knife with blood stains. In the toilet, he saw a bucket that had water mixed with blood. Five meters from the house, there was a chicken cage. He entered the chicken cage and found two 6 sulphate bags and a big basket with blood stains. He was informed that the deceased was killed in the house by a young boy. He drew the sketch map of the crime scene (Exhibit P2) with the assistance of Rebeka. Also, he collected the exhibits he saw at the crime scene: a big basket, the sulphate bags, the rags, and a bucket. Also, took blood samples. He took the deceased to Mloganzila Hospital for examination. PW4 identified the accused before the court. PW5 was Servas Gervas @ Alpha. He testified that he is a resident of Mbezi Mwisho and a businessman. He sells chicken at Shekilango market. In 2022, he was staying with his brother, Thadei Gervas, Michael (the Accused), his sister-in-law, Eliza, and his brother's daughter, Carren. The accused person is not their relative, but his parents are their neighbors in their home village in Rombo. The accused person was brought to Dar es Salaam by his brother Gervas in 2020. On 29th November 2022, in the evening, on his way home, he met his friends Michael and Justine and at a distance, he saw the accused going into his brother's house through a rear door. When he arrived at home, he found the main door closed. He was with Michael and Justine. He asked the accused to open the door, but he refused. He called his brother and told him the accused had closed the door. He set his cell phone on a 7 loudspeaker, and his brother talked to the accused through the window. The accused told his brother that he had broken a bed. In response, his brother told the accused to open the door. The accused opened the door and PW5 saw blood in the house. He did not enter into the house. He asked the accused what he had done. The accused told him that he killed somebody's child and hid her in the store. PW5 and his friends went to the store, but they did not find the deceased. Finally, the accused told them that the deceased was inside. PW5's friends Justine and Michael entered the house and came out of the house crying. He asked them what they had seen in the house. They told him that there was a child under the bed and blood all over the house. He called his brother again and told him what was happening at home. His brother told him to call Eddy, a " boda boda" rider who was their neighbor. He complied with his brother's directives. Eddy came and asked the accused person to bring out the deceased. The accused dragged the deceased outside and then was covered with a bed sheet. Eddy called Rebeka, the leader of that area. Rebeka called the local Militia. The local militia took the accused away because people wanted to beat him. After that, his brother came with police officers and took the dead body. He remained at home. Later on, the police officers came back. He opened the house for 8 them. They entered the house and took some of the items they found in the house, such as a knife, a bucket, and rags for mopping. Moreover, PW5 told this court that the deceased was called Sofia. He knew her because she used to go to school with Carren ( his brother's daughter). The accused used to take Sofia and Carren to School. The accused's health condition was good. He used to cook for the family. He used to prepare Carren in the morning for school. PW6 was Rebeka Iddy Fonga. She testified that she is a resident of Kwembe Mitiki, Ubungo District, and a leader of Zone 4 in Mitiki area. On the 29th of November, 2022, Eddy called her and requested her to go to Mr. Thadei's residence. She heeded the request, and upon arriving there, he found the body of a child lying on the verandah, covered with a bedsheet. She opened it and recognized her. She was dead. She called the local militia, Juma Mapunda ( PW2), and when he arrived, he asked the accused to open the door. She entered the house with the police officer and Alpha ( PW5). The police officers checked the house. They found a knife, mopper and bucket of water mixed with blood. They went to the chicken cage. Police officers took the knife and other items found in the house and the deceased. PW6 identified the accused before the court. 9 PW7 was Thadei Gervas Swai, the owner of the house where the deceased was murdered. His testimony was as follows: He is a resident of Mbezi Mwisho, Kwembe, and a businessman selling chicken in the Shekilango area since 2013. He knows the accused. He is the son of their neighbor in their home village in Tarakea, Naiyemu Village, in Rombo District Kilimanjaro. He brought the accused to Dar es Salaam to assist him when his leg was broken in an accident. Thus, he was staying with him in his residence. On 29th November 2022, when he was at his workplace, his young brother, Alpha (PW5), informed him that he had arrived at their residence and found Michael ( accused) locked himself in the house and refused to open the door for him. He told his young brother to put his cell phone on loudspeaker so he could talk to the accused through the window. PW5 followed his instructions, and he spoke to the accused. He asked him to open the door. The accused told him that he had broken the bed. He told him to open the door so that they could prepare evening meals. After five minutes, Alpha called him again. He told him that there was blood in the house and that he was afraid to enter the house. He directed PW5 to enter the house to see what was the matter. After a short time, Alpha informed him that there was a child under the bed who appeared to be injured. He directed him to look io for a person to assist him in taking the child to the hospital. On his way home, he received another call from PW5 informing him that the accused had killed that child. He told PW5 to close the door so the accused would not escape. He went to Gogoni Police Station to report the matter and was connected to police officers on patrol. He met them and went with them to his residence (the crime scene) and, upon arriving at his residence, he found his neighbors and a child lying on the verandah. She was dead, covered with a Khanga. The police officers checked the premises. They took the dead body to Mloganzila Hospital. On their way to Mlongazila, they had to stay at Kibamba Hospital to wait for the deceased's father, who was coming from Dar es Salaam. After leaving the deceased at Mloganzi Hospital, he returned to his residence. Police officers inspected his premises and interrogated his young brother (PW5). Also, they took some items found at the crime scene, such as a bucket and rags for mopping. Moreover, PW7 told this court that PW5 he uses the names Alpha and Gervas interchangeably. The deceased was his neighbor's daughter. PW8 was PF 2542 ASP Felix Sandy Cedrick. He testified that in 2022, he worked at Gogoni Police Station in Ubungo, Kimara. On 29th November 2022, at 8.00 pm, he was instructed by his boss to record the accused's caution ii statement. The interrogations with the accused were conducted in his office. He warned him as required under the law and started recording his statement at 8.38 p.m. The accused told him that he stabbed a young girl with a knife. He told him he was staying at Kwembe with his boss, who took him from his home village in Kilimanjaro. His boss was Thadei. His job was to look after chickens. He used to stay at home most of the time. 29th November 2022, at 6.00 pm, he was watching TV, and the door was open. He saw the deceased (Sofia) coming into the room where he was watching TV. She went straight to the table and took money from the table. He stopped her from taking the money, but she resisted. She wanted to leave. Then, he stood up and took a knife on the table. He stabbed her on her back and then cut her neck. The deceased fell. She bled so much. After that, he noted that the deceased was dead. He pushed her under the bed. He started cleaning the house. He was pouring the water he used to clean the house in a toilet that was in the house. Before cleaning the house, he took a sulphate bag and a basket from the store. He wanted to put the deceased in the sulphate bag and the big basket and throw her away. However, before entering the house with the sulphate bag and the basket, he saw PW5 coming. So, he left the sulphate bag and basket, ran into the 12 house, and closed the door. PW5 arrived and asked him to open the door. He opened the door, and when PW5 entered the house, he saw blood. He asked him what happened. He showed him the deceased under the bed. He took the deceased outside on the Verandah and covered it with a cloth. Then he returned to the house, and PW5 closed the door and asked for assistance. Many people went to the crime scene, including the local Militia man who took him to the police station. PW8 testified further that on 30th November 2022, he was handed over the case file involving the death of Sofia for further investigation. In the file, he found several caution statements of other witnesses. On the 1st of December 2022, he went to Mloganzila Hospital for the follow-up of the examination of the deceased. He met the deceased's father Abdalah and Thabiti, and Dr. Shimbo. Thabit and Abdallah, identified the deceased. The Doctor examined the deceased who had a wound on her back caused by a sharp weapon. Also, the deceased's neck was cut. After examination of the deceased body, the Doctor prepared the postmortem report, and the dead body was handed over to the deceased's relative for burial. He recorded the Doctor's caution statement. 13 After closing the prosecution case, I ruled out that the accused had a case to answer. The accused made his testimony under oath. He testified that He was born in Nayemi Village, Rombo District, in Kilimanjaro Region. He is a standard seven-leaver. He failed the standard seven examinations and, thus, was not selected to join secondary education. Mr. Thadei (PW7) brought him to Dar es Salaam. PW7 called his father and told him that there was a job he wanted to give to the accused, and that job was keeping chickens. He did not remember the day he came to Dar es Salaam. He had been keeping chicken at Mr. Thadei's home for a short time. On the fateful date, he was in Mr. Thadei's bedroom watching Television. In that room, there was Tshs. 3,000/= on the table that was near the door. Sofia entered the room and wanted to take the money ( Tshs.3000/=). Before she took the money, she stabbed her with a knife in the neck. He had no dispute with Sofia. He stabbed Sofia with a knife because she wanted to take the money. The police arrested and put him under custody. The police interrogated him. He knows what he did was terrible and wrong. He feels very bad for what he did. He prayed for forgiveness. 14 Moreover, the accused told this court that after staying in remand, he learned a lesson. He will not commit wrongs anymore. The deceased was about six years old. Having analyzed the evidence adduced by both sides, I am of the view that this court's task is to ascertain whether the evidence adduced by the prosecution proves the offence of murder against the accused beyond a reasonable doubt, as required by the law. It is not in dispute that the deceased died an unnatural death. The postmortem report ( Exhibit Pl) shows that the deceased had wounds on her body, and her neck was cut. She died due to blood loss caused by wounds inflicted using a sharp weapon. The testimonies of the prosecution witnesses show that the accused was found in the house with the deceased, and the floor of the entire house had blood. The accused is the one who showed where he hid the deceased, that is, under the bed, and is the one who brought the deceased out at the verandah. Not only that, according to the postmortem report and the testimony of the prosecution witnesses, in particular Doctor Chimbo ( PW 3), the wounds inflicted on the deceased on her neck using a knife show clearly that the deceased intended to kill the deceased. Though there is no eyewitness to the murder of the deceased, 15 the circumstantial evidence established by the prosecution witness corroborated the confession made by the accused in his caution statement, and before this court points irresistibly that the accused killed the deceased and excluded other persons. The circumstantial evidence established by the prosecution witnesses is sufficient to convict the accused of the offence of murder. Thus, I hereby convict Michael Emmanuel Ngoja of murder, contrary to sections 196 and 197 of the penal Code. Dated at Dar es Salaam this 11th day of December 2024 ft-—" ' B.K.PHILLIP JUDGE. 16