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DISCILE NG'ONJA, OLIPANG'ONJA, EPIMARK A MWEGOMA, GLO1:UA NG'O_r,~·JA & RAHELNG'ONJA v. REPUBLIC COURTOFAPPEALOF TANZANIA 1 ,! B ATDARF.S SALAAM (Kisartga, Omar an:dLubuva, JJ .A.) CRIMtNALAPPEALNo.139 OF 1993 C (From the decision ofthe High Court of Tanzania at Morogoro (Kyando, 'J.), dated.10 th April 1992, in C~al Sessions Case No. 21 of 1991) · D Evidence - Corroboration - Evidence needi11g corroboration - In a trial for .. mw·der: evidence for the prosecution given by a brother of the deceased - Whether needing corroboration E Criminal Practice and Procedure - Final submissions• in criminal trials - Right ofreply by the prosecution -Sections 296 and 20 l'oftize Criminal Proced~aL_ _ Act 1985 Criminal Law- Murder - Malice aforethought- Death [,-om injuries inflicted in F the course of a squabble at the end of .a drinking session and in which· no lethal weapon is' used - Whether malice aforethought i.s e;tablished ·, •. · •. , j • The five appellants, members of the same family, assaulted the deceased, inflicting . G. on him injurie~ that led to his death sJ.iortly after. The assault occurred at the appellants' home towards the end of a pombe drinking session where the cieceased also participated. The appellants were then charged with and cohvic'ted of murder. H The case for.the prosecution had rested solely on the evidence bf PW.1, a brother of the deceased who was an eye witness to the incident. . On appeal: · Held: I (i) · PW. l was not a susp~ct in the homicide and the f~ct that he Was a brother of • . .. . . ... :'.~...:-i'......_, DISCILE NG'ONJA AND OTHERS v. REPUBLIC (Kisa~ga,·.·;. JJ.A.) 113 Discile Ng'onja, Olipa Ng'onja and Epimark Mwegoma were each A sentenced to death, while Gloria Ng' onja and Rahel Ng' onja aged 15 and 13 years respectivelywere each sentenced tobedetainedduringthe President's pleasure. They have now appealed. Essentially the case for the prosecution was that the appellants, who B are members of the same family, jointly ~nd together assaulted the · .. d~ceased, inflicting on him injuries which led to his death only shortly ~fterwards. The assault was byway ofrevenge on the deceased for tearing or damaging a dress belonging Jo.the appellant Rahel about one week C before the day ofthe incident. The case for the prosecution rested solely on the evidence of Harold (P.W. 1), a brother of the deceased who eyewitnessed the incident. ~e testified that on the material day he and the deceased were at the home of the appellants drinktng pombe. Towards D the end of the drinking session the appellant Discile, ·who is the head of : .. the family, for rlo apparent reason assault~d the deceased.and threw him . . . !,, • to the ground. As he continued to assault him on the ground each of the · ·,:• other appellants participated in the assault. P.W. 1 intervened and mcll)aged · E to.separate the deceased from the assailants. The deceased walked away after that but died only shortly afterwards.before n~achinghome. According to the post mortem report death was due to internal haetnorihage folloWfilg .. ,. F a rupture ofthe spleen and the liver. All the appellants denied any involvement in th~ assault occasioning· the death . of the deceased. The trial judge rejected the defence and, accepting the evidence of P.W. 1, convicted the appellants a$ charged. lit this appeal the appellants were represented by Mr. Malcilo, learned G. · advocate, while Mr. Naali, learned State Attorney, appeared for the respondent Republic. Thejointmemorand~ ofappeal raised four grounds .- of appeal. The first ground criticises the trial judge for rej.ecting the H . ·.appellants' defences and accepting the uncorrohorateq evidence of the prosecution witnesses who,·being relatives, had an interest of their own to serve. As stated earlier the prose_cution case rested solely on the. .-evidence of P.W. 1,.a brother ofthe,deceased,.who eyewitnessed the I incident. P.W.2 w~s also a brother of the deceased but his evidence was ' I --i ~l 1 ,..,.;- TANZANIA LAW REPORTS 112 [1998] T.L.R . -} i! \ . .'.: _;;l' l A the deceased did not, by itself, make him a person with an interest of his own to serve in the matter and his evidence required no corroboration; it only required to be approached with caution, which the trial judge did; . (ii) As the defence in this case adduced no evidence other than that of the accused B persons, and neither the Attorney General nor the Deputy Attorney Gen~tal . . . / . rior the Director of Public Prosecutions appeared in person, the prosecution had nO' right of reply in making the parties' respective final ·submissions; therefore, the prosecution wrongly exercised the right of reply and- _,. this C contravened ss.296 . and 201 of the. Crimi,n.a1 . -~. Proc;:edureAct . . 1985; (iii) Malice aforethought and common intention were issues that the defence ought . . to havedealt with whether or not the prosecution raised ~m in·its reply; ~: failure by the defence to deal with those issues had nothing· to do with the ;__ prosecution b.eing wronglr allowed to exercise the right of reply; (i~)As the injuries leading to. the death of the deceased were inflicted in the course >. ~~, of a squabble at the end of a day's drinking session with no lethal weapon used, malice aforethought cannot b~ said to have been established ;beyond reasonable doubt. Appeal. partly allowed F Case referred to: (I)Mbushuit@I)_omintcMnyaroje andAnotherv. Republic, (19;~5]. G T.L.R. 97 i ' .: Mr. !yfalolo, for the Appellants Mr. Naali, for the Republic 7\ JUDGMENTOFTHE COURT (Dated 3 July 1995) I Kisanga, J.A.: The five appellants were jointly charged with and convicted . i of 111urder contrary to_ section 196 of the Penal _~o~e; Th~ appellants. . .- _ . j --- . ! . I 1 ,=f 114 TANZANIA LAW REPORTS . [1998] T.L.R. -· ;.) A only peripheral because he was not at the scene or even in the neighboru;hood of the scene of the incident; indeed he only came across the deceased as he was returning home when the deceased had collapsed on the way and was in a critical condition. P.W.2 did not claim to have B witnessed the assault or to have any knowledge of what had happened rendering the deceased in the critical conditiotthe found him. is The true position, therefore, is that P.W. 1 the only brother of the deceased who gave damning evidence against the appellants~ But the C witness had no interest of his own to serve in the matter as claimed on . / . behalfof the appellants in this appeal. For, it was not alleged and there is i:iothing to suggest that P.W. 1 w~ a suspect or that should the appellants . D §e acquitted he w~~ld be~he next susp~ct. The fact t~at he ~asa broth~r . of the deceased bYj itself did not make him a person ~th an mterest of his <;>_wn to serve. As such, therefore, P. W. l's evidence although being the ·. ividence of a relative, required no corroboration either in law or as a _E ijiatter ofpractice. It onlyrequir.ed to be approached with caution because ofthe possibility that the witness might have been tempted to exaggerate . ' his story in an atte~pt to ensure that someone is held responsible for the death ofliis the relativ~. This trial judge did-when, after finding that P.W.. F l was a witness of truth, he went on to say, bf course the deceased was his brother and one has to always guard one1elfagainst the possibility of his trying to pin the responsibility for his G brother's death on anyone. In this case I ani satisfied that he testifi¢d • I truthfully. There ~as evidence that P. W. 1 knew all th~ accµsed persons well ·H ~efore the incident as they were his co-villagers. T.he incidenttookplace in the evening when there was still day light, and the witness spent some time with the accused persons when he intervened and res·cued the·· deceased from their joint attack. Like the trial judge, we are satisfied that I in those circumstances P.W. I correctly identified the appellants as the assaillants ofthe deceased. ·\ . ,. DJSCJLE NG'ONJA AND OTHERS v. REPUBLIC (Kisanga, ... JJ.A.) .115 The complaint in the second ground is that the trial judge wrongly A allowed the prosecution to exercise the right of.reply in contravention of sections . 296 and201 ofthe Criminal ProcedureAct. Those sections . . provide in effect that at the conclusion of the evidence for both sides, if the defence called no witnesse·s then in their final ~ubmissions the . B prosecution starts apd the defence has the right of reply, the only e?(Ception being where the Attorney General, Deputy Attorney General or the Direc~or of Puplic;Prose9utions:appearsin person:·Jn this case admittedly thedefence ad.duced no evi_dence other than that of the C aQcused persons and·neither ~he Attorney General, Deputy Attorney . · General nor the Director of Public Prosecutions appeared in persop.. · · Therefore the prosecutfon should not have exercised the right of reply .-· _,:· as it did. D .... · ·' It ~as alleged for the appellants that such irregularity was prejudicial to the defence because the defence was precluded from commenting :::.c, on the issues ~f malice aforethought and common intention introdµced · E by the prose~ution in its reply. It must be pointed out at once that malice aforethought ~-d common irttentiori were issues which in this-case the defence ought to have dealt with whether or not the pros·ecutiq_n raised them in its reply. Therefore. the defence itself was to blaine fornot F dealing with such obvious matters when it had the··opportucity to 'do1 so . in its submission. In other words the deferice failed to. deal with" the . .. .. .. ' .. . .: .·· . . • . . I . issues . of1nalice . aforethought .. and common iiltentiohoufdtits"'own I . . ·. indiligertce and not because the prosecution was allowed to exercise G ~~~~ . . Th_is brings us to the third ground of app.eal·which urges that the · · evidence did not support conviction for murder. yVe thirtl( there is merit . in this submission. The injuries leading to the death wer~ infijcted in the · H cotrt-se of a squabble at the end of a day's drinking sessi6n which might"·: - well be described as a drunken squaqble in whi~h no: lethal weapon :,. ,'1·as used. It seems.that th~ appellantsjointlyassaultedJhe dece~ed as·: an expression of their anger and displeasure arising from the decease . - :-. I. tearing or damaging the dress of the appellant Rahel~ and t~at in the / . ' :1 ~ Q 116 TANZANIA LAW REPORTS [ 1998] T.L.R. A . course of demonstrating such displeasure, and without using any lethal weapon, they inflicted tlie fatal injury or injuries. In the totality of all those circumstances we think that 1nalice aforethought cannot be said to have been established beyond reasonable doubt In our view B therefore the evidence could only support conviction for the lesser charge / ofm~slaughter. ~ The fourth ground alleges that the death penalty passed on the . ! ' · ~ppellants Discile Ng' onja, Olipa Ng' onja.and Epimark Mwegoma i. C contravened the provisions of.,,Article 13(6)(e) of the· country's . .Constitution. On this po-int we wish to say no more than that in the recent case of Mbushuu @ Dominic Mnyaroje and Another v. ;;.;Republic (I\ this Court held that in Tanzania the death penalty is not D ·. unconstitutional. .;',,. , In the result, the· appeal is partly allowed. The conviction for murder is quashed and for the ;easons above stated We substitute therefore ( ,!~conviction for manslaughter contrary to section 195 of the Penal Code. I , 1 E We .set aside the sentence of death passed on the app~lants Discile I Ng'onja, Olipa Ng'onja and Epimark ~wegoma and substitute therefore the sentence of 7 year:~.' impri_sq_I).111ent fo_r ~9:~h of them. And F lastly the sentence of detention during the President's pleasure passed oh the appellants Gloria.Ng'onja and Rahel Ng'onja is also set aside. W<t sentence each of these to such a prison term as will result in their immediate release from prison unless they be held on some ot~er lawful ground. / i ~ II i J. l