19780428 TZHC Dodoma

Hf 4 . . - 39_ IN THE HIGH COURT OF TANZANIA AT IRINGA ORIGINAL JURISDICTION ()ODOMA REGIST) CRIMAL SESSIONS CASE NO.29 OF1977 The Rep blic . . versus HabiloSamweli @ Ngailo Peter Andrew © Ngailo S Chargê Murder c/s 196 of the Penal Code. . 10: JUDGMENT' •'.,, S CHIPETA c J : :, • The Vo ac used persons in this case, Habib eta Nairo and Petro sf0 AndreaNairo, stand joIntly charged with the offence of murder cls 196 of thee PenalCqde. • The Republic has alleged that on or bcut 4th March., 1976, within Iringa Region, the two accuse.orsons jointly and together rnurd.ered one Gabriel Seremeni, Ngeiro. Both accused persdns have deniethë char&e. The proseduiion8 evideno e - is to the allowing eff'ct: 20 the deceased, Gabriel, Seremani airond the two accused 1 persons resided at Malangali village, Ruclewa dit.rict, irk. Iririga. Region. The deceased had two Wives, .nan.dly, Leonia d/o Turn.ona (PW. 1) and one Juat.s (who wa not called to Tivo evidence). Prior to his deth the deceesed had qcquire.d great reputation of being a sorcerer 'or wizard, and it was widely''oelieved at the village that he had, thrugh witchcraft, caused the dmthS of several people in the village. Among the people whose deaths the deceased was belIeved to have causedthrouh his witchcraft were one Andrea Ngairo, who was the father of the second 30 accused and an elder brother of the deceased; and to children of the said Andrea Ngairo. The deceased, was further .believod to have brought illnesses and su± 5 fcring. to the second accued and to the mother of the second accused one Elizabeth Msanga (PW.2) . Through witchcraft., the deceased as bçlieved to have inserted a needle into the body of P\.2; and to havc made the second accused senhi-b1d and twisted the s econci accused' s tieck. The deceased is even said to have been boasting at the village to be a first class wizard, end at one time he threate ned to take the life of the second accused thrcugh vitchcraft. .40 On the day in question, tht is, on 4th March, 1976 the deceased and his two wives ient to cultivate in. their shamba. A t about 2.03 p.m. thëf left the shm:iba and sat at some place near the shamba where they started to drink a local brew commonly lmown as 11 ulanzi'1 . . Shortly thereafter, the two accuscI crsons arrived there and said that they warted to ±ink "ulanzi". The first accused was mmcd with a penga, but the second accused was not areJ The decea..eds second wife then cavo the accused persons some "ulanzi" in a small pot which the accused rorsons drank. She 50 then poured out more "ulanzi' in that same rot, and the tro ../4o - j -40- ccused persons drank that too. Just then the second accused asked the doceasod "why do you spill "ulanzi" of other people?" When the deceased did not neply, the second accused repeated the question. Aôcording to Leonia (PW.i) the deceased had not in f+ spilt any "ulanzi" and did not touch the u.lanzi" which the accused persons were drinking. When the deceased did not reply the second accused's questions, the second accused slapped the deceased twice. There jç upon the deceased ran for some distance and nicked up a niece of bamboo stem. When the deceased made to strike the second accused with the niece of bamboo stem, the second accused seized it and threw it down, and the two srtcd towrrestlo. Meanwhile the first accused had walked away from t 1 ere towards a maize shamba apparently leaving the deceaed and the s econd accused fihting while her ce-wife watched. • On arrival at home, PW.1 reported the matter to the father of the deceased, who, however, took no action. When the deceased failed to turn up at home that evening, 20 the wives of the deceased went to report the matter to ten-cell leaders, one of whom was Danford (PW.4) Next mOrning the wives of the deeaeed and the ten-cell leaders reported the matter to a ward secretary of the area, one Alex Mlelwa (PW.3) who then instructed them to go and look for the deceased. After a long search, they found the deceased th.at afternoon lying dead in some grass off a road. The deôeased had an almost severed neck. The matter was then reported to police. A police officer 30 (PW.5) who visited the scene aberved that about 100 feet from where the dead body was lying, and on the other side of the road, was a place with disturbed grass and blood-stains suggesting that there had ben a struggle. at that niace. From the extra judicial statements of the accused persons, it is appaent that that was the place where the accused persons killed the deôeasëd, and that from there they dragged the dead body to the place where it was later found. This is also clear from the scratches on the groid between those two points. From the place where Leonia had left the deceased and the 40 secon d accused fighting to where the killing took place waa a distance of 5rI0 feet or about 300 yards. On ar±ival at home, the second accused told his mother (PW.2) that he and the first accused hd killed the deceased because the deceased was a wizad. On info±'mation received by the 'ard secretary (PW.3) from Leonia (PW.i), the ward eecretary arrested the two accused persons. When PW.3 asked the first accuscd why he had killed the deceased, the first accused said that he and the second accused had killed the deceased because the Ao6oased 50 was a wizard. When BW.3 asked the second accused why they had killed the dece.isod, the second accused said that he and the first accused killed the deceased becanse the deceased killed the second accued's father thraugh witchcraft. The dead boy of the deceased was then taken to Marda Government Hospital where a pest-mortem examination was conducted. . . -41- • The doctor who conducted the post—mortem examination found the following injuries on the body of the deceased i) a large cut wnd6 cm long by 5 cm deep on the right side of the chest; (2) a large cut wound on the anterior of the neck measuring 12 cm x 5 cm deep; (3) multiple fractuncs of the 4th to the 10th ribs on the right, and the 5th to the 9th ribs on the left; (4) a large laceration of the .e'rt and rupture of the right lung and (5) bruises on the right side of the face. The doctor then opined that d'ath was due to shock as a result of external and intemal haemorrhage. 10 On 9th March, 1976, each of the ac used persons r:ade an extra—judicial statement to justice of the peace, one Wudi Mwinyijuma Nbarazi (PW.6) In his extra judicial statement, the first accused, Habilo Ngairo, said that the deceased was a wizard, and that he decided to kill the deceased because the deceased had caused the loss of many lives for no reason. He caught the deceased nrid felled him to the ground. Then the second accused came and slapped the deceased. The deceased lot go of thofirst accused, but the first accused caught him and ped him to the 'our.d, as both accused persons lapped him. Then they asked the 20 'deceased if he had eaten all those people, and they named the 'people to him. The deceased admitted to have eaten those people, but pleaded with them toJlcave him alone and he would stop practis ing witchcraft. The accused persons however, decided not to leave him unharmed because he used to boast that no one coukd do anything to him until he made sure that he had killed everyone. So they decided that it as bettor to f4ISh him off because if they let him free they themselves would be finished. So the first accused took a panga and cut the d e ceasedts neck. The deceased died right there. The accused 30 persons then told themselves that they had saved the dives of many people, and that what would happen to them would be their own. In his extra judicial statement the soco d accuscd said that on 4/3/76, he and the first accused killed the deceased because he was a wizard who had often tortured mud killed people. The second accused went on to toll the justice of the :caco that the first person the deceased killed by witchcraft was the father of the second accused; and then his. young brothers, an uncle of the first accused; and then a-i aunt of the' frst accused. Thereafter the deceased continued to torture people 40 by means of w itchcraft. Among the thi gs which the second accused said the deceased did to him are that the deceased made him semi—blid; and caused the second accused to havo a stiff neck. Thereafter the sccon.d accused wont to Ifunda for further training. In March, .1976, he returned, to the village. He then hoard from people that the deceased was planningto'kill him (by oans of witchcrafi) after some time. On 4/3/769, at night, the deceased, byrn means of witchcraft, went and slept over the second accused. So he (the second accused) went and told the first accused about it, and the' two of thorn agreed that they should go and kill 50 the deceased. Than they wont to the house of the deceased where they found him with his two wives, and th d ecemsodts second wife gave them "tJxinzi?. Then the deosas•Mctmrtd.d abusing the second accused. . So the decond accused slapped the deceased and the deôeased also slapped him. The seond accused then held the deceased, and in the wrestle that ensued both of thorn fell down. 9 . -42- The deceased later stood up and started runnirg away, and both acci.isod persons pursued him. When they got to a wrtain hill, they caught up with the deceased. As they wrestled with the first accused, the deceasd fell down, and they continued to slap him. Then the first accused took a panga and cut the deceased's neck, and the deceased died an the spot. Then they took him and loft him somewhere off the road and went home. In his inisworn statomant in his defence before this court the f irst accused said that the cbceasod was his brother who was 10 famous as a wizard, but that they had no proof that he was in±'act awizard. On 4/3/76, theo accusod persons wont to the d eceased' s shamba so as to go and drink 11 ulan±iI On arrival there they were warmly welcomed and wore givoi "ulanzi" which they drank. When they were about to leave for their home, the cbceasod splashed the second accused with "ulanzi" When the second accused asked the deceased why he had done that, the deceased did not answor. Threupon the aecond accused slapped the deceased and the to started to wrestle. 20 The first accused went on to say that by then he had walked away towards a maize shamba. The deceased then started to run away, and the two accused p rsons chased him and caught him. The first accused then told the deceased th't he (the deceased) was a wizard. The deceasCd agreed that he was a wizard and that he had killed Andrea, Esta, Polisi, and many other people. The deceased added that oven the accused persons wuld die before the end of that year. The first accused went on to tell the court that after the tceasod had said that it was then that they knew for cc-rtair that the deceased was in fact a wizard. That so angered 30 them that they ant the deceased with a panga and then they wont home. In his imswona statement the seconc'. o.ccased said that the deceased, who was his father's young brother, was very famous at the village as a wizard, but they could not do anything to him because they were only suspoctin that ho was a wizard. On 4/3/76, he and the first accused left their house and went to the doceasedts shamba with the sole aim o f going to drink "ulanzi". On arrival there, they found the deceased with his two 40 wives. They wore given "ulanzi" w hich they drank. When they were about to leave, the docoacod splashed "ulanzi" over the sedond accused. When the second accused twic'3: asked the deceased why he had done that, the deceased did not answer. So the second accused became angry and slapped the deceased. The two then started to wrestle. In the course of the figt:. the deceased broke free. He then ran some distance and picked up a bamboo stem so as to strike the second accused with it. The seonci accused, however, soized it and threw it away. When the deceased ran to goand 50 pick it up again, the two accused persons ran a±'torhim and caught him. A- ter they had caught him the first accused old the deceased that the deceased was a wiard. Thereupon the deceased boasted that he was a wizard and that he was the one who had killed Anciroa,Esta, Polisi, an uncle of the first accused called Tongapihawo, and many other people. He is also said to have 'coasted that he w the one who caused a hummer to hit the second accused, and that ho twistJ the second aCCUSed'S neck wi1u the second accused was Jr prinry shhool. The deceased is said to have added that even the two accused persons would die before the end of tie .1t, year. The words UttOred by th deceased, the socoi'ei accused saidi so cuegored or provoked The two accused )orsons that they cut the the deceased with a paiga. The two accused persons then left for home. On arrival a. home, the second. accused perso old his mother that the deceased was a wizard wh had boasted that he had killed the iecond accused' s fath , brother istor and uncle, and that cc a result of what the deceased a told thee they had cut him with a pan.:a and that he had died. After my sunning up to the two gentlemen assessors, they were both of the view that the accused persons acted under provocation end so found both accused persons guilty of manslaughter, The reasoning of the first gentlemen as: essor Was that because the deceased had been goi..na about boastinta that he would kill then and that he had hilled teeny other people, that he had told 21,,T,,2 that he had twisted the mcond accused's neck and further because the deceased had boasted that nobody could do anything to hin, that aede the accused persons to go and die with the deceased The first gentleman assessor concluded by saying th t the deceased had annoyed his relatives and the whole viThlage. The id gentlemen assessor reasoned that the two accuse.d persons wre annoyed because thair relatives had died, a n d they fcrod to die too. So they decided to go and kill 30 the deceased. The s000nri gentlemen assessor wont on to say that since the accused persons had adciittuci hilling, since the deceased used to boact that ha; me a wiz rd and used to loage his house we'' 'pen, and since ho had told there that they too would die. the accused persons ro provoked because the ci eceasod iaaci k -Lllod tie air relatives, The oco1a:l gentle eon assessor added. that the cbccnased had ovn heitched PW..2 This was a feference it would app ar to the evidence of PW2 who said that -by moons of witchcraft the deceased had inserted. a needle into her body. 40 As conccded' by both sides, end as I told the hio gentlenun assessors in ray sumn.ing up, there can be no doubt th t a nan by the name of Gabriel Serenani Ngairo is dead; that he cued a violent death; and that the two accused persons are the people who killed him. What is in scrius dispute is whether the killing was with malice ccforc—thought, in which event it would.: be murder - as contended by the Republic; or it was as a result of provoct ion, in which case it would be manslaughter - as contended by the defence. For provocation to exist, there reust-be2 50 a wrongful act or insult, which is an unlawful act; the act or insult oust be such as would deprive on 0 ordinary person of his power of self control, and suhh as to induce him to cor.mit an assault of the kind which the accused did upon the person who offered the iiasultp end. the assault must be committed o or at ithast airaoci at the person offering the provocation. (Yoraea v. Uganda (197C) E.A.405, at page 406) Where the fcnce of provocation is linked with a belief 60 in witho.ra±'t, such a dcdonco will faiJ14 f the provocation elleod 44 was based on no more than the accusods boliof t'i.=..t the (12 was practicing witchcraft or th.t he h .,through witchcrft caused thetaths of many people; or th.:.t he intended to cause thodeath of the accused. If, on the other hand, the suspected wizard wore to throton the accused with death, such throat to kill, taken tog..thQr with other existing circumstances, could amount to legal provocation. But each case must be judged on its own facts, and in each case the Kcts or insult alleged to have constituted the provocation must be considered by the stndard of the 10 -• reasonable man, that is, an ordinary person of the corimunit to which the aacused p rson belongs. (Yo 1 s ease - supra However, this is. not sugg:is±ing tht an accused p rson may go to kill another and hope to avail himself of this defence whore the throat to kill was not make to himslf. The throat to kill must be made to him p;rsonally md not received by the accused through a third party. The threat to kill must be mmdc to him. end the killing must be done in the beat of passion with no time to cool.. Besides, as pointod out above, such throat to kill must be coheideroci along with other existing circumstances. A fortioi,. the provocion must 20 have been such as to deprive an d thi.y person of his self control, and such as to induce him to commit an assault of the kind which he did upon the person offering such provocation I will now roturn to the evidence and come to my own findins th.;reon. There can be no doubt tht the deceased was reputed in the village to be a wizard who was believed to have caused the deaths of his own r latives and other people through witch- craft, and I am inclinedto accept the vi: 1 erco th t the doce sod used to boast that he w s a first class wizard. 3C As a result he earned himself the hostility of not of the villagers. So much was the hostility of the viii 'gers that only throç or four people attonlod the dccesedts burial. The root went -'bout celebrating his death. It is equally beyond d&spute th .t tba mother of the s .cond accusbd (PW.2) believed that the Wcoaseci ha-i caused ti:u baths of her husband end her to children, also t:la -t ho had caused suffering to the scion'] accused whom ho was planning' to kill. I am in no doubt at all th:t the secord accosed sh:rôd this belief and hatred thet PW.2 and other vilJtgcrs at the village had for the deceased. 40 It is against this background that the rcet of Tho tocti- mony in this case should be ccisid rod. To start with, I consider the xtra judicial st .ton.ts of the accused persans. Those stotomcntwero admitted in oviclonco without objection, and there cano doubt th.t they wore voluntarily made. BOSIdOS, those otrrt judicial statements amount to confessions. Although the extra judicial statements were not expressly 50 rre—tractod or ropudiatod, they have, however, boon itapliodly -tractcd or repudiated. The law regarding the evidential value of confessios, be they ±etracted repudiated or admitted, was reiterated succinctly by the court of Appeal for East Africa in the celebrated case of Tuwarioi v. Uanda (1967) B.A. 84 9 in which the Court stated, at page 91 , W e would att ompt to s implify th(, poeitipn. First the onus of proof in any crminal c - sc is on the prosecution to establish the guilt of an accused prson. A conviction can be founded or. a co;-foso ion of guilt by ( an accused person.'... If the cr)iu't is satisfied that eQ -45-- the statement is properly ad:iissiblo and so admits it, then when the court is rriving ..t its juJgmrt it will consider all the evidence 1ofore it and all the circunstonces of the case, and in doing so will consider the weight to he rilaced on any confession that had bean n.dmittoci In assessing the confession the main conideation at this stage will,be, is it true? And if the confession is the only oviThnce against an accused then the court must decide 'whether 10 the accused has cdrrectly related wh t happened and the statement establishes his guilt w'th tnt degree of certainty required in a criminal case. This applies t o all confessions whether they have boon retracted or repudiated or admitted, but w'henan accused person denies or retracts his statements at the trial then this is a part of the circumstances of the case which the court must consider in deciding whether the confession is true." The Court concluded: 20 "we would summarize the position thus: a trial court should accept any confeEsion which has beqn retracted or repudiated or both 'retracted and repudiated with caution, and r.rnst bafore founding a conviction on such a confession b fully satisfied in all the circumstances of the case th t the confession is true. The same standard of proof is rcquird in all cases and usually a court will only act on the confession if corroborated in seme material particular by independent evidence accepted by the court. 30 But corrooration is not necessary in law arid the court may act on a confession alone if it is fulily satisfied after considering all the material points end surronnding circumstances tP 1; thu confession cannot but be true". I bear those principles in mind as I proceed to deal with the oidonco. In so far as the second accused is concerned, I note that his extra judicial statement is a datilod account of events tht happened prior to the killing and reveals the accu- sod's own state of mind and his attitude to those events 40 before he wont to kill the deceased. His reason for killing the deceased is shown in his statement as well as in !is explanation tohis mother (PW.2) and to the ward secretary (PW.3) whose evidence I have accepted as truthful. The evidence of PW.1 a substantially truthful witness, to the effect that the secen accused falsely accused the deceased of spilling "ulanzi" and that he there and then started to assalt the deceased inferentially tends to support the second accused's statcmat that he had gone there in order to kill the deceased. B oth accused persons have said that the deceased provoked thorn by threatening thorn with death adtcr tolling them th t 50 he was a wizard. I have, with groat presence of mind, considered their story in this court 9 and I am in no doubt at all that it is false to say that immediately before killing the deceased he threatened to kill thom. Hors woro two young men who had over-powered the deceased in the bush and were both assaulting him. I find it inconceivable that a men in such plight would boast, let alone threaten his captors with death. A men in such plight is/likely to ulead for mercy than threaten .-moreh S captors with doath. Then there is the ridiculous qtory of th secord accused 60 Lto that the deceased ran away in order/pick up th•., stick of barl.beo. Surely the second accused could not h....va thr own that stick as far away as throo yards L hundred Li -46- Thro is also the reaction of the first ccesed. If he had nothing to do with th; fight bctw'en the Joceasd and the second accused, why did he join in the chase w'en the deceased ran away, no doubt to s ye his life? A nd why did he take part in assaulting the deceased? There h'.d yet hcen no provocation against him so far0 In all the circumstances 1 ther:iforo., Iully satisfied that what the accused persons said in this curt were ridiculous concoctions. .On the evidence before me I find th t the extra judicial 10 statement of the second accused contains the whole truth. Likcwisc, the extra judicial statent of the first accuse& I am satisfied, was vountarly made. It gives the reason for rL the killing clearly. Ho said: "I decided to kill him because he used to kill many people for no reason. It is ,.bos ides ,a detailed account of how the killing took place. It does not mention any threat by the deceased. It infact says that the deceased as 1 ked for mercy. On full consideration of the st.tcmcnt and ±ho evidence 20 on record, I am satisfied th.t the first .acouscci's extra judicial statement is substantially a true account of what happened. The confessions of the accused persons more than doeenstra to that the killing was a planned and doliorato act. But there is also other evidence that shows that the killing was a deliberate act. It is the accused p.esons who, for no reason at all,. started to assault the ciccoased. T hen there is the disatance which the deceased ran in..is bid to escape death. The accused pors1s chased him for a 'listance of 30 333 yards. By the accused persons'own statements in t';is ceur,., the deceased cannot be said to have offered them any provocat on t that t14a0.. Then there is the nature of the 1Toripon usd enI the very brutal manner of killing. T hay broke lnost all his ribs, and stabbed h:ra to the heart and. lunps. As iEff that were not enought, they even cut his neck - almost completely severing it and hid his body in the bush. In those circumstances, even if I were to accept the accused persons story that they were provoked, rhich I do not, I do not •think that such provocation was such as to induce an or!inary man to commit assaults of the kind which the accused persons did upon the deceased in this c.se. It was submitted by the defence th t there w.s little c .......... . C evidence of a prior agreement between the first accused end thhe second accused as the only evidence on that q uestion was the extra judicial stat€ment of the second accused. I agree that although the cenfossio. - of an accused orson may be taken into caisidoration asagimst c'-accused 1- at a joint trial, such evidence is not only the evidence of 50 on accomlico, but evidence of the weakest kind. (Anyuna Omolo and Another v. P.opubli. (1953) 20 EACA 218) It must, thorofoDc, only be used as lending, assurance to other credible avid once against the ao-accused. (Gopa slo G.idamebanya and Ors. v. Rep. 20 EACA 318) In the instant case, however, it is not true th .t the corif e- ssion of the s :cond accused is the only ecvidcnco again t the first accused. There is the 'irst accused Is own cnnfssions ) 47 —47- to the justice of the peace and to PW.3.. Then there is the part t) od, at the scene: ho took part in chasing the deceased for that long distance, and also took part in assaulting the deceased even when there hd boon no quarrel between hiri and the deceased. Indeed, the firat accused is the person who brutally cut the doccasodt s neck. This conduct of the first accused acre than amply demonstrn.to that he was at one with the second accused. It is, therefore, clear that there was a prior agreement between the two ac•used persons.. 10 On the basis of the cone facts, I an. preapod to hold.., and do' infact hold, that there was comrion intention between the accused persons. On my on wiew of the evidence and the law, thcreforc, and with the greatest respect to the two gentlemen, assess ors T I am conclusively of the opinion that the killing of the deceased by the two accused persons was with malice aforcthowht, and that the defence of provoction is not cvoij,ablo to the accuse p:rsons on the facts and circunstencesof this case. On those grounds, I am, satisfied that the prosecution has proved its case beyond re"sonable doubt against each of 20 the accused persons. I accordingly find ch of the accused prscns guilty of murder, and I duly c'aeTict e 'ch of them o f that offence forthwith. B.U. Chipota TUDGE eliered in open court at Iringa this 28th day of April, 1978.. Y( ° B.D'. CHIPETA JUDGE Mr. Nsechu: I have nothing to say. The accused pesons are first offenders. 30 Mr. Mwai:ingwo: My Lord, I do not intend to address the court, let accused: My father died. My mother is very poor. I hove two brothers and two sistcr. Two ore .t school. Thcya all depend on me. My mother also depends on me. I am 'myself a sickly person, So I pray for t";.is cour tts consideration. 2nd accused: I have no father. My young brothers aroot school There is no one to support them,except my mother who is sickly. I was training in a technical school. I pray the court to take those matters into consideration. B.D. Chiptn. 40 JUDGE 28/4/78 -48- - SENTENCE You HBIL0 SIO NGA0 •ozid PETRO SIO MTDREA NG0 have been founcl guilty of this very serious offence for which there is no other penalty but death. I accordingly sentence each one of you to cic'.th, and you shall suffer death by hanping.6 • . CHtITA JUDGE 28/4[78 Right of appeal explained. 10 trTo rn B.D. 1 LJJ. L JUDGE 28/4J7 Assessors thanked and discharged. 24yë( Q B.D. CHIPETA JUDGE 28/4/78 .149