lukio eliezeli vs republic 1980 tzca 102 20 november 1980

CN THE COURT OF APPEAL OF TANZANIA -7' AT ARUSHA t:^ Nyalall, C.J., Mwakasendo, j.A. and Kisanga, J.A. ) „ -----■-- — --------- 2----------------- : ---- CRIMINAL APPEAL NO. 15 OF 1980 B E T W E E N APPELLANT |5 ? ® W EL1 AND lIJlEPUBL EC' RESPONDENT '.(Appeal from the conviction-and sentence of the High Court of Tanzania at Moshi) (Maganga, J.) dated the 29th day of . j February, 1980, in Criminal Sessions case No. 55 of 1978 j}.., JUDGMENT OF THE COURT 'AKASENDQ, J.A.; ' r “ ■ I,The appellant. LUKIO ELIEZELI, is the son of the deceased, k. n ‘ ■ < EJSELI KILAVO." He was convicted by the High Court sitting at w-f"''.iv■? - S^M.- of -the murder of his fathev: and sentenced to death. His appeal ^Oljejus has been ably argued by Messrs Kinabo and G. F. Mlawa, '«■*' - L” “ned courtsel *for the appellant and the Republic, respectively. “ •■.i ■i- Ch^H<|public called a number of witnesses to prove its case '\ ! k ’ '*'1 1 r ,<? 's appellant, but suffice here to refer only briefly to iid6nce of three witnesses for the prosecution. These ilUti ’ ** Ms ’ es are BERNARD GODWIN (P.W.3), DR. FADHILI YOHANA MNAYA ,5'). and MUSTAFA MLAWA (P.W.7). Bernard Godwin, a relative ?jeS* 1 the''appellant, told the trial .High Court that at 6.30 p.m. 4 Wk - .-on^5th March, 1978-, while passing outside the deceased's r’ ' / iomestead'he heard the appellant quarrelling with his father, J,;? i ' 11 feceasedj.,-, Bernard did not say what the quarrel was about. P(> 1 ,>: the same-.evening Bernard was walking towards the deceased's *jvV ' ■ stead when, as he says, he saw the deceased lying outside V" At about the same time he heard the appellant pmesteadi r4Qi^e!,me a knife" and threaten to kill anyone who raised H*-? Bernard then described the events that followed in these ^ 2 - "We moved aside and after sometime he came and told us to cover the blood on the ground with earth. He was still alone. There was a lot of blood and we covered 1 it as instructed* I was with Fecha. We used a spade ' to coVet the blood With sand* £ did not know where the blood came from but £ sUspected it came from accused's father because I heard the accused talk of a knife and slaying. When we covered the blood the deceased's body was not there. I did not tell anytoody of what I had seen as £,ukio had threatened that he would kill us if : we talked, I did not see the deceased again till when .his body was discovered in the pond. I saw the body. The body was !tied with a rope to a stone. The pond where the body was found is about % a mile from the '• deceased's house.". Fadhili Yohana Mnaya in his evidence told the trial court V 1 S’,' « | l 1 kf-jjl’f l ‘ how one day in March 1978 he was called to Kisanjuni village and ’S' > *1 there witnessed a body of a male African adult being fished out of - t H'. '|]&!' ■ i a popcU "According to Dr. Mnaya the body was 'anchored by three IJ-i fii* S;toHes>! :v »A :■ 1with a nylon string around the waist and a sisal rope tiediloosely around the neck and legs'. The body was identified to th“e doctor by the wife of the deceased, ELIAZINA KIBARUTI (P.W.l) % *> ,11 V as^'that of her husband, ELIEZELI KILAVO. The doctor then conducted avpostmortem on the body. As a result of his postmortem examination Dr'.,:Mnaya formed the opinion that the death of the deceased was tit to>haemorrhage arising from a complete severence of the du^i? ‘ toJSsif> „ parratoid, arteries and jugular veins. Be it noted that both f e W ii 1, *4 1 . I ilspf pi^’|iden'U.fication Jden of the body and the postmortem examination I. were’'carried out in the presence of RAMIA KAHUQWANA (P.W.6), jifc , t ^Ipolice investigating officer. >t I , other important witness called by the Republic was Mys'I^PA MLAWA (P.W.7), a Justice of the Peace. Mustafa Mlawa told rV'4-'• ;ourt*:how one day in March 1978 the appellant was brought to :hambers and how, upon examining him and being satisfied . he was a free agent, he allowed him to make a statement Kf :,e him. t Tills sfcate»ent wbs clearly a confession by the •jj ^ 1 V ,lant to the murder of his father. At the trial, however, ippellant while admitting that he made the statement he was jed to have made be£ox~e the Justice of the r contended that - 3 - statement was not a voluntary one as It had been obtained ferom him by and under inducements and tortures administered ijpll 'i, f" 1 by the police at Same. In view of this retraction of the extra- K ■ , judicial statement the learned trial judge ordered a trial-within- i( S fj if: 'i a-trial to be held in order to determine the admissibility of this I. '" ' statement. This was done and at the end of the proceedings of the trial-within-a-trial, the learned trial judge ruled the statement I Voluntary and accordingly admitted it in evidence. Mr. Kinafco, learned--counsel for the appellant, has strongly criticised this -Ifci ■*' 1* decision of the learned trial judge. He has submitted at some length as to why he thinks the extra-judicial statement should t • " V ,,. nojfc -have been held voluntary. He has pointed out that while thei.’trial judge was entitled to hold the statement voluntary and:therefore admissible in evidence, it was wrong for him to find , i.fl' , the'appellant guilty on the basis of this retracted statement : .without there being any other evidence to corroborate it. In counsel's view, there was no material evidence on record to corroborate 1 'appellant's ^ fr.P.S I* -. *.'- retracted statement, ' counsel cited the case of TUWAMOI ■ ^ , ■ — versus UGANDA (1967) E.A. 84 in support of his!' .arguments. While we appreciate the stand taken by the counsel t" ^ .’ for ;the appellant in this case, we are unable to agree that the learned trial judge erred in any way in his consideration of the ” : 11 retracted •extra-judicial statement of the appellant. The rule M ijS' V of practice enunciated by the Court of Appeal in the case of ps- •TUWAMOI versus UGANDA seems to us to vindicate the learned If'/ ' 'trial judge's action in this case. At page 89 of the TUWAMOI Si;i . ... sversus UGANDA case, Duffjus, Ag. V.P. speaking for the Court ‘of Appeal said:- "The present rule then as applied in East:Africa in regard to a retracted confession is that as a matter of practice o£ prudence the trial court should direct itself that it is dangerous to act upon a statement which has been retracted in absence of corroboration in some ..;«iaterial particular 'but that the court might do so if it is fully satisfied in >* the circumstamdes of the case that the confession is true.". ---/4 - 4 - Looking at the judgment of the trial High Court we are 'satisfied that the learned trial judge was at all times fully ^conscious of the danger of acting upon an extra-judicial statement of the appellant which had been retracted and thus looked for fc; Tjpprroboration before convicting. He found adequate evidence to t§ E^orroborate the appellant's statement to the justice of the Meace in the evidence of Bernard Godwin (p.w.3),. Eliamini iSalehe (P.W.4), Dr. Fadhili Yohana Mnaya (P.W.5) and Ramia ^Kahugwana (P.W.6). in any case, it appears from the judgment pii'at ;the learned trial judge was quite prepared, after considering |pLl 'the ,material points and surrounding circumstances of the case, |to' act on the appellant's confession to the Justice of the Peace and”convict, because, as he \ says, he was fully satisfied that the |r-: . , ’appellant's confession could not be but true. Ifk-' "» mvv With respect, we cannot find anything in the learned ^judge’s reasoning and conclusion in the case which could be condemned as erroneous. 4* Ij . t We accordingly dismiss^ this appeal. t1 & r*t s .v a c. ■‘- * V, if. - 4.- / • t<DATED at ARUSHA this 20th. -day of November, 1980. ,V, 1: F. L. NYALALI 'V '’ ,' ' CHIEF JUSTICE V Y.M.M. MWAKASENDO JUSTICE OF APPEAL • z . R. H. KISANGA yy ; Justice of appeal i, vv --------------- 11. i'' 'W .’-I, !I'certify -that this is a true copy of the original i "\ ^ V'•A\ Vv ,A>\ \ > ^ ..-i • ( H. A. MSUMI ) SENIOR DEPUTY REGISTRAR