19820819 TZCA Dar es Salaam

IN THE COU.RT OF APPEAL . OF,, TANZANIA ;/jC MM AT DAR E.$ SALII\AM (CORAM: Nyalali, CoJ., J.1,lakame,_J.A. and: Kis 2 nga, J.A.) CRIMINAL APPEAL NO,. 35 OF 1981 1. 2 .. 3. ALLY AMRANI NGONYANI MOHAMED AMRANI NGONYANI ATHUMANI ALLY NGONYANI BETWEEN ! " 0 0 • :,·:" • 1 • O APPELLANTS 4. ZUBERI ABDALLAH CHOWO AND THE REPUBLIC. • • • .a • • • e O • 0 e • • RESPONDENT (Appeal from.the conviction of the High Court of Tanzania, at Mtwara) M{:ishi, J.) dated the 3rd day of_"·July, 1981, in Criminal Sessions Case No6 _____ , is of 1980 ' ·c, JU.QGMENT OF THE CQURII' KISANGA, J,.A.: . ' . This is an appeal against conviction for murder and the sentence of death pf'lssed on the four appellants :by ithe High Court sitting at Songea. The appellants filed a joint ml::imorandum of appeal, and at the hearing of the appeal they were represented by Mr. M. Ismail •i I while the respondent Republic was repre:sented by Mr. A., Mlewa;, Very briefly the facts of the casf:J as found by the trial Court are as follows:- The first and second .appellants ,, (Ally Ngonyani and Mohamdd Ngonyani) are brothers .. The thi.rcl·appellant Athul'nani I _I: Ngonyan± is the son of the first appell!ant+ and the fourth appellant II Zuberi Chowo is a rel:3.tive of the first:: appeil.ant on the maternal side. All the appeliarits lived in one village a 1 'Prior to the inc:identt the first appellant and his wife, Hatipa Saidi (P.W.1) had been living I apart for quite some time following a domestic misunderstanding between them.oue to that misunderstanding also Hatipa had petitioned I , • ' . the court for a divorce but without success. ' I At the material time Hatipa was staying in a separate house,at'the home of her nephew, Saidi Yasini (P .. Wo3), but in the·same village as the appellantso· ! ' In the meantime Hatipa was having the ~eceased as her boy friend, and this friendship had gone on for less than a year prier to the incident .. • o o ci:; o o ~ e /2 • • \ On the day of the incident Hatipa had invited the deceased to her houee fo~ 7he night and these two were sp:n-~ing the hight together 1 wheh some time after ·11. o•ciock that night th4 first appellant suddeniy called ino It w,as the first visit t~~, first appellant ever mad~ to her house since . they started living apart several . years backo The first _appellant identified himself and asked his wife;_ Hatipa, to open the do;or, which she did. Then there was an encounter in. t.:-.·~ cnurse c:::- which the deceased was killed and Hatipa was seriously injured. The prosecution alleged that it is the appeilants_who jointly attacked the deceased to· death and seriously inju~ed Hatipao The first appellant admitted killing the deceased and wounding Hatipa but pleaded self-defence and provocation as his defenceso The rest of the appellants denied involvement in the killing and claimed that they merely went to the scene of the incident in an-wer to an alarm. The trial judge rejected the appellants' stories and found that all the appellants jdintly set out that night with a specific purpose of killing the deceased. The learned judge further held that in that regard although tne deceased was found in circumstances which suggested that he was committing adultery with Hatipa, the defence of provocation could not be set up. He made no reference whatsoever to the defence of self-ciefenceo In arguing this appeal before us Mr. Ismail submitted in effect that the appellants' defences were rejected on insufficient grounds. The finding by the trial judge that the appellants jointly ·set out on the material night with the specific aim of kiliing the deceased seems to be without fotindationo There was no evidence or suggestioh whatsoever that any of the appellants knew of the adulterous association between the deceaied and HatipaJ What is even more is that there was no suggestion whatsoever that atiy of the appellants knew that the deceased was at the hou!:Je of Hatipa on the night in question. Then the pertinent question to ask is: in the absence of any such knowledge, how can it properly be said that the appellants organized themselves that night and jointly set out with the specific purpose of killing the deceased? In other words, how could the appellants have set out specifically to go and kill the deceased at Hatipa's house when they did not know in the first instance that the deceased was at that house? The conviction of the appellants was based largely on the evidence of Hatipa and her nephew, Saidi Yasini (PoWo3). In accepting and acting on that evidence, the trial judge did not consider the strained relations prevailing between the first appellant and Hatipa. There was abundant evidence that Hatipa no • e • e o o /3 • e ,. - 3 - longer loved the first appellant as her ~usband; in fact she had tried in a court of law to secure divorce f.rom him but with out success. The trial judge should have considered whether such strained relations might have provided mbtive for Hatipa to give an untrue or exeggerated account in ordep to implicate her adversaey~ the first appellant, and his relatives •. A ·similar approach should;:;;_;, : I. have been adopted with regard to the evi,dence of Saidi Yasihi to consider whether he might have deliberately told lies out of sympathy for his aunte To illustrate this point, referendk is made to the evidence of Saidi when he said that during the incident that might he pleaded 1: ' with the appellants not to assault thE d'eceased further and that the appellants reacted by threatening to kil;l him and by chasing him. He then went on to say that in the cciurse of the chase Athumani, the third appellant, threw a club at hiri). ,According ilo the witness the night was dark such that it was just possible to see a per~on about five paces away. One wonders how in those.circumstances the witness while fleeing from his assaillants, cou~d have identified the particular assaillant who threw the clup behind him. 'I There is yet another point to consider and that is this that the testimony of these two witnesses asi: to the assaults inflicted on .• the deceased does not appear to be born~ oµt by the report on the post mortem examination of the deceased. According to these witriesses the deceased was viciously attacked jointly!by I ., all the appellants using clubs and sticks. Yasini (P.Wo3) for iilstance saidi I "The accused used clubs and stidcs ' . to attack the deceasedo The deceased was lying down when he was being attacked. The accused were attacking the deceased on the head, ribs anq on his private parts. ·1 ,, . The accused repeatedly attacked the deceased". The picture as pafnted by this witness is one of severe assaults on the deceased by the appellants, and 9ne would expect the post mortem examination report to reflect such severity by showing ·. ' " the deceased as having sustained correspondingly many injuries. I But according to the doctor's report the deceased sustained only a multiple fracture of the skull with bleeding from the nose and the ear. No further injuries were detected,I; and .. the report specifically states that the genital organs were normal. -- . 4 Again according to Hatipa and Saidi the assaults on the deceased were not indueed by any act of violence on the part of the deceasedo That is to say the appellants were the ones who were on the offensive all the time. But the justice of the peace who recorded the extra- judicial statement of the first appellant testified that the first appellant had sustained a fresh wound or wounds on the arm and that the appellant informed him that he had sustained such injury as a result of an assaulto Once again the pertinerit question to ask is: if the deceased did not comm~t any act of violence on his adversary or adversaries, then how did the fi~st appellant come to sustain the said injuries? It is emphasized that for the re:isons as stated above, -h there was need to scrutinize closely the 2vid~~ce of Hatipa and Saidi before accepting and acting on it. Thi~ the trial judge did not do. To the extent of such omission he was cl;early in error, and we are unable to say that had he properly direct~d himself he would necessarily have accepted and acted on that evidence without any reservationso Mr. Ismail submitted that lhe defence ve·rsion represents the true account of the events that took place on the fateful night. This submission is not without merit. The second, third and fourth appellants said that they merely went to the scene bhat night in answer to an alarm which was being raised at the house of Hatipao This would appear to be concr.5~:ent with the fact that no evidence was led to show that any of :-.he appellants knew that the deceased was at the house of Hatipa that night. For, the question as posed elsewhere in a slightly different way is: how can these appellants, in conjunction with the first apr,,llant, have organized themselves to go to kill the deceased at Hatipa's house when it is not shown in the first instance that any of them knew that the deceased was at that house? On the other hand·there was nothing unusual or surprising about their going to the scene, as they •:J · claim, because as persons who lived in the same village as Hatipa they were expected to answer the alarm which was being raised at Hatipa 1 s house. As regard the first appellant his explanation was that as he entered the house of Hatipa, his wife, the deceased suddenly emerged and attacked him with a stick on the arm. The appellant fell down and as the deceased continued the attack~ there was a struggle with each other in the course of-which the appellant managed to snatch the stick from the deceased and, using that very stick, he hit the deceased only once and the deceased fell down as a result. He could not tell • t ii on •ich part of the booy of the deceased the blow landed. - 5 ,i' "11 [1 This story ' ,! !'. appears to be consistent with the evidenqe that the appellant was founcl I , by the justice of the peace to have sust~in~d a fresh wound or wounds 1f ,. on the arm. Again the story seems to be i;cohsistent with the injuries 11 \ detected on the deceased. As shown earlier:the 1i !, medical report says 1: :1 that the deceased sustained a multiple fracture of the skull with 1 bleeding in the nose and ear. This accot,ds with the story of a single blow on the deceased using a stick as tofd 1r fY the first appellant. 1, , I ,I ,I Thus it seems to us that the appellant's version that he hit the ii il deeeased in the course of a struggle wi ti h'tm might possibly be ·:· ; I true; at the very least it casts a reasor1lab le doubt on the prosecution 1 1 Ii 1 case, and the appellant is entitled to t~e penefit of that doubt. Since , I . the appellant used the very stick which fhe!i deceased had used against him, and since he struck only on~e,I apparently in order to stop .! ; the deceased from assaulting him further·, triis amoutlt of violence ij [1 cannot be said to be excessive in relati~n I 1~ o that offered by the ,1 deceased. In the circumstances we think:/ th!~t the defence of self- defenr.e was open to the appellant, and t~e II.earned trial judge was wrong in not considering it at all. I'I , I 'I Mro Mlewa the learned advocate for:: th;b Republic at first ' 1, 1; · 11 supported the conviction but on second t ouphts he changed his mindo For the reasons given above we are satisfie,ti that the conviction is 1 ;/ !11 bad and that it cannot be allowed to sta?d•i We accordingly allow the appeal, quash the conviction and set asi~e .the sentence with an order ,.1 I that all the appellants be released forthwi:~h unless they are otherwise lawfully held in custody. . ! i . D A J ! ' ~ ~ M M this f'l1'-. .· O · o \ J~y, lof~lj f j 1I . 1982 • ... ,;(;> ,· i, A.. .. ~ ·:i /) t~ ' t/' .-i.\ ..• ~. (F. L. NYALALI) :11 !1 ll \~"-1:, ,' ' ·' r ',~f).t CHIEF JUSTIC; ~'-~.;::-..._ --- * -·•' ~ ,./,/ / :,1 ~-✓ (L. Mo MAKAME•.~ : JUSTICE OF APPEAI./ - - - - - - - - ·11 - 1'11 j :i I 1,: i1 ti jl I (Ro H. 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