19831020 TZCA Dar es Salaam

IN THE COURT OF' APPEAL OF TANZANIA AT CRIMINAL AP~);:";AL NOo 53 OF 1982 ,:j BETWEEN 1o PANIEL Ll~ZAKO 2a ·ONESAEL MKUf.IBWA) 0 O o 4 0 0 0 • • 0 APPELLAN'.l'S 3., OBADIA KIZM1BIA) AND THE; REPUBLIC • o o o ., o • • o • o • o o • ., RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Moshi) (M-wakibete, Jo dated the 13th day of September, 1982 in Criminal Sessions Case No. 38 of 1980 JUDGME:NT OF THE COURT The three appellants, PANIJ-:::I, LAZARO, ONESAEL MKUMm-JA and OB/,DI/, KIZAMBIA, were convicted by the High· Court sitting at Noshi of the murder of HEAVEN i'1K~/ABI and S<:mtenced to death. . ' rhe three appellants were represented before us by Mr. Mo C., Triyedi, ·learned advocate, while M~. flia H. T., Mtingele, -learned Stcte Attorney· appeared for the. Rep~blic. ¥..ra Triyedi has put forward two main arguments against ·the f_incling of the. learned' .. trial judge. . ' First, I'-'i.r. Tri ve_di complilins agains-t;' th.e le~rned trial judge for ignorir;i.g to consider and give due weight to the evtdence, r_~la~ing: to the- c:ti~g~tion that_j:!°)e decea_sed had take,n poison on the :material day and secondly, f'J,ra Trivedi, cr.i tic,:ises the learned trial Judge for bel-ieving and c~t:~ng on the. evidence· of .-·the witnesses fo'r :t~e pr_6'secution, particula,.:-ly th.e evidence of PaW~2, P~Na3•and ; . ' PoW.4.· , . • ,.,. I" ,. . 2 These witnesses are INVOCADIT KISAl"iO, a ten cell leader; RE.EE.Ki\ HEAVEN, the widow of the deceased HEAVEN i'1K•:ABI and ELIE.SHIWAKWE HShVEN, a child of tender y-:!ars of the decea.sedo We will start by considering Mro Trivedi' s first coniplain_to It seems quite clear from _the evidence of JUDI CA l'~RuN (Po Wo 8) and l<:AN/,SE HA.MI SI (Po il-io 9) that sometime in the evenino. of 7th FE:bruary, 1979, Ri:BJ:::KA, the wife of the deceased; spoke to them about her husband taking poi so no Jlf:JICA AR.OH told the court that. in the evening of the day in question he was walking home from i\ioshi and when he got · near the house of the deceased he heard REH.Kl\ raising an. alarmo He went to the house of the dece_ased and found RSBEKA crying~ On asking her why she was crying, she replied that her husband had taken poi sono JUDICA "RON madi:! this point ~ven more emphatically in answ8r to a question put to him by the second i;ISsessor when he said "F.vV.3 (that i.s, REBEKA) said she quar_reled w_i th the deceased when t})e deceased took poisono I did not question her furthero I could also see froth fro1£1 the· deceased' s moutho PoWo 3 and deceased used to quarrel now and theno "o ' . fv1ANASE HAMIS~ too, adverts to the ;i. ssue of poisoning in J-:iis evidenceo MANJ;,S:C: t_old the court that on being inf6rmed by JUD.ICA that the deceased had taken poison he acco111panied hi·m to the hous_e of the deceased a-nd there found the deceased in a critic al condi tiono MANi\.'.:iE deposed fu,rther that hi: believed that the deceased had taken poison until much later when he · became awar~ of the findings of the post-mortem. vJe may pause here and obs~rve .in passing how significant that these two witnesses who were put forward by thE! prosecution a.s witnesses of . . t~uth and ' ' were accepted . as s_uch. by the court, make no reference at all to the alleged assault:· pf the. deceased by the three appellant'so If ., what . REBEK.t, ,KISAMO . and ELIESHIWAKWE - . say in their evidence were true.~ we wonder .why JUDICA and Ni-i.l\lASE ••o<!~/3 sho.uD.d. choose., to Q_uppr-1cs~ such vital info,rmatio_no N<:!i ther ... :.. ·..: .. -;. . :"::;. . . . •.V.'itn£ss. .. . . is related to .. any of the . appellants . . ar:iq. as;. we µ_nderstand the evidence on record, nom, of· them haa·any interest whatsoever in ·the death of the deceascdo We ·are, of course, aware of the · aliega.t;ons.. which were made by soi:ne of the wi tnesse·s of the prosecution that the deceased was b.ea ten because he stole JUDICi.\' s hen; but wi·th respect, we do not think much of the St.:! allegations', particularly as.this important n~tt2r in the case was never put to ·JUDICA. f.0r him to comment. We are al.so aware of the evidP-nce by !-'J.NASE given in answer to the court' th2t the following ~orning REEEK.A·. named· the three appellants at a village assembly meeting .cal.led to investigate ' .. . the . killing, . as the killers of her husband. . . \'ie do. not thi!-1,k this piece of. evidence should have , been believed ... . . nnd acted upon as the learned trial Juqge appears to tiave done• in .view of the fRct ~}?at REBEl:(l:, i:n her- _own ev:i,df,:!nce makes no mention of the village assembly 1:-,nci_dent and, in. any case, RE~~KA in he.r eviden~e de~i.ad telling anyltlody the st0ry that her husband had taken • • • ·poison t on the mater_ial day: "It is not true that ,r. told JUIJICA that th~ deceased had dr\1nk poison", she. is rec6.r,ded as emphatiqdly .. . telling. the c0urto We think it is hardly··-reasonable ,, in the c·trcumstances to suppose that REBEKA Co',lld h_ave Si'iid ,-,hct. fv"IANASE alleges she said at the village assert'lbly. But mo~e of thc1 t later ... To revert• to the story about the al le_ged taking of poi so" by ,the dec€as~d ,. it may be not~.,d that both the si:?cond ·and third speak about this matter in their evldence. The'· second appellc1nt in his evidence sa:i.d that in ·the eveniM 1n . . . ~ . I question he went to the hous~ of the deceas(.~d in answer -to an elc1rm raised by REBEKA and tb':'!re he found a group of people among whom were JY11\N1,3C HAMISI I JUDIC,._ ARON.t KISAI'-10 and l:IBBEKA. The deceased was also there but in a .critical .condition .. -~•·•oo•/4 4 .. He said furthe.t, tha't he heard REBEKA staH~ that her husband, the d~ceased, h_ad taken poisono .The third appellant also went to - ~1e house of the deceased as a result of an alarm raised by RLBEKA 0 Like all the other persons who testified· aboGt the issue of poisoning, the third appellant ai so hec3rd R,mEKA say tha.t her husband had taken poisono In dealing with the evide·nce relating to the a lleqed biking of poison by the deceased, the learned trial judge dismissed the matter briefly in these words: "The suggestion that the deceased maY well have· died of poisoning was not put to Dro Mponezyao In any e~~nt ~here was no reliable evidence that the dec~ased had taken poisono Those who made this pr.oposi tion were the accused persons and the ai'legP.d owner of the chicken the deceased was .said to have stolen. These people i:-1cluding the village chairman - one E:mrnanuel Alelumbwa - who was called a·s a defence witness and ·who incidentally is related to PoWo8 - .the two being TAR.Ii';:os - ass~i:ted that the deceased' s wife (PolJo3) had told them that the deceased had taken poisono"o ,. .on .evaluating the evidence on record relating to the question wheth.~r or not the deceased took poison before he died, we think that :there was arhpl<-= evidence pl ai:ed before the court to establish the i~sue of poisoning as an important factor in the determination of .the cause 'Of death of the deceased • . Even if we wer.e to · ' ' d~sccunt the eviden~e on this matter given by the second and third appeilants, we viould_ still be l~ft with the compelling evide.nce of JLTDICA ~nd M,\NASE., both of whom wer,~ apparently con;sidered 1 by the learn_ed 1:rial · judge to, be witnes·ses of trutho Once these vJi.tne.sses, are_ acc~pted as wltnes·se~ of truth, as. the learned. trial judge appar,intly did, we Cannot· see how their. testimony on the ' ' ~ isr.ue of poisoQing can merely be wished away as if it did not exist oh the recorda ' ' Whatsmo_re, this issue of poisoning becomes even more crucial to the determination of the case in view of the ~ompl~irit raised by Mro. Trivedi reqarding the omission from the record of t::vidence given by DRo HAfJiISI MPON'82YA {P.Wa1) when he was 0 0 0 0 /5 ~ ..: t· receiied by thP court to give furthe;.:· evidenceo .Mr •. Mtingele, learned· State At torn0y, confirmed to this court that Dro HAMISI- r.-;FCNEZYA was recalled by th<= l;u\.:.~·;; and the court and Mro Triv,~di put questions to himo The recorti' of the proceedings at the tria.l. • is silent about thi·s and there is no statement at all on record· reiating to the evidence which Dro JViH)l·d;.::YA is alleged to have 9iven on being recalledo Mro 'rrh,,:cti told us that on being recalled thE doctor said something about the issue of poisoning but Mro l'•,tingele could not remember what the doctor said. In short, because the trial court's record is incomplete, we do not know what the doctor said and we are therefore not in a position to say if what he is al_lf::gad to have said was in favour of the appellants or not. But one thing seems clear to us, that is, that we cannot on the evidence on record completely dismiss the possibility that the deceased might have taken poison immediately before his death. The second complaint raised by Mro Trivedi relates to the issue of credibility o:f KISAl•iO, Ri::::1:3r.JC; and ELIESHFvAI(iiEo Th2se are the witnesses who say that they witnessed the three appellants beating the deceased.. KISAl\'iO in his evidence said that in the (:;VEming of 7th February, 1979t one TASIMBORA -!lJDICA, the wife of P.Wo8, informed him that th•~ dt.~C('lased and his wife were quarreling over a hen which REBEKA was refusing to cooko rASII•1B01~A asked him 1 to accompany her to the house of the decl3ased and KISAi-10 agreed to do so.. On reaching the house of tht:.> dect~ased KISAMO saw thG three ar,pellants beating the deceas2d with stickso He tried to stop them from attacking the deceased but the th.r'(,!e apnel1ants paid no heed to him.. Aft~r that KISAMO went to the house of JUDIC/\ ARON, the cell leader of the deceased but not finding JUDICA at home he proceeded to his own home .. With respect, we cannot understand h th:is witness's behaviour. We think it odd that instead of calling upon the ten peoplr-.: who w~_re prese,~t a. t th'"'! scene to come to his assistance to stop the three appellants from contin~ing to attack +J,JL 4c,,~,S.~., ~,.. ~~\ ~ ~- ~ \) "k_.o~e , - ~ - Even if th·e ten people- at the scene were unwi_llin¢ to help, wouldn't any reasonable villaqer in the circumstances have raised an~ alarm to rouse the ·v::.J_ 7 ,"'"Oe to coMe · to the scene? We think that is what any other ordinary villa']erwould have done iri the circumstances. Was KISAMO then a. truthful witness? The learned trial judge thought he waso we·do ndt think so~ His evidence is so contradictory and inconsistent th.at we do not think that any reasonable tribunal would place any reliance on it·o To take only one example of an obvious contradictiono In his evidence-ifi- chief KISAr10 said "I did not personally see the deceased' s wife" but in answer to questions put to him by~~- Trivedi he is recorded as saying "I went to deceased' s home to try to reconcile deceased and his wife ( REBECA) o REBEKA was thereo Yes, I asked REBEKA as to what ,was happening" o With regard to REBEKA we have seen how in• her testimony in cou~t she categorically denied telf-ing anyone that her husband had taken poison and by implication denied attending any village assembly meeting convened to investigate the killing of her husbando Thus her evidence about what happened on 7th February, 1979, is completely inconsistent with the evidence of JUDICA and Mi-.l~ASEo She stands aloneo When REBEKA was asked why her ten ce 11 leader and M/J'JASi:; had told a story which was different from hers, she is recorded as saying in reply "I never went to our ten cell leader (JUDICA) to complain of anything- that day. I had gone to hospital that dayo· Any story to the contrary could be lies"o Be that' as it may, on evaluation of theJI! evidence we are not satisfied that REBEKil. was a \vitness of truth and we think the learned trial judge should have so treated her evidenceo That leaves only her daughter, a child of tender yearso E.LIESHHJAK.;E gave a very brief and ::onfused account ·of the incident which r.asulted in her father's deatho She told ,a story about·some·black:- chicken be1n0 cooked and eat€!n by , ... . 7 . her f,ther o.nd then sucLe_nly began to n2rrate how her father was beaten vvi th sticks by the three appellants. She did not say how the three appellants hcppened to be at her father's house or what they sai~ or did before beginninc to attnck her father • .According to her the beati...'1.g of the deceased took place while she and her mother alone were present. That is about all the evidence we find fror.:i this vvitness, a child of tender yenrs. Since, as we hnve found, both KIS!J',10 and REBI1Ui., were most unsatisf::::ctory, if' not untruthful w:;_ tnesses 9 it seems plain to us that ELIESHIV!li..ICWE 1 s evidence cannot support the conviction of the three appellants for murder or any other offence, for that matter. In the event, the conviction of th~ three appellants cannot be sustained. We allow the appeal, quash the conviction of the three appellants for murder, set 2side the sentence of death and direct that they be released from prison forthwith •. We order accordingly. this 20th t::.~r of Cctober, 19830 Y. M. M. M1.7J.JCASEKOO JUSTICE OF APJ?E/J'.i L. M. MfJ( .r.'IB JUSTICE OF APPEJ:.L R. H. KlSANGA JUSTICE OF APP:81JJ copy of the original. SE1:UOR DEPUTY REGISTRJ=.R