19840508 TZCA Dar es Salaam2

. -;,· ... .,~:~·. · IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: NYALALI, C.J., MAKAME,. J.A. AND KISANGA, J.A.) CRIMINAL APPEAL NO. 40 OF 1983 BE'IWEEN SALUM s/o OMARio • 0 .. • •o • o • • APPELLANT AND THE REPUBLIC • • • • ,. • o • ., RESPONDENT (Appeal from the conviction of The High Court of Tanzania at Shinyanga) ·(B. D·. Chipeta, J •. ) ·dated the 4th day of August, 1983, in Criminal Sessions Case No. 49 of 1979 JUDGMENT OF. THE COURT MAKAME, J.A.: · The ·ap·pellant, SALUM OMARI, was sentehced to death by the High Court Sitting at Tabora, (Chipeta, J.), consequent upon h·is conviction for Murder. He is now appealing against that decision and_ he is'represeryted before us by Mr. Rutagatina, learned Counsel from the Ta~~ania ~egal Corporation •. The respondent Republic is represented by Mr. Ndolezi, learned State Attorney. The evidence relied on by the trial court to convict the appellant was purely circumstantial. The person alleged to have been killed by the appellant was a woman calleq NZILE MAGANGA, the appellant's divorcee. Skeletal remains alleged to be those of Nzile were found in the bush some four hundre~ yards from where the Prosecution alleged the deceased-was last seen alive, lO=ked in a fight with her former husband, ,the -appellant. The discovery of the remains was said to have been made about three months after the alleged encounter. The appellant totally denied the allegation that he killed Nzile and he· put up an al~bi, asserting that at the material time })e was a long way away, ,visiting a s,ick friend called L... •.• .... /2. ,;;J 2 - 1t LUGENZI SWEHELE at Bukene in Nzega Districto The various circumstances which persuaded the learned trial judge to fi'nd that Nzile was dead and that she had been murdered by the appellant have,. as their pivot, the testimony of PoW.1 MHOJA MASELEo This witness told the court of trial that one afternoon· in July., 1978, at about 1 porno, as she and Nzile were walking- home from a pa·ddy field the appellant, a man she had known for about seven months, and whom she recognized as being Nzile's husband, came running from behind themo · He was half naked, wearing only a pair of trousers, and carrying ,I a bag co.ntaining a shirt, and. a Pamga. He immediately hit Nzile with the flat side of. the,panga and knocked. her to' the ground. When the appellant was sitting on top of Nzile PaWo1 decided to go to the iatter's aido She picked up a stick and niade to hit the appellant w'ith it,' but the appellant thwarted this by wielding the panga at her and threatened to slr.ish her with it. PoW.1's courage failed her, so she ran home raising the alarmo Home was about . one _,.. mile away and by the time she and some villagers reached upon: the scene, about an hour later, neither the appellant, nor Nzi:le, was thereo Nzile's clothes were, but not the appellant's bag, sh~r.t_, ·and pangao Nzile has not been sighted alive, since. The crowd of villagers which converged upon the scene searched for both Nzile and ·the appellant but• the search on that day, and for a great number of days thereafter, p~oved futile. It was not uritil several weeks later, on 5th .October, 1978 that some . 1· ' people, inciuding PoWo2 KABADI NEKWA and P.W.3 NEKWA MIHAMBO, respectively Nzile~s father and brother, who were continuing with ·the search, came.across the sorry remains of what a doctor, P.Wo6 BRUNO MANpE, confirmed to be those of a human betng. There were I • , a, 0 • 0 0 0 0 0 / 3 ••~ I - 3 -· no clothes aroundo Of the human being, what remained were the complete skull, some ribs, the tibia and the fibula,.and the thigh boneso Practically all the flesh had gone, except for the dried-up muscles of one of the legso A foot had the' toes, nails and dried-up_- skin intact, and both Father and Brother said they were satisfied· that these were those of Nzile.. The toes were short and spread out, like Nzile's were, and according to PoW.o3, the sole was wide like PoWo3's, and the he~l was n9rrow. A note made by the learned H:Lgh Court judge during the hearing, that PoWo 3 "toes fanned out·" would indicate: that the trial court actually examined PoWo3's feeto The doctor, PoW.6 1 corroborated other evidence that the skull had sustained a cut and it was his opinion that the cut had been caused by a sharp instru~ent. The appellant was no where to he seen for several days and enquiries made at Kil ago, hL · . .:.::.-. village, three days after the_ . alleged encounter related by P Wo1, revealed that he had not been 0 seen there either, for quite some time. He 'was arrested by the Police on 20th August~ 1978 but, because the fate of Nzile had not yet been known by then, he Wes only charged with kidnapping. In his defence the appellant made a brief and rather laconic unsworn· statement to the effect that he was ·at Bukene on .June visiting ·"the witness I have named as he was ill o." When he was arrested he denied having kidnapped a woman .. i _In the said unsworn statement .·he makes no mention of the allegations made by P.Wo1 nor of the charge of killing Nzile. The learned trial judge took the statement to 'be some ulibi, quite rightl~ in our view, even though the r::.:.;-:.th of June was not quite relevanto He considered the alibi and decided that it ·did not raise any_ doubt in his mind. __ ' ·,,( 4 -· ' At one stage the hearing had to.be adjourned so as to afford ,.I the Defence : opportunity to call the wi tne.ss,! L~'genzi Swehele, " /'1\' ~--~ :.~ ! - evidently the man the appellant sa:i.d hP. had•: been visiting. This :1 ' was presumably to come and support the alibi. I ,t iI After interviewing •I I Swehele, howe~~r, Miss Bayona, learne~ Defe·hce Counsel, abando~ed the I idea -because she said, the would-be wi tness1 would not be helpful. I i I i I I 11 I 11 The Lady assessor. who sat with the learned judge expressed I :i 1: the opinion that the offence of murde] had lbe ·n proved against the 1 I . d ge analysed and ,considered appellanto · The learned JU . the 11 t o t a 1 l.• t y i: : of the evidence, J.n a commendably balanced jmanner in our view, and I il ... , .... ·,,. .ll 'f;/ti';· h th f" · 1t 1 . if . I' i . .·. .-; . was·sat~s ed t a t e inger of gui 1.rres1.stably po nted at, l : and rea:Cheti ,, . the appel 1 ant,, ! i ··' '., .-\ ,_.,,-,'/;,/·· - I i · ~tli. 1,~1.1tagatina sought to fault the Hicgh 1Court decision on a i numei ··~,:e£. g r.ound s , which we par a phr a SfI and Isutmari i ze thus: Th ere wa-s ·ntrt\~·;~ugh conclusive ~vide:ice oni which,1 t~ base the finding r·_::\ ., .· I l1 i .. · that Nzile is infact dead and that the ske]eton found in the bush was really that 0£ Nzile o I Ii In any event.,· ev,en if Nzile is inf act I I I I -1 dead, there is no proof that he was k~lled !byj' the appellant who ' I II ' has put up a good alibi. Undue reliance was placed on P.Wo1, an .! LI unreliable witness who had, at best, unrP.liable opportunity to I 1r I I • I • I observe properly and identify the assailant 1n what must have : It , 1 • been a very short time, in the thick bush andl1n frightening circumstanceso I ~I: It was wrong to rely ,on· moiiive for which there I was no .tenable evidence, considering (hat ~he appellant still ! l 1 i [ .1.e an d was i n t ent ,upon 1 oved h i s f armer WJ.• .c . i ,I ' .r:-esuming • cohab1tat i on with : 1f : hero Even if P W 1 told th8 truth, Mr o Rutaga tina al so submitted, O O I~ i1 there was n0 reason to think that the; appellant would have wanted to I ![ :1 snuff off Nzilc' s life - he was rnerel'y trying1 to persuade her and it 'I I l , oOoo/5. ii IJ ·, .. ~ '' - 5 - 1 ' is possible she might have left the scene and met her death elsehow .. There· was also the complaint that the learned trial judge erred in taking into account what was said to be opinion evidence of PaWo2 and P~Wa3 as regards the instrument used to inflict the cut ori the skull and also that it was improper to make reference to objects, iike the pasdy, clothes and panga, which were not produced in court as exhibits. On behalf of the Republic Mro Ndolezi ,'submitted that even though the evidence was clearly circumstantial the High Court decision is supportable and sound, taking into account all"the evidence properly considered by the learned trial judge. As we remarked earlier· on, the testimony of P.,W.,1 is at the centre of things around wh:ch the rest of the evidence must hang, if at allo If the evidence of P.W.,1 is discarded the rest would collapse, in our view. Mr. Rutagatinc h3s pointed out to us what he thought were indications that P.,W.,: was unreliablea The~e was for example her claim that she went back to the scene with the villagers while P.W.,2 said she did not, and the f3ct that she said the appellant's shirt was no longer there where a;; there is evidence that. the appellant's shirt was found at the scene. ' We have given careful thought to these matters and having done so,. and taking into: account the trial court's impression of P;w.1, we are satisfied thot the encounter spoken about by P.,w.1 was not imag:l,.nary: The appellant did accost Nzile as alleged and, cons:.dering the circumstances, we are satisfied ' ·. that P.W.,1 was correct in a:1 the. importan~. details~ It was broad day light, early in the afternoon, P.,W.,1 had known the appellant for some seven months previously, and had the courage and presence of mind to face the appellant and try to rescue her companion. e oi Cl • D O O / 6• 6 nnt • This could/have been for only a fleettng moment and 'foW 1 was, 0 on the evidence, not so frightened as hot to be able to see and I I,• recognize the appellant, and be in a position . later to recount what 1 'I .1 had transpired at the scenea We are satisfied that P.W.1 did lead I I ,, the crowd to the sc~ne and, cons:i.dering that there were very many 11 • •I · d t·na t s h e Id.J. d peop 1 e, we are no t surprise 'I t;,no t.ice th e s h.ir t ,. no which was thereo Having i r i accepted P.W.1's•J:story, as the trial 1 I I court did, we move on to Mrn Rutagati~a's . s&ggestion !f that if the ,, I appellant was at the scene he was merely tryihg to persuade and win back Nzile, as he had done before. I "Persuade". ;: would be grossly 11 i f' i , 1! ·I to understate what the appellant was engaged oho You do not persuade a former wife . by felling h~r down andlsitti~g bn top of her. I I i 1 We . ' . ,'[ I i ti' ,: cannot accept, either, that the appellant might have left Nzile I 11 , ' !t' I I I I safe ari so•:nd and she tiied elsehowo 'Not if we try to relate this, . jf I as we do, to the appellant's behaviour and ithe way he demonstrated II I I, I'11 :I his willingness anc readine2.s to employ thJI. panga against P.W .. 1. N zJ.· 1·e could no t 'navr~ 1 e~cc - . t· -11e p 1 ace we I 11 , j,,an :I di,' on h er own accor d , .:f I considering her ev:i.dently unceremonious exi't, l clad in nothing. . . There is next the question as to whether •j the mortal remains I lf : . I l · :I were those of Nzileo The learned judge carefully considered this I . 11 ·; and took into account the identification i!;y P.Wa2 and PoW ■ 3. In effect he was satisfied with the identific~tion even though i II :1 ' I ] I I, I I he also said he would be hesitant to place I re,~iance on that a 1 oneo F or our par-c' WE'! WOU I ld say, ~n our[iwefg l ,[ h.J.ng t h e evJ.. d ence I i 11· : as this is a first appeal, we are prepared to, put it more positively 1 ' j1 and say that f Wa2 and his 0 son corrjctly idehtified the skeleton lj as being that of Nzile from the shape and ·~1ignment of the toes, I 1: ·: .l I which descr:i_ption was th~ same as the trial judge's observation of ? W 3':: ~: - -=~ 0 0 Thi::; ::;kele-con :i..s I 6und a:i me.re quarter of a mile 1 1; . I I I j ,10.).;7 I t 'I j ... ., l rrom where Nzile was last seen alive, three months later which is about the same period as the doctor puts the age of the skeletono The skull has a cut wound caused by a sharp instrument according to the doctor, even if we exclude the evidence of PoWo2 and PaWo3 on this, and the appellant had been armed with a panga the readiness to use which he had clearly demonstratedo We are satisfied the skeleton was that of Nzile. This panga cut on the skull and the vicinity in which the skeleton was found takes us next to the alleged connection between the appellant and Nzile's proved deatho Apart from all the foregoing ·there is next the .disappearance of the appellant and the appellant 1 s alibi which cannot hold, and which we are satisfied relates to the time PoWo1 did see the appellant. It is not without significance that at the eleventh hour the appellant dropped the idea of calling the one man intended to prop up his alibio Considering the circumstances revealed we do not think the production of the paddy etco in court would have made any differenceo Taking the totality of the evidence into consideration, we are satisfied that the learned trial judge reached th~ correct decision that the appellant was the murderer of his former wifeo 19840 Fo Lo NYALALI CHIEF JUSTICE Lo M. MAKAME JUSTICE OF APPEAL Ro H. KISANGA JUSTICE OF APPEAL true copy of the _9ri'gifal. /----- \, .,/·=:> (__ ,-~~~;;;: ---=-¥~--.,., ( ·--,_ ----- ( Bo~-p-o---MOSHI ) SENIOR DEPUTY REGISTRAR