19840508 TZCA Mwanza

(Q't - IN THE COuRT OF APPEAL OF TANZANIA AT1LWANZA i I 0 (CORAM: NYALALI, C0J,, MAKAME, J.A6 AND KISANGA, J.A. CRIMINAL. APPEAL NO. 47 OF 1982 B E T W E E N JOSEPH s/o KAMILIANGO & FIVE OTHERS. 0 0 0 0 0 0 APPELLANTS A ND THE REPUBLIC O 0 0 0 0 0 0 0 0 • 0 0 0 RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Bukob) (Mfalil a , J 0 ) DATED the 25th day of October, 1982, in Criminal SessiOns Case N00 57 of 1980 JUDGMENT OF THE couRT NYALALI, C.J0: The appellants in this case, namely, Deogratias s/o Katabazi, Yolahda d/o Adolf, Kambalula d/o Adolf, Rozalia d/o Ad0lf and Steria d/o Adolf were jointly charged in the High Court at Bukoba on information for the offence of murder - contrary to section 196 of the Penal Code; and they appeared as the third, sixth, seventh, eighth and ninth accused persons, respectively. They were charged together with one Joseph Kamiliango, who was the first accused at the trial, and Msafiri Abdallah, who was the second accused. The said Msafiri Abdallah was acquitted at the trial but the said Joseph Kamiliango was convicted together with the appellants as charged. The convicts were all aggrieved by the convictions and hence this appeal to this Court. Unfortunately, the first-accused, that is Joseph Kamiliango died before this appeal could be heard and his appeal thus abated by operation of law. Initially the information filed in the High Court included two other persons, 0 that is, Kafukulu Rwamweluka and Rubazibwa 2 acheluka. in respect of whom a Nolle Prosequi was entered by the Director of Public ...... Prosecutions before the commencement of the trial. T1 appeared as the fourth and fifth accused persons, respectively. The remaining appellants, that is, the third, sixth, seventh, eighth and nineth accused persons were represented in this appeal by Mr. Kahangwa, learned advocate; whereas the Republic was represented by Mr. Mtaki, learned State Attorney. It is common ground that one Martina Adolf, who was the elder sister of accused Nos, 6, 7, 8 and 9 was killed during the night of the 24th/25th December, 1978, in Kazilantemwa Village, Ikuza Island of Lake Victoria, within Muleba District. All the remaining apellants and the deceased were residents of that villaqe. It is undisputed that some time in December 1978 before the death of the deceased, accused Nos, 6, 7, 8 and 9 travelled to Kaguna Village on the mainland and visiied the first accused, that is, Joseph Kamiliarigo who has died before the commencement of this appeal. The said Joseph Kamiliango was a traditional medicineman and the four sisters travelled back with him to Ikuza Island. They were accompanied by one Msafiri Abdallah, who was the second acciised at the trial, and who was acquitted by the High Court. Furthermore, it is undisputed that the dead body of Martina Adolf was discovered by a search party of villagers after she had been reported missing by her husband. The discovery was made on the 26th December, 1978, near the homestead and in the banana grove of the third and seventh accused who were husband and wife, respectively. In consequence of tFis discovery and as a result of interrogations made to the third accused by the villagers, all the accused persons were apprehended by the villagers that same day. The dead body had a cut wound on the back of the head. Her left breast, vaqina SOO 0000 -3- . and two fingers of her? left hand were cut off and misin'0 As a result of interrogations, the first accused, whose appeal has abated, led a group village militia and others to the home of one Alois Fabrian, where the first and second accused had been staying. There the missing breast, vagina and one finger were recovered0 It is further undisputed that the police were informed and they came to collect the accused persons and the dead body to help the police in their investigations. Subsequently, the remains of the deceased were viewed by Dr0 Twahibu Musoke (P.W.5) on the shores of Lake Victoria on the 30th December, 1978 Accused No., 1, whose appeal has abated, together with accused 6, 7, 8 and 9 were taken bef ore the Justice of the Peace (P0W04) to whom they made extra- judicial statements concerning the death of the said Martina Adolf 0 It is the prosecution case that accused N0s., 6, 7, 8 and 9 believed that the deceased was a witch who had killed, by witchcraft, many members of their family0 They also believed that she had bewitched their father who was seriously ill at the time when they decided to pay the first accused a visit. T0 prevent the deceased from wiping out the entire family, the four sisters, who appeared in this appeal, souqht the assistance of the first accused, who agreed to kill the deceased on payment of a fee of which Shs. 800/- out off' Sh s . 100/- were paid in advance d the. balance was to be paid upon accomplishment of the undertaking0 It is part of the prosecution t s case that pursuant to this agreerrent,.the fIrst accused killed the deceased and removed the parts of the body which were found missing. The defence of accused Nos. 3, 6, 7, 8 ad 9 cnsited. In a denial of the prosecution case. • 000 0 0 0/4. . •- ' i.--. -- 'I / The first point for consideration and decision in this case s whether the accused persons, who are the appellants in this case, participated in killing the deceased0 The learned trial judge considered the four sisters together as their defence and the evidence led by the prosecution against them is the same for each of them0 We propose to adopt the same approach by dealing with the third accused first and concluding with the four sisters. of the deceased as a group0 In convicting the third accused the learned trial judge stated- "The evidential position then with regard to the 3rd accused is this: He mentioned the 1st accused as the participant in the killing and even knew where he could be traced, the 1st accused has been proved to have indeed taken part in the killing0 Both the 1st accused the proved killer and the deceased were at the home of the 3rd accused drinking pombe during the evening when the deceased was killed, her body, was found in the shamba belonging to the 3rd accused0 Since of the killers was a member of the drinking party at the house of the 3rd accused, then the killing must have taken place in or near the house and the body taken into the shamba0 That killing in or near his house that evening by one of his guests against his own sister in law could not have been carried out without the knowledge of the 3rd accused0 The reasons he gave at the scene for the killing of the deceased, tallied with the reasons given later in the extra judicial statements by the siters0 This proved that the 3rd accused was an insider and party to this killing which took place in or near his house0 t'0 Mr 0 Kahangwa has strongly attached the findings and views of the learned trial judge by submitting in effect that mere knowledge by the third accused about the background and circumstances of the death of the deceased, coupled with the discovery of the dead body of the deceased near the home of the third accused and the participation of the deceased and the first accused at a drinking party at the home of the third accused prior to the death of the deceased, are not sufficient circumstantial evidence to support the conviction of the third accused0 We respectfully agree with the submissions mde by the learned advocate. Those circumstances can' be given an innocent xplanation0 Firstly, the third ccused could have acquiEed his detailed knowledge of the relevant facts by virtue of his being a member of the family which believed that the deceased was bewitching them. Secondly, the deceased could have been killed wihout the participation of the third accused near the homestead after she had left the drinking party on her way back home0 For these reasons we are satisfied that the conviction of the third accused cannot be sustained and we are bound to interfere with it. But first, we must deal with the case of the four sisters. Each of theme made an extra-judicial statement to the justice of the peace (P0W.4) which amounts to a confession to the effect that they hired the first accused to kill the deceased to pre-empt her from eliminating the whole family by witchcraft. They paid an advance of Sb5, 100/= to the first accused and the balance of She,, 700J was to be paid after the ceasc had been killed. The extra-judicial statement made by the first accused also amounted to a confession by him which confirmed what the four siters stated in their own confessions. Further confirmation of ha confession made by each of the sisters and the first accused was given by P0W,7, Jacob Iliharugo, .ho lived in the same village asthe first accused0 He testified about seeing the four c:cters paying the first accused a visit some time in December, 1978. Mr, Kahangwa, learned advocate for the appellants, has submitted that the four sisters acted under provocation arising out of their firm belief that the deceased was practising witchcraft and was determined to finish them off0 But as Mr. Kahangwa conceded, it is quite clear on the evidence that the four sisters did not act suddenly but they deliberated upon their move at a meeting held to consider their position. They then travelled across the lake from their Island village to the mainland where they negotiated with the -6- first accused. The conduct of these four sisters clalv shows that they had calculated their move with cool minds and in full possession of their faculties. The defence of provocation by witchcraft is thus not available to this "gang of f our tt. They were a party to the killing of the deceased by hiring the killer. The same evidence also supports the finding of malice aforethought on their part. For these reasons concerning the case against accused N05, 6, 7, 8 and 9 and the reasons concerning the third accused, we hereby dismiss in their entirety the appeals of YOLANDA ADOLF, KANBALULA ADOLF, ROZALIA ADOLF and • STERIA ADOLF who are accused Nos,. 6, 7, 8 and 9, respectivly; but we allow the appeal of DEOGRATIAS KATABAZI, that is, the third accused, by quashing his conviction, setting aside his sentence and directing that he be released from prison forthwith unless detained thereinor'sneother lawful cause, / • • .,Wè 1?'DAED at NZAhis 8th day of May, 1984. - 7 F. L. NYALALI CHIEF JUSTICE L. N. MAKAME JUSTICE OF APPEAL. N R, H. KISANGA - JUSTICE OF APPEO I ~e rtify tath)sa true copy of the original. 120 Lj •, $_••__• / ..,r// -- \ 4 - / .è_---- (. P. NOSHI) — SENIOR DEPUTY REGISTRAR,