19850723 TZCA Dar es Salaam

IN THE COURT OF .APPEAL OF TANZANIA I i AT ARUSHA ( CORAM: MUSTAFA, J .A.,; l\lI.AR:AME, J .A. And KI-SANGA, J .A.) CRil\lIINil.L APPEAL NO. 4 OF 1985 BETWEEN 1. HUSSEIN IDDI ~ . 2. ELIBARIKI S0NGOE J •••••••••••• APPELLANTS .AND THE REPUBLIC •••..•..•.•••••.. RESP0NDENT (Appeal from the conviction of the High Court of Tanzania at l\lioshi) (R. B. l\1Iagang£, J.) dated the 30th day of March, 1985 in Criminal Sessions Case No. 12 of 1983 JUDGEMENT OF THE COURT MUSTAF1~, J.A.: The deceased, Godfrey Enock, was found dead, and ...., ••.ft,.,\ -• { part of his body burnt", According to medical evidence., l "~..,.,·t,he-_;':te,.ceased died of trauoat.i..o: injuries, resulting from 1 frct·:·..;-..;ired rigs and skull, and the secondary cause of death \ was due to burning. Three persons were charged with his murder. One was acquitted and two persons, appellant Elibariki and appellant Husse~n Iddi were convicte~ of the murder of the deceased, Both the appellants are appealing against their convictions. We will refer to appellant Eribariki as Accused 1, and appellant Hussein as Accused 2 in the course of this judgment. We will deal with Accused 1 first. The evidence against him was given by P.w.3 Jared, P.W.4 Jubilate (j and P.W.5_ Verdiana& According to P.W.3, on the material day, i.e. f25.2;83 at about 11.00 a.m. the deceased, a tr~otor driver, was driving a tractor and came to P~W.3's father's place at ' I Boma Ng'ornbe. The tractor belonged to 11 1\IIwangi", ! presu~ably Shangali~ Bricks belonging to Accused 2 were .. loaded on to the tractor, and P!W.J helped to load the t ·../ J 1••-•u....G:-'_:.:a.:,i:,;1-22J]JJ . ,,'Ni .t!C$ 1 C L ~--•· ---,i--:• · ... - - ~ T'•'q;>.,.,j<r•""-~· ~'• T"""J', 4 . '' ;. l • 2 bricks. Accused 2 was there also. The tractor left to off load the bricks at Accused 2's place. While off-loading the bricks P.W.3 saw A9cused 1 ar}iving there. Accused 1 allegedly asked tbe driver, the deceased, to go and help Accused 1 pull his tractor. The driver left with Accused 1 and they went towards Rundugai, with Accused 2 also on. board. P.W.5, also, on that same morning, saw the deceased and his tractor, on her way to tbe market. She saw the deceased driver and Accused 2 on the tractor and Accused 1 standing by its side. P.W.4 testified and stated that at about 12.00 noon when he was on some busihess around ' ' Rundugai forest he saw a tvactor coming from behind. He recognised the tractor, which belonged to Mr. Sharigali. The tractor passed him, and he saw Accused 1 driving it, ' and A0 cused 2·; and another person who was acqui tted 9 also on it. P.W~4 stated be kn~w them very well. He also saw ' A0 cused 2 and the other person sitting on another person who had a rope around his neck. P.W.4 thought that, according to Masai custom 9 Accused 1 was going to throw the dead body away in the open. The following day 9 P. Vv. 4 heard that Sbangali' s tractor and the driver were missing, . and 3 days later he came to know that the missing tractor and the body of the dead driver were found. However P.~.4 did not make a .report to tbe Police until 10.3.81 of what he alleged he had witnessed. Accused 1 put up a defence of alibi. He stated he was not on that day anywhere near Shangali's tractor. He went to Abise.ngai farm at Rundueai to plougca. Atisangai' s 7 &c:res with Accused l's tractor wtich was driven by Accused l's driver. He was there from morning until evening and was paid shs. 1, 400/- for the hire of his tractor. Lbisanga, who testified' as D. W.1, fully corroborated the evidence of Accused 1. ! • f ........ 3/. 3 ,1 I Mr. Mwale for Accused 1 submi ttedi: that the trial i i judge erred in allowing P.~.3 to testify without a I , voire dire. P. W. 3 was marked down as 1'4 years old when he testified, and the jud~e swore him Wit~out a voire dir~. '( In fact it transpired, in the course of: P.~W.3' s evidence, that he was in fact 16 years of age 9 which means P. V\. 3 was not at the time he testified i a chilc,: ,_r,-f: tender years. We are satisfied that no prejudice of i~y"kind occurred, and Mr. lVIwale I s complaint on this point, is with out merit. The judge found P.W.3's evidence :credible. However he found P.W.J's identific&tion of AccJsed 1 not reliable, I as P. W. 3 identified Accused l only as d Masai. There was no identification parade. Similarly the judge found ' ' P.W.5's identification of lccused 1 unrel~able. However • i he found that P.W.4 knew Accused 1 welJ.! and P.W.3's evidence that he saw Accused 1 thus corroborated P.W.4's evidence that P.W.4 saw kccused 1 and 4ccused 2 in Shangali I s tractor late:::- at the Rundugai area. The jude:e found the evidence of P. W. 4 highly sus~ici.ous, ,, and was prepare~ to act on it only if P.W.4's -evidence was ' corroborated. It seems that the judge;held that the . t unsatisfactory identifice.tion by P.W.3, ,and perhaps I' also P-.W.5, corroboration of P.Wo4 1 s ev:idence of having seen Accused 1 and Accused 2 on the tract~r at the Rundagai area. However the judg-3 dealt with th,:; defence of alibi as follows: .f "P·.W.Ys evidence thus corroborates P.W.4's evidence that the 1st and 2nd accused were in Charles Sbang2.li: s tractor just about one hour after the tractor had lbeen driven off by the aucused Hussein from where ·P.#.3 helped off load bricks from ~he tractor trail~r. On the basis of this corroborative evidence I find that . .;he 1st acci~sed Elibariki and the 1 2nd _accused ".:Iussein Idc1:i.. had 0~1arles Shangali' s 1 ; t.ra~tor ir, 1 :iundugai aJ•ea on: 25th February, 1~81 ... ·a:o"')[nd 11.C\() a~m._as teptifi,ed by P.W.4. In v-iew of th:i.-s finding : -_ t means that I re-ject 1 the 1st a::;~) 1 sed' s ali :J::_ al th,ough it is suppo:r:ted by D. W.1,, The e.li bi ·',::, a well rehearsed lie 11 • Ii ,, 1 I ,, o ', • < • • / 4• I. ' I I ' ;. 1 l 4 It seems clear to us that the judg,~ dealt with the proseuution evidence on its own and arrived ·r , at the conclusion Ii , that it was tn.e and credible and as a •result ,· he rejected the alibi put forward as a deliberate 1{b. In our view this is a serious misdµ:o ction. 0 The judke·:should have . Ii . dealt with the prosecution and defence eyidence and after ·' I analysing such evidence 9 the judge should then reach a, conclusion. Here Accused 1 was deprive~,. ofi having his defence properly considered by the judge.jl :In , the circumstances we think it unsafe to let the convi'ction, of Accused 1 stand. 1! ~l i .As regards Accused 2, the evi,den e3 against him we.s ' 11 given by P.W.2 Abdulla 9 P.W.3, P.W.4, and P.W.5. All 1 · ii 1 these witnesses knew Accused 2 well' and ';there could not I be any question of doubt about Accused 2' s:i . ,.._~ identity. The judie believed the evidence of P.W.j, ,, and although P. ,V.4 was found to be rather unreliable ; 1 the evidence of ., P.W.3 corroborated the evidence of P.W.4. ': Accused 2 was seen .,, I 1 going away in Shangali's tractor by P~w)3, and P.N.4 .~ I I saw him on the tractor at Rundungai. P~i'1 W.5 alsa sawi Accused 2 on the material morning on Shangali' s tractor. ][ P. W.2 heard Accused 2 asking the deceased 11 driver to ii 'I return to Accused 2 after the deceased driver had drop~ed the '! grass ~uttere travelling on the tractor. ;l , !'I. Accused 2 al so put forward an alibi. ,, " He denied he was on Shangali rs tractor 2.t all. He called a witness !; I Juma D. W. 3. However D. W. 3 could only s~pp,ly a partial alibi which left a gap, which did not p~e.Jent .Accused 2 from committing the offence, if the pro~eo~ution witnesses were believed. We are satisfied that the ,iconviction "l 1.\ of J.:;c cused 2 wa~ justified 9 as he faiied t; ,explain what \. ' I happened after he was seen on Shangali'i tractor going 'i I towards Rundugai, after which the deceased was found dead~ ' ' . dibviously murdered. The circumstances pofn·'red inevitably to Accused 2 as being the one or one of~those who had killed the deceased. ' ,' l I I '/ ' , .... I I 5 - I , In the result we allow the ap~eal of Accused 1 Elib~riki, quash the conviction, set aside the sentence of death,. and order that he f? be reieased forthwith unless,otherwise lawfully detai~ed., L • M • MAK.AME JUSTICE OF APPEAL ,. ., R. H•. KI SAN GA 1, JUSTICE OF i.PPE.bL . I certify that this is a true t11,JPY of the ori_ginaJ. •. ,,