emmanuel kanyogozi vs republic 1986 tzca 76 28 june 1986

IN THE COURT OF A P P E A L OF T/.NZr.NIA A T MWa NZA CORAM: NYALAII, C . J . ; Ma Ka ME, J . a . And RIS a NGa , J . A . CRIMINAL APPEAL NO. 30 OF 1986 EMMANUEL KANYOGOZI. . . . . . . APPELLANT VERSUS THE REPUBLIC. . . . . . . . . .RESPONDENT (A pp ea l from the c o n v i c t i o n o f the High C ourt o f Tanzania a t Tabora) ( S i s y a , J . ) dated the 12th day o f November, 1976 in C r i m i n a l Sess ion s Case No. 7 o f 1976 JUDGMENT OF THE COURT MApCAME , J . A . ; The a p p e l l a n t EMMANUEL KANYOGOZI was sentenced t * s u f f e r de a t h consequent upon h i s c o n v i c t i o n f o r Murder. He i s now a p p e a l i n g t o t h i s Court and i s b ei n g re p re s e n te d by Mr, Kahangwa, le a r n e d Counsel. On b e h a l f o f the R ep ub lic Mr. Tewdwa, lear ned State Attorney, resisted the ap pe al . The a p p e l l a n t had formed an i n t i m a t e a s s o c i a t i o n with th e d e c e a s e d , a woman who had l e f t her husband and was l i v i n g w it h her parents, a p p a r e n t l y because the husband was a man « f straw. The deceased and the a p p e l l a n t c o - h a b i t e d f o r a w h i l e and then her f a t h e r took her back, sa y in g he would o n l y l e t the a p p e l l a n t have he r a g a i n when the a p p e l l a n t f i n i s h e d paying the dowry: he had paid o n l y Shs. 400/-. I t was the P r o s e c u t i o n ca se th a t w h i l e the deceased was so s t a y i n g w it h her pa ren ts the a p p e l l a n t went t o the p l a c e on 5th A p r i l , 1973 and k i l l e d her a t a w a t e r - w e l l by d e l i b e r a t e l y s l a s h i n g her with a b i l l - h o o k . I n a r g u i n g the appeal Mr. Kahangwa f a u l t e d the t r i a l c o u r t ’ s r e l i a n c e on an a l l e g e d c o n f e s s i o n by the a p p e l l a n t and a l s o a t t a c k e d what was held to be c o r r o b o r a t i v e e v i d e n c e f o r the confession. During the course o f t e s t i f y i n g i n h i s d e f e n c e the a p p e l l a n t re tra c te d his confession. Indeed a t one s t a g e he made a f a i n t a t t e m p t to r e p u d i a t e i t as w e l l . He made an e x t r a j u d i c i a l s ta te m e n t t o P.W.5 LILBERT HANTA, a J u s t i c e o f the Peace, i n which he s q u a r e l y confe ss ed to the murder. G0i n g by the r e c o r d , when P.W.5 i n d i c a t e d t h a t he wanted to te n de r the e x t r a j u d i c i a l statement t h e r e was no o b j e c t i o n . The document went i n as Exh. P . 3. The w i t n e s s then read out the c o n t e n t s , a ga in t h e r e was no o b j e c t i o n , a t t h a t o r any o t h e r s t a g e . I t was o n ly a t the e l e v e n t h hour, when he was g i v i n g h i s own e v i d e n c e , t h a t the a o p e l l a n t came up w i t h the s t o r y t h a t he made the statement because he had been t o r t u r e d by the P o l i c e so he made the statement " s o as t o av o id further torture” . As we understood Mr. Kahangwa, he submitted t h a t p r e j u d i c e was oc cassion ed to the a p p e l l a n t by the admission o f the e x t r a — ju didial statement w it h o u t f i r s t d e te r m in i n g i t s voluntariness o r otherwise,, That b e i n g the c a s e , and because the said statement was l a t e r r e t r a c t e d , the t r i a l c o u r t should have ig n o re d the confession completely. we a r e o f the v i e w t h a t t h i s s i t u a t i o n was out o f the o»ir^lnc.- and th a t t h e le a rn ed t r i a l ju d ge , who demonstrated keen a p p r e c i a t i o n of it, approached the m a t t e r i n the b e s t manner he c c u l d . tria l— w i t h i n —t r i a l could not be held when the r e t r a c t i o n was f i r s t indicated in this case, t h a t i s when the a p p e l l a n t was t e s t i f y i n g , and i n any e v e n t , i t would have served no u s e f u l purpose. .oo.../ 3 . The Defe nc e had a l l the o p p o r t u n i t y t o o b j e c t t o t h e admission o f the Statement. They wa it ed u n t i l the end and b e l a t e d l y sprang a surprise. To accommodate them, by i g n o r i n g the e x t r a j u d i c i a l sta te m e n t a l r e a d y put i n w i t h o u t o b j e c t i o n , would be t o open the flood gates. ^hs le a rn e d tria l judge c on sid ere d the q u e s t io n o f v:.. adm issibility, posthumously, as i t were, he s a i d , and was s a t i s f i e d t h a t the a p p e l l a n t made the statement v o l u n t a r i l y and so i t was adm issible. He was a l s o s a t i s f i e d that i t cannot but be t u tr u e and a l s o found t h a t i t was c o rr o b o ra te d by the e v i d e n c e o f the d e c e a s e d ' s younger b r o t h e r , P.W. 3; and the d e c e a s e d ' s mother, P.W .2. He took i n t o account such m a t t e r s as the d a t e and venue o f the k illin g, the weapon used, the c u t wounds and such p r e c e d i n g m a tt e rs lik e the deceased and the a p p e l l a n t c o h a b i t i n g b e f o r e the a p p e l l a n t had f i n i s h e d paying the dowry, and a man c a l l e d Masunzu t r y i n g t o g e t married t o the deceased as mentioned a l s o by P . W . i , the deceased father. These m a t t e r s were contained i n both the e v i d e n c e o f the t h r e e w i t n e s s e s between them, as w e l l as i n the e x t r a j u d i c i a l statement. We cannot say the t r i a l court erred. We a r e o f the vi ew t h a t the lea rn ed t r i a l ju dg e was e n t i t l e d t o reach the d e c i s i o n he d i d . L i k e himj we a re s a t i s f i e d t h a t the a p p e l l a n t d id v o l u n t a r i l y c o n f e s s to the murder, t h a t the c o n f e s s i o n was t r u e , and f u r t h e r th a t i t was amply c o r r o b o r a t e d by o t h e r independent e v i d e n c e . We f i n d no m e r i t i n t h i s appeal which we a c c o r d i n g l y d i s m i s s . DATED a t MWANZA t h i s 28th day o f June, 1986. F. L. NYALALI CHIEF JUSTICE L. M. MAKAME JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL I certify t h a t t h i s i s a tr u e copy o f the o r i g i n a l . ( J . H. MSOFFE) DEPUTY REGISTRAR.