exavery james ngailo vs republic 1987 tzca 69 28 april 1987

IN THE COURT OF APPEAL OP TANZANIA AT MBEYA OORAKi MUSTAFA, AG . C.J.; MAjTALE^ J.A. AND PEAR, J.A. CRIMINAL APPEAL NO. 25 OF 1986 Between EXAVERY JAMES NGAILO ........ APPELLANT And THE REPUBLIC ............... RESPONDENT (Appeal from the Conviction of the High Court of Tanzania at Iringa) (Mroso, J.) dated 8th April, 1986 in Criminal Sessions Case No. 86 of 1981 JUDGEMENT OF THE COURT MUSTAFA, AG. C.J. The appellant was alleged to have visited the village of the deceased and to have specifically looked for him. The appellant eventually went to the home of PV/T and asked her the whereabouts of the deceased^ one Mzee Singoifwe. PWI was somewhat dubious t of the appellant, who was a stranger,, and did. not supply the appe­ llant with any information. The appellant was arme.d with a panga. PWI and the appellant spoke for about* 20 minutes? during which the appellant told PWI that on his wa j to PWI, he had mot the wife of Singoifwe but did not want to spoalc toher* When the appellant left PWI he went towards the direction of the house o-f the deceased, which was near PvVI’s house. PW3, the wife of the deceased; stated in evidence that on the material day she met a stranger witb. a panga who greeted her and 'went on his way. Later in same morning the same stranger returned to her house and found P'O and the deceased in the house. The stranger spoke to the deceased and asked the deceased for the return of money and some chickcn. The deceased was a native medicine man. P'/3 then saw t.h. ap cllant DUtting the deceased twice with a panga on the head. The appellant was arrested and charged with the murder of the deceased and was convicted. The appellant had made an extra judicial statement to a Justice of the Pcace which amounted to a full confession of the crime. How­ ever he alleged in Court that he was tortured and compelled to make suoh a statement. There was a trial within a trial* and the trial judge admitted the extra judicial statement as he was satisfied that it was mada -voluntarily, Ha later held that the extra judicial statement was true. The jud^ga iio-wovcr looked for corroboration of the retracted confession.* At the trial P77I testified and stated that she identified the appellant as the person who had visited her on the day the deceased was killed. However the event took place about 4 years before PWI testified, and the appellant was a stranger to PWI. For some inexplicable reason, no identification parade was hold. Er. Mwaki- ngwe for the appellant submitted that P'VI’a identification in the circumstances should not be accepted as it was open to doubt, especi­ ally because of the lack of a parade and the passage of time. PWI’s identification was a d o c k identification. However PWI stated that when the appellant saw her the appellant had told her that on his way to PV/I ho had met the wife of the deceased, who testified as PW3. The appellant did not wish'/to get the information from F73, PWI also stated that after ho had finished with her the appellant wont towards the diraction of the deceased’s house. P-.V3, in her testimony, confirmed that the stranger met her and the same stranger later came to her house and demanded the return _ of goods and money and cut her husband twice with a panga and killed him. PW3 however could not identify the appellant at the trial. The trial judge found corroboration of the confession in the evidence of PWI. ,7e think that PWI5s evidence was sup ported to some extent by the evidence of PV/3, which indicated that the stranger who killed the deceased was the person who had visited PWI. Of course there should have been an identification parade in the circumstances. But wc do not think, in this case, fortunately, its absence is fatal. cor.f ssciorx There was also some corroboration of the o. :■ in PW3’s •? . evidence. P7/3 spoke of 2 cuts on the head with a panga, and the demand of refund of money and goods by t h , stranger fro:.-i the decea­ sed, a medicine ^aan. In tho c'^f'.ssion, thcs-, points alSD emerged. On the whole v/o arc satisfied there was sufficient corroboration o-f th-e rotra-cted confession as th:.; trial judge? had. The sole issue in this ap 'cal was. whether tlia rcrtra-sji^ed confe­ ssion was corroborated, ‘/e think it ^as. The appeal is accordingly dis'-iiss-c-d, DATID at K33YA this 28th day of April, 1 9 8 7 . A. IjUSTAPA AG. CHI ]F JUSTICE L.1T. M'iKAKo JUSTICE OF A.??1AL