19881210 TZCA Dar es Salaam 1

IN THE COURT OF ArPEAL OP TlJ~-zLNIA AT NWANZA .. CRIMINAL MH,_111 no. 54 OP 1988 BLTWLLH 1. SiiMBO CH-\B;\ ) 1 • • • 0 • b o o, 2. KIJ-4 KWANOU ) A N D THE REPlIBLI C • • e O Cl O • • RE.ST'ONDl-NT (Anpeal from the convictio11 and se.ftence of the High Court of T2nz;_1nia at: Tabora) ( Chi pet a , J. ) Dated tho 2nd d3y of MaE,S:EJ_..±288 .JUDGMLNT OF T HS COURT MAKAME, J. A. : S4.MBO CHr1BA and KIJJ1 KdANGU, th,:i -:!ppollants in this Shinyn1:1ga District. r(1 .ho appellant f;h:1h::: 11as a member of the. ~- FE>ople,'s Militia as woll as a w-atchm-1n ,j; the loc=1l frimary School. The socond appellant, Kw'3ngu. 7 ,ms n cell-loader and the ·neph8w of S-\DO d/o LUJA, the old. l:::::\T thoy were ::illeged to hwe unl:3wfully killed. The .High C-.,1.'.:d sitting app 9 rently at Shinyanga, Chi peta, J. t found thr:m g11il·~y of r~urder and convicted them accordingly. Thc;:y were e3ch coMlcmn,,cl to death 3s 1 result. To argue this appe;:il on thgir b:,11::;lf w3s Mr. Rugar:ibamu, le.arned sdvocate. Mr. Muei::.-:i,- leBrn,;d_ S-t;,:~-[;e JJ.ttorney, appeared for the respondent Republic ~lilt! opposed the appeal. At the trial the rrosecution es,"cnb:dchod tmt the worni:ln fc;mnd dead under a baob::ib tree in the v:i.1lage, and who had a sisal rope round hor neck, ----,-was killc:1. by the- two appellants • . . . . /2 . 2 The second aorellant procured the firs·:; ,,ppdlant to kill the dece<':lsed and the fj_rst appellant cci,7ric,d out the I assignment. 1. Th::it no sufficient ground w1G 1.::1id. for t.he admission of mere copios of the extra-jud.:i.c:i.:,1 st::itPments; and 2. That there was no sufficient r<x·ound for th0 admission of the µost-mortem report 1v.hich, in any cr:ise, did not beyond reasonable doubt csta~lieh ~he deceased's c~use of death.. During the course of his 3ddress t0 usi however, Mr. Rugarabamu abandoned the first limb of the seconcl cround because Mr. Mselemu, le:irned Defence Counsel c..1t the tri-:il 1 h.~rJ S.:.'!id th;:it he had no objection to the production of a certifi:Jd. copy of the post-morte.m re port. In their extra-judicial st3temen-'.;r~ ·to the Justice of the Peace, P. W. t, STANSLl:US MAL0NG0, tho ,!p1xillants confessed to arranging to kill th0 deceased beo:1u2e -~;~_:y beliPved her to be a W l.. t ch w110 wo.u·1 d no t 1 cave ...• h e homes t a~·cl or-, t h e secon d appe 11 an t where she was visiting;- and to th0ir killinr her dPlibcrately. 1Hter the two ;;ippella11ts had agreed ;d.-~11 ,~cJch oth<-'r they shou.ld kill tho doc0ased the secornJ. ::-1ppellant looked for a rof.'e and g3ve it to th::! first a ppellan-i · -who used it to strangle the deceased ':lt ni.gh-t in the house of th.:, second 3r:,pellant, who w:1s, by prior .irrangement, ·:;w:,y from home. Mr. Rugar8bamu ch-:illenged the .a•drn:~sio11· of the copies of the alleged extra-judicial statemen-~:::: which were repudiated by the appellants. The Juetice of tho F::.1ce informed the trial court th::it he had sent th0 orisinals to the then Resident Magistrate in ·ch3rge, Shinyanr;,1 1 !fir. Lhungu, and that they cannot now bo found. He pro·:_c1_c-.ld., instead, copies of the originals and these, he -~cl,rli-~ted,•..... s signed only on the eve of his testifying in coozc 1 o,ver five years since the -st3tements were allegeclly mc:,co, , ··•· ....... 3 Mr •. Sht1ngu is official c~·~ill with the Judiciary in Tanz;:inia ::ind his r1l1<c:rea bo-.t s c1nJ16t J.::..:Jve bee rt unknown· when F. w. 6 was testifying in the High Cot1rt in J!"ebruary 198l. Mr. Shungll shot1ld h::ive 'eeen ca.llad to say he h:;id b·.;Gi'.1 appro::iched for the extra-judicial statements entrusted i~~o his care and what their fate was. Only then cc1;.ld section 67(8) 1)f the Evidence ,let, 1967, have been resorted to. Mr. Mt1ssa did no·i orrose Mr. RugArabamu on this score and we are satisfied th-1<: Ilr. Rc1garabamu is right that the extr3-judicial statements s'1ou.l::. hnve. b!'.'en excluded in the circl,llllstances. Mr. Rug.::fl'ab-amu. J>.ightly conceded' that the extra-judicial statemP.nts excluded, there wollld stilJ. b:_1 .the I testimonies of r. ~I. i. the c. C.M. Br::-,nch Secret,ry o:C t.hG area at the m':lterbl time, r-. w. 2 a school °tO':lCher,· P. w. 3 J()IiiJ SIYJ;R0, the Village Chairm::1n and ·r. ~J. 5 'l cell-leader, :,cco::fi_irlg to which the two appellants owned Jt the scene that thejr killed tho deceased. True -the appellants retracted those crJli:t'ossions at the trial, sss,erting that t he,y h'.Hl been assat1l ted ~~u-:;., false.ly admitting to the killing. The learned tri:11 jt1d{;c ::ipocific:;illy considered the matter and wss in agreement with bc;·:;h ;1is assessors that the apnellahts were neit·her •· -ass11ult,ed 1wr intimidated into confessing to the mt1rd0r. He was SJti:3::.'L:d. 1 in terms of TUWAMOI v. UGANDA (1967 L.A. 91), thd <;hs confessions could not but be truo. We ':l?'e :not ~1hJ.~ to fault this finding by the trial collrt. W0 wish to 1dd tri,,-·~ if corroboration w3s sollght it would h:w:.., been found in th:J presence of the drag mgrks from the baob3b t roe, -~n ~ .. the secon,.JJ. "n•~-,··1an+ 1 u 's a, •. · 1, · · J.hous 8 f ,1 n d 1· n . • the existence of tho rope tithtly round thG d.eceased's neck, both of which 3Ccord with t~e content:: o~:' tho appellant's conf0ssions at the scone. . •.• I 4 , . 4 According to the post mortem report, tho cauee of death could not be determined bec;1us0 ·:;)1_,"' d0co;;ised's body was in an advanced stage of decomposition.. The learned trial· judge was satisfied th3.t the dcct,;:.;r:.:~·,a. died a violent· death and at first Mr. Rugarabamu oromircd to attack this finding. He :::iband.onccl_ that intention~ h0:-icver, and con.ceded that in re3.ching his finding the ls3.rnod. -~rfal judge relied I on the confessions rather than' on thG nu-1.:opsy. report. We are fully satisfied that both nppeals are arid of merit. We dis miss them accordingly. DI\TLD at rvr:·hNZA this 11th day of •· - December, 198e. ' l. / 11'. L, NYf;L,111 CliI:C}? -~ JULTICE .:-o.---<!t..,._ _ __ ~ L •. 11. Ml.KAME Jlff2;J]E OP ,1 f-' f'E 1\ L / _______ lia 1\1. Ji. OI\f I\ R .TJS I1HJL OF' !1FT'L/i.L ----...::_.-.._, 1 a true copy bf' thE· original. v-·Lt.-li ( J. r~ r~SOF'H, )