19890525 TZCA Dar es Salaam

IN THE COURT OF APP-CAL OF TANZANIA A~J.~BE...l.4 ... (CORAM:. MAKAME-L_1..o A-, KI SANG A 2 Jo 1~. And TJIF11LI ~/', t.~g. J. A. ) CRIMINliL i~PPJ!JAL NO. 10 OF 1988 NOEL NJliHl1ZI i\ND Z;:K~HIJ\ NJJ~IL\ZI o • • • • • • ., • • • • APPELL/:NTS . VER~U3 THE REJ?UBLI C • o e o o o o c, o o o c o o o o o o o o o C" o o o o o o o o o • • • RESPONJJENT (ii.ppeal from tho conviction of the _High Court of Tanzania at Sumbawanga) t (Mtenga, Jo )dated the 10th day of · December, 1987 · in Criminal Sessionp Case No. 43 _9f 1985, The two appellants, who arc brothers, were found to have l- murde·red their brothcr-in-lawy PONi'SL'.TW. I-.'L\GIUTGJ1, c1t Mtakuja Village, Inyonga, in Mpanda District in Luc;ust.1983 • . Thoy were accordingly convicted and condemned to dc-9.th by the Hi~]:-_ Court sitting at Su.mbawanga, "•11/It cnga.~ J. ) o The evidence that the appcll~nts severely a·Jsaultcd the deceased was over-whelming. T'.1cro vvas the tostiuor:.y of the appellants 9 own elder brothcrr PW. 1. JJHN KILH:ENJLRO, and that of a ncighbou.ri PW.2 LLFON3I M~/iDLi-IL? accordi,ng to 1:)0th of which tho deceased, who was completely n3kad 9 W38 tho one being assaulted; he did not assaurt o.ny of the two uppc llants. ;~ccorcling to modt cal I evidence, the dcccascd;s chest muscles were do:..;troyod 9 thQro was haomorrhago in thCl" lungs~ and tl1:; J.occ3,3od u.iod bocauso of l' failing to brenthe as a result of injury to tho chest. _, " 2 fhc appellants denied havinJ assaulted the docoasod at allJ Tho first appcllnnt spoke of discovering. J.;ho docoancd about to sot tho first appellants' hous.J }~fire., He gave ch2s0 and raised an alarm which the second appollant respondorl to. The deceased· attacked the first appellant with a stick which the second appellant took away from tho deceased. When PW.,l came to the scone tho first appellant told PW.l what had happened and PW11l reprimanded the deceased. The second uppollo.nt G::i.vo the same version of the incident as tho first,appollant's, more or lasso Both tl:mJo.,llants ·- .... =.~~.. also assorted that PW,.2 was never at tho scone. In the face of tho clear, cogent 9 and convincing evidence of both PW.land PW.2 1 tho appellants' complete denial of their assault on tho decoasccl was quite ric;htly d.isbclievod by t110 trial court; in our viow. Tho first appellant cave 110 reason why PW.2 should want to-testify falsely ag7inst thorao Tho second a~p~llant's assertion as to why PW~l 2.nd PW.2 told lies aG_.inst him - b,~causo of grudges on account of Pfl,l 1 s chicken often marauding t.hc oocond appollant 9 s , fa~m; and t,? ;tho, tho second appc..llant hQd quarrelled with PW.,2 over 2 a girl called Stoph2nia 9 woro ncvor put to tho two Prosecution witnessos for them to admit or dany. Tho samo thine can be said did not like the second □ ppoll~~t boc1u~o P~.3 h2d dcf~atad tho second appellant by only one vo~c in a C.C.Ll. cloction. PW.3 had related to the trinJ. court o.b0ut -;-;ho f.L cond :1ppcllc.nt 's gloc v:hcn ho was brought to the scone of tho □□ sault and the socond appellant chocked tho doconsod and found t:1:it ~10 wns d02.d. · Tho grou.J1d o:f nppoal adv:::mccd by Nr. mwangolo 1 learned counsel , for both appellants - that the evidence of F.7.1 1 PJ,2 and PW.3 ought to havo bce:n rejected by tlli.: trial c.ourt bGc::.use of tho alleged .... "t - . ,. ''I. 3 cannot bo sustained, for ro3.sons wo havo r,1onti'.)ned9 Wo be lievo that tho Dying Do clar ··.ti on was made by tl10 do ceased as to the assault on him by the two a1)pollants and that the appella-n:....: did indood assault the doceasod and caused hira to dioo There was malice aforothought 1 taking into account the brutal and unprovoked attack. Wo respectfully agroo vvi th tho loarnoc1 trial judge ·that tho story about tho deceased w.::.nting to burn tho first appellant~s house W8.s not worthy of belief I Had it boon true: wo think the first appellant would not havo f ilcd to call his daughterf Zuria~ who was tho one who Elllogcdly 2.lortcd hor father c.bJut the presence II of a parson with n fire behind the first appcll:::ntis house; We fail to fathom also how tho doconscd. could have been completely naked at his hous~ if ho had just CJt home aftar being chased from wanting to sot a hous,; on fire c:~t 9 p~r:i.; ~ or why 'J according to the first appellant hinsc,lf in ansv✓:~r to a question ,by tho gcmtloman assessor, ho never informed any neighbour th2t tho docoascd had wanted to sot his, tho first oppcll2nt's~~~ousc ~n firea We rospo ct fully agree with I-fir a Toombc1 1 loarnod Principal State Lttornoy 'J that tho appeal h2s no merit O \le clisr1iss it accordingly 0 D.!'\TED at Mbo yn this 25th c1r~y of May, 1989 ~ L o M• I.11.JGJ:ill JUJTICTI OF.LPPBAL Ro Ho I{I:~t~-\l'fG.;~ JU;TICB OF LPP1i1 Lo Eo MF,.LIL,\ ~G. JUJTICE OF t?P~lL