19890830 TZCA Arusha

\ IN TIIE COURT OF APPEAL OF TANZANIA , AT .ARUSHA (CORAM: IITSANGA~ J.A. 2 RAM.A.Dil/lJIT, J .A., .And MFiiLILli. 2 J .A.} CRDITNAL APPEAL NO. 76 OF 1989 ABDL.LLLJI SJ~IDI ••••••••• i .APPELLl...NT VERSUS Tilll REPUBLIC •••••••••• ~ ••• RESPONDENT (.t~ppeal .from the conviction of the . High Court o.f Tanzania at l..rus1..:i. (Munuo 2 J.) dated the 19th day of J~pril, 1988 in Criminal Sessions Case Ng• 22 of 1985 JUDGMENT OF TTIE COURT KIS11.NGA, J .A, a The appellant was charged with and convicted of murder l;ontrary .. - '~-i. to section 196 of the Penal Code, and senimrc~d to death by the High Court (Munuo, J.) sitting here in 1..rusha. He is now appealing against both conviction and sentence. In this appeal Mr. J. J. Mwale is representing the appellant while Mr. L.. S.,. C•.. Mu:ghwai ~P~~ars for .. the respondent Republic. The appellant's conviction was based largely on the evidence -of P.1r.4 which may be suranarizcd briefly as follows& During the night of the incident the house of one Habiba Ra□adhoni was sot on fire. l1larm was rais0d and the villagers, including P.w.4, answered it. At the scene of the burning house Habiba ncntionod the d0coascd as the suspect of tho arson and kopt on cryinge Shortly thereafter the appellant who is Habibais son appeared and comortcd his ~other with words to the effect that he had finished th~: · job1 that 2 he would re-build the house and tha-t she should stop crying nowo this the villagers became suspicic lost the appellant Lri.gb.t have revenged :. ~',f on the deceased who did not answer the alarr.1 al though he lived only about. 5~ paces away. vfuoreupon P.W.4 and some filili tia men including P.W.3 went to the house of the deceased to chock on him. They found him sleeping in his house and on asking him he told them that he had not hoard anything, .• whereupon they returned to the scone_ of arson. J.. t the scene of arson they found that tho appellant had disappeared again. So P.w.4 went back the house of the deceased, this tine accompanied by P. n. 2 and P. W. 3 and there they found the appellant assaulting the ·deceased with kicks on the ground. They brought the deceased to tho scene of arson where the appellant assaulted hir:i again. This was followed by confusion as there were nany villagers theron On that account arrangements were mado to have the docoas?d escorted to the police stntion by Ilabiba, the appellant and two militia raen i.e. P.W.2 and P.W.3., On the following day PeW.4 was inforr.ied that tho deceased died, and according to the medical report death Wc.S duo to acute internal haemorrhagee The ~ppellant's defence was that on answering the alarm he tried and managed to rescue from the burning house his mother Habiba, his own child who was staying with Habiba and some items of property. Ho agreed telling b.m mother not to cry because he had finished the wo:r::k 1 ocan,i:ng that he had finished tho work of rescuing her, her granddaughter and property from the burx~.ing house fl adding that ho would re-build tho house. Ho wont on to say that after tho rescue operation he-took his daughter to a neigh.hour for shelter sone 50 paces awey and then re.turnad to the scene of arson. He denied going to the home of the deceased that night and further denied assaulting the deceased anywl1ere 0 - - 3 ... In convicting the appellant the learned trial judge relied on ~he evidence of P.W:.4 when he said that on the second time whon he went to the hoQo of tho deceased he fo,md the appellant assaulting the deceased with kicks on the gTound and that on bringing the deceased to tho scone of arson tho appellant further assaulted him thqre. Tho trial judge also relied on ~10 appellant's otateoent to Ilabiba, his mother, that he had dpnc tho job. Mr. Y.twalo submitted that P.W.4 on whoso evidence tho conviction was based, was not a reliable witness. Thero is a lot of merit in this submission, First P.w.4 1 s testimony in court is in sharp ·conflict With his statement to tho police. In his ovidonco in court ho stated that he saw tho appellant assaultinc tho deceased first at his (deceasod 1 s) hone and later at tho scon9 of arson. But in his police statement which was received in cvidonco as Exh. D.l ho categorically denied seeing anyone assaulting tho. ' deceased during tho incident. . Secondly, his evidence is not supportocl by othor ovidonco. llo states that ho was with P.W.2 and P.W'.3 when tho appellant assaulted tho doooasod both at_his (docoased 1 s) homo and at tho scene of arson. But P.W.3 1estifiod that at tho ho□o of tho deceased he only saw one Jumanno Eme..nuol dragging the deceased, adding that he did not soothe appellant assault the deceased. On tho other hand P.W.2 categorically sta<ted that ho did not seo the appellant assaulting the deceased at the scene of nrson. Thoso were clear contradictions and inconsistencies involving the t::;stimo:ny of P. ir .4. The learned trial judge did not address herself to them. To tho extent she did not, sho was clearly in error. She ought to have considered ~hem and; if possible, resolve them. liad she p~operly directed herself on the matter we are certain sho could not have found P.W.4_ to be so reliable as to warrant basing tho convi9tion on his evidence• •••••• /4 • 4 The trial jud13B also relied on tho ap~ellant's statement to his motho~ that he had done the job. She cortstrued this to mean that the appellant was saying to his mother that he had revenged the erson by assaulting the deceased. But this construction becomes.untenable having regard ~o the sequence of events that night as narrated by P.w.4. P.w.4 testified that upon tho appellant addressing that stateracnt to his mother, he (P.w.4) and other villagers wont to check on the deceased for fear that tho appellant r:ri.ght have revenged on him,; but they found tho deceased sleeping in his house, and on being asked ho ste,tod that he had hoard nothing. Thero is no suggestion that tho deceased had been assaulted at that stagoo Then how couid -tho appellant have said. that he had revenged by assaulting the doccc1.s0d when tho doccasod himself is not shown to have been assaul tad but was sleeping in his ::iouso? . That was yet another ground for attacking tho va.lid.i ty or soundness of the appellant 1 s conviction. looking at the case as·a whole we are satisfied that the evidence before the court was not sufficient to sustain tho appellant's conviction. J3efore we take leave of this matter there is one point which we need to COiill:lont upon al tho'U€}.1 very briefly. It is noted that in this case counsel for both sides wore permitted to make their final submissions in writing. Ilowe'V'Ek', ~hat permission was granted 9 and the written submissions were received, by the court only after 1he case was sur.u;ied up to the assessors and the assessors had given their opinions which a.oounted to a unanimous verdict of guilty. That procedure was obviously wrong. It should bo understood that the purpose of the final auboissions by counsel is to facilitate the understanding of tho oase by the court. It is to highlight points ••• ,,/5 ' \. ' . 5 of difficulty in the case touching on the law or on tho 0vidence, and to put forward suggestions.or possible solutions where that is possible• In sl1ort, the whole exercise of final subnissions by counsel is geared to enabling the court to understand the case well which in turn enables it to qo□e to the right decision in the rJa-tter. :But the court for tho purposes of tho proceedings at hand included the assessors whose role was to advise the ft.rial judgo on tho final verdicti, The assessors were the part of that court who n00dcd counsel assistance r:iost. Indeed it so happened that the evid0nco in tho case befor0 tho □ involved difficult points of contradictions and inconsistencies which called for careful analysis and close guidance as to tho consequences of these on the credibility of a witnesse The assessors were denied such assistance by counsel. To that extent there can on bo no guareJ1teo the,t their advice to tho jud~L tho final issue as to tho appellantts guilt did not suffer. Admittedly tho learned 1rial judge rocoivod tho subnissions I before WTi1ing her judgcrJent and there arc roforoncos in 1hat judgcr:ient indicating tha1 she did take into account tho subr.lissions by counsel in proparing that judgement., That is to say, she did r.iake use of the counsel sub□issions. :But tho point is that she would have made fuller use of those submissions if tho assessors had had tho benofi t of the1:i before they gave their opinions to her. In other words if the assessors had hoard tho submissions before hand they might have given a different opinion. Alternatively, her summinc up to tho assessors ~ter hearinG the subfJissions would have been noro corapleto and me;b.t have influenced their opinion one way or ihe 01hor. For these reasons it .is accordingly stressed that in a trial with assessors the judge should ensure that tho assessors have 'ihc benofi t of the final submissions by counsel before givi!lf:,' their opinions 0 ••••. /6. 6 ..... With that remark we conclude this matter by allowing the appeal, R. IT. KISliNGA JUSTICE OF 11.PPEAL lt. RJJvUi.DIIluU .JUSTICE OF 1..PPEhL JUSTICE OF .tJ?PE11L. is. a tr110 copy of tho ori&inal. ;t:l;:.,/·/~-- ( So S. K11IJME ) DEPUTY F]JGIST,:U.R.