19890907 TZCA Arusha1

) IN THE COURT OP APPEAL OF TANZANIA l AT A'RUSHA (CORAM: KI.S,'li\JG_-,, J.A., RAMADHANI, J.A., Ma MFA.LILA, J.A.) CRIMINAL APPEAL NO. 83 OF 1,s, LEO!-JARD S/O SAMBUO • 0 • • • • • APPELLANT VSRSUS TH~ REPUBLIC • • • • • .RSSPONDENT (Appeal from the conviction of the High Cou~t of Tanzania at Arusha (Mwakibete, J.) dated the 27th day of May, i988 in Criminal Sessions case No. 56 of 1,s7 JUDGMSNT OF THE COURT MFALILA, .J .A.: This appeal arises out of the ~onviction of th~ appellant LEONARD .SJ\MBUO for the murder of the deceased YP.SSIN RAMADHANI at Kibo Bar in Moshi Town on 27th Febr:-uary, 1985. At his trial, the appellant d~ni~~ the charg~ s~ying that when he arrived at Kibo Ber. on his way'home from TPC, where he had gone to cut grass, he found the pe,...son he is all~g':'!d to have killed lying on the g1".'ound surrounded by a c,...owd of people, and that the killer must have been his companion one John Gabriel who had announced. to him: "Nimeangusha mtu 11 • The tri~l court was unanimous in accepting the evidence given by P.W.1 Copl. Robert Mwakalinga '\iho not only eye witnessed the incident, but was himself almost a victim of the assault. ~ According ...... /2 ; , 2 Acco,ding to this witness, the.deceased was stabbed in the course of a commotion triggered by the ~ival claims over the favours of two girls who hc2d earlier a.rrived at the Bar in the company of the taxi driver otiki Furaha Shayo (Pot'lfo2). PoWol and the deceased· tried to interven2 on the side of the two gicls, and when th~ appell2nt s2w the deceased, he drew a knife and advanced towa,..ds him saying that _he had been afte,.. him for a long time and that he would finish him. When PoW l trio.ct to intervene, ac-::used turned on 0 I him and the two vied on each other like cocks fo,.. sometime whan the appellant turned on the deceased and stabbed him on the chest. The ,, deceased was deo.d on arrival at Mawenzi Hospital. The knife had gone through the heart. Two other witnesses who were at,th~. scene at th~ time gave evidenceo These were the taxi drive~ (P.Wo2) and the Bar owner Yusufu Masawe (PoWo3)." But th"? taxi driver did not actually see the stabbing, he only saw PoWol chasing someone whom he recognized I to be the appellanto We agree with the learned ·judge that th~ evidence of Po'tJ.3 had to be treated with caution in view of the conflicting statements he made to the police and in his evidence in court regarding whether he saw the appellant stab the deceased.- But even without the evictence of the other witnesses, the evidence of PoWol once accepted and believAd as it was by th~ trial court, was sufficient to link the ap9ellant to the killing of the d~ceased. accepting and believing the <?.Vid ':'nee of po WoL Like the trial court 0e are equally unimpr'?.SS~d by the apP~ll2nt 1 s assertion that PoWol 1 s evidence could have been motivat~d by the pre-existing grudge between them following his defeat of p Ow .1 OV"'X the favours of a girlo 3 The fact that the appellant himself confirmed to have been at the scene further strengthens PoWol's testimonyo The appellant's allegation that it was his companion John Gabriel who stabbed the deceased cannot stand any close scrutiny. He only brings out this factor in the latter part of his evidence and this it would appear in answer to the question whether it was corr~ct to say that he had stated in his extra-judicial state~ent that the person who had stabbed the dGce0sGd was John Gabriele In the first part of his evidence he gave the imp.r.ession that he was alone when hear.rived at Kibe Bar that night and saw a lot of people g~thered around a person who was lying on the ground, .and that he decided. to pr-oceed with his journey homeo There is also the question, how, even if the appellant was in the company of John Gabriel, he would_have seen John Gabriel stab thG deceased when the deceased was already lying on the ground when-he arrived at the bar. The whole tl:ling as the trial court found was an afterthoughto In his mcmo~andum of appeal the appellant raised issues regarding the veracity of P.W 9 3 the existing grudges between him and P.Wol, his identification, the fact that the murder was committed by his colleague and the non-pr.eduction of the murder weapon. We think the trial court amply ,teal t w5..th these matters and the non-production of the murder weapon cannot diminish the impact of PoWol 1 s evidence ageinst the appellanL We were in these cir-cumstanc2s not su,..prised when Mr. Shayo, who appeared for the app2llant at the_hearing of this aopeal, informed us that he had nothing useful to say in supoo,..t of the appeal. For th~se ••••••••• /4 Tho reason of spit-iing has boon 10ld both in tho extra-judicial staiomcn~ and in his ·sworn ovidonco in cour~. Ono wonders wby he did not give that reason to P.N.l. Tho appellant was not cross-examined on that so wo do not know. Likewise tho appellant was not asked why he had. no-. given that explanation to P.W.2. I'i could be argued that if the appellant was enraged by ihe spitting then ho would have said so on -tho first available occasions i.e. to P.!!.l and P.w.2. Must the failure to do so only be taken as e-vidcnco -\hat "this reason is a concoction? Wo think noi. i'fo have conceded to tho oversight \ on the part of P.W.2 1 a police officer~ to record ~he reason given I by tho appellan'i. !fo are prepared to concod0 that in the confused mental state tho appellant made a.n·~vorsight ·in not giving fuller account of what transpired as he has done la for·. In f ac-i the appellani in cross-examination said~ 11 1\Iy ox~ra-judicial statement is correct bu1 when I narrated tJ.10 story I was s-till suffering from 'iho confusion because I had killed my moiher." • . The oxira-judicial sta"iement was rocorcfod a day after tho. incident. ' confused then; how much so was he just a little whiic after If ho was thus tho act. In absence of specific evidence to the contrary tho appellant has to be given the benefit of doubt that he could have boon so confused as not -.o mention tho spi -.t-ing as another reason for ?in being provoked. We have -io deterr.ti.ne whether tho three reasons given arc probablo. Tho appellant himself, despi to 'il10 money claim, said ho never had a quarrel wi1h his younger brother. Ho also said tha1 that was 1he first limo -ihc deceased made the allegation.concerning inheritance. He added that 11 I trusted my mother until her doa'\h." P.W.l in cross- examination replied that as neighbours tho docoasod and herself used to visi~ each other. Earlier on in examination-in-chief she had saidg 11 I knew of no quarrels botween the accused and his mother during "iho "time I lived wi -\b. "ihom as a neighbour." This cas"is doubts to any suggestion - 5- that tho appellant. went to his mo"i~or with the intontion to kill hor. Then tho appellant had said, and ho was not contradicted, that tho panga • ho had used was one of tho "iwo pangas belonging to "illo husband of P.W.l which wore at ~he si"io. Tb.us ho did not go ~hero ar~ed. Ho moroly picked-up the panga upon bGing provoked. P.!f.1 had said that she would not have hoard a.ny conversation between tho appellant and tho deceased w!uch might have "iranspircd before iho slashing. In the absence of 9ny evidence 1o suggest "iha1 he wen1 thoro wi"ih an in"i3ntion to kill, there might havo been an oxchang-o which precipitated the spitting and tho :fatal a "ilf ~J,., It is a :f'undat1ontal principle of our law that this doubt be resolved in favour of the appellant. The question is could any or all of th~ th~ee r~aso~s constitute provocation • • , , . P.rovocc:r!:~on_ must be jud?ed by the. standar? of. an ordinary • 1 PE:rso~ of th~ c.ommunity to which the accused belongs (Yoran v. Uganda /I9707 Eol\o 405) • '.l'hat waf to be decided by the• assessors here •• · Unfortunately J:he t1lird assessor did not iay anythil'}g regarding provocation in his opinion. The first assessor stnted: ' > "Hnd he inflicted only one p'anga cut, the defence of_ provocation would have been p.r9bable". I . \ ThE'! ass-::s~or misunderstood the law. In th":? ciPf>:'nce of provocation • II. ·1, , ;, ♦ .' murder is estcblishcd but mirigat':i by th~ fact that the ac~used was provoked (Sec:ti.on 201 of th~ Penal Code). So the number of custs I{: ~ is immaterial. Thus this assesso~ in effect found that th9re was pr'Ovocation. Th~ second asse-ssor sa1r1 "Acr:us~d 1 s defence of 1 provocation is not probable, he ha1, ash~ ~~~o-1~d in his P.xtra- p . judicial st;:1·ccmcnt, Exh. P·.3, hc1.d misunderstandings and strained ~ relations wi ,ch his. mothe'T'.' and- younq,er broth':r. 11 ••Q.•.···/6 .. .......1 6 rt cannot be seid that the assessors ruled out p•ovocation. The 1oubt h::.s to be resolved in fe.vour of the a;:rpellant. l\part from provocation there ls another ground! All the three assessors, as well as the l~~rned trial ju~ge, put much emphasis on a matter which is not suppd•ted ~y the evidence on recol".'d. Th2 first essessor said: 11 He intended to kill his mother which was why he w;:1ylo.id her on the way when she went to fetch watero" The second assessor opined that: I 11 The v.ccused waylaid the deceased on her way to fetch watero" Yet the third assessor repeated that: The accused started pre-meditating the murder 11 of his mother then. The accused left his home at ' Rc:'.U .and went . to way lay his mothe!'.' at PoW.l 1 s home. He therefore had set his mind to kill the deceas2d which effectively ambus'h~d hero o,," The learned judge in her judgment said:- ,,.., •• the ::l.CCUSed got fed up with the Stl".'ained relations between himself· and his deceased n1other so he decidi?d to way lay her. on her. way from the furrow du...-ing which successful ambush the accused fatally ••• 11 Elser~here she said:- 11The conduct of ambushing his victim, the deceased, establishes beyond all reasonable doubt that the killing was premedi t2ted • 11 With all the due respect to the lear.ned trial judge ther.e is no ~ evidence on record that the appellant ambushed or waylaid his deceased mother. rt is our well considered view that the convtction of murder is based on that misconceived finding. According to the appellant himself, which is the only account of w}1at happened, he had gone to see his mothei:- at her house. • 1-& • o e •,. /7 7 There is where the conversation started. Howeve.r, the killing happened at the house of PoW.l. If the appellant had gone intending to kill the deceased in all probability he would have done it in the privacy of her house. Then the appellant was not armed when he went to his mother .. He had picked-up the.panga at the house of P oT,<Jol · after the verbal exchange leading to the spitting a!1d slashed the decea!:led. We are satisfied on this account that there was no wayiaying at all. We therefore allow the appeal, find the appellant not guilty of JUSTICE OF APPEAL Ao RAMADHi\N I JUSTICE OF APPEAL Lo Mo MFALILA \ JUSTICE OF APPEAL \ \ ·;~~f__ J\Gr, ( S o S : Kfu DEPUTY REGISTRAR.