19910516 TZCA Dar es Salaam1

. - . . .. ~ ,,.. .':.:-'.-. :.:{· .. ·•. . .1 IN rJE ccrJRT oF 1i.i?PE1:Il'< oF T.~.HwTr1i. A.T DJ..R ES SW.lilii (COR!J-h CRIEINt.L ii.PPEJJ, NO. 164 OF 1989 BETWEEN DJ.NIEL MA.OGELE /lHD TWO OTHLRS. • • • • Jl.PPELLJu!TS liND THE REPUBLIC. • • • • • • • • • • • • RESPONDENT (Appeal fro.:i the conviction of the High Court of Tanzania at l\1twD.l'a) (Maina 1 J .) dated the 20th d.:-,y of Septenber, 1989 in Crininal Sessions Case No:f 14 of 1987 JUDGhiENT OF THE COURT On 20/9/89 in the High Court at Mtwara before Maina, J_. the three appellants were convicted of the nurder of a scclil'i iy guard at I.foheaa· in Ma.sasi District, They were each sentenced to death. This was after a. joint trial with nnother persron, one ~fazoea Hasani, who was acquitted. Mr. Marando, learned advocate, appeared for the first and second appellants who are full brothers, Mr. Ngalo, learned Counsel, appeared for the third appellant, while :Mr .. Kyuki, learned State Attorney, appeared for the Republic, the respondent. The following facts were not or c.re no longer in dispute. In the ·evening of 2/10/85 at about 8 P•D• a nan called Abdalla..1. Liyaya Wc?,s violently killed at the Mche□ a clc.1.1:1 in· tlle I•l9.Sasi District. The D.ppellants Da:aiel Maogele and Raja.bu Maogele were present. As nentioncd above, the two are full brothers+ They livcd :iJ.1 the neighbourl1ood at I,lkoncmdo village. McheL1a dan belonged to the r~inistry of Water and lies at a ,· 2 distance of 2½ uiles from the Naso.si tovmship.. It is a source of water supply for that t·ownsI:ip and a pur.1ping r.1achinc was 1002,ted nearby. J..t the naterial tine the r.1M~:inc was under the charge of a raocJ.21:1,nic PW.1 · Har.usi :~a.an Li:per.iba.. Four non were cnployecl to keep we,tcl1 at the cbu, including the doccasccl Liyaya. and PU J2 John Chi:r:,aka., and t!icy clicl so by rotation. Like PW,.1 Liponbn, the four sccuriJcy gt.1.1.rds lived in a canp adjacent the dan. Fish had bean planted in the clnD by the Ninistry of Natural Resourcos, but fishing was prohibited and there is reason to suppose that this ban was oonnon l.mowlcclge a,-:1ong the residents in the surrounding area. But a group of four nen sot out for tl10 dnr.1 in t!1at evening intending to do precisely that. Tho two l\Iaogele brothers were e;:1ong the four. Tho group had a fishing 1-ict n.nd weapons i.e. an a:i:e, a po.nga and a knife. Daniel had oarlier soug'.1. t or pretended to seek poznission fron PW .1. to fish in tho clan, w!.:ich was explicitly refused+ In actual fact PvT., 1 ~1ad gone far as to warn Dw1iol against such a ventu.reo But Daniel had reoarkcd to PW.1 nattcr-:-of-factly tliat thoy would do so, cone w!1.at r.1ay •. In these circunstanccs it must be said quite bluhtly that each of t!10 four knew tl1at ho was on a cri□ incl venture• It was the tun1 of PW.2 to guard t!10 c.l->.r.1 on that nig!1t. ·But PW.~ had not t;_;lcon Dnniol 's defiant c.leclara.tion lig!1tly and hD.d ta.ken the precaution of beefing up tho socuri ty by posting an ad.di tionnl g'Uc.1.I'd, na;.1ely the deceased Liyqfa. One of t~c guarcJ.z was provided wi t~.1 a fire;:i.rq, a sub-auJconatic rifle, mcl tho ot::or took a bow and arrows. While on patrol nt tl10 de..'J tho two guc',l'ds. encountered tl1e group, this w~1en tho group had n.lrcady sGt the net ancl woro pulling it to haul t!1eir Cfl.tch to tho cla.-:i-shoro. One of t110 fo1.1..r :ion struck Liya.3ra heavily on the head with P. s:1nrp weapon cnd Liycya cliccl on the spot. 12.:cor t!1e doctor doscri bed his injuries as a cor;-ipouncl fracture 2.I'OUnd t!1e occipital n.nd perietal areas on t11e lc,ft side 9 the braL1 coning through tl1e site ancl assigned the co..mic of death to concussion of tho brain. It is beyond rational argunont thnt Liyeya was r.mrclorod •. . I· .. . I• 3 The presence of t:10 t~1ird 2,ppcllant Kausela Ja;7.adini Ik,ssc:in is a live issue in tl2is o..ppoal, just as it w2,s nt t>.,_c trial. Kausela is related to the MaoeGlc brothcrse He is a cou:::in<> I-ic r<::sid.cd at Nguoe, a distance of ten niles or oo fror.:. the c:1£.n. He vtas n peasant and fisheman. In, his evidence PW o2 rclatcc.l how t~:i.o c!.eccasocl wc1.S suddenly attacked and how tl:e HaoGelo brotl':..ers, wllOD ho lcncw before, c::i0rgod inst2,ntly ancl c2nc to st:.iJ.1cl beside hin, 0110 on each side. Ho also related how o.. t!1ird raan, tl:o only otl1Gr nun ho saw around, lunged fron the clan, drew a panga fron his i1ip a;r!.d stl:'uck ~1m and nissctl out. PW.2 dicl not know wb.o t!10:t r..1a11 was~ explaining t~:.at it wcs c.1.-,.,rk. Tl:at is also wha-'c he ~1ad rel;,;i;ecl to PW .1 " So PW 02 hc.:.rdly inplicc:itcd Kauscla. in t!1c murder. Indeed, as we sec it, t.!J.c case against Kausela depended largely on what the co-:accu.socl, the M:i,ogole brothers, told the police, t!10 Justice of tb.e Peace DJlcl the Cm.:trt o The sta,teoonts w.!.1ic:1 they ,:1ad.e to thc police end tl1c .Justice of tho ?eaco on 5/10/85 were laid before t.!.10 High Court as part of ·t1j_e prosecution case egainst all the four accused persons, and wcr? Do.Xked exhibits P/)1, Po4 n.nd Pe.5e One of t~10 CODDO11_, consistent and serious clloge.tions in t~:.ose statcncmts wns that Kausola as well as his hi·otl:er Mnzoea were in tl1oir conpany n.t t:10 cb.-:i in that evening, Kauscl<1. ce..rrying on a;x:e. Ma.zoea clid not give evidence. But Kauscla did ancl !le flatly denied DXJY' involvo::1011t in tl~e nurde:r1 cl2.ini11e thr.t he was in his village wtcn the off once was coiJDi ttcc1t Ile told tho Court tlle,t :2is ot!1or brother DW~4 1.:U'.unnn:i. Rr.,s:::-..n:J. suw hin ['.;1; ·~c:t place n.round 7..,30 P•D• on that dey" But ·t1.:o ovidcnco of m1~;1 lent 1:in no support ro1c1. we therefore agree wi t1:. tlw finding of t::c loQ;L'!lccl ju~o thn.t tl10 nlibi ,, -,r.,/4 ,, l"I '~ ,l;i.., - 4 - The judge found that Ka use la was present at the dam when the offence was committed. He regarded the evidence of PW.2 as sufficiently corroborative of the evidence of the Maogele brothers. We respectfully think otherwise.. We agree with Mr. Ngalo that the judge did not analyse the evidence of PW.2 properly. The juge added, however, that he was prepared to act on the evidence of the Maogele brothers alone. He said so while apparently g_uite aware of the rule of judicial prudence that requires a trial Court t'o warn itself that thougq under section 142 of the Evidence Act, 1967, a Court may act on the U.'1corroborated evidence of an accm:nplice, it is dangerous to do so. Judicial pronouncements from respectable sources hDVG it that this rule has become so integral a part of the adrainistration of the criminal law as almost to have acq_ui.red the full force of law. In giving credence to the evidence of'the Maogele brothers that Kauscla was present, the following ci.rcurrstances weighed heavily with ·~he judge~ the consistency of their story,· the absence of an apparent motive for lying against him, their near kineship to Kausela and the fact that they did not implicate Mazoea. With resl)ect to Mr.• Ngalo, we think that th,;; judge was entitled to do so. The: other ~erious allegation made by the r!UJogele brothers against Kause:13 wDs that he was the one who actuDlly inflicted the fatal blow upon the deceased, using c:m axe"'! According to their accounts, Kauselo was the one who hDd brought the axe and the fishing net to the dc:ira. They so id they did not know that he would' use the axe that way,. nnd ]Dniel for one admitted that an axe wos not needed in the fishing venture. The substance of the evidence of the two brothers was as fallows. The two brothers happened to come foce to face with the two guards. They sow PW ~2 carrying a gun while the deceased, who was in drink, had cJ bow ond arrows • They saw the twq guards exchcJnging the weapons. Next the ckceDsed moved clo'!cr to Daniel, aiming at him. Mazoea had then slipped avmy. Daniel apprehended that the deceased might d ischorge the gun or run the bayonet into him. So he grabbed the gun to head off any ••• /5 • 5 • possible blow encl [1,t the sa:-.10 tir.1c ho appcalccl ·to tl:.0 cl0coasod to cool dovm, telling hi::i t:~2/i; t'l. rosourso to force wc.s 1..mcallod for. Tho dccee,sed called out -to PW a 1 2,11c. at that. point Ko.1..1sola who !1e..d energod out of the water hi·~ t~:co docoasod with t!.1.0 n.:;::0. Terror had struck a...-icl. the two brotl1ors c1.i1cl PW .2 flad fro □ tho scone and clispersed, PW .2 tcldng the gun with bin. In view of the suggestion that was r.1aclc on be!::.eJ.f of the . appellants, namely -'..;!10,;1; t~w killing was done in sclf.-dcfcnco, we clccr.1 it helpful to quote whnt Daniel statocl fn l1is o.r.:tra-judicial sta.ter.1011t about t~at encoUl).ter: "I Sai-T ·i;1:o clocea.sccl ce..rryi:-iG a g,.1.n., I did not lmow i:t' ~:.o wa11tcd to s!1oot o I grebbcd the gun and took it fro□ hin ... T:!e clocc['..sod s2.id he wanted to tclw us to t:1~ Caf.J.P• He cdlecl Lipoubo. 1t1cn deceased wns cc..lling Lipa:ibe, Jo.,.":lo.,cJ.ini stood on t~1c dcconsc·drs right side• .l.t t~:n:l; tii.10 1, C:.1ipclm nnd ny brother 1rnre requesting tho clecc::asocl not to bo too ad..::"\l'J.ant • Suddenly Ja;.:12.clini liftul !:is a.:::e c'..ncl hj, t the docc.asccl on the head-on t:.J.G rigJ1t side of the f orchcc..d:. 11 But thG evidence of PU.2 pn.intucl a different picture and it was a.s fol101-1s., In the course of t~:oir patrol tho clccecsod noticed sonot!1ing in tl:e a.an, ~hey b.nd bec::n wc:-.n1otl by PW 01 t!:n.t people would probably cme there to fis1: in t!10 c1nn. T!:c clocG2,socl 6 2,vc a whi::;tle al2,J.'IJ nnd he PW .2 went I nearer to t110 decet1.sccl, c,nd. b.e too saw an object in tl:e water. · J3ef ore long he l1earcl 2, SO'Ul1d of a blow c1.nd saw t~:e clocoased dropping clown. Soon after the Haogdo brotl:ars appoo.rc::c.l and stood beside hiu, dn."J, charged into t!:cir ::1iclst cli1cl eg5ed cm tho 1-fo.,ogolc brot!:ers to wrcalc noro violence, saying ''Na huyo rn:ializo 11 ,. Tt0i1 that □ an drew out a panga, swung it aloft and l1c1,cked at l:ir.1 twice. I:Io bobbecl. 2J1d successfully avoidecl tho lJlows. Out of #.e- frig~1t ho r~.n off with t:1 0 •.•/6 ' • 7 conteoplaticl, as a probability, the.t one of ~1is coopanions woulcl, in t'.10 prosocv.tion of the -~~:of-t, uso 0:'.10 of t~10 lothcl weapons they carried oi thor to kill t~:o g"L'.[',rc1, prosuw1bly so thd ~a s:1ov.lcl not o:~poso tllon, or cause hin grievous h2.n.1, prcsu-.1ably so t:::._,,_,t he could not prcvc:.1t th0i':1 We have oome to t~1e; s2,.-:ic conclusion. We o..rc Sc'."!iisfied tI:at when tho appollc1.n ts dofi eel PW., 1 's warni:.1g and sot out for tho cl:n 1 tl1oy lmcw tl1ti.t t!:e ple.cc would be guc,rc.lccl ·c.,11cl that tl:cy woulcl noct rosistrJ1cc. We i arc satisfied tl:at t:::.cy prqxi.recl. tl:cr.;sul1.;cs to ovorcono the resistance and the,t t!:is c:::plains why cne of -li!wr.1 took tl:c a:i:c. Dnnicl told it all 1-6cn he concedc;;cl thn.t one clid not nccc.l a;, 2.::e for a fishing trip. We think it is a fair inf crcnco t~:at each one of tl1cr.:1 l:2.cl an undcrstancling wi t!.1 tho ot!10rs, as part of tl:cir cor.r.1011 closir,11, thO:.t cij,;!:or causing death or grievous !1G.l'f.1 s!:.oulcl, if necessary, be rcso1:tocl to. In tho final event i> tJ::..crcforu, t}ieso a.pi)ec.,ls rau.s-t fail encl arc c1ccord.ingly clisr.1issocl .. DJ. .TBD at D:.R :GS s:1,;.111 this 16t!.1 Ck."\Y of r:Iny, 1991 • L .H e HlJG'J.!E JUSTICE· OF L.PPEAL JU3TIGE 0~ ·f..PPE~L D.1:. LiLPIGiJIO Ag. JUS .I1ICZ 1 OF LPPEfJ, I certify t~22.t. tl1is :ts n true copy of· tlic original., i . /, ) ✓ LI.~,-./'-J (L.B. I{f~LEGEYJ1,.') 3EHIOR DEPUTY ·RE!JISTRJl.R