19931108 TZCA Arusha1

: \ 42085 PTE J:D:JJAHINI l-1',JAICfl.Iffii~ ) HJCX'-0.F.J: r:UNA )• im;wl'!ID .tULY ) . . .. (Ap;:ieal from t!,e oonviot:Lot. -o! t~1e Hi$ Court of T~~ at .Arusha) --- {Nehru.la J.) elate~~ the Z7t~: clay of Fe01"Ual"Y 1991. · in ·.r. •'' .Gl!::~ S,esrt,,on;::i Case Ho._j_<;)_9.£~ Jtr.)Gl1ErT OF TI:E COlflT aauamwTT, .; .A, t Dm-ing ths ~,;ht, ~£ 15'1:.h Septembet· 1 l~~ th.a peace ot ~~· - ~ 3!1ste.w ~ " , ~ ~i-,.ct,: ,,a:, 01~J..Y. c.li&¢W.•QQ<l.• A uit.Qh- ~ or-e;ret.:i.on Wa3' lllOUl'.rt,e.::. from about 8 or 9 tl1at nigi1t to the .!oJ.lotd~i Thane. ;.ncluc.le,~ ~~e:1ema Hashono ( P /'f .1) Fatuma Abclallah ( F ;,r. 2). Jelemani ?fuando (r1 .W •.'.3) and Arr,jna Jw11'Je (I',:·1.4),. E:cert ferT,!l.J. tl:e :1Uobancl of P,i'l,4 ..the tlu.·ee uomen: that :i.s r.H.1. P,W,2 antl T.H.4,were among suspected witches. Poor ladies were ordered to Wldress and to t1allcebmpletely_nalced. That was not all. they t'lere beaten uy sticks; :i.ncluc:J.nc iron rods, t:1ey were kicked around uith army 'boots and at least one of them: P,W.4, hatl her pubie hair sl1avec:i. by mea.,~ of a "sime"• .Among the miserable women .•. /2 • 2 ,·. suspects was one Asha d/o Athuman who fa:i.led to survive the Jrdeal. She died. The three appellants were :i..tlentifiecl by P.~·rv. 1: 2. 3 and 4 to h:ave-·been-ttre assailants anct·arso·the leaders qf the. operatitn. A fourth person Sha.bani :3elemani, the ten cel:I. lead.er of the l~ity; tll.e fourth eccusecl at the t.rial,. wa.e id&ntified tis l~VQ bee:t 1:i:U,h the imprisonment. for a term of 15 years· each. On the other han.cl the Hepubl:!.e/resi;)Olldent f:i.J.ad .a ~ic.o ~- rnabion ----·-·· . t' r , of appeal. Ue gi:-anted the appHcat:i.on but we r~served. (;1:v1ng our i-easans. I:" ) ."'', · We were not ir,1pressed by the reasons advanced by Mrs, $umari 7 leal--ned Sha had conductec. the prosecution at the !ligh Court but was absent when the jude,nent was given. She complained that she became aware ef the decision · ·. .,...1 • when preparing herself to respond to the appeal by the appellants and by then t:une \·ti.thin which to file a notice of appeal had long elapsed. Mr. Hunuo 1 learned advocate 1 on behalf of all three appellants, replied-;-and rigl1tly so 1 that that is an error of advocate which cannot constitute sufficient reason to enlar[J3 time. . .. ./3 • .. .3 _, The Director of Public Prosecutions 11 takes precedence over all other advocates", accorcc.ne; to Rule 31(1) of the Court of Appeal Rules. As such the D.P.P. should be e~emplary. It has been saicl time and again that - ~- -- error of advocate is not sufficient reason to enlarGe time. This alse applies to the D,P.P. . . ·. . . \' . ~~ ~ ·The~ -M;~~ Sumari argued t.h~i-t.he. wtanded a ~ 1,as.~bJ.l- chances ~f' success. Obviou:aly Mr... -1-funuo refuted that• Likelihoed. o! 311ccess: by itself, is not sufficient reason to e.:ct,end t.ime~ Chances of However . we agreed to e~nd t::l.Ine because trom t.11, ~~~ there is a glaring erro1· of lau. As this is the final ,c¢UJ't, ol · ·:il:lr this. country_. to rectify suc.h an ~ so as to meet th& &rids Af just.ice, in our opinion, constitutes sufficient reason. Horeover; we ~-~ ,,'' ,.,,.... . ·1-·· 0 \ ' t. :.f·~ ·1"'~."; (DSi-! Il.egistry) (unreported) that once an a;,pellant challenges a eonviction, I:,-:./ ,f...· ~ tl ·' · .... .,, then he has laid l'dJnself we anc1 this Court is not restricted to all9wing · - - - ,_ - · ··----- . ,. . 1 ' •,:i ~ ~~ t.hd appeal. (!fl' .f:uwing t.ho appeJ.uint ;Dli.lt.~ ~ s. lesset' ft.f'!enoe ::L~ ~!f than the one convicted of bUt. in appropriate cases, to find the appallani:, (; guilty of a more sel·ious offence which he had origina1.ly been charged with. In that appeal the appellant t1as convicted by the :::>istrict Court of robbery ~; rtt as charged. His appeal to the High Court was allm1ed and the conviction •- ,,' , ' was reduced to that of the offence c/s 31{1) of the Penal Code: receiving , stolen property, rn· his further appeal to us; and without there baing ,) an appeal by the D.P.P., we restored· the conviction of robbery. Thus ..• /4 . ,j C I•~ .. ••~ ~~1m!." .,_...,~f'''.':'••!'), ,..,,, . ;:m •-, • :"':'~;:.. ~•~;.:';. • ,! ;:~~r-t-:-~~~!4?:~FI • '•, }¥.\'· • ' ... .. •rr ~,. :-,:•~~(~ • ~r. ~oJ I • o \ J . . - 4 - ' even without the :intended appeal we would have looked into the legality of the convict:i.on of the lesser offence of uianslau6hter instead of murder as charged. 1'18 are satisfied that the ends of justice will be better served by allot·r.ing the intended appeal so that we have the benefit of full sul:xnissions by both counsel. So we extended time Ni.thin which to lodge the notice and the memorandum of appeal we received the same and consolidated the two e.ppeal.s under-Rule ·-61;- Rowever for purposes of convenience we shall refer to the· Republic as the respondent antl the convicts as the appellants. Nr. Munuo had five (P:'ounds of appealt First: he argued that the appellants were not properly identified. Then he callenged the credibility of the prosecution witnesses. Thirdly, he pointed out that it tias not shown wl1o dealt the fatal blow. · Again he souc;ht to fault the learned trial Judge for rejecting the alibis of the appellants. Lastly, he contended that the punishments are too severe. .. ,,. ... As for proper identificat:Lon Hr. Munuo pointed out that the incident · ,.,. -· took place clurine a dark nisht uith just the dim, light from 11 koroboi 11 and ,~, •',\· ; ' the .t.or.ches ....o.1'.-the appellants tthi-eh ·were; obviously, beamed --1at-ray from "'."{ \\.) themselves and toward the 1·1itnesses. He also argued that the prosecution witnesses did not give a prior description of the appellants as is requir~ by Mohammed Alui __ v._ Re;{ (1~42) 9 .EA.CA 72. Mr. Munuo reminded us that visual identification is evidence of the weal<:est kind and he referred us to our m-m decision in Haziri Amani v.-1.L(1980] T.L.~. 250. Mrs. Sumari aclmowledc;ed that authority but pointed out that the requirements outlined ... /5 • --- -- --~------4 ---c_ ___ Jl] .,\l5~:,•-~ -; ··~ · ··'7-- 5 ... t _by that decision were mot in this case and that the visual identification was watertight. Ji, :;. ' ,;, :d ; ·.!•~· Admittedly, it was a very dark night as all four prosecution witnesses 1J ~;;,; testifiecl, But, as Hrs. Sumari said; the identification \·1as watertight. -~Al • .$ ..;· ., t· The witnesses and the al)pellants were not strangers to one another., They t·:~. •:il J•f;. '• l all lived in the same locality and knew one another by .t'ace name and voice. ·., ~ Thus P ,W .1 recognised the- third appellant by voice when he !mocked her door "/~'~; saying, 11Hama Hash:imu fungua mlango leo zenu zimekwj,sha", Lilcewise, P.W.4 heard the deceased crying 11 Njogomi unaniua". • Njogomi is the second appellant. : I ,;j Not only that, when P.u ,1 open.,~--~~ door she was ordered to light a lamp and, when she had done that, she was also able to identify the first and the second appellants, Tx'U.o the light from 6UCb. sources is dim but these people were very close together, P,t-l.1 was raped by the first appellant. 'l\Jl' people could not be more physically closer than that. Then P ,W .4 was shaved her pubic hair by the third appellant assisted by the first' appellant., · li&ht . If there was enough l.;!;/.:_ to enable the third appellant to do so, then surely · i there must have been enough lig.'lt for P.1'1 .4 to recognise their faces which are not so incospicuously located as the pubic region. If the foregoing is not enough then there is the testimony of aJJ. the four prosecution witnesses. that they spent the whoJ.e night with the appellants until the following morning. We, thereforei · agree with the learned trial Judge that t..;i ~ ,; \t· ~,. 1¢ .:.\.~ I .-. the appellants were adequately identified. f? t ~< - Mr. MUl'lllo then challenged the credibility of the witnesses. He swght to do this in two t'lays. First, he pointed out tllat P.W.1 for instance said in court that she was raped but that disclosure was not contained in :-.·' •..• /6 • J ...'~~- . , ·; , 1·.... ~ _If .i ,,.. ·J ~ her P~e~a,~tioned statement. Mr. Munuo wanted us to find P.U.1 to be a --;{ 1 1 ' ·1 ~ lier. Second, Mr. Hunua contended that there were contradictions between i1 1 ~ 'I the t&.t:lmony of one witness and that of another witness, He said tbat whereas P .'iJ .1 had said that she was forced to go naked, P .l=I ,2' refuted that. Then, Mr. Hunuo went on, P,W,1 talked of the appellanto having sticks but ~-~ ~ \. { J ...~ .! ' F.l·l.2 claimed they had larl.ves. _As for P.W.1 Mr. Munuo said that she was no\~~: :; -~·I ·,<'. worth of any belief as sha had ccn£essed to have been a woman of loose morals. ; j ;' ~ Again we are in agreement with Mrs. Sumari that there are inst,ances of differeno&s the usual. Z./:~•.:. . : bebrean n.:u-ratives 0£ persons who are Jl.Ot reading ~ .J · common te::ct.. All the witnesses could not· have seen the same things. P.U.2 ·-1, <. i'{ had ans;;ered tllat she had not seen P.W.1 going naked. But she had aJ.so said i. ,..__ that ·she -nad-not seen P~tf~l at alrt11at night and ~his.wa.s.. in ~ t i o . ~ by Mr. Munuo hims•U. But that is not to SOI/ tbat, P .11 ,1 was not ther&, P,ti ,4 .l had not seen her hu~band (P,1·1.3) in the mob that night yet she had seen P.U,1 ~ going naked. But the husband (P,W.J) was very much there, Again ail the £our prosecut.i.on tr.ttr1.esse-:i ~ b a d the appellants to be carrying sticks. P .u .2 added that one of the appellant.a ~ had ~ 1.cnif,. and -tb;rt. ~ Jod.i:.b the fact that P.u ,4 ha.cl her pubic hair shaved. We woul.d have been concerned if a witness had said one thing in the Police statement and totaly another in court•. But Mr. Hunuo conce.de~that there is no such cliscrepancy. This ground, too, fails. ·,. " The third ground of Mr, Hunuo was that there 1s no evidence as to who -··---·-··· delivered the fatal blow. The learned eoonsel observed that-orclinarlly sticksi . ' would not cause death to·-a -persen and particularly when medical evidence is thl .' , __ •.•.. /7 • death was due to head injury. Mrs. Swnari pointed out that not only sticks were used but also kicks and. fists.according to P.U.J and P.W.4 r~spectiveJ.y, - were applied. To us what is of foremost importance is that the appellants were not mere spectators but they were the prime movers of what happened to tL decea:sed-anlrU1at she died in the-process. P .l'T .1 described-'-how'-t!:l.e-appellantJ were ordering the mob - "acha kwanza 11 and then "sasa kazi ianze". Thus apart from their own active part~cipation, they aided and abbeted. Mr. Munuo conceded that if death occured in execution of unlawful acts then all the participants are guilty •. 't'le may as well point it out here that it has never been in dispute that the appellants acted in concert. They stand or faJl together. Suffice it is to say here that this ground fails as well. The other gr-ountl of appeal was :that of alibi. Mr. Hunuo admitted that no notice of alibi was given as required under s. 194(4) of the Cr:i:nfinal Procedure Act. llo.·1ever. he made a distinction i·1l"dch 1 with due respect, we found it to be novel if not inconprehensible. He said that a notice is required when a person pleads alibi, that is, he was elsewhere and· not at the place of crime. But in t!ie present case he argued, the appellants have not claimed to have been away but that they have admittecl that they were within the locality e;ccept that they were absent from the very spot ~n \·thich the offence was perpetrated. In such a situation, he submitted, no notice . is required, He cited The King v. 1·Iilliam Littleboy (19.34] 2 K.B. 109 as his authority for his submission. Mrs. Sumari maintained that when somebody pleads that he Nas not at the scene of crime, then regardless of :/r , the distance between the two spots, that is the place he was and-the-scene •.... /8 • . t Ll~,~c: - --- .:-...- ____-T- ..., ------==-) .. -:. ,.:., (. :.. .,;,:~l. ]llr. ·"t•·.• v•a~ _lr~\~"14_.·~ .,.i11•·,~ . '\';~ ,_.;,!··•,.;.-· ·., ,,·.;.:;Ji)h. ._;_'·,. 8 ._;r.''• '!,:~. > ; . . . ·, ·:;i ·• ';-1 of cria,e, he is pleading alibi. 1 As we have intimated above, we have failed to appreciate the hair- ·~· ... splitting distinction soueht to be made by i;i.r. i••unuo. The learned trial ! ' Judge pro.r;erly quoted The Concise Law Dic..!_ionary by Osborn, 5th ed. that t! ·! ·:' "Ali bi .weans elsewhere. It is a defence .J. J!'. 1.• where an accused alleges that at the.time when the offence with which he is .c.harged I:f: was com0ii tted, he was elseuhare •"·' l1 According to s. 194(4) and (5) that allegation requires a notice to be I I:I'· r given by the dafence before the hearing starts or that its particulars be furnished to the prosecution at any time before the olose of the case for .•)'· the prosecution. However, if neither of the two is done, the court mey, ' t in its discretion under s. 194(6), accord no weight oz any kind to the ,:j r l ( defence. That is _precisely what the learned trial Judge did and we do not ! -1! <L, see how we can fa.ult him. This is esr,ecially so after we have upheld him ~j i: · that the appellants were adequately identified and that the witnesses ,· ! r,, are truthfull. ·, t We ruey add that the authority of· The Kina v. William Li ttleboy i ij has no relevance whatsoever. The issue in Littleboy was whether the -:1 ): coOJments of the learned trial Ju~"e on the non-disclosure of the defence j1 2ii of alibi by the accused person, constituted a misdirection to the jury. The King's :Be_f2c!_l?ivision held tha:t.. ..i:t had not. \' !i'I • 11 r· :\ !~,, The last ground of appeal was that the punishment given to the 'r ! ·, appellants is severe. We propose to ski;;, this ground until, if necessary, j'1 we have disposed of the Republic's aPDeal. ! I t ij" So far we a.re at one with the learned trial Jud.Ge that the appellants I killed the deceased. But was that killing nianslaughter, as liTCHALLA., J. l· found, or was it 01urd.er, as the Republ:i.G contends in its apl)eal? ''I, \ .... /9 ,~ I· I \ • . .I 1 I ~ ) ;•,I I ~ ... -~ __:__:_-'- ii --"°'=-~--:- --··---- .. -----. 11 Tb.e ha.rrassment a.nd beating of the arrested suspects was a result of an unreasonable provocation on the accused and the other assailants which does not find room in criminal law. However, any a.ct corumitted in such a state of mind and belief of witchcraft, however, unreasonable it may be under the law 1 the same, in my view J cannot be said to have been done with an intention to oonimit a felony. :... So, the accused's intention in assaulting the victims does not qualify under paragraph (o) of section 200 '. I of the :Penal Code." ~irs. Su,.:,ari submitted. that the ap1>0llants were effecting unlawfull arrest and that ell the deeds against the deceased were also unlawfull. The learned Sta.ta Attorney argued, and correctly, too, that any res_istance by the deceased against the appellants could not give rise to legal provocati:on. ·-i:-irer. Sunia.ri ·also argued: a68,inst provoca-tion by-wi:tohcraft. She cited Eria Galikuwa v. Rex (1950) EA.CA 175 for the proposition that belief in witchcraft ,wr se. without there being any overt act, does not consttute provocation. Did the appellants in-tend to cororui t a felony? 1.i.rs. Sl.llDari was quick to answer that in the p-~si tive, She said that the appellants had intended to cause grievous harm to the deceased. This, she said, could be inf'erred froru the administration of beatings on the deceased by sticks, kicks and fists, til's. Su.a,ari said that the mere arruing of the ap_pellants testify to their intention to use force• She· cited ~~sengi s/o i./,kuwbo and Another v. Regina.II' .!J95'Jl E A 500, •••/10 ... 1: I \: i ~, .j I ·j • . - ---.. Mr. Hunuo responded by sayin~ that murder is defined in s. 196 of the Penal erode ·an.cf to-establish it proof of unlawful act is necessary. Uhat-the appellants didr he submitted, was perfectly lawful and that they had the sanction of their ten cell leader who was the fourth accused at the trial. The learned counsel further pointed out that there was no ~~press malice. Apart .:from the inferred malice, as appropriate]y sul:xnitted by Mrs. Sumari, there is ample D.vidence of e,~ress malice. P. W. 2 said tl;at the deceased cried.· "Mbona mnaniut·la jamani? 11 The appel.lants replied 0 nGoja tuku.pige tuku.ue J.a,sa vile wet1e ni mchai·ri" • Earlier on P .tt ,2 testified that the appellants assaulted the deceased saying "m?igeni mumuue • • • Huyu. ni · mchawi11 • P. l:l .1 deposed that though the deceasG<l was thorourjuy e~:hausted yet the appellants continued to assault her. As we have shown, malice aforethought under s. 200{c) was proved because· ., the appell.ants committed fellonies. l-Iowover, s. 200 provides ti-10 other 't relevant instances of malice aforethought. Under s. 200(a) it is enough ::5 I 'i.l '•,· there is intention to do gr-ievous harm. The evidenle a v a i l a b l e ~ .. T·' ·fl I . bears that out. Then s. 200(b) requires mere knaw.led.2,-e that the act caus-i__ng t "".'.~ death wi.11.;,:,robably cause death or gr-ievou.s harm a).thougll such 10').Qlt1ledge is . } t:: accompanied by indifference whether death or grievous bodily harm is caused . :-l.,:' or not, or by a wish t:1at it may not be causecl. The appellants cannot be t·:. ~Li.:;. . 'T saicl not to have had such lmowledge. Thei1.· very words admit such lmowledge. 1l.,{ f.. H 11f• We have not a fi:i.cker of doubt in our minc~s of the-de·c·eas·ect---was idtlrmalice af6rethc·.ight. therefore, that the killing We consequently__quash the ti' r~ , t:.: .•1•·· ~!,, conviction of mansln.ighter and set asic:e the sentences of imprisonment. ,, •).: r-· ••.. /11 'j :l!:_:~::·:. I i,i-: f: • . t~' ) I !''... I ! ~--- - 11 We find the ap_pellan ts guilty of mu.rd.er c/s 196 of the Pe_nal Code and we sentence them each to suf'fer dE.iath by hanging. The appeal by the three apDellants/convicts is dismissed but the appeal by the Republic is allowed. It is so ordered. DA.TED a.t A..J:UJSBA. this 8th day of November, 1993. I certify that this is a true copy of the original • ...c. _ _ __,,.,:-:.4-._ :.-c,:, .. . u ·E, J • lrY!Jir;J,St.GJ,.rUl DERJTY TIEGIS'I'Rl..R l :I ... ii l i ·1 1 I II ! • ...