19931025 TZCA Dodoma

IN THE COURT OF 11..?.c';I;_l:J, OF Ti'.1JUJ'II.A: /if DOOOJIA ( C01letl: HAMISI Ii'8!JRE, • , • • • , • • • A?PELLAH'.r A:ill T~IE I!EPUJ3LIC, • , • lli!,3PO1l])ENT (Appeal from the convicti0n and sentence of the lli..gh Court of 'Ianza:.1ia at Dodoma) -.do.ted the 24th dti,y t,f I-Iay, 199:3 in .Q.-t:.irnina,J. Jiessions. Case_ Eo ,.7i of\ ! 9.21 '\ The appellant Hamisi i'f;eure Has convicted of tte murder •f ~ne Abubakari s/o Shabani and was sentenced to dedh by the High Court sitting at Do<,loma (Hwalusanya, J.), ::fa lod;:_;ed tbis appeal against both his conviction and. the sentence of death, At the trial two Hi tnes,3es ga-;e evid.e110e for the prosecution. These were the deceased I s neighboux Erl::adi s/o Nwakagile (P\-l .1) end the Justice of the Peace David lfauri (P.!, 2). Erkadi I1we.kagilt! \ .... whose evidence was hotly contested botl1 at tl1e trial and in this Court, told th~ trial c~urt that ,.,n 16/3/89 at about 1.1C a..m. he . was awakened by an alarm from t;1e dece2,sed' s house, He proceM.ed · '·c.here and found the deceased' s two wives crj-ing, The deceased himself was sprawled ~n the ground \•Ti th serious injuries, The deceased then told him with difficulty, for he was barely oonsci~us, how h::.,dits had attac!ced him and stolen his 16 cattle, 40 goats and 2 sheep. Tl1e deceased died soon after that. H~wever · the villagers "rganised them;:;elves into two groups and started to trace the cattle thieves. 'I'he f~llowing day i7 /3/89 at about 4 p.m. they caught up with the thieves d..riving the stolen cattle • ••••• /2 ·\ ll 2 Wb.en t.l~ got sufficiently olo:;_,e ~o -~210 g:?J-,_g, the witnosa 9aid tha.t he identified the stolen cattle to be the deceased 1 s as soma ef his o,.,m were in that nerd, he also identified twe of the eight bandits. He identifieo. tl1e ippellant clearly because he said they had been village rnateG fo:.: the last ten years., He aJ.so. identified. another who was c;-i;_1ged as the third accused and whom he named as Chiming3.ti I-ieure. He wao aoquitted at the trial. In the ensuing fight, -;;;1e ·.1andits Here overpowered and they ran away leaving their loot :.ci.ti.nd, but one of their number Koyesa was arrested but he died ~.ater apparently of w~unds sustained in the fight. The stolon o:~tle were returned to the village. The appellant and the third. accused at the trial Chimingati Maure were later arrested md c:'l.'.:xged with this effence. The Justice of the Peace, David lizuri recorded the appellant's extra judicial statement admitted at the trial as Exh. B in which he admitted t~cing p:,rt in tile rai.d at the deceased I s homestead, but he e::q:>lained that he \·Ta:c an unwill~ p~ioipant as he had simply been forced to join t;1e ra:tc1.f.D.I party when he met them. He confinned that the thi:r:l a.eQUsed was an aotive participant. In his defence at the triaJ., tl1e appellant den:_ed taking part in the raid in wlrich tlle deceased Ha.s l.dlleGI,. Fe said that he was just ar.t'OSted for reason,'3 ,1e did not 'Understanc'l.. After his arrest, ho was subjected te severe beatings in the e<>ursa of whieh he was forced t_o go to tho JuGtice 1'f the Peace where he made the extra judicial statement §.~~!..]• He was told what to say in that statement and that the n21noa hl3 aupplied ,11ere given him by the Police Investi:;;aUng Officer. After a vecy careful summing up, tlio assessors accepted the evidance of FJ .1, that he identified both the appellant and the third accuGed at the scene ,,hile they ,:ere driving away the cattle, The assessors aiso aoce::,:ited tho e:i..-tra. j.udici.al sta.tement Exha B ~ baiting been freely a."ld volunta:rily ma.de. On these two pieces ef evidence, the assesaors found hoth the appellant a.nd the third accused guilt.y as ~ha.rgoo. ~Io.waver,. th9 learn~ judge sta;l;ed that wlti.le h& was a.ble ~ J;Q. along with the assescwrs ••••••• /3 - 3 on the guilt of the appellant, h8 \,o1.s unable to aGree wit.h them on the guilt of 'the third acc~Ged. ::i.cic~cntallyp the second accused had been acquitted at the clcs~ of tho prosecution case •. The learned judge was of the vie•,, tha; \·1lrile P.I~ 1 was indeed a truthful witness, his trut;uulness C:~.d not extend ti, his alleged identification of the'third accused. In fact~ the iearned judge found that J?l.·l.1 lied en three pointr3. ;·le lied when he stated'that he knew the third accused, t;1at he lied when he said that the third accused was a resident of Cl1ase Village wheh in fact he lived in ·1,1sanga Vill2,,ge which ic zorne 50 kilometres awey, · (The learned judge was still using the now defunct imperial systEJm when he stated that Jlisanga is 30 ru.les nway). And lastly. that P\·!.1 lied w]1en he said that th2 -t;;urd accused•s name is Chimingati s/o Heure when he is Chimi.ngo..ti s/o Nd:t•ngl"I. In the eircumsta.nces, he said that he was ~1ot pursuaded that PW .1 knew the third accused before the iacide:-it to c,1ahle him make a correct identification. I{e the;:efore convicted the appellant as having been correctly identified by Ff, 1 Iris ] ong time village mate ana. acquitted the ti1ird accused. Th1 learned judge ') also found that t)\v, 1 is identification of the appellant was r.orroborated, if corroborn.tion Has nece'soary, by. -~:1e appellant I s •wn extra judicial statement • . In th,i's appeal, I-Ir. :'1v!~.I.9EA~3§. le2-rned Counse:i who appeared for the appellant filed four grounc1-s of apgeal. In l;round No. 1, he complained that the leai-ned trial jud0 e erred in la .v in 0 allowing the evidence of PU,2 to be given at the trial when his statement had not been read ft the committal proceedings and no notice had been given to the appellant or lris advoc::>,te. During the hearing of the appeal, !'~_._):'.y1_e;,_:o.:11..ts.~ .submitted that in the absence of a re~sonable notice, fr..·!.2 the Justice ~f· the Peace we.>,s barred from being called a,s a ·,·1i·~ness under t~ecti•n 289 (1) of the C r i ~ Praced.u:ra. Act because the substar1ce t! his evidence was n~t -read at the comroit.t.:"J. proceedings. This ,3ectHn provides .as £oll•ws: 289 - ( 1) No \'/i tness whose statement •r substance of evidence was n~t re2.d at committal p~d.ing,s .shall be .called by the p~u.ti.on at the trial unless the ••••• /4 ' '.,, ' . 4 prosecution has given a . ~easonable notice :in writing to the accuue( person or bis advocate of ti1e intention to call such witness. (2} 'rhe notice· 1:{1£Jl state the name and address of the \·f:l tness a.--id the subst2.nce of the evidence· rhich he intends • to give. I. (3) The Court s;1?..1l d0termine what· notice is reasonabl.J, re,'.;ard being had to the time \-Jhen a.nC, t~ce C].rcu:instances under whj,ch tlie IJro.secu-~ion bee. •me c,cquainted with the nature of the '1i tnesses I s e ridence aad determined to call him as a \•1itn,~ss. Ho such notice need be r i.ven if the ;)rosecution first became aware of t>,e e,..-icence w~ii.ch the witness ,,oli.ld give on the d;:;te on whi,,h he is called. t1r. ~~6ngez~ added that :3ub-:.section (3:, is ,1ot. a~ lJlicable because the _1Jrosecution became aware of the existencG of su:;h evidence as far back as 3/11 /92 during t~1c Preliminary Investig;; t.ion when the first accused, the present aiJiJella,1t inti!!l.2,ted that .1e had been threatened into malting t~1e extra judicial statement to the Justice ~f the Peace. At the trial, wl1en the defence objected for the snme. reasons that the Justice of the Peace (PH .2) s;1ould not be called a.s a witness, the learned judge ,-verruJ.ed t,1e objection in t;te folloWing words: ::aowever it is my view that since yesterday 10/2/93 (i.e. ti1e d2,y before foe trial began on 11/2/93) the d.efence bec81,1e a.ware of the· application for summons for -che prosecution witnesses that i.'~s written ai;out three weeks ago. In tr1at application fo:c sum;;1ons, the ••••• /5 5 name of Mr. Mzuri a::_Jpear~i 2,;1d it is written that he is· a Justice· of t 1e Pee.ce, As it is written that he is a Justice of the Peace, the defence Counsel must have known that the substance of tt1e evidence that this witness would give concerno the extra judicir::,l statement he must :1ave reco:..-'ded, :3•· tile def2:1ce Cmu1sel todr•'.r was not taken by surprise. If he raqu.irec. r-1ore reasonabl~ notice, the defence Counsel s:.1o·u.ld have said so yesterday when he bcca··,1e aware of the calling of this witness. It is my view that the period from yesterday E10m.ing to this day is sufficient notice to the defence:i. '.,fe think with respect thc1.t tlris 9assage contains assumptions which even if they were to be proved correct, cann0t meet the rigid and mandatory requirements of Section 289. Jwen ::.:· tl1e applicatien for witness swmnoi1s uere to b0 regarded as a notice under this Section, which it cannot, there is no iJ::,..sis for belJ eving that it was seea by either· the a};.Y)ellru1t or '.us Counsel. Secondly, Sul>--section (2) makes it mandatory for not O~1ly t~1e r.~me and address of the witness to be su~J)lied, out also the s lbstanee "f . , the evidence wlrich he intends to give. There is no rc0m for the defence to be 1,3ft f;Uessing as the learned judge seems to suggest 0 Thirdly, since tL1e prosecution became a·,:are of the exis';ence ~ ·-such evidence four months before the tri:--,1 c:pened, there was n• justification for t,1e ·court to pin down t'.1e defence t"' a days' ·) notice and call such notice reasonable under .3ub-section (3). In any events ,-rn ,,ere surprised by tl1e judge 1 s remark that. if defence Counsel had required more reasonable n,tice he should have said Sf earlier, when that was exactly ,-,hat Cou.;1Gel had demanded when arguing his objection. It having been accepted by the proseeutitn and the judge lrimself that P'.'/.2 did not feature in the record o.f committal proceedings, he should not l1ave been allowed to give evidence in contravention of the provisions of Section 289 wlrieh are mandatory. In the circumstances \-le ae;ree i",i th the complai11.t in ground 1 and hold that P~!.2 was wrongly allewed tt, give evidence. !ir, Ndung'Uf'U; J.e:>.T"'P.d ,State Att<Uney. .-.ll.Q. ~peared fo.r the republi41 ~! •..•••• /6 6 conceded that P11.2 ·saould not llave ·:ieea 2.llowed to give evidence before complying with the ,11andatory )l.'Ovi_uions of iiection 289 "f the Criminal Procedure Act 1985, ~..$.'!....=.~'21'.1~.z.~ argued grow1c:s 2 u.,1d 3 toget~1er because they both touch~d on the credibility of y;, I~ In these two grow1ds, he complained that ti1e trial ,judco s;1Nll,1 ,1ot i12,ve fowid Pi·l.1 a truthful witness in resp0c-c of one .:::.c<. uoed and a liar 1n respect of the other ;:md that he sl:ould ;.1av0 f'ctmd P'd,.1 an unreliable witness particularly aft Gr ~O;1;:;ide:;_·i;1-i: t:~e statement this witness gave to the police ;:;_ud -::.;:1e cvide,1ce l1e gave in Court. As we have already indicated 1 the le2.rned trial judge found that p:·:.1 had lied on three :no..tters. Jiowever on our pa.rt, we think the learned jucl.g·e over re,::.ctec~ to the differences between the evidence of P'.!~1 and t:C1at given by tiic third a,ccused. P',v.1 t~ld the trial Court that he :mew t:1e third accufJed, while the third accused said that he did not l:now him. P!. 1 said that th9 third accused lived in Chasa Village \1].iile tl1e tll:i rd accused denied this saying that he lived in Msanga Vill::-.:;e 50 ldlc,metres away. PW~ 1 said that the t~lird accused I s narne was Chim.i".1g,,,ti si• Meure while the tllird accused said he Has Chi;11c.i1g2.·t.i s/o }":iyongo. Were these differences sufficient to suc.denly ttu-n P\-I. 1 :into a liar when the c,-,urt had just evaluated him to oe a truthi\Ll and reliable witness? The trial judge sl1ould have realised like t ·.1c assessors that the tlrird accused had evei-y reo..son tl'.I deny PW .1 1 ;, allegations about him, ,-1i1ereas _P1l .1 l1ait no reason to lie against t:1e third accused. The trial judge did not state u}1ere he got t:1e im:p:i:essi•n that the tllird accused was a total stra~1i...,'er t4 P1.-f .1 apart from third accused I s Nm denials. 1 Indecd VT'.>.~n cross examined by defence Counsel, PF .1 st2;~ed categorically tl1at; ';The 3rd accused is my vilL1ce mate at Chase - he in called Chimingc.ti lildyongl'II :L' Heure. He docs n~t st2-y a,t Msanga Villagea. PW, 1 was therefore aware <,f the third accused I s l'lther surname ;,Ndyt,nge" and in any c2-se he definitely k:neH lris first nam~ ::Chimingati a which was not .disputed. "Je are in the circumstances ..... ,/7 ... •· 7 satisfied that the trial juc1ge ~rrong~ .y, even unfairly branded PU .1 a liar• The assessors' assessmsnt of P'.!. 1 as a truthful and reliable witness was the correct ,,ne even after taking into account the difference between \·That hG said in Court and what he stated in his police statement !Ml•2o In Court, he said that his group did not fight the lJand.i ts, but L:t the police statement he stated: - Hapo tulizitz;nbua ng 1 omoe hizo na mbuzi ndizo zenyeuE, zilizoibiwa kwa I_ mareherou, ndipo tukaanza rnapigano ya mishale ba:iati tulc:.wazid.i nguvu wezi hao na kumkmnata mnoja ,,,ao ait\·iaye Koyesa s/o Chimingati - - _,:. It should be remembered that a~corcling to nus witness• the sea.reh party was divided into two grc·upsJ the wi-caess belonged to the group' which was in front. But since the tv·o groups were on the same mission, they '.•1ere juGt one largo grou;1 divided inte t,-ii, sect.ions, so t,1at when the ,.-,i tness uas tlescri bing the events while at the police statio:1, 11e chose to ·treat the \!bole search party as one and :1e considereq1 himself a member of the entire search party. But in his evidence in Court, he chos:? to be ~re detailed, describing what each section of the group didJ He oan therefore see not:ung in ·bis to make P..7. 1 a liar and unreliable, In the circumstances we reject t:1e complaints in grounds 2 and 3. In view of our finding that P}. 2 should not. have been all~ed I ~ give evidence in contravm,.tion of dodion 289, it follows that· "----. the extra judicial statemm1t was wronsly n.d.mitted and th 1)refore we need not deal ·t1ith the complaint in grou,7.d 4 na1_;1ely that the lea.med judge misdirected himself in relying on the extra judicial stateinont of the appellant in complete disregard of the circu.nstances_under which it was made. :SU.t we would like to point eut that as it was alearly re·~racted at the trial~ the t:dal judGe should not have pla..ed e:ny reliance on it without ,·rarning himself: 6f the dangers 0£ convicting on a retracted confession. ••••• /a ' ..•..,:.,,,~1 '!'!~$~tht~??,:..,-~-·""·~•~""!"-·"91-----.. 4-.~·- - .. ,. . ,... _ ii . . ,• ' 8 However as we hope we 11av~ clc, :;].y i:.1c1ica';Gd, the trial Court was :perfectly and rightly cntHled t-- base thr a!);_:>Clla.nt Is convictien on the evidence of PW .1 ence t~1ey :12.c"" evaluated ltim. as they did,. t<). be a .truthf'ul and reliable uitaeso, =.=• .1e t:lii. d accused slJ.auld consider himself lucky fer 1:ieing acq_uLted. The appellant vJ'!\S ·rightl;y- convicted ~m tl,.e basis ·:f t;w .:.:.octrine of recent possessl"Jau. Tl1e appeal has n◊ merit 1 we acco~·di·,1gly orcler that it be dismissoo. • .DLTEJJ .!B: .:00.DOH.t.. T3I& 25TE DAY OF OC'L0:2.ER, 1993. 1Y,3TICE O:i .. APi'EAL JUSTic:..,; -·---- OF -.!\.?1.'1:AL .•. ·--- ............. L .l I. 1-U•'.AI,ILA I ~rtify tha.i: this in a true copy of tl1e original .• ( p .n..IC. RUGAil-'iUK.Jum )