19940000 TZCA Mbeya

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA LUBUVA, JA.) CRIMINAL APPEAL NO. 84 OF 1992 BETWEEN SOVELWA MWAYONGA. . . . APPELLANT AND THE REPUBLIC. . , . . . RESPONDENT CRIMINAL APPEAL NO. 155 OF 1994 BETWEEN THE DIRECTOR OF PUBLIC PROSECUTIONS. • • . . . APPELLANT / / AND DAUDI s/o MWAYONGA O . . . RESPONDENT , / (Appeal from the Conviction and Sentence of the High Court of Tanzania at Mbeya) (iwippo, J.) dated the 23rd day of March, 1992 in Criminal Sessions Case No. 129 of 1991 JtJDGENENT OF THE COURT MFALILA J.A.: In the High Court of Tanzania at Mbeyá, the two brothers Soveiwa MwayOnga 1st accused and Daudi Nwayonga 2nd_accused were charged with the offence of murder. It was alleged that on or about the 15th November 1984, at Swaya Village in Mbeya District, they jointly and together murdered Mwakilulele Ngulungu. At the end of the trial, the trial judge (Mwipopo, Jo) found the first accused Soveiwa guilty of murder, convicted him and sentenced him to death. With regard to the second accused Daurii, the judge found that although he jointly with the first accused Caused the death of the deceased, malice aforethought had not been established on his part. He therefore found him guilty of the lesser offence of manslaughter and convicted him I. _i - 2 - of this offence. As to the sentence, he said that he was minded 6 impose a 15 year prison sentence, but deducted 2 years and 4 months spent in custody leaving the balance of 12 years and 8 months which he directed to be. served. We would like to point out with regard to this sentence that the method adopted by the trial judge k5 most undesirable. Trial courts should not impose substantive terms of impflsonment and then deduct the period spent 'in custody 1ving the balance as the term to be served. This complicates PrisOn administration. Trial coutts are certainly free to take into account the period spent by Convicted persons in remand custody, but having done so, they should only impose appropriate substantive terms of impri sonmen t. In the present case, all that the judge needed to dO was to state that "after taking into account the time spent in remand custody by the accused, I sentence him to 12 years imprisonment". Prison sentences should be whole without decimals as it was done in this case. Turning now to the appeals before us, in Criminal Appeal No. 84/92 the appellant Sovelwa Nwayonga the first accused at the trial, is appealing against his conviction for murder and the sentence of death, In Criminal Appeal No, 155/94 the Director of Public Prosecutions is appealing against the second accused's acquittal for murder and his conviction for manslaughter, For obvious reasons, we consolidated the hearing of the two appeals. According to the eviAence led at the trial, the prosecution and the defence appeared to have been in agree that both the deceased's group and the accuseds' had been drinking pombe at the same pombe shop that evening up to I 8 p.m.' According to the prosecution withsses, it is tic J ._. . /. . - 3 - which group left the pombe shop first, but they met a little later. At this point the two versions part company. According to the prosecution withesses, PW.1, PW.2 and PW.3 as they were walking home in single file from the pombe shop with their late brother, the deceased in this-casei they were suddenly set upon by two people whom they recognised to be the 'two accused persons at the trial. One of them held the deceased, while the other speared him through the neck and thorax. In fact ,accOrAing to PW..1 1 it was 'the second accused DaUdi who held the decesed from behind and the first accused Sóvelwa approached and speared the deceased to death. After spearing the deceased, the two ran away from the scene to Inyala village where they were arrested three days later. The defence gave the opposit version s The two brothers agreerl being at the pombe shop with the Ngulungu brothers, but they said that when they left to proceed home, they were ambushed on the way by the decesed's group. They said that when the deceased end hisperty attacked them, they attempted to snatch the weapons froi them in the course of which the spear carried by the first accued got broken.' As the spear broke into two, the first accused remained with the shaft while PW.3 remained with the blade. Then the fit'st accused saw PW.2 and PW.3 advancing towards the second adCUSed, immediately he heard the deceased cry out that he had been injured. Then the second accused rose from the ground and they ran aWay They were arrested on 21/11/84 at Inyala village. On thi evidence, the trial ju(Age found that the charge of murder had 1 been established in respect of the first accused Sovelwa who physically speared the deceased, but that he was unable to infer malice aforethought in respect of the second accixsed T)aud-i who had merely held the deeased. He therefore convicted them ..../4 4.- for murder atid manslaughter respecttvely and sentenced them as indicated In Criminal Appeal No, 84/92, the appellant Sovelwa Mwayonga comlained in his memorandum of appeal that the learned ttiai judge erred in law and in .fact.when he convicted him of the offence of murder while the prosecution .dase fell far short of.proving the offence .to l the standard required by law. At the hearing of this appeal.,.Mr. Ndibalema. learned counsel who appeared for the appellait, expanded on. this ground stating thatthere is no evidence showing that it is the appellant. who killed the dceased with malice aforethought. He added that PW.1 who said that he saw the appellant spear the deceased, could not have don.e so because it was a dark night and there was a fight. In his submission, the trial judge should have believed in the appellant's version that it was PW.3 who snatched the spear. front him, and speared the deceased. In any case, he concluded, if there were.any doubts in this regard, they should have been resolved in the appellant's' favour. Prs Mkurü learned Senior State Attorney who appeared for the Republic, supported the appellant's conviction for murder: and the sentence of death. She said that .the trial' Ii judge correctly believed the prosecution withees Pw.1,PW.2 an Pw.3 to the effect that they were ambushed by the appellant and his brother, that there was no fight at all between the two groups and that in the course of this ambush the appellant and his brother speared the deceased to death. On our parti we are in agreement with Mrs. Makuru's position. The night in question was not a dark one. We say this becaue both sides were able to recognise ech other. 9 /5 4 5 - PWs. 1, 2 and 3 said thatthey were able to recognise the appellant and his brother. Similarly the appellant and his brother said in their evidence that they recognised their attackers to be the deceased eind his three brotriers i.e. PW.1 1 • ?W.2 and PW.3. If they were able to recognise the members of the other group so easily, it could not have been a dark night • and therefore nothing impossible about recognising who 'did what. Like the learned trial judge, we were not persuaded by the appellant's story that it is PW.3 who speare1 the deceased after snatching the spear from him. First of all, as they were able to recognise one ancthet, there is no reason in the world why PW. should have speared his brother to death. Secondly, ifj iccording to the appellant's own evidence the speak had been broken seperting the shaft from the blade, it was impossible with only the blade in his hands for PW3 to have inflicted such an injury On the deet. We are therefore saiisfie that the appellant's version Was rightly rejected. The'l appellant was the one who speated the deceased as he was being held by the second atCUd Daui He wab rightly coflvicted of murdet and seritented to death. Aodingly' we dismiss his appeal in its entirety. We turn now to Criminal Appeal NO. 155/94. In this appeal, the Dirctor of Public Prosecutions complained that the learned trial judge erred in not considering the degree of participation required to make the respondent a principal offender under section 23 of the Penal Code anA that therefCre he erred in convicting the respondent of manslaughter while there is enough evidence on record to warrant a conviction cf murder. F-4 - - In his judgement when acquitting the respondent Daurii Mwayonga of murder and convicting h.•m of manslaughter the trial jur4 ge reasoned as follows: "On the part of the 2nd accused (the present respondent) the prosecution tried to establish his ill motive through an alleged previous quarrel between the 2n1 accuse' and the receased as narrate'! by PW.1., But, the prosecution rid not call one Daniel Kanjila as witness in Court being the one who saw such quarrel. This pQrticn of PW.l's evidence therefore remains mere hearsay which must be disregarded completely.. Other than the joint attack of the deceased by the sod accused with the 1st accuse'! there is nc other evidence of any preJious agree- ment or common intenti9n between the two to go and kill or cause grievous harm to the deceased. The actions of the 2nd accused in accompanying the 1st accused for the unlawful mission of attacking the deceased and in grabbing the deceased thereby enablirg the 1st accuseri to strike the deceased aro the basis of my above fin'ing that the 2nd accused caused the death of the deceased although he did not strike the fatal blow. V. - 7 - For purposes of establishing malice aforethought I accept that the 2nrl accuser1 inAee knew that the 1st accusei had both a spear and a stick for attacking the r1eceaseti. But there as still the option for the. 1st accuserl to strike with the stick rather than with the spear which option. at that stage the 2nelaccuserl, hac no longer control or influence over It's exercise. it wouLi be stretdhihg th principle of causatioh uiAer sectiop 20 (a) of the Penal Co'e too far to infer that the 2nr aCcused in jointly attacking the ecease he had malice aforethought. I give the 2nr1 accused the benefit, of doubt that in jointly attacking the eeceased he may not have known that the 1st acCused would have opted for the spear, for the vulnerable part cf the bcAy of the (leceaseA or for the exertion of excessive force in striking the deceased. 11 This was going to great lengths to save the responAent from the consequences of his joint actions, with the 1st accuseri. At the hearing of this appeal, Mr. Mbise learner! State Attorney who appeared, for the appellant Republic, submitted that in arriving' at this conclusion, the trial judge did not adequately consider the facts of this case and their effect on section 23 of the Penal Code. The crucial facts of this case which were accepted by the trial judge is that after. the ambush, 'the respondent firmly held the deceased and while being so held, his co—accuse'ri the 1st accused at the trial fatally speaTrec the deceased Irrespective of anything else, Nr.Mbise said, this fact brought the present case, within the ambit of section 23 of the Penal Code. Section 23 of the Penal Code provides: "When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one atoth'er, and in the prosecution of such purpose an offence is dommitted of such a nature that its cPrnmission was a probable consequence of' the prosecution of Suci purpose each of theni is deemev-to have committed the offence.," We are satisfied that if the trial judge had taken the trouble to read the jurgement o. this Court and Another v Republic 1980 TLR and also the provisions of section 23 of the Penal Code, he wou'd have rèlised that the present respondent was as guilty of.th murder of Mwakilulele Ngulungu as the first acused and that his,:- reference to section 203 of the Penal Code on the ctsation r o`f.deth was irrelevant. Who Caused the. death was not an issue in'this case', the issue was the degree-of participation by the-.respondent. In the case we have just ci.td two appellants - were convicted of murder in the High Court. ' The first appellantienl'isted the second appellant 'in assaulting the deceased 'whoi:he suspected of having an 'affair with his fomeccubj On the material date the econd appellant held the decae,'S hards to prevent the deceased frVn fleeing and from defefling himslf against the assaults 'On this evidence this utt stted at pages 293 - r - 9 - "To turn to the case against the second appellant, we are satisfied that he was proprly found guilty of murder of the deceased Ramadhan Mcheye. The secOnd appellant's only defence was an alibi which quite rightly.in our view was held to be a1pably false and accordingly tejecte1. Once the second appellant's 8libj was totally rejedta5 the Ohly issue that k6mai ;hee for Aetermination was whether or not the sOnd 2§ppellaht .469 gtiilty of the offehce dhardedi , We can see no problem in thig issue at leatly oh t}ie evidence accepted ahd acted upon by the learned trial judge the second appellant was an active partictpant In the vicious assault of the' deceased. By holding deceased's hands he not only made' it impossible for the deceased to flee from his ssailant but also ensured that the first appellant in carrying out his evil deed would meet no resistance from his victim. In these circumstances we are satisfied that' the second appellant' $ conduct at the material time brings him within the arnbit of the provisions of section 23 of the Penal Code which provides: "When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose an offence is ¼' ¶ - 10 - committed of such a nature that its commission was a probable consequence of the prosecution of such purpose each of them is deemed to have committed the offence." On the evidence accepted by the learned trial judge, there can, in our view be no doubt whatsoever that when the two appellants set out to look for the deceased at the pombe club they had already formed a common intention to teach the deceased a.lesson for taking away first appellant's concubine. Unfortunately for them their joint errand ended in the fatal assault of the deceased. In these circumstances we think the learned trial judge was right in finding both appellants guilty of the murder of Ramadhan. Mcheye and can find no good reason for interfering with his finding." In the present case as in the Mathias Mhni case the two brothers set Out with a common purpose to ambush the deceased's party and having done so the present respondent held the deceased firmly and while in that position his brother viciously speared the deceased. By so holding him, the rspondent, as the second accused in the Nhyeni case not only made it impossible for the deceased to flee from his assailant but also ensured that the first accused in.carrying out his evil deed would meet.no resistance from his'victim..By so acting and conducting himself, the respondent clearly andnequivocally brought himself within the embit of section 23 of the Penal Code. The choice of weapon by the actual assailant could not affect his liability. At the hearing of this appeal, Mr. Ndibalema learned counsel who appeared for the respondent, attempted to save the day for the respondent by submitting that as there was fight between the two brothers and the deceased's party, the death which followed occurred in the course of the fkght and that therefore both accused should have been found guilty of the lesser offence of manslaughter. With respect, there is no evidence of any fight having taken place between the two parties, indeed the trial judge made a specific finding that the two brothers ambushed the deceased's party. For these reasons, we are satisfied that the respondent should have been convicted of murder as charged along with his co—accused. Accordingly, we allow the appeal by the Director of Public Prosecutions, set aside the coniction for manslaughter and.the sentence of 12 years imprisonment and 8 months which was imposed. Instead we convict the respondent of Eas charged and we sentence him to suffer de th/'ann 9. . DATED'AT NBEYA THIS 31ST wY OF OC'BER, 1994. JUSTICE OF APPEAL L.M. ?'ALILA JUSTICE OF APPEAL - D.Z. LUBUVA - JUSTICE OF APPEAL this is a true copy of the original. S.M. LUANDA)- ENOR DEPUTYRI$TR - iN THE COURT OF APPEAL OF TANZANIA MFtYA (cO!. zA4s4 JeAn MFAI1IL J.A.jAii tUBUVA.4J.A) CRIMINAL APPEAL NO. 215 OF 1992 BE TJEEN 1 BRASIUS MAONA I 2. GAITAN MGAO • . . . . . . APPELLANTS THE REPUBLIC. . . . . . . . .'RESPONDENT (Appeal from the Conviction and Sentence of the High Court of Tanzania at Iringa) (Mchome 4 J.) dated the 12th day of NOvember, 1992 in Criminal Sessions Case No. 123 of 1990 JUDGEMENT OF THE COURT LUBUVA, J.A.: In this appeal, BRASIUS s/0 MAONA and GAITAN s/o MGAO who, at the trial were referred to as the first and second accused respectively, are.appealing against the decision of the High Coük4 (Mthoftle3 .L) Attihd ib Irihga. TFie apellánts were charged with and convic4ed of the ofene ok muiedkcontrary to section 196 of the Penal Code. They were sentenced to death and have now appealed to this court. The facts as established at the trial are simple. They are that the appellants and the deceased lived at the village of Ihemasa within the District of Iringa in Iririga Region. The incident that led to the death of the deceased took place at that village. The appellants and the deceased were close relatives. The second appellant was a nephew of the deceased and the first appellant was describer as the son-in-law of the deceased. ..../2 - 2- It was the prosecution case that on 7.1.1990 at about noon,. as the deceased was cutting trees for the repair of his cattle boma nearby his house, the appellants shot the deceased with a muzzle loading gun. As a result, the deceased fell down whereby the appellants brutally cut him (deceased)with a bill—hook. The deceased died. The appellants ran away from the scene but still remained at the village where they participated at the initial mourning rituals for the deceased. The following day (8.1.1990) the appellants were named to the Ward Secretary (CW.1) who ordered the arrest of the appellants who were eventually handed over to the police (8.1.1990). The trial court held that the prosecution witnesses Yudita Mbwawa, the daughter of the deceased (PW.2) and Malegreta Madati (Pw.5) the wife of the ecae Wete credible witnesses. They were the eye witnesses o the ihci4ert WO saw 4he appellants attacking the deceased. On the basis of the evidence of these witnesses (PW.2, PW.5) and the confessional statement by the second appellant Exhibit P.3, the learned trial judge rejected the appellant' s defence of alibi and concluded that this was premeditated murder on the part of the appellants. The appellants were accordingly convicted of murder and sentenced tb death. Mr. Mkumbe, learned, counsel for the appellants who appeared before us in this appeal argued one ground of appeal. His main complaint was that the trial judge erred in .onvicting the appellant on the evidence which was not only insufficient but was based on suspicion. That as there were quarrels between the prosecution witnesses and the appellants because the deceased was suspected to be a witch, the evidence of the prosecution should have been treated with suspiciøn, Mr. Mkumbe stressed. The earned counsel further complained that the identification of ..../3 N N N J ) '1 - 3 - the appellants by PW.2 and PW.5 was an afterthought. It was the view of the learned counsel that if these witnesses (PW.2 and PW.5) had seen the appellants attacking the deceased, there was no reason why they (PW.2, PW.5) could not reveal the names of the appellants as the ones who were involved in the killing of the deceased until the following day. Such a long delay in reporting to the village authorities showed that PW.2 and PW.5 were unreliable witnesses, Mr. Mkumbe submitted. Prompted by the urt on the confession by the second appellant (Exhibit P3), Mr. Mkumbe was of the view ,that it Was properly admitted under the provisions of section 29 of the Evidence Act 1967, but was doubtful whether the statement was made by the second appellant. For the respOndent Republic, Miss Mwaiteleke learned State Attorney resisted the appeal. She stated that as the appellants were related to the deceased as well as the prosecution witnesses PW.2 and PW.5, the question of mistaken identity did not arise. The learned State Attorney further submitted that PW.2 and PW.5 who were well known to the appellants in broad day light clearly saw vhat each of the appellants did in attacking the deceasede Miss MWaiteleke maintaired that the evidence Of PW.2ánd PW.5 was sufficiently strong to sustain conviction against the appellants. As regards the delay in revealing the names of the appellants to the village authorities, the State Attorney contended that there were reasonable grounds for it. She stated that the prosecution witnesses PW,2 and PW.5 did not disclose the names of the appellant5 at the earliest opportunity because of fear that if the names of the appellants were revealed at the very initial stage they (appellants) would disappear. Elaborating on this, she stated that already a third suspect had eissappeareA and wan t traced s• as to stand trial together with the appellants, \j . * - 4 - Regarding to the confessional statement by the second appellant it was Miss Mwaitleke' $ submission that it was properly admitted because the trial court believed what was containe,i in it as truthful. She prayed that the appeal be dimissed. We shall first deal with Mr. Micumbe's complaint that as the prosecution evidence was based on suspicion it should not have been relied on in sustaining the conviction against the appellants. From the record, it is clear that the appellants and the prosecution witnesses PW.2 and PW.5 who were relatives knew each other well. It is also on record that on the day of incident at about noon, prior to the killing of the deceased, Yudita rwawa (PW.2) had met the first appellant at the deceased's house asking where the deceased was. That soon after the first appellant had left the deceased's house, PW.2 heard the sound of a shot gun from the direction in which the deceased was. As to what happened thereafter PW.2 st8ted: "I was about to go to collect vegetables from the gar'en when I heard the shot of a gun from where father was cutting trees. Then I heard father saying "wameniva". I ran to the scene. cuttingdeceaseA with a p ang. It is 1st accused who held thean. We made an alarm. Accused ran away and people came. I told them even if they ran away I had seen them." (emphasis supplied). On this, there is also the evidence of Malegreta Madati (PWe5) the wife of the deceased from whom as already indicated, the 4ay of the incident, at about 1 p.m. the first appellant inquired about the deceased. In her evidence, she stated: "Then 1st accused came. It was at 1.00 p.m. He asked me if the deceased Was present. The deceased was cutting trees. 4 . . . 15 - 5 Then 2nd accused shot him with a gun. Then we saw the accused persons standing where the deceased had fallen. We came closer and made an alarm. Then accused ran away. The ist_ccused cut deceased with a nyengb on the head while 2nd accused ShOt him with tt (emphasis supptied). From this evidence, it is evident to us that PW.2 and PW.5 were in a vantage position from where, they cOuld see quite clearly what each of the appellants did to the deceased at the time of the killing. With respect, we do not accept Mr. Mkumbe's contention that these witnesses (PW.2, PW45) implicated the appellants because of suspicion ohiy In Our view, this is so, because from the evidence on record, various other people in the locality including the village Chairman had also for some reason suspected the deceased to be a witch. We are convinced that there was no reason at all for these witnesses (PW.2, PW.5) to pick on the appellants only if infect they had not seen and identified the appellants attacking the deceased. Like the learned trial judge, we think PW.2 and PW.5 were witnesses of truth, they had no reason to tell lies against the appellants. In these circumstances, we are satisfied that Mr. Mkurnbe's complaint that the appellants were named as an afterthought on account of suspicion is without substance. We now turn to the cautioned statement (Exhibit P.3) by the second appellant. As already pointed out, Mr. r&umbe conceded that theconfessional statement by the second appellant was properly admitted in. evidence under section 29 of the Evidence Act, 1967. In that statement, a detailed account of how the appellants together with a third person by the name of Anthony Chalarnila had set upon killing the deceased in revenge for the deaths of the relatives of the appellants . . . . /6 - 6 - that the deceased was suspected to have caused by means' o . witchcraft. At the trial, the second appellant claimed, that the statement was obtained through torture and so, what was stated in that statement was not true. In order to determine the oluntary nature of the sttemebt and i,admiss1b11ity in :evience, the learned trial judge held a triel wih1h a trialo On the basis of the trial within trial, the trial, judge then ruled that though the statement was not voluntary but still he admitted it in evidence under section 29 of the Evidence Act, 1967. Addressing himself on the admissibility of the statement, the trial judge stated: "So I have to give the accused the benefit of doubt and hold that the statement was not voluntarily made. Under section 27 of the Evidence Act 1967 therefore that statement is not admissible. But under section 29 of the Evidence Act such a statement is to be rejected only if the threats, inducement Or promise made to accused were such as were likely to cause an untrue admission of guilt to be made. The threatjnducement torture and the like in my opinion -i' not make accused make an untrue confession.'t (underscoring supplied) From this, it is apparent that though the second appellant had claimed that the statement was induced by torture and the learned trial judge accepted it as a fact, nonetheless the statement was admitted under the provisions of section 29 of the Evidence Act, 1967. With due respect, we think it was improper for the trial judge to admit the statement particularly after it was established to the satisfaction of the court that torture had been applied in extracting the statement from the second appellant. Once torture has been established, courts •• • • / 7 shotlç1 be vety cautious th admIttihq such staternehts in evidenCe even Under the p.ôisioñs bf setIoti 29 of the Evienc Act, 1967hich In oi 6 ietd pinio wa's thean th be ihvoked In sitüaIOns wher the ihAuceffient InoiVed is. torture I tegr to th e cohfessional statement of the second appellant (Exhibi P3) Whih4, a already explathed, haring held that it was improper to admit it because torture was used what is the strength of the prosecution case if this statement were excluded. This is particularly so because in arriving at the conclusion to convict the appellants, the learned trial judge had also taken into account the statement of the second appellant, To our minds, as correctly found by the learned trial judge, PW.2 and PW.5 were truthful witnesses0 From their evidence which was credible it was clearly established that the appellants had been eriquiring about the deceased earlier in the day prior to his (deceased) death. That PW.2 and PW.5 in clear broad day light saw the appellants attacking the deceased who fell on the gt'ouiid dead. The appellants were well known to these witnesses (PW.2 and PW.) and so the question of mistaken identity does not in . oup view, arise. The question of grudge on the part Of PW.2 and PW.5 agaiist the appellants h no basis either because, mahy other people in the village had also suspected the decese4 of being a witch but were not named as suspects. On the eviience as a whole, we are satisfied that even after excluding the confessional statement (Exhibit P.3) from the evidence, there was ample other evidence which fully supported the conviction of the appellants. Accordingly, we dismiss the appeal in its entirety. . .. •_\ - 8 - DATET) at MBEYA this day of 1994. N.S. MNZAVAS JUSTICE OF APPEAL • L.r1. MFALILA JUSTICE OF APPEAL D.Z. LUBUVA • JUSTICE OF APPEAL I certify that this is a true copy of the original. ( M.S. INI) 1)EPUTY REGISTRAR I.